Paperworkers Local 795

National Labor Relations Board - Board DecisionsMar 11, 1981

254 N.L.R.B. 1332 (N.L.R.B. 1981)

I 3 3 2 1)ECISIONS Compa- ny-BagPak ' 8(b)(3) acol- 8(b)(3) Camden, Camden 1979.* Camden Mobile- Camden Camden agreement;3 #795 [i.e. Paper- #795.* durlng Presidenl latter's All heremafter practlce havlng Into notiticalion ral~fi- catton. ngree- lhe Internat~onal mlsstalement. OF NATIONAL LABOR RELATIONS BOARD United Paperworkers International Union and its meeting at which the Employer proposed that Local No. 795 and International Paper wages at Mobile be reduced or frozen, asserting Division. Case 15-CB-2205 that, if that were done, its competitive position March 11 , 1981 would improve to such an extent that it could keep the Mobile plant open. Although Respondents DECISION AND ORDER made counterproposals, no agreement was On June 12, 1980, Administrative Law Judge J. Pargen Robertson issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party both filed exceptions and supporting briefs, and Respondents filed a brief in response to the exceptions of the General Counsel and the Charging Party and in support of the Ad- ministrative Law Judge's Decision. The Board has considered the record and the at- tached 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. The Administrative Law Judge found that Re- spondents International and Local 795 (hereinafter the International, the Local, or, collectively, Re- spondents) did not violate Section of the Act by refusing to reduce to writing and sign lective-bargaining agreement allegedly reached be- tween it and the Charging Party (hereinafter the Employer). We disagree. For the reasons set out herein, we find and conclude that Respondents have violated Section of the Act as alleged. The facts, as more fully set forth in the Decision of the Administrative Law Judge, are largely un- disputed. The International and the Employer were parties to a collective-bargaining agreement, effective from July 1, 1977, to June 30, 1979, under which the Employer recognized the International as the ex- clusive collective-bargaining representative for a combined unit of the Employer's production and maintenance employees employed at its Mobile, Al- abama, and Arkansas, plants. The Mobile employees were assigned to Respondent Local 795; the employees were assigned to Local 367, which is not a party to these proceedings. On December 8, 1978, the Employer advised Re- spondents that it intended to close its Mobile facili- ty because that facility could not compete in the local multi-wall industry due to what the Employer claimed were excessively high labor costs. The par- ties agreed to meet to discuss what was making the Mobile plant noncompetitive. On December 15, 1978, International Representa- tive Pleza Watson gave the Employer's manager of employee relations, Anthony Chianese, a letter in which Respondents requested "to meet, discuss and bargain with" the Employer concerning its deci- sion to close its Mobile plant. This request led to a 254 NLRB No. 173 reached at this meeting. Discussion continued from December 1978 through April Representatives of Local 367 did not participate in these discussions, and in early April Respondents expressed an inter- est in negotiating an agreement which would be limited to the Mobile portion of the dual-plant unit, as the plant was not experiencing the same economic difficulties as the Mobile plant. By mid-April, the parties had resolved most of their differences regarding how the Mobile plant was to be saved from permanent closure. On April 12, a proposal drafted by Chianese was submitted by Respondents to the Mobile plant employees for their ratification; it was not ratified. At or about this same time, the Mobile plant completed the last of its phaseout work and shut down completely. On April 24, the Employer submitted a revised proposal to Respondents in which it offered to pay severance pay to those Mobile employees who were unwilling to continue working under the belt- tightening conditions set out in the aforementioned rejected April 12 proposal. On April 26, Interna- tional Representative Watson notified the Employ- er that the Mobile employees had voted to ratify the April 24 proposal. Immediately thereafter, the Mobile plant was reopened and the Employer com- menced to implement the terms of the April 24 those employees who chose to sever their employment were paid severance pay, as pro- vided for in that agreement. The ratified agreement covering the Mobile plant contained the following provisions: 7. The Company is in Agreement with Local Union's Mobile] request that a separate labor agreement be estab- lished by and between the United workers International Union and its Local Union It is understood that such a International Representative Watson was the principal negotiator and spokesman for Respondents the series o f discussions between the Employer and Respondents about the impending closure o f the Mobile plant. Local Bryan assisted Watson in the capacity as spokesman. dates are in 1979. This accorded with the parties' o f the Employer put the provisions o f a new agreement effect upon o f A s the Administrative Law Judge notes, the reference to an menr "by and between" and the Local is a Continued the Items 19791 #795.5 Internati~nal .