Crown Cork & Seal Co.

National Labor Relations Board - Board Decisions

Feb 24, 1984

268 N.L.R.B. 1089 (N.L.R.B. 1984)

CROWN CORK & SEAL CO.
Crown Cork & Seal Company, Inc. and Teamsters
Local Union No. 688, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
14-CA- 16021
24 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 14 June 1983 Administrative Law Judge
Elbert D. Gadsden issued the attached decision.
The Respondent filed exceptions and a supporting
brief, counsel for the General Counsel filed excep-
tions and a supporting brief.
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 only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by withdrawing
its settlement offer after the Union had accepted it
and by refusing to sign a contract in accordance
with agreement reached with the Union. For the
following reasons, we find merit in the exceptions
raised with respect to these findings.
The significant facts are that on 28 July 1980 the
Union was informed by letter that the Respondent
intended to close its St. Louis, Missouri plant by
the end of September 1980. Responding to this
letter, the Union asked the Respondent to bargain
with it over the effects of the closing. The Union
and the Respondent had the first of several meet-
ings in August 1980 to discuss the closing. Present
at those meetings were the Respondent's industrial
relations director, Harold Abrams, and Kenneth
DeGrande, the Union's business representative. In
the last meeting, held on 8 May 1981, the Respond-
ent proposed a lump-sum settlement of $40,000 to
be distributed to all production and maintenance
employees. The Union rejected the offer. Howev-
er, DeGrande told Abrams he would get back to
him and see what could be worked out.
During May, June, and July, Abrams and De-
Grande had several telephone conversations about
the closing of the plant. On 13 July 1981 the Union
and the Respondent reached a final agreement in
settlement of severance pay for the clerical em-
ployees. That agreement was signed 22 July 1981.
The issue of settlement for production and mainte-
nance employees was still outstanding.
268 NLRB No. 164
The Union and the Respondent did not have any
further discussions until 4 January 1982 when De-
Grande called Abrams and advised the Respondent
that the Union might accept the $40,000 settlement.
According to Abrams' testimony, DeGrande began
the conversation by saying, "I assume the $40,000
is still on the table." Abrams replied, "You've got
to be kidding." DeGrande answered that he was
not kidding.
After checking with the Respondent's president,
Abrams told DeGrande on 13 January 1982 to send
its proposition in writing. The Respondent received
the Union's written reply on 21 March 1982 and on
20 April 1982 informed the Union in writing that
the decision to accept the $40,000 settlement was
too late.
Finding that the Respondent never withdrew its
offer before receiving the Union's acceptance, the
judge concluded that the Respondent's settlement
offer was still viable on 4 and 13 January when the
Union orally accepted and on 21 March when the
Union accepted in writing. The judge ordered the
Respondent to sign and execute a written contract
reflecting the $40,000 settlement.
The judge relied on Pepsi-Cola Bottling Co., 251
NLRB 187 (1980), enfd. 659 F.2d 87 (8th Cir.
1981), where the Board adopted a judge's finding
that a company's 12 July offer, rejected by the
union on 16 July, was still viable on 30 July when
the union accepted the offer. The Board held that
it was not bound by the technical rules of contract
law and that: "a complete package proposal made
on behalf of either party through negotiations re-
mains viable, and upon acceptance in toto must be
executed as part of the statutory duty to bargain in
good faith, unless expressly withdrawn, prior to
such acceptance . . ." Pepsi-Cola Bottling Co., 251
NLRB at 189.
In enforcing the Board's decision, the Eighth
Circuit stated that "a contract offer is not automati-
cally terminated by the other party's rejection or
counterproposal, but may be accepted within a rea-
sonable time unless it was expressly withdrawn
prior to acceptance, was expressly made contingent
upon some condition subsequent, or was subject to
intervening circumstances which made it unfair to
hold the offeror to his bargain." Pepsi-Cola Bottling
Co. v. NLRB, 659 F.2d at 89-90.
The Respondent urges the Board to reconsider
and overrule its decision in Pepsi-Cola, above. Even
if Pepsi-Cola is not overruled, the Respondent con-
tends that its 8 May settlement offer had lapsed
before the Union accepted it.
We need not pass on the Respondent's request to
overrule Pepsi-Cola. Rather, we agree with the Re-
spondent's contention that the Union did not
1089
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accept the settlement offer within a reasonable
time. The Board has held that what is reasonable
always depends on surrounding circumstances.
