Selma Trailer and Manufacturing Co. of California, Inc.

National Labor Relations Board - Board DecisionsMar 31, 1965

151 N.L.R.B. 1342 (N.L.R.B. 1965)

1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is further recommended that unless on or before 20 days from the date of its receipt of this Trial Examiner's Decision Respondent notify the Regional Director that he will comply with the foregoing Recommended Order, the National Labor Relations Board issue an order requiring Respondent to take the action aforesaid. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in, or activities on behalf of, Inter- national Union of Mine, Mill and Smelter Workers, Local Union No. 942, or any other labor organization of our employees, by discharging or in any other manner discriminating against any individual in regard to his hire, tenure of employment, or any term or condition of employment, except as authorized in Section 8(a)(3) of the Act. WE WILL offer Nick Olvera, Lupe Jaime, and all strikers denied reinstatement because permanently replaced immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other right and privileges, and make each whole for any loss of earnings he may have suffered as a result of the discrimination against him. WE WILL NOT in any other manner restrain or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor orga- nization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or ai iy other labor organization. SHATTUCK DENN MINING CORPORATION ( IRON KING BRANCH) Employer. Dated------------------- By-------------------------------------------(Representative) (Title) NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their rights to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board' s Regional Office, 1015 Tijeras Street, NW., Albuquerque, New Mexico, Telephone No. 243-3536, if they have any question concerning this notice or compliance with its provision. Selma Trailer and Manufacturing Company of California, Inc. and International Association of Machinists, AFL-CIO, Dis- trict Lodge No. 87, Local Lodge No. 653. Case No. -0-CA- 3138. March 31, 1965 DECISION AND ORDER On December 4, 1964, Trial Examiner David F. Doyle issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor 151 NLRB No. 130. SELMA TRAILER & MFG. CO. OF CALIFORNIA, INC. 1343 practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision, and the General Counsel filed a motion to strike the exceptions and a statement in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case, includ- ing the Respondent's exceptions and the General Counsel's motion,' and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with certain modifications in his Recommended Order and Appendix, as corrected on December 16, 1964. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Board hereby orders that the Respondent, Selma Trailer and Manufacturing Company of California, Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with the International As- sociation of Machinists, AFL-CIO, District Lodge No. 87, Local Lodge No. 653, in good faith concerning rates of pay, wages, hours of employment, or other conditions of employment, by refusing to sign an agreement embodying conditions agreed upon. (b) Initiating or granting any wage increase to any employee in the appropriate unit without prior consultation and bargaining on that subject with the Union. 'The Respondent filed timely exceptions to the Trial Examiner's Decision, alleging, inter alia, that as a matter of law the Trial Examiner erred in finding that an agreement had been reached between the Respondent and the Union, and that the Respondent had violated Section 8(a)(1) and (5) of the Act The Respondent contended that Erickson, chief negotiator for the Respondent, did not have authority to bind the Respondent to a contract with the Union, and excepted to a specific portion of the Trial Examiner's Decision finding that the Respondent had agreed to the terms of the contract. There- after, the General Counsel filed a telegraphic motion with the Board to strike the Re- spondent's exceptions as not in conformance with Section 102.46 of the Board's Rules and Regulations, citing Patrick F. Izzi d/b/a Pat Izzi Trucking Company, 149 NLRB 1097. In our opinion, the exceptions satisfy the requirements of Section 102 46. The Pat Izzi Trucking Company case is distinguishable as the exceptions found to be Insuf- ficient there stated only that the Trial Examiner's Decision was against the "evidence, the law, and the weight thereof." We deny the General Counsel's motion to strike the exceptions. 