~ Camden U n i ~ n . " ~ of hetween employees. by .area I2 be- rwPen Chian- L-w W a t s ~ n 795 C'hianese in- c:luded Item I2 V r y a n ! t i instructions Whlddon \rnd dual- Wa tu~n 1c1 Whlddon-one Intcrnnl~onal the Aprll lnternat~onal v~ue-prcwlent [i.e., and 11 IS 1101 rlt)t tcsllfy riot test~fy Thus, whlle Aprll 24 unldwfully sslgn agzement, record arreement ev~dence heen ' time Chlanese obtaln 3,$ yet agreement.s se~aration Camden ~ c ~ntroduced ev~dence. thts 1 Chlanese President I ' A P E R W O R K E R S A N D ITS LOCAL NO. 795 1333 separate agreement is subject to the approv- al of United Paperworkers International Union. 1 through 7 along with all other condi- tions of the present [July 1, 1977-June 30, Labor Agreement that are not specifical- ly affected by Items 1 through 7 will govern the terms and conditions of employment through June 30, 1982, for present and future employees at the Mobile Plant represented by the United Paperworkers International Union and its Local 'There is nothing in the record to show that Watson or any other International or Local person- age ever submitted the April 24 ratified agreement to the However, on May 23, Local President James Bryan did write a letter to Interna- tional President Wayne Glenn in which Bryan re- quested, on behalf of the members of the Local, "that separate bargaining negotiations be held by and between Local 795 and International Paper Company." Bryan referred to the past practice of joint bargaining by Local 795 and Local 367, as a dual-plant bargaining unit, but asked that 1979 negotiations be conducted separately, as being "in the best interest of Local 795 and International I 'he parties were actually speaking a collective-bargaining agreement the Employer and Respondents, covering only the Mobile unit Although item 7 was drafted by the Employer, it was suggested and inserted into the agreement at the request of lnternational Repre- sentative Watson, upon instructions from Jesse Whiddon, an lnternational vice president, who was director of Respondent's activities in the Mobile and Watson's immediate superlor. Prior to the April meeting the parties, Watson advised Employee Relations Manager that Respondents wanted an agreement concerning Mobile only. also advised Chianese that it might take a while, following Local ratification of such an agreement, to obtain the administrative ap- proval from the lnternational president for such a separate agreement. agreed to accommoddte Respondents in this regard. and he 7 in the Employer's April and 24 proposals. testified that he never sent a copy of the April 24 agreement lnternational President Glenn, because Watson, upon from and Glenn, had told Bryan that the requirement was that Bryan Glenn a letter requesting the splitting of the Mobile-Camden plant unit. testified that he provided two copies of the April 24 agreement for Whiddon to retain, the other for him to send on to headquarters. When asked if he (Watson) had ever shown 24 agreement to Glenn, Watson replied that "my Whiddon] does those things. I didn't send it to him my duty either." Whiddon testified that he had read the April 24 agreement, but he did as to whether he ever sent it to Glenn for approval. Glenn did in this proceeding. Respondents raise the absence of lnternational approval of the agreement as a defense against the allegations that they have refused to that there is no evidence in the that Respondents have ever submitted the for such ap- proval, much less any as to why, substanttvely, such approval has not forthcoming. From the of the Employer's implementation of the April 24 agreement. had urged Bryan to write to Glenn to the lat- ter's approval for the severance of the Mobile-Camden dual-plant unit. On July Glenn wrote a letter to Bryan and the Local 367 president, jointly, in which he ad- vised them that he believed "it would be the better wisdom that both your Locals meet together for joint bargaining with your employer." On July 17, Chianese, on behalf of the Employ- er, wrote to International Representative Watson as follows: Dear Mr. Watson: On April 25, 1979, we reached agreement on the terms and conditions of employment at our Mobile Bagpak Plant through June 30, 1982. Although that agreement has been rati- fied and implemented, and the Plant kept in operation as a result, the union has not for- mally executed our agreement. Enclosed please find two copies of the above referenced agreement signed by us. Please execute this agreement on behalf of the UPIU and return a signed copy promptly to me for my files. Respondents have at all times refused to execute the aforementioned Analysis The Administrative Law Judge found that Re- spondents have refused to sign the April 24 agree- ment "because of circumstances which flowed from item 7, in the April 24 agreement," and par- ticularly the last sentence thereof relating to Inter- national approval of "such a separate agreement." Respondents contend that item 7 gave the Inter- national's president the authority to approve or dis- approve the April 24 agreement in its entirety. The General Counsel and the Employer contend that item 7 gave the International's president only the authority to approve or disapprove of the sepa- ration of the Mobile-Camden dual-plant unit into single-plant bargaining units. The Administrative Law Judge found it unneces- sary to resolve the question of whether the Interna- tional president had the authority to approve or disapprove the entire April 24 agreement or only the of the Mobile unit from the unit. Instead, he determined that the ultimate ques- tion