Buschman Co.

National Labor Relations Board - Board Decisions

Jul 5, 2001

334 N.L.R.B. 441 (N.L.R.B. 2001)

BUSCHMAN CO. 441
The Buschman Company and Ironworkers Local 522,
an affiliate of the International Association of
Bridge, Structural, Ornamental & Reinforcing
Ironworkers, AFL–CIO. Case 9–CA–36311
July 5, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On May 11, 1999, Administrative Law Judge William
N. Cates issued the attached decision. The Respondent
filed exceptions and a supporting brief. The Charging
Party filed an answering brief, and the General Counsel
filed a brief 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 decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
1. The judge found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act when it refused to execute
its collective-bargaining agreement with the Union. In
reaching that conclusion, the judge found that a meeting
of the minds existed on all material terms of the agree-
ment, including an effective date. In its exceptions, the
Respondent contends that the parties never reached
agreement on an effective date. For the reasons dis-
cussed below, we find no merit in that contention.
The pertinent facts are as follows. On July 8, 1998,2
the Union and the Respondent began to negotiate a suc-
cessor agreement to the 1993–1998 agreement that was
due to expire on August 6. At that first meeting, the Un-
ion put forward a complete proposal for a proposed new
agreement with an effective date of August 7. On Au-
gust 5, the Respondent gave the Union a typed counter-
proposal, consisting of a list of proposed changes to the
existing agreement. This document was silent as to an
effective date. On the morning of August 6, the Union
made its own handwritten counterproposal listing pro-
posed changes, which was also silent as to an effective
date. The Respondent accepted the Union’s counterpro-
posal. Thus, on August 6, the parties had agreed on con-
tract terms to present to the employees for ratification
later that day.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Charging Party argues that the Respondent’s exceptions and
brief should be disregarded for failing to comply with Sec. 102.46(c)(2)
of the Board’s Rules and Regulations, which provides that briefs shall
specify the questions to be argued and the exceptions to which they
relate. We find no merit in this contention. Although the Respondent’s
brief does not strictly comply with the Board’s Rules, we do not find it
so deficient as to warrant its rejection.
We find merit in the Respondent’s exception to the judge’s failure to
grant its unopposed motion to correct the transcript, and we grant the
motion.
2 All dates refer to 1998 unless otherwise indicated.
The Union then prepared a complete version of the
new agreement, including the agreed-on changes to the
existing contract as well as the unchanged terms, and
containing an effective date of August 7. This document
was distributed to the employees before the ratification
vote. There is no evidence that the Respondent ever re-
viewed, or asked to review, the complete version of the
agreement that was presented to the employees, either
before the August 6 vote or at any time afterwards until
September 4. The employees voted on August 6 not to
ratify the agreement and went on strike.
Beginning immediately after the unsuccessful ratifica-
tion vote, and for some 4 weeks thereafter, the Respon-
dent repeatedly informed the Union and the employees
that it “stood behind” the August 6 agreement and urged
the employees to accept it.4 Thus, on August 6, before
the strike commenced, the Respondent posted a “Notice
to All Employees” from its president, Jim McCarthy,
throughout its facility. The notice stated that the Re-
spondent was disappointed that the employees had voted
not to ratify the agreement but that:

[w]e are resolved to stand behind the Union
Committee and its recommendations of this agree-
ment. . . .
We remain open for work and will continue to
operate and serve all our customers, until the new
Agreement negotiated in good faith over many
weeks and accepted and unanimously by the Union’s
committee, is finally accepted. [Emphasis added.]

3 Before the parties came to an agreement on August 6, William
Engeman, Respondent’s chief negotiator and counsel, proposed that if
an agreement was reached by August 14, it be retroactive to August 10.
There is no evidence in the record of any reply being made to that offer.
4 In this decision, we shall refer, as the judge did, to the document
prepared by the Union and distributed to the employees on August 6 as
the “August 6 agreement,” because it contained the terms and condi-
tions agreed to by the Respondent and the Union on that date. By refer-
ring to this document as an “agreement,” we are simply employing
shorthand language; we do not mean to imply that it was a binding
contract on August 6 or at any other time before it was ratified by the
employees and executed by the Union on September 4, as discussed
below. No party contends that a binding contract was reached before
September 4.
334 NLRB No. 63
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 442
About August 13, the Respondent mailed to all em-
ployees an 8-page document containing a letter from
McCarthy stating, among other things, that the August 6
notice was enclosed, and that “This will remain the Com-
pany’s position.”
On August 21, the Respondent mailed each employee
a video featuring a message from McCarthy. The video
stated that the Union and the Respondent had negotiated
“a good agreement” and that “management stands behind
our negotiated agreement.” At a bargaining session, also
on August 21, the Respondent’s attorney and negotiator
read a prepared statement to the union negotiators which
said, in part:

We want you to know that the Company contin-
ues to stand behind this committee and this agree-
ment. We told you we would stand behind you and
when you said no better terms were available you
would be telling the truth. No better terms were or
will be available. The Company is prepared to let
this situation last indefinitely without any new offer
which would better those terms.

In another letter to all employees, dated August 28,
Human Resources Director Chris Webster again referred
to the August 6 agreement and reiterated verbatim the
August 21 statement quoted above.
Finally, on September 3, Webster told a striking em-
ployee that as far as he knew, the “contract” that the em-
ployees voted down was still on the table.
On September 4, the employees voted to accept the
August 6 agreement and to end the strike. That same
day, the Union presented an executed copy of the ratified
agreement, which included the August 7 effective date,
to the Respondent. The Respondent has refused to exe-
cute the agreement.
On September 8, the Respondent sent a proposed
“strike settlement agreement” to the Union, which con-
tained numerous terms that were not included in the Au-
gust 6 agreement and which had not been the subject of
previous negotiations. The Union rejected the “strike
settlement agreement,” which it characterized as an at-
tempt to modify the August 6 agreement.
On September 13, the Union sent a copy of the signed
August 6 agreement to the International Union for its
approval. The International approved the agreement on
September 17, and on September 23, the Union mailed a
copy of the approved agreement to the Respondent.
As the Respondent correctly notes, the obligation to
execute a collective-bargaining agreement does not arise
unless the parties have reached a meeting of the minds as
to all substantive issues. The General Counsel has the
burden of showing that such a meeting of the minds ex-
isted. In determining whether the General Counsel has
made that showing, the Board is faced with the issue of
intention: did the parties intend to have a contract? New
Orleans Stevedoring Co., 308 NLRB 1076, 1081 (1992),
enfd. 997 F.2d 881 (5th Cir. 1993). We find that the re-
cord amply demonstrates such an intention.
As we have described above, during the period be-
tween August 6 and September 4, the Respondent re-
peatedly stated to employees that it “stood behind” the
August 6 agreement, that no better terms would be of-
fered, and that it would continue to operate and serve its
customers until the new agreement was finally accepted.
The day before the employees ratified that agreement,
Webster told a striker that, to his knowledge, the August
6 “contract” was still on the table. The judge found, and
we agree, that these statements clearly communicated the
Respondent’s position that the Union was, at all times
during that period, free to accept the August 6 agreement
and that when it did so on September 4, it created a bind-
ing contract that the Respondent was required to execute.
We further find no merit in the Respondent’s contention that the parties did not reach a
meeting of the minds on an effective date of August 7 for the new contract. The judge
specifically credited the testimony of Union Business Agent Keith Reeves that the August 6
agreement reached by the Respondent and the Union included an effective date of August
7. This testimony was corroborated by Iron Workers International District Representative
Frederick Clukey, who also participated in the bargaining.5
Moreover, as noted above, during the period between
August 6 and September 4, the Respondent consistently
took the position that the Respondent and the Union had
reached an agreement on August 6, and urged its em-
ployees to ratify that agreement. Thus, the Respondent
repeatedly informed the employees and the Union on and
after August 6 that it “stood behind” the August 6
agreement, that no better terms would be forthcoming,
and that it would continue to operate until the agreement
was accepted. Clearly, during the entire period before
ratification, the Respondent viewed the August 6 agree-
ment as complete with respect to all necessary terms,
including the effective date. Having repeatedly repre-
sented to its employees and to the Union that it “stood
behind” the August 6 agreement, the Respondent cannot

