Shawn's Launch Service, Inc.

National Labor Relations Board - Board Decisions

May 12, 1982

261 N.L.R.B. 836 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shawn's Launch Service, Inc. and Seafarers Interna-
tional Union of North America, Atlantic, Gulf,
Lakes and Inland Waters District, AFL-CIO.
Case 5-CA-12427
May 12, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On September 11, 1981, Administrative Law
Judge Bernard Ries issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel and Charging Party filed briefs in response
to Respondent's exceptions.'
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Shawn's Launch Service, Inc., Newport News,
Virginia, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Substitute the following for paragraph l(b):
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
i Respondent has requested oral argument. This request is hereby
denied as the record, exceptions, and brief adequately present the issues
and the positions of the parties.
2 we have modified the Administrative Law Judge's recommended
Order to include the traditional narrow remedial order language
DECISION
STATEMENT OF THE CASE
BERNARD RIES, Administrative Law Judge: This
matter, heard in Newport News, Virginia, on April 14-
15, 1981, presents the question of whether Respondent,
in violation of Section 8(a)(5) of the Act, has refused
since on or about June 18, 1980, to execute in writing a
261 NLRB No. 124
collective-bargaining agreement containing terms and
conditions of employment which were assertedly agreed
to with the Charging Party at that time.
Briefs have been received from all parties, and I have
considered those briefs, together with the entire record
and my recollection of the witnesses, in reaching the fol-
lowing findings of fact,' conclusions of law,2 and recom-
mendations.
Respondent is engaged in the operation of ship-to-
shore launches in the Tidewater Virginia area. The Com-
pany is owned by 38 tugboat pilots who have selected 5
from their ranks to serve as "managing partners," the
functional equivalent of a board of directors. In a 1979
election, Respondent's 14 employees, who operate the
launches, selected the Union to represent them for pur-
poses of collective bargaining, and bargaining formally
got under way on February 5, 1980.
Representing the Union at the seven negotiating ses-
sions which took place (although none attended all the
meetings) were Steve Papuchis, a union official known as
a port agent; his subordinates, Richard Avery, Sr., and
David Jones; and, in early sessions, three of the unit em-
ployees. The chief spokesman for Respondent was Rich-
ard L. Counselman, one of the managing partners; also
present at various bargaining meetings, at one time or an-
other, were the rest of the managing partners.
The record leaves no doubt that, by April 22, the ne-
gotiators had resolved all differences between them. At
the meeting on that date, attended by four of the five
managing partners, the matters remaining in issue were
disposed of, the parties shook hands, and, in words ac-
ceptable to Counselman at the hearing, he "felt [he] had
an agreement." Union Representative Avery said that he
would prepare the contract and submit it to Counselman.
The agreement was to take effect on June 1.
Avery did so, getting the draft to Counselman some
10-12 days later. Counselman gave copies of the draft to
the other managing partners, and they thereafter held a
meeting on May 5 at which, having reviewed their notes,
they discussed the fidelity of the draft to the terms nego-
tiated. Counselman testified that they discovered 13
errors in the proposed contract. 3
Counselman notified Papuchis and Avery of the dis-
crepancies, and the three men met soon thereafter to dis-
cuss them. The union representatives agreed with Coun-
selman about each error discovered by the partners, and
Avery was instructed to prepare a corrected copy,
making the necessary emendations.4 Avery did so, bound
the documents with hard covers, had Papuchis affix his
signatures to the copies, and then sent several copies to
Counselman's office. Attached to these contracts (which
Certain errors in the transcript are hereby noted and corrected
2 The record establishes, and I find, that it is appropriate for the Board
to assert jurisdiction here, and that the Charging Pany is a labor organi-
zation within the meaning of the Act.
3 Avery testified to seven such inadvertences, and the documents in
evidence seem to support his account, although the point is not material.
