C & W Lektra Bat Co.

National Labor Relations Board - Board Decisions

Apr 3, 1974

209 N.L.R.B. 1038 (N.L.R.B. 1974)

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