Auciello Iron Works

National Labor Relations Board - Board Decisions

Jun 27, 1991

303 N.L.R.B. 562 (N.L.R.B. 1991)

562
303 NLRB No. 90
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On May 3, 1990, the Respondent filed a motion to file a supplementary
memorandum of law on the applicability and impact of the U.S. Supreme
Court’s decision in NLRB v. Curtin Matheson Scientific, Inc., 110 S.Ct. 1542
(1990). The Board granted this motion on May 8, 1990, stating that all parties
could file such briefs. Only the Respondent filed a supplementary memo-
randum of law.
2 We agree with the judge that under established Board precedent, once the
Board finds that the parties have reached a binding collective-bargaining
agreement, it is unnecessary to consider the issue of a respondent’s alleged
good-faith doubt of the union’s majority status. Belcon, Inc., 257 NLRB 1341,
1346 (1981); North Bros. Ford, 220 NLRB 1021, 1022 (1975). We also agree
with the judge that the Board’s decision in Bickerstaff Clay Products, 286
NLRB 295 (1987), enf. denied 871 F.2d 980 (11th Cir. 1989), in which the
Board addressed the respondent’s good-faith doubt defense even though the
Board found that the parties had reached a binding agreement, did not overrule
the precedent followed in Belcon.
In agreeing with his colleagues that it is unnecessary to consider the issue
of good-faith doubt, Member Oviatt relies on the fact that the Respondent not
only failed to withdraw its offer prior to the Union’s acceptance but that it
did not immediately communicate to the Union its ‘‘good-faith doubt’’ that
the Union had lost its majority status. He notes parenthetically that to allow
a proposal to remain on the bargaining table after the Respondent has a good-
faith doubt as to the Union’s majority status may be tantamount to bargaining
with a minority union–-and thus could leave the Respondent vulnerable to an
8(a)(2) charge.
Auciello Iron Works, Inc. and Shopmen’s Local
Union No. 501 a/w International Association of
Bridge, Structural and Ornamental Iron Work-
ers (AFL–CIO). Case 1–CA–25969
June 27, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On November 24, 1989, Administrative Law Judge
Norman Zankel issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,1 and
the General Counsel resubmitted his brief to the judge
in support of the judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Auciello Iron Works, Inc.,
Hudson, Massachusetts, its officers, agents, successors,
and assigns, shall take the action set forth in the Order,
except that the attached notice is substituted for that of
the administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT unlawfully withdraw recognition
from, or refuse to bargain with, Shopmen’s Local
Union No. 501 a/w International Association of
Bridge, Structural and Ornamental Iron Workers
(AFL–CIO) as the exclusive collective-bargaining rep-
resentative of employees in the following appropriate
unit:
All production and maintenance employees, in-
cluding working foremen, engaged in the fabrica-
tion of iron, steel, metal, and other products, or in
maintenance work in or about the vicinity of our
Hudson, Massachusetts facility, but excluding all
office clerical employees, guards, and supervisors
as defined in the Act (except working foremen).
WE WILL NOT fail and refuse to sign and implement
the collective-bargaining agreement which has been
found to have been created on November 27, 1988.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request of the above-named Union, put
in writing, sign, and put into effect, retroactively to
November 27, 1988, the collective-bargaining agree-
ment which the Union accepted that date.
WE WILL make whole, with interest, all employees
to whom the November 27, 1988 collective-bargaining
agreement applies, for all lost wages and other benefits
they may have suffered as a result of our failure to
sign an agreement containing our November 17, 1988
proposals and from our withdrawal of recognition from
the Union on November 28, 1988.
AUCIELLO IRON WORKS, INC.
Avrom J. Herbster, Esq., for the General Counsel.
John D. O’Reilly III, Esq. (O’Reilly & Grosso), of Fra-
mingham, Massachusetts, for the Respondent.