l.
5 Our dissenting colleague discounts this testimony that the agree-
ment had an August 7 effective date. He argues that the document
itself contained no date and that the Respondent also proposed on Au-
gust 6 that, if an agreement was reached by August 14, it would be
retroactive to August 10. We reject this reasoning. As indicated above,
the judge specifically credited Reeves’ testimony, which Clukey cor-
roborated, that the parties had agreed on an August 7 effective date.
That the date did not appear on the document does not detract from that
finding. As for the Respondent’s retroactivity proposal, there is no
record evidence that any response was made, and the fact that the Re-
spondent made the proposal obviously did not preclude it from
concluding an agreement that was inconsistent with the proposa
BUSCHMAN CO. 443
now plausibly argue that there was no agreement or that
the Respondent is not bound by its terms.
Further, to accept the Respondent’s argument that a
contract was not formed upon the employees’ ratification
of the August 6 agreement presents an implausible sce-
nario, i.e., that the parties contemplated further bargain-
ing as to the effective date of the agreement. The record
contains no suggestion that either party envisioned such a
scenario, and neither party ever communicated such an
intention to the employees. To the contrary, the consis-
tent message communicated to the employees was that
ratification of the August 6 agreement was the final step
to a complete and binding agreement.6
Accordingly, under these circumstances, we find, in
agreement with the judge, that the Respondent was obli-
gated to execute the August 6 agreement upon its ratifi-
cation by the employees on September 4.
2. The Respondent also contends that ratification of the
August 6 agreement by the employees on September 4
did not create a binding contract because the August 6
agreement specifically required the International Union’s
approval before it would become binding. The Interna-
tional did not approve the contract until September 17
and, in the interim, the Respondent attempted to modify
the agreement by proposing new terms in the form of the
“strike settlement agreement.” Accordingly, the Re-
spondent argues, even if the August 6 agreement was still
available for acceptance on September 4, it modified its
position on September 8 and thus retracted its offer of the
August 6 agreement on that date, well before the Interna-
tional approved the contract.7 Thus, the Respondent
concludes, no enforceable agreement was ever reached,
because it modified its offer before that offer was effec-
tively accepted. We disagree.
Acceptance of the offer occurred on September 4. The
International’s approval was not a condition to the mak-

6 We note further that the August 7 effective date is consistent with
the parties’ past practice, in that the parties’ most recent prior agree-
ment was effective from August 7, 1993, to August 6, 1998, even
though the record indicates that it was not signed until 1995.
Contrary to the Respondent, we are not imposing a substantive con-
tract term on the parties; we simply find that the effective date of Au-
gust 7 was a term on which the parties had agreed. See, e.g., TNT USA,
Inc. v. NLRB, 208 F.3d 362, 368 (2d Cir. 2000).
7 The Respondent also argues that the Union’s constitution requires
the approval of the International before a contract will be binding.
There is no evidence, however, that this provision was known to the
Respondent during the negotiations. The Board has held that a union
cannot rely on such an undisclosed constitutional requirement to avoid
the binding force of an otherwise valid contract. Electrical Workers
IBEW Local 22 (Electronic Sound), 268 NLRB 760, 763–764 (1984).
As the Union could not avoid being bound by the August 6 agreement
on the basis of its previously undisclosed constitutional requirement of
International approval of the contract, neither can the Respondent avoid
the binding effect of the contract on that basis.
ing of an agreement. The provision relied on by the Re-
spondent clearly stated that “before this Agreement and
any amendments thereto may become binding and effec-
tive, the International must approve this Agreement
and/or such amendments as to form (emphasis added).”
The Board has held that where such approval is merely a
perfunctory or ministerial act, an otherwise valid agree-
ment will be binding on the parties regardless of whether
the approval is actually secured. See North Coast Coun-
ties District Council of Carpenters, 197 NLRB 905, 907
(1972); see also Auto Workers Local 365 (Cecilware
Corp.), 307 NLRB 189, 195 (1992). Fredrick Clukey,
the International’s district representative, testified that
the International’s review would entail only correction of
typographical errors.8 In light of the language of the con-
tract provision and Clukey’s unrebutted testimony, we
find that the International’s approval was merely per-
functory, meant to correct minor errors, rather than as a
condition precedent to a contract’s effectiveness. We
therefore find that the Union effectively accepted the
August 6 agreement on September 4, even though the
International did not approve the agreement until Sep-
tember 17, and thus that the contract was binding on the
parties before the Respondent attempted to modify it on
September 8 by proposing the “strike settlement agree-
ment.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Buschman Company,
Cincinnati, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

MEMBER HURTGEN, dissenting.
Contrary to my colleagues, I do not find that the parties agreed on an effective date for a
new contract. Because the matter of effective date is a material term of a contract,1 I do not
find that the Respondent’s refusal to execute the alleged contract violated Section 8(a)(5)
and (1).
On July 8, 1998, the parties began negotiations for a
new collective-bargaining agreement to replace the one
that was due to expire on August 6, 1998. At the first
negotiation session, the Union made a bargaining pro-
posal that contained an effective date of August 7, 1998.
On August 5, the Respondent presented the Union with a
typewritten counterproposal that contained no effective
date. On August 6, the Union made a counterproposal
that consisted of handwritten changes to the Respon-
dent’s August 5 counterproposal. That document also
8 Thus, contrary to our dissenting colleague, Clukey’s testimony
does indicate what was meant by the requirement that the International
approve the agreement “as to form.”
1 Mercedez Benz of North America, 258 NLRB 803 (1981).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 444
contained no effective date. The Respondent then pro-
posed that, if an agreement were reached by August 14,
all contract provisions would be retroactive to August 10.
The Respondent then accepted the substantive terms of
the Union’s August 6th proposal. The document was
then presented to the employees. The Union unilaterally
inserted an effective date of August 7. The employees
rejected the tentative contract on August 6 and struck.
However, on September 4, the employees voted to ac-
cept the August 6 proposal. On the same day, the Union
signed the proposal and presented it to the Respondent.
The document continued the unilaterally inserted effec-
tive date of August 7. The Respondent has refused to
sign that document.
It is clear that there never was a meeting of the minds
as to the date. The purported contract was based on the
August 6 proposal, and that proposal contained no effec-
tive date. Indeed, the evidence affirmatively establishes
that there was no agreement as to effective date. The
Respondent said that if an agreement were reached by
August 14, the effective date would be August 10. How-
ever, no agreement was reached by August 14, inasmuch
as the employees voted down the proposal on August 6.
In short, the matter of effective date was left up in the air.
As a further indication of the uncertainty as to effec-
tive date, I note that the Union unilaterally inserted an
effective date of August 7. There is no evidence that the
Respondent was aware of, much less agreed to, this date.
As another indication of uncertainty as to date, I note that
the judge referred to an “August 6” agreement, and my
colleagues suggest that it was a September 4 agreement.
The fact is that there was no agreement as to date.
My colleagues rely upon the testimony of two union
representatives who testified that the August 6 proposal
included an effective date of August 7. However, as
noted above, the August 6 proposal document contained
no date. Further, accepting arguendo the above testi-
mony, the fact is that the Respondent counteroffered, i.e.,
proposed that if an agreement were reached by August
14, the contract would be retroactive to August 10. Fur-
ther in this regard, my colleagues note that the Union did
not reply to Respondent’s counteroffer of retroactivity.
However, this does not contradict the fact that the coun-
teroffer remained outstanding. The Union’s failure to
respond to it surely does not establish that the Respon-
dent had agreed to withdraw it or had agreed to accept
the Union’s proposed effective date.
My colleagues rely upon the fact that, at various times
after the employee rejection vote on August 6, the Re-
spondent said it “stood behind” the proposal that the em-
ployees had rejected. I agree that the Respondent “stood
behind” the August 6 proposal. However, as discussed,
the August 6 proposal contained no effective date.
Finally, even if there were a full agreement (including
date), that agreement was subject to approval by the In-
ternational Union. There is no indication that the Inter-
national had approved it prior to Respondent’s rejection
of it on September 8. My colleagues rely upon the Union
representative’s testimony that the International’s review
would entail only the correction of typographical errors.
If that were true, one would think that this would have
been quickly accomplished. Further, even assuming ar-
guendo the validity of this self-serving testimony, there
is no evidence that Respondent understood that to be
true. In these circumstances, it has not been established
that International action was purely ministerial.

