Local Union 49 of the Sheet Metal Workers, Etc.Download PDFNational Labor Relations Board - Board DecisionsFeb 3, 1959122 N.L.R.B. 1192 (N.L.R.B. 1959) Copy Citation 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to June 15, 1958, the eligibility payroll week, and that although Schoonover was rehired before the date of the election it was for only a temporary 10-week period and that he was therefore a tempo- rary employee. However, the Petitioner alleged that all three em- ployees were unfair labor practice dischargees and charges to that effect were filed with the Regional Office.' In a further investigation the Regional Director found insufficient evidence upon which to issue a complaint and accordingly dismissed the charges. The Petitioner appealed to the General Counsel from this ruling. While the appeal was pending, the Regional Director issued his report on challenged ballots in which he recommended that the challenges to the ballots of La Guire, Merritt, and Schoonover for the reasons stated above be sustained and that a certificate of results of election be issued in accordance with the tally of ballots, subject to the decision of the General Counsel on the appeal. The General Counsel subsequently, on January 20, 1959, denied the appeal and upheld the refusal of the Regional Director to issue a complaint. Therefore in accordance with established precedent we find that as La Guira and Merritt were discharged for nondiscriminatory reasons they were not employees on the eligibility date. Accordingly, we adopt the Regional Director's recommendation to sustain the challenges to their ballots 4 As we have sustained sufficient challenges to establish that the Petitioner has not received a majority of the valid votes cast in the election, we shall certify. the results of the election without passing on the remaining challenged ballots. [The Board certified that a majority of the valid ballots was not cast for the National Association of Broadcast Employees and Tech- nicians, AFL-CIO, and that said Union is not the exclusive repre- sentative of the Employer's Cadillac, Michigan, television station in the unit found to be appropriate.] 3 Case No. 7-CA-1889 ( unpublished). * See, e . g., Dura Steel Prodfct8 Company, 111 NLRB 590, 591-592; Stainless Welded Products Inc., 104 NLRB 204, 205; Bear Brand Hosiery Co., 100 NLRB 1355, 1357. The Petitioner ' s contention concerning an alleged understanding of the parties with the respect to the withdrawal of challenges raises no material issue affecting the determina- tion of the challenges. Local Union 49 of the Sheet Metal Workers Association, E. D. Brooks , Business Representative and New Mexico Sheet Metal Contractors Association , Inc. Case No. 33-CB- 104. February 3, 1959 DECISION AND ORDER On September 16, 1958, Trial Examiner Herman Marx issued his Intermediate Report in the above-entitled proceeding, finding that 122 NLRB No. 145. LOCAL UNION 49 OF THE SHEET METAL WORKERS, ETC. 1193 the Respondent Union had engaged in and was engaging in certain unfair labor practices and recommending that Respondent Union cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also granted Respondent Brooks' motion to dismiss the complaint as to him on procedural grounds. Thereafter, all parties except Brooks filed timely exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its power herein to a three-member panel [Chairman Leedom and Members Bean and Fanning]. 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 Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions,' and recom- mendations of the Trial Examiner with the following additions and modifications : 1. We disagree with the Trial Examiner's conclusion that Re- spondent Brooks was not timely and duly served with a copy of the charge. As set forth in detail in the Intermediate Report, a number of unsuccessful attempts were made to serve a copy of the charge on Brooks. However, on April 28, 1958, counsel for the Charging Party left two copies of the charge in separate envelopes, one ad- dressed to Brooks and the other to the Union, under the door to the Union's offices. The following day, April 29, these envelopes were placed on Brooks' desk where, prior to the serving of the complaint upon him and the Union, he found them and read the charges. As Brooks actually saw and read copies of the charge naming him as a party charged, following a good-faith attempt and the use of all reasonable efforts, as set forth in the Intermediate Report, to effect service of the charge upon him and the union, we find that he was duly and timely served on April 29. As the alleged violations all fall within the 6-month period preceding the service of the charge on Brooks, we find that the Trial Examiner was in error in granting Brooks' motion to dismiss the complaint. According, we hereby re- verse the Trial Examiner's ruling and deny the motion.2 1 The exceptions of the parties were limited to the Trial Examiner's dismissal on pro- cedural grounds of the complaint as to Respondent Brooks, his failure to dismiss for similar reasons as to Respondent Union, and his determination as to the scope of the multiemployer unit , as discussed hereinafter . No exceptions were filed to his other find- ings and conclusions, which we therefore adopt pro forma. 2 See, N .L.R.B. v. T. A . McGahey, Sr., et el ., 233 F. 2d 406 ( C.A. 5). The Respondent Union excepts to the Trial Examiner 's denial of its motion to dismiss on the ground that the service of the charge on it was neither proper nor timely. We not only agree with the Trial Examiner that the constructive service of the charge effected on the Union was sufficient to satisfy the requirements of Section 10(b) of the Act, but further find, for the reasons set forth above , that the actual service on Brooks of the copy of the charge addressed to the Union constituted due and timely service upon the Union . Accordingly, we affirm the Trial Examiner 's denial of the Union 's motion to dismiss. 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the ' Trial Examiner did not dismiss as to Brooks until after the hearing in this proceeding was concluded the issues with respect to Brooks were fully litigated. It is clear from the whole record that Brooks was acting for the Union and within his authority when he engaged in the various actions that the Trial Examiner found violated the Act, which findings and conclusions we have, in the absence of exceptions thereto, adopted pro forma. Accordingly, we find that Respondent Brooks, as agent for the Union, has sim- ilarly violated Section 8(b) (1) (B) and 8(b) (3) of the Act, and we shall, therefore, order that he cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 2. The General Counsel and Charging Party contend in their ex- ceptions and briefs that the appropriate unit should include all of the 34 individual employers listed in the charge, and not the smaller group which the Trial Examiner found to constitute the appropriate association bargaining unit. We disagree with this contention, for the inclusion of a particular employer in a multiemployer unit is based upon the mutual consent of the parties to such inclusion, as evidenced either by a bargaining history for such group of em- ployers in a single unit, or by the express agreement of the parties to the inclusion of the individual employers.' No such bargaining history or agreement is shown in the record for those employers whom the Trial Examiner excluded. Accordingly, we adopt the Trial Examiner's determination that the unit does not include the additional employers who, the General Counsel and Charging Party contend, should be included. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Local Union 49 of Sheet Metal Workers Association, its representatives, officers, successors, assigns, and agents, including the Respondent, Business Representa- tive E. D. Brooks, shall: 1. Cease and desist from : (a) In any manner restraining or coercing any employer who is a member of, or represented by, New Mexico Sheet Metal Con- tractors Association, Inc., or any other employer, in the selection of the said Association, or any other person, group, corporation, or- ganization, or association, as a representative for the purposes of collective bargaining or the adjustment of grievances. (b) Refusing to bargain collectively with the said Association with respect to the wages, hours, and other terms and conditions of em- a See , for example , Mol-inelli, Santoni & Freytes , S. en C., d/b /a Panaderia La Regu- ladora and Panaderia La Francesa, et al., 118 NLRB 1010, 1014. LOCAL UNION 49 OF THE SHEET METAL WORKERS, ETC. 1195 ployment of employees in a bargaining unit consisting of all em- ployees of the members of the Association subject to any of the agreements between the Union and the Association, dated August 14, 1957, employed in the types of occupation or work described in article 1 of each of such contracts, excluding all other employees of such members, and supervisors as defined in the Act. (c) Refusing to bargain collectively with any employer, in any case where it serves, or has served, notice upon such employer of the termination of, or a desire to modify, any collective-bargaining agreement, by (1) failing, contrary to Section 8(d) (2) of the Act, to offer to meet and confer with such employer for the purpose of negotiating a new agreement or a contract containing the proposed modifications, as the case may be; (2) failing, contrary to Section 8 (d) (3) of the Act, to notify the Federal Mediation and Conciliation Service and any appropriate State agency of the existence of a dispute, within the meaning of said Section 8(d) (3), within 30 days after thus giving notice of the termination of, or a desire to modify, any such collective-bargaining agreement, provided, however, that no notice to the Federal Mediation and Conciliation Service and any appropriate State agency shall be required if an agreement is reached with such employer within 30 days following service of said notice of termination of, or a desire to modify, any such col- lective-bargaining agreement; and (3) failing, contrary to Sec- tion 8(d) (4) of the Act, to continue in full force and effect, without resort to a strike, all the terms and conditions of the existing collective-bargaining agreement for a period of 60 days after such notice of termination of the said agreement, or of a desire to modify it, is given, or the expiration date of such contract, whichever occurs later. (d) Sponsoring, engaging in, or instructing or requesting em- ployees subject to the said contracts dated August 14, 1957, or any other employees, to engage in, a strike, without first complying with the provisions of said Section 8(d) (2), (3), and (4) of the Act in any case or situation where such compliance is required. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with the New Mexico Sheet Metal Contractors Association, Inc., with respect to the wages, hours, and other terms and conditions of employment of employees in the unit herein found appropriate for bargaining purposes, and if agree- ment is reached, embody the terms in a signed contract. (b) As hereafter set forth, post copies of the notice attached hereto marked "Appendix A." 4 Copies of said notice, to be fur- In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nished by the Regional Director for the Sixteenth Region of the National Labor Relations Board shall, after being duly signed by an official representative of the Union and by Respondent E. D_ Brooks, be posted by the said Union and by Respondent E. D. Brooks at the Union's business office and customary membership meeting place, including all places where notices to members are customarily posted; immediately upon receipt thereof and be maintained by them for a period of 60 consecutive days thereafter. Reasonable steps; shall be taken by the Union and E. D. Brooks to insure that said notices are not altered, defaced, or covered by any other material.. (c) Furnish to the said Regional Director for the Sixteenth Re- gion of the Board signed copies of the notice attached hereto marked "Appendix A" for posting by the employers subject to the agreements- between the Association and the Union, dated August 14, 19577 if such employers agree, in places where notices to their employees are customarily posted. (d) Notify the said Regional Director for the Sixteenth Region in writing, within 10 days from the date of this Order, what steps the said Respondents have taken to comply therewith. APPENDIX A NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF EMPLOYERS WHO ARE SUBJECT TO ANY CONTRACT WE HAVE WITH NEW MEXICO, SHEET METAL CONTRACTORS ASSOCIATION, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby give notice that: WE WILL bargain collectively, upon request, with New Mexico Sheet Metal Contractors Association, Inc., with respect to the wages, hours, and other terms and conditions of employment of employees in the bargaining unit described herein, and if agreement is reached, embody the terms in a signed contract. The bargaining unit is: All employees of the members of New Mexico Sheet Metal Contractors Association, Inc., subject to any of the agree- ments between the said Association and -the Union, dated August 14, 1957, employed in the types of occupation or work described in article I of each of such contracts, ex- cluding all other employees of such members, and super- visors as defined in the National Labor Relations Act. WVE WILL NOT in any manner restrain or coerce any employer who is a member of, or represented by, New Mexico Sheet Metal Contractors Association, Inc., or any other employer, in LOCAL UNION 49 OF THE SHEET METAL WORKERS, ETC . 