563AUCIELLO IRON WORKS
1 All dates hereafter are in 1988, unless otherwise indicated.
2 I granted General Counsel’s oral motion at the hearing to amend the com-
plaint so the unit description would read: ‘‘All production and maintenance
employees (as defined in Section 1 of the [parties’] 1985–1988 contract) em-
ployed by the Employer at its Hudson, Massachusetts facility, but excluding
all office clerical employees, guards and supervisors as defined in the Act.’’
All parties agree this unit is appropriate for collective-bargaining. I so find.
3 I am mindful that Bickerstaff Clay Products, Co., 286 NLRB 295 (1987),
enf. denied 871 F.2d 980 (11th Cir. 1989), in which the Board held an accept-
ance which preceded offer withdrawal established a binding agreement, con-
tains Judge Robertson’s and the Board’s treatment of the good-faith doubt
issue. No reason for such discussion in Bickerstaff is apparent.
Inasmuch as the Board, in Bickerstaff, did not overrule well-established
precedent holding irrelevant an employer’s good-faith doubt of union majority
status once agreement on a contract’s substantive terms has been reached
(North Bros. Ford, 220 NLRB 1021, 1022 (1975); Utility Tree Service, 215
NLRB 806, 807 (1974)), I consider it proper, in all the instant circumstances,
to eliminate the good-faith doubt issue from my further consideration.
4 The operative facts are substantially undisputed. Where material variations
exist, they shall be resolved. My description of facts in this, section III of the
decision, is a composite of undisputed testimony, documentary evidence and
stipulations. Not all evidence, or argument based on it, is reported. Omitted
matter is deemed irrelevant, superfluous or of no probative value to the prin-
cipal issue.
Robert Thomas, General Organizer, of Smithfield, Rhode Is-
land, for the Charging Party.
DECISION
NORMAN ZANKEL, Administrative Law Judge. This case
was tried before me on June 21 and August 8 and 9, 1989,
at Boston, Massachusetts, on a complaint and notice of hear-
ing issued on January 20, 1989, by Michael F. Walsh, Esq.,
Acting Regional Director for Region 1 of the National Labor
Relations Board (the Board).
The complaint, based on a charge and an amended charge
filed on December 1, 19811 and January 17, 1989, respec-
tively, alleges that since on or about November 28 the Em-
ployer refused to bargain with the Union as exclusive collec-
tive-bargaining representative of an appropriate unit of em-
ployees,2 in violation of Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act (the Act), by refusing to execute
a written collective-bargaining agreement and by with-
drawing recognition from the Union as bargaining agent for
those unit employees.
The Employer filed a timely answer to the complaint. The
answer admitted certain allegations, but denied the Employer
committed the alleged unfair labor practice.
All parties were given full opportunity to produce relevant
evidence through witnesses and documents; to examine and
cross-examine witnesses; and to make oral arguments.
Posthearing briefs were timely received from counsel for the
General Counsel and counsel for the Employer.
Based on my observation of the conduct and demeanor of
the witnesses, and the record as a whole, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Jurisdiction is uncontested. The Employer, a corporation
engaged in business as a metal fabricator, has had an office
and place of business in Housing, Massachusetts, at all mate-
rial times. During the calendar year immediately before com-
plaint issuance, the Employer sold and shipped products,
goods, and materials exceeding $50,000 in value from its
Housing facility directly to points outside of Massachusetts;
and, in the same period and at the Housing facility, pur-
chased and received products, goods and materials exceeding
$50, 000 in value directly from points outside of Massachu-
setts.
The Employer admits, the record reflects, and I find that
it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
All parties agree, the record reflects, and I find, the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ISSUE
Did the September-November 1988 collective-bargaining
negotiations between the Employer and Union result in an
agreement to which they were bound and which precluded
the Employer from lawfully withdrawing recognition from
the Union based on an assertion of good-faith doubt of the
Union’s majority status?
I shall find a collective-bargaining agreement between the
Employer and Union came into existence on November 27,
1988, and that, consequently, the Employer’s admitted No-
vember 28 withdrawal of recognition from the Union was
unlawful.
I find the stated question encompasses the principal, and
dispositive, issue of the instant case. As noted above, the
Employer admitted it withdrew recognition from the Union.