Worrell Newspapers, 232 NLRB 402 (1977).
Under the circumstances in this case, we hold
that the Respondent's offer had lapsed. The Re-
spondent had notified the Union of its decision to
close the St. Louis plant over a year before it
ceased operations. The parties had met a number of
times to negotiate a settlement and in fact had
reached a settlement for the clericals. After making
its $40,000 settlement offer, the Respondent contin-
ued to wind down its operation and finally closed
sometime in November or December 1981, 1
month before the Union's oral acceptance in Janu-
ary and 3 months before the Union's written ac-
ceptance. At least 10 months had passed between
the Respondent's offer in May 1981 and the
Union's written reply on 19 March 1982. During
that time there was a period of 5 months where the
Union and Respondent did not communicate at all.
Thus, this is a case where an offer was ignored for
an unreasonable period of time thereby leading the
party making the offer to believe the offer was not
being considered. See Worrell Newspapers, 232
NLRB at 407.
We distinguish this case from Pepsi-Cola. Unlike
the 8- to 10-month lapse between the Respondent's
offer and the Union's acceptance, the period in
Pepsi-Cola between the company's offer and the
union's acceptance was 18 days.
We see no reason to justify holding that the Re-
spondent's offer remained open for such an exten-
sive period of time and thus find that the Respond-
ent's $40,000 settlement offer had lapsed before
either the Union's oral or written acceptance. We
therefore conclude that the Respondent has not
violated Section 8(a)(5) and (1) of the Act. Accord-
ingly, we shall dismiss the complaint.
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge:
Upon a charge of unfair labor practices filed on June 21,
1982, by Teamsters Local Union No. 688, herein called
the Union or the Charging Party, against Crown Cork
and Seal Company, Inc., herein called the Respondent,
the Regional Director for Region 14 issued a complaint
on behalf of the General Counsel on December 10, 1982,
which was amended at the hearing herein.
In essence the complaint alleges that on May 8, 1981,
the Respondent tendered a monetary offer for distribu-
tion to employees affected by the closing of its St. Louis,
Missouri plant; that the Union tendered its acceptance of
the monetary offer about March 19, 1982; that on or
about April 20, 1982, the Respondent withdrew its mone-
tary offer and, by so doing, it interfered with, restrained,
and coerced employees in the exercise of their Section 7
rights in violation of Section 8(aXl) of the Act; and
thereby correspondingly refused to bargain collectively
with the representative of its employees in violation of
Section 8(aX5) of the Act.
The Respondent filed an answer on December 14,
1982, which was amended at the hearing, denying that it
has engaged in any unfair labor practices as set forth in
the complaint.
A hearing was held before me in St. Louis, Missouri,
on March 11, 1983. Briefs have been received from
counsel for the General Counsel and counsel for the Re-
spondent, respectively, which have been carefully con-
sidered.
On the entire record in this case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Crown Cork & Seal Company, Inc., the Respondent
herein, is, and has been at all times material herein, a
corporation duly organized to do business under the laws
of the State of Missouri. In such capacity, at all times
material herein, the Respondent has maintained its princi-
pal office and place of business at 9300 Aston Road, P.O.
Box 6208, Philadelphia, Pennsylvania, herein called the
Respondent's office. The Respondent also maintains
other facilities in numerous States, but its facility formal-
ly located at St. Louis, Missouri, is the only facility in-
volved in this proceeding.
During the 12-month period ending November 30,
1982, a representative period of the Respondent's busi-
ness operations, the Respondent, in the course and con-
duct of its business operations, manufactured, sold, and
delivered at its Pennsylvania facilities products valued in
excess of $50,000 of which products valued in excess of
$50,000 were shipped from said facilities directly to
points located outside the Commonwealth of Pennsylva-
nia.
The complaint alleges, the answer admits, and I find
that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
1. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that Teamsters Local Union No. 688, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, the Union
herein, is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
1090
CROWN CORK & SEAL CO.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Respondent, Crown Cork & Seal Company, Inc.,
is formally engaged in the manufacture, nonretail sale,
and distribution of containers and related products at its
St. Louis, Missouri facility. At all times material during
that period, the Union has been and the Respondent has
recognized the Union as the designated exclusive collec-
tive-bargaining representative of its employees in the unit
described below:
All production and maintenance employees, exclud-
ing direct representatives of management such as
executive, supervisory employees, time study men,
office and clerical employees, chief shipping clerk,
(receiving clerk) and plant guards, as defined under
existing law, or those employees carried by union
agreement with the Graphic Arts International
Union, International Brotherhood of Electrical
Workers and the International Association of Ma-
chinist and Aerospace Workers.