1197 the selection of the said New Mexico Sheet Metal Contractors Association, Inc., or any other person, group, corporation, or- ganization, or association, as a representative for the purposes of collective bargaining or the adjustment of grievances. WE WILL NOT, in any case where we serve, or have served, notice upon any employer of the termination of, or a desire to modify, any collective-bargaining agreement, refuse to bargain collectively with such employer by (1) failing, contrary to Section 8 (d) (2) of the National Labor Relations Act, to offer to meet and confer with such employer for the purpose of negotiating a new agreement or a contract containing the pro- posed modifications, as the case may be; (2) failing, contrary to Section 8(d) (3) of the said Act, to notify the Federal Media- tion and Conciliation Service and any appropriate State agency of the existence of a dispute, within the meaning of said Sec- tion 8(d) (3), within 30 days after so giving notice of the termination of, or desire to modify, any such collective-bargain- ing agreement, provided, however, that no notice to the Federal Mediation and Conciliation Service and any appropriate State agency shall be required if an agreement is reached with such employer within 30 days following service of said notice of termination, or of a desire to modify, any such collective- bargaining agreement; and (3) failing, contrary to Section 8 (d) (4) of the said Act, to continue in full force and effect, without resorting to a strike, all terms and conditions of the existing collective-bargaining agreement for a period of 60 days after such notice of termination of the said agreement, or of a desire to modify it, is given, or the expiration date of such contract, whichever occurs later. WE WILL NOT sponsor, engage in, or instruct or request em- ployees subject to the said contracts dated August 14, 1957, or any other employees, to engage in, a strike, without first com- plying with the provisions of said Section 8(d) (2), (3), and (4) of the National Labor Relations Act in any situation where such compliance is required. LOCAL UNION 49 OF SHEET METAL WORKERS ASSOCIATION, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) Dated----------- ----- By------------------------------------- (E. D. BROOKS , Business Representative) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The basic issues presented for resolution in this proceeding (apart from a juris- dictional question to be noted later) are (1) whether the Respondents, Local Union 49 of Sheet Metal Workers Association (also called the Union herein) and E. D. Brooks, its business representative, have unlawfully refused to bargain col- lectively with an organization of employers named New Mexico Sheet Metal Contractors Association, Inc. (also variously called the Association or the New Mexico Association herein), thereby violating Section 8(b)(3) of the National Labor Relations Act, as amended (referred to herein as the Act); i and (2) whether the said Respondents have, in violation of Section 8(b)(1)(B) of the Act, restrained and coerced employers in the selection of a collective-bargaining representative? Pursuant to notice duly served by the General Counsel of the National Labor Relations Board (also called the Board herein) upon all other parties, a hearing was held before me, as duly designated Trial Examiner, on June 10, 11, 12, and 13, 1958, at Albuquerque, New Mexico. At the hearing, each of the parties ap- peared through, and was represented by, counsel, and was afforded a full oppor- tunity to be heard, examine and cross-examine witnesses, adduce evidence, file briefs, and submit oral argument. Each of the parties has filed a brief with me since the close of the hearing. The briefs have been read and considered. During the course of the hearing, the Respondents, taking the position that the Board lacks jurisdiction, moved to dismiss the complaint on the ground that copies of the charge, upon which this proceeding is based, had not been served upon them. I denied the motion, but informed counsel that I might alter my ruling after additional study of the matter. Each of the briefs submitted contains argu- ment on the motion. Upon further consideration of the motion, in the light of the arguments submitted in the briefs, and of what I have concluded are the op- erative facts and principles, I have decided to adhere to my ruling as regards the Union, but to vacate it with respect to Brooks and to grant the motion as it applies to him. A summary of the factors, evidentiary and legal, that lead me to that result follows below. The charge, which names both the Union and Brooks as the parties charged, was filed by the Association, through its counsel, L. L. Pickering, with the Board's Fort Worth Regional Office on March 24, 1958. On the date Pickering dispatched the charge to that office, he sent a copy to the Union. "by certified mail, special delivery" in an envelope addressed to the Union at its place of business, and bearing "sufficient postage" and a request for a "return receipt." 3 The use of "certified mail" by a party to effect service of "papers" upon another was, it may be noted, authorized by Section 102.81 of the Board's Rules and Regulations, Series 6 (since revised as Section 102.89, Series 7). The envelope, which is in evidence, contains some inscriptions and stamped statements, quite obviously put there by, or under, the authority of the United States post office in Albuquerque. It is evident from these that the post office attempted delivery of the envelope at the Union's address on two occasions, the first time on March 21, 1958, and the second on March 28, 1958; that it did not succeed in doing so; that on the first occasion the mail carrier left a notice at the Union's premises to the effect (one may reasonably infer, although the notice is not in evidence) that the Albuquerque post office was holding mail for the Union; that the organization was similarly notified on the second occasion; and that the = 61 Stat. 136-163. a The material portions of Section 8 (b) provide : It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce . . . an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances ; t s x a e x x (3) to refuse to bargain collectively with an employer, provided it is the repre- sentative of his employees subject to the provisions of section 9(a). a The envelope was addressed as follows : Local Union 49 of Sheet Metal Workers International Association and [sic] 715 Central Avenue -N. E. Albuquerque, N. Mex. It may be noted that the envelope is not addressed to Brooks, although the use of the word "and" after the name of the Union suggests that the sender intended to address the envelope to someone (Brooks, presumably) in addition to the Union. LOCAL UNION 49 OF THE SHEET METAL WORKERS, ETC. 1199 Union did not call for the envelope on response to either notice. The post office returned the envelope , marked "unclaimed ," to Pickering at one point or another in April 1958. The Union's office is located in a building which houses two tenants in addi- tion to the Union. One of the other tenants is the organization's attorney whose office adjoins that of the Union; and the other occupies an apartment above the office. Before a person can reach the quarters of any of the tenants after entering the building from the street , he must mount some stairs to a landing , and then pass through a hall doorway which is used in common by the tenants. The hall door at the landing is usually locked when the offices are unoccupied. A passage- way leads from the hall door to the door of the Union's office. On April 28, 1958, Pickering went to the Union's address for the purpose of serving copies of the charge on the Respondents. Finding the hall door at the head of the stairs locked, he placed two copies of the charge underneath the door, each enclosed in an envelope, one addressed to the Union, and the other to Brooks. The Union's attorney found the envelopes near the hall door on the following day and placed them on Brooks' desk where the latter found and opened them shortly thereafter the same day. On that day, also, the complaint in this proceeding was issued by the General Counsel, and a copy thereof was thereafter duly served upon each of the Respondents. Asserting that valid service of a copy of the charge has not been made on either of them, the Respondents invoke Section 10(b) of the Act as support for their position that without such service the Board has no jurisdiction? The validity of this construction of Section 10(b) will be considered at a subsequent point, but until then, assuming, for discussion's sake, that the Respondents' inter- pretation of the relevant statutory language is correct, a total view of the record leads me to the conclusion that the Union was, in legal effect, served with the copy of the charge that Pickering sent to it by "certified mail." The Union em- ploys no secretarial help in its office, and Brooks is the only representative of the organization who receives mail addressed to it at its place of business. In fact, the evidence warrants an inference that from time to time he absents himself from the Union's office during customary business hours, and that it is unoccupied when he is away from it. One may assume that the "certified mail" from Pickering was not delivered because Brooks was not in the office when delivery was at- tempted, but there can be no doubt that he received the post office's notices relat- ing to the mail, and that he deliberately refrained from calling for it. To be sure, the evidence does not establish that he was aware of the contents of the envelope, and he testified that he has "made a practice for years of never picking up any registered mail in the post office." But as will appear in greater detail in findings made below, Brooks' "practice" in March 1958 was actually one of de- liberately refraining from calling for "registered mail" held for the Union at the post office because he believed that the mail related to a bargaining demand by the Association, and he wished to avoid receiving such mail. I think it a fair inference upon a total view of the record, that Brooks believed that the "certified mail" was from the Association (as indeed it was in both legal and practical effect, since Pickering was acting as the Association's agent), and that it was that belief that lay at the bottom of Brooks' deliberate omission to call for the mail. It matters not that the evidence does not establish that Brooks knew or believed that the "certified mail" held at the post office for the Union consisted of a copy of the charge. The notices from the post office were, in my judgment, the equiva- lent of tenders of the mail involved, and Brooks' intentional omission to call for the mail in the belief that it was from the Association amounted to a deliberate rejection of the tendered mail. That being the case, I hold that service of a copy of the charge upon the Union was effected prior to the issuance of the complaint.5 For that reason, apart from any other factor, I adhere to my ruling denying the Union's motion to dismiss the complaint.6 Section 10 ( b) provides in part: Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice , the Board , or any agent or agency designated by the Board for such purposes , shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect . . . Provided, That no com- plaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made. . . . See Pasco Packing Company , 115 NLRB 437. 