1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request by International Association of Machinists, AFL-CIO, District Lodge No. 87, Local Lodge No. 653, execute the agreement reached on May 25, 1964, as set forth in the section of the Trial Examiner's Decision entitled "The Remedy," or, if the Union so requests, bargain for a new contract, pursuant to the re- quirements in the section entitled "The Remedy." (b) Post at its plant in Selma, California, copies of the attached notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for Region 20, shall, after being duly signed by the Respondent's representative, be posted by it imme- diately upon receipt thereof, and be maintained by it for 60 con- secutive clays thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. z 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 "a Decision and Order" the words "a Decree of the United States Couit of Appeals, Enforcing an Oider" APPENDIX Pursuant to a Decision and Order of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : AVE WILL, upon request, execute the labor agreement reached by us with International Association of Machinists, AFL-CIO, District Lodge No. 87, Local Lodge No. 653, on May 25, 1964, the agreement to be retroactive to June 1, 1964, including, but not limited to, the provisions relating to wages and other benefits and make whole employees for any financial losses suffered or contractual benefits withheld because of our refusal to execute said agreement; or, if the Union so requests, bargain collectively with the Union, above-named, for a new contract, the commence- ment and duration of which shall be agreed upon in negotia- tions. The appropriate unit is as follows : SELMA TRAILER & MFG. CO. OF CALIFORNIA, INC. 1345 All production and maintenance employees of the Company at its Selma, California, plant, excluding office clerical em- ployees, professional employees, salesmen, guards, and super- visors as defined in the Act. WE WILL NOT refuse to bargain collectively with the Union in good faith concerning rates of pay, wages, hours of employ- ment, or other conditions of employment, by refusing to sign an agreement embodying conditions agreed upon. WE WILL NOT initiate or grant any wage increase to any employee in the appropriate unit without prior consultation and bargaining on that subject with International Association of Machinists, AFL-CIO, District Lodge No. 87, Local Lodge No. 653. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the Union named above, or any labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. All our employees are free to become or remain, or to refrain from becoming or remaining, members of International Association of Machinists, AFL-CIO, District Lodge No. 87, Local Lodge No. 653, or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as amended. SELM A TRAILER AND MANUFACTURING COMPANY OF CALIFORNIA, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California, Telephone No. 556-3197, if they have any questions concerning this notice or compliance with its provisions. 783-133-66-vol. 151-86 1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, with the parties represented by counsel to the extent hereafter stated, was heard by Trial Examiner David F. Doyle in Fresno, California, on September 22, 1964, on a complaint of the General Counsel and answer of the Respondent. The issue litigated was whether the Respondent had violated Section 8(a)(1) and (5) of the Act by certain conduct hereinafter described. At the commencement of the hearing the parties were represented by counsel 1 to a point at which counsel for the Respondent withdrew. Thereafter the hearing con- tinued without the Respondent being represented by counsel or any other person. At the close of the hearing, time was given for the purpose of permitting all parties to file arguments and briefs on the issues. The General Counsel alone filed a brief.2 From my observation of the witnesses, and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company is a California corporation with its main office and place of business located in Selma, California, where it engages in the manufacture and sale of trailers. In the course and conduct of its business operations during the past year the Company purchased and received goods valued in excess of $50,000 directly from places located outside the State of California; during the same period it sold goods valued in excess of $50,000 directly to customers located outside the State of California. It is conceded and I find that at all times material herein the Company has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is not disputed and I find that the Union is, and at all times material has been, a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The amendment of the complaint and the withdrawal of counsel for the Respondent At the opening of the hearing the General Counsel introduced into evidence the formal documents in the case . At that time I noticed that the formal file contained no formal answer of the Respondent . Speaking on the record I called this deficiency to the attention of counsel for the Respondent and at the same time noted the fact that the formal file contained a letter written by Carl W. Ruegg, president of the Company, dated July 23, 1964, addressed to the Acting Regional Director , Region 20, which in effect denied "any and all unfair labor practices . . . in the complaint." Counsel for the Company then stated that he was not prepared "for numerous reasons." He stated frankly that the Company had received adequate notice of hearing from the Regional Office but because of "internal negligence," a term he did not explain , he was not prepared to enter a formal answer and that it might be necessary to request additional time to enter such an answer. I then stated that coun- sel for the Company should file an answer as soon as possible in the course of the hearing, in order that the General Counsel would know if there were any affirmative defenses involved. 'While Whitely entered a technical appearance for Messrs. Omer and Papps, he was the only representative of the Charging Party at the hearing. 