Lucas County Farm Bureau Cooperative Association, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1150 (N.L.R.B. 1975)

1150 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
Lucas County Farm Bureau Cooperative Association,
Inc. and American Federation of Grain Millers
International Union , AFL-CIO, Local 58. Case 8-
CA-8649
June 30, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On March 21, 1975, Administrative Law Judge
John G. Gregg issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
Unlike the Administrative Law Judge, we find that
the Respondent violated Section 8(a)(1) and (5) of
the Act by withdrawing its recognition of Local 58 of
the Grain Millers as the exclusive collective-bargain-
ing agent of its employees, by failing to meet with the
Union to discuss terms and conditions of employ-
ment, and by refusing to process a union grievance
filed by a unit employee.
The facts herein, as set forth more fully by the
Administrative Law Judge, indicate the following.
After a long and successful bargaining history, the
parties' current collective-bargaining agreement ex-
pired on April 22, 1974. Before the contract expira-
tion date, the Union notified the Respondent of its
intent to reopen negotiations to modify the existing
contract. The parties then bargained for two sessions
before the union committee was instructed by the
Union's membership to continue to negotiate and
not to accept the Respondent's proposal. At the
parties' third meeting, the Respondent indicated that,
in the words of the Administrative Law Judge, it was
"standing on its offer." A commissioner of the
FMCS then suggested that the meeting be adjourned
to reconvene at the request of the parties. The
following day the Respondent stopped deducting
union dues from its employees' paychecks. During
the next 2 months, the Union's bargaining represent-
ative became an International Union representative
I The Administrative Law Judge inadvertently stated that the president
and business manager of Local 58 , Tomanski, advised a representative of
the Respondent on May 31, 1974, that he would be busy for several weeks
218 NLRB No. 174
and the Respondent's bargaining representative went
on vacation and later retired. When the Union's
representative asked for a fourth meeting, he was
told by the Respondent's newly designated represent-
ative that, in effect, the Union could either accept the
Respondent's proposal or none at all. As the
Administrative Law Judge noted, "the Union could
take it or leave it." Four days later the Respondent's
proposal was accepted at a union membership
meeting . Two weeks thereafter the Respondent
refused to process a grievance of a unit employee
based upon its "good faith" doubt that the Union
represented a majority of unit employees.
After considering the facts of this case, the
Administrative Law Judge concluded that no refusal
to bargain on the part of the Respondent existed in
view of the Union's rejection of the Respondent's
proposal. The Administrative Law Judge also noted
that although the Union offered to accept the
Respondent's original proposal no acceptance was
forthcoming from the Respondent. In the absence of
a current contract between the parties, the Adminis-
trative Law Judge further concluded that no unfair
labor practice occurred as a result of the Respon-
dent's subsequent refusal to process the grievance of
a unit employee. As to the Respondent's continued
refusal to bargain (after its rejection of the griev-
ance), the Administrative Law Judge found that such
conduct was justified by the Respondent's "good
faith doubt, founded upon extrinsic evidence as to
the Union's continuing majority status." Such
evidence, he stated, consisted of three named and
two unnamed employees in the seven-member unit
who had "at various times expressed dissatisfaction
with the Union to management" and two nonunit
employees "who had expressed a desire not to join
the union when transferred into the unit."
Unlike the Administrative Law Judge, we find that
the Respondent's contract proposal remained out-
standing after the initial rejection of such proposal
by the Union's membership. Thus, as noted by the
Administrative Law Judge, at the parties' third
meeting , a week after the Union's initial rejection,
the Respondent indicated that it was "standing on its
offer." And, even after a 2-month hiatus, the
Respondent's position as to its initial proposal, as
characterized by the Administrative Law Judge, was
"take it or leave it." Only 2 weeks later, the
Respondent's proposal which was still outstanding
was accepted at a second union membership meet-
ing. Thus, it is clear that even if the Respondent's
proposal was initially rejected by the Union such
proposal either continued or was effectively revived
since he had just been appointed to be an International Union representa-
five. The record reveals that such statement was made to Denner, a
commissioner of the Federal Mediation and Conciliation Service (FMCS).
