International Brotherhood of Teamsters Local 771 and Joint Council 53 (Pennsy Supply, Inc. d/b/a Rea

National Labor Relations Board - Board Decisions

Dec 31, 2011

357 N.L.R.B. 2203 (N.L.R.B. 2011)

TEAMSTERS LOCAL NO. 771 (READY-MIXED CONCRETE)
357 NLRB No. 173
2203
Chauffeurs, Teamsters, and Helpers Local Union No.
771, affiliated with International Brotherhood of
Teamsters and its Joint Council No. 53 and
Pennsy Supply, Inc., d/b/a Ready-Mixed Con-
crete. Case 04–CB–010482
December 31, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On July 27, 2011, Administrative Law Judge John T.
Clark issued the attached decision. The Respondent,
Chauffeurs, Teamsters, and Helpers Local Union No.
771, affiliated with International Brotherhood of Team-
sters and its Joint Council No. 53, filed exceptions and a
supporting brief, and the Acting General Counsel filed an
answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs, and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the recommend-
ed Order as modified and set forth in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, Chauffeurs, Teamsters, and Helpers Local
Union No. 771, affiliated with International Brotherhood
of Teamsters and its Joint Council No. 53, Lancaster,
Pennsylvania, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Failing and refusing to execute a collective-
bargaining agreement and a side letter agreement reached
with the Employer, Pennsy Supply, Inc., d/b/a Ready-
Mixed Concrete on April 6, 2010, thereby repudiating
those agreements.
(b) In any like or related manner restraining or coerc-
ing 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) Assist the Employer in the written preparation of,
and thereafter execute, the collective-bargaining agree-

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order to include the
appropriate remedial language for the violation found, and we shall
substitute a new notice to conform to the Order as modified.
ment and side letter agreement that were reached with the
Employer on April 6, 2010, for all employees in the fol-
lowing appropriate bargaining unit:

Truckdrivers, helpers, mechanics, yard persons, and
plant persons employed by the Employer.

(b) Give retroactive effect to the provisions of the col-
lective-bargaining agreement and side letter agreement
reached with the Employer on April 6, 2010.
(c) Within 14 days after service by the Region, post at
its offices and union hall in Lancaster, Pennsylvania,
copies of the attached notice marked “Appendix.”3 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 4, after being signed by the Respond-
ent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees and members are customarily posted. In ad-
dition to physical posting of paper notices, notices shall
be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates
with its members by such means. Reasonable steps shall
be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(d) Within 14 days after service by the Region, deliver
to the Regional Director for Region 4 signed copies of
the notice in sufficient numbers for posting by the Em-
ployer at its Quarryville, Pennsylvania facility, if it wish-
es, in all places where notices to employees are custom-
arily posted.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 4 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

3 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2204
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to execute a collective-
bargaining agreement and a side letter agreement reached
with the Employer, Pennsy Supply, Inc., d/b/a Ready-
Mixed Concrete on April 6, 2010, and thereby repudiate
those agreements.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL assist the Employer in the written preparation
of, and thereafter execute, the collective-bargaining
agreement and side letter agreement that were reached
with the Employer on April 6, 2010, for all employees in
the following appropriate bargaining unit:

Truckdrivers, helpers, mechanics, yard persons, and
plant persons employed by the Employer.

WE WILL give retroactive effect to the provisions of the
collective-bargaining agreement and side letter agree-
ment reached with the Employer on April 6, 2010.

