Pittsburgh-Des Moines Steel Co.

National Labor Relations Board - Board Decisions

Apr 4, 1973

202 N.L.R.B. 880 (N.L.R.B. 1973)

880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pittsburgh-Des Moines Steel Company and Freight,
Construction, General Drivers, Warehousemen
and Helpers Union, Local No. 287 , International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case
20-CA-7194
April 4, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On January 9, 1973, Administrative Law Judge
Maurice M. Miller issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel 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,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Pittsburgh-Des
Moines Steel Company, Santa Clara, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the Administrative Law Judge's
recommended Order.
In the next-to-last sentence of par 2 of sec iII(B)(6) of the
Administrative Law Judge's Decision, "Barrett" should be changed to
"Black "
z The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dr) Wall
Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Administrative Law Judge: Upon
a charge filed December 29, 1971, and duly served, the
General Counsel of the National Labor Relations Board
caused a Complaint and Notice of Hearing, dated March
29, 1972, to be issued and served on Pittsburgh-Des
Moines Steel Company, designated as Respondent within
this Decision. Therein, Respondent was charged with the
commission of unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended. 61 Stat. 136,
73 Stat. 519. Subsequently, through its answer duly filed,
Respondent conceded certain factual allegations within
General Counsel's complaint, but denied the commission
of any unfair labor practice.
Pursuant to notice, a hearing with respect to the issues
was held at San Jose, California, on June 21, 1972, before
me. The General Counsel and Respondent were represent-
ed by counsel; Complainant Union herein was represented
by two business representatives. Each party was afforded a
full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the issues.
Following the hearing's close, General Counsel's represent-
ative and Respondent's counsel filed helpful briefs. These
have been duly considered.
FINDINGS OF FACT
Upon the entire testimonial record, documentary evidence
received, and my observation of the witnesses, I make
the following findings of fact:
I JURISDICTION
Respondent raises no question herein with respect to
General Counsel's jurisdictional claim. Upon the com-
plaint's relevant factual declarations-specifically, those
set forth in detail within the second paragraph thereof-
which are conceded to be correct, and upon which I rely, I
find that Respondent, Pittsburgh-Des Moines Steel Com-
pany, was throughout the period with which this case is
concerned, and remains, an employer within the meaning
of Section 2(2) of the Act, engaged in commerce and
business activities which affect commerce within the
meaning of Section 2(6) and (7) of the statute. Further,
with due regard for presently applicable jurisdictional
standards, I find assertion of the Board's jurisdiction in
this case warranted and necessary to effectuate statutory
objectives
11. COMPLAINANT UNION
Freight, Construction, General Drivers, Warehousemen
and Helpers Union, Local No. 287, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, designated as Complainant Union
within this decision, is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act, as amended.
III THE UNFAIR LABOR PRACTICES
A. Issue
The questions presented herein derive, substantially,
from certain 1970 contract negotiations between the
parties; this Board has, already, considered a discrete
portion of those negotiations, within a prior decision.
Freight, Construction, General Drivers, Warehousemen and
Helpers Union, Local No. 287, International Brotherhood of
202 NLRB No. 128
PITTSBURGH-DES MOINES STEEL CO 881
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Pittsburgh-Des Moines Steel Company), 193
NLRB No 160. That case was concerned with the parties'
negotiations for a contract covering so-called "warehouse"
drivers, headquartered at Respondent's Santa Clara,
California, facility, who make local or short-haul deliveries
This case concerns their concurrent negotiations for a
contract covering the firm's so-called "toolhouse" drivers,
those who make over-the-road or long-haul deliveries
General Counsel contends, herein, that-with respect to
this last designated group of drivers-the Company's
representatives have taken a position, mistakenly, that their
1970 negotiations with Complainant Union produced a
contractual consensus; General Counsel seeks a determi-
nation, therefore, that Respondent's present refusal to
continue or renew those negotiations, looking toward a
true contractual commitment with respect to the drivers in
question, constitutes a statutorily proscribed refusal to
bargain. Respondent would, however, have this Board find
that-with respect to Santa Clara toolhouse drivers-con-
tractual consensus was, indeed, reached during the parties'
prior 1970 negotiations; company counsel, therefore,
charges that Complainant Union really seeks this Board's
help, herein, to circumvent its contractual commitments,
trying to renegotiate wage rates, fringe benefits, and
working conditions regarding which a consensus was
previously reached
Within his brief, General Counsel notes, cogently,
that-with matters in this posture-the present case's
disposition will turn upon this Board's determination with
respect to a single question: Did Complainant Union's
designated bargaining representative and Respondent's
principal negotiator-during their several 1970 bargaining
sessions-really reach "mutual assent" with regard to those
specific terms and conditions of employment which were
to be embodied within a proposed 1970-73 collective-
bargaining contract for Respondent's Santa Clara tool-
house drivers? General Counsel's representative-contend-
ing that a review of the facts, with respect to those
negotiations, will support a conclusion contrary to that
promulgated within this Board's prior decision dealing
with Respondent's short-haul warehouse drivers-seeks a
present determination that no viable contractual consen-
sus, with respect to toolhouse drivers, was then reached.
B Facts
1. Background
a. Respondent 's Santa Clara facility
Respondent herein fabricates and distributes steel
products . It maintains and operates several California
plants. These include the fabrication and warehouse
facility , located in Santa Clara, California , with which this
case is directly concerned.
At Santa Clara , Respondent 's work force compasses,
inter aka, two general truckdriver classifications. As
previously noted , these drivers function as two separate
work forces , so-called " toolhouse" drivers who make over-
the-road or long-haul deliveries , and so-called "ware-
house" drivers who make local or short -haul deliveries
within Santa Clara County and certain nearby counties.
During the period with which this case is concerned,
Respondent employed three toolhouse drivers, and three or
four warehouse drivers.
The drivers serve separate corporate divisions. The
warehouse drivers work for the Santa Clara District of
Respondent's Western Warehouse Division. The designat-
ed District's local head bears the title of district manager;
he serves under the firm's Western Warehouse division
manager. Throughout the period with which this case is
concerned, James D. Dickey functioned as Respondent's
Western Warehouse division manager Mr. Bird T. Lewis
was-and remains-the firm's Santa Clara district manag-
er; he directly supervises the firm's local warehouse
facility. Respondent's toolhouse drivers serve in connec-
tion with the firm's construction activity; in that capacity,
they function subject to a completely separate chain of
command within Respondent's management.
b. Respondent's relationship with Complainant Union
For some 15 years, minimally, Respondent has recog-
nized and dealt with Complainant Union as collective-
bargaining representative for the firm's Santa Clara
drivers. The warehouse and toolhouse groups have,
however, been represented separately. Historically, their
contracts have, likewise, been negotiated separately,
though "approximately" concurrently-that is, during the
same general period of time. With respect to both groups,
Respondent has regularly negotiated with Complainant
Union, directly, for so-called "single-employer" contracts;
Respondent belongs to no multiple-employer bargaining
group, nor has it ever designated any trade association to
bargain on its behalf.
c. Recent collective-bargaining history
During negotiations which began late in calendar year
1964, Complainant Union initially requested Respondent's
concurrence with a proposal that toolhouse drivers would
be employed subject to terms and conditions of work
which were then set forth within a newly signed National
Master Freight Agreement and Western States area over-
the-road supplement negotiated, for a 3-year term, by
Complainant Union's parent organization and various
trucking industry representatives. However, Robert Bar-
rett, Respondent's Western Division personnel manager,
reminded Business Representative Black, Complainant
Union's chief spokesman, that Respondent held no
membership with a trade association bound by these
designated contracts. He declared that:
... there was much in the [National Master Freight
Agreement] that was not applicable to [Respondent's]
operations, and that [Respondent] wanted to negotiate
[its own] agreement covering these operations. .. .