LUCAS COUNTY FARM BUREAU COOPERATIVE ASSOCIATION 1151
or reinstated by the Respondent's subsequent con-
duct and statements. It is equally clear that the
Union, at a second meeting, accepted the Respon-
dent's proposal so that a contract, which had only to
be reduced to writing, existed.
Concerning the Respondent's "good faith" doubt
as to the Union's majority status, we find such doubt
to be unfounded. An examination of the testimony
upon which the Administrative Law Judge relies
reveals the following. Ralph Nail, one of the three
named "dissatisfied" unit employees, stated to the
Respondent more than a year before the Respon-
dent's doubt of majority status that "he was unhappy
with the way the 1973 negotiations were going" and
because "this was the first place he had ever worked
that had a union, he definitely felt they were getting
no benefits out of it." Despite these statements, Nail
participated in the 1974 negotiations as a union
representative. Another of the three, Jerry Ervin,
asked the Respondent in the fall of 1973 "if there
were any way to withdraw from the Union." Ervin
also told the Respondent that "other employees were
unhappy, but no one was willing to disband the
unit." Ervin was later promoted to branch manager.
The third named "dissatisfied" employee, Winifred
Jacobs, told the Respondent in June 1974 that he
"wondered whether the Union was doing him any
good," but that "he would not take any steps to
indicate seeing that it be removed." Jacobs was one
of the employees who voted to accept the Respon-
dent's proposal at the Union's second meeting.
Added to the above are the alleged unspecified
statements of dissatisfaction by two unnamed unit
employees and two nonunit employees. After consid-
ering that the foregoing expressions of "dissat-
isfaction," which we note were independent of one
another, were spread over a vast period of time, did
not indicate sufficient dissatisfaction to abandon or
eliminate the Union, and involved alleged employees
who were not identified or who were not in the
bargaining unit, we conclude that the Respondent's
objiective considerations upon which it based its
"good faith doubt" are insufficient to overcome the
rebuttable presumption of the Union' s continuous
majority status.
In'these circumstances it follows that the Respon-
dent violated the Act not only by withdrawing
recognition from the Union and by refusing to
bargain with the Union, but also by refusing to
process a grievance, for a bargaining unit employee
filed by the Union 2 weeks after the Union had
accepted the Respondent's proposed contract. In the
absence of a good-faith doubt as to the Union's
2 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
majority status, the Respondent had a duty to
consider grievances filed between collective-bargain-
ing agreements. And, in any event, the Respondent's
new contract proposal which contained a grievance
arbitration procedure had been accepted by the
Union at the time of the Respondent's refusal to
process the grievance.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent,
Lucas County Farm Bureau Cooperative Associa-
tion, Inc., Curtice , Ohio, its officers , agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing, upon request, to reduce to writing the
collective-bargaining agreement which was accepted
by American Federation of Grain Millers Interna-
tional Union, AFL-CIO , Local 58 , on August 16,
1974.
(b) Refusing to process the grievance involving the
termination of Orville Miller on August 21, 1974.
(c) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise
of their right to self-organization , to form labor
organizations , to join or assist any labor organiza-
tion, to bargain collectively through representatives
of their own choosing , to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any
and all such activities.
'2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Reduce the agreement accepted by the above-
named Union on August 16, 1974, to writing, and
execute the said agreement:
(b) Process the grievance involving the termination
of Orville Miller in accordance with the terms of the
said collective-bargaining agreement as accepted by
the above-named Union on August 16, 1974.
(c) Recognize and, upon request , bargain with the
American Federation of Grain Millers International
Union , AFL-CIO, Local 58 as the exclusive collec-
tive-bargaining representative at Lucas' County Farm
Bureau Cooperative Association, Inc.
(d) Post at its plants in Curtice , Burkee, and
Maumee, Ohio, copies of the attached notice marked
"Appendix." 2 Copies of said notice , on forms
provided by the Regional Director for Region 8, after
being duly signed by the Respondent 's representa-
tive, shall be posted by the Respondent immediately
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps-shall be taken
by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse, upon request, to reduce to
writing the collective-bargaining agreement which
was accepted by American Federation of Grain
Millers International Union, AFL-CIO, Local 58,
on August .16, 1974.
