Raybestos-Manhattan, Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1970

183 N.L.R.B. 213 (N.L.R.B. 1970)

GENERAL ASBESTOS & RUBBER DIVISION
General Asbestos & Rubber Division, Raybestos-
Manhattan, Inc. and Textile Workers Union of
America, AFL-CIO. Case 11-CA-3997
June 10, 1970
DECISION AND ORDER
By MEMBERS MCCULLOCH, BROWN, AND JENKINS
On February 18, 1970, Trial Examiner Joseph I.
Nachman issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Respondent filed timely
exceptions and a brief in support thereof, the
Charging Party filed exceptions, and the General
Counsel filed an answer to the exceptions of the
Respondent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10( c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent , General Asbestos &
Rubber Division , Raybestos -Manhattan , Inc., Char-
leston , South Carolina, its officers , agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner 's Recommended Order.
TRIAL EXAMINER' S DECISION
JOSEPH I . NACHMAN, Trial Examiner: This matter
tried before me at Charleston , South Carolina, on
' On December 17, at the conclusion of Respondent 's case, I granted a
continuance to give the General Counsel time to investigate, and if he
desired to offer evidence with respect to the circumstances under which a
series of documents received in evidence as Resp. Exhs . 6(a)-(gg) were
signed by Respondent 's employees. While the trial was in recess, the
General Counsel advised me that he would not offer further evidence Ac-
cordingly , the trial was not resumed , the record was closed , and the time
for briefs fixed by my order of December 24, 1969
' Issued October 27 on a charge filed and served September 10 These
and all dates hereafter mentioned are 1969 unless otherwise indicated.
213
December 16 and 17 , 1969,1 with all parties
present and represented by counsel , involves a com-
plaint2 pursuant to Section 10(b) of the National
labor Relations Act, as amended ( herein the Act),
alleging that since on or about March 11 General
Asbestos & Rubber Division , Raybestos -Manhat-
tan, Inc . (herein Respondent or Company), by (1)
unilaterally granting a general wage increase; (2)
dilatory bargaining tactics designed to avoid agree-
ment; ( 3) refusing to sign an agreed upon contract;
(4) negotiating in bad faith with no intention of
reaching agreement ; and (5 ) on or about Sep-
tember 3 withdrawing recognition from and refus-
ing to bargain further with textile Workers Union of
America, AFL-CIO ( herein the Union ), refused to
bargain with the Union in a unit for which the
Union had been certified by the Board , in violation
of Section 8(a)(5) and ( 1) of the Act. By answer
Respondent admitted certain allegations of the
complaint , but denied the commission of any unfair
labor practice.
Thee central issue, which I regard as dispositive of
the case, is whether or not the Union uncondi-
tionally accepted Respondent 's outstanding offer of
contract terms, thereby concluding an agreement
for a 3-year term , which Respondent admittedly
refused to sign .' For reasons hereafter stated I find
and conclude that the Union accepted Respon-
dent 's contract terms unconditionally , thereby con-
cluding a contract , and that Respondent 's refusal to
sign that contract , and its subsequent withdrawal of
recognition from the Union , violated Section
8(a)(5) and (1) of the Act. Accordingly, I recom-
mend an appropriate remedial order.
At the trial full opportunity was afforded all
parties to introduce relevant evidence , to examine
and cross-examine witnesses, to argue on the
record , and to submit briefs . Oral argument was
waived. Briefs submitted by the General Counsel
and Respondent , respectively , have been duly con-
sidered. Upon the pleadings , evidence , stipulations
of counsel, and the entire record in the case, in-
cluding my observation of the demeanor of the wit-
nesses, I make the following:
FINDINGS OF FACT4
Background
In June 1966, following the usual proceedings in
a consent election case (11-RC-2351), the Re-
' If this question were answered in the negative , the principal issue would
be whether Respondent 's admitted refusal to bargain with the Union on
September 3 was motivated by its good-faith doubt that the Union then en-
joyed majority status As indicated , I do not reach that question
' No issue ofjurisdiction is presented . The facts set forth in paragraphs 2,
3, and 5 of the complaint , which Respondent admitted by answer, establish
that Respondent is an employer engaged in commerce and that the Union
is a labor organization, both within the meaning of the Act I find those
facts to be as pleaded The Board has heretofore asserted jurisdiction over
Respondent. See Raybestos-Manhattan , Inc , 168 NLRB 396, 115 NLRB
1036
183 NLRB No. 27
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gional Director certified the Union as the collec-
tive-bargaining representative of Respondent's em-
ployees in an appropriate unit . Bargaining between
the parties commenced shortly thereafter and con-
tinued until December 19, 1967, when respondent
withdrew recognition from and declined to bargain
further claiming that the Union had lost its majori-
ty. Based on a charge filed by the Union , the Re-
gional Director , on behalf of the Board , issued a
complaint charging Respondent with violating sec-
tion 8 ( a)(5) and ( 1) of the Act, but that complaint
was withdrawn when the Union withdrew its charge
and filed another representation petition which
became Case I1-RC-2717. Pursuant to consent of
the parties an election was conducted on May 16,
1968, and , after resolving certain challerges, the
Board , on September 4, 1968, certified the Union
as the collective -bargaining representative of
Respondent 's employees in an appropriate unit.'