Following a series of meetings, with the last held in June
1965, Respondent and Complainant Union finally reached
a consensus-so I find-whereby Respondent agreed to
"observe" all the terms and conditions set forth within the
Teamsters Union 1964-67 National Master Freight Agree-
ment and Western States area over-the-road supplement,
save for certain specified provisions. The precise method
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by which Respondent manifested its commitment to observe
the terms and conditions of these contracts has not been
specified for the present record.
The provisions consensually designated "not applicable"
and "not a part of this agreement" between the parties
-together with certain provisions negotiated in lieu
thereof-were set forth within a so-called "rider" which
Respondent and Complainant Union's negotiators signed
on June 28, 1965; no other document, concerned with
toolhouse drivers, was signed by the parties. Specifically,
the present record warrants a determination-which I
make-that Respondent's representatives never signed any
copy of the National Master Freight Agreement; nor did
they sign that contract's Western States area over-the-road
supplement. The rider negotiated and signed by the parties
provided that eight designated "noneconomic" provisions
within the National Master Freight Agreement, plus the
"Grievance Machinery and Union Liability" provision of
the Western States area over-the-road supplement, would
not be considered part of the contract between the parties;
with respect to four of these deleted provisions further
substitute "conditions" were negotiated. These contractual
commitments-so Barrett testified-produced a situation
in which the so-called "economic" terms which would
govern Respondent's employment of toolhouse drivers, for
3 years, were identical with those which Respondent and
Complainant Union had previously negotiated for the
firm's warehouse drivers.
During 1967, the contract negotiations with respect to
Respondent's toolhouse drivers were, again, postponed
pending the successful completion of negotiations which
were being concurrently conducted with respect to the
firm's warehouse drivers These negotiations were, finally,
concluded following an October 1967 strike, which
involved Respondent's warehouse drivers solely. With
respect to relevant developments, thereafter, Personnel
Manager Barrett testified, without contradiction, that:
Several days after the warehouse strike had been settled
and a warehouse agreement was reached, Jack Black
and I met and agreed on a settlement for the toolhouse
employees. This settlement was to renew the rider we
had in effect, the 1965 rider and to apply the economic
improvements the warehouse drivers had been given.
We entered into a supplemental agreement to that
effect.
The testimony proffered by Respondent's personnel
manager, which I credit in this connection, warrants a
determination that the so-called "economic" terms thus
negotiated for Respondent's toolhouse drivers, covering
their 1967-70 contract term, did match, generally, those
which had previously been negotiated for the firm's
warehouse drivers. The document which the parties signed,
however, did not set forth their consensus precisely in these
terms. That document-which bore a November 22, 1967,
date-read as follows.
In respect to the trucking operations of the Company's
Santa Clara Erection Toolhouse, the parties herewith
agree to renew the agreement between the parties dated
June 28, 1965, entitled "Rider to National Master
Freight Agreement and Western States Over-the-Road
Supplemental Agreement." However, the parties shall
observe the economic conditions of the "National
Master Freight Agreement and the Western States
Over-the-Road Supplemental Agreement," dated April
1, 1967.
The so-called "economic improvements" negotiated for
Respondent's warehouse and toolhouse drivers-during
these various 1967 discussions-were identical , save in one
respect. Respondent's warehouse drivers were privileged to
apply those "cost-of-living improvements" which might
accrue during their contract's 1967-70 term, completely or
partially, to welfare improvements, while the comparable
"cost-of-living improvements" for Respondent's toolhouse
drivers were to be paid in direct wages, solely.
The record warrants a determination-which I make-
that these two 1967 contractual commitments, which
covered warehouse and toolhouse drivers separately, had
simultaneous March 31, 1970, expiration dates. However,
no bargaining sessions-looking toward the negotiation of
successor contracts-were scheduled or held before their
designated termination date. Respondent and Complain-
ant Union met, for their first 1970 bargaining session, April
29 at Respondent's Santa Clara facility. Negotiations,
looking toward a new contract for Respondent's ware-
house drivers, then commenced. These negotiations,
ultimately, led to 8(b)(3) charges filed by Respondent
herein, which resulted in formal Board proceedings. This
Board found-despite a contrary contention by Complain-
ant Union herein-that Respondent and Complainant
Union had reached a June 30, 1970, contractual consensus,
with respect to the firm's warehouse drivers, which union
representatives had, thereafter, refused to embody within a
signed document. Freight, Construction, General Drivers,
Warehousemen and Helpers Union, Local No. 287, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America (Pittsburgh-Des Moines Steel Compa-
ny), 193 NLRB No. 160. The present record reveals,
however, that-concurrently with these warehouse driver
negotiations-discussions , looking toward a parallel con-
tract for Respondent's toolhouse drivers, were being
conducted. We are concerned herein with the substance
and tenor of these latter discussions.
2. The negotiations
When the parties met on April 29 to begin their contract
negotiations, Robert Barrett. Respondent's Western Divi-
sion personnel manager, was not present. Respondent was
represented, solely, by Western Warehouse Division
Manager Dickey and Santa Clara District Manager Lewis.
Jack Black, Complainant Union's business representative,
together with Jack Herrmann, then a Local 287 member
and secretary-treasurer of Complainant Union's federal
credit union, represented that organization.
During their session, the discussion-so this Board's
previous decision shows-was focused upon Complainant
Union's various contract proposals for warehouse drivers.
With regard to Respondent's toolhouse personnel, Black's
testimony herein-which Herrmann generally corroborat-
ed-was succinct. That testimony reads as follows:
We opened the discussions with regard to the over-the-
road agreement and I stated-I asked the company if
they would be willing to follow what came out of the
PITTSBURGH -DES MOINES STEEL CO. 883
National Master Freight and Over-The-Road settle-
ment as we had done in the past and the union would
renew the rider that we had in existence with the
company and Mr. Dickey replied that this was all right
with him with one proviso, that there was no work
stoppage and we accepted that . Then we went into
negotiations on the warehouse.
Black declared, further, that no discussions whatever were
then held concerning a proposed contract termination date
for toolhouse drivers, or possible changes in their health
and welfare benefits, pension plan, holidays, or vacation
rights. The discussion with respect to toolhouse drivers-so
Black recalled-lasted no more than 5 minutes.
However, Western Warehouse Division Manager Dick-
ey, when questioned with regard to this April 29 meeting,
testified categorically-with District Manager Lewis'
corroboration-that toolhouse drivers were not men-
tioned ; that no remarks were exchanged regarding a
toolhouse contract; and that there was no discussion
whatsoever regarding a so-called "over-the-road" agree-
ment.
Confronted with this direct testimonial conflict, I
conclude that I need not resolve it, categorically, by
accepting one or the other version . I am satisfied, rather,
that-whether Business Representative Black did, or did
not, summarize Complainant Union's position regarding a
contractual settlement for Respondent's toolhouse drivers
-no meaningful discussion took place with regard to their
situation . Respondent 's representatives present during this
April 29 session-Dickey and Lewis-held no negotiating
authority with respect to their firm's toolhouse drivers;
they were concerned, solely, with the commencement of
negotiations looking toward a warehouse driver contract.
Thus-even assuming, arguendo, that Black may have, en
passant, summarized Complainant Union's proposal re-
garding a prospective toolhouse driver contract-this trier
of fact is convinced that Division Manager Dickey could
not have proffered a binding reply defining his firm's
position with respect thereto. Since neither Dickey nor
Lewis were directly concerned with Respondent's tool-
house driver negotiations, the likelihood that they would
have been mindful of Black's possibly proffered statement,
regarding a prospective "over-the-road" settlement, seems
remote. Their lack of direct concern, therefore, may
explain their present failure to recall that such a subject
was mentioned . Further, Complainant Union's representa-
tive-during prior contractual negotiations concerned with
toolhouse drivers-had, concededly, dealt with Respon-
dent's personnel manager solely. Thus, he must have
known that whatever brief statement he may have made,
regarding toolhouse drivers, was not directed to negotiators
authorized to signify Respondent's consent; Black could
hardly have expected that his statement would be consid-
ered a formal contract proposal. And Division Manager
Dickey's reply-assuming, arguendo, that it was made
-could hardly be considered a meaningful "acceptance"
definitively binding upon Respondent herein.