Such recognition by the Respondent of the Union herein
has been embodied in successive collective-bargaining
agreements, the most recent of which was effective by
its terms for the period March 5, 1979, to March 7, 1982.
At all times material herein, Harold Abrams was a su-
pervisor of the Respondent within the meaning of Sec-
tion 2(11) of the Act and its agent within the meaning of
Section 2(13) of the Act.
At all times material herein, Kenneth De Grande was
the business representative of Teamsters Local 688, and
in that capacity represented the Respondent's office cler-
ical employees, as well as its production and maintenance
employees. As such, De Grande oversaw and policed the
administration of the collective-bargaining agreement be-
tween the Respondent and the production and mainte-
nance employees (G.C. Exh. 3).
The Respondent closed its St. Louis, Missouri facility
about November 1980.1
B. Efforts by the Respondent and the Union to
Achieve a Settlement Agreement With Respect to the
Respondent's Plant Closing
Union Business Representative Kenneth De Grande
undisputedly testified that prior to July 28, 1980, he
learned from the Respondent's manager, Chen Worth,
that the Respondent was planning to close the St. Louis
facility. Subsequently, he received a letter dated July 28,
1980, from the Respondent's director of industrial rela-
tions, Harold Abrams, the substance of which was as fol-
lows:
A decision has been made and it now becomes
my duty to officially inform you that the St. Louis,
Missouri Plant will be closed. As of this writing, it
is expected that the closing will occur by the end of
September 1980.
The facts set forth above are undisputed and are not in conflict in the
record.
As professional business men, considering the
business climate and related factors of this facility,
we can no longer justify continuing these oper-
ations. It is hoped that this advance notification will
aid each of the employees to plan their individual
futures.
I'm confident that everyone will continue work-
ing together up to the date of closing.
In a letter dated July 31, 1980, De Grande responded
to the Respondent as follows:
I have received your letter of July 28, 1980 re-
garding the closing of the St. Louis plant.
I would like to meet with you as rapidly as possi-
ble to negotiate the effects of the closing.
Please contact me at 314/658-5741 to set up
dates for the negotiations.
Thereafter, De Grande and the five members of the
Union's bargaining committee met with the Respondent
in August 1980 regarding the shutdown of the St. Louis
facility. Present for the Respondent were Industrial Rela-
tions Director Abrams and Personnel Manager Paul
Westhoff. Thereafter the parties met on several occasions
in an effort to reach a settlement agreement. The last
meeting in which the parties met was held on May 8,
1981. The Company proposed a flat offer of S40,000 in
complete settlement of the matter for all production and
maintenance employees. The unit employees went into
caucus and resumed discussions which became heated
and hostile. De Grande undisputedly testified that the
bargaining committee considered the Respondent's offer
an insult and they rejected the offer as being insufficient.
However, De Grande told Abrams he would get back to
him by telephone and see what could be worked out. He
also suggested that he and Abrams meet to discuss sever-
ance pay for two clerical employees and Abrams agreed
to do so.
A month after the May 8 meeting, in June 1981, De
Grande testified he called Abrams regarding the mainte-
nance and production employees and their conversation
was as follows:
Well, we discussed several different issues. Number
one, and I'm talking about the plant now, we still
had issues pending as to severance pay, we had a
matter of pro rata vacation that I felt that some-we
had approximately twenty-one members that were
entitled to pro rata vacation pay. And the issue of
the pension program. Those three issues were open
as far as the plant unit was concerned.
De Grande further testified that Abrams wanted him
to accept the $40,000 and clear the table of all issues,
specifically the pro rata vacation and pension issues.
During this conversation they also discussed the sever-
ance pay of the two clerical employees, who had not re-
ceived severance pay.
Harold Abrams further testified that in a telephone
conversation on July 13, 1981, he and De Grande dis-
cussed settlement of the two clerical workers who had
1091
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
severance pay in their contract. They orally agreed on a
settlement and he sent his letter (R. Exh. 1) to the Union
which was confirmed by De Grande's signature on July
22, and his testimony which is consistent herewith. De
Grande testified that, between May 1981 and January
1982, he spoke with Abrams once every month or 6
weeks by initiating a telephone call. However, Abrams
testified that he did not have any further conversations
with De Grande after the July agreement on clerical em-
ployees until early January 1982.
