Century Papers, Inc.

National Labor Relations Board - Board Decisions

Jul 21, 1987

284 N.L.R.B. 1151 (N.L.R.B. 1987)

CENTURY PAPERS 1151
Century Papers, Inc. and United Paperworkers
International Union Local 768, AFL-CIO,
CLC. Case 23-CA-10343
21 July 1987
DECISION AND ORDER
BY MEMBERS BABSON, STEPHENS, AND
CRACRAFT
On 3 March 1987 Administrative Law Judge
Richard J. Linton issued the attached decision.
Both the General Counsel and the Respondent filed
exceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed 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, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Century
Papers, Inc., Houston, Texas, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
Tamara Gant, Esq., for the General Counsel.
Neil Martin, Esq. (Fulbright & Jaworski), of Houston,
Texas, far the Respondent.
Billy C. McGilvra, International Representative, of
Lufkin, Texas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. pyrox, Administrative Law Judge. This
is a refusal-to-bargain case with two main questions: (1)
Did Century Papers and Paperworkers Local 768 reach
agreement for a new collective-bargaining agreement
when the Union, on 5 December 1985, accepted Cen-
tury's last contract proposal, and (2) did Century unlaw-
fully Withdraw recognition from Local 768 on 14 Febru-
ary 1986. I answer the first question no, the second yes,
and I order Century, on request, to meet and bargain
with Local 768.
I answer the first question no because neither the offer
nor acceptance included (either expressly or by reference
to past practice) a commencement date for the potential
new collective-bargaining agreement. I answer the
second question yes because Century failed to show that
its withdrawal of recognition was predicated on a rea-
sonable doubt, based on objective considerations, of the
Union's continued majority status.
This case was tried before me in Houston, Texas, on 5
November 1986 pursuant to the 7 August 1986 amended
complaint issued by the General Counsel of the National
Labor Relations Board through the Regional Director
for Region 23. The complaint is based on a charge filed
3 April 1986 by United Paperworkers International
Union, Local 768, AFL-CIO, CLC (the Union, Local
768, or Paperworkers) against Century Papers, Inc. (Re-
spondent or Century).
In the complaint the General Counsel alleges that
about 14 February 1986 the Respondent violated Section
8(a)(5) and (1) of the Act by withdrawing recognition of
Local 768 as the exclusive collective-bargaining repre-
sentative of Respondent's production and maintenance
employees.
By its answer Respondent admits certain factual mat-
ters but denies violating the Act.
On the entire record, including my observation of the
demeanor of the witness and after due consideration of
the briefs filed by the General Counsel' and the Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Texas corporation with a plant in Hous-
ton, Texas, distributes paper and related products at
wholesale. During the past 12 months Respondent pur-
chased and received at its Houston facility products,
goods, and materials valued in excess of $50,000 directly
from points outside the State of Texas. Respondent
admits, and I find, that it is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Local 768 is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Record
The record in this case is mostly documentary. Neither
the General Counsel nor the Charging Party, Paper-
workers Local 768, called any witnesses. As part of its
case-in-chief Respondent called one witness, Michael G.
Moncrief, Respondent's assistant vice president for ad-
ministration (1:25). 2 No rebuttal witnesses testified.
Most of the documents are part of 18 joint exhibits,
with Joint Exhibit 18 being an 11-page stipulation of
facts.
B. Background
The pleadings establish that on 23 May 1963 Local 768
was certified in Case 23-RC-2048 as the exclusive bar-
gaining representative of Century's employees in the fol-
lowing appropriate unit:
All production and maintenance employees, includ-
ing truck drivers, shipping clerks, receiving clerks,
The General Counsel attached a proposed order to her brief.
2 References to the one-volume transcnpt of testimony are by volume
and page.
284 NLRB No. 126
1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
order routers, order fillers, warehousemen, paper-
cutters, and plant clericals employed at the Compa-
ny's Houston, Texas plant; EXCLUDING, office
clerical employees, salesmen, guards, watchmen,
and supervisors as defmed in the National Labor
Relations Act, as amended, and as certified in Case
23-RC-2048.
Since 1963, the pleadings also establish, Century and
Local 768 have been parties to successive collective-bar-
gaining agreements. The most recent collective-bargain-
ing agreement was effective from 29 October 1982
through 29 October 1985.
Respondent admits the complaint allegation that on 14
February 1986 it withdrew recognition from the Union.
As of that date, the parties stipulated, the bargaining unit
consisted of 28 employees (Jt. Exh. 18 at 11).
C. Events Relating to the Bargaining3
The parties met on four occasions in 1985 to negotiate
a renewal collective-bargaining agreement. The dates of
the meetings are 10, 22, and 28 October and 7 November
1985.