But the Employer asserts that action was based on objective
considerations which caused it to have a good-faith doubt of
the Union’s majority status. Both counsel for the General
Counsel and for the Employer vigorously, and fully, litigated
the sufficiency and timeliness of the withdrawal of recogni-
tion.
In view of my disposition of the principal issue, I con-
clude no useful purpose would be served by a discussion and
analysis of the good-faith doubt issue. See Belcon, Inc., 257
NLRB 1341, 1346 (1981), where the Board left undisturbed
Judge Myatt’s explicit conclusion it is unnecessary to deal
with that issue in situations where the facts establish a
union’s acceptance of collective-bargaining proposals before
an employer withdraws its offer.3
III. THE ALLEGED UNFAIR LABOR PRACTICE4
A. Background
The Board certified the Union as the exclusive collective-
bargaining representative of the employees within the appro-
priate unit described in footnote 2, above, in 1977. Since that
time, the Union and Employer negotiated four successive
collective-bargaining agreements which applied to those unit
employees. The most recent of those contracts was due to,
and did, expire on September 25, 1988.
Generally, the relationship between the contracting parties
was uneventful through the years. The Union conducted no
strikes and pursued no grievances or arbitrations until the in-
stant dispute.
564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Thomas testified the meeting was on October 4. Sauer claimed it was on
the following day. There is no need to resolve this difference.
B. Scenario of the Present Dispute
The Employer and Union began negotiations for a new
collective-bargaining agreement on September 21. Robert
Thomas, International Representative/General Organizer;
Local Business Agent (then Local president), David
Mortimer; and Steward Joseph Parenti comprised the Union’s
negotiating team. Attorney John D. O’Reilly III; Gerald C.
Sauer, the Employer’s controller; and Plant Supervisor
Manlio DeGrandis were the Employer’s team. The Union
presented its written proposal for a new contract. Some
agreements, characterized as preliminary, were reached but
major substantive subjects remained unresolved.
The next bargaining session occurred on September 30.
The Employer presented its written contract proposals. Ex-
tensive discussion ensued regarding wages, medical insurance
premiums, and pension plan. There is disagreement among
Thomas, Mortimer, and Sauer as to whether or not the nego-
tiators reached total agreement on a new contract’s terms
during this session. This disagreement need not be resolved.
I find it irrelevant because it is undisputed that a vote among
the union membership was taken immediately following the
bargaining session that day, and whatever was presented to
them had been rejected.
The negotiating teams again met on October 4 or 5.5 They
reviewed their respective positions on the contract issues. At
one point, Thomas met privately with Attorney O’Reilly.
Thomas testified (without contradiction) he suggested that if
the Employer, in effect, would adopt a union contract pro-
posal as its own, there would be no need for the negotiating
committee to submit the proposal to the union membership
for a vote. O’Reilly did not accede to this suggestion.
Another negotiating session was held on October 13. The
Employer modified its proposal on health insurance pre-
miums to address the apparent reason for membership rejec-
tion on September 30, but also reduced its wage proposal.
The union negotiators said they could not agree to these pro-
posals but nonetheless would submit them to a membership
vote, at a meeting already scheduled for that evening, with-
out a recommendation for acceptance.
At that evening’s union meeting, the union membership
voted to reject the Employer’s October 13 proposal, and
voted to strike. A strike began on October 14.
On October 18, the negotiating teams met in the presence
of a federal mediator. The Union made another proposal for
medical insurance premiums and wages. The Employer’s bar-
gaining team made no commitment concerning those pro-
posals. The parties met again on October 26, but no progress
was made toward agreement on a new contract.
On November 17, the negotiating teams met. The mediator
was present. The Employer presented numerous proposals.
Oral proposals were made on medical insurance premiums,
wages, and overtime. Written proposals were made which re-
lated to grievance arbitration, supervisory performance of
bargaining unit work, and management rights. The written
proposals contained extensive changes in provisions of the
recently expired collective-bargaining agreement.
The union team requested a caucus to study the proposals.
Upon examination, the team decided more time was needed.