De Grande testified that he called Abrams in the latter
part of January 1982 and told him that it was his feeling
that the Union was ready to accept the $40,000 offer, if
the Respondent would send it to the Union in a lump
sum settlement, for distribution to the production and
maintenance employees. De Grande continued to testify
as follows:
A. And his comment was, well, we had so many
meetings over this, and he says, "This issue has
been up in the air for so long," he says, "Well," I
says, "You know, [can] you take my word for it?"
And he says, "Well, no," he said, "I have to have it
in writing," he says, "because this issue is out of my
hands at this point and I would like a letter from
you to that effect."
Q. Did you tell him that you personally were ac-
cepting the offer at the time?
A. Yes, I did. I told him that I would personally
go back and recommend to the committee the ac-
ceptance of the $40,000 lump sum settlement and
that I would make every effort possible to get it
agreed to as rapidly as possible.
Abrams testified that the first telephone call he re-
ceived from De Grande in January occurred on January
4, 1982, which he related as follows:
Of course, we exchanged pleasantries and said I
hadn't heard from him in a long time and we got
down to serious business. He began by saying I
assume the offer of forty thousand is still on the
table and I said you've got to be kidding and he
chuckled a little bit and said no, not really, and we
talked a little bit because I was busy and I told him,
I said, Ken, I'm tied up, can I get back to you and
he said sure, so we terminated that phone conversa-
tion.
Thereafter, Abrams said he went to the office of Avery,
president of the Respondent, and his testimony continued
as follows:
I went in and I said guess who called, I told him
what happened and he mentioned, he said, get it in
writing and that was about the extent of the conver-
sation and I left, and sometime later, on January 13,
called Mr. De Grande and apparently when the full
substance of their conversation occurred as undeni-
ably related above by De Grande.2
Although De Orande evidently called Abrams once a month or
every 6 months between May 9 and July 30, I do not credit De Grande's
testimony that he called Abrams once a month or every 6 weeks after
Immediately after his conversation with Abrams on
January 13, De Grande said he called Greg Wilson, the
Union's chief steward, and asked him to contact the
other members of the bargaining committee and tell
them it was his recommendation to accept the $40,000,
and to get back to him as quickly as possible. He said
Wilson called him back in March 1982, telling him that
he had great difficulty contacting everyone but that all
had agreed to accept the $40,000 offer. Thereupon, he
sent a letter to the Respondent dated March 19, 1982, the
substance of which was as follows:
I apologize for the lapse in time since our last
discussion in January of this year. But I hope you
understand that it has become very difficult for me
to make contact with the committee due to their
varied interest and circumstances since the unfortu-
nate plant closing in St. Louis.
I would like to notify you at this time that the
committee will accept your last offer of Forty
Thousand ($40,000) Dollars in severance pay for the
plant employees.
We have not as yet worked out a formula for the
distribution of the severance pay, but this can be
done soon.
I hope to hear from you as soon as possible so
we can settle the matter of severance pay.
The Respondent (Harold Abrams) sent a reply letter
dated April 20, 1982, to the Union (De Grande), the sub-
stance of which was as follows:
Since your letter of 3/19/82 we've been missing
each other by phone so I'm writing a response.
To get to the point, the committee's decision to
accept S40,000 is too late.
Without reconstructing the entire history, it may
be helpful to summarize. The announcement of
Plant closing was made in July 1980. All production
ceased in about October of that year. During that
time and even beyond while disposal of assets was
taking place, several meetings to discuss the effects
of closing were held with you and your committee.
August 1, 1981, until January 1982, and I credit Abrams' denial that De
Orande ever called him at any time after July and before January for the
following reasons: I was not persuaded by the vague and uncertain
manner in which De Orande testified about the approximate times that he
called Abrams as well as by his failure to relate any specific substance of
conversations he assertedly held with Abrams during that period. De
Orande, an experienced negotiator, did not keep any records of such calls
nor did he communicate in writing with Abrams on such an important
matter (settlement offer) for a period of 5 months. Abrams, on the other
hand, appreciating the significance of conversations regarding the offer,
recorded telephone conversations with De Grande on four occasions, in-
cluding January 4 and 13, 1982. All De Grande could recall was one tele-
phone call he initiated in January but could only approximate that it oc-
curred the latter part of January. Abrams recorded the latter telephone
conversation as having occurred January 4, and I credit his account
rather than De Orande's, because I was persuaded by his assured, busi-
nesslike, and convincing demeanor, instead of the vague, uncertain, unbu-
sinesslike, and limited guesswork of De Orande, in dealing with a bar-
gaining issue so significant to the person he represented. In any event, I
do not find that these testimonial discrepancies in dates, as whether there
was one or two conversations, materially affect how the crucial issue pre-
sented for determination is to be decided.