Present for Local 768 at the first meeting of 10 Octo-
ber were International Representative Billy McGilvra,
Business Agent Melinda Gilmore, and an employee com-
mittee consisting of Roy Gilliam, Kenneth Jones, and
Thomas Steptoe. Representing Century were Moncrief,
David Moss, manager of operations, and Respondent's
attorney, Neil Martin. Moss attended only the first meet-
ing. The Union submitted a list of proposed contract
changes (Jt. Exh. 1).
On 17 October, before the second session of 22 Octo-
ber, Respondent delivered its contract proposal to the
Union (Jt. Exh. 2). Respondent's proposal did not specify
an effective date and gave no term of duration.
At the second meeting, 22 October, the Union present-
ed a modified proposal. This proposal suggested an effec-
tive date of 29 October 1985 and an effective duration
"until midnight 29 October 1987," with an accompany-
ing provision that if agreement was not reached by 29
October (the expiration date of the then current collec-
tive-bargaining agreement), all wage and benefit in-
creases would be retroactive to 29 October 1985. 4 (Jt.
Exh. 3.) Respondent presented a classification schedule
without any wage rates specified (Jt. Exh. 4).
Federal Mediator Hal Stuckey joined the parties for
their 28 October and 7 November sessions. Business Rep-
resentative Gilmore was not present at these last two
meetings. Although the fact stipulation omits Moncrief s
name as attending with Martin at the last session, Mon-
crief testified that he was present (1:31-32, 56). Appar-
ently the omission from the stipulation was an oversight.
At the 7 November session Respondent submitted its
wage proposal for the job classifications with the min-
8 Most of the events are described m the stipulation of facts (St. Exh.
18). Description of the others is taken, as indicated, from the testimony of
Assistant Vice President Michael G. Moncrief.
4 Moncrief testified that, although negotiations for the prior collective-
bargaining agreement extended beyond the scheduled expiration date, the
renewal contract was made retroactive, except for the wage rates that by
proposal, would not become effective for 6 months (1:27-29).
Mum to be effective at the end of the first payroll period
following execution of the collective-bargaining agree-
ment (Jt. Exh. 5). Although Respondent proposed a
wage cut for the minimum rate of the classifications,
present employees would be redlined, and any increases
during the term of the collective-bargaining agreement
would have to be based on merit.
Also at the 7 November session Respondent proposed
a 3-year contract, in keeping with the duration term of
prior collective-bargaining agreements. McGilvra replied
that the Union did not care about the duration and
would accept a 1-, 2-, or 3-year contract. Nothing fur-
ther was said in negotiations about the duration of the
proposed replacement agreement, and Moncrief testified
that Respondent made no proposal as to specific dates
for commencement or duration (1:32, 58).
By letter dated 15 November Respondent (by Attor-
ney Martin) notified the Union that Century intended to
implement its 7 November wage proposal effective 1 De-
cember 1985. Attorney Martin invited the Union to meet
and discuss Century's intentions.
The Union apparently did not respond to that invita-
tion. However, by letter dated 5 December (Jt. Exh. 7)
McGilvra informed Attorney Martin as follows:
Dear Mr. Martin:
The Union has voted to accept the last proposal
offered by the Company.
Please send the final proposal in tact in order that
it can be proof read by the Committee. Please send
the copy directly to the Union office at 6640 Long
Point Road, Suite F, Houston, Texas, 77055. Please
send the copy to Mrs. Melinda Gilmore, Business
Agent.
Sincerely
Billy C. McGilvra,
Intl. Rep.,
UPIU, Area VI
About 9 or 10 December Thomas Steptoe, a union
committeeman, approached Moncrief in the warehouse
and inquired whether Moncrief had received the Union's
letter. "Yes," Moncrief replied, adding that he was sur-
prised that the Union had accepted the contract because
there were many issues outstanding. Steptoe responded,
"No, we didn't accept the contract, we just want to see a
copy of it."
When Moncrief observed that the letter asserted that
the contract was accepted, Steptoe reiterated, "No, we
just want to see a copy of it." Moncrief stated that as of
that point Century was looking to the Union for a (com-
pleted) copy (1:35; Jt. Exh. 18 at 5).
His interest stirred by Steptoe's comments, Moncrief
found Union Committeeman Roy Gilliam and reported
his conversation with Steptoe. Gilliam confirmed that
the desire was simply to obtain a copy of the contract
for review (1:36).
From Gilliam Moncrief went to committeeman Ken-
neth Jones, but Jones said he no longer had anything to
CENTURY PAPERS 1153
do with that matter and stated he did not want to talk
about it (1:36).5
By letter dated 11 December (Jt. Exh. 8), Attorney
Martin replied6 as follows to McGilvra's acceptance
letter of 5 December:
Dear Mr. McGilvra:
We have received your letter of December 5,
1985, with regard to contract bargaining for the
above-captioned Company.
We are pleased to learn that the Union has voted
to accept the Company's last contract proposal for
a three-year agreement.
You have previously received our proposals
during contract bargaining, and we have no new
contract proposals to make since the Union has rati-
fied our agreement.