Current Facts
Following the Union's certification the parties
began bargaining on September 13, 1968, and
between that date and the following September 3,
there were 11 bargaining sessions.' At each of these
meetings the Union 's chief ' negotiator was its
Southern Director Scott Hoyman who is headquar-
tered at Charlotte, North Carolina, while Respon-
dent's chief negotiator was its attorney William H.
Smith, Jr., who maintains his office at Columbia,
South Carolina. Concerning the negotiating ses-
sions, there is virtually no factual dispute with
respect to the events which I regard as controlling
the disposition of the case. Accordingly, in setting
forth the events at the negotiating sessions, my
findings are based on uncontradicted or mutually
corroborated testimony.
The first meeting on September 13, 1968, was
preceded by, Respondent's letter to the Union,
dated September 6, 1968 , proposing a general wage
increase of 5 percent to all employees, effective
September 16, 1968. Most of this meeting was,
devoted to a discussion of the manner in which the
increase would be applied, and it was agreed that
the increase would be put into effect, but without
prejudice to further bargaining on the subject of
wages . At the next meeting on October 9, 1968, the
parties agreed that the most logical way to proceed
was to put in focus the situation that existed when
negotiations broke off in December 1967 , and pur-
suant to this Company Attorney Smith presented a
complete set of written contract proposals.' The
proposals , however, made no reference to wages or
the terms of a proposed contract . At the meetings
of October 25, 1968, and January 16 Respondent
voiced its desire for a 3-year contract, and the
Union expressed its willingness to agree to such a
term if Respondent would agree to specific
economic proposals including a general wage in-
crease of 5 percent in each of the 3 years. Respon-
dent took no position on the Union's proposals.
At the meeting on January 28 Company Attorney
Smith presented the Union with a complete con-
tract, explaining that it included everything the
Company would agree to.9 The proposed contract
provided for a 3-year term, and thereafter for 1-
year terms unless terminated by specified notice,
and a general wage increase of 3 percent in Sep-
tember of each year during the contract. In the
course of discussion which followed, the Union ex-
pressed its willingness to agree to Smith 's proposal
if the contract was limited to 1 year but this was re-
jected by Smith. At the meeting on February 18
Respondent increased its wage offer from 3 percent
to 4 percent during each year of a 3-year contract.
The remainder of that meeting, as well as the
meetings of February 24 and June 4 were devoted
to a discussion of that and other economic terms.
At each of these meetings , however, Attorney
Smith urged the Union to sign the agreement he
submitted on January 28, as modified on the sub-
ject of wages, saying particularly at the February 24
meeting that "the Company had made a fair
proposal [and that the Union was] wasting time in
arguing about these matters."
At the June 23 meeting the Company again
revised its wage proposal, offering an increase of 5
percent in September 1969, 4 percent in September
1970, and 3 percent in September 1971, instead of
the 4 percent each year as previously offered, and
this and other contract terms, including that of du-
ration, was discussed at this and the meeting of July
24. As the July 24 meeting was concluding, Attor-
ney Smith put the contract he had submitted on
January 28, modified as to wages as above in-
dicated, before Union Negotiator Hoyman, and said
"Why don't you sign it?" Hoyman replied that he
was not prepared to do so at that time.