CHAUFFEURS, TEAMSTERS, AND HELPERS
LOCAL UNION NO. 771, AFFILIATED WITH
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
AND ITS JOINT COUNCIL NO. 53

Margaret M. McGovern, Esq. and Deena E. Kobell, Esq. (on
brief), for the Acting General Counsel.
Ira Weinstock, Esq. (Ira Weinstock, P.C.), of Harrisburg, Penn-
sylvania, for the Respondent.
Vincent Candiello, Esq. (Post & Schell, P.C.), of Harrisburg,
Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. This case was
tried in Philadelphia, Pennsylvania, on November 12 and 19,
2010. The charge was filed by Pennsy Supply, Inc., d/b/a
Ready–Mixed Concrete (the Charging Party or Employer) on
April 30, 2010.1 The complaint issued on August 27. The
complaint alleges that Chauffeurs, Teamsters, and Helpers Lo-
cal Union No. 771, affiliated with International Brotherhood of
Teamsters and its Joint Council No. 53 (the Respondent or the
Union), violated Section 8(b)(3) of the National Labor Rela-
tions Act (the Act), when, on April 14, it unlawfully repudiated

1 All dates are in 2010, unless otherwise indicated.
an agreed-upon new collective-bargaining agreement with the
Charging Party. The Respondent's answer denies violating the
Act in any manner.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the counsel for the Acting General Counsel, the Respondent,
and the Charging Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Employer a Pennsylvania corporation, with a facility in
Quarryville, Pennsylvania, has been engaged in the production
and transport of asphalt and concrete in Lancaster County,
Pennsylvania. During the 12-month period ending August 27,
2010, the Employer, in conducting its business operations
above, purchased and received at its Quarryville facility goods
valued in excess of $50,000 directly from points outside the
Commonwealth of Pennsylvania. The Respondent admits, and
I find, that the Employer is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Respondent is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Employer operates numerous concrete and asphalt plants
in the Commonwealth of Pennsylvania. In 2007, it purchased
several facilities, including plants in Lancaster, Quarryville,
and Landisville, Pennsylvania, from McMinn’s Asphalt. The
Landisville plant is a nonunion facility. The employees at the
Lancaster and Quarryville plants were represented by the Re-
spondent under a single collective-bargaining agreement. At
the completion of the sale the Employer recognized the Re-
spondent and assumed the collective-bargaining agreement. At
the beginning of the trial the parties stipulated that the unit set
forth in article 1 of the expired agreement was an appropriate
unit within meaning of Section 9(b) of the Act. The unit is:
truck-drivers, helpers, mechanics, yard persons, and plant per-
sons employed by the Employer.
After the purchase and the assumption of the collective-
bargaining agreement the parties bargained over some changes
to the employees’ terms and conditions of employment. The
bargaining resulted in a letter of agreement being signed by the
parties on March 7, 2008. Howard Rhinier, the Respondent's
secretary-treasurer and principal officer, and James Wardrop,
the Respondent's business agent signed the agreement for the
Respondent. In addition to signing the letter Rhinier participat-
ed in the negotiations. Toni M. Roberson who was then the
Employer’s vice president of human resources signed on behalf
of the Employer. (GC Exh. 3.)
In early 2009 the parties negotiated an agreement that al-
lowed the Quarryville drivers to drive for the Landisville plant.
Those negotiations were conducted by Matthew Dunn, the Em-
ployer’s transportation manager, and Wardrop. Both men
signed that agreement as well as Rhinier, who did not partici-
pate in the negotiations. The agreement was not dated but “ran
through 2009.” (GC Exh. 4.) Melissa Martin-Devitz, who was
TEAMSTERS LOCAL NO. 771 (READY-MIXED CONCRETE) 2205
then the Employer’s manager of human resources, testified
without contradiction that the agreement was executed in ap-
proximately July of 2009.
On February 25, 2010, Brian Groff, the Employer’s vice
president of concrete, and Martin-Devitz, met with Wardrop
and Tim Cunningham. Cunningham is employed by the Em-
ployer and is also a union steward at the facility. (Tr. 27.) The
Employer wanted to extend the agreement allowing the Quar-
ryville drivers to continue to drive for the Landisville facility.