1092
CROWN CORK & SEAL CO.
The last time we met, your committee rejected a
$40,000 settlement offered by the Company. That
meeting had to be about a year ago.
The books for that Plant have been closed.
Throughout life we can all look back and think of
things we should have done, which is probably
what the committee has now decided. There is no
easy way to say it. They missed the boat.
De Grande testified that neither he nor the Union was
notified by the Respondent that the Respondent had
withdrawn its $40,000 monetary offer, and that no such
payment has been made to the Union. I find that the
record evidence supports De Grande's testimony in this
regard.
Abrams testified that production at the plant ceased
October 1980. He said people last worked at the St.
Louis facility in November 1981, and the collective-bar-
gaining agreement expired March 7, 1982.
IV. ANALYSIS AND CONCLUSIONS
The uncontroverted evidence of record established
that the Respondent notified the Union on July 28, 1980,
that the Respondent was closing its St. Louis facility
which it expected to occur by the end of September
1980. Pursuant to the Union's request, the Respondent
met with the Union's business representative, De
Grande, and his bargaining committee in August, and on
several occasions thereafter, including May 8, 1981, to
discuss the effects of the closing. During the May 8 bar-
gaining session, the Respondent proposed a flat offer of
$40,000 in complete settlement for distribution to all of
the production and maintenance employees. After a hos-
tile session, the Union rejected the offer and De Grande
told the Respondent he would get back with it by tele-
phone to further discuss the matter. De Grande did have
several telephone discussions with the Respondent
(Abrams) during May, June, and July 1981, which result-
ed in settlement of severance pay for the clerical em-
ployees, with settlement for the production and mainte-
nance employees still outstanding.
The credited evidence further shows that after settle-
ment for the clerical employees in late July (22-30),
there was no communication between the parties on the
outstanding issue of severance settlement for the produc-
tion and maintenance employees until January 4, 1982.
At that time, De Grande called Abrams and, according
to De Grande, he advised Abrams that he felt the Union
was ready to accept the $40,000 offer if the Respondent
would send it in a lump sum settlement for distribution.
According to Abrams, De Grande said, "I assume the
$40,000 is still on the table and he [Abrams] replied,
'you've got to be kidding."' After chuckling a little, De
Grande said, "no" he was not kidding. I credit both ver-
sions because I was persuaded that De Grande said both
versions to Abrams in the first telephone conversation on
January 4, 1982. Accepting Abrams' account, it is par-
ticularly noted that Abrams did not put De Grande's as-
sumption (that the offer was still open) to rest by advis-
ing him that the offer was withdrawn. Not having done
so, the offer was still viable.
During a second telephone conversation between
Abrams and De Grande on January 13, Abrams ex-
pressed how long the settlement issue had been hanging
and told De Grande, as Avery, president of the Re-
spondent, had instructed him, that he had to have the
Union's acceptance in writing, adding that the matter
was out of his hands. De Grande again undisputedly told
Abrams the Union was accepting the $40,000 offer and
that it would put its acceptance in writing. The conver-
sation ended with no further communication between the
parties until the Respondent received the Union's written
acceptance of its $40,000 offer on or about March 21,
1982.
It is particularly noted, and I find, that at no time
since the Respondent made its S40,000 offer settlement
on May 8, 1981, did it ever withdraw or even suggest
that its offer was withdrawn before it received the
Union's written acceptance on or about March 21, 1982.
In fact, the documentary evidence shows that, even in its
letter to the Union I month (April 20, 1982) after its re-
ceipt of the Union's acceptance, the Respondent still had
not advised the Union that its offer had been withdrawn.
Instead, the Respondent's letter merely advised the
Union that acceptance of the offer was too late.
The question raised by the evidence and presented for
determination herein is:
Whether Respondent's flat offer of $40,000 in settle-
ment for the production and maintenance employ-
ees was still a viable offer for acceptance by the
Union on January 4 and 13 (when the Union orally
tended its acceptance), and on March 21, 1982
(when the Union formalized its acceptance in writ-
ing)?
