C & W Lektra Bat Co.Download PDFNational Labor Relations Board - Board DecisionsApr 3, 1974209 N.L.R.B. 1038 (N.L.R.B. 1974) Copy Citation 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C & W Lektra Bat Co. and Truck Drivers Local Union No . 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America . Case 7-CA-10059 April 3, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On October 12, 1973, Administrative Law Judge Phil Saunders issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings and findings, of the Administrative Law Judge only to the extent consistent with its Decision herein, and to reverse his conclusion to dismiss the complaint in its entirety. The complaint alleges in substance that Respon- dent violated Section 8(a)(1) and (5) of the Act by refusing to execute a collective-bargaining agreement reached by Respondent and the Union. Respondent is a Michigan corporation engaged in the manufacture, sale, repair, and distribution of industrial batteries and related products at its facility at Farmington, Michigan. The alleged unfair labor practices herein pertained solely to this location. On January 12, 1972,1 the Union was certified as the bargaining representative of the Respondent's employees at the above location, following a Board- conducted election won by the Union. Negotiations for a contract began shortly thereafter and meetings were held on March 22, April 18, May 2, May 5, and January 9, 1973. Unfortunately, the record contains only rather scanty information concerning the conduct of negoti- ations, particularly during the incipient stages. The Union submitted its initial proposal either on February 4, or at the initial meeting on March 22. This proposal consisted of the Union's model, master contract and additional demands with respect to wages, vacations, and holidays, but no language pertaining to ratification. It is not clear whether a term relating to duration of the contract was included since the record is without benefit of a copy of such proposal. The next event of significance was the submission on April 17 of a written counterproposal by Respondent, which purported to accept the Team- sters model Master Agreement, subject to some 12 numbered revisions, the first of which called for a 1- year term, and the last of which provided a 25-cent wage , increase across the board. Nothing was included in this proposal as to ratification. Following this, a meeting was held on April 18 at the Teamsters hall, attended by Union Agents Hunter and Rumsby, Coller, Respondent's president, and Breskin, its attorney. Rumsby insisted that the Union did not want a 1-year contract, that its policy was to negotiate 3-year contracts, and that it would not attempt to have a I-year contract ratified. The Administrative Law Judge found that Hunter's testimony established that Rumsby. demanded ratifi- cation, evidently at the April 18 meeting. Hunter's pertinent testimony is as follows: Q. (Breskin) So you don't really know if Mr. Rumsby ever demanded ratification or not, do you? A. Oh, yes. I sat in meetings where he demanded we would have ratification. It must be noted that Attorney Breskin suggested the word "demand" in his question that elicited the above answer from Hunter during cross-examina- tion. More importantly, Hunter, in answering that question, accompanied the word "demand" with "we would have ratification." In that context, "demand" is as subject to the interpretation urged by the General Counsel, that is, that the Union was warning Respondent of its practice to seek ratification and the implications that might flow therefrom, as it is to the interpretation argued by the Respondent, which is, that ratification was to be made part of the agreement as a stated condition precedent. And Hunter's testimony in response to a subsequent question of Breskin supports, if not establishes, the validity of the General Counsel's argument that it was this practice that the Respondent was referring to in "demanding" ratification: Q. When you say the Union said they'd have the contract ratified, was this a Union demand ... or were you telling Mr. Breskin or Mr. Colter what the general practice was? A. I was telling them what the general practice was. Thus, there is no evidence that Respondent actually proposed ratification as a contract term, or proof that Respondent made any specific response I All events herein occurred in 1972 except as otherwise stated 209 NLRB No. 165 C & W LEKTRA BAT CO. on the subject on April 18 or thereafter, in the early part of negotiations. The next meeting occurred on May 2 in Breskin's office, those present being Rumsby, Kohr (Breskin's partner), Breskin (part of the time), and President Coller. At this meeting the Union adamantly insisted upon a 3-year term and Respondent for the first time displayed a willingness to discuss a 3-year contract. Evidently the Union's previous position that a 1-year contract could not be ratified remained the same, and there is no evidence of any specific response by Lektra Bat. The next meeting was that of May 5, which is crucial to the decision of this case, since the Administrative Law Judge