They asked for adjournment of that bargaining session. The
mediator advised the Employer’s team of this request. Sauer
testified the union negotiators ‘‘stormed by’’ the Employer’s
team. Thomas and Sauer agree the Union did not expressly
reject the Employer’s November 17 proposals; and Sauer,
during his cross-examination, acknowledged that the Em-
ployer had not removed those proposals from the bargaining
table on that date.
On or about November 20, Thomas telephoned Attorney
O’Reilly. Thomas asked whether there would be any advan-
tage to sitting down and negotiating to arrive at an agree-
ment. O’Reilly said he did not envision any change in the
Employer’s position. There is no evidence to show either that
Thomas said the Union rejected the Employer’s November
17 proposals or that O’Reilly said those proposals had been
withdrawn. Sauer testified O’Reilly reported this telephone
conversation to him but Sauer, even then, acknowledged no
instructions were given to O’Reilly to withdraw the pro-
posals.
After his November 20 conversation with O’Reilly, Thom-
as telephoned Mortimer and instructed him to contact the
employees, inform them what occurred, and recommend they
accept the November 17 proposals and end the strike.
Mortimer complied. Mortimer testified he reached 8–10 em-
ployees.
On November 26, Mortimer reported to Thomas that the
employees he polled agreed to accept the November 17 pro-
posals and return to work.
On November 27, Thomas sent a telegram, signed with
Mortimer’s name, to Auciello, as follows:
After careful consideration the proposed contract sub-
mitted by your company on November 17 1988 to
Local Union 501 has(sic) unanimously ratified by our
negotiating committee. The strike at your plant has con-
cluded as of this date and employees have been advised
to return to work on Monday November 28, 1988.
Auciello received the Union’s telegram on November 27.
The next day, O’Reilly telegraphed the Union, stating:
Employer position in response to your notice of No-
vember 27 is as follows: 1. Employer offer of Novem-
ber 17 was rejected by Local 501 and is no longer open
for unilateral acceptance. 2. In any event your claimed
ratification [sic] limited to negotiating [sic] committee
and excluding rank and file membership is insufficient.
Employer now has reason to believe that Local 501 no
longer represents a majority of employees in the appro-
priate unit and therefore disavows any obligation to
carry on further negotiations.
The strike ended as stated in the Union’s November 27
telegram, but the Employer has remained steadfast in its re-
fusal to sign a collective-bargaining agreement containing the
terms of the Employer’s November 17 proposals and in its
withdrawal of recognition from the Union.
C. Analysis
(1) The ratification issue
The Employer, in part, contends that ratification of nego-
tiated contract terms by the applicable bargaining unit em-
ployees was a precondition to the formation of a collective-
565AUCIELLO IRON WORKS
6 The Employer also urges that, even if ratification were not needed to es-
tablish a contract, the offer which the Union purportedly accepted had been
withdrawn prior to acceptance. This argument will be addressed further below.
7 Indeed, I conclude Thomas’ October 4 or 5 solicitation of an Employer
proposal which would not be subject to union membership vote tends to sup-
port the view that the Employer had been told implicitly that ratification was
not a condition precedent to a binding agreement.
bargaining agreement with the Union. The General Counsel
argues that the instant circumstances show ratification was
not a requirement for an enforceable agreement to come into
existence.6
The evidence regarding past practice of ratification, and
what was said and done in that connection during the 1988
negotiations is critical to resolution of this case. Thomas and
Mortimer testified with respect to ratification practices with
the Employer. Ralph Auciello, Employer’s vice president for
production, and Sauer, testified as to the Employer’s perspec-
tive of ratification. I credit the testimony of each of these
witnesses, especially respecting ratification. Each of them
was direct, forthright, and candid. The relevant evidence re-
garding ratification follows.
It is undisputed that neither the Ironworkers’ International
constitution nor the bylaws of the Local Union contains any
provision regarding ratification of collective-bargaining
agreements. Mortimer acknowledged the terms agreed-to at
the bargaining table in each of the three previously-nego-
tiated contracts were submitted by the Union’s negotiating
committee to the membership for a vote. He said the agree-
ments were ratified ‘‘as a matter of course.’’