We suggest that you prepare the contract for
mutual signatures and forward a copy to us.
Very truly yours,
Neil Martin
For the Firm
Notwithstanding Martin's reference to the 3-year pro-
posal accepted by the Union, one of Respondent's con-
tentions in this case is that no collective-bargaining
agreement was reached because no duration with specific
starting and ending dates was agreed to (Br. 5 (fn. 3) 11,
15). By contrast the General Counsel argues that a 3-
year term was agreed to. She further argues that the
commencement date is supplied by the past practice of
the parties (Br. 18). Presumably that is a reference to
Moncrief s testimony that although negotiations extended
beyond the 29 October expiration date of the 1979-1982
collective-bargaining agreement, the new 1982-1985 col-
lective-bargaining agreement was made retroactive to 29
October 1982 (1:27-29).7
On 23 December 1985 unit employees Thuan Huynh
and Christos Ktenas signed one-line union membership
resignation forms effective that date. Copies were sub-
mitted to the Union and to Century. As of 14 February
1986 (when Respondent withdrew recognition) Century
had not received any more written union membership
resignations.
Moncrief further testified that in late December he
asked committeeman Gilliam how many employees were
in attendance at the contract ratification meeting. An-
swering that, "Yes, there were several employees
present," Gilliam turned away. Pressing on, Moncrief
asked for the identity of the attendees. Apparently re-
ceiving no answer, Moncrief asked whether the attendees
5 Contrary to Respondent's contentions that I should receive generally
the evidence about Moncrief's conversations as an exception to the hear-
say rule, I limited receipt to the basis for Respondent's course of action
(1:34, 38),
6 For some reason the Union did not receive this letter from Martin.
Nevertheless, the parties stipulated that Martin's letter was mailed (Jt.
Exh. 18 at 2, 11).
"In its brief Century, as does the General Counsel, asserts that previ-
ous negotiations made prior contracts retroactive (Br. 4).
consisted of only Gilliam and Steptoe. Gilliam said yes
(1:41-42).5
As we see in a moment, events in January-February
1986 culminated with Century's withdrawing recognition
from the Union. Before summarizing the evidence about
those events, I need to observe that the fact stipulation
contains the following item (Jt. Exh 18 at 11; 1:18):
Joint exhibit 17 contains the terms and conditions of
employment as proposed by Respondent in its final
contract offer of November 7, 1985.
That stipulation is slightly misleading. Joint Exhibit 17,
a document of 36 numbered pages, purports to be the
complete renewal contract (except for signatures) be-
tween Century and Local 768. The cover page also
states, "December 4, 1985 through December 4, 1988."
Moncrief testified that on 30 October 1986 (6 days before
our hearing opened) he received a document similar to
Joint Exhibit 17, except that the latter contains some
changes from the document that he received on 30 Octo-
ber 1986 (1:44, 47). Accompanying the document he re-
ceived on 30 October, Moncrief testified, was a letter
(not in evidence) from the Union stating that the docu-
ment was (a finalized copy of) the contract that had been
ratified and requesting that Moncrief sign (1:47).
Later I summarize Moncrief s testimony concerning
the differences between Joint Exhibit 17 and the docu-
ment he received on 30 October 1986. We now can
return to the events of January-March 1986.
D. Respondent's Withdrawal of Recognition
1. Expressions of employee dissatisfaction with the
Union
During the January-February 1986 period some 21
employees expressed dissatisfaction with the Union either
directly to supervision or in comments overheard by su-
pervisors. At some point in February, Warehouse Man-
ager Roger Johnson submitted an undated memo to Op-
erations Manager David Moss in which he reported,
"The following have indicated that they do not desire to
continue being represented by the United Paperworkers
union." (Jt. Exh. 11.) Johnson then made three columns
with each headed by the name of a supervisor: Steven
James Clare, Daniel Dale Glass, and Alvis Wayne
Tabner. As reflected in the pleadings and fact stipulation,
Clare is a shipping supervisor, Glass is a shipping super-
visor, and Tabner is the night warehouse supervisor.
Johnson listed 6 names under Clare, 7 under Glass, and 6
under Tabner, for a total of 19.5
8 Notwithstanding Respondent's assertion that Gilliam was outside the
hearing room under subpoena by the General Counsel, I sustained the
General Counsel's objection and limited this evidence to show the basis
for Respondent's course of action (1:40). The value of this evidence, so
limited, is dubious. The basis of an employer's course of conduct is im-
portant in, for example, a discharge case where motivation is the critical
inquiry. Here, however, the inquiry looks to objective facts proved by
nonhearsay evidence.
9 Kenneth Jones and Willie Harrell, the 2 who complete the total of
21, are discussed in the fact stipulation. I refer to them below.
1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Of the 19 names, 12 appear on Respondent's computer
listing of 21 employees on dues checkoff as of 27 Octo-
ber 1985 (it. Exhs. 13, 18 at 10)." Thuan Huynh and
Christos Ktenas, 2 of the 12, resigned from the Union on
23 December 1985, as previously discussed. That leaves
seven who were not on dues checkoff."