The Employer proposed that the agreement be continued “until
the expiration of the collective-bargaining agreement which is
March 31, 2010.” A written agreement was not forthcoming
but the following day Martin-Devitz sent a confirming letter to
Wardrop. Although Wardrop did not respond, it is undisputed
that the status quo was continued during the negotiations for the
new collective-bargaining agreement.
The collective-bargaining agreement that was assumed by
the Employer was effective from April 1, 2007, until March 31,
2010, and thereafter from year to year until either party gave a
60-day termination notice. The Respondent’s gave effective
notice and the termination date was March 31, 2010.
B. The Collective-Bargaining Meetings
The parties met on March 25–26, 29, 31, and April 6. The
Employer was represented by Robertson, its chief negotiator,
Martin-Devitz, Groff, and Dunn. Dunn was not present at the
April 6 meeting. Wardrop was the Respondent’s chief negotia-
tor at the meetings. He was accompanied by Cunningham and
Barry Smedley. Smedley is an employee of the Employer and
he is also a union steward at the facility. Smedley did not at-
tend the April 6 meeting.
Martin-Devitz was tasked as the note taker for the Employer.
She also kept track of the status of the parties proposals as the
negotiations went forward. She kept track by annotating a
typed working draft. The annotations indicated “tentative
agreement” or withdrawal of the proposal and the date and time
of the action. See e.g. counsel for the Acting General Coun-
sel’s Exhibit 12 at Pennsy 0060–62.
At the initial meeting Robertson observed that Rhinier was
absent. She asked of his whereabouts and Wardrop said that
Rhinier would not attend the negotiations. Robertson asked if
Wardrop had full authority to negotiate, and agree to, a new
collective-bargaining agreement. Wardrop answered in the
affirmative. (Tr. 271.)
On March 31 the Employer’s negotiators again had cause to
question Wardrop’s authority. Aside and apart from the nego-
tiations the parties were dealing with a totally separate issue.
They were attempting to determine the amount of money to
distribute to employees resulting from an arbitration decision.
Wardrop also represented the Respondent in these separate
discussions. Frequently Wardrop would request a recess in
order to confer by phone with Rhinier. Because of these con-
sultations the Employer’s negotiators wanted to make sure that
Wardrop had authority to negotiate, and commit, the Respond-
ent to a new collective-bargaining agreement.
Martin-Devitz decided to again question Wardrop’s authori-
ty. She deliberately sought out Wardrop when he was alone
and away from the bargaining area. Martin-Devitz told
Wardrop that because she believed that the parties were close to
an agreement, she wanted to make certain that Wardrop had the
authority to commit the Respondent to a new collective-
bargaining agreement. She posited that the Employer would
not put its last proposal on the table if Wardrop did not have the
authority to accept it. Martin-Devitz testified that Wardrop
gave her repeated assurances that he had the authority to nego-
tiate and to commit the Respondent to a new collective-
bargaining agreement. Martin-Devitz was a creditable witness
and I have no reason to doubt her veracity. Moreover, her tes-
timony concerning this conversation was neither refuted nor
addressed by Wardrop when he testified, and thus uncontested.
Three issues were unresolved when the April 6 meeting be-
gan and all were resolved when it ended, with the last being the
side letter concerning the Quarryville drivers. That issue was
resolved when the Respondent accepted the Employer’s pro-
posal at 1:05 p.m. (GC Exh. at Pennsy 109.) Immediately
thereafter the parties stood, shook hands, and congratulated
each other on a job well done. After shaking hands Wardrop
and Martin-Devitz made plans that each would type a draft of
the collective-bargaining agreement and then compare the
drafts for accuracy.
After the handshaking and congratulations but before the
parties went their separate ways some additional comments
were made by Wardrop. Robertson said that Wardrop told her
that he had to get Rhinier to sign the agreement and the em-
ployees to ratify it. Martin-Devitz testified that he told her that
he would sign the agreement and get Rhinier to sign it. Groff
claims that Wardrop said that he needed to call the employees
and “show them the contract and that was it.” Wardrop admits