in this case was whether the parties intended This May 23 letter from Bryan to Glenn appears to be Bryan's attempt to seek such approval. In any event, no other letter to Glenn from Bryan was into Incorrectly designated in the Administrative Law Judge's Decision as July 23. Watson testified that he did not respond to letter because "I guess didn't get around to it," although he did verbally advise that he (Watson) could not sign the April 24 agreement because Interna- tional Glenn had not yet approved the separation of the Mobile-Camden dual-plant unit. Camden Camden, "[s]ince Camden Camden laid- emvlovment vursuant April ag&eient; 19 negoti- ations."1° ' O non Apr~ l reemploy men^ m~nd [he S80.0a) [i.e., 1.134 D E C I S I O N S OF N A T I O N A L the April 24 agreement to be conditioned on the Mobile-Camden unit being separated into single units. He reasoned that, since Local 367 objected to Respondents giving any major conces- sions in labor costs to the Employer at Mobile, the parties realized that the combined Mobile-Camden unit membership, dominated numerically by was unlikely to ratify the April 24 agree- ment, calling as it did for significant economic sac- rifices in the nature of wage reductions or freezes on the part of the Mobile employees to forestall a shutdown of the Mobile plant; and that ratification was a probability only if the vote did not include employees . . . the parties in- tended to condition their agreement on separation of the locals." Consequently, he concluded that, in- asmuch as the International president has not ap- proved the separation of the Locals, Respondents are not obligated to sign the April 24 agreement. Contrary to the Administrative Law Judge, we find that the conduct of the parties establishes that they did not condition their acceptance and imple- mentation of the April 24 agreement on approval by the International president of the separation of the Mobile and plants into separate units. Rather, we find that the parties' immediate imple- mentation of and adherence to the terms of the April 24 agreement demonstrated their mutual ac- ceptance of and intent to be bound by it. With respect to the Employer's conduct, it im- mediately reopened the Mobile plant; recalled off employees; hired 30 new employees at the re- duced wage rates contained in the April 24 agree- ment; brought its work force back up from 2 em- ployees on April 25 to 104 recalled employees by May 14; paid out over $82,000 in accrued vacation and severance pay to employees who decided to ouit their to the terms of the 24 tbok immediate steps to re- plenish its raw materials inventory; and implement- ed the agreed-upon 3-year general freeze on wages, the new lower starting wage rates for newly hired employees, the special 15-cent increase in the base rate for 7 finishers, the elimination of 12 job classi- fications, the reclassification of employees, and the new schedule for breaktimes. In short, the Employer immediately resumed op- erating the Mobile plant under the terms and con- ditions of the April 24 agreement (and has contin- ued to so operate that facility at least through the time of the hearing herein in January 1980). As for Respondents, the conduct of their repre- sentatives, at all levels, shows they acquiesced in the reopening of the Mobile plant and the full im- plementation of the April 24 agreement at that fa- cility. Thus, International Vice President Whiddon L A B O R R E L A T I O N S B O A R D raised no objections to any aspect of the agree- ment's implementation. On the contrary, Local President Bryan reviewed and approved the com- plete text of the Employer's form letter to all em- ployees, advising them that "The Union and the Company have recently ratified a new Labor Agreement," and asking them to notify the Em- ployer within 7 days whether they wished to con- tinue their employment or terminate it and take the severance pay. Further, following ratification by the Local of the April 24 agreement, and in light of this new agreement, Respondents withdrew most of the then pending 79 grievances and an unfair labor practice charge against the Employer, and dropped a $1.75 million civil lawsuit against the Employer. All of this took place or was well underway before Bryan, at the repeated urging of Internation- al Representative Watson and the Employer, belat- edly wrote his May 23 letter to International Presi- dent Glenn requesting "separate bargaining Thus, quite clearly, Respondents did not treat approval of the dissolution of the dual-plant unit as a condition precedent to implementing the April 24 agreement, or abiding by its terms. Indeed, even subsequent to the International president's July 3 letter-which the Administrative Law Judge found to be a rejection of Respondent's request for sepa- ration of the dual-plant unit, and thus, in the Ad- ministrative Law Judge's view, a rejection of the April 24 agreements-the parties continued to adhere to and further implement the terms and conditions of that agreement. For example, when new pension levels were negotiated for other plants in the latter part of July, Watson still asked the Employer to implement these new terms at Mobile In attempting to explain why he waited for almost a month after ratification and implementation of the April 24 agreement before finally seeking Glenn's approval of a separate agreement for Mobile, which Re- spondents have maintained was a sine quo to their signing