found that "a complete contract was substantially agreed to" on this date, including the requirement of ratification as a condition precedent to the effectiveness of the contract. There is little testimony as to exactly what was agreed upon at this meeting. The Administrative Law Judge relied on Breskin's conclusionary testimo- ny that "at that meeting, a complete settlement was reached on all the terms of the contract . . . subject to it being ratified by the Union." We require more specific proof than this of an agreement to make ratification a condition precedent to a collective-bargaining agreement. Cf. Appalachian Shale Products Co., 121 NLRB 1160, 1162-63. There is no evidence that the parties agreed in express words to such a condition. We find, rather, on this record, that the Union was merely stating its intention, albeit forcefully, to take any contract reached to the membership for approval. See North Country Motors, 146 NLRB 671, 673. We are unwilling to distort words of intention into terms of agreement, particularly where the subject is unrelat- ed to wages and terms and conditions of employ- ment. We regard the words "[we] demand that we would ratify," even if said during negotiations by the Union, as part of the ambiance of negotiations rather than as a concrete proposal offered for inclusion as a term of the contract. Since this item was not offered as a proposal, there could be no acceptance by Respondent in any event. See Shreveport Garment Manufacturers, 133 NLRB 117. Whatever the terms of the so-called agreement of May 5 may have been, we note that the 25-cent increase agreed upon for the first year was instituted by Respondent on November 3. Whether this was done unilaterally, by mutual agreement, or upon 2 Breskin testified that the parties agreed to the following holidays on May 5: New Year's Day, Memorial Day, July 4. Labor Day, day before Christmas, Christmas, and day after Thanksgiving. 3 Breskin testified that on January 9 an additional holiday, the day after Thanksgiving , was added 1039 acquiescence by the Union, the record does not show. On November 28, the Union requested that the contract be signed, and ratification dispensed with, since ratification looked impossible because of an apparent loss of support by the membership. Breskin, in response, insisted that ratification had been agreed upon. This was the first positive response which the record shows was made by Respondent on the subject of ratification, and it was made when the Union was no longer interested in ratification. The facts that Respondent knew of the Union's member- ship problems; had received a petition by the employees to oust the Union; had heard "rumbles" about employee dissatisfaction with the Union; had initiated the 25-cent increase on November 3; had filed an RM petition in December 1962, and another in January 1973; and knew the Union's certification year expired in mid-January 1973, all tend to suggest that Respondent was more interested in getting rid of the Union than in obtaining any legitimate benefit for itself in having the contract ratified and, indeed, that insistence on ratification from November 28 onward was intended toward this end. In any event, whatever the status of any contract prior to January 9, 1973, on that date the parties negotiated additional substantive terms. If the beginning date previously was to have been whenev- er the contract was ratified, it was changed to November 3 at the final negotiation meeting. If six or seven holidays 2 were agreed to previously, there were seven or eight thereafter.3 Finally, if, arguendo, ratification had been agreed to before, it was not an agreed item after January 9. The testimony was clear that at the January 9 meeting the parties agreed on all substantive terms of a 3-year contract, including the effective date and an additional holiday. Howev- er. the Respondent continued to insist on ratification in the face of the Union's adamant refusal to agree to this demand. Thereafter, on January 11, 1973, the Union signed and delivered to the Respondent a draft of agreement which contained the substantive terms agreed upon on January 9,4 but which did not contain a provision for ratification. Respondent refused and continues to refuse to sign the agreement until and unless it should contain a ratification clause. We find that Respondent insisted on January 11 and thereafter that the contract be ratified as a condition of signing the agreement, in spite of the 4 We note that this document contains the following holidays New Year's Day, Memorial Day , Labor Day, Thanksgiving Day. Christmas Day, and Independence Day. Breskin testified that this was the final agreement reached on substantive terms We accept this testimony 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact that ratification had not been agreed to as a term of the final agreement reached.5 Such insistence on the inclusion of a nonmandatory subject of collective bargaining was an improper refusal to bargain. Southland Dodge, Inc., 205 NLRB No. 54; Southeast- ern Michigan Gas Company, 206 NLRB No. 18, fn. 3. Accordingly, we find that Respondent's