In her brief the General Counsel argues that lack of
union membership in no way demonstrates that an em-
ployee no longer desires representation by the Union, par-
ticularly in Texas, a right-to-work State, and that the evi-
dence about low attendance at the ratification meeting is
meaningless because that is an internal union matter (Br.
25-26).
The fact stipulation agreed to by the parties devotes
nearly seven pages to a description of the expressions of
employee discontent (it. Exh. 18 at 3-10). The stipula-
tion reflects that Johnson's February 1986 memo to Moss
about employees not desiring to be represented by the
Union was based on the description of comments appear-
ing in the stipulation.
Counsel for the General Counsel argues, in effect, that
most of the comments are irrelevant because they are
nothing more than expressions of dissatisfaction with the
Union, and it is well settled that criticism of a union
cannot be equated with a desire that the Union not be
the bargaining representative."
Most of the comments fall into one or both of two cat-
egories: criticism/dissatisfaction or intention to abandon
fmancial support of the Union. For example, around Feb-
ruary 1986, when the Union posted a notice concerning
an increase in dues, employees Breedlove Eggleston,
Claude Phillips, Jerry Thompson, and Wilbert Wiley
told Supervisor Tabner, at different times, that they were
unhappy with the Union's representation and were not
going to pay any more union dues (it. Exh 18 at 3).
Employee Dane Booker told Supervisor Glass, when
Glass distributed paychecks one payday, that he was
thinking of joining the Union, but it seemed that no one
was representing him, and, to a nearby employee, "Why
join if no one represents us?" (it. Exh. 18 at 5.) Employ-
ees John Harris, John Taylor, and Craig Thomas, on sep-
arate occasions (but dates unknown), told Glass that they
were dissatisfied with the Union. Harris said he did not
know why union dues were being deducted because the
Union was not doing anything for the employees (it.
Exh. 18 at 6).
Similarly, Supervisor Clare overheard employees in
the lunchroom saying they saw no purpose in paying
union dues because they were not getting anything out
of it. The employees were John Harris, Willie Harrell,
and Tony Pharms. In early February other employees
who told Clare they were "not happy" with the Union,
and that they were "unhappy" with the dues increase,
10 Although 22 names appear on Jt. Exh 11, 1 of these employees ap-
parently left the payroll or is not counted by the parties for some other
reason
11 Of course, the computation also reflects that 9 of the 21 on dues
checkoff are not among those reported by Johnson as having expressed a
desire not to be represented by the Union any longer.
12 Br. 28 Her cited cases mclude Thomas Industries, 255 NLRB 646,
647 (1981), modified on other grounds 687 F.2d 863 (6th Cir 1982).
are Thuan Huynah, Christos Ktenas, Don Johnson, Tony
Pharms, and Jewel Seymour (it. Exh. 18 at 7-9).
In early February employee Kenneth Jones told Ware-
house Manager Johnson that he was "fed up" with the
Union (It. Exh. 18 at 4).
At least three employees said they either did not want
to be part of the Union or wanted nothing to do with the
Union. They are Alfred Sandova1, 13 G. Rocio, and John
Harris 14 (Jt. Exh. 18 at 4, 6, and 10).
The foregoing does not treat each of the 21, but the
sample given reflects the nature of the comments of all.
Not one employee said he did not want the Union in the
plant. No employee said he did not want to be represent-
ed by the Union, although two employees said either
they did not want to be part of the Union (Alfred Sando-
val) or that they did not want to have anything to do
with the Union (G. Rocio). Even if the comments of
Sandoval and Rocio should be construed as rejection of
representation by Local 768, the number falls far short of
majority rejection of representation.
2. The correspondence
By letter dated 14 February 1986, Respondent, by
counsel, withdrew recognition as follows (it. Exh. 12):
Dear Mr. McGilvra:
Please be advised that Century Papers, Inc. has
received objective evidence that your Union no
longer represents a majority of the employees in the
bargaining unit.
Based upon this objective evidence, the Company
has a good-faith doubt that you continue to be the
majority bargaining representative of the employees
in an appropriate bargaining unit and, therefore,
withdraws recognition from your Union and will
cease recognizing your Union as the representative
of any of its employees.
Very truly yours,
Neil Martin
For the Firm
Nearly a month later, on 12 March, Moncrief posted a
notice to employees reading (it. Exh. 14):
IMPORTANT EMPLOYEE NOTICE
Since a majority of you indicated to us that you
no longer wished to be represented by the Paper-
workers Union, the Company has advised the
Union that it has stopped looking to the Union as
your bargaining agent.
Because there is no union representing any Hous-
ton warehouse employees or drivers, the Company
will not have to eliminate the second shift wage
premium, as would have been required by the labor
contract.
13 Sandoval made this statement to Warehouse Manager Johnson in
February 1986.