In support of its position that the Respondent's settle-
ment offer was still viable for acceptance on either date,
counsel for the General Counsel cites Pepsi-Cola Bottling
Co. of Mason City, Iowa, 251 NLRB 187, 189 (1980),
enfd. 659 F.2d 87 (8th Cir. 1981), wherein the Adminis-
trative Law Judge held, with Board approval, that:
There can be no quarrel with Respondent's view
that under strict principles of contract law, an offer,
once rejected, no longer exists. However, as the
General Counsel correctly observes, "the Board is
[not] strictly bound by the technical rules of con-
tract law." N.LR.B. v. Donkin's Inn, Inc., 532 F.2d
138, 141-142 (9th Cir. 1976).... "[a] complete
package proposal made on behalf of either party
through negotiations remains viable, and upon ac-
ceptance in toto must be executed as part of the stat-
utory duty to bargain in good faith, unless expressly
withdrawn prior to such acceptance, or defeased by
an event upon which the offer was expressly made
contingent at a time prior to acceptance. Respond-
ent in the instant case took no such steps and when
the Union abandoned all collateral demands, and
elected to accept this complete package, a binding
agreement was consummated. Respondent violated
Section 8(a)(5) and (1) by refusing to execute a
signed contract based upon its July 12 offer.
1093
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In affirming the Board's decision in Pepsi-Cola Bottling
Co., supra, the United States Court of Appeals for the
Eighth Circuit, in response to the company's contention
that traditional principles of contract law should govern
the formation of collective-bargaining agreements said
(659 F.2d at 89):
The rule is well established that technical rules of
contract do not control whether a collective bar-
gaining agreement has been reached. See John Wiley
& Sons, Inc. v. Livingston, 376 U.S. 543, 550 . . .
NLRB v. Truckdrivers, Etc., Union No. 100, 532
F.2d 569, 571 (6th Cir.), cert. denied, 429 U.S. 859
The court continued (659 F.2d at 89):
In a private commercial setting, the parties vol-
untarily contract with each other. Traditional con-
tract law therefore provides that an offer terminates
if rejected by the offeree, thus allowing the offering
party free to strike a bargaining elsewhere, with no
danger of being bound to more than one contract.
In contrast, the National Labor Relations Act com-
pels the Employer and the duly certified Union to
deal with each other and bargain in good faith.
Upon rejection of an offer, the offerer may not seek
another contracting party. As explained by the Su-
preme Court, "The choice is generally not between
entering or refusing to enter into a relationship, for
that in all probability preexists the negotiations."
United Steel Workers of America v. Warrior d Gulf
Navigation Co., 363 U.S. 574, 580. . . (1959).
However, the court went on to say in Pepsi-Cola Bot-
tling Co., supra, as follows (659 F.2d at 89):
We therefore agree with the Board's policy, as stated in
its brief that a contract offer is not automatically ter-
minated by the other party's rejection or counterpropos-
al, but may be accepted within a reasonable time
unless it was expressly withdrawn prior to acceptance,
was expressly made contingent upon some condition
subsequent, or was subject to intervening circumstances
which made it unfair to hold the offeror to his bargain.
[Emphasis added.]
The Respondent in the instant case does not contend
that its May 8 $40,000 settlement offer was terminated by
the Union's rejection thereof on the same date, that its
offer was made contingent on a condition subsequent, or
that intervening circumstances have made it unfair to
hold it to its offer. Instead, the Respondent, relying on
the above-quoted language of the court in Pepsi-Cola Bot-
tling Co., supra, contends that its May 8 $40,000 settle-
ment offer was terminated by lapse of time prior to the
Union's orally tendered acceptance on January 4 and 13,
and its written acceptance on March 21, 1982.
In this regard, the Respondent argues that nearly a
year has elapsed since it made its offer on May 8 which
the Union rejected on the same day, but the evidence
shows that the Respondent held bargaining conversations
and discussions with union representative De Grande
during May, June, and July 1981, even though the issue
of settlement for the production and maintenance em-
ployees was not resolved. Consequently, the lapse of
time from the cessation of bargaining discussions to the
Union's initial acceptance of the offer (which was not
withdrawn) was 5 months and approximately I week
(from July 22-30, 1981, to January 4 and 13, 1982).