2 The charge herein was filed on June 18, 1964, by D J. Omer, Grand Lodge representa- tive, I.A.M. The complaint was issued by the Acting Regional Director, Region 20, on July 16, 1964. In this decision Selma Trailer and Manufacturing Company of California , Inc., Is referred to as the Company or the Respondent; International Association of Machinists, AFL-CIO, District Lodge No. 87, Local Lodge No. 653, as the Union, the National Labor Relations Board as the Board ; the General Counsel of the Board and his representative at the hearing as the General Counsel , and the Labor Management Relations Act, as amended, as the Act. SELMA TRAILER & MFG. CO. OF CALIFORNIA, INC. 1347 All counsel then entered into stipulations concerning the business of the Company and the labor organization involved. At that point the General Counsel stated that he had learned in the last few days that the Company had engaged in an additional violation of Section 8(a)(5) by granting certain wage increases to its employees without consulting with the Union . The General Counsel moved to substitute the following paragraph 12 for the original paragraph 12 in the complaint . The amend- ment reads as follows: Since on or about July 15, 1964 and at all times thereafter , Respondent has refused to bargain with the certified representative of its employees by uni- laterally granting wage increases to employees in the unit described in paragraph 6 without consulting with the Union. When I asked if there was any objection to the amendment of the complaint, coun- sel for the Company stated that he had no objection to the amendment of the com- plaint provided that he was given time to investigate the new matter charged in the amendment and to arrange for a new hearing date to fit his calendar of appointments. The General Counsel then stated that he wished to amend the complaint and was willing that counsel for the Company be given adequate time to prepare itself in regard to the new allegation . However, he added that he wished to present his case with respect to the original allegations of the complaint , and desired that any continu- ance which might be granted by me be as short as possible. I asked counsel for the Respondent how much of a continuance he had in mind and ,counsel replied that he thought a 2-week period would be adequate . I stated that I thought such a lengthy continuance was out of the quesiton, but asked for an expres- sion of opinion from the General Counsel. The General Counsel then replied that the facts as to the wage increases given by the Company were simple and could be readily ascertained by checking the records of the Company . Because of that situation he felt that a much shorter continuance would be adequate. Counsel for the Company then replied that while the matter concerning the wage increases might be verified in a comparatively short time longer time was neces- sary to put his calendar in order so that he might properly represent his client. After further consultation with counsel on the record , I then ruled that the motion to amend the complaint be denied . I said that I would deny the motion without prejudice to the General Counsel, so that the new facts of unfair labor practice could be alleged against the Respondent in a separate proceeding for that purpose . I also stated that perhaps in the event the General Counsel proved the allegations then in the complaint be might be satisfied with the remedial order which might later issue herein. Counsel for the Respondent then objected , stating that this procedure would mean a multiplicity of suits. I stated that it seemed that such multiplicity could not be avoided; I then pointed out that the General Counsel was present pursuant to the notice of hearing and was prepared to proceed with proof as to the unamended com- plaint and that the parties and their counsel should proceed in an effort to finish the litigation of the issues set forth in the original complaint . I also said that I would be willing to grant a day's continuance , but longer than that I was not prepared to grant. I asked all counsel if a continuance until the following day would help to resolve the procedural difficulty. Counsel for the Company stated flatly that it would not. The General Counsel then stated that his motion to amend the complaint was designed to forestall any further increases in wages being given by the Company with- out consulting the Union and that he desired to proceed with as much of the hearing as possible. I then stated that I would try to give a ruling that would accommodate the desires of all counsel . I said I would entertain a renewed motion by the General Counsel to amend the complaint and that I would direct that the hearing proceed as far as it could proceed , and if, at the close of the General Counsel 's case, counsel for the Company desired a continuance , I would entertain his motion and give to counsel for the Respondent such time as he considered reasonable . I stated that my hope was that by the time the hearing had proceeded for that day , the General Counsel and counsel for the Respondent might view the situation differently . I acknowledged that the Respondent was entitled to a reasonable time to prepare to meet the new allega- tion of the