that he shook hands and then claims that he told Robertson that
they had “a tentative agreement based solely on the side agree-
ment being signed by Howard Rhinier and ratified by the mem-
bership.” (Tr. 260.) He also claims that other people were
present.
On April 8 Wardrop called Martin-Devitz to request a meet-
ing because Rhinier “had some issues” regarding the signing of
the agreement. The meeting occurred on April 14 as stipulated
by the parties. (Tr. 8.) Wardrop delineated numerous obstacles
that he claimed prevented Rhinier from signing the side agree-
ment, culminating with the ultimate impediment, that the Re-
spondent was unable to enter into side agreements. Robinson
responded to Wardrop’s “issues” by letter dated April 15. Rob-
ertson addressed and rejected each and every issue, specifically
noting that the parties had used side agreements in the past.
Because of Rhinier’s total rejection of the side agreement Rob-
ertson withdraw the agreement. Robertson closed with a de-
mand that the Respondent execute the labor agreement con-
sistent with the requirements of Section 8(d) of the Act. The
Respondent has not signed either agreement.
C. Analysis and Discussion
1. Authority to reach agreement
The duty to bargain includes the obligation to appoint a ne-
gotiator with genuine authority to carry on meaningful bargain-
ing regarding fundamental issues. Schmitz Food, 313 NLRB
554, 560 (1993). The law is well settled that an agent assigned
to negotiate a collective-bargaining agreement is clothed with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2206
“apparent authority to bind the principle in the absence of clear
notice to the contrary.” E.g., Las Vegas Sands, Inc., 324 NLRB
1101, 1108 (1997), and cited cases, enfd. 172 F.3d 57 (9th Cir.
1999) (Table); University of Bridgeport, 229 NLRB 1074, 1074
(1977). If the limitation placed on the negotiating authority is a
condition precedent to a final and binding agreement the notice
must be clear, unambiguous, and, disclosed to the other party
before agreement is reached. Auto Workers Local 365 (Cecil-
ware Corp.), 307 NLRB 189, 193–194 (1992); Adams Iron
Works, Inc., 221 NLRB 71, 78 (1975), and cited cases, enfd.
556 F.2d 557 (2d Cir. 1976) (Table).
In addition to Wardrop’s “apparent authority,” I find that on
at least two occasions he represented to the Employer’s nego-
tiators that he had authority to negotiate and commit the Re-
spondent to a new collective-bargaining agreement. On cross-
examination Wardrop again admitted that he told the Employ-
er’s negotiators that he had full authority to negotiate and to
commit the Respondent’s to a new collective-bargaining
agreement. Immediately after that admission counsel for the
Acting General Counsel asked him if April 6th was the first
time that he told the Employer’s negotiators that Rhinier had to
sign the side letter. Wardrop responded, “I did make that
statement a couple [of] different times. That it had to be—the
side agreement had to be signed and ratified by the member-
ship.” (Tr. 271–272.) Wardrop repeats this statement on redi-
rect-examination when asked if the Employer knew that there
had to be a ratification vote. Wardrop replies, “[i]t was men-
tioned through[out] contract proposals, negotiations.” When
asked “what was mentioned” he answers, “[t]hat it would have
to be ratified in—and the side agreement goes hand in hand
with Management Rights Clause, had to be signed by the prin-
ciple officer Howard Rhinier and ratified by the membership.
Which all contracts do.” (Tr. 291–292.)
Wardrop spoke those words with a palpable lack of convic-
tion. Perhaps they did not have a “ring of truth” because the
words are in direct conflict with his affidavit of June 30, 2010,
which limits his announcement solely to April 6, the last day of
the negotiations. Despite Wardrop’s claim that he made the
statements at “different times,” “throughout negotiations,” no
witness corroborates his account. Neither of the two other un-
ion negotiators were even called to testify. I find Wardrop’s
statements to be self-serving and disingenuous. They are not
credible.
The statement that Wardrop claims to have made on April 6,
immediately after shaking hands with the other negotiators, is
nearer to the truth, but I still find it is embellished and self-
serving. Wardrop claims, apparently after the negotiations
were favorably concluded, that he announced to all those pre-
sent, “that we have a–basically have a tentative agreement