On August 5 Union Agent Hoyman sent Attorney
Smith a letter on which the decision in this case de-
pends. As Respondent's defense rests on the precise
language of this letter, I set it out in full text italiciz-
ing the words on which Respondent particularly re-
lies. It is as follows:
After considerable consultation, this is to ad-
vise you that the Union is prepared to accept
' At the election the tally of ballots disclosed 295 votes for the Union,
277 against , and 23 challenged ballots. The Board resolved 18 of the chal-
lenges following which the vote stood 297 votes for the Union and 290
against making it unnecessary to resolve the remaining 5 challenged bal-
lots.
'The certification describes the unit as "All production and main-
tenance employees , including loom fixers employed at Respondent 's North
Charleston , South Carolina , plant , excluding office clerical employees,
professional employees , quality control department employees, group
leaders, foremen, guards and supervisors as defined in the Act " Respon-
dent's answer admits and I find the unit to be appropriate
' The parties stipulated that bargaining sessions were held on September
13, October 9 and 25, all in 1968, and January 16 and 28, February 18 and
26, June 4 and 23, July 24, and September 3, all in 1969 No contention is
made by the General Counsel that there was undue delay between bargain-
ing sessions
' Such proposals are Joint E;,h 6.
' The contract form referred to is Joint Exh 9
GENERAL ASBESTOS & RUBBER DIVISION
the Company's proposal for a three year agree-
ment covering employees of GARCO with 5, 4
and 3% wage increases effective in September
of each year and the contract language for the
various articles as agreed to in the current
negotiations. We will of course wish to submit
the total agreement for ratification by the mem-
bership.
In the minor points of language which
remain unresolved we are prepared to agree to
the latest offers of the Company.
I would therefore suggest a meeting at an
early date at which we can initial all the arti-
cles of the contract including the proposed an-
nual wage increases. I would be available for a
meeting on August 15, 18, 19 or 20 at the
usual time and place.
The evidence is uncontradicted that Smith
received Hoyman's letter and that he did not reply
to it. The record contains no explanation for such
failure to respond. In any event, having received no
response, Union Agent Hoyman, on August 11,
wrote to Company Personnel Director Sullivan,
who had, except when prevented by illness, served
on Respondent's negotiating committee, enclosing
a copy of his August 5 letter to Attorney Smith, and
stating that not having heard from Smith, he as-
sumed that the latter was on vacation, and was
calling Sullivan's attention to the matter because he
regarded it as "important." Because Sullivan was
away from his office due to illness , Hoyman's Au-
gust 11 letter was received and acted upon by
Assistant Personnel Director Hester on August 13.
On that date Hester wrote Hoyman (1) that he was
aware of Hoyman's letter of August 5, the same
having been forwarded to the Company by Smith;
and (2) that because the dates suggested in
Hoyman's August 5 letter when the parties might
meet and "initial all the articles of the contract"
was "difficult for all membsrs of our committee,"
and he was suggesting September 3, "as a con-
venient date to meet and discuss the contents of
your letter." Hoyman admittedly received this
letter in due course of mail.
Also on August 13 Respondent posted on its em-
ployee bulletin board three documents with a
covering memorandum which urged the employees
to "carefully read each of the attached pages." The
documents so posted were (1) Hoyman's letter to
Smith dated August 5; (2) Hester's letter to
Hoyman dated August 13; and (3) a "News Letter"
10 The last mentioned document is in evidence as Resp Exh 5(f)
11 Another notice to the same effect was posted on September 13 refer-
ring to a 5-percent increase to be effective September 16 There being no
coi.trary explanation , I assume that both notices refer to the same wage in-
crease and that only one wage increase was granted in mid-September
" The mailing is evidenced by a registry receipt which is in evidence
215
issued by the Union's negotiating committee under
date of July 29 reporting on the negotiating meet-
ing held July 24.10 Thereafter, on August 22,
Respondent posted on its employee bulletin board a
notice signed by General Manager Drucker, read-
ing, "I am pleased to announce a general increase
of approximately five percent (5%) in all rates ef-
fective September 15, 1969."11
Still not having heard from Smith, Hoyman on
August 20 took the contract proposals submitted by
the latter at the meeting of January 28, retyped
them into final contract form modified to reflect
the 5-,4-,and 3-percent wage increase agreed to by
Smith at the June 23 meeting, dated and signed the
document, and transmitted the same to Smith with
a letter dated and mailed August 2 1,12 reading:
Enclosed is a signed copy of the Company's
contract proposal in line with my acceptance
of your contract proposal made in a letter to
you dated August 5, 1969.