6 In their brief, the Respondents also urge dismissal of the complaint , upon the asserted ground that the Board 's Fort Worth Regional Office did not request them , following the 1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The service upon the union by "certified mail" was not, however, service upon Brooks. That conclusion is unaffected by the fact that it was he who embarked upon the policy of deliberately abstaining from calling at the post office for "registered mail" he believed to be from the Association. The controlling fact is that the "certified mail" envelope from Pickering was addressed to the Union and not to Brooks, and there is thus no legal basis for a judgment that the contents of the envelope were tendered to him. This brings two questions to the fore: (1) whether Section 10(b) of the Act requires service of a copy of the charge upon the party charged, and (2), if there is such a requirement, whether Pickering validly effected service upon Brooks on the occasion, described earlier, when the former left a copy of the charge for the business agent under a locked hall door in the building that houses the Union's office. The Respondents' interpretation of Section 10(b) rests upon a proviso in the section which, in material part, states, that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made" (Emphasis supplied). The proviso, which is obviously a statute of limitations, does not in so many words require service of a copy of the charge as a condition of the exercise of the Board's jurisdiction, but I think that such a requirement must be inferred from the terms employed. For one thing, the very fact that the proviso forbids the issuance of a complaint based upon unfair practices occurring more than 6 months prior to "the service of a copy" of the charge implies a legislative assumption that a party charged will be served with a copy of the charge filed against him. For another matter, the legislative history of the proviso contains a clear indication of a congressional intent to require serv- ice of a copy of the charge as a condition of the exercise of the Board's juris- diction. The proviso was the product of a Senate amendment to the House bill (H.R. 3020, 80th Cong., 1st sess.) which ultimately resulted in the Taft-Hartley amendments to the Wagner Act. It is a significant fact, I think, that the House conference committee, in commenting on its reasons for agreeing to what is now the proviso of Section 10(b), noted that ". . . the conference agreement omits the provision of the House bill respecting the time within which a complaint must issue after a charge is filed, and retains the language of the Senate amendment that requires that charges be filed, and notice thereof given, within 6 months after the acts complained of have taken place." [Emphasis supplied.] 7 The statutory lan- guage adopted by the conferees makes no mention of "notice," but it does refer to "service of a copy" of the charge, and I think it reasonable to believe that what the conference agreement visualized was that "notice" of the filing of the charge would be given by "service of a copy thereof." I conclude, in short, that Sec- tion 10(b) requires that a copy of the charge be served upon the party charged as a requisite of the exercise by the Board of its jurisdiction. In its brief, the Association maintains , in effect, that the deposit of a copy of the charge for Brooks under the hall door at the Union's address on April 28, 1958, constituted service in a "manner provided for the service of papers in a filing of the charge, "to submit a written statement of . . . position in respect to the allegations," in conformity with Section 101.4 of the Board's Statements of Procedure. The claim lacks merit. Apart from the fact that I do not agree that dismissal of a com- plaint must be the consequence of noncompliance with Section 101.4 such as the Respondents portray, I am satisfied that the Forth Worth Regional Office made reasonable and sufficient efforts to comply with the section, noting, in that connection, that the Regional Office sent each Respondent a letter by "registered mail," addressed to the Union's office, stating that the charge had been filed and requesting a statement of the Respondents' position relating thereto. (A copy of the charge was enclosed with each letter. See General Counsel's Exhibit No. 1-B and the affidavit of mailing on the reverse side thereof.) One may reasonably infer that the letters were not delivered because neither Brooks nor any other representative of the Union was available at its office to receive them. Whether the post office, as on the other occasions described earlier, left or sent notices to the effect that it was holding the mail does not appear. In any event, in the circumstances presented, I think it is the Respondents, rather than the Government, which issued the complaint in the public interest (Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 192-1.93), who should bear the consequences of the fact that they missed an opportunity to reply to the letters because "registered mail" cannot be delivered to the Union at its regular place of business at any time, whether in or out of customary business hours, when Brooks is not there to receive it. 7 H. Conf. Rept. 510 on H.R. 3020, 80th Cong., 1st sess., p. 53. LOCAL UNION 49 OF THE SHEET METAL WORKERS, ETC. 1201 civil action by the law" of New Mexico, and was thus valid under the provisions of Section 102.81 of the Board's Rules and Regulations, Series 6. The claim is wide of the mark, since Rule 4(e) of the Rules of Civil Procedure promulgated under New Mexico law by the New Mexico Supreme Court for the service of summons and complaint in "civil causes" provides: . . If the defendant be absent, service may be made by delivering a copy of the process or other papers to be served to some person residing at the usual place of abode of the defendant over fifteen . . . years of age; and if no such person be found willing to accept a copy, then service shall be made by posting such copies in the most public part of defendant's premises" (Sec. 21-1-1 (4)(e), N.M. Slat. Ann.).8 What is more, the fact that the copies of the charge left on the floor by Pickering were subse- quently found and placed on Brooks' desk, where they came to his attention and into his possession, did not cure the defect in service. For the reasons stated above, the ruling denying the Respondent Brooks' motion to dismiss the complaint is hereby vacated, and his motion to dismiss is granted. Turning to the other issues in this proceeding, upon the entire record in the case, and from my observation of the witnesses, I make the following findings of fact: FINDINGS OF FACT 1. NATURE OF THE ASSOCIATION'S BUSINESS ; JURISDICTION OF THE BOARD The New Mexico Association is a membership corporation organized under the laws of New Mexico. It came into existence on January 20, 1956, and its mem- bership has since consisted of various contractors who are engaged, in New Mexico, in the "sheet metal business" or, in other words, in the business of manu- facturing, processing and installing sheet metal products. According to the Asso- ciation's bylaws, a contractor must be an employer of "one or more sheet metal workers" in order to be eligible for membership. Since its formation, the Asso- ciation has existed for the purpose, among others, of negotiating and entering into collective-bargaining agreements affecting terms and conditions of employment of its members' employees. As will appear in greater detail later, the Association, in 1956, on behalf of its members and other sheet metal contractors, engaged in collective-bargaining negotiations with the Union. As a result of the negotiations, the Association and the Union executed 17 agreements, each applicable to a dif- ferent member of the Association, and each embodying, in identical language, the terms upon which the Association and the Union had previously reached agreement. Notwithstanding a claim by the Respondents that the contracts were terminated as of March 31, 1958, I find, for reasons to be noted later, that they had not expired as of the time of the hearing in this proceeding. As the 17 contractors have manifested a desire to be bound in their labor relations by joint, rather than individual, action, through the instrumentality of the Association, they, together with their organization, are, and have been at all material times since the com- mencement of the 1956 negotiations, a single employer within the meaning of Section 2(2) of the Act.9 Hence, the Board may assert jurisdiction over the subject matter of this proceeding if any one of the contractors is engaged in interstate commerce within the purview of the Act.10 Lydick Roofing Company, a New Mexico corporation, is engaged in business in Albuquerque, New Mexico, as a sheet metal and roofing contractor; has been a member of the New Mexico Association, and represented by it for the purposes of collective bargaining, since the organization of the Association; and is subject to 9 The Association's brief does not invoke Section 102.80 of the Board's Rules and Regulations, Series 6 (in effect in April 1958, but since revised as Section 102.88, Series 7), in support of the claim that the attempted service on Brooks was valid. Pre- sumably, the Association views that section as applying only to service by the Board and its agents. Without implying a contrary construction, it is enough to note that Picker- ing's deposit of a copy of the charge for Brooks at the point where he left It did not constitute "leaving" the copy "at the principal office or place of business of the person required to be served," in conformity with Section 102.80. O Northern California Chapter, The Associated General Contractors of America, Inc., 119 NLRB 1026; Insulation Contractors of Southern California, Inc., 110 NLRB 638, 639. The conclusion that the 17 contractors and the Association are a single employer is un- affected by the fact that each of the contractors is subject to a separate agreement. Vaughn Bowen, et at., 93 NLRB 1147, 1149. 10 Northern California Chapter, The Associated General Contractors of America, supra; Insulation Contractors of Southern California , supra. 505395-59,-vol. 122-77 1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1 of the 17 contracts executed by the Union and the Association as the result of the 1956 negotiations. In 1957, the gross income of Lydick Roofing Company from the operation of its business amounted to approximately $1,250,000, and in the course and conduct of its business that year, the firm sold goods and services outside the State of New Mexico of the approximate value of $250,000. By reason of such interstate transactions, the Association and the 17 contractors mentioned above, who, as stated earlier, are a single employer within the purview of the Act, have been, at all times material to the resolution of the issues in this pro- ceeding, engaged in interstate commerce within the meaning of the Act, and in operations affecting such commerce. Accordingly, the Board has jurisdiction over the subject matter of this proceeding, and the assertion of such jurisdiction will effectuate the policies of the Act." If. THE LABOR ORGANIZATION INVOLVED Local Union 49 of Sheet Metal Workers Association admits persons employed by members of the New Mexico Association, and by other employers, to member- ship; exists, in whole or in part, for the purpose of dealing with employers con- cerning terms and conditions of employment; and is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory statement The Union was formed in January 1953, and has since then, in an area that consists of much of the State of New Mexico, including Albuquerque, functioned as the collective-bargaining representative of employees engaged in the manufacture, fabrication, repair, and installation of sheet metal products, and related processes. Brooks was one of the "founders" of the Union, and has served as its business representative since its formation. He is not only its business agent but, as the evidence reasonably leads one to conclude, is a dominant figure in the formation and execution of the organization's policies. The New Mexico Association now has 24 members.12 A substantial proportion of these were formerly members of an organization known as the Albuquerque Sheet Metal Contractors Association (also called the Albuquerque Association herein). 