Thomas explicitly denied the union negotiators ever told
their Employer counterparts that membership ratification was
needed ‘‘before there would be a final contract’’ during the
1988 negotiations (Tr. 26). He was unchallenged in that con-
nection.
Auciello initially testified, in general terms, that the
‘‘Union committee always stated that they must have a ratifi-
cation of the men’’ (Tr. 162). During cross-examination,
however, Auciello explained that he had not personally par-
ticipated in the negotiations, but relied on Sauer for reports.
Then, Auciello conceded that Sauer did not inform him that
the union negotiators said that ratification was needed before
the parties had an agreement. Instead, Auciello testified he
had been advised the union committee was going to make
recommendations to the membership for a vote, and that was
consistent with past practice.
Sauer, referring to the negotiations conducted in years be-
fore 1988, was asked and answered questions as follows,
during his direct examination:
Q. Did they [the Union] reach agreement with your
committee across the table and then express a need to
have that agreement ratified?
A. That is correct.
Q. And did they, in fact, go through the ratification
process in each of these negotiations?
A. Yes, they had . . . .
Q. And did they, subsequent to the ratification pro-
cess, report back to management the results of the rati-
fication vote?
A. That is true. (Tr. 392).
Regarding the 1988 negotiations, Sauer (during his direct
examination) testified that ‘‘after we reached an agreement
with the Union . . . Mr. Thomas said that they had to go
back and have the agreements that we have made across the
table ratified by the rank and file’’ (Tr. 393). However, dur-
ing Sauer’s cross-examination, he conceded that Thomas
‘‘did not say if there wasn’t ratification there would be no
contract’’ (Tr. 420).
In sum, I find the ratification evidence shows:
a. No written mandate existed which required proposed
collective-bargaining agreements to be submitted to union
membership votes before those agreements could become
binding;
b. No explicit discussions occurred between the Employer
and Union during the 1988 negotiations by which the Union
told the Employer that membership ratification was needed
to establish a contract;7
c. The evidence that the Union submitted contract terms
to membership votes in negotiations before 1988, and during
the 1988 negotiations, is insufficient basis to conclude that
the bargaining history shows ratification was a precondition
to reaching a binding agreement in the totality of cir-
cumstances in this case.
Some of that evidence was presented by Auciello as pure
hearsay and in generalized terms. Hence, I find it
unpersuasive.
Sauer’s testimony that union representatives said they
would submit contract terms to membership ratification in
years before 1988 is the strongest evidence supporting the
Employer’s contention. This is especially true when viewed
in the light of the fact (as has been shown) that at least two
membership votes were taken in 1988. Nonetheless, I con-
clude the mere submission to membership votes falls short
of making ratification a requirement of the formation of a
binding agreement.
The Board has consistently held that where there was no
evidence of an explicit agreement between the negotiating
parties about union ratification, the formality of such a vote
by the union membership is not required as the foundation
of a binding collective-bargaining agreement. Newtown
Corp., 280 NLRB 350 (1986); Consumat Systems, 273
NLRB 410, 413 (1984); Martin J. Barry Co., 241 NLRB
1011, 1013 (1978); C & W Lektra Bat Co., 209 NLRB 1038,
1039 (1974), enfd. 513 F.2d 200 (6th Cir. 1975).
In Childers Products Co., 276 NLRB 709 (1985), more
compelling circumstances existed for finding ratification a re-
quirement of contract formation than in the case before me.
The parties, in Childers, signed a memorandum of agreement
containing the terms agreed-to by the negotiators. That
memorandum ended with the line ‘‘THIS AGREEMENT
SUBJECT TO RATIFICATION,’’ although no one discussed
the meaning of the quoted sentence and there was no discus-
sion of ratification during the negotiations. No ratification
vote was taken by the union membership.