Naima R. Clarke, Esq., for the General Counsel.
William K. Engeman, Esq. and Jeremy P. Blumenfeld, Esq., for the Respondent.
Robert H. Mitchell, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This is an unfair labor practice case
prosecuted by the National Labor Relations Board’s (Board) General Counsel acting through
the Regional Director for Region 9 of the Board following an investigation by Region 9’s staff.
The Regional Director for Region 9 issued a complaint and notice of hearing (complaint) on
November 30, 1998, against The Buschman Company (Company) based on an unfair labor
practice charge filed on October 2, 1998, by Ironworkers Local 522, an affiliate of the Interna-
tional Association of Bridge, Structural, Ornamental & Reinforcing Ironworkers, AFL–CIO
(Union). I heard the case in trial in Cincinnati, Ohio, on March 1 and 2, 1999.
Specifically, the complaint alleges the Company, on or about September 4, 1998, failed and
refused to reduce to writing and execute an agreed-upon contract with the Union containing the
terms and conditions of employment of its production, maintenance, and janitorial employees.
It is alleged the Company’s failure to execute such an agreement violated Section 8(a)(5) and
(1) of the National Labor Relations Act (Act).
In its answer to the complaint, the Company admits the Board’s jurisdiction is properly in-
voked,1 and that the Union is a labor organization within the meaning of the Act.2 The Com-
pany denies violating the Act in any manner set forth in the complaint. Rather the Company
contends no offer was “on the table” at the time the Union purported to ratify one. The Com-
pany asserts its contract proposal was specifically rejected by a union membership vote and
expired before the Union belatedly attempted to ratify or accept the expired proposal. The
Company further contends there was no “meeting of the minds” on all substantive issues at the
time of the purported acceptance of the expired proposal by the Union.
I have studied the whole record, the parties’ briefs, and the authorities they rely on. Based
on more detail findings and analysis below, I conclude and find the Company violated the Act

1 The Company is a corporation engaged in the manufacture and in-
stallation of material handling systems, such as conveyors, at and out of
its Cincinnati, Ohio facility. During the 12 months preceding issuance
of the complaint herein, the Company, in conducting its operations
purchased and received at its Cincinnati, Ohio facility goods valued in
excess of $50,000 directly from points outside the State of Ohio. The
parties admit, the evidence establishes, and I find the Company is an
employer engaged in commerce within the meaning of Sec. 2(2), (6),
and (7) of the Act.
2 The evidence establishes, the parties admit, and I find the Union is
a labor organization within the meaning of Sec. 2(5) of the Act.
BUSCHMAN CO. 445
substantially as alleged in the complaint and have recommend it cease and desist from the
conduct found to be unlawful. I have recommended an appropriate remedy.
FINDINGS OF FACT
In attempting to establish or defend against the allegations set forth in the complaint the parties
entered into certain factual stipulations and presented numerous exhibits. Additionally, the parties
called some seven witnesses. I carefully observed the witnesses as they testified and have utilized
my observations in arriving at the facts outlined below. I note certain (most) essential facts are
undisputed. In setting forth some of the uncontradicted facts I have attributed such to certain
witnesses. Where necessary to do so, credibility resolutions have been set forth. In general, my
credibility resolutions are based on my observations of witnesses’ demeanor, the weight of the
evidence, established or admitted facts, and inherent probabilities and reasonable inferences which
may be made from the record as a whole. To the extent that testimony or evidence not mentioned
in this decision may be perceived to contradict my findings of fact, I have not disregarded that
evidence but have rejected it as incredible, lacking in probative weight, surplusage, or irrelevant.
The Company manufactures and installs material handling systems, such as conveyors, and
has a work force at any given time of approximately 600 to 650 employees of which approxi-
mately 320 to 350 are bargaining unit employees. The Company and Union have been parties
to a number of successive collective-bargaining agreements. The most recent of which was
effective by its terms from August 7, 1993, to August 6, 1998.
The Union is the collective-bargaining representative of the following employees (unit) of
the Company:

All production, maintenance, and shop janitorial employees employed by [the Company] at or
in the vicinity of its Cincinnati, Ohio facility, excluding all office and clerical employees,
draftsman, engineering employees, watchmen and all professionals, guards and supervisors as
defined in the Act.

The parties began negotiations toward a new collective-bargaining agreement on or about
July 8, 1998.3 The parties negotiated over certain changes from their most recent collective-
bargaining agreement, with those items not specifically negotiated remaining as in the previous
agreement. According to Union Business Agent Reeves the parties focused primarily on wages,
health (hospitalization) insurance, temporary assignments, and seniority. The Union presented
a “Proposed Agreement” to the Company at the parties July 8, 1998 negotiating session. The
parties met a number of times between July 8 and August 6, 1998. At the August 5, 1998
bargaining session the Company presented its proposal for a 5-year collective-bargaining
agreement “Upon ratification August 6.” The Union made a counterproposal to the Company’s
August 5, 1998 proposal; and, on August 6, 1998, the parties arrived at a collective-bargaining
agreement (the August 6 Agreement). According to Union Business Agent Reeves, whose
testimony on this point I specifically credit, the parties agreed to a contract duration of 5 years
starting on August 7, 1998. Reeves testified: “[t]hat was for a five year agreement so the
agreement would stay in effort until midnight of August the 6th, 2003.” The negotiators shook
hands and expressed relief they had arrived at an agreement.
The union negotiating committee presented the August 6 greement to its membership for a
ratification vote at 2 p.m. on August 6, 1998. The membership declined to ratify the agreement
by a vote of 254 to 53. The membership voted not to reconsider the August 6 agreement
thereafter. The membership voted to and went on strike at midnight that same date. Business
Agent Reeves testified the Union’s negotiating committee telephoned Company Vice President
Yarberry to advise him the agreement had been voted down and requested the parties meet.
Yarberry stated the Company would meet with the Union to explain things but not to negotiate.