On May 27, when the parties met for their second
bargaining session , Personnel Manager Barrett was pres-
ent, together with Dickey and Respondent's district
manager. Business Representative Black was, however,
Complainant Union's sole negotiator. The Union's con-
tractual proposals , with respect to warehouse drivers, were
reviewed and discussed . Following that discussion-so
Barrett testified-the Complainant Union's business repre-
sentative was requested to state his demands for Respon-
dent's toolhouse drivers. Regarding Black 's reply, Barrett's
testimony shows, merely, that:
He said they wanted the same economic improvements
for the toolhouse drivers as for the warehouse drivers
and that we would renew the 1967, 1965 supplement[s ]
and rider[s ].
Respondent 's personnel manager-so he recalled-replied
merely that he may have said a contractual consensus
would be "possible .. . probable" with such terms. When
queried further , with regard to their conversation , Barrett
testified , categorically , that Complainant Union 's business
representative had merely requested "economic improve-
ments" matching those which were being negotiated for
Respondent's warehouse drivers, but that no "national
contract" had been mentioned in that connection.
Summoned in rebuttal , Business Representative Black
proffered his somewhat divergent recollection . He categori-
cally denied saying, in haec verba, that Complainant Union
would agree to apply the "economic terms" set forth,
within a warehouse contract , to Respondent's toolhouse
drivers. His testimony , generally, with regard to Complain-
ant Union 's stated position , reads as follows:
Q. [Mr. Rendall] What did you say with regard to
the toolhouse employees?
A. That the toolhouse employees would follow
whatever came out of the National Master Freight
Agreement and the OTR [over -the-road supplement]
I remember telling him that we would renew the
rider, but that we were to follow whatever came out of
the National Master and the OTR for the line drivers
with the renewal of the rider.
TRIAL EXAMINER: How did you put it exactly? I take
it that is a statement of your position , but how did you
put it to Mr. Barrett at the time?
THE WITNESS: I don't recall, your honor. Our own
negotiations, all our discussions, were involvingjust the
warehouse and it was past practice we had always
followed the monetary and contractual language of the
OTR and the National Master with the exception of the
rider.
Counsel stipulated , thereafter, that Respondent 's personnel
manager-should he be summoned in surrebuttal-would
deny Black 's testimony that he (Barrett) was told, specifi-
cally, that their toolhouse-driver contract would have to be
"in accordance with" the National Master Freight Agree-
ment and relevant OTR supplement.
Despite his declaration, previously noted, that Com-
plainant Union's representative-during their May 27
bargaining session-did not mention the National Master
Freight Agreement, or related supplementary contracts, the
present record reflects Barrett's several testimonial conces-
sions: (1) That he had previously been reliably informed,
some time during April 1970 , that "national negotiations"
between Teamsters union representatives and trucking
industry spokesmen , looking toward such contracts, were
being conducted; (2) that, by May 27, he knew-by virtue
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of specific information received from a number of different
sources-that a new "national settlement" had been
reached; (3) that he knew what "improvements" had been
therein negotiated; and (4) that, when Complainant
Union's business representative-according to Barrett's
recollection-demanded the "same economic package" for
both toolhouse and warehouse drivers, he (Barrett) had
"reason to believe" that these various economic terms were
those embodied within the newly negotiated national
settlement. For a general chronology of these national
negotiations, plus some indication regarding their sub-
stance, see Brotherhood of Teamsters & Auto Truck Drivers
Local No. 70, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America (California
Trucking Association, Inc.), 194 NLRB No. 106, together
with this Board's decision, previously noted herein, dealing
with the Respondent's warehouse-driver contract negotia-
tions With this testimony in mind, I conclude that
Complainant Union's May 27 so-called "economic"
demands, proffered on behalf of Respondent's toolhouse
drivers, matched those which had been negotiated and
ratified before that date nationally. Further, I am satisfied
that they were so construed by Respondent's personnel
manager.
On Monday, June 22, while concluding a telephone
conversation during which consensus had been reached
with regard to their warehouse-drivers contract, Respon-
dent's personnel manager-so he testified-queried Busi-
ness Representative Black once more regarding a prospec-
tive toolhouse agreement According to Barrett, Black
merely restated his previously declared position that, "We
will apply the same economic improvements and renew the
riders." The personnel manager testified further that
Complainant Union's business representative then de-
clared that he "guessed" the parties had reached agree-
ment, with respect to both driver groups, and that he would
meet with Respondent's drivers, for the purpose of
procuring their ratification. Save for his general testimony,
previously noted, that he never mentioned the warehouse
contract's "economic improvements" in so many words,
when discussing a toolhouse-drivers agreement, Black has
proffered no specific denial calculated to counter Barrett's
testimony with regard to their June 22 conversation.
During cross-examination, however, Barrett conceded he
had merely "assumed" that Business Representative Black
was referring to both driver groups, when he thus
acknowledged their contractual consensus; Respondent's
personnel manager declared, however, that he considered
the correctness of that "assumption" confirmed by
subsequent developments.
On Friday, June 26, Black reported-so Barrett testi-
fied-that he had previously "met with the men" and that
the parties had "an" agreement. Barrett conceded, howev-
er, that Black's purported ratification report had not been
specific, Complainant Union's spokesman did not say
whether he had met with Respondent's warehouse or
toolhouse driver groups jointly or separately, nor did he
report whether their contractual consent had been mani-
fested through a joint vote, or separate votes. While a
witness, Respondent's personnel manager, suggested,
merely, that he was given no reason to believe a
contractual consensus had not been reached with respect to
both contracts.
On June 30, the Union's business representative present-
ed Barrett with a typewritten draft which set forth the
contractual language changes they had negotiated for a
warehouse drivers contract, and which Respondent's
warehouse drivers had presumably ratified. The negotia-
tors agreed that Black's prepared document-save with
respect to one minor provision which was promptly
changed-correctly set forth those changes which would be
made within their prospective warehouse agreement. When
Barrett reported-during their discussion-that his office
was temporarily limited with respect to clerical help, Black
volunteered to have the Union's staff prepare the new
warehouse drivers contract for signature; he declared that
he believed he could deliver the final document within a
week or 10 days. My factual determinations thus far, with
regard to this June 30 discussion, derive from those which
this Board specifically "adopted" when it confirmed my
Trial Examiner's Decision in the previously litigated case
dealing, specifically, with the parties' warehouse-driver
negotiations. Respondent's personnel manager, however,
suggests-within his present testimony-that Business
Representative Black's remarks conveyed, in haec verba or
sub silentio, that various commitments were sought and/or
given with respect to both warehouse and toolhouse
drivers. Barrett's testimony, in this respect, must now be
considered. While a witness, herein, Respondent's person-
nel manager conceded that Business Representative Black
did not-during their June 30 session-produce or proffer
any document concerning Respondent's toolhouse drivers.
He testified, however, that their status was "covered"
verbally; specifically, he recalled that Complainant Un-
ion's business representative had-when queried-repeat-
ed his previously declared readiness to "renew the rider"
regarding toolhouse personnel. Barrett's testimony, about
the discussion which followed in regard to necessary
document preparation, reads as follows.
As a matter of fact, the rider we have in evidence, the
1965 rider and the 1967 supplement, were actually
typed by myself and I undoubtedly would have done so
on this particular occasion except Jack volunteered to
prepare the documents . . His office was going to
do the whole works, which was a very minor thing
obviously for the toolhouse agreement, but quite an
elaborate set of typing, some 40 pages or more, for the
warehouse document.
TRIAL EXAMINER: Was the subject of the actual
preparation of the rider the subject of a conversation,
the actual physical job of preparing it for signature?