4 Avery testified that one of the provisions which were added, a minor
item dealing with notice of vacations by employees, had not previously
been negotiated. Papuchis subsequently testified that Avery was simply
wrong on this score, and I infer from Counselman's silence at the hearing
about this matter that he agreed with Papuchis. I conclude that the pro-
vision was not a new matter.
836
SHAWN'S LAUNCH SERVICE, INC.
consisted of three basic documents-an agreement and
two appendixes-each with signature pages) was, for the
first time, an eight-page printed document entitled "Li-
censed Shipping Rules," which prescribes the rules appli-
cable to "[e]very tugboatman, bargeman and dredgeman
seeking employment through the hiring halls of' the Sea-
farers International Union. Respondent never thereafter
executed the agreement.
It is appropriate to consider at this point the first of
four issues raised by Respondent's brief to explain and
justify its failure to embody in writing terms and condi-
tions as to which, Respondent concedes, "the parties
reached some form of 'agreement' or understanding at
the meeting of April 22, 1980." The initial contention is
that there is no "final and legally binding agreement be-
tween the parties when, following such agreement, the
purported written representation thereof contains both
discrepancies and also provisions which were neither ne-
gotiated nor contemplated in their verbal agreement."
With regard to the discrepancies in the first draft of
the contract, there can be no question that they were
merely inadvertent errors in transcription by the Union
and in no wise indicated that the minds of the parties had
not met. While it is, of course, true that, as Respondent
argues, an employer is not obligated to execute a con-
tract which does not mirror the agreements reached, that
problem was obviated once the Union willingly made the
corrections sought and prepared a fresh copy.5 Reppel
Steel & Supply Co., Inc., 239 NLRB 358, 362 (1978).
As to the Union's inclusion of the "Licensed Shipping
Rules" in the final package, the record contains no testi-
mony as to why Avery decided to append this docu-
ment. The record is also devoid of any indication that
the rules were intended by the Union, or thought by Re-
spondent, to be part of the agreement. The rules set out
the Union's internal hiring hall procedures and do not
appear to impose any obligations on Respondent. Since
they pertain only to "tugboatmen, bargemen and dredge-
men," they are probably inapplicable to the launch oper-
ators involved here. Unlike the other parts of the agree-
ment, the rules have no signature page, and they are not
incorporated by reference or otherwise alluded to in the
three negotiated parts. It seems obvious that the inclu-
sion of the rules in the binder were not intended to sub-
ject Respondent to any obligations not theretofore as-
sumed by it; that if Respondent's agents had even consid-
ered their effect, they would have known as much6; and
that the rules were a simple superfluity, of no conse-
quence here.
After Avery submitted the corrected copies to Re-
spondent, presumably about the middle of May, Counsel-
man let them sit in his office because, he testified, his
fellow managing partners were busy. The precise se-
quence of events thereafter is not clear on this record; it
is evident, however, that it soon became apparent to
Counselman that some of the employees were displeased
with the agreement and desired a chance to vote on it,
5 It is equally true that an employer may not lawfully seize upon some
inadvertence in a union-prepared contract and adamantly reject the
whole bargaining process because of the existence of that error.
s The record shows that most of the managing partners never even
looked at the final document.
and that Counselman had discussions with Papuchis on
the subject of that unhappiness. Some background seems
useful here.
Although, according to Papuchis, the Union routinely
submits 90 percent of its negotiated contracts to the bar-
gaining unit employees for ratification, the subject of
ratification was never discussed with Respondent at the
bargaining table.7 The only time that the issue surfaced
between Respondent and the Union was, according to
Counselman, at the February 5 meeting, after a caucus,
when Avery returned to the table and handed to Coun-
selman a slip of paper which set out five proposed con-
tract clauses, one of them reading:
Ratification:
This Agreement Will Not Be Binding And Will
Be Of No Effect Until Ratified, By The Majority
Of The Employees In The Bargaining Unit After
Ten Days Written Notice To All Employees Of
A Ratification Vote.