based solely on the side agreement being signed by Howard
Rhinier and ratified by the membership.” Thereafter, he avers
that he made this statement to Robertson directly. (Tr. 260–
261.) Once again no witness corroborates his statement. Cun-
ningham, the other union negotiator who was present on April
6, was not called to testify. Wardrop admits that the Respond-
ent's bargaining notes for April 6 do not reflect that he made
that statement. Martin-Devitz, the Employer’s note taker, testi-
fied that after the negotiations were completed Wardrop told
her that he would sign the typed agreement and get Rhinier to
do the same. Thereafter, the parties would set a date for the
Employer to sign. She did not recall anything being said re-
garding ratification.
Robinson testified that Wardrop told her that he would get
Rhinier to sign the agreement and the employees to ratify it.
Robinson’s testimony is consistent with her affidavit and with
Martin-Devitz’s testimony. Neither woman testified that
Wardrop said anything about the signing of the collective-
bargaining agreement being contingent on Rhinier signing the
side agreement. Based on their testimony neither woman ap-
peared to have been troubled by Wardrop’s comments. They
both proceeded with a “busy as usual” attitude. Robinson spe-
cifically stated that she viewed Wardrop’s comments as relating
only to an “administrative function.” (Tr. 139, 173.) In that
regard she was quick to correct the Respondent’s counsel by
telling him that there was no mention of Rhinier ever having to
approve the collective-bargaining agreement—only that he had
to sign it. (Tr. 162.) Auto Workers Local 365 (Cecilware
Corp.), above at 194.
I credit Robertson and Martin-Devitz’s testimony over that
of Wardrop’s. Their testimony was consistent with each other
and their actions after hearing Robertson’s comments were also
consistent with their testimony. I was generally impressed with
their testimony. They appeared to be making an earnest effort
to give truthful and accurate answers under somewhat trying
circumstances. Martin-Devitz testified as the Employer’s cur-
rent human resources director and Robertson was no longer
employed by the Employer.
I have also considered the testimony of Dunn and Groff. I
find that both men are creditable witnesses. I also find it evi-
dent from their testimony that they were appointed to the nego-
tiating team for their managerial expertise and not because of
any negotiating skills or knowledge. I am unaware of any sig-
nificant discrepancies between their testimony and that of Rob-
ertson and Martin-Devitz. If there was I would credit the testi-
mony of Robertson and Martin-Devitz over that of Dunn and
Groff. As Dunn candidly admitted “I [was not] sitting there
paying attention to everything they said if it had nothing to do
with what I was there for.” (Tr. 203.)
The Respondent also argues that a letter (R. Exh. 3) drafted
by Rhinier in 1999 and sent to the Charging Party’s predecessor
establishes a policy that “no agreements, whether contractual,
verbal, or written, can be agreed to without [Rhinier’s] approv-
al.” According to the Respondent this policy is still in effect
and it requires Wardrop to get Rhinier’s approval on all pro-
posed agreements and also to have the agreements ratified by
the membership. (R. Br. at 3.)
As the Charging Party correctly points out in brief, the letter,
on its face, limits its restrictions to the “current” (1999) collec-
tive-bargaining agreement. The letter instructs that all side
agreements must be approved, in writing by both James Cox,
the Respondent’s then president and Rhinier. The record estab-
lishes that Cox is no longer president. (Tr. 119.) Finally, and
most significantly, there is absolutely no evidence that the Em-
ployer ever saw the letter or knew of its contents. Accordingly,
I find that the letter does nothing to advance the Respondent’s
contention. It does show that Rhinier, when he is so inclined, is
TEAMSTERS LOCAL NO. 771 (READY-MIXED CONCRETE) 2207
capable of inserting limitations and/or a condition precedent
into collective-bargaining negotiations. That he did not do so
here, is telling.
Based on the foregoing, I find that there is no credible evi-
dence of any clear, unambiguous, and, timely notice being giv-
en to the Employer of any limitation of Wardrop’s authority or
that of any of the Respondent's negotiators. On the contrary,
Wardrop’s statements and actions led the Employer to believe