THE WITNESS: Other than it was implied in our June
30 conversation that he was going to prepare the rider
as well as the full agreement for the warehouse, no.
According to Barrett, Black then asked when Respondent
could get the negotiated wage increase, plus other
improvements, effectuated. Having so testified, Respon-
dent's personnel manager was asked, by Respondent's
counsel, whether this request had been made "for both the
warehouse and toolhouse" drivers. He responded affirma-
tively. Though I sustained General Counsel's protest with
respect to this last question's leading form, Barrett's final
PITTSBURGH-DES MOINES STEEL CO 885
response, when the question was rephrased, reflected no
change in his testimony's tenor.
Black was told that the agreed-upon raises could be
effectuated immediately. Later that day, by letter, Respon-
dent's personnel manager did direct his firm's payroll
accountants to make wage improvements effective for both
the Santa Clara warehouse and toolhouse driver groups.
With respect to both groups, new wage rates, calculated to
reflect a negotiated raise effective July 1, were to be
computed for time worked beginning Monday, July 6,
retroactive raises-which the parties had negotiated with
an April 1 effective date-were to be withheld pending
Respondent's receipt of signed agreements. Respondent
took no June 30 action, however, regarding the negotiated
changes which would affect its fringe benefit contributions
for pensions or health and welfare.
Summoned in rebuttal, Business Representative Black
proffered no contradictory testimony-with regard to these
June 30 developments-save in one respect. He did not
recall anything said regarding "the actual physical prepara-
tion of the [toolhouse drivers] rider document" for
necessary signatures. Since Barrett's testimony, previously
noted, reflects his recollection, finally, that Black's willing-
ness to have Complainant Union's staff prepare the
toolhouse-drivers rider was merely "implied" during their
June 30 conversation, I find-consistent with Black's
recital-that no such proffer was explicitly volunteered.
3. Subsequent developments
During the 2-month period which followed, a serious
disagreement developed between Barrett and Complainant
Union's representative, regarding the precise terms of their
contractual consensus, with particular reference to Re-
spondent's Santa Clara warehouse drivers. Several tele-
phone conversations and conferences merely confirmed
their different positions On September 2, 1970, the
Company filed an 8(b)(3) charge with this Board's
Regional Office; the Union's refusal to sign a prepared
contract draft which correctly set forth their June 30
collective-bargaining consensus, with respect to warehouse
drivers, was challenged. With respect to this charge,
General Counsel's complaint subsequently issued on
December 16, 1970. The circumstances which had generat-
ed the company charge, and General Counsel's complaint,
need not be recapitulated now. They are detailed within
the Board Decision and Order wherein Union representa-
tives were directed to sign a contract document, spelling
out terms and conditions of employment for Respondent's
Santa Clara warehouse drivers, consistent with the June 30,
1970, contractual consensus which Personnel Manager
Barrett and Business Representative Black had reached
Freight, Construction, General Drivers, Warehousemen and
Helpers Union, Local No. 287, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of Ameri-
ca, 193 NLRB No. 160. For present purposes we need note,
merely, that various developments-both national and
local-which had concededly generated the cited case
provide a relevant background herein, they are directly
related, likewise, to this proceeding's genesis.
The present record warrants a determination, which I
make, that-while Barrett and Black were discovering and
pursuing their disagreement with respect to Respondent's
warehouse drivers-no toolhouse-driver contract docu-
ments were being prepared or discussed. Though, presuma-
bly, nothing more than a revised single-paragraph "rider"
document would have been required; Black submitted
none. So far as the record shows, Barrett never requested a
revised rider's submission; nor did he prepare or proffer
such a document-consistently with his past practice-in
Respondent's behalf.
4. The toolhouse-driver dispute
Sometime in January 1971, Complainant Union's busi-
ness representative-so he testified-received a complaint
that Respondent had not granted its Santa Clara County
toolhouse drivers a wage increase which the renegotiated
wage provisions of the National Master Freight Agree-
ment, then in force, required. Black, according to his
testimony, telephoned Barrett to question Respondent's
reported failure to grant the designated raise. Respondent's
personnel director, however, claimed that no raise for
toolhouse drivers was then due or payable, consistent with
their prior June 30 contractual consensus The present
record-together with records made in both of the
previously decided Board cases noted herein-warrants a
determination, which I make, that the first "national
settlement" negotiated by Complainant Union's parent
organization-which had been ratified through a May 1970
national referendum, subject to possible reopening for
further negotiations under certain designated circumstan-
ces-had provided four periodic wage increases, pro-
grammed to total $1.10 per hour, within a proposed 3-year
contract term . Further, higher health and welfare and
pension plan payments-totaling $2 per week, respectively,
over the designated contract term-had been negotiated
With respect to wage increases, particularly this original
national settlement had provided for a 35-cent retroactive
raise, effective April 1, 1970, plus a 15-cent raise payable
July 1, 1970; the next raise, pursuant to this settlement, was
to be due and payable after July 1, 1971, with a final wage
increment payable 1 year later. According to Black,
Respondent's personnel manager was contending-during
their January 1971 telephone conversation-that this
nationally negotiated wage increase pattern had been
specifically adopted for Respondent's Santa Clara ware-
house drivers, pursuant to their June 30, 1970, contractual
consensus previously noted; with reference to Black's
newly proffered complaint-so the latter's testimony
shows-Barrett was contending further that Respondent
considered their warehouse-driver settlement likewise
applicable to Santa Clara toolhouse drivers
Business Representative Black contended, however, that
Respondent's wage increase commitment-with specific
reference to Santa Clara toolhouse drivers-derived from
the revised National Master Freight Agreement, renegoti-
ated, ratified, and finally signed during early July 1970.
The revised wage settlement provided for therein-so the
record shows-called for seven periodic raises, totaling
$1.85 per hour within a 39-month contract term. The raise
increments set thereunder for April 1 and July 1, 1970, had
matched those negotiated as part of the previously agreed-
upon $1.10 package, the renegotiated contract, however,
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provided for a further 40-cent-per-hour raise effective
January 1, 1971 This was the raise which-so Black
contended-the Santa Clara toolhouse drivers should have
been granted.
Following Barrett's telephone rejection of Complainant
Union's claim, Black dispatched a February 2 letter to
Respondent's personnel director. The letter, sent by
certified mail , was received February 5; in relevant part, it
read as follows:
Enclosed you will find copies of the newly negotiat-
ed National Master Freight Agreement and the
Western States Area Over-the-Road Supplemental
Agreement.
As you know, in the past, your line [toolhouse]
drivers have been covered under these agreements with
Riders replacing [certain designated provisions] of the
National Master Freight Agreement and . . Western
States Area Over-the-Road Supplemental Agreement.
We are willing to renew these Riders as we have
done in the past and make them part of the terms and
conditions of the enclosed agreements.
The documents forwarded, so Black testified, were the
nationally renegotiated 1970-73 contracts designated,
within his letter, by name. According to Black, Respon-
dent's personnel director telephoned him shortly following
his receipt of Complainant Union's letter ; with respect
thereto, Barrett declared, by way of reply, that:
You know our position. We feel that we have [a] $1.10
contract with the toolhouse drivers, the same as we
have for the warehouse drivers. Of course we cannot
recognize or sign these documents you sent us.
With matters thus stalemated-so Complainant Union's
business representative declared-their conversation termi-
nated.
This testimony by Complainant Union's business repre-
sentative raises a credibility question . While a witness
herein, Personnel Manager Barrett denied receiving any
January 1971 telephone call from Black with regard to
Respondent's purported failure to grant a contractually
defined pay raise for toolhouse drivers. Further, Barrett
denied making a February 1971 telephone call to Com-
plainant Union's business representative, replying to his
February 2 letter . However, with due regard for the record,
considered in totality , I find Barrett 's denials in this
connection less than persuasive . Black's testimony regard-
ing their purported January 1971 conversation-within my
view-reflects a reasonable reaction on his part , following
his receipt of complaints that a wage increase , presumably
due, had not been granted; further, his testimony with
respect to Barrett's rejoinder fairly states Respondent's
position . I find-consistent with Black's testimony-that a
January telephone conversation took place. Finally, I
consider it hardly likely that Respondent's manager would
have withheld a response when confronted with Complain-
ant Union's February 2 letter sent by certified mail. Black's
testimony that Respondent 's personnel manager-during
their February telephone conversation-rejected Com-
plainant Union's proffered contracts, therefore, merits
credence.