refusal to sign the agreement presented violated Section 8(a)(5) and (1).6 We have set forth above all the evidence that is contained in the record with respect to the question whether or not the parties had agreed orally to make ratification of the contract by the employees a condition precedent to its validity. Contrary to our dissenting colleague, we do not believe that our disagreement with the conclusion of the Administra- tive Law Judge is tantamount to a failure on our part to weigh "all the surrounding circumstances." Our dissenting colleague points to no circumstance that we have neglected to consider. His concern that our decision on the evidence in this case will stretch the Appalachian Shale doctrine to the "breaking point" seems to us unwarranted. There the Board concluded that it would not consider such questions for purposes of contract bar. Surely, that case is not authority for an insistence that an oral agreement for ratification existed when all of the record evidence supports the contrary result. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdic- tion herein. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including shipping and receiving employees, em- ployed by the Respondent at its facility at 26400 Crestview Court, Farmington, Michigan, exclusive of all office clerical employees, professional employees and guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since January 12, 1972, the Union has been the duly certified and designated exclusive representative of the employees in the unit found to be appropriate within the meaning of Sections 8(a)(5) and 9 of the Act. 5. By refusing to sign a collective-bargaining agreement, the terms of which were otherwise agreed upon , unless and until the contract was first ratified by a majority of the employees in the appropriate unit , Respondent has refused to bargain with the Union in violation of Section 8(a)(5) and ( 1) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and that it take certain affirmative action as set forth below designed to effectuate the purposes and policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, C & W Lektra Bat Co., Farmington, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with Truck Drivers Local Union No. 299, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America by refusing, upon request, to sign the collective-bargaining agreement submitted by the Union on January 11, 1973, embodying the terms and conditions of employment on which the parties had reached agreement. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the purposes and policies of the Act: (a) Upon request by the Union, sign a written contract embodying the terms and conditions of employment on which the parties had reached agreement on January 9, 1973, without requiring that such agreement be ratified by the employees in the appropriate unit. (b) Post at its place of business at Farmington, Michigan, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 7, s Thus we need not decide whether, had there been no meeting of the certification year. We note that the contract would be a bar thereto minds on ratification , Respondent could be found to have entered into a r In the event that this Order is enforced by a Judgment of a United complete agreement States Court of Appeals, the words in the notice reading "Posted by Order 6 In view of our decision herein, we agree with the Regional Director 's of the National Labor Relations Board" shall read "Posted Pursuant to a dismissal of the RM petition filed by Respondent after the end of the Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." C & W LEKTRA BAT after being duly signed by Respondent's authorized representative , shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. CHAIRMAN MILLER, dissenting: I fear that this decision stretches the Appalachian Shale doctrines to the breaking point. In that case the Board held that a signed contract will bar an election , even though not yet ratified , unless the contract itself makes ratification an express condi- tion precedent to its effectiveness. The rule, which was designed for application to election cases, is a defensible rule of thumb in that context. It was adopted, as the Board there frankly stated, because the Board's practice theretofore of determining whether "prior ratification . . . as a condition precedent was spelled out from an alleged under- standing of the parties at or about the time of contract negotiations" had "resulted in conflicting testimony and protracted hearings creating contested factual issues for the Board to resolve." I agree that our election machinery should not be burdened by protracted hearings except when abso- lutely necessary, and, as an administrative rule for representation cases, I would not alter the Appalachi- an Shale precedent. But here no contract has been signed. And here we have an unfair labor practice proceeding, with the "protracted evidentiary hearing" having already been held. In this framework I think the approach of the Administrative Law Judge to be sounder than that adopted by my colleagues. In this unfair labor practice proceeding he, quite properly I believe, weighed all of the surrounding circumstances and found that ratification as a condition precedent could and should be deemed spelled out from the understanding of the parties during negotiations. I think he made a realistic assessment of the facts, and that the Union violated this understanding because only by doing so could it prevent the free choice of the employees from being exercised. I fail to see how it effectuates the purposes of our Act for this Board to assist the Union in so doing. I dissent , and would adopt the findings , conclu- sions, and recommendations of the Administrative Law Judge. 