13 In or about the early part of 1954, the members of the Albuquerque Association jointly engaged, through a committee of their organization, in collec- tive bargaining with the Union. (The committee also represented various employers who were not members of the Albuquerque Association. The record does not establish the identity of such employers, nor their number.) The negotiations re- sulted in agreement on terms applicable to all the employers involved, but each signed a separate contract with the Union embodying such terms. Upon formation of the New Mexico Association in January 1956, all the con- tractors, some 24 in number, who then held membership in the Albuquerque Association, became members of the new organization; and the Albuquerque As- sociation thereupon went out of existence or, in any event, became dormant. In practical effect, the New Mexico Association took over the functions of the Albuquerque Association and became the latter's successor. The evidence suggests that the contracts negotiated in 1954 were terminated early in 1956 upon the Union's initiative. On March 10, 1956 (apparently several weeks before the terminal date of the agreements), the New Mexico Association and the Union entered into a contract which provided, among other things, that "Electrical Contractors of Troy and Vicinity, et al ., 116 NLRB 354; Northern Cali- fornia Chapter, The Associated General Contractors of America, anpra; Insulation Contractors of Southern California, supra. u There is conflict in the evidence whether one of these, Peeler-Hanson-Wilson, is a member. I believe it is, judging by the language of the authorization it gave the Association to represent it, and have made a corresponding finding. In any event, there is no doubt that the Association has represented the company for the purposes of collective bargaining since February or March 1958, and thus whether the firm holds membership in the Association does not materially affect the results in this proceeding. v In the interest of literal accuracy, although without any material effect on the issues, it may be noted that several of the enterprises that currently hold membership in the New Mexico Association operated under different business names when members of the Albuquerque Association. LOCAL UNION 49 OF THE SHEET METAL WORKERS, ETC. 1203 the Union would "negotiate" with the Association and "sign any agreement reached" with the latter; and that the Association "and all the members thereof [would] sign any agreement reached" with the Union. The Association and the Union thereafter engaged in bargaining negotiations, and the upshot of the discussions was that on April 10, 1956, the parties reached an accord concerning the terms of agreement . The terms were thereafter embodied in identical language in 17 separate agreements , each applicable to a different member of the Association named in the instrument, and each "countersigned" by the applicable employer during the latter part of 1956, and executed by the As- sociation and the Union on August 14, 1957. (For convenience of reference, the 17 instruments will on occasion be described below as the 1957 contracts. The record does not establish the reason for the lapse of so much time between the conclusion of the negotiations and the execution of the agreements .) 14 Of the 17 employers subject to the 1957 contracts, approximately 14 had been represented by the Albuquerque Association in its negotiations with the Union in 1954. It is unnecessary to make a detailed canvass of the terms embraced in the 1957 contracts. An abbreviated summary of a number of features of the agree- ments will suffice, and to that end, since they are all practically identical, one of the contracts (General Council Exhibit No. 5) may properly serve as an illustrative model for a description of the comparable provisions of the others.15 The illustrative instrument opens with a statement to the effect that it is an agreement between the New Mexico Association "representing Lydick Roofing Co." (which is thereafter referred to in the instrument as the "Employer") and the Union. Article I of the agreement contains a description of the types of em- ployees and work to which the instrument is applicable. (Article I is extensive and elaborately detailed. Although its provisions are involved in bargaining unit findings made below, no useful purpose would be served in setting forth the article's considerable minutiae here.) Article IV obligates the "Employer" to re- quire employees who perform any work specified in article I to acquire membership in the Union within a specified period (the grace period set forth in the proviso to Section 8(a)(3) of the Act) "as a condition of continued employment." Ar- ticle XI makes provision for the continued administration of a "Welfare Fund" by a "Joint Board of six . trustees, composed" of three designated by the Asso- ciation, and three by the Union. Articles IX, X, XVI, and XVIII similarly provide for the establishment of various administrative bodies consisting of members chosen in equal number by the Association and the Union. Article XIX requires the Association and its members "to bid on all work specified in article I of this Agreement on all jobs." Finally, the contract, by its terms, was to remain in effect until March 31, 1958; "to continue in force from year to year thereafter unless written notice of change is given not less than ninety . . . days prior to the expiration date"; and in the event of service of "such notice of requested change," to "continue in force and effect until conferences relating thereto have been ter- minated by either party." In the light of the bargaining history described above, and of the terms of the 1957 contracts, there can be no doubt, and I find, that all the employees of the employers subject to the terms of the 1957 contracts, employed in the types of occupations or work described in article I of each of such contracts, excluding all other employees of such employers, and supervisors as defined in the Act, con- stituted, on the date of execution of the agreements, and have at all times since constituted, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.16 The record also warrants an inference, 14 It may be noted, without material effect upon the results in this proceeding, that the Association represented approximately 10 contractors in the negotiations for whom it did not sign any agreement. Two of these, one a member of the Association and the other not, entered into separate contracts with the Union directly a few months after the accord of April 10, while others did not become parties to any written contract with the Union because they moved or went out of business, and some because they dropped their membership in the Association. 15 Each of the 1957 contracts is almost entirely a printed copy of a common form, differing from its companion agreements only in the statement of the name of the applicable contractor in a space provided in the opening clause of the printed form, and in the countersignature at the foot of the document. 1U American Publishing Corporation, et ala. , 121 NLRB 115. The fact that each of the 17 employers involved "countersigned" a separate contract does not preclude the unit finding made above. Bunker Hill and Sullivan Mining and Concentrating Company, et at., 89 NLRB 243, 252; Balaban & Katz, 87 NLRB 1071, 1073. Moreover, the 1957 contracts, however one may view them in terms of ritualistic legal formulas, are in 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and I find, that the Union now represents, and has at least since the date of execu- tion of the 1957 contracts represented, a majority of the employees in the unit described above; and is now, and has been at least since the said date, the ex- clusive representative of all the employees in such unit for the purposes of col- lective bargaining within the meaning of Section 9(a) of the Act. On December 27, 1957, the Union, through Brooks, wrote identical letters to the Association and each of the 17 contractors who had "countersigned" the 1957 contracts, stating: "This is to notify you that in accordance with the ninety . . day provision provided for in our Agreement with your Company the said Agreement is hereby terminated with your Company, as of midnight, March 31, 1958." B. The Union's refusals to bargain; the strike and the responsibility therefor In a telegram to the Union on February 21, 1958, the Association, acknowledging receipt of the Union's letters of December 1957, stated that at "the direction of [its] membership" it wished to arrange a meeting with the Union, "at a time and place convenient" to the latter, "to reach agreement for a continuation of satis- factory working condition in the future." The wire was admittedly received by the Union and Brooks, but neither replied to it. According to Brooks' testimony, he did nothing about the telegram and paid no attention to it. On March 3, 1958, the Association sent the Union a correctly addressed letter by registered mail, stating that a telegram had been sent to the Union on Febru- ary 21; setting forth the message contents of the wire; and noting that the Asso- ciation had not received a reply. The envelope bore the conventional notation that a "return receipt" was requested by the sender. The post office attempted, but was unable, to effect delivery of the letter and informed the Union, by means of two notices, that it was holding registered mail for the organization. Brooks is the only person in the Union's office who receives mail addressed to the Union, and the evidence amply warrants an inference, which I draw, that the notices came to Brooks' attention, and that he was aware of their import. Notwithstanding such knowledge, neither he nor anyone else on behalf of the Union called for the letter, and it was ultimately returned to the Association by the post office with a notation that it had been "unclaimed." On March 6, 1958, the Association sent another correctly addressed letter to the Union by registered mail, noting a request for a "return receipt" on the envelope. The letter, after making reference to the telegram of February 21 and the letter of March 6, proposed, in effect, that representatives of the Union meet a com- mittee of the Association at 9 a.m. on March 10, 1958, at the Albuquerque Chamber of Commerce; and stated that the committee would be "awaiting" the Union's representatives at the time and place set forth. The post office attempted, but was unable to deliver this letter, also, and informed the Union, by means of notices, that it was holding registered mail for the organization. As on the prior occasion, Brooks was aware of these notices, but did not claim the letter. It was returned to the Association with a notation that it had been "unclaimed." The three members of the Association's negotiating committee came to the Albuquerque Chamber of Commerce on the date, and at the time, specified in the letter of March 6 and waited for approximately a half hour (or about an hour, according to the testimony of one committee member), but no representative of the Union appeared. On March 10, 1958, the association wrote another properly addressed registered Metter to the Union, again noting on the envelope that a "return receipt" was requested. The letter made reference to the telegram and the two prior letters; noted that a committee of the Association had appeared at the time, date, and place specified in the preceding letter, and had waited for 30 minutes, and that no representative of the Union appeared; and stated that because the Union had failed to attend, the Association had concluded that "the present working condi- tions are satisfactory" to the Union; "and that the present agreement (meaning, plainly, the 1957 contracts) shall remain in full force for another year as set forth in said agreement." Attempts by the 'post office to deliver this letter met with reality but separate written expressions of a single agreement reached by the New Mexico Association and the Union as the product of their negotiations in 1956. By entering into the agreements, the Association and the Union in practical effect agreed upon the propriety of the unit described above. It may be noted that the General Counsel, as will appear later, urges the current propriety of a multiemployer bargaining unit consisting of "the employees" of 34 employers, including the 17 involved in the 1957 contracts. For reasons to be set forth later, the record does not warrant acceptance of that position. LOCAL UNION 49 OF THE SHEET METAL WORKERS, ETC. 1205 no greater success than the efforts to deliver its predecessors. As in the case of the latter, the Union was informed, by means of the usual notices, that the post office was holding registered mail for the organization, but, although Brooks, as on the previous occasions was aware of the notices, the Union did not claim the letter, and it was ultimately returned, marked "unclaimed," by the post office to the Association. On or about March 10, 1958, Paul H. Hood, secretary of the Association, gave Robert Young, president of the Union, copies of the Association's letters of March 3 and 6, and requested Young to take them to the Union. Several days later, Hood gave Young a copy of the letter of March 10, with a similar request. The copy of the letter of March 3, given to Young, came to Brooks' attention at one point or another in March, as Brooks conceded in his testimony. It is evident that he did no more about the letter than he did about the telegram; 17 and that the Union did not reply to any of the letters, although put on notice concerning their contents by force