Meanwhile, Respondent had received a letter, dated
January 12, 1971, from the Western Teamsters Welfare
Trust; the firm was notified that required monthly trust
fund contributions for Respondent 's toolhouse drivers had
been "increased," from $46 76 to $51.09 effective January
1971, based upon their December 1970 employment
records. Previously, Respondent had received a January
1971 statement which had shown $46.76 due for "health
and welfare" contributions covering four named toolhouse
drivers. The Welfare Trust Fund's February statement,
however, showed $51.09 due, per driver, plus a so-called
retroactive sum due, based on Respondent's January 1971
records, calculated to cover the $4.33 contribution rate
increase.
On February 10, 1971, Respondent notified the Western
Teamsters Welfare Trust 's accountant that Respondent's
then current agreement with Complainant Union herein
-covering toolhouse drivers-provided that the designat-
ed $4.33 higher contribution rate would become effective
April 1, 1972. Consistent with this position , Respondent
unilaterally struck the higher figures on the Welfare Trust
Fund 's February 1971 statement , replacing them with the
prior $46.76 monthly figures. Presumably , therefore,
Respondent continued to make required monthly contrib-
utions at this lower stated rate . The record, however,
warrants a determination-which I make-that Respon-
dent continued to receive statements showing the higher
rate. These continued-so I find-until October 1971; the
Western Teamsters Welfare Trust October statement,
covering Respondent's September toolhouse driver payroll,
listed the sums due using the prior $46.76 rate.
Concurrently, with the developments narrated, Respon-
dent had likewise been notified , within a letter received
February 2, 1971, from the Western Conference of
Teamsters Pension Trust , that the firm's pension trust fund
contribution rate was being increased from $11 to $12
weekly, per toolhouse driver, effective January 1, 1971.
Within two replies, dated February 5 and 10, 1971,
respectively, Respondent notified the Pension Trust's
supervisor that the firm 's agreement with Complainant
Union provided for the stated increase effective April 1,
1972. Thereafter, consistent with Respondent 's position,
the Pension Trust statement submitted for 1971's first
quarter was, likewise, revised-unilaterally-by company
personnel , to show continued contributions due, for
toolhouse drivers, limited to $11 weekly per driver
Subsequently , so the record shows, the Pension Trust's
statement for 1971's third quarter was revised downward,
listing contributions computed at the prior $ 11 weekly rate.
Meanwhile-on February 17, specifically-the formal
hearing on General Counsel 's 8(b)(3) complaint , previously
noted, was held. The Trial Examiner's Decision therein
-finding that a contractual consensus covering Respon-
dent ' s warehouse drivers had been reached June 30, 1970,
which Union representatives had, thereafter , improperly
refused to sign-issued June 17, 1971.
Sometime in July, shortly thereafter , Black, together with
another business representative, met with Personnel Man-
ager Barrett . The parties , however, maintained their
respective positions . Black 's testimony with respect to their
conference , which Respondent 's personnel manager does
not dispute, reads as follows:
At that meeting, I stated to the company that we were
PITTSBURGH-DES MOINES STEEL CO. 887
there to clear up the issue of the over-the-road drivers
and we would like to have the new contract signed the
company had agreed to. Mr Barrett's position was that
["] We feel we already have an agreement at the $1.10
rate of pay . . .
On October 7, 1971, Barrett and Complainant Union's
business representatives met once more. Each negotiator,
however, merely restated his position; their session, again,
terminated in stalemate.
5. Board proceedings
On November 1, 1971, this Board's Decision and Order,
previously noted-concerned with the parties' concurrent
1970 warehouse-driver contract negotiations-was pub-
lished; therein, the Board confirmed its Trial Examiner's
decision that Section 8(b)(3) of the statute had been
violated when the Union refused to sign a draft contract
which correctly reflected the parties' June 30, 1970,
consensus regarding the designated driver group.
Shortly thereafter, on December 29, 1971, Complainant
Union's charge, herein, was filed. With respect thereto,
General Counsel's complaint issued March 29, 1972. The
nature of the continuing relationship between Respondent
and Complainant Union, following the filing of Complain-
ant Union's 8(a)(5) charge-so far as their relationship
may "illuminate" matters currently in controversy-must
now be considered.
6. The Winton grievance
On January 31, 1972, Business Representative Black filed
a formal grievance with Respondent, on behalf of Mike
Winton, one of Respondent's toolhouse drivers, who-so
Complainant Union contended-had been improperly
deprived of work. Respondent was notified that the
grievance was being filed pursuant to the relevant
provision of the parties' rider agreement dealing with
conciliation.
Specifically, Complainant Union contended that Re-
spondent's treatment of Winton compassed "violations"
with respect to certain designated provisions within: (1) the
National Master Freight Agreement; (2) the Western
States area over-the-road supplemental Agreement; and (3)
the Rider Agreement previously noted. Counsel have
stipulated, herein, that-within Complainant Union's
January 31 grievance letter-the listed contractual provi-
sions, with respect to which Business Representative Black
claimed violations, were designated, both numerically and
by title, consistently with the format found within the
previously noted 1964-1967 National Master Freight
Agreement and Western States Over-the-Road Supplemen-
tal Agreement. Counsel have stipulated, further, that these
particular provisions are differently numbered within the
comparable 1970 contract documents currently in force
Pursuant to their consensually defined grievance proce-
dure, Winton's grievance was considered and decided
some 6 weeks before the June 21, 1972, hearing before me,
herein. He had previously been restored to duty status; the
question of Respondent's monetary liability for his
supposedly, erroneous termination, however, had not yet
been determined. With respect thereto, Black's testimony
herein-which Respondent's personnel manager, while a
witness, did not significantly controvert-reads as follows:
We followed the steps of the grievance procedure, that
is, the rider . . . to the Western States Area OTR
Agreement [which] deletes the OTR grievance proce-
dure and supplants it with the rider we have had in
existence since 1964 . . . . The committee members
deadlocked the case and recommended that we follow
the next step of the grievance procedure, which was,
then, to use the services of the state conciliation office
.... We met in their office . . . and both sides
presented their case and we got a two-way decision
s * s * s
When we met with the company on it, all the evidence
presented by the union and rebutted by the company
was done under the OTR agreement. When we first sat
down, I made it very clear that rather than go into a
long dissertation and create confusion as to what we
were hearing the grievance under, whether it would be,
as Mr. Barrett's stated position was [,] the 1964-1967
agreement [,] or the Teamsters' position [,] the
1970-1973 agreement, that the union would agree to
hear the case under the 1964-1967, but were not saying
we were agreeable . . . that that agreement in its
entirety was applicable at that time. We were not
waiving our right of saying we still believed the
1970-1973 agreement was applicable. First, the basic
language of discharges . . . and remedy of money
settlements was basically the same between the 1964
and the 1970. We proceeded on that basis and then [,]
when we had the meeting in [the conciliator's] office, I
took the same position that we had a problem as to
what contract was applicable, that we did not have a
1970-71 or '73 agreement signed with the company, but
the union was willing to process a grievance under the
1964-67 agreement because all the language used to
support my case, 90 percent of it is still in the
1970-1973 agreement. The thing is . . . the language
for my . . . position and language utilized by Mr.
Barrett [in] his defense all came out of the NMF
Agreement and Western Area OTR with the one
proviso we did not use the grievance procedure under
the OTR but used the grievance procedure set up in the
rider as of 1964.
