Branch Cheese

National Labor Relations Board - Board Decisions

Apr 23, 1992

307 N.L.R.B. 239 (N.L.R.B. 1992)

239
307 NLRB No. 35
BRANCH CHEESE
1 The name of the Union has been changed to reflect the new offi-
cial name of the International Union.
2 Television Station WVTV, 250 NLRB 198 (1980), and Holiday
Inn of Fort Pierce, 225 NLRB 1092 (1976).
B.C. Acquisitions, Inc., d/b/a Branch Cheese and
Mary Lou Thompson, Petitioner and Drivers,
Warehouse and Dairy Employees Union, Local
No. 75, affiliated with the International Broth-
erhood of Teamsters, AFL–CIO.1 Case 30–RD–
1036
April 23, 1992
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 23, 1991, the Regional Director for Re-
gion 30 issued his Decision and Order in the above-
entitled proceeding, in which he dismissed the petition
finding that a contract bar exists. In accordance with
Section 102.67 of the National Labor Relations Board
Rules and Regulations, the Employer filed a timely re-
quest for review of the Regional Director’s decision on
the ground that substantial issues are raised as to his
finding that a contract bar exists.
By order dated October 31, 1991, the Board granted
the request for review.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the entire record in this
proceeding with respect to the issue under review, and
makes the following findings:
The Union was certified as the collective-bargaining
representative in a unit of the Employer’s production
employees on June 29, 1990. Thereafter the parties
commenced collective-bargaining for an agreement.
The Union submitted its initial proposal in July. After
further negotiations, the Employer presented a ‘‘final
contract proposal’’ to the Union by mail on October
12, 1990. The proposal was a complete collective-bar-
gaining agreement which would, if accepted, have run
from July 1, 1990, to June 30, 1993, and which pro-
vided a wage reopener in July 1991. The proposal was
presented to the unit employees and was rejected.
Negotiations resumed and on December 12, 1990,
the Employer, by counsel, sent the union president a
letter captioned ‘‘Amendment to Company’s Final
Offer’’ which was designed to ‘‘summarize the clari-
fications we discussed at our last meeting and subse-
quently by telephone.’’ The letter clarified three as-
pects of its October 12 proposal, advised that there
would be no changes in the wage proposal, and con-
cluded with the following statement:
I will rewrite the management rights clause. It
will reserve to the Company the right to manage
its business in the way it sees fit and to make pro-
duction decisions which it believes are economi-
cally necessary.
On December 26, 1990, the union president wrote to
the Employer’s counsel advising that ‘‘the Labor
Agreement was ratified 33 yes and 10 no.’’ The letter
made no reference to the December 12, 1990 letter or
to whether the Union had accepted the clarifications of
that letter. The letter closed with a request that the
Employer’s counsel draft the agreement or if the coun-
sel preferred, the union president offered to ‘‘draft up
the Labor Agreement.’’ Two days later, the union
president wrote to all the unit employees advising
them that the agreement was ‘‘being drafted and proof-
read for final signature.’’ On February 6, the union
president again wrote counsel asking about the status
of the draft and requesting that it be prepared ‘‘as soon
as possible.’’
There is no dispute that the parties complied with
the agreement throughout the year.
In June 1991, the Union notified the Employer that
pursuant to the agreement, it desired to reopen the
agreement on a limited number of matters including
wages. The parties met on the reopened matters in
June. On July 18, 1991, the instant petition was filed.
The Regional Director dismissed the petition under
the Board’s contract-bar rules. Relying on Television
Station WVTV and Holiday Inn of Fort Pierce,2 he
concluded that the exchange of letters between the Em-
ployer and the Union ‘‘is tantamount to a signature of
the parties to the contract.’’ In doing so, the Regional
Director found that all that remained to complete the
agreement was to shorten the management-rights
clause and even as to that, the Union’s letter of De-
cember 26 amounted to an acceptance of the language
used by the Employer in his letter of December 12
concerning the management-rights clause. We do not
agree.
The Board has long held that a single formal docu-
ment is not required to serve as a bar to an election
and that a signed exchange of written proposals and
written acceptances can serve to meet the requirements
of our contract-bar rule. However, the documents re-
lied on to meet those requirements must clearly set out
the terms of the agreement and must leave no doubt
that they amount to an offer and an acceptance of
those terms. Such is not the case here.
The Employer’s letter of October 12 presented a full
collective-bargaining agreement. The union employees
rejected that agreement, and on December 12 the Em-
ployer responded by sending a letter containing several
amendments to its offer. That agreement was not ac-
cepted and on December 12 that proposal was amend-
ed. Although the Union’s letter of December 26 noti-
240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Member Oviatt, while agreeing with his colleagues, would also
find that the absence of a clear agreement on the management-rights
clause precludes an agreement that would stabilize the parties’ col-
lective-bargaining relationship.
4 It is not relevant that the parties had put into effect any or all
the contracts’ terms. Appalachian Shale Products Co., 121 NLRB
1160, 1162 (1958).
5 Cf. Eicor, Inc., 46 NLRB 1035, 1037 (1943), in which the Board
noted:
This Board often refuses to conduct representation investigations
where there are in existence valid contracts which evidence that
stability of labor relations has been attained. But experience has
indicated that true stability of labor relations is not obtained
until collective agreements have been reduced to writing and
signed.
fied the Employer of a contract ratification, it did not
indicate whether the membership ratified the offer of
October 12 as originally proposed or the offer as
amended by the letter of December 12. Thus, the
Union’s letter did not attach or incorporate by ref-
erence the specific language that purportedly con-
stitutes the contract. Nor is it clear whether or not the
Union accepted the Employer’s language concerning
the management-rights clause.3
In these circumstances, we conclude that evidence is
not sufficient to establish the identity or the terms of
the purported agreement.4
In addition, although Appalachian Shale indicates
some willingness to honor the parties’ decision to me-
morialize their contract through a more informal ex-
change of documents, 121 NLRB at 1162, the Union
and the Employer here consciously did not opt for that
approach. The evidence shows that they intended to
prepare and execute a formal agreement, which was
not accomplished before the filing of the representation
petition.5
Accordingly, the Regional Director’s conclusion that
the petition is barred by an existing collective-bar-
gaining agreement is reversed, the petition is rein-
stated, and the matter is remanded to the Regional Di-
rector for further appropriate action.