of the fact that they were given to its president. At the time the telegram of February 21 was sent to the Union, the Association had 24 members, including the 17 who had signed the respective 1957 contracts. As a result of written authorizations executed within the week preceding the dispatch of the wire, the Association had also become the collective-bargaining representative of nine sheet metal contractors who were not members of the Association. A tenth employer who is not a member of the Association but was represented by that organization in the 1956 negotiations, designated the Association as its bargaining representative by letter dated February 22, 1958, addressed to the organization's president. In short, the Association was the col- lective-bargaining representative of 34 employers as of February 22, 1958.18 Ap- proximately 13 of the contractors had not previously been represented by either the Albuquerque or New Mexico Associations, although some of them have, as Jack Pope, president of the New Mexico Association put it, "abided by the contract as negotiated by the Association" (meaning, presumably, the terms em bodied in the 1957 contracts). The evidence will not support a finding that either the Union or Brooks was aware, prior to April 29, 1958, the date upon which copies of the charge actually come into Brooks' hands, that the Association was the collective-bargaining repre- sentative of each of the 34 employers, although the record warrants an inference, which I draw, that at the time the Respondents received the telegram of Febru- ary 21, they knew that the Association represented at least the 17 employers who had "countersigned" the respective 1957 contracts. On a number of occasions after the Union gave notice of termination of these agreements, Brooks expressed attitudes summing up to a position that the Union would not bargain with the Association. One such expression is contained in a letter dated March 27, 1958, addressed to a firm (Anthony Company, not a mem- ber of the Association) in Lubbock, Texas. Writing for the Union, Brooks said in the letter that the Union had "not signed any agreement" with the New Mexico Association and did "not intend to do so." A similar position was voiced by Brooks, also toward the end of March 1958, to Robert B. Morrison, chairman of the Association's negotiating committee, and an officer of one of the Association's members. Brooks had telephoned Morrison to inquire if the latter's company had an opening for a sheet metal worker, and during the course of the conversation, 17 Brooks was asked at the hearing whether he did anything about the letter, and he replied that he "wasn't a member of the [Union's Executive] Board." This answer, like so much of Brooks' testimony on material points, strikes an evasive note. One may note on that score, that the fact that Brooks was not a member of the Union's executive board did not deter him, as will appear, from stating repeatedly that the Union would not bargain with the Association, nor from admonishing members of the Union on March 21, 1958, that they "would definitely be fined" if they worked "for any contractor that does not have a signed contract." as Each of ,the 24 Association members also gave the organization express written authority "to sign and conclude any and all contracts with any labor organization . . . within the field of said sheet metal business." Twenty of these authorizations were executed on February 14, 1958; and the remaining four on March 10, 14, 18, and 26, 1958, respectively. It may be borne in mind that the right of the Association to negotiate and execute collective-bargaining agreements on behalf of its members need not rest on the authorizations. The negotiation and execution of such contracts are among the Associa- tion's corporate purposes, and its bylaws provide that "all contracts and other written instruments entered into by officers of [the Association], under authority of [its] Board of Directors, shall be binding on each member . .. as though said member himself had entered said agreement." 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Morrison informed Brooks of his position with the Committee and inquired whether it "would ... be possible for us to get together and begin conversations." Brooks replied that he "would be glad to talk contract with the individual contractors at any time but would not negotiate a contract with the New Mexico Sheet Metal Contractors' Association." This attitude was basically reflected, also, in attempts by Brooks to wean mem- bers of the Association away from the organization. One such attempt stemmed from a request addressed to Brooks, toward the end of March 1958, that the Union enter into a contract with a newly organized corporate affiliate of a firm named Campbell-Loy Inc., a member of the Association. Brooks replied that he "couldn't give" the affiliate a contract "without signing up Campbell-Loy." The general manager of the latter firm, John DePaulo, registered objection with a statement to the effect that Campbell-Loy, Inc., could not enter into an agreement directly with the Union because the company was represented by the Association. Brooks asserted that he would neither bargain nor "sign up" with the Association. He also engaged in an effort to separate a member from the Association on March 21, 1958. On that occasion, he telephoned George L. Trainor, the manager of a newly established Albuquerque branch of a Denver firm named Sam Fox Sheet Metal Co., and asked him if his company was a member of the Association. Upon receiving an affirmative reply, Brooks said that the company "shouldn't have joined the Association," and that it "would be sorry" that it had done so.19 Brooks' opposition to bargaining with the Association, as evidenced by his statements to various contractors in the very month when the Association was endeavoring to establish formal contact with the Union, by registered mail, is closely linked, in my judgment, to his deliberate omissions to call for the registered letters at the post office. That conclusion is bolstered by an inspection of his testimony bearing on the reason he put forward for not calling for the mail. Denying that he knew that the letters were from the Association, he asserted that he has "made a practice for years of never picking up any registered mail in the post office." As these claims are self-serving, unsupported by any other evidence, and, by their very nature, not subject to direct contradiction, some exploration of the reason for the unusual "practice" Brooks describes would appear to be in order. Yet repeated efforts to ascertain the reason from Brooks yielded only evasive and unresponsive answers 20 This disposition to evade interrogation, apparent in 19 Findings concerning the respective conversations involving Trainor and DePaulo are based on their applicable testimony. I deem it unnecessary to set forth Brooks' relevant testimony, nor to outline the points of difference between it and the respective accounts given by Trainor and DePaulo. Suffice it to say that their testimony finds corroboration in statements made by Brooks on other occasions to the effect that the Union would not bargain with the Association ; and that I am unable to regard Brooks' description of his conversations with Trainor and DePaulo as a reliable basis for findings in view of the evasive testimony he gave on a number of subjects. 20 The testimony in question is embraced in the following excerpt from the transcript : Q. Now, did you know that the registered mail was from the New Mexico Sheet Metal Contractors Association? A. No, sir. TRIAL EXAMINER: Were you interested? A. I have made a practice for years of never picking up any registered mail in the post office. TRIAL EXAMINER: Why? A. If I'm in the office when the registered mail is delivered, I'll sign for and receive it. TRIAL EXAMINER : Why? A. It has been my practice for several years. TRIAL EXAMINER: Tell me why? A. I just don't go down and get it. TRIAL EXAMINER : I assume you won't tell me why, sir? A. Something happened back several years ago that is not pertinent here. TRIAL EXAMINER: Did it involve the New Mexico Sheet Metal Contractors Association ? A. No, that wasn't the particular reason. TRIAL EXAMINER: Did it involve the business of Local 49? A. It might have, I don't know. TRIAL EXAMINER : Well, how could it, sir, if Local 49 was not in existence at that time? A. You are talking about-I thought you were talking about the letters-I'm talk- ing about something else. It involved at that time Local 188. LOCAL UNION 49 OF THE SHEET METAL WORKERS, ETC. 1207 Brooks' testimony on various subjects, is, it seems to me, of a piece with a "prac- tice" of dodging the delivery of registered mail which the addressee believes or suspects may adversely affect his interests or commit him to a course of action he wishes to avoid. Be that as it may, a full view of the setting in which Brooks chose not to call for the mail is a better guide to the reason for his failure to do so than the self-serving claims he advances in that regard. Examining that setting, there can be no doubt that Brooks had formed a fixed resolve not to bargain with the Association at least as early as the time when he received the telegram of February 21. This is evident from the fact that he deliberately chose not to reply to the wire; from the statements he made during the following month that he would not bargain with the Association; and from his efforts to separate some members of the Association from their organization. I think one may fairly draw an inference that when Brooks chose to ignore the wire, he anticipated that the Association would make other efforts to communicate with the Union; that when he received notices from the post office, the first about 10 days or 2 weeks following the arrival of the telegram, that it was holding registered mail for the Union, he believed that the mail was from the Association; and that, acting upon such a belief, he embarked upon a practice, so far as possible, of dodging the delivery of registered mail from the Association, and of thus avoiding the concomitant of official records of the receipt of such mai121 In short, Brooks' deliberate omissions to call at the post office for the registered letters addressed to the Union by the Association were but expressions of the Union's determination not to bargain with the Association. The Union held a meeting of its members on March 21, 1958, and on that occasion, Brooks told the membership that "no sheet metal mechanics can work for any contractor that does not have a signed contract"; and that the members who did so "would definitely be fined" by the Union. Brooks also stated that he did not "want to sign a contract with the Association," and that it "would be his recommendation to the men" that no such agreement be signed. On April 1, 1958, the sheet metal employees of many of the contractors repre- sented by the Association (including employers subject to the 1957 contracts) did not report for work,22 nor did they do so until May 2, 1958, the day after the United States District Court for the District of New Mexico entered a "Temporary Restraining Order" in an action (Civil No. 3845, D.C., N.M.) brought by the Regional Director of the Board's Sixteenth Region against the Union and Brooks under Section 10(j) of the Act. In brief, the court's order, of which I take official notice, temporarily enjoined the Respondents from "[e]ngaging in or continuing to engage in strikes" against the Association, its members, and the other employers it represents; from "continuing ... in effect any orders, instructions or appeals to engage in such strikes" given to members of, or employees represented by, the Union; and from "[r]efusing to continue in full force and effect the terms and conditions of the existing contract" (meaning, presumably, the 1957 contracts).23 One may fairly infer that the employees' return to work was the product of the "Temporary Restraining Order," but whether or not such an inference be drawn, there is ample reason to conclude, as I do, that the cessation of work by the em- ployees involved for a period of about a month, beginning on April 1, 1958, con- stituted a strike by such employees, and that the strike was directed and sponsored by the Union and Brooks. As support for that conclusion one need not go beyond Brooks' statements at the Union's meeting of March 21, made in a context of events that demonstrate that he was avoiding negotiations with the Association, a One may note, in passing, that the fact that Brooks accepted the delivery of registered mail at his office on April 30, 1958, from the Board's Fort Worth Regional Office does not inevitably mean that he would have accepted registered mail from the Association. So far as the Association is concerned, his claim that he "sign[s] for and receive[s]" registered mail at the office was not put to a test for the simple reason that he was not in his office when the post office attempted delivery of the letters of March 3, 6, and 10, 1958. 