The Board left undisturbed Judge Nations’ observation that
‘‘The condition precedent of ‘ratification’ means ratification
as defined by the Union in its internal procedures. There was
no understanding established by the parties during negotia-
tions concerning what the Union meant by ratification’’ (276
NLRB at 711). The Board affirmed the conclusion that those
circumstances supported a finding that the method of ratifica-
tion was within the union’s exclusive control and sustained
566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The principle of union self-determination of sufficiency of ratification is
well-established. See Zayre Department Stores, 289 NLRB 1183 (1988); M &
M Oldsmobile, 156 NLRB 903, 905 (1966); North Country Motors, 146
NLRB 671 (1964).
9 This observation is unaffected by the fact that the Childers union constitu-
tion contained language regarding ratification, while no ratification language
whatsoever appears in the instant case. The Childers language clearly is discre-
tionary.
10 Arguably, Mortimer’s polling of members during the week before accept-
ance can comprise a ratification vote. If so, the instant Employer is divested
of its argument that the membership did not vote to ratify a contract.
11 Apparently believing in the efficacy of its position, the Employer has
cited no authority to support its contentions regarding ratification. In addition
to studying the cases I have cited above, I have examined cases which might
support the Employer’s position contained in an exhaustive analysis of this
subject by Board Chairman Stephens’ concurring opinion in Sacramento
Union, 296 NLRB 477 (1989).
12 I recognize the Employer seeks to justify its withdrawal of recognition
by asserting its good-faith doubt-of-majority argument. For reasons discussed
above, I find it unnecessary to deal with this argument in this analysis.
13 That the language of the Union’s November 27 telegram constitutes an
acceptance is unchallenged.
the finding that a vote of the union’s executive committee
satisfied the ratification issue in Childers.8
I find the instant case analogous to Childers. In both cases,
the parties had no explicit discussion concerning the ratifica-
tion process; no ratification procedure was mandated by the
union constitution or bylaws;9 no formal ratification vote was
taken by the members on the offer which the union accept-
ed;10 and the agreement was accepted by a vote of some
body of the union (here, the Union’s negotiating committee;
in Childers, the executive committee). I conclude application
of the decisional precedent cited above militates in favor of
finding the instant facts show ratification by the union mem-
bers was not required to form a binding collective-bargaining
agreement in the instant case.
Finally, I conclude the Employer’s reliance on the Union’s
submission of contract terms to membership votes in negoti-
ating years before 1988, and even during the 1988 negotia-
tions, as establishing such ratification votes a precondition to
contract formation, is misplaced. Even union negotiator’s re-
marks regarding intention to submit contract terms to a vote
by which employer’s negotiators ‘‘felt’’ or ‘‘understood’’
ratification was a precondition to a binding agreement, were
insufficient to make it so (Seneca Environmental Products,
243 NLRB 624, 627 (1979).
Based upon all the above, I find that the evidence in the
instant case, when assessed in light of the applicable prece-
dent,11 does not show that ratification by the Union’s mem-
bership was a prerequisite to the formation of a collective-
bargaining agreement between the Employer and Union. I
therefore find, in the circumstances of the instant case, a
unanimous vote of the Union’s negotiating committee could
effectively accept a pending offer for a collective-bargaining
agreement.
These findings, however, do not end the inquiry. It is
equally important to determine whether or not the Employ-
er’s November 17 proposals remained in existence as a con-
tract offer when the Union signified its unanimous ‘‘ratifica-
tion.’’
(2) Withdrawal of recognition
There is no dispute that the Employer’s extensive oral and
written proposals of November 17 effectively comprised a
complete contract. However, the Employer, contrary to the
General Counsel and Union, argues its proposals were re-
jected when the Union team ‘‘stormed’’ out from the No-
vember 17 negotiations,12 and there was no offer pending
that the Union could have accepted13 by the Union on No-
vember 27.
Under Board law, the formation of collective-bargaining
agreements is not necessarily controlled by technical rules of
contract law. Ben Franklin National Bank, 278 NLRB 986
fn. 2 (1986). The Board’s policy regarding offer and accept-
ance of collective-bargaining agreement terms was summa-
rized by Judge Harmatz in Pepsi Cola Bottling Co., 251
NLRB 187, 189 (1980), enfd. 659 F.2d 87, 90 (8th Cir.