When this grievance was settled, Respondent presented
Winton with a backpay check, covering a February-March
1972 period. The present record warrants a determination,
which I make, that Respondent's then current drivers' pay
scale-bottomed upon the so-called original "$1.10"
package settlement, rather than the subsequently negotiat-
ed "$1.85" settlement-was used to compute Winton's
backpay entitlement. Personnel Manager Barrett testified
herein that this had been "agreed to" by the parties.
Summoned in rebuttal, however, Barrett testified that
-with regard to the particular rate of pay used to compute
Winton's backpay settlement-nothing had been said. He
declared that Winton had then been "out of work" some 6
months; that no question had been raised regarding the
rate which Respondent would use in computing his
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
backpay check; and that Complainant Union merely
wanted to get Winton's case off the books.
With due regard for the record, considered in totality, I
consider it rather less than likely that Complainant Union's
business representative-who had previously charged
Respondent herein with an 8(a)(5) violation, with respect
to which General Counsel's Complaint had been issued less
than 2 months previously-would have conceded, specifi-
cally or by silence, that the renegotiated 1970-73 national
settlement , with its redefined $1.85 wage increase package,
had no current application to Respondent's Santa Clara
toolhouse drivers. The business representative's testimony,
previously noted, that Complainant Union's position
regarding that question was then specifically reserved-to
facilitate a prompt disposition with respect to Winton's
grievance-merits credence I so find.
C. Discussion and Conclusions
1. General principles
With matters in this posture, we are confronted herein,
primarily, with a question of contract law; following that
question's resolution, Respondent's rights and responsibili-
ties, pursuant to Federal labor law, will be readily
determinable. Within General Counsel's brief, the contract
law question presented for disposition has been set forth as
follows:
Did the parties at any time achieve a mutual assent as
to what were the terms and conditions of employment
to be embodied in a collective-bargaining agreement
covering the unit of toolhouse drivers.
Should a determination be found warranted that Respon-
dent's and Complainant Union's negotiators did, indeed,
reach a genuine contractual consensus during their June
30, 1970, collective-bargaining session , General Counsel's
contention herein-that Respondent's management subse-
quently flouted its statutory duty by refusing to bargain
-would merit rejection. However, should a contrary
determination be found warranted-that no genuine
"meeting of the minds" took place, between Respondent's
personnel manager and Complainant Union's business
representative-the firm's conceded refusal to negotiate,
with respect to Complainant Union's presently proffered
contract proposals, would clearly merit statutory sanctions.
Though technical rules of contract law do not necessarily
control decisions in labor-management cases, normal
"offer and acceptance" rules are generally considered
determinative with respect to the existence of collective-
bargaining contracts. F W. Means & Company v. N.L.R.B,
377 F.2d 683, 686 (C.A. 7); Cf. Lozano Enterprises v.
N L R B, 327 F.2d 814, 817-820 (C A 9). When such rules
are being applied, determinations with regard to whether
agreements have really been reached-together with
determinations, when required, regarding their substance
-must derive from what the parties said and did during
their negotiations. If words and conduct chargeable to one
or any party have but one reasonable meaning, with
respect to which the other party has noted concurrence, a
contract will be deemed concluded on that basis. See Clark
on Contracts, Fourth Edition, sec 3, p. 4. Therein, we note
that.
The law . . . judges of an agreement between two
persons exclusively from those expressions of their
intentions which are communicated between them.
Thus, should a party's words and conduct , judged by a
reasonable standard , manifest his intention to agree, his
real or unexpressed intention will be considered immateri-
al. 17 C J S., Contracts , sec. 32 , p. 361; 12 Am. Juris.,
Contracts , sec. 19, p. 515. Conversely, however , when one
party's words or conduct, judged by a reasonable standard,
lack specificity , or mask a latent ambiguity , which a
reference to relevant , mutually comprehended , extrinsic
circumstances cannot resolve,manifestationsof concurrence
-though proffered by the putative "other" party-can
hardly be considered a determinative sign that contractual
consensus was achieved . Compare Butchers ' Union Local
120, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO ( United Employers, Inc.), 154
NLRB 16, 24-29, in this connection.
2. Discussion
Mindful of these considerations, I conclude, consistently
with General Counsel's contention herein , that-with
respect to Respondent's Santa Clara toolhouse drivers
particularly-no "full and final" contractual consensus,
bottomed upon mutual consent, was reached.
Preliminarily, I note my concurrence with General
Counsel's comment herein that Personnel Manager Barrett
and Business Representative Black conducted their nego-
tiations-with particular reference to Respondent's tool-
house drivers-through a most "casual and informal"
series of communications. Conceivably, they may have
presumed-based upon their past practice-that a binding
"agreement" covering toolhouse drivers could and would
be reached, pro forma, following their negotiated ware-
house-driver settlement. There can be no doubt, however,
that-regardless of their presumptions no contractual
consensus regarding toolhouse drivers could have been
thus offhandedly generated. The special circumstances
which attended their 1970 negotiations were patent. Both
Barrett and Black, so the record shows, knew-throughout
the period during which their negotiations were being
conducted-that, with respect to both warehouse and
toolhouse drivers, certain definitive "economic" terms,
which they were tacitly committed to follow, might still be
renegotiated nationally. Both must be charged with
contemporaneous knowledge, therefore, that-so far as
wages were concerned-those terms might ultimately
prove higher than, or lower than, those compassed within
the so-called "$1 10" package which Teamsters union
representatives and various trucking industry spokesmen
had previously negotiated. Negotiators functioning con-
sciously within a fluid situation-charged with knowledge
that their prospective contract's quintessential economic
terms could not be considered, yet, definitely settled-
should reasonably have known, consequentially, that their
respective positions, with regard to monetary matters,
would have to be formulated with care. With respect to
Respondent's toolhouse drivers, however, this was not
done.
Within this Board's previous Decision, dealing with the
parties' warehouse-driver negotiations, particular stress
PITTSBURGH-DES MOINES STEEL CO. 889
was laid upon clear-cut record testimony and documentary
proof that Barrett and Black had discussed their prospec-
tive warehouse contract's monetary provisions in concrete
"dollars-and-cents" terms This Board found that those
provisions had, finally, been spelled out within a document
which set forth the contractual changes both men had
previously discussed Further, Respondent's personnel
manager and Complainant Union's representative-so this
Board's Decision shows-had reviewed that document,
before their June 30 contractual consensus covering Santa
Clara warehouse drivers was reached.
With respect to Respondent's toolhouse drivers, howev-
er, no comparably detailed negotiations took place Those
which did take place-within my view-lacked specificity;
they cannot be considered manifestations that any "meet-
ing of the minds" resulted.
Complainant Union's spokesman concededly suggested
that the parties should "renew" their previously negotiated
June 28, 1965, rider, whereby certain National Master
Freight Agreement and Western States area over-the-road
supplemental agreement provisions had been declared "not
a part" of their 1964-67 contractual consensus, and certain
substitute provisions had been agreed upon. It should be
noted, however, that Black's rather "offhand" proffer, in
this connection, failed to specify whether the contract
documents thus tangentially designated-which the parties
presumably would thereupon "adopt" tacitly, or possibly
by reference, save for their several negotiated modifica-
tions-were to be (a) the previously negotiated 1964-67
contracts, no longer in force nationally, which their June
28, 1965, rider had presumably been drafted to modify, or
(b) the newly negotiated 1970-73 contracts, similarly
designated, which had shortly before been ratified, subject
to partial renegotiation, pursuant to a nationwide referen-
dum This latent ambiguity in Black's bald "renew the
rider" proposal can hardly be considered minor; divergent
views held by the parties with regard to their rider's proper
construction, in this respect, have recently generated
controversy. The June 28, 1965, rider had not identified, by
reference to their term, those national and/or regional
contracts with respect to which modifications were being
negotiated. Presumably, Respondent and Complainant
Union had really "intended" several modifications of the
designated 1964-67 contracts, which were then in force,
their rider document, however, had not so stated. And
when that rider document was subsequently renewed-
through the November 22,1967, so-called "Supplementary
Agreement" previously noted-the latter document, like-
wise, contained no specification, in haec verba, that
Respondent and Complainant Union were consensually
committed to follow modified "noneconomic" terms and
conditions of the nationally negotiated 1967-70 National
Master Freight Agreement and Western States area over-
the-road supplemental agreement, rather than their prede-
cessor contracts. As noted, the November 22, 1967,
supplementary agreement's lack of specificity, in this
connection, has since become significant. The present
record shows that, when Complainant Union's Winton
grievance was being processed, Respondent's personnel
manager contended that their November 22, 1967, supple-
mentary agreement, renewing their previous rider, had
effectively preserved-save for negotiated modifica-
tions-the various noneconomic terms and conditions
which had presumably governed the parties' relationship,
with respect to toolhouse drivers, during their 1964-67
contract's term.