22 It is very likely that the sheet metal employees of all the represented contractors who then had sheet metal jobs in progress in the area in which the Union operates did not report, but the evidence does not clearly establish that to be the case. In any event, the fact that the work stoppage, which was actually the beginning of a strike of sub- stantial duration, affected at least some of the employers subject to the 1957 contracts is sufficient for resolution of the issues involving the strike. 23A similar restraint against the strike, and other injunctive provisions, were em- bodied in an "Order Granting Temporary Injunction," entered in the action by the court on May 9, 1958, "pending the final disposition of the matters pending before the Board" in.this proceeding. I take official notice of that order, but deem it unnecessary to enlarge upon what has been said above concerning its provisions. 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and considered in conjunction with the fact that the Union had served notice of termination of the 1957 contracts as of March 31, 1958. However, the Re- spondents' responsibility for the strike is further underscored by the fact that: (1) The strike began on the day after the date fixed by the Union for the expira- tion of the 1957 contracts; (2) the strike ended almost immediately after the entry of the "Temporary Restraining Order"; (3) during the course of the strike, Brooks intimated to a contractor (Jim Holmes, doing business as Conditioned Air Com- pany, a member of the Association) that the strike against him would end if he signed a contract directly with the Union; and (4) shortly after the strike began, Brooks made a statement to the same effect to Eddy Shores, president of Peeler- Hanson-Wilson, a contracting firm represented by the Association, stating, also, that he "could use his influence to get the firm] in the doghouse" in the Los Alamos area unless the company "went along." Another matter worth noting, both as it bears on the Respondents' responsibility for the strike and on their bargaining attitude toward the Association, is a conversation at a meeting between Morrison and Brooks, arranged upon the latter's initiative during the first week of the strike. The sum of the conversation was that Brooks told Morrison (whose company's sheet metal workers were among those on strike) that he "would be glad to meet with a group of the contractors to negotiate a contract to be signed by the individual contractors" and the Union, but "would not sign or negotiate a contract with the Association"; and that Morrison replied that as chairman of the Association's negotiating committee he would "convey that information" to the other committee members and to the Association at its next meeting 24 While the strike was in progress, the joint board of trustees of the Union's welfare fund, consisting of three members (including Brooks) designated by the Union, and three by the Association, met by prior arrangement in the office of the manager of the welfare fund. The latter had arranged the meeting for the transaction of business relating to the continuation of insurance policies, and the adjustment of insurance premium rates, affectiig employees subject to the 1957 contracts. Before the meeting opened, the union members of the board of trustees, through one of their number, presented a document to the Association representa- tives and requested that they sign it. In the event of execution by the members of the board of trustees, the instrument would have constituted an agreement among them providing, among other things, that "any meetings which may be held by the Board of Trustees of the . . . Welfare Fund shall not be construed or interpreted as an admission by Local Union No. 49 as to the present existence of a collective bargaining agreement between said Union and the Sheet Metal Contractors or their Association." The Association representatives refused to sign the document, whereupon the union members left. No business was transacted. At no time between December 27, 1957, the date of the Union's letters pur- porting to give notice of termination of the 1957 contracts, and the date upon which the strike ended following the issuance of the "Temporary Restraining Order" on May 1, 1958, did the Respondents, as required by Section 8(d) of the Act, give "notice of the existence of a dispute" to the Federal Mediation and Conciliation Service, or offer to meet and confer with the Association for the purpose of negotiating a new agreement or agreements, or any modification of the 1957 contracts. On May 7, 1958, Brooks sent a telegram to the Federal Mediation and Con- ciliation Service, informing that agency of the existence of a dispute between the Union and the Association. As a result of the telegram, a conciliator on the staff of the Federal Mediation and Conciliation Service called Brooks, and the latter 2Findings concerning the conversation are based on Morrison 's credited ,testimony. Brooks pictures himself as telling Morrison that the Union "was willing to meet and negotiate" with the Association "providing they signed an agreement with us." Tom E. Robles, recording secretary of the Union, who accompanied Brooks and was present, also claims that Brooks made an offer to negotiate with the Association, although it may be noted that Robles, unlike Brooks, quotes the latter as coupling the offer with a proviso that "each firm . . . sign the individual agreement." Morrison impressed me as one of the most objective of the substantial number of witnesses who testified at the hearing, but there is an additional reason why I credit his version, rather than that of either Brooks or Robles, and that is that the claim that Brooks offered to negotiate with the Association is utterly at variance with his previous repeated statements that he would not do so . These, it should be remembered, were made only a short while before the meeting with Morrison. Bearing that in mind, as well as the letter Brooks wrote to the Anthony Company (General Counsel's Exhibit No. 13) only a few days earlier and his obvious efforts to avoid the Association's formal bargaining requests , the testimony that Brooks made an offer to Morrison to negotiate with the Association is quite implausible. LOCAL UNION 49 OF THE SHEET METAL WORKERS, ETC. 1209 requested that a meeting be arranged with the Association . The upshot of the request was that the respective negotiating committees of the Union and the As- sociation , with the conciliator in attendance , met on May 22, 1958. At the meeting , using the 1957 contracts as a basis of discussion , the Union proposed various "changes [in], additions [to] and deletions from " the terms em- bodied in those agreements . Only one of the contract positions advanced by the Union at the meeting requires specific mention here , and that is a proposal by it that in incorporating the terms of the 1957 contracts in new agreements , the name of the Association be deleted wherever it appears in such terms , and replaced by the phrase "The majority of the sheet metal contractors having agreements." After some discussion , the Association 's representatives expressed the view that the Union 's "list of demands was considerable and . . . would require a great deal of study and consultation with members of the Association ." The upshot of this was that the negotiators agreed to meet again "at the convenience " of the con- ciliator. Such a meeting had not yet been held at the time of the hearing in this proceeding. C. Concluding findings The Association's telegram of February 21, 1958, was, as its terms indicate, a response to the Union 's letters of December 27, 1957, which gave notice of termi- nation of the 1957 contracts ; and the object of the telegram, as well as the Asso- ciation's letters of March 3 and 6, 1958, was to arrange negotiations , as the tele- gram put it , "to reach agreement for a continuation of satisfactory working condition [sic] in the future" (emphasis supplied ), or, in other words, to avoid termination of contract relations between the Association and the Union on March 31, 1958. It may be noted, in that connection , that each of the 1957 contracts in effect visualizes that the parties thereto will hold "conferences" relating to any "notice of requested change" of the contract before it comes to an end. There can be no doubt that the Union and Brooks , for a substantial period preceding the strike, as well as during its course , had a fixed resolve not to enter into such negotiations with the Association ; and implemented that resolve with a course of conduct, both by word and deed, summing up to repeated refusals to bargain with the Association in response to the bargaining requests contained in the telegram, which Brooks admittedly deliberately ignored, and in the letters of March 3 and 6, 1958, which , as stated earlier, he took some pains to avoid receiving by ignoring notices from the post office to the effect that it was holding registered letters for the Union . By such refusals to bargain on the subject of the Union 's announced intention to terminate the 1957 contracts , the Union violated Section 8(b)(3) of the Act (apart from other violations of that section to be noted later). Moreover , the record permits no escape from the conclusion that the refusals to bargain , and the strike (whatever other purpose it had had ) were implementa- tions of a design by Brooks and the Union to drive a coercive wedge between the Association and employers it represents with the object of compelling the employers to abandon the Association as their collective -bargaining representative and to sub- stitute individual for group bargaining . That such was an object of the strike is evidenced by statements Brooks made after the strike began to Morrison , Shores, and Holmes ; and by the fact that, on the one hand, Brooks pursued a policy of avoiding and preventing the establishment or continuation of contract relations with the Association to replace those the Union had scheduled for expiration on March 31, 1958 , and, on the other hand , instructed members of the Union, shortly before the strike began , and obviously in anticipation of the expiration of the contracts , that they were not to work "for any contractor that does not have a signed contract," telling the members, also , that he did not "want to sign a contract with the Association ," and that it was his "recommendation " that no such agree- ment be signed . By the refusals to bargain , and by sponsoring and resorting to the strike , for the object described above, the Union restrained and coerced em- ployers in the selection of the Association as their bargaining representative, thereby violating Section 8 (b)(1)(B) of the Act.25 The Union similarly restrained and coerced employers in violation of that section as a result of the following: (1) Brooks' statement to Morrison after the strike began that he "would be glad to meet with a group of the contractors to negotiate a contract to be signed by the individual contractors" and the Union, but "would not sign or negotiate a contract with the Association"; (2) the business agent's assertion to management representa- tives of Campbell -Loy Inc . that the Union would not enter into a contract with an affiliate of the firm "without signing up Campbell -Loy," thereby in effect implying that to secure a contract for its affiliate , Campbell-Loy, Inc., would have to pay 25 See Paddock Pools of California, Inc., et at., 120 NLRB 249. 