of the agreement. Bryan testified that. while he assumed that Glenn would nor give such approval, Bryan nevertheless was willing to have the Employ- er resume full plant operations in accordance with the terms of the 24 agreement in the overriding interest of reopening the plant. Watson, on the other hand, testified that, while he felt that the April 24 agreement would eventually be approved, he had no outright assur- ances to that effect. Instead, according to Watson, in raising no objec- tions to the immediate implementation of the agreement, he focused en- tirely on the fact that the reopening of the plant would provide immedi- ate for the laid-off employees; indeed, Watson by his own admission did not even let the question of International approval enter his in his overriding quest for reopening of plant. With regard to the Employer's payment of over in severance and accrued leave to 25 employees, pursuant to the terms of the agree- ment which Respondents now refuse to sign. Watson testified that: "They the terminating employees] had their money, they could care less whether [the agreement] was tentative, permanent o r otherwise." Thus. it is clear that neither Watson nor Bryan considered the lack of International approval to be any impediment whatsoever to the full im- plementation of the April 24 agreement. specifically 1982." 1 unit.12 ' ' after great In E.mployer U.S.A., Inc., 1081 Penello concurring a d /b /a ~Vaccarato Tacoma 1400 Vin Compony, 125. In Lucal International Chau//eur.\. Wurchouremen & ~Uoines &eel Company). 193 Operating 3. (Cali/ornia Emplayers). (1959); A.B.C. Inc.. 1 Amolgamoted AFL- C I O . and (Shutzer iWanufacturing Inc.), 831. 8(b)(3) 2(6) 2(5) Camden, 1, collec- section 9(b) 9(a) 8(b)(3) ~rac t ice 2(6) final consumated): Innmational and rts Unron (Nemda Cemenr 173 13908 ( '"ec. B(d) Heinz ,V.L.R.B.. 1 (1941). 1335 PAPERWORKERS A N D ITS LOCAL NO. 795 in accordance with a provision in the April 24 agreement which exempted pensions from the otherwise total freeze on benefit levels at the Mobile plant through Still later after what Respondents contend was International President Glenn's rejection of the April 24 agreement, Watson and Bryan met with Mobile Plant Manager Henry Iverson on July 3 in an attempt to resolve a dispute about how the new unpaid lunch provisions in the April 24 agreement would be applied to employees who worked double shifts. According to Iverson, Watson opened the discussion with a statement that it was a shame that this dispute was the only "thorn" in Respondents' side concerning "the new agreement" and that the "new agreement had brought much harmony to the plant." Thereafter, the parties re- solved the dispute over the unpaid lunch provisions of the April 24 agreement by the Employer's agreement to give a paid lunch to employees who worked a double shift. Thus, the parties have conclusively demonstrated by their immediate implementation of the terms and conditions of the April 24 agreement, and by their unwavering course of conduct thereafter in strict adherence thereto, that they did not condi- tion the implementation of their agreement on ap- proval by International President Glenn of the sep- aration of the Mobile-Camden dual-plant unit into single-plant units. To the contrary, as found herein, the conduct of the parties following their April 24 agreement clearly manifested their unconditional intent to be bound by the terms and conditions of that agreement regardless of any action taken by the International with respect to the scope of the When Watson was asked at the hearing to verify that this request pursuant to the April 24 agreement was made the July 3 letter from Glenn, he testified: They still haven't disapproved the contract. 'They haven't approved or disapproved, at this time, right today, they haven't said that it isn't approved . . . . I don't have approval, but my people are work- ing, which is the thing about it. 'This is yet another example of Respondent's demonstrated lack of con- cern over the question of International approval their haste to have the resume full operations under a separate agreement covering only the Mobile plant employees. See Chevron 244 NLRB (1979) (Chairman Fan- ning and Member in relevant part); Frank Naccararo, Sole Proprietor. Construction Company and Framing Company. 233 NLRB 1394. (1977): James Plastering 129-130 (1976); Marquis Elevator Company. Inc., 217 NLRB 461, 465-466 (1975) (Member Jenkins concurring 226 NLRB rele- vant part); Freight. Construction, General Drivers. Warehousemen and Helpers Union. No. 287, Brotherhood of Teamsters, Helpers of America (Pittsburgh-Des NLRB 1078, 1087 (1971); Engineers Local Union No. A F L- C I O Association of 123 NLRB 922. 929-930 see also Drywall Company. 22 NLRB 238. 