Avery testified that he did not give the slip to Coun-
selman and had never seen it until 2 days before the
hearing. Avery was an impressive witness, and I think it
quite possible that Counselman (and also managing part-
ner Frederick W. Hope, Jr.) erred in naming Avery as its
source; the Union had already submitted a comprehen-
sive set of proposals to Respondent, more elaborately
covering, or deliberately failing to cover, the subject
area of the other four items on the slip, and I do not
think it likely that Avery would have handed Counsel-
man a slip of paper with additional, duplicative, or con-
trary proposals. More probably, one of the employees on
the negotiating committee did so.8
In any event, the parties never discussed the slip of
paper, and, at the hearing, Counselman characterized the
ratification provision shown on it as "insignificant,"
"simply a matter between the Union and the men and
had nothing to do with the company." Thereafter,
during the course of negotiations, the topic of ratification
was never touched on.9
The evidence further discloses little or no discussion,
before and during the negotiations, between the Union
and the employees on the subject of ratification. Employ-
ee Kenneth Cooper, who was charged prior to the nego-
tiations with speaking to the other employees about de-
sired contract proposals, and who talked to about seven
of them for this purpose, said that the issue of ratification
7 Prior to the negotiations, Counselman had asked Avery during a
phone conversation whether the contract would be ratified, and Avery
had said, as he conceded, "Sometimes we do and sometimes we don't."
8 That there was some confusion in Respondent's testimony on this
subject is indicated by the statement of Respondent's operations manager,
Ronald Warren, contrary to Counselman's, that the piece of paper was
handed out to everybody in the room.
9 The only witness to testify to the contrary was Managing Partner
I.orenzo Amory, who recalled a meeting at which he had stated that the
employees would never ratify a certain provision and was told by a
union representative. "Don't you worry about getting the contract rati-
fied, we'll do that. If we can reach this agreement, you let us worry
about getting the contract ratified." Amory appeared to be telling the
truth about this passing exchange, and I accept his testimony on the
point. I do not, however, find it to be significant.
837
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not been raised by them. The only testimony indicat-
ing that the subject had been broached, prior to April 22,
between the employees and the Union, came from em-
ployee David Harrington, a member of the Union's ne-
gotiating committee. Harrington testified that, in the
course of a bargaining session, either "Danny or
Kenny' ° asked some unknown union representatives to
give the employees a right to ratify, and the union agents
agreed to the request. While Harrington's testimony on
the subject was extremely hazy and somewhat inconsist-
ent, I had the impression that he was speaking the truth
in saying that the subject was discussed with a Union
representative or representatives (aside from Avery and
Papuchis, a union agent identified as David (Scrapiron)
Jones attended some of the negotiations). I do not be-
lieve, however, that a promise made by a union agent to
a unit employee, in the presence of perhaps one or two
other employees, can be thought to give rise to a legal
obligation on the part of the Union to submit a proposed
contract to ratificafion. II
It was after the parties had reached agreement and the
Union had furnished its corrected contract copies to Re-
spondent that the issue of ratification seemed to become
somewhat prominent. Papuchis testified that, around
May 31, three or four employees came to his office,
showed him (for the first time) the piece of paper which
had been handed to Counselman on February 5, and
asked for the right to ratify.' 2 Hearing that the employ-
ees wanted to see him again, Papuchis met with "a few
of the men" on June 4. At that time, they "reaffirmed
that they wanted that ratification clause in the contract,"
and also stated that they wanted "more money the
second and third year." According to Avery and Papu-
chis, the employees were told that "we already had an
agreement with the company, but we would go and try
and see if the company would give them any more
money."
Thereafter, Papuchis and Avery met with Counsel-
man. The date, or dates, are uncertain: Counselman testi-
fied that they met sometime before June 10 and again on
June 21; the union representatives referred to only a June
18 meeting. Counselman testified that, at the meeting
prior to June 10, Papuchis said that he "needed more
money" for the employees; Counselman "assume[d]"
from this statement that Papuchis was no longer author-
ized to sign the agreement, because he believed that em-
ployee ratification was necessary, and he thereafter met
with the other managing partners on June 10, as he had
promised Papuchis, assertedly to see if they would "open
up to the new contract with new demands [sic]."