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the price of abandonment of the Association as its bargaining representative; (3) Brooks' effort, during the strike, to induce Holmes, a member of the Associa- tion, to enter into a separate contract with the Union, coupled with an implication that the strike against Holmes' enterprise would end if the latter signed such an agreement ; and (4) Brooks' remarks to Shores, president of Peeler-Hanson-Wilson, a firm represented by the Association, to the effect that the company "could con- tinue to work" (or, in other words, that the strike against it would end) if it entered into a separate contract with the Union; and that unless the firm "went along" with Brooks, the latter "could use his influence to get [the company] in the doghouse" in the Los Alamos area.26 The General Counsel contends that the Union refused to bargain with the Asso- ciation on the occasion, during the strike, when Brooks and the Union's other appointees to the joint board of trustees of the Union's welfare fund withdrew from a meeting of the joint board, thus refusing to transact the business for which the meeting had been called. It would be unrealistic to view the joint board as merely a group of individuals with fiduciary powers and duties. Obviously, it is an instrument by which the Association, on behalf of the employers affected, and the Union, on behalf of employees subject to the 1957 contracts, do business with each other in the administration of various provisions of the agreements. The nub of the matter is that what Brooks and the other union representatives did at the meeting, the Union did; and what the Union did was not merely to request the Association representatives to sign the document, but, in effect, to refuse to transact business with the Association pertaining to terms and conditions of employment of employees affected by the 1957 contracts because the Association representatives declined, as was their right, to bow to the demand for the execution of the docu- ment presented to them. By such conduct, the Union refused to bargain with the Association, as the representative of the employers subject to the 1957 contracts, and thereby violated Section 8(b)(3) of the Act. Moreover, the Union has not complied with various requirements of Section 8(d) of the Act, which defines "the duty to bargain collectively," to which it auto- matically became subject when it undertook to notify the Association and the employers affected that it was terminating the 1957 contracts 27 The particulars of such noncompliance will be outlined below. First, in contravention of Section 8(d)(2), it did not offer "to meet and confer" with the Association for the purpose of negotiating a new agreement or agreements, or any modification of any of the 1957 contracts. Brooks gave testimony to the effect that: On three or four occasions between the latter part of August or September 1957 and the contract termination notices , he proposed negotiating meetings to Pope, the Association's president; on the first occasion, the latter stated that the Association was due to have a meeting soon, and that he would try to get the Association's negotiating committee together "and work out something"; and Pope answered the subsequent proposals with statements that the Association had not yet had a meeting . According to Brooks, it was inaction on his requests for 201 make no finding that a violation of Section 8(b) (1) (B) resulted from Brooks' statement to Trainor that the latter's company would be "sorry" that it had joined the Association. It is not clear that Brooks' remark constituted a threat. 27 Section 8(d) provides, in part: That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification- (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification ; (2) offers to meet and confer with the other party for the purpose of negotiat- ing a new contract or a contract containing the proposed modifications ; (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously there- with notifies any State or Territorial agency established to mediate and con- ciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time ; and (4) continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later : LOCAL UNION 49 OF THE SHEET METAL WORKERS, ETC. 1211 negotiations that led the Union to conclude -that the Association did not desire a meeting, and that " it was no longer necessary to meet" with it. Pope testified that Brooks called him on one occasion in or about October or November 1957, and said that: "he would like to sit down and negotiate at an early date"; he replied that he "would take it back to the Association" at its "next regular meeting"; he did not hear from Brooks again "with respect to negotiations"; and he brought up Brooks' proposal at the "next regular meeting," which was held on February 14, 1958. It is unnecessary to decide whether in a given situation an offer "to meet and confer" made by a party to a contract before he serves notice of termination of the agreement satisfies the requirements of Section 8(d)(2), for the basic fact is that I am able to credit but little of Brooks' relevant evidence. As noted previously, he gave evasive testimony at a number of points. Furthermore, the picture he draws of himself as repeatedly proposing negotiations prior to the ter- mination notices does not jibe with his conduct in ignoring the telegram of February 21, 1958; with his deliberate avoidance of registered mail from the Association; and with his repeated statements following receipt of the telegram that he would not bargain with the Association. His excuse for not seeking bargaining negotiations with the Association between the time of the termination notices and the entry of the "Temporary Restraining Order" strikes me as but a feeble and implausible pretext for the refusals to bargain with the Association. I credit Pope's testimony set forth above. Whether or not Brooks' proposal for nego- tiations, as described by Pope, was made in good faith, it is abundantly clear that by the time the termination notices were sent the offer had withered on the vine, and Brooks had substituted for it a resolve not to bargain with the Association.28 I hold, in other words, that the offer was, in practical effect, no longer in existence at the time the termination notices were given, and for that reason, apart from any other factor, did not constitute compliance with Section 8(d)(2). Clearly, also, the arrangement Brooks made, through the Federal Mediation and Conciliation Service, for a meeting with the Association did not have the effect of erasing the Union's previous infraction of Section 8(d)(2). This belated action, coming as it did some 4 months after the termination notices, and following a strike that was ended, obviously, only because of the coercive impact of the "Temporary Restraining Order" upon the Union and Brooks, was hardly the offer "to meet and confer" contemplated by Section 8(d)(2). What is more, there is good reason to believe that Brooks' purpose in arranging the meeting was as much to continue his campaign to destroy the Association as a bargaining instrumentality as it was to arrange contractual terms with the employers represented. This is apparent, in the light of what had gone before, from the Union's proposal that in incorporating the provisions of the 1957 contracts in any new agreement, the name of the Associa- tion be deleted wherever it appears, and replaced by the phrase "The majority of the sheet metal contractors having agreements." Obviously, adoption of such a proposal would include the deletion of all reference to the Association as "repre- senting" any contractor affected; would thus mean, as is evident from a study of the 1957 contracts, that the organization would even have no contractual standing to sign any agreement reached in its representative capacity; and would have the result of precluding the Association from acting as the representative of its mem- bers in the administration of any such agreement (in contrast with the many ways in which it has had the right, by the terms of the 1957 contracts, to participate in the administration of these agreements on behalf of the employers subject to them). The proposal, in sum , sought to inflict a death wound on the Association as an instrument by which employers represented by it bargained and did business with the Union, and was but another attempt-quite transparent-to achieve what Brooks had failed to accomplish previously by such means as the refusals to bargain and the resort to strike action. Viewed against the background of the prior attempts by Brooks to devitalize the Association as a collective-bargaining instrumentality, and his employment of unlawful methods in their pursuit, I think it evident that the proposal was not made in good faith with the end in view of entering into a signed agreement with the Association as the bargaining representative of em- ployers; but, rather, that the proposal was but an extension of the prior efforts to avoid such an agreement. That being the case, the proposal was tantamount to 28 Significantly, in that connection, one may note that practically simultaneously with the termination notices, Brooks sent proposals for contract changes to employers not represented by the Association ; and that he did not send such proposals to the Association or to any of the 17 employers who had "countersigned" the respective 1957 contracts. .212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a refusal by the Union to bargain, and to the extent that it affected the 17 em- ployers subject to the 1957 contracts, the Union's conduct in the premises violated Section 8(b)(3) of the Act. Second, the Union, contrary to the requirement of Section 8(d)(3), failed to notify "the Federal Mediation and Conciliation Service . . . of the existence of a dispute" within 30 days after the Union, through Brooks, notified the Association and the employers affected that it was terminating the 1957 contracts.39 Third, the Union did not comply with Section 8(d)(4) which requires a party desiring termination or modification of a collective-bargaining agreement to con- tinue "in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such (termi- nation or modification) notice is given or until the expiration date of such contract, whichever occurs later." That the Union's resort to the strike ran counter to the requirements of Section 8(d)(4) becomes apparent upon a study of the language provided by the 1957 contracts for their termination, and of the Union's application of the relevant contractual provisions. By its terms, each contract was to remain in effect until March 31, 1958, and to "continue in force from year to year there- after unless written notice of change is given not less than ninety . days prior to the expiration date"; and in "the event such notice of requested change is served" to "continue in force and effect until conferences relating thereto have been terminated by either party." Fairly construed, the 90-day notice requirement is, I believe, not only applicable to an "expiration date" after March 31, 1958, but to that date as well. In other words, a party desiring to "change" any of the 1957 contracts as of March 31, 1958, would be required by the terms of the applicable agreement to give the other party "written notice of change" at least 90 days before that date. It is evident, one may note, that the Union so interprets the relevant contract language, for in the termination notices it sent the Association and the employers affected, it expressly invoked the "ninety ... day provision." Another matter to note is that the phrase "notice of change," as used in the contracts, does not merely mean "notice of modification," but is broad enough to mean "notice of termination." This construction, too, accords with that of the Union, for it is obvious that it used the contract provisions for "notice of change" as the basis for the termination notices. It would be quite unreasonable, I think, to give the word "change" a different meaning, as used in the phrase "such notice of requested change," from that which it has in the term "notice of change," particularly as the two phrases appear in juxtaposed sentences in the same paragraph. In other words, the phrase "such notice of requested change" has reference not only to a "notice of change" seeking modification of the contract, but to one seeking termi- nation of the agreement. In the light of the foregoing, it is evident that March 31, 1958 was not the "expiration date" of the agreements, as the quoted term is used in Section 8(d)(4), for the reason that no "conferences relating" to the "notice[s] of requested change" (or, in other words, the notices of contract termination) had been held as of that date, let alone "terminated by either party." In fact, no such "conferences" were held prior to May 22, 1958, nor had they been "terminated by either party" at the time of the hearing in this proceeding. I hold, in sum, that having given notice of termination of the 1957 contracts, the Union was obligated, by the provisions of Section 8(d)(4), to continue the agreements in full force and effect until their "expiration date" without resorting to the strike; that the contracts had not yet expired at the time of the strike, nor during its course, because the "conferences" to which the agreements refer had not been "terminated"; and that the Union, as is evident from its refusal to administer the welfare fund provisions of the contracts, as found above, if from nothing else, has not continued the agree- ments in full force and effect without resorting to a strike, and has thereby violated the mandate of Section 8(d)(4).30 By reason of the Union's failure to comply with Section 8(d)(2), (3), and (4), as found above, the strike was unlawful; and as a result of such noncompliance, z" The evidence does not establish that New Mexico maintains a State "`agency . . . to mediate and conciliate disputes," nor has any party requested that official notice be taken of New Mexico law in that regard. That being the case, and since the evidence does not establish, at least with any clarity, that there was a failure by the Union to give "notice of the existence of a dispute" to any appropriate State agency, I see no need to forage through New Mexico law or the rules or practices of that State's "Labor and Indus- trial Commission" or its "Labor Commissioner" to determine if it has established an "agency . . . to mediate and conciliate disputes." 