14 Harris expressed this sentiment to Assistant Vice Presdent Moncrief
m January 1986.
CENTURY PAPERS 1155
The Company will now continue, as a non-union
Company, to periodically review employees for
merit wage increases and to improve fringe benefit
programs as business permits.
If you have any questions about this change,
please contact the undersigned.
Michael G. Moncrief
Asst. Vice President
Without acknowledging Attorney Martin's withdrawal
of recognition letter, McGilvra, by letter dated 13
March, wrote Moncrief as follows (Jt. Exh 15):
Dear Mr. Moncrief:
I am with the understanding that notices have
been posted at the plant notifying all bargaining unit
employees that the Union will no longer be recog-
nized by Century Papers, Inc.
As you well know, a contract was entered into in
November of 1985, and will run for a three (3) year
period; although you have ignored my request for a
finalized copy of the contract for proof reading and
signing.
This conduct will not be tolerated; and if any fur-
ther actions of this kind continue, a charge will be
filed with the U.S. Department of Labor.
If you are willing to submit a finalized copy of
the contract in order that it can be proof read,
please do so at your earliest convenience and a
meeting will be set up. If you would like to discuss
this matter any further, please notify the Union
office.
Sincerely,
Billy C. McGilvra,
Intl Rep., Area VI
The final item (until the Union's letter on 30 October
1986 transmitting the purported finalized copy of the col-
lective-bargaining agreement to Moncrief) is a letter of
18 March from Attorney Martin to McGilvra (Jt. Exh.
16). After acknowledging the Union's letter of 13 March
to Century, Martin states:
As we have previously advised you, the Compa-
ny no longer recognizes your Union as the bargain-
ing representative of any of its employees. It, there-
fore, correspondingly refuses to enter into any con-
tractual relationship on behalf of any of its employ-
ees with your Union.
The Company intends to take no further action
with regard to these matters.
On 3 April the Union filed its charge in this case, and
Region 23 served it by mail by the following day. The
original complaint issued on 21 May and the amended
complaint on 7 August 1986.
E. The Union's Document of 30 October 1986
Previously I noted that the Union delivered a docu-
ment to Moncrief on 30 October 1986 purporting to be a
finalized copy of the collective-bargaining agreement ac-
cepted by the Union on 5 December 1985. For some
reason the parties did not offer in evidence the Union's
transmittal letter.
There are a handful of differences among the three
documents (Respondent's 7 November 1985 contract
proposa1, 15 the document delivered by the Union to
Century on 30 October 1986, and the 30 October 1986
document as produced at the hearing, Jt. Exh. 17). The
origin and reason for the discrepancies appearing on the
document (Jt. Exh. 17) offered at the hearing are unex-
plained and unnecessarily add a weird twist to the case.
Several of the differences relate to the date and dura-
tion. The chart I set out below reflects the differences in
summary fashion:
Topic 30 OctoberExh. 2 1986 Exh. 17
Cover Page (No cover [Moncrief Term is
page). does not typed at
address]. bottom as
em-
ber 4,
1985
through
December
4, 1985"
Preamble Date of Date Date whited
agreement inserted over
left blank, of "4th
P. 1 - day of
December
1985"
(1:48, 49
Moncrief).
Art. XIII No record
Vacations. explana-
tion for
addition
of a new
paragraph
at p. 13
Art. XVI Stoppage Reference Both Both
of work. to references references
"sympa- deleted inserted at
thy (1:50-51, p. 24
strike" Moncrief).
appears
twice, p.
29-30.
15 We must keep in mind that Respondent's 7 November 1985 proposal
actually consists of its contract proposal of 17 October 1985 (it. Exh. 2),
its classification and wage proposals of 22 October (Jt. Exh. 4) and 7 No-
vember (Jt. Exh. 5), plus its duration proposal of 3 years made vocally at
the fourth and last bargaining session of 7 November 1985.
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 OctoberTopic A Exh. 2 1986 Jt. Exh. 17
Art. XXIV Beginning Beginning Dates
Duration, and date of whited
ending December over in
dates left 4, 1986 sec. 3 at
blank in and p.33
sec. 3 at ending
p. 36. date of
December
4, 1988
added to
sec. 3 at
p.33
(1:51,
Mon-
crief)..
Art. XXV Sec. 3 Clause Unclear
Equipment present at added to whether a
Safety. p. 36, but sec. 2 at word
has the p. 34. Sec. whited
marginal 3 deleted over in
note of (1:52, sec. 2;
"delete.". Moncrief). sec. 3
reinserted
Execution clause Date of (Moncrief Execution
execution did not date given
left blank address). as this 4th
at p. 37. day of
"Decem-
ber 1985"
at p. 35
Exhibit B None Attached Deleted
attached. and listed (1:13)
in the (Supplied
Index for the
(Con- record as
tents). IL Exh. 1)
(Exh. B is
simply a
one-page
organiza-
tional
chart for
the
ware-
house.