The record is uncontradicted that Smith did not
respond to the above-quoted letter, nor commu-
nicate with Hoyman in any manner regarding its
contents . Because of such lack of response,
Hoyman again wrote Smith on August 26, taking
the latter to task for failing to respond to the let-
ters, pointing out that the only word he had
received was from Hester who had "completely
ignored the fact that the Union had accepted the
Company's contract proposal," and that he was at a
loss to understand why, if the Company was acting
in good faith, it should need 20 days "to respond to
the Union's acceptance of your contract offer."
Hoyman also protested Respondent's action in an-
nouncing to its employees on August 23 a wage in-
crease of 5 percent, "without first proposing this to
the Union." Additionally, Hoyman told Smith that
at a meeting on August 22 the employees involved
had ratified " the signing of this agreement." The
evidence shows that Smith received Hoyman's last-
mentioned letter on August 27 and that he replied
to it the same day, merely saying that he would at-
tend the meeting scheduled for September 3.
In the meantime, between August 13 and Sep-
tember 3, some 33 pieces of paper bearing the pur-
ported signatures of about 336 employees were left
on the desk of Assistant Plant Manager Oliver 13
under circumstances and by a person or persons
unknown, which in one form of words or another
indicated dissatisfaction with the Union and/or with
Although a delivery receipt signed on behalf of Smith is part of G. C. Exh.
12(a), the last mentioned document is not dated. I assume therefore that it
was received by Smith in due course of mail
" Oliver testified without contradiction that unit employment at the time
was about 615, that the first such petition was received on August 13 or 14,
and th e last on September 3
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the contract." According to the Company's wit-
nesses , Respondent had no information with
respect to when, by whom, or the circumstances
under which the petitions were circulated among
and signed by the employees, or who left them on
Oliver's desk. Oliver delivered the petitions to
Assistant Personnel Director Hester with instruc-
tions to check the signatures thereon against
Respondent's records. Hester subsequently re-
ported to Oliver that the signatures appeared to be
authentic.
When the parties met on September 3 Hoyman
told Smith that his (Hoyman's) letter of August 5
constituted the acceptance and conclusion of a
binding contract, which had been reduced to writ-
ing, signed on behalf of the Union, and transmitted
to Smith with Hoyman's letter of August 21, and
that nothing remained except for Respondent to
sign the agreed upon contract. According to
Assistant Factory Manager Puckhaber, a member
of the Company's negotiating committee, who was
called as a witness by Respondent, Smith replied in
substance, that he was in a quandry as to the course
he should pursue, because while the contract
Hoyman had transmitted was satisfactory, and in
every way acceptable to Respondent, he knew from
the petitions left on Oliver's desk that a majority of
the employees no longer wished to be represented
by the Union and suggested that the Union file
another petition for an election.'5 According to
Respondent's witness Tiedemann, Smith also told
Hoyman that the latter had accepted Respondent's
contract terms subject to ratification by the Union's
membership and that "he had seen nothing to in-
dicate that there had been a meeting to ratify 1116
and that Hoyman replied that ratification involved
only the internal workings of the Union which was
of no concern of the Company. Respondent's wit-
ness Puckhaber also testified that at the September
3 meeting Hoyman protested the 5-percent wage
increase which Respondent announced by its notice
posted on the bulletin board on August 22 claiming
that the same constituted unilateral action; that
Smith claimed this had been agreed to in the bar-
gaining negotiations, but Hoyman contended that
such agreement was only as a part of negotiations
in the context of a complete contract, and that not-
withstanding Hoyman's request that Respondent
sign the contract as agreed upon, Smith declined to
do so on the ground that the petitions presented to
management demonstrated that the employees did
not want that contract, and did not want the Union
as their bargaining representative . The meeting,
which lasted about 45 minutes, adjourned on this
note.
On September 8 Respondent filed with the Re-
gional Director a representation petition which was
assigned Case 11-RM-158. The Regional Director
dismissed that petition October 27, the date the
complaint herein issued. Respondent's petition to
review that action was denied by the Board on
November 24.