3 The Company was represented in negotiations by its attorney, Wil-
liam Engeman, Human Resources Director Chris Webster, Vice Presi-
dent Lee Yarberry, and Plant Manager Keith Wells. The Union was
represented by Business Agent Keith Reeves, General Organizer Wil-
liam Purdy, District Representative Fredrick Cluckley, General Organ-
izer John Urbauer, and a number of bargaining unit members. The
bargaining unit employees members were: Curtis Turner, Hugh Dotson,
Elizabeth Knorr, Glenn Rice, Heather Abrahms, Dan Hicks, and Rox-
anne Keith.
Business Agent Reeves credibly testified Vice President Yarberry stated, “[W]e stand behind
the committee and . . . behind [Reeves] that we have an agreement.” Reeves told Yarberry,
they were “back to our original proposal and that as of midnight the employees would be on
strike.”
On August 6, 1998, prior to the start of the strike the Company posted copies of a “Notice
to All Employees” from Company President Jim McCarthy throughout its facility that read in
part as follows:

We were notified this afternoon that Local 552’s
membership voted to strike your Company against the
unanimous recommendation of their Negotiators and Un-
ion Committee that the new Agreement be accepted.
This is disappointing to all of us who have worked
hard to build this Company. However, we are resolved to
stand behind the Union Committee and its recommenda-
tions of this agreement. . . .
We remain open for work and will continue to operate
and serve all our customers, until the new Agreement ne-
gotiated in good faith over many weeks and accepted and
unanimously by the Union’s committee, is finally ac-
cepted.

Within a week of the strike, Union Business Agent Reeves and Company Attor-
ney/Negotiator Engeman spoke. Reeves testified Engeman suggested Human Resources
Director Webster and Reeves conduct meetings with small groups of the employees and explain
the economic package of the August 6 agreement to the employees. The Union rejected
Company Attorney/Negotiator Engeman’s suggestion.
On or about August 13, 1998, the Company, by certified mail sent each employee an eight-
page document containing, among other items, a letter from Company President McCarthy in
which he stated in pertinent part:

We promised to keep you advised of developments.
You should know that yesterday we contacted the Union
negotiator. We affirmed the Company’s resolve to go no
further than the August 6 agreement which they had
unanimously recommended for your ratification, and that
nothing that happened since that time had changed the
facts we discussed.
We offered to share these facts with you in a series of
meetings next week as you are most affected by the loss of
pay and business associated with this situation. Today the
Union negotiator, for some reason, was reluctant for us to
address these matters together. We feel the facts are im-
portant, however, to your personal decision as whether to
support your Union’s recommendation of the August 6
Agreement.

Company President McCarthy in two other paragraphs of his letter explained, in some de-
tail, what the parties had negotiated in the August 6 Agreement. Company President McCarthy
wrote; “These are the facts that made your committee accept this Agreement and unanimously
recommended ratification.” Company President McCarthy continued in his letter:

We are aware of the published criticisms of the agreed
terms. So that you have a complete understanding, we
have attached a copy of the union counter proposal of
8/6/98 at 10:30 a.m. so you can see the terms now ‘too lit-
tle-too long’ were the terms your own committee pro-
posed. They also exceed the 3% year five year agreement
that Local 522 had just signed with another local em-
ployer. I enclose also my published notice to employees
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 446
of August 6, 1998. This will remain the Company’s posi-
tion.

On August 21, 1998, the Company mailed each employee a videotaped message from
Company President McCarthy. In the videotaped message President McCarthy stated in part:

My purpose here today is to insure there are no misun-
derstandings with regard to the actions that have been
taken over the last six weeks, during the negotiating period
up to August 6th and afterwards, when it was decided that
there would be a strike at our Company.
We began our negotiations with the union negotiating
committee on July 8, 1998. We met regularly and negoti-
ated what we believe to be a good agreement. Contrary to
what you may have heard and what the Union negotiating
committee is now purported that was unanimous, and I’ll
say it again, unanimous acceptance.
Since the ratification vote, the Union and some of the
negotiating committee have distance themselves from the
agreement but that does not change the facts that there was
an agreement based upon real bargaining and real facts.

Company President McCarthy then reviewed the Company’s actions during the negotia-
tions and expressed the need for the Company to stay competitive. President McCarthy in his
videotaped speech told the employees the Company’s management recognized the contribution
of the work force and had attempted to reward that contribution in the agreement that was
negotiated. Company President McCarthy concluded his videotaped presentation by stating in
part:

We’ve announced management stands behind our ne-
gotiated agreement. We are continuing to operate the
Company as usual and have excellent support from over
450 Buschman people who have worked hard over the last
two weeks to make sure that we have met every single
customer commitment. We know our people can meet
every single customer commitment indefinitely.

Union Business Agent Reeves testified Federal Mediator Earl Leonhardt called the parties
to a meeting on August 21, 1998. Company Attorney/Negotiator Engeman attempted to tape-
record the meeting, however, the Federal Mediator and Union objected. The meeting was not
recorded. Union Business Agent Reeves stated, Company Attorney/Negotiator Engeman did
most of the talking at the meeting. Reeves credibly testified Engeman “stated we could vote no
as many times as we wanted on the [August 6] agreement, that it didn’t matter, that that’s all
there was, there’d be no more.” According to Reeves a portion of the meeting was taken up by
Company Attorney/Negotiator Engeman reading a prepared statement portions of which
follow:

We want you to know that the Company continues to
stand behind this committee and this agreement. We told
you we would stand behind you and when you said no bet-
ter terms were available you would be telling the truth.
No better terms were or will be available. The Company
is prepared to let this situation last indefinitely without any
new offer which would better those terms.

Company Human Resources Director Webster’s notes made at the August 21, 1998 meet-
ing attributes the following remarks to Company Attorney/Negotiator Engeman.

Bill E. [Engeman]: We are staying with our position
we have no other offer and we are standing on it and we
continue to back the Bargaining Committee and the
Agreement we reached.

Union Business Agent Reeves credibly testified that following Company Attor-
ney/Negotiator Engeman’s comments, both extemporaneous and prepared, Mediator Leonhardt
separated the parties speaking with both privately. According to Union Business Agent
Reeves, Mediator Leonhardt told the Union’s negotiating committee Company Attor-
ney/Negotiator Engeman had said, “You have our agreement, you have our offer, that’s it.”
Union Business Agent Reeves said that based on the information from Mediator Leonhardt the
Union mailed a “Special Notice” to its membership on August 24, 1998 which reads in part as
follows:

On Friday, August 21, 1998, the Union Negotiating
Committee attended a meeting that was directed by Fed-
eral Mediation and Conciliation Services with the Busch-
man Company officials. The Company’s position is as
follows:

1. The Company’s proposal is on the table.
2. Should the strike continue, and become long term,
the Company will transfer the work. Once the work is
gone, it won’t come back!!

On or about August 28, 1998, Human Resources Director Webster mailed a two-page letter
to all employees in which he noted that recent communications with the employees from the
Union contained misstatements of fact. Human Resources Director Webster stated he wanted
to clear those misunderstandings. The first point the Company, according to Webster, wanted
to clear up was “there was an agreement on August 6.” Webster explained in his letter the
agreement was unanimously arrived at by the members of both negotiating committees.
Another point Webster contended the Company wanted to clear up was that “the Company did
not say last Friday, August 21, ‘the Company proposal is on the table.’” Webster then set forth
in his letter the Company’s version of what had been said at the August 21, 1998 meeting about
the status of negotiations which follows:

We want you to know that the Company continues to
stand behind this committee and this agreement. We told
you we would stand behind you and when you said no bet-
ter terms were available you would be telling the truth.
No better terms were or will be available. The Company
is prepared to let this situation last indefinitely without any
new offer which would better those terms.