complaint . I pointed out that, if counsel , the parties , and I had to come back on a second occasion at a later date , it then made little difference whether the continuance was for 5 or 10 days, or a longer period. The General Counsel then moved to amend the complaint as set forth above and I permitted the amendment of the complaint . I then made the following statement: I will tell counsel for the Respondent that we will proceed with such evidence as we have here , and take and accomplish what we can , and if he states at the con- clusion of the General Counsel 's evidence that he is taken by surprise in regard 1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to these unilateral wage increases which have been permitted by the amendment to the complaint to come into evidence, I will then grant him sufficient time to. investigate and prepare for trial. Counsel for the Respondent then inquired if the Union had filed an unfair labor practice charge as to the amendment of the complaint. The General Counsel replied that the facts of the wage increases had been discovered only a day or two previously in the course of investigation and that under the Board Rules and Regulations, Series 8, as amended, the amendment of the complaint was permitted without an unfair labor practice charge being filed in regard to the newly discovered violation. At this point a short recess was taken. After the recess, with counsel for the Respondent still in attendance, the General Counsel said that he was amenable to the Respondent having such reasonable time to prepare to defend on the amendment as he desired, but that he wished to present his case and that he intended to put on his evidence with respect to all the issues raised by the amended complaint. However, when he had finished, if counsel for the Respondent wished to cross-examine his wit- nesses further, that the General Counsel would keep the witnesses under subpena so that they might be available for further cross-examination by the Respondent on the date to which the hearing might be continued. The General Counsel explained that he desired to present the testimony and other evidence which was available to him, and in the courtroom at that moment. At that point the transcript of testimony reads as follows: TRIAL EXAMINER: All right. I have permitted the amendment of the com- plaint and, as far as I am concerned, you have made your decision on the matter,. and I will hear whatever evidence you have, and I assure Mr. Shepard that at the close of the evidence here I will give him adequate time to prepare a defense, and I will instruct those witnesses who are subpoenaed to appear at whatever date appears to be the adjournment date of the hearing, because I think these are the conditions upon which we go forward, and so that, I think, is the situa- tion that we have here now. You gentlemen, you do as you please about it. Mr. 'SHEPARD: I would like to make this statement, in view of your order, and in view of counsel's statement, I am of the opinion that an amendment cannot be made to a complaint in the form made here, and I am objecting to it on those grounds. I am of the opinion further that if the complaint is amended, a service must be done on a Respondent and/or a defendant, and I am further of the opinion that they must be given time to answer, and I certainly believe with the further opinion that after there is a complaint and answer, then the matter is set down for hearing, and a defendant or Respondent, whichever you call them , is entitled under our constitution to a full hearing. He is entitled to protect his rights, and he cannot be forced by making an appearance on one occasion, and for one particular complaint, to be forced into defending an amended complaint, the facts of which he has no familiarity with, and no knowledge of, and for this reason we are terminating our interest in this hearing, and this hearing will obviously not be able to continue, so we will leave now and wait until we receive our notification from the reporter as to the transcript. TRIAL EXAMINER: All right. Thank you, Mr. Shepard. (At this point, Mr. John E. Shepard, counsel for the Respondent, . . . with- drew from the hearing, leaving the hearing room.) B. The issues The complaint, as amended, alleges that the Union is the certified bargaining repre- sentative of a majority of the Company's employees in an appropriate unit; that the Company and the Union bargained for seveial months prior to May 25, 1964; and that on that date reached complete agreement on all the terms of a collective- bargaining contract. The complaint then states that since June 9, 1964, and at all times thereafter, the Company has refused to execute a written instrument setting forth the terms of the collective-bargaining agreement. The complaint, as amended, also alleges that the Company had given raises in wages to employees without consult- ing with the Union. The General Counsel contends that by this conduct the Respond- ent has violated Section 8 (a) (1) and (5) of the Act. As stated previously, I have accepted the letter of Carl W. Ruegg, president of the Respondent, dated July 23, 1964, which denies the commission of unfair labor prac- tices as an answer in general denial to the allegations of the complaint. SELMA TRAILER & MFG. CO. OF CALIFORNIA, INC. 1349 C. The