Contentions and Conclusions
It is well settled that when an employer and a
union have agreed on all terms of a collective-bar-
gaining contract it is a violation of Section 8(a)(5)
of the Act for an employer to refuse to sign the
contract so agreed on, and that to remedy such un-
fair labor practice the Board may require the em-
ployer to sign and comply with all terms of the con-
tract. Huttig Sash & Door Company, 151 NLRB
470, 474, order enfd. as modified in other respects
362 F.2d 217 (C.A. 4). Respondent does not ques-
tion the principle above stated, impliedly conceding
that on August 5 there was extant an offer by Re-
spondent which the Union might have accepted
and thus concluded a binding contract. Respond-
ent's defense presents two questions narrower in
scope, namely that (1) in his letter of August 5 Hoy-
" The date and number of employees whose names appear on these peti-
tions are as follows
Date Petitions Employees
signing
Undated 12 157
August 8 1 22
(apparently
incorrect)
August 14 1 10
August 15 5 72
August 18 5 53
August 20 1 1
August 21 2 10
August 22 2 5
August 25 1 2
Date Petitions Employees
signing
August 27 1 2
September 3 2 2
Total 33 336
Most of these petitions contain a statement to the effect that the signers
thereof do not wish to be represented by the Union . However , 6 petitions
bearing the signature of 65 employees carry a legend to the effect that the
signers do not approve of the contract negotiated between Respondent and
the Union , no mention being made that those employees do not wish to be
represented by the Union See Resp Exhs 6(z)-(gg ) If these 65 are
deducted, the remaining 271 signers do not constitute a majority of the ap-
proximately 615 employees in the unit
'" This suggestion was rejected by Hoyman who said that the Union had
won two elections and saw no need for another
16 As indicated above , Hoyman 's letter to Smith , dated August 26, stated
that at a meeting held August 23 the employees ratified the agreement.
GENERAL ASBESTOS & RUBBER DIVISION 217
man did not accept Respondent ' s outstanding offer,
but merely stated that the "Union is prepared to ac-
cept" the Company 's proposal , and (2 ) that even if
Hoyman 's letter of August 5 constituted an ac-
ceptance , it was an acceptance conditioned upon
ratification by the Union's membership . I find these
contentions without merit.
Turning first to the question whether Hoyman's
letter of August 5 constituted an acceptance, I find
and conclude that Hoyman so intended it, and that
Smith so understood and acted upon it. I reach this
conclusion for several reasons . To begin with, I am
convinced that Hoyman 's expression "prepared to
accept" was simply an unnecessarily verbose
manner of saying "I accept ." That Hoyman in-
tended the letter as an acceptance of Respondent's
then outstanding offer is made clear by his sub-
sequent letters to Smith dated August 21 and 26,
which referred to "my acceptance," or that the
Union "had accepted" the Company 's contract
proposals , and considered "the contract settled."
That Smith construed Hoyman 's August 5 letter as
an acceptance is indicated , I believe , by the fact
that he did not reply thereto, nor did he inquire of
Hoyman as to the latter 's intentions . Even assuming
that Smith had some reason to doubt whether
Hoyman was accepting Respondent 's contract
proposals , a simple inquiry of Hoyman with respect
to that fact-an inquiry which good faith would
seem to require-would have put his doubt to rest.
Cf. N.L.R.B. v. Waukesha Lime & Stone Co ., Inc.,
343 F.2d 504, 507 (C.A. 7). Moreover , the an-
nouncement of the 5-percent wage increase, posted
on the bulletin board on August 22, and which
Smith contended had been agreed to by the Union,
could only have been accepted by Hoyman 's letter
of August 5, for the evidence is uncontradicted that
when the meeting of July 24 adjourned the Union
had not so agreed , and the only subsequent com-
munication between the parties that could have
constituted an agreement on the part of the Union
was Hoyman 's August 5 letter.
Turning now to the question of ratification, I find
unsupported by the record the Respondent's con-
tention that Hoyman 's August 5 letter made em-
ployee ratification a condition precedent to a meet-
ing of the minds on contract terms . Rather, I con-
strue Hoyman 's comment relating to ratification as
no more than a statement of the course Hoyman in-
tended to pursue with respect to the internal opera-
tions of the Union ; a matter not relating to wages,
hours, or terms and conditions of employment, and
hence not a mandatory subject of bargaining.