This being so, the business representative's suggestion
can hardly be considered a definite, clearly stated,
contractual "offer" with respect to which Respondent's
manifested "acceptance" would create a binding contract
Cf. Shreveport Garment Manufacturers, 133 NLRB 117, 121.
I find that it was not.
Black's concurrent suggestion-with respect to their
prospective toolhouse contract's so-called "economic"
terms and conditions-contained, within my view, compa-
rable latent ambiguities; these compel a conclusion that his
purported proffer, with respect to monetary terms, was,
likewise, deficient.
On various occasions, between May 27 and June 30,
1970, Complainant Union's representative may have
declared his desire to negotiate the same "economic
improvements" for both warehouse and toolhouse drivers
Previously, within this decision, I have noted Barrett's
testimony that he [Black] so expressed himself, together
with Black's denial. Upon due consideration, I conclude
-now-that the business representative probably did, at
one time or another during their several conversations,
paraphrase his wage and fringe benefit demands with
respect to Respondent's toolhouse drivers, describing them
as coterminous with his organization's concurrent propos-
als for warehouse drivers. The present record, however,
fully warrants a determination-which I have previously
made-that, when Complainant Union's business repre-
sentative demanded the "same economic package" for
both toolhouse and warehouse drivers, he was really
proposing monetary terms synonymous with those com-
passed within the so-called "national settlement" prior to
that settlement's renegotiation And Respondent's person-
nel manager, so the record shows, concededly had "reason
to believe" that Black, regardless of the manner in which
his request may have been phrased, really desired wage
and fringe benefit terms, for toolhouse drivers, as well as
their warehouse fellows, matching those which had already
been negotiated and settled nationally.
With due regard for the present record, however, I
conclude and find further that Barrett and Black, so far as
toolhouse drivers were concerned, shared a tacit under-
standing that their contractual consensus, when reached,
would be memorialized within a single-paragraph docu-
ment similar to their "Supplementary Agreement" negoti-
ated 3 years previously. More particularly, with respect to
their consensus regarding monetary terms, I find that both
Respondent's personnel manager and Complainant Un-
ion's representative expected they would finally sign a
document whereby their principals would be committed to
"observe the economic conditions" set forth within some
"National Master Freight Agreement and Western States
over-the-road supplemental agreement" specifically desig-
nated with a reference to their effective date. The record
does warrant a determination, which I make, that-pre-
sumably because of their mutual failure to communicate
clearly-neither negotiator considered himself committed
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to prepare the required document. There can be no doubt,
however, that they were looking toward their agreement's
final integration within a single paragraph "supplementary
agreement" comparable to their November 22, 1967,
document; I so find.
When their June 30, 1970 , discussion took place,
however, both men-so I have found-knew, or had
reason to know, that the monetary terms set forth within
the nationally negotiated 1970-73 contracts designated
were still subject to renegotiation . Nevertheless , despite
their knowledge that particular "economic conditions"
specifically set forth within the named national and/or
regional contracts-which they proposed to adopt, for the
purpose of settling monetary terms covering toolhouse
drivers, by reference merely-might finally prove to be
higher than, or lower than, those which would be detailed
within their proposed warehouse driver contract, neither
sought a clarification . No change in their anticipated
supplementary agreement 's language , calculated to settle
this crucial matter , was requested or proffered. With
matters in this posture-so I find-no determination can
be considered warranted that Barrett and Black reached a
full and/or final contractual consensus regarding their
prospective toolhouse contract's economic provisions.
The Board , within its previous decision covering the
parties' warehouse -driver negotiations , concluded that a
specific "agreement" had therein been consciously
reached, which provided for a so-called "$ 1.10" wage
increment schedule, together with related fringe benefits.
Respondent 's personnel manager , so the present record
suggests , may concurrently have believed, honestly, that
Complainant Union was proposing similar "dollars-and-
cents" terms for his firm's Santa Clara toolhouse drivers.
Complainant Union's representative, contrariwise, may
have believed, honestly, that Respondent herein-follow-
ing the signing of their prospective "supplementary
agreement" covering toolhouse drivers-would be bound
by those "economic conditions " which renegotiated na-
tional and/or regional contracts would contain, whatever
they might finally prove to be. Their subjectively held
beliefs, however, were never mutually propounded; if
suggested, they were never clearly stated. Thus, any
conclusion that, with matters in this posture, Barrett and
Black had reached a conclusive "meeting of the minds"
would be pure fiction.
3. Conclusion
Since I have found that no collective -bargaining con-
tract , with respect to toolhouse drivers, resulted from their
June 30, 1970 , discussion , I conclude that Respondent and
Complainant Union remained, thereafter, statutorily
bound to meet at reasonable times, on reasonable notice,
and to "confer in good faith" with regard to bargainable
matters, looking toward a contract 's finalization. See
Section 8(d) of the statute
Further, I find that Complainant Union's representative
-through his February 2, 1971, letter-properly sought
a clearly stated contractual consensus. Personnel Manager
Barrett , however, rejected this overture, since it necessarily
would require reopened negotiations
Complainant Union's contractual demands were, con-
cededly, reiterated during two subsequent-July and
October-conferences ; Respondent 's personnel manager,
however, specifically rejected both demands , contending
that a viable contractual consensus , binding upon both
parties, had previously been reached.
Compare North Coast Counties District Council of
Carpenters, United Brotherhood of Carpenters & Joiners of
America, AFL-CIO, et al. (Cotati Cabinet Shop, Inc.), 197
NLRB No. 149, in this connection . Respondent herein
contends that , within the cited case , this Board was
presented with a factually similar situation . However, I
find Respondent 's reliance upon the Board 's Decision
therein misplaced . The Board specifically found , within the
cited case , that the parties had consciously reached a
complete and separate collective -bargaining agreement,
consisting of their own prior agreement with three
specifically detailed changes . Herein , however, I have
found-with particular reference to Respondent 's tool-
house drivers-that Complainant Union's contractual
suggestions , with due regard for the context within which
Black proffered them , were so laced with ambiguity that
Respondent 's putative "acceptance" or "acquiescence"
with respect thereto , cannot reasonably be found to have
created a true contractual consensus . With matters in this
posture, I conclude that Respondent presently remains
statutorily bound to meet with Complainant Union, upon
request , for collective -bargaining purposes ; that Complain-
ant Union 's representative has timely requested Respon-
dent to meet and confer for such purposes ; and that
Respondent 's continued failure and refusal to consider
Complainant Union's contract proposal cannot be defend-
ed now on the ground that a collective-bargaining
consensus was previously reached.