240-241 (1975); Clothing Workers of America, C L C Local 187 Co.. 210 NLRB 836 (1974) (respondent insisted on implementation of agreement Accordingly, we find that, by refusing to execute the April 24 agreement, Respondents have violated Section of the Act. 1. The Charging Party, International Paper Company-Bagpak Division, is an employer en- gaged in commerce within the meaning of Section and (7) of the Act. 2. The Respondents, United Paperworkers Inter- national Union and its Local No. 795, are labor or- ganizations within the meaning of Section of the Act. 3. All production and maintenance employees employed by the Employer in its Bagpak Division at its Mobile, Alabama, and Arkansas, facilities, excluding office clerical employees, guards and supervisors as defined in the Act and excluding all others listed under section 3, Repre- sentation, of the July 1977-June 30, 1979, tive-bargaining agreement between the Employer and the International, constitue an appropriate bar- gaining unit within the meaning of of the Act. 4. At all times material herein, Respondent Inter- national has been the recognized exclusive collec- tive-bargaining representative of the employees in the abovedescribed unit within the meaning of Section of the Act. 5. Respondents engaged in an unfair labor prac- tice in violation of Section of the Act by failing and refusing since on or about April 24, 1979, to sign the collective-bargaining agreement covering the Employer's Mobile facility employees through June 30, 1982, as negotiated and agreed to by the parties and ratified by the Local No. 795 membership on or about April 24, 1979. 6. The aforesaid unfair labor is an unfair labor practice affecting commerce within the mean- ing of Section and (7) of the Act. Having found that Respondents have engaged in an unfair labor practice, we shall order them to cease and desist therefrom and to take certain af- firmative action which we find to be necessary to remedy the unfair labor practice and to effectuate the policies of the Act. Specifically, we shall order that- Respondents execute and give retroactive effect to the collective-bargaining agreement they while also insisting that no agreement had been United Cement, Lime and Gypsum Workers Union, AFL-CIO, Local No. 445 Company), NLRB 1390. 1968). of the Act: see. generally, H.J. Company v. 31 U.S. 514 I3.lh IO(c) "Appen- dix."14 for of Pursu- :In1 lo Nat~onal ROBERTSON, 8(b)(3) w ~ t h br~eb DECISIONS OF NATIONAL LABOR RELATIONS BOARD reached with the Employer on or about April 24, 1979, covering the Employer's Mobile facility unit employees through June 30, 1982. ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondents, United Paperworkers International Union and its Local No. 795, Mobile, Alabama, their officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Em- ployer, International Paper Company-Bagpak Di- vision, by failing and refusing to sign the new col- lective-bargaining agreement covering the Employ- er's Mobile facility employees through June 30, 1982, as negotiated and agreed to by the parties and ratified by Respondent Local No. 795 member- ship on or about April 24, 1979. (b) In any like or related manner engaging in conduct in derogation of their statutory duty to bargain with the Employer. 2. Take the following affirmative action neces- sary to effectuate the purposes and policies of the Act: (a) Upon request of the Employer, sign the new collective-bargaining agreement covering the Em- ployer's Mobile facility employees through June 30, 1982, as negotiated and agreed to by the parties and ratified by Respondent Local No. 795 member- ship on or about April 24, 1979. (b) Post at their business office and meeting halls copies of the attached notice marked Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by official representatives of Respond- ents, shall be posted by Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Furnish to the Regional Director for Region 15 signed copies of the attached notice for posting, the Employer willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director Region 15, shall, after being duly signed by Re- '' In the event that this Order is enforced by a Judgment of a United Stales Court of Appeals, the words in the notice reading "Posted by Order the National Labor Relations Board" shall read "Posted a Judgment of the United States Court of Appeals Enforcing an Order of the Labor Relations Board." spondents as indicated, be forthwith returned to the Regional Director for disposition by him. (d) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with International Paper Company-Bagpak Division by refusing to sign the collective-bar- gaining agreement agreed to between Interna- tional Paper Company-Bagpak Division and us on or about April 24, 1979, covering the Employer's Mobile employees through June 30, 1982. WE WILL NOT in any like or related manner engage in conduct in derogation of our statu- tory duty to bargain with International Paper Company-Bagpak Division. WE WILL, upon request of International Paper Company-Bagpak Division, execute the aforementioned collective-bargaining agreement. UNITED PAPERWORKERS INTERNA- TIONAL UNION DECISION J. PARGEN Administrative Law Judge: This case was heard on January 21 and 22, 1980, at Mobile, Alabama. The charge was filed on July 27, 1979. The complaint, which issued on August 30, 1979, alleges that Respondents violated Section of the National Labor Relations Act, as amended, by refusing to reduce to writing and sign a collective-bargaining agreement reached between it and the Charging Party (sometimes referred to as the Employer). Upon the entire record, from my observations of the witnesses, and after due consideration of the briefs filed by the General Counsel,' Respondent, and the Charging Party, I hereby make the following: I. THE EVIDENCE The Employer is engaged in the manufacture, sale, and distribution of paper and related products from facilities The General Counsel's motion to correct the record. filed his is hereby granted Camden, Em~lovees BaePak ~ar;ld&, ckla- Of i ce 2(ii) 111, described uncompeti- 