N.L.R.B. v. Wooster Division of Borg-Warner Corp.,
356 U.S. 342, 349 ; Houchens Market of
Elizabethtown , Inc. v . N.L.R.B., 375 F.2d 208
(C.A. 6), enfg. 155 NLRB 729. Even assuming, as
Respondent contends , that an employer and a
union may agree that no contract shall result until
all terms negotiated have been ratified by the union
membership , and that such agreement will be given
effect , upon the record in this case there is no
showing that such an agreement was in fact
reached . No suggestion of such an agreement was
contained in any proposal submitted by Respondent
during the negotiations , nor was the subject men-
tioned by anyone during the period of the bargain-
ing. The factual situation here therefore is nowhere
near as strong as that presented in Houchens Mar-
ket, supra , where the union negotiator at the start of
negotiations informed the employer representatives
that all agreements reached would be subject to ap-
proval by the employees , but the Board nonetheless
concluded that ratification was not a condition
precedent to the conclusion of an agreement, but
rather a gratuitous condition which the union
negotiator imposed on himself. Furthermore, even
if the parties did agree that employee ratification
was a condition precedent to an effective contract,
on the record before me Respondent 's defense
must fail because it has no standing to question
Hoyman 's notification to it, set forth in his letter of
August 26, that at a meeting of employees held Au-
gust 23 "a motion was duly made, seconded and
passed to ratify the signing of this agreement." This
conclusion is required by the Board 's decision in M
& M Oldsmobile , Inc., 156 NLRB 903, enfd. 377
F.2d 712 ( C.A. 2), where relying upon its prior
decision in North Country Motors, Ltd., 146 NLRB
671, the Board said at 156 NLRB 905:
As we observed therein , a bargaining agent
need not assume the obligation of obtaining
ratification of any contract it may negotiate on
behalf of its members, but, if it does so, it is for
the union , not the employer , to construe and
apply its internal regulations relating to what
would be sufficient to amount to ratification.
If, as claimed by Respondent, an employer
were free to challenge the union's assertion
that ratification had taken place, it would be
difficult , if not impossible , for the parties to a
collective-bargaining 'agreement to arrive at a
final settlement without the fear of being
forced into protracted litigation regarding the
union 's compliance with its own procedures,
clearly a collateral issue. The encouragement
of industrial instability could not have been
within the intendment of the Act.
Therefore , even assuming that the parties had
agreed that ratification by the employees was a
condition precedent to a contractual agreement, I
must and do find and conclude that the fact that
Respondent had been advised by a majority of its
employees that they did not approve of the contract
which the Union negotiated , or that they did not
want the Union to act as their representative, does
not warrant the conclusion that the Union had not,
or could not , obtain such ratification; on the contra-
ry, the Union 's statement to Respondent that ratifi-
cation had been accomplished is conclusive.
Nor do the employee petitions presented to
Respondent as above indicated constitute legal
justification for its failure to sign the contract
agreed upon , or its subsequent withdrawal of recog-
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nition from the Union. Under familiar principles of
contract law, which Respondent concedes are fully
applicable to collective-bargaining contracts (Br. p.
14), the mailing of Hoyman's letter on August 5
concluded a contract binding on both parties (Am.
Jur. 2d 48), and Section 8(d) of the Act therefore
came into play at that moment, imposing upon
Respondent the obligation to sign the contract so
concluded. Certainly at that point Respondent was
not aware of any employee defection from the
Union (see fns. 13 and 14, supra ), and even if it
was, the consummation of the contract occurred at
a time when the first year of the certification had
virtually a month to run, with the presumption of
the Union's majority status conclusive. Ray Brooks
v. N.L.R.B., 348 U.S. 96. And the consummation of
the contract on August 5 established a bargaining
relationship between the parties which, as the
Supreme Court stated in Franks Bros. Company v.
N.L.R.B., 321 U.S. 702, 705, "must be permitted to
exist and function for a reasonable period in which
it can be given a fair chance to succeed." Plainly,
Respondent provided no such period when it
evaded the Union for nearly a month, and on Sep-
tember 3 completely withdrew recognition from it.
Accordingly, for reasons stated, I find and con-
clude that Respondent thereby refused to bargain
with the Union in violation of Section 8(a)(5) and
(1) of the Act."
Upon the foregoing findings of fact and the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all times material herein the Union has
been the duly certified collective-bargaining
representative of Respondent's employees in an ap-
propriate unit composed of "All production and
maintenance employees, including loom fixers em-
ployed at Respondent 's North Charleston, South
Carolina, plant; excluding office clerical employees,
professional employees, quality control department
employees , group leaders , foremen , guards and su-
pervisors as defined in the Act."