8 121 NLRB 1160 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively in good faith with Truck Drivers Local Union No. 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, in the appropriate unit set forth below by refusing , upon request , to sign the collective- bargaining agreement submitted by the Union on January 11, 1973, embodying the terms and conditions of employment on which the Company and the Union had reached agreement. WE WILL NOT in any like or related manner interfere with , restrain , or coerce our employees in the exercise of their rights to self -organization, to form , join , or assist labor organizations, including the Union herein, to bargain collective- ly through a bargaining agent chosen by our employees , to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection , or to refrain from any such activities. WE WILL, upon request, execute with the Union a collective -bargaining agreement containing the provisions upon which we have reached agree- ment concerning rates of pay , wages , hours of employment, and other conditions of employ- ment , concerning employees in the bargaining unit described below. The bargaining unit is: All production and maintenance employees, including shipping and receiving employees, employed by the Respondent at its facility at 26400 Crestview Court, Farmington , Michigan, exclusive of all office clerical employees , profes- sional employees and guards and supervisors as defined in the Act. C & W LEKTRA BAT Co. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200. DECISION STATEMEN1 OF THE CASE PHIL SAUNDERS, Administrative Judge: Based on an original charge filed by Truck Drivers Local Union No. 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein the Union, a complaint against C & W Lektra Bat Co., herein the Company or Respondent, was issued on February 22, 1973, alleging violations of 8(a)(5) and (1) of the National Labor Relations Act, as amended. Respondent filed an answer to the complaint denying it had engaged in the alleged unfair labor practices. A hearing in this proceeding was held before me, and the Respondent filed a brief. Upon the entire record in this case, and from my observation of the witnesses and their demeanor, I make the following: i FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Michigan corporation and at all times material herein has maintained its principal office and place of business in the city of Farmington, Michigan, wherein it is engaged in the manufacture, sale, repair, and distribution of industrial batteries and related products. Respondents place of business located at Farmington, Michigan, is the only facility involved in this proceeding. During the year ending December 31, 1972, which period is representative of its operations during all times material hereto, Respondent, in the course and conduct of its business operations, purchased and caused to be transport- ed and delivered at its Farmington place of business, battery parts, and other goods and materials valued in excess of $100,000 of which goods and materials valued in excess of $50,000 were transported and delivered to its place of business in Farmington, Michigan, directly from points located outside the State of Michigan. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that since January 9, 1973, the Respondent has refused to bargain and at a time when all the terms and provisions of a contract had been mutually agreed to. It is alleged that the Respondent insisted, as an express condition of executing the contract, that the agreement be first ratified by the employees in the bargaining unit. The above adequately frames the main issue in this case. Respondent's first contact with the Union came during an organizational campaign conducted during the fall of 1971. This campaign resulted in a stipulation for certifica- tion upon a consent election conducted by the Board. The election was held on December 17, 1971, and the Union was certified as the employees' collective-bargaining agent on January 12, 1972. The Union, through its agents Ernest Rumsby and Irving Hunter, met on numerous occasions with representatives of the Respondent, Donald Coller and Attorney Marvin Breskin. The first of these meetings occurred on or about March 22, 1972, at which time the Union submitted its demands to the Respondent. At the second meeting on April 18, 1972, the parties reviewed their contract propos- als, and at this time the Company was asking for a 1-year contract, but the Union