15 Pleza Sec. 2(6) Respondent5 Sec. 2(5) the~line Camden, Camden Camden Camden hereafter, Camden. Camden ~ ~ r i l 1337 PAPERWORKERS A N D ITS LOCAL NO. 795 located at various places in the United States, including facilities located in Mobile, Alabama (the facility in- volved herein) and Arkansas2 The Employer's employees involved in this matter have, for some time, been represented by Respondents at the Mobile facility. When circumstances leading to the instant controversy developed, these employees were in- cluded in a multiplant bargaining unit. Respondents and the Employer were parties to a collective-bargaining agreement which, by its terms, was effective from July I, 1977, through June 30, 1979, with a recognition clause which provided: 2.1 The BagPak Division of International Paper Company recognizes the United Paperworkers In- ternational Union as the exclusive representative for collective bargaining for all its production and maintenance at the Plants of the Division in Arkansas, and Mobile, bama, excluding Clerical Employees, Guards, and Supervisors, as defined in Section of the Labor-Management Relations Act, as amended, and others as listed under Section Representation. 2.2 Also excluding those certain classifications in- cluded in collective bargaining units for which sepa- rate classifications have been issued by National Labor Relations Board prior to the effective date of this Agreement. 2.3 The above bargaining unit shall constitute a single unit for the purpose of collective bargaining between the parties hereto. On December 7, 1978, the Employer met with repre- sentatives of Respondents at Mobile. The Employer an- nounced its intention to close its Mobile plant. The Em- ployer indicated that the plant was basically tive in the multi-wall industry. According to the Em- ployer's manager of employee relations with the special- ty packaging group, Anthony Chianese, the Mobile plant was uncompetitive because of high labor cost, including wages and benefits. Chianese testified that the parties agreed to meet on December 15, 1978, and discuss the issues that were making the plant noncompetitive. On December International Representative Watson gave Chianese a letter advising the Employer of Respondents' willingness to "meet, discuss and bargain with" the Employer concerning its decision to discontin- ue BagPak operations at Mobile. Watson told Chianese that Respondents had no proposals to make, but that they would consider any proposals made by the Employ- er. Watson asked for the specific date of the anticipated closing. On December 28 the Employer advised Re- spondents that they anticipated closing on April 27, 1979. Subsequently, Respondents met with the Employer re- garding the Employer's intention of closing the plant. The Employer presented proposals which it contended would improve its competitive position to such an extent The commerce facts and conclusions are not at issue. The complaint alleges, the answer admits, and I find that the Charging Party is an em- ployer engaged in commerce within the meaning of and (7) of the Act. The answer also admits, and I find, that are labor organizations within the meaning of of the Act. that it could keep the Mobile plant open. Discussions fol- lowed which were generally in of reducing or freezing wages. During their discussions Respondents mentioned that representatives from their Local at Arkansas, were not being included in the discussions even though that Local represented employees in the bargaining unit. The Employer pointed out that was not actually involved since the object of discussion was peculiar to Mobile. Eventually, Respondents filed charges claiming that the Employer was engaging in unfair labor practices by excluding from the discussions. However, apparently the Employer never insisted on excluding the Local. Subsequently, Respondents' unfair labor practice charges were withdrawn. The parties met on several occasions between Decem- ber 1978 and April 1979. Finally, during discussions on April 5, 6, and 12, and a phone conversation between Watson and Chianese at some point between April 6 and 12, Respondents expressed an interest in negotiating an agreement which would be limited to the Mobile portion of the overall unit. During April 1979 the parties were able to resolve most of their differences. A proposal was drawn up by Anthony Chianese on April 12, which was submitted to the Mobile members of the bargaining unit for ratifica- tion. However, the April 12 proposal did not prevail in the ratification vote. by document dated April 24 the Employer offered severance pay to those Mobile employees that were unwilling to continue work- ing under the conditions anticipated by the April 12 pro- posal. The entire proposal (the April 12 proposal plus the severance proposal) was then submitted to the Mobile employees. On April 25 or 26 the Employer was notified that the Mobile employees had voted to ratify the latest proposal. Immediately thereafter the Employer began to implement that agreement. The plant, which by then had actually shut down operations, was reopened over a period of weeks and those employees that expressed their desire to sever their employment were paid severance pay in accordance with the April 24 proposal. However, the agreement which was ratified by the Mobile employees contained a provision which required action by the president of Respondent International. On May 23, 1979, Local 795 