Counselman and Managing Partner Hope gave some
interesting testimony as to why the managing partners,
on June 10, refused to consider making a more generous
offer. Counselman, who apparently knew of the May 31
io "Kenny" would be Kenneth Cooper; "Danny" is employee repre-
sentative Larry Willard, referred to also at the hearing as "Danny Wil-
lard."
iI The Union's constitution does not require employee ratification of
contracts.
12 Papuchis, presumably angry because of the fact that, on May 31,
Respondent had not yet signed the agreement which was scheduled to
take effect the following day, tore up the paper and said that he was "not
opening up negotiations."
and June 4 meetings between Papuchis and the employ-
ees, and who conceded that he had received a call from
an employee around the first of June asking that Re-
spondent hold up on the agreement because the employ-
ees "had either obtained an attorney or were going to
get an attorney to file for decertification," expressed the
following attitude of the managing partners on June 10:
"All right, at this point if you were a managing partner,
I don't believe you would bend over backwards at that
time. After two years, it appears that maybe, maybe the
union isn't as strong as they thought." 13 Hope gave a
different explanation of the decision of the partners not
to offer more money: "We felt that we had reached a
bargaining agreement which we had not gone over the
contract and that there was no reason for us to ....
What was in that contract was what we had agreed upon
verbally, then we felt that that was what was agreed
upon. Thus, despite Hope's testimony that the partners
were told by Counselman that "the employees refused to
accept the contract," he also said that the partners in-
tended to hold the Union to the contract and not engage
in any further bargaining; this seems a clear indication
that the partners did not perceive ratification as legally
significant, since a failure to ratify, where ratification is
required, should logically lead to renewed bargaining,
with the tentatively "agreed upon" contract becoming
void.
At the "June 18" meeting, according to Avery, he and
Papuchis met with Counselman at the union hall and
asked for additional wages and perhaps other financial
improvements; Counselman said that the board would
not be agreeable to changing the terms. Papuchis' ver-
sion of this meeting was that, when Counselman came to
the hall on June 18, Counselman began the conversation
by saying that he could not sign the contract until it was
ratified by the employees; although Papuchis was at first
sure that he himself did not also mention that Respond-
ent consider sweetening the contract, he was prompted
to say, after being referred to Avery's testimony, that he
believed he said to Counselman that the men would like
improved benefits, but that he had told them that he had
"already made an agreement with the Company and I'm
going to live up to it. 4 Papuchis also testified that, on
the day in May when they had met with Counselman to
correct the first draft of the contract the latter had asked
if Papuchis were authorized to sign the contract or if it
had to be ratified, and Papuchis had said that he could
sign; Counselman testified that this exchange had oc-
curred at their first meeting in June, and that he had ex-
pressed "surprise" upon receipt of this information.
Respondent's second contention, based on its theory of
this or these encounters is that, once the Union had been
informed by the employees of their unhappiness with the
contract and desire for greater benefits, "representatives
of the Union effectively withdrew this [original] offer
from any further consideration by attempting-after their
L" Counselman subsequently amended his reference to "one year"; the
election had been held on March 23, 1979.
14 Papuchis also appeared to testify that he had earlier, between the
two employee meetings, called Counselman to see if Respondent could
fatten the agreement.
838
SHAWN'S LAUNCH SERVICE, INC.
meeting with the employees-to renegotiate the terms
thereof . . . before the employer could be reasonably ex-
pected to act." Respondent cites "fundamental contract
law that the making of such an offer revokes a former
offer when the former offer has not yet been accepted."