4. By failing and refusing to execute the collec-
tive-bargaining agreement negotiated with the
Union effective for a term of 3 years from August
5, 1969, and by withdrawing recognition from the
Union on September 3, 1969, Respondent refused
to bargain collectively with the Union as the collec-
tive-bargaining representative of its employees in
the aforesaid unit, and interfered with, restrained,
and coerced its employees in the exercise of rights
guaranteed to them by Section 7 of the Act, and
thereby engaged in and is engaging in unfair labor
practices proscribed by Section 8(a)(5) and (1) of
the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent failed and refused
to execute the contract it negotiated with the
Union, I shall recommend that it be ordered, upon
request of the Union, to do so and comply with all
the provisions thereof retroactive to August 5,
1969, the date such agreement was consummated,
including backpay to employees who may not have
been fully compensated as provided in the contract,
such backpay, if any is due, to be computed in ac-
cordance with the Board's formula set forth in F.
W. Woolworth Company, 90 NLRB 289; Isis Plumb-
ing & Heating Co., 138 NLRB 716.
Relying upon Big Run Coal & Clay Company, 152
NLRB 1144, the General Counsel urges that the
Recommended Order herein should provide for an
option to the Union to request that Respondent
sign the agreed-upon contract, or resume bargain-
ing. The rationale of the cited case is that as the
agreement there reached was for a period of 1 year
which had run by the time of the Trial Examiner's
Decision, an order which merely required the Com-
pany to sign the contract might no longer be
meaningful."' The factual situation in this case is
different. Here the Union agreed to a contract for 3
years. During that term, in my view, the Union
should not have the option of rescinding the agree-
ment it voluntarily made, but like Respondent,
should be held to its bargain. However, in the un-
likely event that the 3-year term of the contract will
have expired before Respondent complies with the
order to be recommended herein, it will be recom-
mended that Respondent be ordered on request of
" Having reached this conclusion , I find it unnecessary to decide
whether , as General Counsel contends but Respondent denies ,( 1) the
events in August and September require the conclusion that Respondent's
entire course of bargaining since September 13, 1968 , was in bad faith, (2)
that said events require a finding that Respondent 's delay in signing the
contract was in bad faith with the intention of avoiding any agreement, and
(3) that the wage increase announced by Respondent on August 22, al-
legedly without consultation with the Union , independently violated Sec-
tion 8 ( a)(5) and ( 1) of the Act With respect to the first two items , in view
of my findings that agreement was reached upon all terms of a contract.
which the Union admits were in all respects satisfactory to it, and which I
shall recommend Respondent be required to sign , nothing is to be gained
by a possible finding that such agreement was reached notwithstanding
bad-faith bargaining on the part of Respondent , and for which , in practical
effect , no remedy is possible , other than to direct Respondent not to again
bargain in bad faith With respect to the final item, as Respondent will be
required to sign and comply retroactively with all items of the agreed upon
contract , the wage increase announced August 22 was simply compliance
with Respondent 's contract obligation . Moreover , an order directing
Respondent not grant unilateral wage increases can have no practical ef-
fect during the 3 -year period of the contract Respondent will be required to
sign
1s Such option to the Union has not always been ordered by the Board In
some cases the Board merely ordered the employer to sign the agreed upon
contract See, for example , Roesch Transportation Company, Inc, 157
NLRB 441, Tanner Motor Livery, Ltd, 160 NLRB 1669
GENERAL ASBESTOS & RUBBER DIVISION
the Union to then bargain with it as the collective-
bargaining representative of the employees in-
volved.
Because of the nature of the unfair labor prac-
tices herein found, and in order to make effective
the interdependent guarantees of Section 7 of the
Act, I shall recommend an order which will require
Respondent to refrain from in any manner
abridging any of the rights guaranteed employees
by Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, con-
clusions of law, and the entire record in the case,
and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is recom-
mended that the National Labor Relations Board
order General Asbestos & Rubber Division,
Raybestos-Manhattan, Inc., its officers, agents, suc-
cessors, and assigns, to:
1. Cease and desist from:
(a) Failing or refusing , upon request , to sign and
give effect retroactive to August 5, 1969, to the
agreement reached with Textile Workers Union of
America, AFL-CIO, on that date.