Moncrief
testified
that such
an exhibit
was
attached
to prior
contracts,
1:53).
F. Analysis and Conclusions
1. No meeting of the minds
Section 8(d) of the Act defines collective bargaining as
including the duty, when requested, to execute a written
contract which incorporates "any agreement reached."
See, generally, 1 The Developing Labor Law 566 (C.
Morris 2d ed. 1983) and the 1982-1984 First Supplement
at 149 (1985). The agreement may be oral," and each
party is obliged to assist in reducing the agreement to
writing. Kennebec Beverage Co., 248 NLRB 1298 (1980).
For the duty to execute to be triggered, agreement
must have been reached on all material or substantive
terms." As this prerequisite is frequently phrased, there
must be a "meeting of the minds" as to all substantive
terms. 18 Although correctable discrepancies appearing in
the typing or integration process do not relieve a party
from the duty to assist in assembling a document which
reflects the agreement reached by the parties," terms or
conditions missing as a result of the parties' failure to
agree about substantive terms cannot be supplied by the
Board or an administrative law judge. Interprint, supra.
The commencement, or effective, date of the agreement
is an essential substantive term. Mercedes-Benz of North
America, 258 NLRB 803 (1981).
On 5 December 1985 the Union accepted Respond-
ent's last contract proposal. There is no dispute that if
Respondent's last contract proposal was complete
(whether written or oral) as to substantive terms then
both parties, by the offer and acceptance, became bound
by the terms of that collective-bargaining agreement.
This case arises because the parties disagree about
whether the "agreement" was complete. The principal
dispute centers on whether the new "agreement" has a
commencement date." If there is no commencement
date, there is no collective-bargaining agreement, for the
commencement date is an essential substantive term.
Mercedes-Benz, supra.
The Union's early proposals (10 and 22 October 1985)
specified a 2-year collective-bargaining agreement effec-
tive 29 October 1985, but Respondent's written proposal
of 17 October was blank as to dates (Jt. Exh. 2 at 35-36).
Although Respondent's oral proposal, made at the fourth
and last session of 7 November, was for a 3-year term,
nothing was said then, or at any time, about a com-
mencement date.
The Government's position here is that the effective,
or commencement, date is supplied by the past practice
of the parties. As I summarized earlier, the recent past
practice of the parties has been to fix the effective date
as 29 October even though a renewal agreement was not
reached until after 29 October (with the wage clause ap-
plied prospectively). In support of her position, the Gen-
eral Counsel cites cases such as Diplomat Envelope Corp.,
263 NLRB 525, 536 (1982), and Kennebec Beverage Co.,
supra.
Arguing that I have no authority to "supply" an effec-
tive date based on the past practice, the Respondent
relies on Mercedes-Benz of North America, 258 NLRB 803
16 Electra-Food Machinery, 241 NLRB 1232 (1979), enfd. 621 F.2d 956
(9th dr. 1980).
'17 Koenig Iron Works, 282 NLRB 717, 718 (1987); Lithochrome Corp.,
276 NLRB 1190 fn. 1(1985), Interprint Co., 273 NLRB 1863 (1985); Ken-
nebec Beverage, supra.
18 Lithochrome Corp., id.; Interprint Co., supra at 1865; Diplomat Enve-
lope Corp., 263 NLRB 525, 535 (1982).
19 Georgia Kraft Co., 258 NLRB 908, 911-912 (1981), enfd. 696 F.2d
931 (11th Cir. 1983); Kennebec Beverage, supra.
20 Clearly a 3-year term was proposed and accepted.
CENTURY PAPERS 1157
(1981), as being dispositive. 21 In her posthearing brief
the General Counsel neither cites nor attempts to distin-
guish Mercedes-Benz, supra.
In my opinion Mercedes-Benz is controlling. The facts
there (other than the strike) are similar to ours. Each of
six prior contracts commenced on 1 February even
though in 1 year, 1974, a strike of 11 days began on 1
February. The current negotiations stalled over wages,
and a 1-month strike began 1 February 1980 with em-
ployees returning to work on Monday, 3 March 1980.
The parties had agreed to a 2-year term, but a com-
mencement date was not specified. The typed document
submitted by the employer set a commencement date of
1 March 1980. The union insisted that the correct date
should be 1 February 1980. At the hearing the parties
stipulated that they did not discuss the commencement
date during negotiations. After analyzing the significance
of the wage clause, the administrative law judge found
that the 1 February date was not correct, and that the
parties had, in effect, agreed to a commencement date of
3 March, the date the employees returned from the
strike. He then dismissed the complaint (which relied on
a commencement date of 1 February 1980).
Although adopting the judge's dismissal of the com-
plaint, the Board rejected his basis that the parties
reached agreement on a commencement date of 3 March.