1981), as follows:
[A] complete package proposal made on behalf of ei-
ther party through negotiations remains viable, and
upon acceptance in toto must be executed as part of the
statutory duty to bargain in good faith, unless expressly
withdrawn prior to such acceptance, or defeased by an
event upon which the offer was ex- pressly made con-
tingent at a time prior to acceptance.
The Eighth Circuit’s enforcement decision approved this
policy (see fn. 4, the Court’s decision), and restated it this
way:
Under this policy (of the National Labor Relations
Board), an offer, once made, will remain on the table
unless explicitly withdrawn by the offeror or unless cir-
cumstances arise which would lead the parties to rea-
sonably believe that the offer had been withdrawn.
Clearly, there is neither evidence nor contention that the
instant Employer expressly withdrew its November 17 con-
tract proposals any time before the Union’s November 27 ac-
ceptance telegram. Thus, the focus turns to an examination
of whether or not the evidence supports a conclusion that
some event occurred which ‘‘defeased’’ the proposals, or
from which the parties could ‘‘reasonably believe’’ they had
been withdrawn. I conclude the record does not contain suffi-
cient evidence from which it can be found that the November
17 proposals were no longer open for acceptance on Novem-
ber 27.
As noted above, the Employer theorizes there was no offer
open for acceptance. The only evidence to support such a
theory shows the union team ‘‘stormed’’ away from the No-
vember 17 bargaining session. However, there is no evidence
that any member of the union team made any contempora-
neous remarks, during the team’s angry exit from that ses-
sion, which could be interpreted as a rejection of the Em-
ployer’s proposals.
Moreover, I find the contents of Attorney O’Reilly’s con-
versation with Thomas on or about November 20 illu-
minating, and contrary to the Employer’s position. No evi-
dence was presented to show either that there was an express
withdrawal of the November 17 proposals during that phone
discussion or that anything was said which indicates either
of the parties believed the Union’s November 17 actions con-
stituted circumstances which formed a foundation of a rea-
sonably based conclusion the proposals had been withdrawn.
567AUCIELLO IRON WORKS
14 This unit description conforms to the parties’ agreement (see fn. 2 above).
15 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
If the Employer believed its proposals had been rejected, I
find it reasonable to expect something to that effect would
have been said during the Thomas-O’Reilly phone conversa-
tion.
Viewing the evidence in a light most favorable to the Em-
ployer, it is arguable that the Union’s November 17 actions
reasonably give rise to a conclusion the Employer’s pro-
posals had been rejected. Such conclusion, however, would
not compel adoption of the Employer’s position.
There is nothing in the Board’s or court’s Pepsi Cola deci-
sion which licenses or contemplates the kind of unilateral
judgment the Employer espouses in this case. As I under-
stand the Pepsi Cola language, the special circumstances
which might permit a determination that contract offers have
been withdrawn are those from which both parties to nego-
tiations could reasonably draw the same conclusion. No party
has cited, nor has my independent research uncovered, any
cases which disengage parties from the statutory collective-
bargaining scheme simply upon their separate opinions and
surmise of the effects of the other’s conduct.
Moreover, even assuming the Employer unilaterally could
presume its proposals had been rejected, and that presump-
tion were correct, it is clear that the initial rejection could
be revoked at any time before an effective withdrawal. This
is so because federal labor policy and principles encourage
the formation of collective-bargaining agreements as a stabi-
lizing factor in labor-management relations (Pepsi Cola,
supra; Penasquitos Gardens, 236 NLRB 994, 995 (1978),
enfd. 603 F.2d 225 (9th Cir. 1979).
In conclusion, I find the Employer’s November 17 pro-
posals were open for acceptance on November 27 and the
Union’s November 27 telegram constituted their acceptance
before withdrawal so as to create a binding collective-bar-
gaining agreement between those parties. Accordingly, I also
find the Employer’s November 28 withdrawal of recognition
untimely, as it occurred during the term of the contract
which became effective the previous day (Consumat Systems,
supra, fn. 4 and cases cited therein; Belcon, Inc., supra).