evidence It is undisputed that on August 13, 1963, the Union was certified as the exclusive collective-bargaining representative of the Company's employees in an appropriate unit described as follows: All production and maintenance employees of the Employer at his Selma, California, plant, excluding office clerical employees, profes- sional employees, salesmen, guards, and supervisors as defined in the Act. At the hearing W. R. Whitely, assistant business representative of the Union, testi- fied credibly and without contradiction that shortly after receipt of the certification he initiated negotiations with the Company. He was informed that Robert Erickson, vice president and general manager of the Company, would be its representative in negotiations. The parties met for the first time in the latter part of September 1963 and there- after held approximately 10 bargaining meetings between that date and May 25, 1964. The union representative at these meetings was Whitely who was assisted on some occasions by other assistant business representatives. The Company was represented by Erickson, who was joined by Carl Ruegg, president of the Company, on two occasions. In the course of the negotiations the representatives of the parties agreed on many terms of the contract. By April 14, 1964, there were only three points upon which the parties were not in agreement; these were (1) a health and welfare clause, (2) a seniority clause, and (3) a wage increase. The objectives of the Union were a health and welfare plan which would provide that the Company make contributions on behalf of the employees' dependents; a seniority clause; and an across-the-board 5-cent-an-hour wage increase. In the course of the April 14 negotiations the parties agreed that the Union would drop its demand for a wage increase and for company contributions toward the coverage of employees' dependents under a health and welfare clause in consideration of the Company agreeing to put a seniority clause in the contract. When this final agreement was reached, both Whitely and Erickson acknowledged to each other that they had concluded negotiations and were in agree- ment on all final terms of the contract. Whitely assured Erickson that he would sub- mit the contract to the employees for ratification without delay. On May 13 Whitely submitted the contract to the union membership for its approval, which was given. On May 14 Whitely informed Erickson that the employ- ees had accepted "the company's last offer as negotiated on April 13, 1964" and that Whitely desired to meet with Erickson to reduce the terms of the contract to a written instrument. He suggested that the effective date of the contract be June 1. On May 25 Whitely and Erickson met for the purpose of drafting the final form of the contract. When this task was finished, Whitely again suggested that the effective date of the agreement be June 1. Erickson agreed. Whitely volunteered to cut a stencil and run off a number of mimeographed copies of the agreement. This too was satisfactory to Erickson. The representatives then agreed that they would meet again on June 9 for the express purpose of signing the agreement. On June 9 at a meeting attended by Erickson and Whitely, the latter gave Erickson several copies of the written agree- ment. After reading the contract and discussing it page by .page with Whitely, Erickson said that everything in the contract was in order but he wanted to have his attorney look it over before he signed the contract in case there were some changes in wording. Whitely said that Erickson could submit the contract to his attorney but the agreement as written was not to be changed in any manner. Whitely also said that he would not agree that submission of the contract to the attorney could delay the effective date of the contract which was June 1. Whitely signed five copies of the agreement and told Erickson to return some copies to him after his attorney had reviewed them and he had signed them Erickson said that he would do that Whitely had no communication from Erickson for approximately a week after that. At the end of that time, Whitely had occasion to call Ruegg to discuss the matter of a vacation benefit for an employee. The employee was entitled to this benefit under the agreement. Ruegg claimed to know nothing about the situation and told Whitely that he would have to take the matter up with Erickson, who was out of town at that time. Whitely thereafter reached Erickson by telephone and discussed the matter with him. Erickson took the position that the benefit could not be extended to the employee because the contract had not been signed. Whitely took the position that the actual execution of the contract was immaterial because the parties had agreed that the contract was to be effective on June 1. Whitely then asked Erickson to sign the contracts immediately and mail his copies to him. Erickson then said that there were some employees who were dissatisfied with the contract and that he could not sign the contract until all the employees were satisfied. That was the last occasion on which Whitely spoke to Erickson about the contract. 