that he had the authority to commit the Respondent to a collec-
tive-bargaining agreement. Accordingly, I find that Wardrop
had complete and full authority, at all times, to enter into a final
and binding collective-bargaining agreement as well as any side
agreements with the Employer.
Regarding the Respondent’s ratification argument, Board
law is clear that absent an express agreement by the parties,
employee ratification is not a condition precedent for the for-
mation of a binding collective-bargaining agreement. E.g.,
Valley Central Emergency Veterinary Hospital, 349 NLRB
1126, 1132 (2007), and cited cases.
2. The repudiation of, and the refusal to execute the collective-
bargaining agreement and the side letter agreement
Section 8(d) of the Act requires that the parties in a collec-
tive-bargaining relationship, once an agreement is reached, to
execute that agreement at the request of either party. Section
8(b)(3) implements that obligation by making it an unfair labor
practice for a union to refuse an employer’s request to sign a
negotiated agreement. See Graphic Communications Union
District 2 (Riverwood International USA), 318 NLRB 983, 990
(1995), and cases cited. Cf. H.J. Heinz Co. v. NLRB, 311 U.S.
514 (1941). This obligation only arises if the parties has a
“meeting of the minds” on all substantive issues and material
terms of the agreement. See Sunrise Nursing Home, 325
NLRB 380, 389 (1998). The collective-bargaining agreement
need not be reduced to writing when the “meeting of the
minds” occurs. Carpenters Local 405, 328 NLRB 788, 793
(1999). The Acting General Counsel has the burden of proving
that an agreement was reached. Crittenton Hospital, 343
NLRB 717 (2004). See Intermountain Rural Electric Assn,.
309 NLRB 1189, 1192 (1992). Whether the parties have
reached a “meeting of the minds” is determined “not by the
parties’ subjective inclinations, but by their intent as objectively
manifested in what they said to each other.” MK-Ferguson Co.,
296 NLRB 776 fn. 2 (1988). If it is determined that an agree-
ment was reached, a party’s refusal to execute the agreement is
a violation of the Act. See H.J. Heinz Co., 311 U.S. at 525–
526.
The facts surrounding the “meeting of the minds” are not in
dispute. As of April 6 three issues remained. Two were part of
the collective-bargaining agreement and the third was the side
letter agreement regarding the Quarryville drivers. All the
issues were resolved by 1:05 p.m. on April 6. The last issue to
be resolved was the side letter agreement. Wardrop was given
the typed side letter agreement, marked “tentative” at 12:20
p.m. and agreed to it at 1:05 p.m. Wardrop was shown a copy
of the agreement (GC Exh. 12 at Pennsy 0109), and testified
that it was the document that he agreed to on April 6. Immedi-
ately thereafter the parties stood and shook hands all around.
There was an overall mood of celebration and well-being for
the accomplishment of their joint goal—drafting a new collec-
tive-bargaining agreement and side letter agreement.
There was no question regarding the finality of the agree-
ments. The parties discussed the remaining ministerial matters.
Wardrop told Robertson that he would get Rhinier to sign the
agreement and the employees to ratify it. He and Martin-
Devitz discussed proofreading the final draft and choosing a
date to have it signed by the Employer.
I find that the counsel for the Acting General Counsel has es-
tablished that the parties reached a “meeting of the minds” on
the terms of the collective-bargaining agreement, including the
side letter agreement. It is obvious from the parties’ words and
actions that their “tone and temperament” on April 6 signaled
their belief that they had reached a complete agreement on a
successor collective-bargaining agreement and side letter
agreement. Brooks, Inc. v Ladies’ Garment Workers, 835 F.2d
1164, 1169 (6th Cir. 1987). They concluded the meeting with
handshakes and mutual expressions of satisfaction on the suc-
cessful outcome of their endeavor. Such conduct is a hallmark
indication that a binding agreement has been reached at the end
of negotiations. E.g., Graphic Communications District 2,
above. Of even greater import is Wardrop’s admission that he
approved the side letter agreement as written, without the need
for any additional modifications. Moreover, he and Martin-
Devitz were scheduling the remaining ministerial items.
Having found that the “meeting of the minds” occurred, I al-