Respondent has suggested that Complainant Union's
course of conduct since June 30 , 1970, reflects its tacit
concession that a viable contractual understanding was
then reached. With respect to Respondent's toolhouse
drivers, however, I have not been persuaded . When Barrett
proceeded to make effective certain wage changes
-promptly following their June 30 session-those
changes, directed for both warehouse and toolhouse
drivers, did match. In regard to Respondent 's warehouse
drivers, however, this Board has previously found that
Barrett's directive was calculated to effectuate a clearly
defined "agreement" consciously reached . With respect to
Santa Clara toolhouse drivers, on the other hand , Barrett's
course of conduct-so I have found herein-derived solely
from his mere subjective "belief" or "presumption" that a
requisite meeting of the minds, on terms acceptable to
Respondent herein , had taken place . Since the wage scale
increments which Respondent 's management then granted
did match those provided tentatively within the previously
negotiated 1970-73 national settlement , Black 's failure to
question Barrett's course of conduct , or to note reserva-
tions with respect thereto-so far as toolhouse drivers were
concerned-cannot be considered a consciously reached
concession that final "agreement" existed , consistent with
Barrett 's subjectively held belief . The record does show
that-consistently with a recommendation which Com-
plainant Union's representative made-various Teamster
union trust funds have suspended their attempts to collect
PITTSBURGH-DES MOINES STEEL CO 891
higher fund contributions from Respondent, bottomed
upon their belief that the firm was committed to comply
with the renegotiated 1970-73 settlement. I do not,
however, consider Black's suggestion-that these funds
should suspend their billings computed at higher rates
-sufficient to constitute a waiver of Complainant Union's
presently maintained contentions. When that suggestion
was made, General Counsel's prior complaint-charging
Complainant Union with an 8(b)(3) violation in connec-
tion with the parties' warehouse driver negotiations-was
pendente lite, and Complainant Union's business represent-
ative knew that Respondent's personnel manager did not
share his view regarding their supposed toolhouse-driver
consensus. With due regard for these circumstances, I
conclude-consistently with Black's present claim-that
his suggestion, directed to the trust funds, merely reflected
his desire to refrain from enlarging their conflict. In
connection with Toolhouse Driver Winton's grievance,
Complainant Union's position, with respect to matters now
in controversy, was-so I have found-specifically re-
served. Though Winton's backpay claim may have been
settled pursuant to Respondent's currently maintained
wage payment schedule, Complainant Union's conceded
acquiescence with respect thereto-so I find-reflects no
waiver.
Further, Respondent has suggested, en passant, that
General Counsel's complaint herein may be time-barred,
since certain "operative" facts which clearly revealed
Respondent's lack of willingness to resume their toolhouse
driver negotiations , took place more than 6 months before
Complainant Union's charge herein was filed. See Section
10(b) of the statute. This contention, however, must be
rejected. Serv-All Company, Inc., 199 NLRB No. 159; Cf.
N. L.R. B. v. Strong Roofing and Insulation Company, 386
F.2d 929, 932 (C.A. 9); McCready and Sons, Inc., 195
NLRB No. 18. Though Respondent's first refusal to
consider Complainant Union's definitive contract proffers
-set forth within Black's February 2, 1971, letter-did
take place outside the statute's 10(b) penod, the present
record fully warrants a determination, which I make, that
Respondent's refusal to bargain was twice repeated,
thereafter, well within the 6-month period which preceded
Complainant Union's charge. These subsequent refus-
als-which certainly cannot be considered time-barred
-were unequivocal.
With matters in this posture, and upon the entire record
herein, I find that Respondent, by its refusal to resume or
continue negotiations for a toolhouse-drivers contract, has
transgressed Section 8(a)(5), and that such conduct
derivatively contravenes Section 8(a)(1) of the statute.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's course of conduct set forth in section III,
above-since it occurred in connection with Respondent's
business operations described in General Counsel's com-
plaint, and concededly described correctly therein-has
had, and continues to have, a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States Absent correction, such conduct would
tend to lead to labor disputes burdening and obstructing
commerce, and the free flow of commerce.
THE REMEDY
Since I have found that Respondent did engage, and
continues to engage, in certain unfair labor practices which
affect commerce, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirmative
action, including the posting of appropriate notices,
designed to effectuate the policies of the Act, as amended
CONCLUSIONS OF LAW
In light of these findings of fact, and upon the entire
record in this case, I make the following conclusions of
law:
1. Respondent, Pittsburgh- Des Moines Steel Company,
is an employer within the meaning of Section 2(2) of the
Act, engaged in commerce and business activities which
affect commerce within the meaning of Section 2(6) and (7)
of the Act, as amended.
2. Freight, Construction, General Drivers, Warehouse-
men and Helpers Union, Local No. 287, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act, as amended, which
admits certain employees of Pittsburgh-Des Moines Steel
Company to membership.
3 All toolhouse truckdrivers employed by Pittsburgh-
Des Moines Steel Company at its Santa Clara facility,
excluding all other employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material herein, Complainant Union has
represented a majority of Respondent's employees within
the bargaining unitjust described, by virtue of Section 9(a)
of the Act, Complainant Union has been entitled to
recognition as the exclusive representative of all employees
within the said unit, for the purpose of collective
bargaining with respect to their rates of pay, wages, hours
of employment, and other terms and conditions of work.
5. By failing and refusing to bargain collectively since
about October 7, 1971, with Complainant Union herein,
regarding rates of pay, wages, hours of employment, and
other terms, and conditions of employment for employees
within the bargaining unit described above, Respondent
has engaged in, and is engaging in, unfair labor practices
affecting commerce, within the meaning of Section 8(a)(1)
and (5), and Section 2(6) and (7) of the Act, as amended.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, and pursuant
to Section 10(c) of the National Labor Relations Act, I
hereby issue the following recommended:
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER1
Respondent, Pittsburgh-Des Moines Steel Company, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from refusing to bargain collective-
ly in good faith with Freight, Construction, General
Drivers, Warehousemen and Helpers Union, Local No.
287, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, on behalf of
workers within the unit herein found appropriate for
collective-bargaining purposes, or from engaging in any
like or related conduct in derogation of its statutory duty
to bargain.
2. Take the following affirmative action, which is
necessary to effectuate the policies of the Act, as amended:
(a) Upon request, bargain collectively in good faith with
Freight, Construction, General Drivers, Warehousemen
and Helpers Union, Local No. 287, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of
Respondent's Santa Clara facility employees, within the
unit found appropriate herein for collective-bargaining
purposes, with respect to their rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its place of business in Santa Clara,
California, copies of the notice attached to this report as an
Appendix.2 Copies of the notice, to be furnished by the
Regional Director for Region 20 as the Board's agent, shall
be posted, immediately upon their receipt, after being duly
signed by Respondent's representative. When posted, they
shall remain posted, for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that these notices are not
altered, defaced, or covered by any other material,
(c) File with the Regional Director of 20, as the Board's
agent, within 20 days from the date of service of this
Decision, a written statement setting forth the manner and
form in which it has complied with these recommenda-
tions.3
i In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
2 In the event that the Board's 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 Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
I In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 20, in writing , within 20 days
from the date of this Order what steps 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
After a hearing, during which all parties were given an
opportunity to present evidence and argument, it has been
determined that we violated the law by committing an
unfair labor practice In order to remedy such conduct, we
are being required to post this notice. We intend to comply
with this requirement, and to abide by the following
commitment:
WE WILL NOT fail or refuse to bargain collectively in
good faith with Freight, Construction, General Drivers,
Warehousemen and Helpers Union, Local No. 287,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of Amenca, as the
exclusive representative of our employees , within the
appropriate bargaining unit described below, concern-
ing their rates of pay, wages, hours of work, and other
terms and conditions of employment.
WE WILL NOT, in any like or related manner,
interfere with, restrain , or coerce our employees, with
respect to their exercise of the right to bargain
collectively through a representative chosen by them.
WE WILL, upon request, bargain collectively in good
faith with the Union as the exclusive collective-bargain-
ing representative of all toolhouse truckdrivers em-
ployed at our Santa Clara, California, facility, exclud-
ing all other employees, guards, and supervisors as
defined in the Act, as amended.
PITTSBURGH- DES MOINES
STEEL COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 13018 Federal Building, Box
36047, 450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-0335.