1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although Ruegg in his letter of July 23, 1964, to the Regional Office indicated that Erickson was not employed by the Company on that date, Whitely was never notified of the termination of Erickson's employment and no one on behalf of the Company either signed the contracts or communicated with Whitely concerning their execution. Whitely testified in a frank and a forthright manner and some of his testimony was corroborated by another assistant business agent of the Union named Robert LaMotte. I credit the testimony of both witnesses. Orvil F. Arthurs testified credibly and without contradiction that he had been employed by the Company for approximately 5 years prior to the hearing. Arthurs testified that for the pay period ending August 31 he was given an increase in pay of 20 cents per hour. Melvin W Wilson also testified credibly and without contradiction that for the pay period ending August 31 he was given an increase in pay of 25 cents per hour. Whitely testified that the Union was not consulted about these raises. It should be noted in connection with these raises that in reaching agreement with the Union in the negotiations which ended on April 14 Respondent had refused to grant any wage increase to any of its employees. Concluding Findings The withdrawal of counsel for Respondent. I submit that my rulings on procedural questions which preceded the withdrawal of counsel for the Respondent from the hearing were proper in all respects. In the first instance it should be noted that the Respondent was in technical default by not complying with the Board Rules by filing a formal answer to the complaint in the time required by the Rules. Since Ruegg's letter of July 23, 1964, in effect "denied the commission of unfair labor practices," I treated the letter as an answer but asked counsel foi the Respondent to file a formal answer in the course of the hearing. At that point counsel for Respondent stated that he was not sure that he could comply with my request because he was "unprepared" because of "internal negligence," presumably on the part of the Company in retaining counsel. Thereafter, I probed the intentions and desires of both counsel. Ulti- mately, the General Counsel stated that he was anxious to present at least the testi- mony of the witnesses then in the courtroom and such other evidence as was then available to him. The General Counsel's obvious desire was to transact the business of the Government with dispatch. The General Counsel was also insistent, under- standably so, in amending the complaint to put in issue the conduct of the Company in granting the unilateral wage increases. At the same time, the General Counsel frankly acknowledged the reasonableness of the request of counsel for the Company for time to investigate and gather evidence to refute the new allegation of the com- plaint. The General Counsel offered to put on his case and not oppose a reasonable continuance to allow the Respondent to prepare its case. The General Counsel agreed to keep all witnesses who testified available for cross-examination at the hearing, and for further cross-examination, if desired, on the adjourned date, in order that the Respondent's right of cross-examination would not be restricted in any way. I then stated that the proposed procedure was reasonable, and pointed out that since a continuance seemed to be unavoidable, it was of small consequence whether the continuance was for 5 or 10 days, or a longer period At the hearing, and now, I am of the opinion that the procedure I directed was the only reasonable procedure I could have directed under the circumstances unless I was to require the General Counsel, his witnesses then subpenaed and in the courtroom, and the official reporter to accommodate themselves to the unbending desires of counsel for the Company, who was admittedly "unprepared" because of "internal negligence." When it became necessary for me to direct the procedure set forth above, I did so with only one thought in mind, that the time of all participants in the hearing was valuable and that the hearing facilities of the Government should be utilized to the fullest extent pos- sible under the circumstances and upon fair conditions to the Respondent. The Respondent's contention that the amendment of the complaint at the hearing was unauthorized is without legal support. It has long been the policy of the Board with the approval of the courts to allow the Genera, Counsel to amend a complaint at a hearing so long as fair conditions are met These conditions are that: (1) the violations alleged by way of amendment must have occurred within the statutory 10(b) period; (2) they must be violations of sections of the Act already alleged to have been violated in the original complaint; and (3) Respondent must be given opportunity, if it is requested, to prepare a defense to the new allegations. All of these provisions were given due consideration in the course of my rulings. The deci- SELMA TRAILER & MFG. CO. OF CALIFORNIA, INC. 1351 sion whether or not to allow an amendment to the complaint falls within my discre- tion. Here, I first denied General Counsel's motion in the hope that the issues raised by the unamended complaint could be fully litigated and that might end the entire matter. When counsel for the Respondent was not prepared to go forward on that basis, but was adamant in asking for a continuance, I then reversed myself and granted the motion to amend the