flatly rejected this proposal, and told Attorney Breskin that there "was no way" to get a I - year contract ratified. During the negotiating session held on May 2, 1972, the Company modified its position and agreed to a 3-year contract, and at a subsequent meeting on May 5, 1972, a complete contract was substantially agreed to. It appears that during the above negotiations an unfair labor practice charge had been filed with the Board by an employee of the Company named Browski. It seems that Browski had been laid off due to a back injury and had been given a medical leave of absence. The Company contends that the Union repeatedly insisted that Browski be returned to work, and if he were not recalled the contract here in question could not be ratified.2 The parties exchanged numerous phone calls during the summer months of 1972 and Attorney Breskin gave credited testimony that on November 8, 1972, he received a call from Union Agent Rumsby making inquiry as to the status of the negotiations. Breskin then informed Rumsby that Browski's case had been settled, and the contract could now be ratified. During the negotiation session on November 28, 1972, Breskin told Rumsby to have the contract ratified, but Rumsby then expressed concern that this would be difficult to do without the leadership of Browski, a union steward, and suggested that the agreement be immediately signed. Attorney Breskin refused on the grounds that ratification by the Union was a condition precedent to signing the contract, and that this had been a mutual 1 All credibility resolutions made herein based on a composite evaluation 2 The Board subsequently dismissed the unfair labor practice charge of the demeanor of the witnesses and the probabilities of the evidence as a involving Browski, but the Company refused to recall Browski until he whole. proved physically able to handle his job. C & W LEKTRA BAT CO. agreement between the parties arrived at as the result of the Union's insistences At the last meeting between the parties on January 9, 1973, there were full agreements reached relative to the few items that remained to be settled on the proposed 3-year contract, and then Attorney Breskin once again asked that the agreement be ratified. The Union considered this demand for ratification to be improper, and contended that ratification had never been agreed to. On January 11, 1973, the Union delivered a 3-year contract to Breskin's law office, which had been signed by the Union's president. To date the Respondent has not signed this instrument because it was not ratified. Final Conclusions While it has been declared that ratification will not be considered as a condition precedent to the conclusion of an agreement, it. nevertheless, can be a gratuitous condition, says the Board, which union negotiators may have imposed upon themselves. Houchens Market of Elizabethtown, Inc., 155 NLRB 729. It is also well established that while the duty to bargain is limited to the subject of wages, hours, and other conditions of employment-each party is free to bargain, or not to bargain, on other matters raised during the negotiations, and to agree or not agree on such matters. Kent Engineering; Inc., 180 NLRB 86. In this instant case the Union did, in fact, insist that ratifications be a condition precedent to the signing of a collective-bargaining agreement with Respondent, and is also clear that as a result of the Union's insistence upon ratification, Respondent changed its bargaining position in order to accomodate the Union's demand. The testimony of Irving Hunter, a union business agent and one who attended most of the negotiations, repeatedly shows that the Union demanded ratification. Hunter even admitted that early in the negotiations the Union informed the Company they had to have the contract ratified. Hunter hinges his testimony on the fact that initially a 3- year contract was offered, but points out the Company then asked for a 1-year proposal, and said that such short- term contracts were never ratified. However, in the instant case, I am not confronted with the Union's policy relative to nonratification on 1-year agreements, because after the Union made their position clear on this matter, the Company revised its 1-year proposal and accepted the Union's 3-year proposal, as aforestated. In this area of the case Hunter's testimony, in part, reflects the following: Q. (Breskin) So you don't really know if Mr. Rumsby ever demanded ratification or not, do you? A. (Hunter) Oh, yes, I set in meetings where he demanded we would have ratification. Q. (Breskin) You'd sit in meetings? When did they occur? A. (Hunter) We had a session with our people, we had a session with you that we had to get it ratified in 3 On December 19, 1972, the Company filed a representation petition with the Board (7-RM-937), and on December 27, 1972, requested its withdrawal On January 16, 1973, the Company filed another RM petition (7-RM-942), and by later dated February 21, 1973, the Board's Acting Regional Director dismissed this petition. 