The Board dismissed, but it did so because (258 NLRB
at 803):
Rather, we find it clear from the record as a whole,
and particularly in light of the parties' stipulation
that they had not discussed a date for the com-
mencement of the contract, that the parties did not
reach a meeting of the minds on that issue. There-
fore, as the General Counsel has failed to establish
by a preponderance of the evidence that the parties
agreed to a February 1 commencement date for the
contract, we fmd that Respondent did not violate
the Act by refusing to execute a collective-bargain-
ing agreement which included that date.
It may well be that Century understood that the effec-
tive date was to be 29 October. 22 The point is that Cen-
tury never made this known." And by 30 October 1986
the Union had become confused about the appropriate
date, first inserting 4 December 1985 as the commence-
ment date in the duration clause, and then, in a bizarre
move, whiting out the dates in the document (Jt. Exh.
17) offered at the hearing.
The General Counsel contends (Br. 16) that when Re-
spondent Sent its letter of 11 December 1985 advising the
Union to draft the integrated document for signing,
21 As additional authority that a judge cannot supply dates not agreed
to by the parties, Respondent cites Joey's Stables, 279 NLRB 728 (1986),
and Interprint Co., 273 NLRB 1863 (1985).
22 It may also be, as the General Counsel argues (Br. 11), that Re-
spondent's concern over the effective date came later, "when it had de-
cided to withdraw recognition and did not want to be bound to the very
proposal it had propounded." But that, also, is beside the point.
23 The decision here might well be different if Century had made even
a slight reference indicating that the effective date would be, for example,
"as usual." Such a circumstance would invoke the past practice, and it
would be the parties, not the judge, supplying the commencement date.
"there was no doubt in Respondent's mind that the con-
tract was effective, if no sooner, then at least upon accept-
ance." (Emphasis added.) The General Counsel apparent-
ly would invite me to receive the same criticism the
Board pointedly expressed about the judge's identical
reasoning in Interprint Co., 273 NLRB 1863 (1985). I de-
cline that invitation.
Because there was no "meeting of the minds" concern-
ing a substantive term (the commencement date) 24 of the
proposed collective-bargaining agreement, I find, con-
trary to the allegation in complaint paragraph 11, that on
5 December 1985 the Union and Respondent did not
reach a "full and complete agreement with respect to
terms and conditions of employment of the employees in
the Unit."
Although the employees, after 29 October 1985,
worked without benefit of a collective-bargaining agree-
ment, the Union, on a rebuttable presumption, remained
their bargaining representative. Guerdon Industries, 218
NLRB 658, 659 (1975). And that brings us to Respond-
ent's withdrawal of recognition.
2. Withdrawal of recognition unlawful
Complaint paragraph 12 (in conjunction with conclu-
sionary par. 13) alleges that Respondent violated Section
8(a)(5) and (1) of the Act by withdrawing recognition
from the Union on 14 February 1986.
The established rule is that, following expiration of a
collective-bargaining agreement, an employer may rebut
the presumption of majority status and withdraw recog-
nition from the union if the employer demonstrates that,
on the date of withdrawal and in a context free of unfair
labor practices, the union (1) in fact had lost its majority
status, or (2) that the withdrawal was predicated on a
reasonable doubt, based on objective considerations, of
the union's majority status. Master Slack Corp., 271
NLRB 78, 84 (1984); Abbey Medical/Abbey Rents, 264
NLRB 969 (1982), enfd. mem 709 F.2d 1517 (9th Cir.
1983).
The withdrawal must be in a context free of unfair
labor practices. Master Slack, supra. The General Coun-
sel argues that Respondent's evidence of employee dis-
satisfaction is tainted by Moncriefs interrogating unit
employees Roy Gilliam and Kenneth Jones about 10 De-
cember 1985 concerning the Union's letter of 5 Decem-
ber 198525 and, in late December 1985, employee Gil-
liam concerning the number and identity of employees
present at the ratification meeting. Citing Johnnie's Poul-
try Co., 146 NLRB 770, 775 (1964), enf. denied 344 F.2d
617 (8th Cir. 1965), the General Counsel argues that Re-
spondent violated Section 8(a)(1) of the Act when Mon-
crief interrogated Gilliam and Jones in December 1985,
24 1 need not resolve whether the other discrepancies were nothing
more than correctable errors associated with the typing or integration
process on which Respondent had a duty to assist in resolving
25 The General Counsel observes that there is no evidence Moncrief
had any objective basis for doubting majority status before he ap-
proached employees Gilliam and Jones.
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and she seeks a finding of such on the theory that the
matter was fully litigated by implied consent."
I need not resolve the fully litigated contention, or
pass on the taint theory, because I fmd that Respondent's
evidence, in any event, is insufficient to justify a finding
of good-faith doubt. This is so because the evidence here
falls far short of meeting the standard necessary to justify
the good-faith doubt claimed by Respondent in its letter
of 14 February 1986. As summarized earlier, the evi-
dence of employee dissatisfaction falls into the category
of criticism rather than repudiation, and mere criticism is
insufficient. Thomas Industries, 255 NLRB 646, 647
(1981), modified on other grounds 687 F.2d 863 (6th Cir.