complaint in order that all the proposed issues might be litigated with finality, even if that involved a contemplated continuance. In my judgment, I extended to counsel for the Respondent all consideration that I could, without being unfair to all other participants in the hearing.3 Upon the credited testimony of witness Whitely, it is found that the Respondent has failed and refused to execute and honor a contract to which it had agreed on May 25, 1964, and which according to its terms was to be effective on June 1, 1964. Upon the credited testimony of witnesses Arthurs and Wilson in addition to that of Whitely it is also found that the Company raised the pay of Arthurs and Wilson during the pay period ending August 31, 1964, without consultation with the Union. This conduct of the Company in each instance is found to be a violation of Section 8(a)(1) and (5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connec- tion with the operations of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and constitute unfair labor practices which tend to lead to labor disputes bur- dening and obstructing commerce and the free flow thereof. V. THE REMEDY Since it has been found that the Company has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Since it has been found that the Company has refused and failed to sign and honor a collective-bargaining contract evidencing an agreement of the parties, the Act requires that this unlawful conduct be rectified. Since some time has elapsed from the date upon which agreement was reached, I deem it proper to recommend that the Union be granted the following choice of remedy: (1) to require that the Company upon request execute and honor the contract to which it had agreed on May 25, 1964, and to apply the contract provisions retroactively to June 1, 1964, including, but not limited to, the provisions relating to wages and other contractual benefits and make whole employees for any financial losses suffered or benefits withheld because of Respondent's refusal to execute and honor the agreement; or (2) to treat the failure of the Company to execute and honor the contract aforesaid as a basis for bargain- ing for a new contract, the commencement and duration of which shall be agreed upon by the parties in those negotiations. The appropriate unit of employees for which the parties shall bargain pursuant to this provision is described hereafter in Conclusions of Law 4 Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2( 6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3 As to the propriety of procedure, see the following cases. Magic Slacks, Inc, 136 NLRB 607; The Englander Company, Inc, 118 NLRB 707; N.L.R B. v. Local 691, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, et at. (Morgan Drive-Away, Inc.), 270 F. 2d 696 (C A. 7) ; N.L.R B. v Raymond Pearson, Inc., 243 F. 2d 456 (CA. 5) ; Textile Workers Union of America, CIO, et at. (Personal Products Corporation), 108 NLRB 743; National Union of Marine Cooks and Stewards, etc. (Pacific American Shipowners Association), 90 NLRB 1099, Permacold Industries, Inc, 147 NLRB 885 4 Ogle Protective Service, Inc., 149 NLRB 545. 1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Since August 13, 1963, the Union has been the exclusive bargaining representa- tive of the Company's employees in an appropriate unit described as follows: All production and maintenance employees of the Employer at its Selma, California, plant, excluding office clerical employees , professional employees , salesmen, guards, and supervisors as defined in the Act. 4. By repudiating an agreement reached on May 25 , 1964, and refusing to sign or honor it, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 5. By initiating wage increases to some employees in the appropriate unit described above without consultation with the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By the aforesaid unfair labor practices the Respondent has interfered with, restrained , and coerced its employees within the meaning of Section 8(a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] Melrose Processing Company and United Packinghouse, Food and Allied Workers , AFL-CIO. Case No. 18-CA-1661. March 31, 1965 SUPPLEMENTAL DECISION AND ORDER On April 21, 1964, the National Labor Relations Board issued its Decision and Order in the above-entitled proceeding,' finding, inter alia, that Respondent had discriminated against Celeste M. Thielen in violation of Section 8(a) (3) and (1) of the National Labor Rela- tions Act, as amended, and directing that Respondent make her whole for loss of pay resulting from the discrimination. On June 25, 1964, the Regional Director for Region 18 of the Board issued a backpay specification, and on July 10, 1964, Respond- ent filed an answer. Upon appropriate notice issued by the Regional Director, a hearing was held before Trial Examiner David London for the purpose of determining the amount of backpay due. On January 26, 1965, the Trial Examiner issued his attached Supple- mental Decision, finding the discriminatee entitled to a payment of $1,961.11. Thereafter, the Respondent filed exceptions to the Trial Examiner's Supplemental Decision and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Fanning and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. 1146 NLRB 979. 151 NLRB No. 134.