Therefore, the Respondent contends that the specific
question raised is whether a 5-month and approximately
1-week period constituted a reasonable period of time
within which the Union should have accepted its offer
before life of the offer should be deemed terminated by
reason of lapse of time.
Although the court in Pepsi-Cola, supra, said the life of
an offer unlimited by specified time "may be accepted
within a reasonable time," I note that the Administrative
Law Judge in the same Pepsi-Cola case used the "reason-
able time" limitation in reference to an offer to individual
striking employees for reinstatement to employment. In
doing so, the Administrative Law Judge cited a decision
by the Ninth Circuit Court of Appeals in NLRB v.
Murray Products, 584 F.2d 934, 940 (1978), where the
court said:
An important element to be considered in determin-
ing the validity of an offer of reinstatement is
whether it affords the offeree a reasonable period of
time to consider it. Essentially, however, the validi-
ty of the offer depends on the situation in which the
offeree finds himself as a result of the discrimination
against him.
Since an offer of reinstatement to individual striking
employees is directed to the individual employees, who
may accept or reject the offer without consultation and
concurrence with anyone else, I do not deem such an
offer sufficiently analogous to a settlement offer of an
employer to a union engaged in bargaining pursuant to
the statutory obligation to bargain. Under the latter cir-
cumstances, the law is clear that rejection of the offer
does not terminate the offer. Nevertheless, assuming that
the Board would apply the "reasonable time" test to the
life of the Respondent's settlement offer herein, it would
appear that the principles of contract law would apply in
determining what constitutes a reasonable time within
which the Union should have accepted the offer before it
is deemed expired by lapse of time. This would be true
especially since the Respondent's settlement offer did not
contain a time limitation for acceptance, as well as the
fact that it cannot be assumed that such an offer would
be viable indefinitely.
However, under the general principles of contract law,
what constitutes a reasonable time for the acceptance of
an offer depends on the circumstances in each case.
(Cited authority unnecessary.) In the instant case, the Re-
spondent's settlement offer did not designate a time date
for acceptance and the subject matter of the offer is self-
evident that time was not of the essence. The evidence
also shows that the Respondent did not ever notify the
Union that its offer was withdrawn or revoked before
the Union communicated its acceptance to the Respond-
ent on January 4 and 13 and again on March 21, 1982.
1094
CROWN CORK & SEAL CO.
Although the parties did not communicate during the
5 months and approximately 1-week period, I considered
the fact that the Respondent made the offer in a bargain-
ing session (May 8) and the offer remained outstanding
during the entire time the Respondent and the Union
were under a statutory duty to bargain in good faith.
Since it is not unusual for either party engaged in the
bargaining process to test the genuineness of the offer, as
well as the endurance of the other, it may be reasonably
inferred from the evidence herein that the Union's de-
layed acceptance was tactical. That is, it is possible and
more probable that the Union was waiting with hopes
that the Respondent would increase the amount of its
settlement offer. This is especially so since the Respond-
ent was still present in St. Louis while it was winding
down its business operations until November or Decem-
ber 1981. Such tactics as puffing and bluffing by the par-
ties, with each calling the bluff of the other, is a normal
part of the bargaining process. Any consideration of
what is a reasonable time of the life of an offer must nec-
essarily take into account such realistic factors as a part
of that process. Having taken such factors into consider-
ation, I would find that the Respondent's offer had not
been terminated by a reasonable lapse of time.
The Union, noting that the Respondent closed its facil-
ity in November or December without increasing its
offer, probably decided it had better accept the $40,000
settlement offered by the Respondent on May 8. Howev-
er, be that as it may, the Respondent nevertheless had
not withdrawn its offer when the Union called and ad-
vised the Respondent of its acceptance on January 4, and
again during a telephone conversation on January 13. On
neither occasion did the Respondent take the opportunity
to advise the Union that its offer was withdrawn. In-
stead, the Respondent (Abrams) allowed the Union's as-
sumption to persist that the offer was still on the table on
January 4, by first exclaiming "you've got to be kid-
ding." When De Grande assured Abrams that he was not
kidding, Abrams simply said he was tied up and would
get back to him. When Abrams got back to De Grande
on January 13, he told De Grande the Respondent
wanted the Union's acceptance in writing, and De
Grande told him the Union would submit its acceptance
in writing.