Human Resources Director Webster also indicated the Company wanted to clear up what the
Company would do if the strike was long term and whether work would be transferred out.
Webster explained the Company would continue indefinitely to meet all of its customer com-
mitments. Webster noted the Company would “talk with the Union before deciding to change
our method of operations after the strike based upon what we have been learning.” Webster
further noted in his letter, “[w]e anticipated . . . discussions to begin around September 6.”
Business Agent Reeves testified that on September 1, 1998, the Union convened its mem-
bership to discuss “the way the strike was going” and to provide general information to the
membership. According to Reeves the Union, at that time, made a counterproposal to the
Company consisting of “fifty cents across the board per year”; “insurance per the last bargain-
ing agreement”; and, the Union would agree to “keep the temporary language as proposed by
the Company and agreed to on the 6th.” Reeves testified the membership “pre-ratified” this
counterproposal—meaning that if the Company accepted it the parties would immediately have
an agreement. The Union’s counteroffer was conveyed to the Company through Federal
Mediator Leonhardt. The Company rejected the Union’s counteroffer and when so advised by
Leonhardt, Business Agent Reeves testified:

We then asked Mr. Leonhardt if he would ask the
Company to change anything in the August 6 agreement,
whether it be a penny here or a penny there or a date or
anything, so we would have something totally different to
BUSCHMAN CO. 447
bring back to the people, or we could say it was different
than the original agreement.

The Company again refused to do so.
It appears that on or about September 2, 1998, Federal Mediator Leonhardt attempted to
arrange further meetings between the Company and the Union to take place after the Labor Day
weekend perhaps on September 8, 9, or 10, 1998.
On September 2, 1998, Company Attorney/Negotiator Engeman telephoned Union General
Organizer Purdy. Purdy testified Engeman alluded to the fact the Company was going to move
work out of the facility and had “an operating plan” it could implement. Purdy recalled Enge-
man saying the Company could replace the striking workers. Purdy also recalled Engeman
saying that because the Union had retained Attorney Cook to represent it that he, Engeman,
could not talk to Purdy any further because Purdy was now the client of Attorney Cook and that
he, Engeman, would work through Cook.
Engeman testified he told General Organizer Purdy in their September 2, 1998 conversa-
tion, “That there was going to be a proposal that he would not like presented the following
week.” Company Attorney/Negotiator Engeman testified, “We then had a discussion in which I
simply told him I couldn’t speak to him about these matters anymore, because he was repre-
sented by counsel, and we went on to chit-chat about family or something, I’m sure. But then
the conversation ended.”
General Organizer Purdy could not recall Engeman making any comments about a proposal to
be presented the following week.
To the extent it is beneficial and/or helpful to a better understanding of this case I shall ad-
dress the differences in recall (or lack thereof) between General Organizer Purdy’s and Com-
pany Attorney/Negotiator Engeman’s recollections regarding whe- ther Engeman spoke about a
future company proposal during their September 2, telephone conversation. Purdy did not
recall Engeman making mention of any such proposal. It is not disputed Engeman advised
Purdy he “couldn’t speak to him about these matters anymore, because he was represented by
counsel.” Therefore, is it likely Engeman would have told Purdy he was going to present a
proposal the following week that Purdy would not like? I think not. Engeman’s insistence he
could not deal further with Union Attorney Cook’s client, namely Purdy, is somewhat contra-
dictory to his insistence he told Purdy about a forthcoming proposal. Engeman’s actions and
comments are also somewhat inconsistent with his contention he advised Purdy of the forth-
coming proposal. In light of these concerns I shall not rely on, nor do I credit, Engeman’s
testimony regarding a forthcoming proposal the Company might make.
Company employee Gary Wayne Hubbard testified he had been working for the Company
since November 1992 and participated in the 1998 strike by walking the picket line. Hubbard
testified that on September 3, 1998, while on the picket line he had an occasion to participate in
a conversation between Human Resources Director Webster, Company Manufacturing Liaison
Charlie Wallingford, and certain other striking employees. According to Hubbard, Webster and
Wallingford told the striking employees they understood someone on the picket line wanted to
speak with someone from management. They announced they were there. Hubbard testified he
spoke up and said; “You know, if we had a chance to vote on [the] contract . . . the majority of
the people would probably, you know, vote it through.” According to Hubbard, Human Re-
sources Director Webster responded that “as far as he was aware of, the contract that we voted
down was still on the table.” Hubbard then spoke with Company Manufacturing Liaison
Wallingford about a personal matter. Hubbard told Wallingford he “couldn’t go back in [to
work] without the Union” because the Union was “the only thing that’s really kept me in there,
and stuff like that.”4
Company Human Resources Director Webster testified that on September 3, 1998, Com-
pany Manufacturing Liaison Wallingford informed him at about 10 a.m. a picket had requested
Wallingford come to the picket line. Webster accompanied Wallingford to the picket line.

4 Hubbard explained that the personal matter behind his comments to
Wallingford was that he, Hubbard, had sued the Company and won.
Hubbard testified he felt the Company didn’t like him very much and
added “I figured, you know, if there wasn’t a union in there, I wouldn’t
have a chance in hell to trying to make it in the shop they’d probably
find a way to get rid of me.”
Webster testified a striking employee asked Wallingford if the Company was hiring employees
for the shop. According to Webster, Wallingford stated, the Company was hiring and would
continue to hire. According to Webster, Wallingford explained that once the Company had
hired enough employees to operate the shop the striking employees would go on a preferential
hire list. Webster testified Hubbard then asked him two questions. According to Webster,
Hubbard first asked if the Company and Union were meeting on September 6, 1998, or some
time that next week. Webster told Hubbard the Company desired to meet with the Union on
September 6, but no meeting had actually been scheduled. Webster testified Hubbard then
stated he had heard a rumor that if they didn’t vote to accept or ratify the agreement that the
Company’s offer would be less the next week. Webster testified: “My response was I hadn’t
heard anything about that, nor had I heard anyone say that.” Webster specifically denied telling
Hubbard the Company’s offer was still on the table. Webster acknowledged he did not say the
Company’s offer was off the table.
Hubbard appeared candid and impressed me as a witness attempting to testify truthfully. I
credit his testimony. In doing so I am not unmindful that he appeared to be an individual who
would inject himself into someone else’s conversation and that he is persuaded the Company
might hold ill will against him. In crediting Hubbard, I note his and Webster’s recollections are
somewhat mutually supportive; however, I find as testified to by Hubbard, that Webster told
Hubbard as far as he was aware the contract that had been voted down by the employees was
still on the table.
Union Business Agent Reeves testified that on September 3, 1998, an employee came from
the picket line to the Union’s offices and said Company Vice President Yarberry told the
pickets on the picket line that if the employees did not ratify the agreement it wouldn’t be there
the next week. Reeves testified that as a result of that information and after a brief discussion
was had at the union hall “we decided to go ahead and have a ratification vote.” The employees
were notified by telephone of a meeting set for September 4, 1998. Reeves telephoned General
Organizer Purdy on September 3, 1998, to discuss the scheduled meeting. Reeves asked Purdy
to “run the meeting” the next day. Purdy testified Reeves specifically asked him to conduct the
September 4, 1998 ratification meeting because “it seemed to be a point of urgency” and the
Union “believed the Company was getting ready to withdraw its . . . agreement that had been
on the table.”
General Organizer Purdy testified that at the September 4, 1998 meeting the membership
voted to withdraw its previous vote not to revote the August 6 Agreement. The membership
then voted to accept the August 6 Agreement by a vote of approximately 124 to 74. The
members also voted to end the strike and immediately return to work.
Union General Organizer Purdy attempted to contact Company President McCarthy about
the Union’s actions but McCarthy was not available. Purdy spoke instead with Company Vice
President Yarberry. Purdy testified, “I advised him that the agreement had been ratified and
that the employees were ready to . . . return to work immediately.” According to Purdy, Vice
President Yarberry “expressed to some degree . . . a point of relief that the thing was over.”
Purdy said they then discussed returning the employees to work. Yarberry advised Purdy the
Company was not ready at that point to take all the employees back to work, but “[t]hat the
Company was in the process of setting up a return schedule” and employees returning to work
immediately would be eligible holiday pay. Yarberry told Purdy the Company would set up a
phone message system where employees could individually call the Company and, based on the
message provided, be given a reporting schedule as to date, time and shift to return to work.
The return-to-work telephone line was established by the Company prior to the end of that day.
Vice President Yarberry testified he received a telephone call from Union General Organ-
izer Purdy. Purdy informed him there had been a favorable ratification vote and the Union
would like to have the workers come back to work. Yarberry testified, “I stated at that time that
I understood what he was telling me, and would welcome the employees back.” Yarberry
advised Purdy the Company’s Attorney/Negotiator Engeman was out of state at the time and
could not review the situation. Yarberry advised Purdy that whatever document they were
working from to fax to the Company’s office and such could be available for the Company’s
review the following Tuesday. Vice President Yarberry testified their conversation “included
some other comments about the people being there and . . . when they came back to work and
‘can we consider this an acceptance.’” Yarberry told Purdy he understood what he, Purdy, was
telling him but, Purdy would have to understand that the Company’s attorney was not available
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 448
at that time nor had the Company’s negotiating committee had a chance to review the situation.
Yarberry again asked Purdy to fax to the Company whatever documents he wanted them to
have. According to Yarberry, Purdy stated rather than fax the materials he would bring them to
the Company.
Immediately following the September 4, 1998 ratification of the August 6 Agreement, a
delegation from the Union went to the Company to present a copy of the ratified agreement.
The Union’s delegation included General Organizer Purdy, Union Business Agent Reeves,
Local Union President Dave Beiderbeck, and union negotiating committee members; Dan
Hicks, Curtis Turner, and Roxanne Keith. According to General Organizer Purdy, whose
testimony I credit, they met with Company Vice President Yarberry and Human Resources
Director Webster. Purdy requested the representatives “initial off” the ratified agreement.5
General Organizer Purdy testified:

They [Yarberry and Webster] indicated that it ap-
peared to be . . . what the August 6 agreement was, but
that they would have to meet and discuss with . . . the rest
of the employer committee before they could respond to it,
that they were not prepared to initial off.

Yarberry said it was a “very short” meeting. Purdy credibly testified neither Yarberry or
Webster indicated the Company’s offer entered into on August 6, 1998, was no longer viable.
Company Vice President Yarberry testified that when General Organizer Purdy handed him
the document he recorded the time and date of receipt upon it and showed it to Human Re-
sources Director Webster. Yarberry testified Purdy asked if they had an agreement and if this
was okay. Yarberry said he “reiterated the point that [Attorney/Negotiator] Engeman was out
of town, that we were unable to get our committee together but would do so on Tuesday.”6
Vice President Yarberry acknowledged he did not tell General Organizer Purdy or the union
committee the August 6, 1998 agreement was no longer viable, or, the Company’s offer was off
the table, or there were other matters which the Company needed to discuss before any agree-
ment could be arrived at.
Human Resources Director Webster testified that when the Union presented the agreement
to them on September 4, 1998, they told the committee “we understand . . . what you have
provided us.” Webster acknowledged neither he nor Yarberry said anything to the Union about
needing to negotiate strike settlement issues or that there was no offer on the table for the
Union to accept and/or ratify.
On September 8, 1998, Union Business Agent Reeves prepared a letter to Human Re-
sources Director Webster which was hand delivered to Webster on September 9, 1998, contain-
ing the following:

On Friday, September 4, 1998, striking members of
Shopmen’s Local Union No. 522 ratified the pending con-
tract offer (“the August 6th Agreement”). All strike activ-
ity ceased against the Company. General Organizer Bill
Purdy and the negotiating committee made an uncondi-
tional offer to return to work on behalf of the striking em-
ployees of the Company.
This letter confirms and restates in writing that offer to
return to work, effective September 4, 1998. The mem-
bers of Shopmen’s Local Union No. 522 stand ready to re-
port to work upon notice from the Company.

It is acknowledged that all employees desiring to were returned to work during the week
commencing Tuesday, September 8, 1998.
Tuesday, September 8, 1998 was the first business day after the Union’s strike ending and
ratification votes had been taken on September 4, 1998. On that date the Company faxed to the
Union, with a cover letter from Human Resources Director Webster, the Company’s proposed

5 Purdy testified the document presented to “initial off” was a type-
written version of the August 6, 1998 (handwritten) agreement.
6 Yarberry explained the following Monday was a holiday.
strike settlement agreement. The strike settlement agreement consisted of three pages divided
into four major subject matters. The first dealt with restoration of customer and shareholder
confidence in the operation of the Company. In it the Union’s shop committee was committed
to work with shop supervisors, managers and officers of the Company to demonstrate by
concrete steps that continuous improvement would be a way of life over the term of this 5-year
agreement. The parties also would be committed to developing and sharing productivity and
efficiency measures. The strike settlement agreement would confirm management’s right to act
without further discussion on any work scheduling, work assignments, make-buy decisions,
work location decisions and making in-plant process improvements. The second major subject
of the strike settlement agreement dealt with litigation settlement and/or costs related to the
strike. The Union’s officers would commit to approaching all businesses in the area and offer
to restore any property damage, compensate for any vehicles damaged in the area, and pay all
attorney costs related to injunctive action to a maximum of $5000. The parties would agree
that no further legal proceedings, including grievances, arbitration, unfair labor practice
charges, Federal or State EEO charges, or law suits of any kind would be brought by the
Company, Union, or employees represented by the Union regarding any matters occurring
during or associated with the dispute ended by the strike settlement agreement. The third major
subject dealt with restoring relationships between employees, supervisors, and managers. This
area of the agreement involved among other concerns, asserted picket line misconduct, and that
the parties would recognize that maintenance of full union membership was not required for
compliance with the union-security provisions of the agreement. The fourth major area of the
strike settlement agreement dealt with effective dates for wage and benefit increases and
holiday pay for certain striking employees based on when they returned to work and on certain
temporary worker language for the contract.
Union Business Agent Reeves credibly testified that none of the issues raised in the Com-
pany’s proposed strike settlement agreement was raised by the Company with the Union prior
to September 8, 1998.
On September 10, 1998, Union Business Agent Reeves responded in writing to Human Re-
sources Director Webster’s letter regarding the Company’s September 8, 1998 strike settlement
agreement. In his letter Reeves expressed “great” surprise about the Company’s strike settle-
ment agreement inasmuch as the employees had offered themselves for unconditional return to
work on September 4, and all striking employees had been returned to work. Reeves noted no
portion of the strike settlement agreement was ever presented to any representative of the Union
at any time prior to the Union’s ratifying the August 6 Agreement. Reeves continued in his
letter:

None of the conditions or terms proposed in the Com-
pany’s proposed “Strike Settlement Agreement” were ever
discussed between the parties, at any time. We received
the document containing the proposal via facsimile on
September 8, 1998. As a result, Shopmen’s Local Union
No. 522 cannot, does not, and will not accept any of the
proposed changes to the August 6 agreement which are de-
tailed in the proposed “Strike Settlement Agreement.”