1982).
As Century failed to carry its burden of demonstrating
that it possessed a good-faith doubt of the Union's con-
tinued majority status when Century withdrew recogni-
tion on 14 February 1986, I find, as alleged, that Re-
spondent violated Section 8(a)(5) and (1) of the Act
when it withdrew recognition from the Union.
CONCLUSIONS OF LAW
1. Respondent Century Papers, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Paperworkers Local 768 is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following employees of Century Papers consti-
tute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees, includ-
ing truck drivers, shipping clerks, receiving clerks,
order routers, order fillers, warehousemen, paper-
cutters, and plant clericals employed at the Compa-
ny's Houston, Texas plant; EXCLUDING, office
clerical employees, salesmen, guards, watchmen,
and supervisors as defined in the National Labor
Relations Act, as amended, and as certified in Case
23-RC-2048.
4. At all times material Local 768 has been the exclu-
sive collective-bargaining representative of all the em-
ployees in the unit described above for the purposes of
collective bargaining within the meaning of Section 9(a)
of the Act.
5. When Local 768 accepted Century's last offer of 7
November 1985, including a 3-year term, a collective-
bargaining agreement was not created because neither
the offer nor acceptance contained an effective date of
commencement; hence, there was no meeting of the
minds on all substantive terms.
6. Respondent violated Section 8(aX5) and (1) of the
Act on 14 February 1986 when it withdrew recognition
from the Union as the bargaining representative of the
employees in the appropriate unit.
7. The unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
26 Acknowledging that the complaint contains no allegation regarding
this, the General Counsel observes that she was unaware of the interroga-
tions until Moncrief described them in his testimony (Br 23-24).
THE REMEDY
Having found that Respondent acted unlawfully by
withdrawing recognition from the Union and by refusing
to bargain with it, I shall order Respondent to cease and
to take affirmative action designed to effectuate the poli-
cies of the Act.
As part of the order I shall direct Respondent to give
written notification to the Union that Respondent re-
scinds its 14 February 1986 letter withdrawing recogni-
tion, that it recognizes the Union as the exclusive bar-
gaining representive of Respondent's employees in the
appropriate unit, and that it is prepared, on request, to
bargain with the Union.
The General Counsel requests that the order be ex-
panded to include authority for discovery as part of a vi-
sitatorial provision. The request for a visitatoiial provi-
sion is denied. Vaughn & Sons, 281 NLRB 1082 (1986);
Pence Construction Co., 281 NLRB 322 (1986).
On these fmdings of fact and conclusions of law, and
the entire record, I issue the following recommended27
ORDER
The Respondent, Century Papers, Inc., Houston,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Paperwork-
ers Local 768 as the exclusive bargaining representative
of the employees in the unit described below.
(b) In any like or related manner interfering with, re-
straining, 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) Notify Local 768 in writing that Century Papers
rescinds it letter of 14 February 1986 withdrawing recog-
nition from the Union, that Century Papers recognizes
the Union as the exclusive bargaining representative of
the employees in the unit described below, and that, on
request, it will meet and bargain with the Union.
(b) On request, bargain with the Union as the exclu-
sive representative of the employees in the following ap-
propriate unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement:
All production and maintenance employees, includ-
ing truck drivers, shipping clerks, receiving clerks,
order routers, order fillers, warehousemen, paper-
cutters, and plant clericals employed at the Compa-
ny's Houston, Texas plant; EXCLUDING, office
clerical employees, salesmen, guards, watchmen,
and supervisors as defined in the National Labor
Relations Act, as amended, and as certified in Case
23-RC-2048.
27 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
CENTURY PAPERS

1159
(c) Post at its Houston, Texas facility copies of the at-
tached notice marked "Appendix." 28 Copies of the
notice, on forms provided by the Regional Director for
Region 23, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
28 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain with
Paperworkers Local 768 as the exclusive bargaining rep-
resentative of all the employees in the unit described
below.
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 notify the Union, in writing, (1) that we re-
scind our letter of 14 February 1986 withdrawing recog-
nition from Paperworkers Local 768, (2) that we recog-
nize Local 768 as the exclusive bargaining representative
of the employees in the appropriate unit, and (3) that we
will, at the Union's request, meet and bargain with the
Union.
WE WILL, on request, bargain with Union and put in
writing, and sign, any agreement reached on terms and
conditions of employment for our employees in the bar-
gaining unit:
All production and maintenance employees, includ-
ing truck drivers, shipping clerks, receiving clerks,
order routers, order fillers, warehousemen, paper-
cutters, and plant clerical employed at our Houston,
Texas plant; EXCLUDING, office clerical employ-
ees, salesmen, guards, watchmen, and supervisors as
defined in the National Labor Relations Act, as
amended, and as certified in Case 23-RC-2048.
CENTURY PAPERS, INC.