(b) Failing or refusing to recognize and bargain
with Textile Workers Union of America , AFL-CIO,
concerning issues which have arisen , or which may
arise during the term of the aforesaid agreement,
including , but not limited to , the processing of
grievances and the arbitration of disputes as pro-
vided in said contract.
(c) In any other manner interfering with,
restraining , or coercing employees in the exercise
of their rights to self-organization , to form , join, or
assist labor organizations, to bargain collectively
through representatives of their own choosing, and
to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection , or to refrain from any and all such ac-
tivities.
2. Take the following affirmative action found
necessary and designed to effectuate the policies of
the Act:
(a) Upon request sign and give effect retroactive
to August 5, 1969, to the agreement reached with
Textile Workers Union of America , AFL-CIO, on
that date.
19 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 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 waive d for all purposes In the event
that the Board 's Order is enforced by a Judgment of a United States Court
219
(b) Upon request bargain collectively with Tex-
tile Workers Union of America , AFL-CIO, con-
cerning any question which has arisen , or which
may arise during the term of the aforesaid agree-
ment , including the settlement of grievances and
disputes entitled to arbitration as therein provided.
(c) In the event the Germ of the aforesaid agree-
ment has expired before it is signed by Respondent,
then , and in that event , bargain with Textile Wor-
kers Union of America , AFL-CIO, as the collec-
tive-bargaining representative of its employees in a
unit composed of all production and maintenance
employees , including loom fixers employed at its
North Charleston , South Carolina , plant ; excluding
office clerical employees , professional employees,
quality control department employees, group
leaders , foremen , guards and supervisors as defined
in the Act, and if an agreement is reached embody
the same into a signed contract.
(d) Make whole all employees or former em-
ployees for any losses suffered by reason of its
failure to sign and comply with the aforesaid agree-
ment of August 5, 1969 , retroactive to that date, by
paying to each employee a sum of money equal to
the difference , if any, between his earnings under
the provisions of the aforesaid contract and the
amount he was in fact paid , as provided in the sec-
tion hereof entitled "The Remedy."
(e) Preserve and, upon request , make available
to the Board or its agents, for examination and
copying , all payroll records , social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(f) Post at its plant in North Charleston, South
Carolina, copies of the attached notice marked
"Appendix ."
copies
of said notice , on forms pro-
vided by the Regional Director for Region 11, after
being duly signed by an authorized representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced , or covered by any other material.
(g) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply
herewith?
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
40 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
220 DECISIONS OF NATIONAL
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which both sides had the oppor-
tunity to present their evidence, the National Labor
Relations Board has found that we, General
Asbestos & Rubber Division, Raybestos-Manhat-
tan, Inc ., violated the National Labor Relations
Act, and ordered us to post this notice. We there-
fore notify you that:
WE WILL upon request of the Textile Wor-
kers Union of America, AFL-CIO, sign and
give retroactive effect to the collective-bar-
gaining contract we reached with said Union
on August 5, 1969.
WE WILL upon request of said Union bargain
with it concerning any question that has arisen,
or which may arise during the 3-year term of
said contract, including the settlement of
grievances and disputes entitled to arbitration
as provided in said contract.
WE WILL make whole all employees or
former employees for the losses suffered, if
any, by reason of our failure to sign and
comply with the contract concluded on August
5, 1969, with interest.
WE WILL, in the event the 3-year term of the
contract concluded on August 5, 1969, has ex-
pired before we sign the same, bargain with the
Textile Workers Union of America, AFL-CIO,
as the representative of our employees in a unit
of all production and maintenance employees,
including loom fixers, employed at our North
LABOR RELATIONS BOARD
Charleston, South Carolina, plant; excluding
office clerical employees, professional em-
ployees, quality control department employees,
group leaders, foremen, guards and supervisors
as defined in the Act, and if an agreement is
reached reduce the same to a signed contract.
The law gives all employees these rights
To organize themselves
To form, join or help unions
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these
things.
WE WILL NOT do anything to interfere with
you in the exercise of these rights. All our em-
ployees are free to become or remain members
of Textile Workers Union of America,
AFL-CIO, or any other union , or not to
become or remain a member of any union.
GENERAL ASBESTOS &
RUBBER DIVISION,
RAYBESTOS-MANHATTAN,
INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board 's Office, 1624 Wachovia building , 301 North
Main Street, Winston-Salem, North Carolina
27101, Telephone 919-723-9211, Extension 360.