1043 the early stages of the contract, but later on when you came back with the one-year, no way would we ratify a one-year. That's how we got off the ratification. Q. (Breskin) In the beginning of negotiations, you wanted it ratified? A. (Hunter) If you'd bargain in good faith and come up with a three-year agreement, yes. Q. (Breskin) But three-year agreement was finally agreed to. A. (Hunter) That was January 9, a couple years has passed, a lot of water. Q. (Breskin) Wasn't it-wasn't a three-year agree- ment really agreed to on May 5, 1972, providing for 25 cents an hour in each of the three years? A. (Hunter) There was an agreement made at that time and you put it into effect and paid the people. The testimony of the Union's chief negotiator Rumsby also reveals that the Union was asking for ratification. In part, he stated: A. (Rumsby) Let's clear up this question of ratification. I was insistent upon ratification on the basis of a three-year instrument. I would not and I was very explicit, implicit, that I would not attempt to ratify a one-year agreement, which is what you presented us with. As pointed out, in the early negotiations the Company definitely wanted a 1-year contract and so informed the Union. However, at the meeting on May 2, 1972, based on union demands for ratification based on a 3-year contract, the Company modified its position and accepted a 3-year term. At the meeting on May 5, 1972, Rumsby again informed Respondent's Attorney Breskin that the contract could not be put into effect or signed until ratified by his members. Thus, it is clear by the testimony of those who participated in the negotiations that the Union's insistence upon ratification of a 3-year contract was continuous, and that the Company accepted this condition. From the total aspects in this record it is readily discernible that the Union was actually using its nonratification arguments and contentions in efforts to persuade the Company to reinstate Browski, but the Union had always had the policy of having its members ratify 3-year agreements. The testimony of Gerald Title, Albert Ouellette, and Irving Hunter, the three union agents present at the meeting of January 9, 1973, shows that not one of these agents had actually participated in all of the negotiating sessions . Indeed, up to January 9, 1973, Ouellette and Title had not been previously involved in the negotiations at all. Yet, it was during this meeting that the Union insisted that no ratification provision had been agreed upon. Actually, they were in no position to know if ratification had or had not been agreed upon by the parties.4 From the facts noted herein it is increasingly evident that the union agent who 4 Gerald Title, the Union's attorney , testified that the terms he incorporated in the wntten contract delivered on January It, 1973, were drawn from a list compiled by Breskin, and that the list contained those terms which has been basically agreed to as of May 5, 1972, except for ratification. 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drafted the contract had no first-hand knowledge of the terms which had been agreed to. In the final analysis, the Union asked for ratification and insisted upon it, and the Company fully accepted and agreed to this proposal. Therefore, since this condition was a part of the mutual agreement between the parties and constituted an inducement to the Company in agreeing to accept the Union's proposals, it cannot be disregarded. Moreover, this condition precedent to the agreement was neither unlawful nor contrary to public policy, and while it might have been unwise for the Union's representatives to agree to this condition, this is no basis for finding that the condition should be considered a nullity. Nor should it be considered a nullity because it could not later be met by the Union (losing Browski). This development was not known by the negotiators when their mutual agreement on ratification was initially reached. To find that the Compa- ny violated Section 8(a)(5) and (1) of the Act by refusing to execute the contract without the condition precedent having been fulfilled would require the Board to alter the agreement of the parties and which, under these circum- stances, would not be an appropriate exercise of the Board's powers. Kent Engineering, Inc., supra. By reason of all of the foregoing, I find and conclude 5 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. that counsel for the General Counsel has failed to prove by a preponderance of the credible evidence any of the allegations of the complaint herein. Accordingly, and by reason of all the foregoing, I shall order the complaint dismissed in its entirety. Upon the basis of the foregoing findings of fact and upon the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent did not violate any provisions of the Act. Upon the foregoing findings of fact and conclusions of law, and the entire record , I hereby issue the following recommended: ORDERS It is hereby ordered that the complaint filed herein be dismissed in its entirety. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions and order, and all objections thereto shall be deemed waived for all purposes Copy with citationCopy as parenthetical citation