President James H. Bryan wrote Wayne E. Glenn, International president, and asked for his approval of the separation of the multiplant unit involving Mobile and On July 23, 1979, International President Wayne Glenn wrote Local 795 and Local 367, and sug- gested that they jointly meet with the Employer for bar- gaining, thereby denying Bryan's May 23 request to sep- arate the Locals. On July 17, 1979, the Employer wrote Representative Watson and asked him to execute the 24 agree- ment. Respondents have continued to refuse to execute that agreement. Ii?X LIECISIONS OF General 8(b)(3) 11. (i.e., wollld agreement.4 7:5 out same \hould ' 12 "Although the speak- Ing collective-barga~ning [he Llnions i.e., Camden.6 a 9 125-127.1' Camden Camden difliculties consrdered 7 $9148 S~mpson NATIONAL LABOR RELATIONS BOARD 'I'he Counsel, in the complaint3 alleges that Respondents violated Section by refusing to sign that agreement. CONCLUSIONS The issues are narrow. The parties met and negotiated over the question of plant closure at various times from December 7, 1978, through April 1979. During April the representatives of the parties Pleza Watson repre- senting the International, representatives of Local 795, and representatives of the Employer) reached tentative agreement on two occasions. The first of those two agreements, the April 12 agreement, was rejected by the members of Local 795 in a ratification vote. Thereafter, the Employer proposed that in addition to its April 12 proposal, it offer all unit employees who were un- willing to continue working under the conditions antici- pated in the April 12 proposal severance pay. This pro- posal, the April 24 agreement, was ratified by Local 795 members. However, the April 24 agreement was never signed by Respondents. They refused to sign because of circumstances which flowed from item 7 in the April 24 Therefore, my examination of the issues raised herein must began with an examination of that particular provision of the proposed contract. Specifically at issue is the last sentence of item It is understood that such a separate agreement is subject to the approval of the United Paperworkers International Union. The obvious question must be what was the intent of the parties when they agreed to incorporate this condi- tion into the contract proposal. The parties all correctly concluded that this was the one overriding issue in this case. The General Counsel and the Employer argue that the president of Respondent International was given the au- thority only to approve or disapprove separation of the multiplant unit into single-plant bargaining units. Re- spondents argue that the provision gave the president of Respondent International authority to approve or disap- prove the contract in its entirety. The General Counsel's brief appears to broaden the allegations by stating. "To now hold that the April 24 agreement is void, or may have never come to fruition, would fly drrectly in the face of the parties' intent and understanding and could ultimately result in the Company again clos- ing its plant and putting its employees of work unless the parties were able to again agree to the terms and conditions of employment in subsequent negotiations." I am unable to find anything in either the complaint o r the evidence which would justify a decision which would require such action. The complaint does not allege, and the evidence does not prove, facts which would justify my determining that the April 24 agreement must be disre- garded. Nor is it necessary for me to reach a decision which would nec- essarily require the parties to restore the status quo of April 24. The com- plaint alleges only that a violation occurred by Respondents' failing to reduce to writing and sign the April 24 agreement. My findings herein be limited to those allegations. The provision at issue, item 7, was originally proposed in the April agreement. the first sentence of item 7 speaks of an agreement between International and Local Union, there appears to be no doubt that that particular comment was a misstatement. The parties were actually of a agreement between the Employer and involving only the Mobile employees. I am convinced, after fully examining the evidence, that there was never a meeting of the minds on the above question. A reading of the sentence in question would seem to support Respondents' position. Also, most of the testimony of Local 795 President Bryan and Inter- national Representative Watson would lead me to believe that their intention was to leave with Respondent Inter- national the final authority to approve or disapprove the contract. However, Bryan's letter to the president of the International and the testimony of Employer representa- tives would tend to support the General Counsel's and the Employer's position; the parties intended to leave with Respondent International the final authority to either approve or disapprove separation of the multi- plant unit into separate bargaining units at Mobile and However, I find that resolution of the question of whether the President of Respondent International had final authority to approve the contract or separation of the unit does not contribute to the resolution of the over- riding issue. The overriding question is did the parties intend item 7 to be a condition for implementation of the agreement. In other words, rather than dealing with what authority was left to the International, the question is did