so find that at the same instant all the tentatively accepted pro-
posals morphed into the terms of a binding collective-
bargaining agreement and side letter agreement. One conse-
quence of this change in the nature of the documents, is that the
Employer could not later withdraw its side letter proposal. The
proposal had been replaced with a final binding agreement.
“Once the Union had accepted the [Employer’s] last offer, there
was no longer an open offer for the [Employer] to withdraw,
whether lawfully or unlawfully.” Valley Central Emergency
above at 1127 fn. 6, and cited cases.
It was at the April 14 meeting, that the Employer first
learned from Wardrop of the numerous problems Rhinier had
with the agreements and that he refused to sign any side letter
agreement. By letter dated April 15 Robinson rejected all of
the points raised by Wardrop and she demanded that Rhinier
sign the agreement. In light of Rhinier’s adamant refusal to
sign any side letter agreement, Robertson withdrew the agree-
ment. As explained above the withdrawal of the side letter
agreement is a nullity. On April 30 Robertson sent Wardrop a
revised side letter agreement. (GC Exh. 13.) The Respondent
did not respond. Both the parties’ requests for changes may be
viewed as offers to modify binding, enforceable, agreements.
The Respondent's list of issues was discussed and rejected by
the Employer on April 14 and 15. The Employer’s revised side
letter agreement was never responded to by the Respondent.
The rejection of both requests by the opposite party does not
alter the fact that the agreements are still binding and enforcea-
ble documents. At this point neither party is under any duty to
entertain any modifications of the terms already agreed on, and
the mere fact that they did and rejected them in no way changes
the fact that the agreements are still binding and enforceable
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2208
contracts. See Mack Trucks, Inc. v. Auto Workers, 856 F.2d
579 (3d Cir. 1988) (quoting Granite State Distributors, 266
NLRB 457, 461 (1983) (“Subsequent efforts to modify terms
are ‘in no way inconsistent with the existence of the previously
arrived-at agreement. It is not unusual for parties to an agree-
ment to discuss its terms, or even to seek modification thereof,
after the agreement has been arrived at.’”)
To the extent that the Respondent argues that the side letter
had to be signed by Rhinier and that it was a condition prece-
dent for a collective-bargaining agreement I reject those argu-
ments. Based on the foregoing I find that Respondent never put
forth a condition precedent at any time during the negotiations.
On the basis of the above I find that the parties entered into a
final and binding collective-bargaining agreement and side
letter agreement on April 6, 2010. As set forth above it is set-
tled law that when an employer and a union have reached
agreement on terms and conditions of employment, it is unlaw-
ful for one of the parties to refuse to sign a contract embodying
the terms of that agreement. H.J. Heinz Co. v. NLRB, 311 U.S.
514, 526 (1941). Accordingly, as alleged in the complaint I
find that on April 14, 2010 the Respondent repudiated both the
recently agreed to collective-bargaining agreement as well as
the side letter agreement and thereby violated Section 8(b)(3)
the Act.
CONCLUSIONS OF LAW
1. The Employer, Pennsy Supply, Inc., d/b/a Ready-Mixed
Concrete, is an employer engaged commerce within the mean-
ing of Section 2(2), 2(6) and (7) of the Act.
2. The Respondent, Chauffeurs, Teamsters, and Helpers Lo-
cal Union No. 771, affiliated with International Brotherhood of
Teamsters and its Joint Council No. 53, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By repudiating the collective-bargaining agreement and
side letter agreement that the parties agreed to on April 6, 2010,
the Respondent has been, and is engaging in, unfair labor prac-
tices within the meaning of Section 8(b)(3) of the Act.
4. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in unfair la-
bor practices within the meaning of Section 8(b)(3) of the Act, I
shall order it to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act.
Specifically I shall direct the Respondent to assist the Employer
in the preparation of a complete written copy of the collective-
bargaining agreement and the side letter agreement entered into
by the parties on April 6, 2010.
[Recommended Order omitted from publication.]