Under the above circumstances, if there were ever in
fact a question as to whether the Respondent's settlement
offer was terminated by lapse of reasonable time, the Re-
spondent's January 13 request that the Union submit its
acceptance in writing clearly answers that question in
the negative. Consequently, whether 5 months and ap-
proximately I week was a reasonable time for the Re-
spondent's offer to be deemed terminated by reason of
lapse of time is not a genuine issue presented for determi-
nation herein.
Additionally, even if an offer is rejected, the Board in
Penasquitos Gardens, 236 NLRB 994 (1978), enfd. 603
F.2d 225 (9th Cir. 1979), indicated, as the court noted in
fn. 3, in Pepsi-Cola, supra, "that the power to accept an
offer does not survive a rejection unless the evidence
shows that the offeror intended or gave the appearance of
intending the offer to remain open." In the instant case,
the Respondent (Abrams) certainly gave the appearance
of intending its $40,000 settlement offer to be open for
acceptance by telling the Union to submit its oral accept-
ance in writing.
I do not accept counsel for the Respondent's strained
interruption of De Grande's quoted testimony that be-
cause Abrams might have told De Grande he had to
have his acceptance in writing "because this issue is out of
my hand at this point and I would like a letter from you
to that effect," constituted a revocation, variation, or
modification of the Respondent's May 8 offer. In fact the
above-quoted language, in the context in which it was
given, occurred after De Grande had already notified
Abrams on both January 4 and 13 that the Union had ac-
cepted the Respondent's offer. Moreover, the said quoted
language is also clear that De Grande understood
Abrams to mean the Respondent wanted the Union's ac-
ceptance in writing, thereby assuring the Respondent it
could rely on the Union's acceptance. There is nothing
in the testimony of De Grande which suggests that he
understood that the Union was making a counteroffer.
There is also a lack of language there to suggest that he
had any reason to understand that Abrams, who made
the original May 8 offer, had to obtain approval from a
higher official of the Respondent to accept the Union's
acceptance. A mere reading of De Grande's formal letter
of acceptance dated March 19 (G.C. Exh. 5) supports the
conclusion that he was accepting the Respondent's offer
of May 8. Under these circumstances, Jensen's Truck
Stop, 234 NLRB 567, 570 (1978); and Anaconda Co., 224
NLRB 1041, 1051 (1976), enfd. 99 LRRM 2634 (9th Cir.
1978), cited by counsel for the Respondent, are not appli-
cable to the facts as found herein.
I therefore conclude and find on the foregoing evi-
dence and cited legal authority that the Respondent's
May 8 $40,000 settlement offer to the Union had not
been terminated by lapse of time when the Union accept-
ed it on January 4 and 13, or when the Union reduced its
acceptance to writing on March 19, 1982, pursuant to the
Respondent's request. Consequently, the Respondent is
bound to execute and sign a written contract in accord-
ance with the agreement reached on January 4 and 13.
By not doing so, and attempting to revoke its offer in its
letter to the Union on April 20, 1982, which was not
only in timely, but also constituted at that time, and at all
times thereafter, a refusal to bargain in good faith, the
Respondent violated Section 8(a)(1) and (5) of the Act.
v. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act, we shall order that it cease
and desist therefrom and take certain affirmative action
to effectuate the policies of the Act.
It having been found that the Respondent interfered
with, restrained, and coerced its employees in the exer-
cise of their Section 7 rights by withdrawing its settle-
ment offer after the Union had accepted it and by refus-
ing to sign a contract in accordance with the agreement
reached, the Respondent has failed and refused to bar-
gain with the Union in violation of Section 8(aX1) and
(5) of the Act. The recommended Order will provide
1095
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent cease and desist from engaging in
such conduct.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
the Respondent cease and desist therefrom, or in any like
or related manner interfering with, restraining, or coerc-
ing employees in the exercise of their rights guaranteed
by Section 7 of the Act. NLRB v. Entwistle Mfg. Co., 120
F.2d 532, 536 (4th Cir. 1941).
On the basis of the above findings of fact and on the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. The Respondent, Crown Cork & Seal Company,
Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Teamsters Local Union No. 688, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is and has been
at all times material herein a labor organization within
the meaning of Section 2(5) of the Act.
3. By attempting to withdraw its settlement offer after
the Union had accepted it and refusing to execute a con-
tract in accordance with the agreement reached, the Re-
spondent has interfered with, restrained, and coerced its
employees in violation Section 8(a)(l) and (5) of the Act.
[Recommended Order omitted from publication.]
1096