On the basis of the above factual findings and upon the
entire record in the case, I make the following
CONCLUSIONS OF LAW
1. Auciello Iron Works, Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Shopmen’s Local Union No. 501, a/w International As-
sociation of Bridge, Structural and Ornamental Iron Workers
(AFL–CIO) is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees, including
working foremen, engaged in the fabrication of iron, steel,
metal, and other products, or in maintenance work in or
about the vicinity of the Employer’s Hudson, Massachusetts
facility, but excluding all office clerical employees, guards
and supervisors as defined in the Act (except working fore-
men) constitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act.14
4. Ratification, by the Union’s general membership, of
terms for collective-bargaining agreements between the Em-
ployer and Union involved in this case is not required to
form a binding collective-bargaining agreement.
5. The Employer’s November 17, 1988 proposals for a
collective-bargaining agreement remained pending for accept-
ance on November 27.
6. The Union’s November 27, 1988 telegram constituted
acceptance of the Employer’s November 17 proposals and
created a collective-bargaining agreement which the parties
are bound to sign.
7. The Employer’s November 28, 1988 withdrawal of rec-
ognition from the Union was untimely.
8. By failing to sign a collective-bargaining agreement
containing the terms of the November 17 proposals, the Em-
ployer engaged in, and is engaging in, a refusal to bargain
in violation of Sections 8(a)(5) and (1) of the Act.
9. By having withdrawn recognition from the Union on
November 27, 1988, the Employer engaged in, and is engag-
ing in, a refusal to bargain in violation of Sections 8(a)(5)
and (1) of the Act.
10. The unfair labor practices identified above in Conclu-
sions of Law 8 and 9 affect commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
The unfair labor practices found require that the Employer
be ordered to cease and desist from continuing them and to
take certain affirmative action designed to effectuate the poli-
cies of the Act.
To rectify the Employer’s unlawful failure to sign and im-
plement a collective-bargaining agreement, and its untimely
withdrawal of recognition, I find it necessary to order the
Employer, upon the Union’s request, to reduce to writing,
sign, and retroactively implement the collective-bargaining
agreement which I have found was created on November 27,
1988.
Also, I will order the Employer to make whole all employ-
ees to whom the aforesaid collective-bargaining agreement
applies for any loss of wages and other benefits suffered as
a result of the Employer’s failure to sign and give timely ef-
fect to that agreement. Those wages and benefits, if any,
shall be computed in accordance with the Board’s formula in
Ogle Protection Service, 183 NLRB 682 (1970), with interest
computed under New Horizons for the Retarded, 283 NLRB
1173 (1987).
Further, the order will require the Employer to refrain
from, in any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of their rights
which the Act guarantees.
Finally, the Employer will be ordered to post an appro-
priate notice to employees.
On the above findings of fact, conclusions of law, and the
entire record, I issue the following recommended15
ORDER
The Respondent, Auciello Iron Works, Inc., Hudson, Mas-
sachusetts, its officers, agents, successors, and assigns, shall
1. Cease and desist from
568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
(a) Withdrawing recognition from the Union as the exclu-
sive collective-bargaining representative of employees in the
bargaining unit found appropriate.
(b) Failing and refusing to sign and implement the collec-
tive-bargaining agreement which has been found to have
been created on November 27, 1988.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On the Union’s request, reduce to writing, sign, and
implement retroactively to November 27, 1988, the collec-
tive-bargaining agreement which the Union accepted on that
date.
(b) Make whole all employees to whom the November 27,
1988 collective-bargaining agreement applies, including such
employees who may have left the payroll since that date, for
any loss of wages or other benefits suffered by reason of the
Employer’s failure to sign that collective-bargaining agree-
ment and its withdrawal of recognition from the Union.
Monies due under this make-whole provision are to be com-
puted according to the formulas described in the remedy sec-
tion above.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary and rel-
evant to determine the amounts owing under the terms of this
Order.
(d) Post at its Hudson, Massachusetts facility copies of the
attached notice marked ‘‘Appendix.’’16 Copies of the notice,
on forms provided by the Regional Director for Region 1,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.