That tenet of contract law, however, has been deemed
by the Board inapplicable to collective-bargaining situa-
tions. In Pepsi-Cola Bottling Company of Mason City,
Iowa, 251 NLRB 187 (1980), the Board held that, even
where the company's proposal had been rejected by the
union membership and the union thereafter made a coun-
terproposal, the company's original offer remained capa-
ble of acceptance by the union "unless expressly with-
drawn prior to such acceptance, or defeased by an event
upon which the offer was expressly made contingent at a
time prior to acceptance." 15 Thus, even if it were true
that the negotiated terms constituted only an "offer," and
that the Union, by inquiring whether Respondent could
make an additional undefined amount of money availa-
ble, was making a "counterproposal," the counterpropos-
al would not amount to a rejection of the original
"offer," which was never withdrawn.
It should be pointed out, in any event, that the negoti-
ated terms were not simply an "offer" by the Union as of
early June. Respondent's brief contends that even as of
the time that the Union submitted the corrected contract
to Respondent in mid-May, "[m]anagement had a right
to read, review and sign the contract," and seems to fur-
ther argue that, until the partners had done so, no agree-
ment had been consummated. In N.L.R.B. v. Donkin's
Inn, Inc., 532 F.2d 138, 141 (9th Cir. 1976), the court
said, "In the context of labor disputes, and particularly
Section 8(a)(5) violations, however, the technical ques-
tion of whether a contract was accepted in the tradition-
al sense is perhaps less vital than it otherwise would be.
Rather, a more crucial inquiry is whether the two sides
have reached an 'agreement' even though that 'agree-
ment' might fall short of the technical requirements of an
accepted contract."
The Board holds that "when an agent is appointed to
negotiate a collective-bargaining agreement, that agent is
deemed to have apparent authority to bind his principal
in the absence of clear notice to the contrary." University
of Bridgeport, 229 NLRB 1074 (1977). While Counselman
testified that there were no "ground rules" leading the
Union to believe that the managing partners had to ap-
prove the agreement, and hence no formal "clear
notice,""' Avery testified to his opinion that the "stand-
ard procedure" was that the managing directors had to
approve the negotiated terms. But the fact is that no less
than three and as many as all five of the managing part-
"s It has been said that there is a difference between "good technical
contract law" and "good collective bargaining law." Lozano Enterprises
v. NL.R.B, 327 F.2d 814, 818 (9th Cir. 1964). See also Transportation-
Communication Employees Union v. Union Pacific Railroad Co., 385 U S.
157, 160-161 (1966). ("A collective bargaining agreement is not an ordi-
nary contract for the purchase of goods and services, nor is it governed
by the same old common-law concepts which control such private con-
tracts.")
16 Counselman was subsequently contradicted by Respondent's witness
Hope, who said that the Union was told at a session that anything agreed
upon at the table had to "go back to all the managing partners to be re-
viewed in order for it to be sold."
ners attended the last five bargaining sessions, with four
of them at the final meeting on April 22. Hope also testi-
fied that every subject of negotiation had been decided
unanimously by all five partners. It is quite apparent that,
on April 22, "agreement" had been reached, as the Don-
kin's Inn court uses that term, and that the unquestioned
right of Respondent to examine the corrected contract
for additional errors did not render that agreement con-
ditional. ' 7
It seems plain that, at some point in June, Papuchis did
tell Counselman that the employees desired more money,
and asked that he inquire of the other partners about this
possibility. t As indicated, Respondent characterizes this
request as a counteroffer which effectively revoked the
Union's prior submission. Even if such a legal construc-
tion were not in conflict with Board law, as explained
above, the factual inference would, in these circum-
stances, be inappropriate. I am convinced that the Union
made clear to Counselman that, in the event no further
benefits could be obtained, the Union was insisting that
the negotiated agreement be executed.'9
Thus, Counselman conceded that at the "June 4"
meeting at which the Union had asked about the possibil-
ity of more money, he had asked Avery if he "could get
this ratified" and Avery replied that "it did not have to
be ratified." The obvious context is that Counselman was
asking what would happen if Respondent did not pro-
duce extra benefits, i.e., whether "this" present contract
could be nonetheless sold to the employees, and Avery
was saying that if it came to that, the union representa-
tives could themselves (as Papuchis already had) sign the
agreement. 20
The point was reaffirmed subsequently on June 21,
when, as Counselman conceded, Papuchis threatened
that if "the contract was not signed by the year end be-
cause the men had already applied for decertification,
that he would file an unfair labor practice and could
delay the contract some two years."2 ' On further exami-
nation, Counselman said he "[thought] that he wanted
me to sign the contract with additional money and with
sick time," even though the Union had made no further
specific demands. It seems most likely that Papuchis'
11 I do not credit the testimony of Hope that Respondent's policy is
that decisions by the managers had to be "unanimous, all five," a policy
later amended by him to apply only to decisions of "any importance."