the parties intend that the contract was condition- ed on the multiplant units' being separated. I have deter- mined that that was their intent. A condition in a promise limits the undertaking of the promisor to perform, either by confining the undertaking to the case where the condition hap- pens, o r to the case where it does not happen. . . . A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. . . . whether a pro- vision in a contract is a condition the nonfulfillment of which excuses performance depends upon the intent of the parties, to be ascertained from a fair and reasonable construction of the language used in the light of all the surrounding circumstances when they executed the contract. [Williston on Contracts, 3d ed. 663 (in part) at In order to determine the parties' intent in this regard it is beneficial to consider the situation during their nego- tiations. From early during negotiations, discussions oc- curred over the failure of the Employer to include the Local, Local 367, in the negotiations. T h e Em- ployer, in response to Respondents' inquiries in that regard, indicated that the question of closing the Mobile plant was an issue that was of unique concern to the Mobile employees. In February 1979 Respondents filed unfair labor practice charges against the Employer for not including in the Mobile plant closure negoti- ations. Those charges were subsequently withdrawn. I am convinced that all the witnesses were candid on this question. The arose. in my opinion, over their efforts to respond to questions regarding intents which they had simply not at the time of their negotiations. Therefore. I d o not view testimony which on occasion appeared inconsistent to demonstrate fabrication. See also Corbin on Contracts. and 626 through 638: on Conrracts. $394. Camden Camden i.e., Camden Camden's Camden Pleza unit.8 1979.9 1, 2(2), (6), 2(5) Glenn's 1339 PAPERWORKERS AND ITS LOCAL NO. 795 Nevertheless, representatives from Local 367 in and the International representatives in the area complained to Respondents about their exclusion from those negotiations. Local 367 also objected to Respond- ents' giving any major concessions in labor costs to the Employer at Mobile. The effect this situation would have on negotiations regarding closing the Mobile plant is obvious. Since Local 367 is substantially larger than Local 795, it is ap- parent that its vote would probably be determinative in a ratification test. Therefore, the parties were faced with what could have been considered to be an impossible task; Local 795 had to agree to labor cost reductions or freezes in order to keep the Mobile plant open but at the same time satisfy the employees who were not faced with possible job loss but who were concerned with granting concessions which the Employer may then use to its advantage when negotiating labor cost. Additionally, it was obvious by early April that the Mobile plant was actually closing absent some labor agreement. The testimony indicated that the closing down operation proceeded more rapidly than expected. In fact, when the representatives reached tentative agree- ment on April 24, the plant had ceased production oper- ations. Therefore, the parties were faced with a difficult situa- tion in early April. The facts to which they were privy made it apparent that the likelihood of agreement de- pended in large measure upon the isolation of a ratifica- tion vote to the Mobile employees. It was with that background that the parties agreed to the incorporation of item 7 in the agreement. Since ratifi- cation was a probability only if the vote did not include the employees, I am convinced that the parties intended to condition their agreement on separation of the Locals. However, International Representative Watson knew, and he advised the Employer, that he had no authority to agree to such a provision separating the Only the International president possessed that au- thority. For that reason the second sentence of item 7 was inserted into the agreement. International president Glenn rejected separation of the multiplant unit by letter dated July 3, On the basis of the condition expressed in item 7, Respondents were, from that moment, excused from their contractual obligations, and were not obligated to sign the agree- ment. I shall therefore recommend that the complaint be dismissed in its entirety. International Paper Company-BagPak Division is an employer engaged in commerce and activities affect- ing commerce within the meaning of Section and (7) of the Act. 2. United Paperworkers International Union and its Local No. 795 are labor organizations within the mean- ing of Section of the Act. 3. Respondents have not engaged in any unfair labor practices alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.] Even though the evidence indicates that Representative Watson as- sured representatives of the Employer that he was confident President Glenn would approve the separation, those comments are not binding on Glenn. It is clear from item 7, and from Watson's comments to Chianese. that Watson was exceeding his authority when he made those comments. Watson told the Employer that only Glenn could approve the separation. Therefore, the Employer was fully aware that Watson did not have au- thority to bind the International in that regard. There was no evidence demonstrating any impropriety in President rejection of Local 795's request to separate the plant units.