WE WILL NOT refuse to process the .grievance
involving the termination of Orville Miller on
August 21, 1974.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to
form labor organizations, to join or assist any
labor organization, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or
protectiori; or to refrain from any and all such
activities.
WE WILL reduce the agreement accepted by the
above-named Union on August 16, 1974, to
writing and execute the said agreement.
WE WILL process the grievance involving the
termination of Orville Miller in accordance with
the terms of the said collective-bargaining agree-
ment as accepted by-the above-named Union on
August 16, 1974.
WE WILL recognize and, upon request, bargain
with the American Federation of Grain Millers
International Union, AFL-CIO, Local 58, as the
exclusive collective-bargaining representative of
our employees.
LUCAS COUNTY FARM
BUREAU COOPERATIVE
ASSOCIATION, INC.
DECISION
JOHN G. GREGG; Administrative Law Judge: This case
was heard before me at Toledo, Ohio, on January 29, 1975.
The charge was duly filed by the Union herein and served
on Respondent on October 12, 1974. The complaint which
was issued on December 5, 1974, alleges that Respondent
violated Section 8(a)(1) and (5) of the National Labor
Relations Act. Posthearing briefs were filed by the General
Counsel and by Respondent.
Upon the entire record, including my observation of the
witnesses and after due consideration of the briefs filed by
the General Counsel and the Respondent, I make the
following:
1. JURISDICTION
The Respondent is a corporation duly organized under
the laws of the State of Ohio with principal office and place
of business in Curtice, Ohio, and is a farmer's cooperative
association engaged in the marketing of grain , processing
of seed and feed and in retail sales to its members and the
public. Annually in the course and conduct of its business,
the Respondent derives gross revenues in excess of
$500,000 from the sale of grain and receives goods valued
in excess of $35,000 at its Ohio facilities directly from
points located outside the State of Ohio.
-The Respondent is now and has been at all times
material herein an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
American Federation of Grain Millers International
Union, AFL-CIO, Local 58, the Union herein, is now and
has been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint herein alleges essentially that the follow-
ing employees of Respondent constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All truckdrivers , yard men, warehousemen, and mill
and grain department employees at the Employer's
Maumee, Burkee and Curtice, Ohio plants , including
plant clerical employees , but excluding all office
clerical employees full-time outside salesmen , foremen
and other supervisors as defined in the Act.
That on May 12, 1959, a majority of the employees of
Respondent in the unit described above by secret ballot
election conducted under the supervision of the Regional
Director for Region 8 of the Board, in Case 8-RC-3367,
designated and selected the Union as their representative
for the purposes of collective bargaining with the Respon-
dent, and on June 22, 1959, said Regional Director
certified the Union as the exclusive bargaining representa-
tive of the employees in said unit; that at all times since on
or about June 22, 1959, and continuing to date, the Union
has been the representative for the purposes of collective
bargaining of the employees in the unit described above
and by virtue of Section 9(a) of the Act has been, and is
now, the exclusive representative of all the employees in
said unit for the purpose of collective bargaining with
LUCAS COUNTY FARM BUREAU COOPERATIVE ASSOCIATION 1153
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment; that the
Respondent and the Union have been parties to numerous
consecutive collective-bargaining agreements covering the
unit described above. the last one of which had an effective
term of April 23, 1973, through April 22, 1974; that
commencing on or about March 28, 1974, and continuing
to date, the Union has requested, and is requesting,
Respondent to bargain collectively with respect to rates of
pay, wages, hours of employment, and other terms and
co riditions of employment of all the employees of Respon-
dent in the unit described above; and that commencing on
or about August 28, 1974, and at all times thereafter,
Respondent did refuse, and continues to refuse, to bargain
collectively with the Union as the exclusive collective-
bargaining representative of all the employees in the unit
described above in that:
(A) On or about August 28, 1974, and continuing to date,
the Respondent withdrew its recognition of the Union as
the exclusive collective-bargaining representative of all its
employees in the unit described above and failed and
refused, and continues to fail and refuse, to meet,
negotiate, and discuss with the union matters with respect
to rates of pay, wages, hours, and other terms and
conditions of employment of its employees in such unit.