Counselman contrarily testified that the managers voted on a majority-
rule basis, and I do not see how a business could operate otherwise In
any event, all five managing partners clearly concurred in the terms of
the agreement when they met on May 5 and pooled the errors they had
found in the first draft.
8is Although the point seems immaterial, I do think that, as Papuchis
testified, Counselman told him in June that Respondent could not accept
the contract unless it was ratified.
19 Avery, who referred to the meeting with Counselman as a "negotia-
tions" meeting, did not testify that anything was said about insisting that
Respondent sign the contract. He said, however, that he was so "disgust-
ed" with the whole affair that he did not pay much attention at the meet-
ing, and Papuchis "did the talking."
2" Papuchis testified that he told Counselman at their June meeting
that if he (Counselman) signed the contract, it "would be in effect."
21 Papuchis testified that at their June meeting, after Counselman said
that he would not sign without ratification and Papuchis replied that
"We should have had a contract signed and we agreed on it," Counsel-
man asked if Papuchis were going to file a charge, and Papuchis said that
he intended to.
839
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threat to file a charge related, as Counselman quite prob-
ably understood, to Respondent's failure to sign the exist-
ing agreement. Such a notion, if ambiguous before then,
should have been clarified in early July when Papuchis
threatened Counselman with a strike vote and said that
he would "take the contract if he'd sign it right now
before the meeting," and again on July 23 when the
Union filed the charge underlying the present proceed-
ing.
I conclude, therefore, as to the issues thus far dis-
cussed, that, by asking Respondent for additional benefits
in June, the Union did not unilaterally disassociate itself
from the contract already binding upon Respondent as of
April 22, and in fact reaffirmed to Respondent that it
continued to desire execution of the contract if no fur-
ther benefits were forthcoming. 2 2
Although I have referred above to the agreement
being "binding upon the Respondent as of April 22," Re-
spondent takes issue, in its final contention, with that as-
sertion, propounding an argument based on the failure of
the Union to have the agreement successfully ratified by
the employees. That argument is that "Papuchis' authori-
ty was limited and that in fact he had signed a contract
which he had no authority to sign." Respondent other-
wise makes it clear that it does not claim that the Union
had reached a separate agreement with Respondent that
the contract should be submitted to the employees for
approval, a claim neither easily proved, C & W Lektra
Bat Co., 209 NLRB 1038 (1974), enfd. 513 F.2d 200 (6th
Cir. 1975), nor established by the evidence here. The as-
sertion is simply that "Papuchis' authority was limited"
by the requirement of ratification, a limitation "known"
to Respondent, and that Respondent was therefore justi-
fied in refusing to sign.