Reeves advised Webster the Union stood ready to execute a contract containing the terms of the
August 6 Agreement and rejected the Company’s attempt to modify the ratified agreement in
any manner.
In a letter dated September 11, 1998, Company Human Resources Director Webster ad-
vised Union Business Agent Reeves the Company had received Reeves’ most recent corre-
spondence (referred to above) and acknowledged the Union had rejected the Company’s strike
settlement agreement. Webster disputed the existence of an offer remaining open on September
4, 1998, at the time the Union purported to accept it. Webster noted, “We, obviously, cannot
execute the proposal you made on September 4 as it has not been accepted and no complete
agreement has been reached.”
Union Business Agent Reeves, with a cover letter dated September 23, 1998, forwarded to
Human Resources Director Webster a complete copy of the ratified collective-bargaining
agreement. Reeves asked for a convenient time that the agreement could be signed.
BUSCHMAN CO. 449
Discussion, Analysis, and Conclusions
Section 8(d) of the Act, which addresses the obligation to bargain collectively and in good
faith, with respect to wages, hours, and other terms and conditions of employment, requires
“the execution of a written contract incorporating any agreement reached if requested by either
party.” If the Company and Union arrived at an agreement, the Company’s failure to execute a
written contract incorporating the terms of the agreement with the Union would constitute an
unlawful refusal to bargain as required by Section 8(a)(5) of the Act. H. J. Heinz Co. v. NLRB,
311 U.S. 514 (1941). Section 8(d) of the Act however, does not compel either party to agree to
a proposal or require the making of a concession. A threshold question therefore is whether the
parties in fact reached an agreement. If there was no agreement or “no meeting of the minds”
as contended by the Company herein then it would not be unlawful for the Company to refuse
to execute the contract presented to it by the Union. Stated differently, the Board has no
authority to order an employer to execute an agreement to which it has not assented. It is not
the function of the Board to determine what the parties should have agreed on. H. K. Porter
Co. v. NLRB, 397 U.S. 99 (1971).
In the instant case it is undisputed the parties reached a complete agreement for a new con-
tract on August 6, 1998. It is likewise undisputed the union membership overwhelmingly
rejected the August 6, 1998 Agreement on that same date and further authorized and almost
immediately commenced a strike against the Company. Thereafter on September 4, 1998, the
union membership ratified the August 6, 1998 agreement (August 6 Agreement) and at that
time ended its strike against the Company. The central question herein is, was the August 6
Agreement on the table for the Union to accept on September 4, 1998 so as to compel the
Company to execute and abide by it, or had the August 6 Agreement been subject to acceptance
by a specified deadline or had it been withdrawn or modified by changed circumstances or
otherwise such that the parties would have believed the offer to have been withdrawn.
For the reasons outlined below I am persuaded the contract offer was still on the table sus-
ceptible to acceptance and ratification as the Union did on September 4, 1998. Accordingly, I
shall find the Company’s failure to execute the August 6 Agreement constituted a violation of
Section 8(a)(5) and (1) of the Act.
The evidence is overwhelming the offer of August 6, 1998, had not been withdrawn and
was available for acceptance at the time the Union accepted it. It is irrelevant the Union
originally rejected the August 6 Agreement. As the Board and courts have noted, a contract
offer is not automatically terminated by the other party’s rejection of it or that a counterpro-
posal had been made. A contract offer may be accepted within a reasonable time unless, prior
to acceptance, the contract proposal has been specifically withdrawn or was made subject to or
contingent upon some conditions subsequent or intervening circumstances that would make it
unfair to hold the offeror to its bargain. Pepsi-Cola Bottling Co., 251 NLRB 187 (1980), enfd.
659 F.2d 87 (8th Cir. 1981); see also Georgia Kraft Co. v. NLRB, 696 F.2d 931 (11th Cir.
1983), vacated and remanded on other grounds 466 U.S. 901 (1984), 104 S.Ct. 1673 at 1674. It
is well established that technical rules of contract do not control on the issue of whether a
collective-bargaining agreement has been reached. The common-law rule that a rejection or
counterproposal necessarily terminates an offer has little if any relevance in a collective-
bargaining setting. Simply stated Federal labor policy encourages the formation of collective-
bargaining agreements.
The Company’s contention the August 6 Agreement expired by its terms when it was not
ratified on August 6, 1998, is contradicted by its actions on and after that date. For example,
when Union Business Agent Reeves informed Company Vice President Yarberry the employ-
ees had failed to ratify the agreement and would go on strike Yarberry told Reeves the Com-
pany was sticking to the agreement. The Union was advised any subsequent meetings would be
to explain the agreement but not for the purpose of continued negotiations. On the same day
the union membership failed to ratify the August 6 Agreement, Company President McCarthy
in a “Notice to All Employees” informed the employees the Company would remain open for
work and continue to serve its customers “until the new agreement negotiated in good faith
over many weeks and accepted and unanimously recommended by the Union committee, is
finally accepted.” Not withstanding the failure of ratification by the union membership the
Company made it clear it was adhering to the August 6 Agreement it had made with the Union.
As the Board noted in Williamhouse-Regency of Delaware, 297 NLRB 199 (1989), enfd. 915
F.2d 631 (11th Cir. 1990) “an offer, once made, remains on the table unless explicitly with-
drawn by the offeror or unless circumstances arise that would reasonable lead the parties to
believe that the offer had been withdrawn.” In the instant case the early actions of the Com-
pany clearly indicated, and all parties could reasonable have believed, the August 6 Agreement
remained on the table open for acceptance. The circuit court in Williamhouse-Regency noted
the employers’ final offer prior to a strike in that case was not automatically terminated by the
union’s rejection and decision to strike. The court in Williamhouse-Regency went on to note
the offer therein could be, and was, accepted by the union therein at the conclusion of the strike
where the employer therein never expressly withdrew its offer and continued to suggest the
terms of its offer were still open for acceptance by its communications to the members during
the strike. The court also noted in Williamhouse-Regency that nothing had occurred during the
strike in that case that materially changed the relationship of the parties or made it unfair to
hold the employer therein to it’s bargain. I find the same to be true in the instant case.
Furthermore, 1 week into the strike, on August 13, 1998, Company President McCarthy
mailed a letter to all employees in which he stated the Company continued to stand behind its
August 6 Agreement with the Union. In a videotaped message sent to each employee on
August 21, 1998, Company President McCarthy reiterated the Company’s position that the
August 6 Agreement was still open for acceptance. In his videotaped message President
McCarthy stated in part, “we met regularly and negotiated what we believed to be a good
agreement”, and explained the ratification vote did not “change the fact that there was an
agreement based upon real bargaining and real facts.” Near the end of his videotaped speech
President McCarthy added “[W]e’ve announced that management stands behind our negotiated
agreement.”
The Company again expressed its commitment to the August 6 Agreement, at a meeting with
the parties and Federal mediators on August 21, 1998, when Company Attorney/Negotiator Enge-
man indicated the Union could reject the agreement as many times as it wanted, but nothing more
would be forthcoming from the Company. Company Attorney/Negotiator Engeman read from a
prepared statement that the Company continued to stand behind its committee and the agreement
and emphasized again that no better terms would be available to the Union.
Based on the overwhelming weight of the evidence, I reject the Company’s contention it
put the Union on notice it had withdrawn from the agreement when Human Resources Director
Webster informed the employees in writing on August 28, 1998 that contrary to what the Union
had indicated the Company did not state at the August 21, 1998 meeting that the Company’s
proposal was still on the table. It is clear the Company’s position remained, as it had through-
out, when Webster in his August 28, 1998 letter informed the employees:

We want you to know that the Company continues to
stand behind this committee and this agreement [August 6
Agreement]. We told you we would stand behind you and
when you said no better terms were available you would
be telling the truth. No better terms were or will be avail-
able. The Company is prepared to let this situation last in-
definitely without any new offer which would better those
terms.