(B) On or about August 28, 1974, and continuing to date,
the Respondent failed and refused, and continues to fail
and refuse, to process a grievance filed by the Union on or
about August 21, 1974, regarding the termination of unit
employee Orville Miller.
The complaint alleges additionally that on or about May
16, 1974, the Union notified the Respondent of its final
contract offer and/or proposals and on or about August
16, 1974, notified Respondent of its desire and intention to
accept the Respondent's final contract offer and/or
proposal of May 16, 1974; and that on or about August 28,
1974, and continuing to date, the Respondent refused to
continue to recognize the Union as collective bargaining
representative of the employees in the unit described
hereinabove and, additionally, repudiated the collective-
bargaining agreement established by virtue of the Union's
acceptance of Respondent's contract offer and/or ,proposal
as described hereinabove; and that by the acts and conduct
described above and by each of said acts, Respondent did
interfere with, restrain, and coerce, and is interfering with,
restraining, and coercing, its employees in the exercise of
their rights guaranteed in Section 7 of the Act, and did
thereby engage in unfair labor practices within the
meaning of Section 8(a)(1) of the Act, and Respondent did
thereby refuse to bargain collectively, and is refusing to
bargain collectively, with the representative of its employ-
ees, and thereby did engage in, and is engaging in, unfair
labor practices within the meaning of Section 8(5) of the
Act.
A. The Facts Relative to the Contract Negotiations
There is little dispute as to facts herein, it appearing from
the record that on February 12, 1974, Donald Tomanski,
president and business representative of the Union herein,
notified the Respondent of the Union's intent to open the
existing contract for the purpose of modifying and
amending it. Negotiating sessions were then conducted at
the company offices on March 29, 1974, and at the Holiday
Inn in Toledo, Ohio, on May 16, 1974.
The Union held a membership meeting of the Respon-
dent's employees on May 22, 1974, at which time the
employer's offer was rejected and the committee was
instructed to go back and negotiate a better contract.
On May 31, 1974, the parties met at the Federal
Mediation Office where the commissioner was advised as
to the differences between the patties and after conferring
with both parties suggested that since the Company was
standing on its offer, the meeting be adjourned to
reconvene at the request of the parties or the commission-
er. It was stipulated by the parties _ that good-faith
bargaining had in fact taken place at this point. The record
also establishes the fact that as of June 1, 1974, the
Company stopped deducting union dues which it had
deducted previously pursuant to ongoing contracts.
The record discloses testimony by Tomanski, union
representative, stating that simultaneously with the break-
ing off of negotiations on May 31 , 1974, he was appointed
to the International Union effective June 2, 1974, he
advised Respondent's representative, Donner, that he
would be very busy the next couple of weeks but would
contact him shortly to possibly set up another meeting.
Accoidiilg to Tomanski, with Dormer's vacation interven-
ing, it was around July 15, 1974, that Tomanski contacted
the FMCS commissioner and was advised that Donner had
retired and that the matter was being, handled by Art
Woods. Tomanski contacted Woods on,July 15, 1974, and
suggested that negotiations be continued either the 25th or
26th'of July 1974.
Subsequently, on July 30, Woods contacted Tomanski
and advised him the Company refused to meet and,
euphemistically, the Union could take it or leave it.
On Sunday, August 4, 1974, Tomanski instructed
Blochowski tb call a membership meeting , and to advise the
membership to either accept the contract they had
heretofore rejected or to get a strike vote. The membership
met on August 15, 1974, and of the seven unit employees,
two attended the meeting. Differing versions of the
specifics of what transpired thereafter were offered by
Blochowski and Godfried.
On August 16, 1974, Union Representative Blochowski
called Godfried, company representatives and advised him
that "the body had accepted the rejected proposal."