110 The issues require no determination whether the agreements "automatically renewed" themselves on April 1, 1958, as the Association maintains in its brief. LOCAL' UNION 49 OF THE SHEET METAL WORKERS, ETC. 1213 and of the Union's resort to the strike, the Union has refused to bargain with the New Mexico Association, as the representative of the employers subject to the 1957 contracts, and has thereby violated Section 8(b)(3) of the Act.31 The issue remaining for disposition arises from a claim by the General Counsel that the Union has unlawfully refused to bargain with the Association as the group bargaining agent of the 34 employers (including the 17 subject to the 1957 con- tracts) now represented by the Association. This contention assumes, as the Gen- eral Counsel stated at the hearing, that "the employees of the employers who are members of the Association and other employers that have designated the Associa- tion as their collective bargaining representative" constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.32 The claim must be rejected for two basic reasons to be noted below. One is that the record does not support the General Counsel's unit contention, In the first place, the bargaining history of the Association and the Union is some- thing less than the decisive prop for the unit position that the General Counsel and the Association deem it to be. One need only note in that connection that almost half (about 13) of the 34 employers involved in the unit claim have never been represented before by the New Mexico Association or its predecessor, the Albu- querque Association; and that a few have not as yet had any contractual relations with the Union. Secondly, one of the employers (Sam Fox Sheet Metal Co.), a firm with headquarters in Denver and a recently established branch in Albu- querque, had not as yet hired any employees for sheet metal work in its New Mexico operations at the time of the Association's bargaining requests. Bearing that in mind, to say that the unit proposed by the General Counsel was appropriate at the time of the requests would hardly accord with that freedom of self-organi- zation by employees that Section 7 of the Act is designed to protect.33 Thirdly, one of the employers (H. Welch), who had not been represented by the Associa- tion prior to this year, is located in El Paso, Texas, where unionized sheet metal workers are not customarily represented by the Union, but by a sister local. Now it may be that there is a good reason why employees of this contractor should be included in the multiemployer unit urged by the General Counsel, but if there is, the record does not establish it. I deem it unnecessary to explore other possible shortcomings in the General Counsel's unit position for, on the basis of what has been said above, I am of the opinion that the General Counsel has not carried his burden of establishing, by evidence of preponderant weight, that the unit he pro- poses is appropriate for bargaining purposes. The other basic infirmity in the claim under consideration is that there is no evidence that the Association ever requested the Union to bargain with it as the representative of the 34 employers or communicate a desire to the Union to bar- gain on the basis of the multiemployer unit the General Counsel now urges as appropriate. The only bargaining requests made were those contained in the tele- gram of February 21, 1958; the letters of March 3 and 6, 1958; and an inquiry by Morrison of Brooks on the telephone toward the end of March 1958 whether it "would ... be possible for us to get together and begin conversations." There is nothing in the telegram, the letters, and Morrison's inquiry to suggest that the Association was seeking bargaining negotiations on the basis of a unit of employees of the 34 employers now represented by the Association. There is even no impli- cation that the Association was speaking for any employer not included in its membership. In fact, to the objective reader, whatever the Association had in mind, the whole sense of the telegram and letter of March 3 (as well as of that 31 See J. C. Penney Company, 109 NLRB 754, 759. 33 Contrary to customary practice in cases of this type, the complaint contains no ex- plicit unit definition. It alleges that the Union is the bargaining representative of "employees" of employers represented by the Association "in a unit appropriate for collective bargaining," and includes an allusion to "the Association wide unit," but the relevant averments are hardly statements of unit definition of the type that are a char- acteristic feature of complaints in a proceeding such as this. The General Counsel's unit position, as stated at the hearing, is little more illuminating than what he says on the subject in the complaint. It may be that the allusion to "employees" has reference to those in the employ of the 34 employers, who are engaged in the types of occupation and work described in article I of the 1957 contracts, but if that is the case, the General Counsel does not say so. In any event, as I am unable to accept his unit position for the reasons noted at a subsequent point, I deem it unnecessary to decide whether its vagueness requires its rejection. 33 See Daniel Hamm Drayage Company, Inc., 84 NLRB 458, 460, enfd. 1S5 F. 2d 1020, (C.A. 5) ; The Englander Company, Inc., 118 NLRB 707, 708. 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of March 6, which should be read together with the two previous communications) is that the Association, having been informed of the Union's intention of termi- nating the 1957 contracts, was seeking a meeting, at "the direction of [its] member- ship," to discuss the termination notices and to reach agreement for a "continua- tion" of contractual relations between the Association and the Union. What is more, in the state of the record, it would be a mere guess to say that Morrison's request for "conversations" sought anything more. It begs the question to say, as did Pope in his testimony, that had the meeting proposed for March 10 been held, the Association would have informed the Union of the identity of all the contractors it then represented. One may assume that the Association intended to introduce into the negotiations it sought a broadening of contractual relations with the Union to include all 34 employers. But the critical fact would still remain that the Association did formulate bargaining requests; that those contained in the telegram and the subsequent letters fall far short of constituting any request for bargaining with the Association as the representative of the 34 employers, but on the contrary, whatever the Association intended, imply a request for bargaining on the basis of a unit of employees of its members (if not, indeed, a unit consisting merely of employees of the 17 employers subject to the 1957 contracts); and that there is no basis for a conclusion that Morrison's inquiry sought anything more than "conver- sations" on the subject set forth in the telegram and the letter of March 3, and implied in the letter of March 6. Thus although the evidence abundantly estab- lishes that the Union has, at least since it received the telegram, failed and refused, both by word and deed, to bargain with the Association, the record provides no basis for a finding that the labor organization has unlawfully refused to bargain with the Association as the representative of the 34 employers, or on the basis of a unit consisting of "employees" of such employers 34 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union set forth in section III, above, occurring in connec- tion with the operations of the New Mexico Association, and its members, de- scribed in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Union has violated Section 8 (b) (1) (B) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and of the entire record in this proceeding, I make the following conclusions of law: CONCLUSIONS OF LAW 1. Local Union 49 of Sheet Metal Workers Association is, and has been at all times material to this proceeding, a labor organization within the meaning of Sec- tion 2(5) of the Act. 2. E. D. Brooks is, and at all times material to this proceeding has been, a busi- ness representative and agent of the said Union. 3. New Mexico Sheet Metal Contractors Association, Inc., and its members who are subject to its contracts with the Union, dated August 14, 1957, are, and each of them is, an employer within the meaning of Section 2(2) of the Act. 4. All employees of the members of the said Association subject to any of the agreements between the Association and the Union, dated August 14, 1957, em- ployed in the types of occupation or work described in article I of each of such contracts, excluding all other employees of such members, and supervisors as de- fined in the Act, constituted, on the date of execution of the agreements, and have at all times since constituted, a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9(b) of the Act. 5. The Union is, and has been at all times material to this proceeding, the exclu- sive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining, within the meaning of Section 9(a) of the Act. 94 See , among other cases, N.L.R.B. v. Jackson Press, Inc., 201 F . 2d 541 (C.A. 7) ; The C. L. Bailey Grocery Company , 100 NLRB 576 , 580; N.L.R.B. v . Columbian Enamel- ing cE Stamping Co ., Inc., 306 U.S . 292; Atlas Life Insurance Company v . N.L.R.B., 195 F. 2d 136 (C.A. 10). LOCALS 1205 & 7,07,,INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1215 6. _By restraining and coercing employers in the selection of the Association as their representative for the purposes of collective bargaining, as found above, the Union has engaged in unfair labor practices within the meaning of Section 8(b) (1) (B) of the Act. 7. By refusing to bargain collectively with the Association , as found above, the Union has engaged in unfair labor practices within the meaning of Section 8(b)(3), of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Sections 2(6) and 2 (7) of the Act. [Recommendations omitted from publication.] Local 1205 and Local 707 International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and Atlantic-Pacific Manufacturing Corporation . Case No. 2-CC-137. February 3, 1959 DECISION AND ORDER On April 7, 1958, Trial Examiner Henry S. Sahm issued his Intermediate Report in the above-entitled proceeding finding that the Respondent Locals had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Ex- aminer also found that the Respondents had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed with respect thereto. Thereafter, the General Counsel, the Charging Company, and Respondent Local 1205 filed exceptions to the Intermediate Report, and the General Counsel and Local 1205 filed supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Fanning]. 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.' 1In its exceptions Respondent Local 1205 excepted to the denial by the Trial Examiner of its requests to have the General Counsel produce certain written statements in his possession , of witnesses , at the time that said witnesses testified . By Its order of September 8, 1958, the Board sustained the exception to the above ruling and ordered that the General Counsel forthwith make available to Respondent Local 1205 such pre- trial written statements , or copies thereof, directly related to their testimony of witnesses who had testified for the General Counsel , provided that the Respondent Local 1205, within 10 days of the order, designate to the General Counsel , the names of the witnesses whose pretrial statements it desired . This Board order also provided that within 5 days after these statements had been received Respondent Local 1205 could move to reopen the record and have the case remanded to the Trial Examiner for the purpose of further examining any witnesses whose pretrial statements had been made available in accordance with the procedures established in that order . Respondent Local 1205 did not designate to the General Counsel the names of witnesses whose pretrial statements it desired, nor 122 NLRB No. 148. 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