I likewise reject the contention that when the Union made a preratified counterproposal to
the Company on September 1, 1998, such removed the August 6 Agreement from the table. A
counterproposal does not necessarily terminate an offer that is on the bargaining table. Here,
the Company through the Federal mediator, rejected the Union’s counterproposal and after
being requested to change any, ever so insignificant, point in the August 6 Agreement so the
Union could present a “different” proposal to its membership the Company refused to do so.
The Company, by its actions, made it clear the August 6 Agreement was still on the table and
that the Union could not expect anything better from the Company.
The September 2, 1998 telephone exchange between Company Attorney/Negotiator Enge-
man and Union General Organizer Purdy did not change the fact the offer was still on the table
for acceptance. Company Attorney/Negotiator Engeman and Purdy in their telephone exchange
briefly mentioned the fact the Company would be moving work out of the facility and dis-
cussed the fact the Union had retained legal counsel. As explained elsewhere in this decision, I
do not credit Engeman’s assertions regarding mention of a contract proposal that would be
forthcoming from the Company. Additionally there is no credible evidence the Union was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 450
placed on notice, during this telephone exchange, the Company was withdrawing from the
August 6 Agreement.
On September 3, 1998, Human Resources Director Webster told an employee in the pres-
ence of others on the picket line that “as far as he was aware of, the contract that we voted
down [August 6 Agreement] was still on the table.” Thus on September 4, 1998, at the time the
union membership voted to accept the August 6 Agreement and to end their strike, nothing had
taken place to indicate the offer was or had been removed from the table. In fact, the over-
whelming evidence indicates the August 6 Agreement remained on the table because the
Company not only failed to withdraw it prior to its acceptance but the Company’s actions
clearly demonstrated it was still viable.
At the time the Company was notified the August 6 Agreement had been ratified and the
workers would be returning to work, Vice President Yarberry expressed relief the strike was
over and neither he nor Human Resources Director Webster gave any indication the Company’s
offer was no longer viable. In fact the Company immediately returned the employees who had
been on strike to work. It was not until September 8, 1998, that the Company took any action
to indicate it did not believe an agreement had been arrived at. On that date, September 8,
1998, Human Resources Director Webster notified Union Business Agent Reeves, in writing,
the Company wanted to negotiate a strike settlement agreement. None of the issues raised in
the Company’s proposed strike settlement agreement was raised by the Company with the
Union prior to September 8, 1998.
I am fully persuaded the Union accepted the August 6 Agreement at a time while it was still
on the table and susceptible to acceptance. The Company’s additional proposals came after the
contract had been accepted. The Company is obligated to execute the collective-bargaining
agreement as tendered to Human Resources Director Webster in completed form on September
23, 1998.
I reject the Company’s argument there was no effective date for the August 6 Agreement as
being factually incorrect. The August 6 Agreement envisioned an August 7, 1998 effective
date for a 5-year collective-bargaining agreement. At no time was the effective date, as set
forth in the August 6 Agreement, altered in any manner. The fact the Company did not retroac-
tively make certain payments and contributions to the August 7, 1998 date is of no great
moment in as much as the Company has yet to execute and abide by all the terms of the August
6 Agreement. The Company’s argument it never agreed to a change in the relevant hire date
for “Second Tier” employees from August 7, 1984, to August 7, 1994, is without merit. Union
District Representative Cluckley credibly testified there was no change that the incorrect date
was an inadvertent typographical error. Typographical errors do not relieve the Company of its
obligation to execute the collective-bargaining agreement containing the agreed upon terms.
Trojan Steel Corp., 222 NLRB 478, 483 (1976). I likewise reject the Company’s argument that
by including a summary of the agreed upon health benefits in the agreement the Union incorpo-
rated something that had not been agreed upon. This argument is nothing more than one of
form over substance which I reject. It is undisputed the parties had agreed upon the health plan
in question. The Union simply incorporated a summary of what was agreed upon into the
parties collective-bargaining agreement. Everything included in the collective-bargaining
agreement regarding health benefits had been agreed upon by the parties. Other contentions of
the Company, not mentioned herein, have been considered and rejected as being without merit.
In conclusion, I find the Company violated Section 8(a)(5) and (1) of the Act as alleged in
the complaint, when it refused to execute its collective-bargaining agreement with the Union.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce within the meaning of Section 2(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. Since on or about September 4, 1998, the Company has violated Section 8(a)(5) and (1)
of the Act by failing and refusing to execute its collective-bargaining agreement with the
Union.
4. The unfair labor practices engaged in by the Company affect commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
THE REMEDY
Having found that the Company has engaged in certain unfair labor practices I find it must
be ordered to cease and desist and to take certain affirmative action designed to effectuate the
policies of the Act. The Company shall, upon request, execute the collective-bargaining
agreement arrived at with the Union.7 The Company shall make whole those employees
covered by the collective-bargaining agreement from August 7, 1998, forward, for any loss of
earnings and other benefits suffered by them as a result of the Company’s unlawful failure and
refusal to execute the collective-bargaining agreement as requested on September 4, 1998, plus
interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Com-
pany shall make the Union whole for losses, if any, the Union may have suffered related to any
failure to deduct union dues and transmit same to the Union.
On these findings of fact, and conclusions of law, and on the entire record I issue the fol-
lowing recommended8
ORDER
The Company, The Buschman Company, Cincinnati, Ohio, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to execute its collective-bargaining agreement with the Union as
specifically described in the remedy section of this decision.
(b) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Forthwith execute its collective-bargaining agreement with and the Union, as described
in the remedy section of this decision, and as requested by the Union on September 4, 1998.
(b) Make whole those employees covered by the collective-bargaining agreement from
August 7, 1998, forward for any loss of earnings and other benefits suffered as a result of the
Company’s unlawful failure and refusal to execute the collective-bargaining agreement since
requested on September 4, 1998, in the manner set forth in the remedy section of this decision.
(c) Preserve and, on request, make available to the Board or its agents for examination and
copying, all payroll records, social security records, timecards, personnel records and reports,
and all other records, including an electronic copy of the records if stored in electronic form,
necessary to analyze the amount of reimbursement, if any, due pursuant to this Order.
(d) Reimburse the Union for losses, if any, the Union may have suffered related to the fail-
ure to deduct and transmit dues to the Union.
(e) Within 14 days after service by the Regional Director for Region 9 of the National La-
bor Relations Board, post at its Cincinnati, Ohio facility copies of the attached notice marked
“Appendix.”9 Copies of the Notice, on forms provided by the Regional Director for Region 9
after being signed by the Company’s authorized representative, shall be posted by the Company
and maintained for 60 consecutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps shall be taken to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that during the
pendency of these proceedings the Company has gone out of business or closed the facility
involved in these proceedings, the Company shall duplicate and mail, at its own expense, a
copy of the Notice to Employees to all employees that have been employed by the Company on
or at any time since September 4, 1998.

7 The agreement is GC Exh. 16(a).
8 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 objections to them shall be deemed waived for all pur-
poses.
9 If this Order is enforced by judgment of a United States court of
appeals, the words in the notice reading “Posted By Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
BUSCHMAN CO. 451
(f) Within 21 days after service by the Region, file with the Regional Director for Region 9
of the Board sworn certification of a responsible official on a form provided by the Region
attesting to the steps the Company has taken to comply.
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 ordered 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 protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT fail or refuse to execute our collective-bargaining agreement with the Un-
ion.
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 by the Union, forthwith execute our collective-bargaining agreement
with the Union.
WE WILL make whole our unit employees for losses, if any, they may have suffered by
reason of our failure to execute the agreement with interest.
WE WILL reimburse the Union for losses, if any, the Union may have suffered related to
the failure to deduct and transmit dues to the Union.
THE BUSCHMAN COMPANY