According to Blochowski, Godfried either said okay or
merely acknowledged the call. Godfried testified that he
told Blochowski that he would not himiself accept it„and,
in response to a question by blochoWski as to, why union
dues were not being deducted, stated that this was by
recommendation of counsel; that Blochovski should
contact the Company's counsel. Godfried stated that in an
earlier conversation with company counsel , after the
Union had rejected the contract and the mediation had
failed, the Company on June 1, 1974, discontinued
deducting union dues because it took the position that the
contract had expired when the offer was rejected, and at
that time Godfried and company counsel prepared a draft
of a company letter to employees which advised the
employees that the Company and Union had negotiated
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but were unable to come to an agreement and that it was
placing into action its offer which had been presented
during the negotiations and rejected by the Union.
B. Discussion, Findings, and Conclusions
Based on my observation of the demeanor of the
witnesses as they testified, I credit the version advanced by
Godfried concerning his telephone conversation with
Blochowski and credit his testimony as substantiated by
the, pertinent exhibits of record and which, furthermore, in
my view is inherently plausible in the circumstances' herein.
Additionally, I am persuaded that Tomanski testified in a
less than candid manner and am persuaded that his
testimony was at times contrived to, supply elements, vital
to his case.' I find that following the rejection of the
company offer and the failure of the mediation effort, the
Company took the position that there was no contract,
substantiated by the fact that it discontinued deducting
dues an act clearly indicating its position, I find additional-
ly that the Company was not further contacted by the
Union until the employer received the telephone call on
August 16, 1974, in which Blochowski indulging unwitting-
ly in a self-destructing legalism stating, "they accepted the
rejected proposal."
While it is axiomatic, that collective bargaining is a
continuing process, it is also well settled that an offer
clearly rejected may not subsequently be effectively
accepted without some further act sufficient to revive or
reinstate such offer, which I do not find on this record.
At best, in view of the fact that the contract had expired
on April - 22, 1974, and bargaining had ceased, bona fide
collective bargaining would have required the Union
herein to reopen negotiations with the Company so as to
assure the existence of a viable offer. Not having done so
for an extended period of time which in my view was
unreasonable in terms of keeping the negotiations viable,
the Union has failed in its bargaining duty and its attempt
to accept a nonexistent offer is futile, and was at best an
invitation to the Company to revive its previous offer,
which the Company did not do. Since there is no contract,
there is no duty to reduce it to writing. Nor is there any
duty on the part of the Respondent to process the union
grievance over the Miller termination. Accordingly, I fmd
that with respect to the allegations of the complaint
alleging a refusal " to bargain, the Respondent has not
unlawfully refused to bargain and has not violated Section
8(a)(5) of the Act, and I shall recommend that that portion
of the complaint be dismissed.
Turning finally to the Respondent's refusal to continue
negotiations with the Union after August 28, 1974, based
on the record herein, I find ample evidence on which to
base a finding and I find that the Respondent was justified
in its refusal to continue negotiations since it had a good-
faith doubt, founded upon extrinsic evidence, as to the
Union's continuing majority status.
As urged by the Respondent, an employer 'does not
violate Section 8(a)(5) of the Act by refusing to bargain
with a union which enjoys the presumption that its
majority status continues since that presumption is
rebuttable by affirmative establishment by the employer
either that (1) at the time of the refusal, the union in fact no
longer enjoyed majority representative status, or (2) that
the employer's refusal was predicated on a good faith and
reasonably grounded doubt of the union's continued
majority status. Two prerequisites for the second of these
defenses are that the asserted doubt must be based on
objective considerations and not advanced for the purpose
of gaining time in which to undermine the Union. Terrell
Machine Company, 173 NLRB 1480 (1969). See also
Celanese Corporation of America, 95 NLRB 664,(1951);
Automated Business Systems, ai Division of Litton Business
Systems, Inc., et al., 205 NLRB 532 (1973).
In finding that the Respondent had a "bona fide good-
faith doubt of the Union's majority status herein, I have
taken into consideration that in a unit of seven employees,
crediting the testimony of Godfried who testified in a
straightforward, sincere, and candid manner, employees
Nail, Erven, Jacobs, and two others, unnamed, had at
various times expressed dissatisfaction with the Union to
management, the Company had been involved in a change
in its operation requiring transfers of personnel, which
would affect the number of personnel to be included in the
unit involved herein by the possible addition of two
employees Faber and Spasoff, both of whom then held
nonunion jobs and who had expressed a desire not to join
the union when transferred into the unit.