As earlier stated, however, the record does not contain
evidence of any obligation on the part of the Union,
much less any obligation known to Respondent, which
might support the thesis. The most substantial evidence
on this point is employee Harrington's testimony that un-
specified union representatives assured him and perhaps
one or two other employees at a bargaining meeting that
the employees would have an opportunity to vote on the
agreement. Whether or not this assurance gave rise to
some sort of moral obligation, it certainly did not mean
that the Union, operating under organic law which does
not mandate ratification, was thereafter legally con-
strained to afford the employees an opportunity to vote
on the contract. In the absence of some explicit limita-
tion on the bargaining authority of a union, it is, "by
virtue of its certification as exclusive bargaining agent
. . . empowered by its members to make agreements on
behalf of the employees it represent[s] without securing
the approval of those employees." Houchens Market of
21 I find the cases cited by Respondent on this issue to be inapposite or
distinguishable. I note, moreover, that, even if one were to conclude that
no binding contract was reached on April 22, it could be argued, under
the theory of Pepsi-Cola Bottling Company of Mason City, Iowa, supra, that
Respondent's final agreement to terms on April 22 remained outstanding
as an "offer" and was effectively accepted at the very least on July 23,
when the Union's charge was filed. Clearly, according to Partner Hope,
the terms had not been withdrawn as of early June or thereafter-"what
was in that contract was what we had agreed upon verbally," and the
partners saw "no reason for us" to change it.
Elizabethtown, Inc. v. N.L.R.B., 375 F.2d 208, 212 (5th
Cir. 1967).
The formal analysis thus far set out may obscure the
basic dynamics which the testimony makes clear. Coun-
selman, et at., and perhaps some or all of the employees,
very likely assumed, without being told, and without
considering the matter significant, that employee ratifica-
tion would play a part in the process, although most of
them cannot blame the Union for that assumption. The
partners would have been perfectly (well, reasonably)
satisfied, as of early May, to sign on the dotted line,
whether or not the contract was submitted to ratifica-
tion-until they heard that the employees were dis-
pleased with the agreement and that a decertification
movement had begun. At that point, the partners saw
themselves ensconced in the catbird seat. They could
insist on the negotiated terms ("What was in the contract
was what we had agreed upon verbally, then we felt that
that was what was agreed upon"-Hood) and not "bend
over backwards" ("[I]t appears that maybe, maybe the
union isn't as strong as they thought"-Counselman) and
thus fuel the perceived dissatisfaction while awaiting the
results of the decertification petition.23
I believed Counselman's stated concern about the "un-
happiness" of Respondent's employees, but I also think
that the managing partners were playing upon that un-
happiness in order to foster the decertification. 24 As the
partners must have realized, that unhappiness could only
be allayed in the future if, after decertification, Respond-
ent then conferred upon the employees the benefits they
now thought they were entitled to. But rather than make
those benefits presently available and thus achieve instant
happiness, Respondent sat tight, hoping that the decerti-
fication petition would work in Respondent's favor. The
legal arguments came later.
On the foregoing considerations, I conclude that Re-
spondent violated Section 8(a)(5) and (I) on and after
May 15, 1980, by refusing to execute the negotiated
agreement."2 5
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
23 The Union had been certified on July 23. 1979, but Counselman tes-
tified to an understanding on his part that the certification year expired in
March 1980, I year after the election, when the "right for people to de-
certify" arose.
24 I suspect that Counselman himself may be excepted from this con-
clusion. My impression was that he personally would have been willing
to sign the agreement, or even a better one, but could not convince his
partners to do so.
a5 The complaint alleges that the parties reached a "final and binding"
agreement "on or about June 18, 1980," and that Respondent has violated
the Act since that time by refusing to execute the contract. The date indi-
cated is inconsistent with the facts, the law, and, as well, with the Gener-
al Counsel's brief, which argues, inter alia, that "the parties reached com-
plete agreement on April 22." It seems appropriate to date the commis-
sion of the unfair labor practice alleged-could reasonably have been ex-
pected to execute it I calculate that date as being on or about May 15.
840
SHAWN'S LAUNCH SERVICE, INC
3. By on or about May 15, 1980, refusing to execute
and honor a written agreement embodying terms and
conditions of employment agreed to with the Union on
April 22, 1980, Respondent violated Section 8(a)(5) and
(1) of the Act.
4. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(l) and (5) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent, on or about May 15,
1980, repudiated and, since on or about that date, has re-
fused to execute the contract which was agreed upon by
Respondent and the Union on April 22, 1980, I shall rec-
ommend that Respondent be required to execute that
agreement forthwith and to give effect to all terms and
provisions of that agreement retroactively to June 1,
1980.26 The loss of earnings and benefits, if any, under
the Order recommended herein shall be computed in the
manner set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), plus interest as set forth in Florida Steel Cor-
poration, 231 NLRB 651 (1977).27
Finally, I shall recommend that, upon request, Re-
spondent bargain with the Union as the exclusive repre-
sentative of the employees in the appropriate unit, and
that Respondent be required to post the customary no-
tices.
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 2 s
The Respondent, Shawn's Launch Service, Inc., Nor-
folk, Virginia, shall:
1. Cease and desist from:
(a) Failing to bargain in good faith by refusing to ex-
ecute and honor collective-bargaining agreements con-
cluded by it with Seafarers International Union of North
America, Atlantic, Gulf, Lakes and Inland Waters Dis-
trict, AFL-CIO (the Union), or any other labor organi-
zation.
(b) In any like manner coercing, restraining, or inter-
fering with the rights accorded employees by Section 7
of the Act.
2. Take the following action which is deemed neces-
sary to effectuate the policies of the Act:
(a) Forthwith execute the collective-bargaining agree-
ment consummated by Respondent and the Union on
April 22, 1980, with respect to the following bargaining
unit:
26 The contract was to take effect on this date
27 See, generally, Isis Plumbing d Hearing Co., 138 NLRB 716 (1962).
2" 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.
All launch operators employed by Respondent at
its Newport News, Hampton Roads, and Norfolk,
Virginia, locations but excluding office clerical em-
ployees, salesmen, professional employees, guards,
and supervisors as defined in the Act.
(b) Upon execution of the aforesaid agreement, give
retroactive effect to the provisions thereof and, in the
manner set forth in the section herein entitled "The
Remedy," make whole the employees, with interest, for
any loss they may have suffered by reason of Respond-
ent's failure to sign and effectuate all terms of the agree-
ment.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay and
other benefits due under the terms of this recommended
Order.
(d) Post at its facilities in Newport News, Hampton
Roads, and Norfolk, Virginia, copies of the attached
notice marked "Appendix. " 29 Copies of said notice, on
forms obtained by it for 60 consecutive days thereafter.
in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that said no-
tices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 5. in writ-
ing, within 20 days from the date of this Order, wvhat
steps have been taken to comply herewith.
22 iin this event that this Order is enforced by a Judgment of a United
Slates Court of Appeals, the words in the notice reading "i'osled by
Order of the National Iahbor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National l.abor Relations Board"
APPENDIX
NOlICE To EMPIOYEES
POSiTED BY ORDER OF THi
NATIONAI LABOR REI.ATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides were represented by
their attorneys and presented evidence, it has been found
that we have violated the National Labor Relations Act.
To correct and remedy the violation, we have been di-
rected to take certain actions and to post this notice.
WE Will.i NOT refuse to embody in a signed
agreement any understanding reached with the
Union or any other exclusive representative of em-
ployees in an appropriate unit with respect to rates
of pay, wages, hours, and other terms and condi-
tions of employment.
WE Wllil. NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by the
National Labor Relations Act.
841
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL forthwith sign the collective-bargaining
agreement with Seafarers International Union of
North America, Atlantic, Gulf, Lakes and Inland
Waters District, AFL-CIO (the Union), which was
agreed upon on April 22, 1980, and which covers
our employees in the following appropriate unit:
All launch operators at our Newport News,
Hampton Roads, and Norfolk, Virginia, locations,
but excluding office clerical employees, salesmen,
professional employees, guards, and supervisors
as defined in the Act.
WE WILL give retroactive effect to the terms and
provisions of the collective-bargaining agreement
referred to above, as required by the Board.
WE WILt make whole, with interest, our employ-
ees in the bargaining unit described above for any
loss of wages and other benefits they may have suf-
fered by reason of our failure to sign and effectuate
all terms of the above agreement.
SHAWN'S LAUNCH SERVICE, INC.
842