While concededly a close question, based on my analysis
of the, record as a whole, the absence of union animus on
the part of the Employer herein, the long record of prior
contractual and negotiating history, and the existence of
the foregoing objective considerations by the Employer
credited on this record, I am convinced and I find that the
employer herein entertained a' good-faith doubt of the
Union's continued majority status and that it did not
unlawfully refuse to bargain in good faith as alleged in the
complaint. Accordingly, the complaint herein is dismissed
in its entirety.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS of LAW
1. American Federation of Grain Millers International
Union AFL-CIO, Local 58 is a labor organization within
the meaning of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce as defined in
Section 2(6) and (7), of the Act.
3. The Respondent has not committed any of the unfair
labor practices averred in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
LUCAS COUNTY FARM BUREAU COOPERATIVE ASSOCIATION 1155
March 9, 1976
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
1. Delete paragraph 1(a) of the Order and
renumber the subsequent paragraphs accordingly.
2. Delete paragraph 2(a) of the Order and
renumber the subsequent paragraphs accordingly.
3. Substitute the attached notice for the notice
attached to the original Decision and Order.
On June 20, 1975, the Board issued its Decision
and Order in this proceeding.' Thereafter, on July 22,
1975, Respondent filed a Motion for Reconsidera-
tion and brief in support thereof. On July 28, 1975,
Charging Party filed its opposition to the motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reconsidered the record and its
original Decision and Order in light of the Motion
for Reconsideration and brief and Charging Party's
opposition thereto and has decided to modify its
Decision and Order as hereinafter indicated.
We find merit in Respondent's contention, as set
forth in its Motion for Reconsideration, that in the
Board's original Decision and Order in this matter
the Board inadvertently but erroneously attributed to
Respondent certain statements purportedly made
during the course of negotiations for a new contract.
In this regard the record fails to sustain a finding that
Respondent indicated at the parties' third meeting
that it was "standing on its offer." Nor does the
record sustain a finding that the Union's representa-
tive, when he requested a fourth meeting, was
informed by Respondent's representative that the
Union could either accept Respondent's contract
proposal or none at all, in effect "take it or leave it "2
In view of the record the Board is of the opinion
that there is insufficient evidence to warrant a
finding that Respondent's May 16, 1974, offer for a
new contract remained open and could be accepted
by the Union on August 15, 1974. Accordingly, there
is no basis for concluding, as the Board did in its
original Decision and Order, that Respondent
violated Section 8(a)(1) and (5) of the Act by refusing
to reduce to writing an agreed upon collective-
bargaining contract.3
ORDER
It is hereby ordered that the Board's original Order
in this proceeding be, and it hereby is, modified as
follows:
1 218 NLRB 1150. (Thus Supplemental Decision and Order will
appear in Volume 218 immediately following the original Decision and
Order.)
2 At most the record indicates that a Federal mediator so construed
Respondent's bargaining position and communicated this interpretation to
the Union.
3 The Board finds no merit in Respondent's Motion for Reconsideration
except as set forth above. In this regard the Board is satisfied that the record
evidence amply supports the Board's findings that Respondent violated Sec.
8(a)(1) and (5) of the Act by withdrawing recognition from the Union and
by declining to process an employee's grievance . As to the latter , we rely on
our previous finding that in the absence of a good-faith doubt as to the
Union's majority status the Respondent had a duty to consider grievances
filed even though the collective-bargaining agreement had expired.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to process the grievance
involving the termination of Orville Miller on
August 21, 1974.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,
to form labor organizations, to join or assist any
labor organization, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any and all such
activities.
WE WILL recognize and, upon request, bargain
with the American Federation of Grain Millers
International Union, AFL-CIO, Local 58, as the
exclusive collective-bargaining representative of
our employees.
LUCAS COUNTY FARM
BUREAU COOPERATIVE
ASSOCIATION, INC.