Amer-Cal Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1985

274 N.L.R.B. 1046 (N.L.R.B. 1985)

1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amer-Cal Industries , Inc. and Chauffeurs, Teamsters
and Helpers Union, Local No. 150, Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Cases 20-
CA-17663 and 20-CA-17830
20 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 5 December 1983 Administrative Law Judge
Jerrold H. Shapiro issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief limited to the judge 's decision regard-
ing Case 20-CA- 17830 , and the Respondent filed
an answering brief.'
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions2 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaints are dis-
missed.
i The Respondent has petitioned the Board to amend the "Rule on
Maximum Rates for Attorney's Fees" (Sec 102 145, National Labor Re-
lations Board Rules and Regulations) to be awarded under the Equal
Access to Justice Act We do not pass on that petition as the matter
before us does not implicate the Equal Access to Justice Act
2 In adopting the judge's decision finding the Respondent did not un-
lawfully refuse to sign an agreed-on contract, Chairman Dotson and
Member Dennis note that they did not participate in Dresser Industries,
264 NLRB 1088 (1982), and express no view here on whether that case
was correctly decided
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge.
This proceeding in which a hearing was held on October
17, 1983, is based on unfair labor practice charges filed in
Cases 20-CA-17663 and 20-CA-17830 by Teamsters
Local No. 150 (the Union) and complaints issued in those
cases by the General Counsel of the National Labor Re-
lations Board alleging that Amer-Cal Industries, Inc
(Respondent) was engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act (the Act).' The complaint in
Case 20-CA-17663 alleges in substance that Respondent
i The charge in Case 20-CA-17663 was filed January 24, 1983, and
amended March 25, 1983 The charge in Case 20-CA-17830 was filed
March 25, 1983, and amended May 16, 1983 The complaints in these
cases issued on March 28 and June 30, 1983, respectively, and an amend-
ed complaint consolidated for hearing by an order of the National Labor
Relations Board's Regional Director issued June 30, 1983
violated Section 8(a)(1) of the Act by soliciting the filing
of a decertification petition in Case 20-RD-1761, by so-
liciting the showing of interest petition which accompa-
nied that petition, and by attempting to coerce an em-
ployee to retract the testimony he had given the Nation-
al Labor Relations Board in support of the charges
herein. The complaint in Case 20-CA-17830 alleges in
substance that Respondent violated Section 8(a)(5) and
(1) of the Act by refusing the Union's request to execute
an agreed-upon collective-bargaining agreement covering
a unit of employees represented by the Union. Respond-
ent filed answers to the complaints denying the commis-
sion of the alleged unfair labor practices.2
On the entire record, from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs, I make the following
FINDINGS OF FACT
1. JURISDICrION
Respondent is a California corporation with its office
and place of business in Sacramento, California, where it
is engaged in the rental of portable toilets and construc-
tion offices to commercial customers. Respondent's prin-
cipal defense to the allegation that it violated Section
8(a)(5) and (1) of the Act by refusing to execute an
agreed-upon collective-bargaining contract is that no
agreement was reached on one of the terms of the con-
tract, namely, Respondent's proposal that the signing of
the contract was contingent upon the Union retaining its
status as the employees' collective-bargaining representa-
tive in the decertification election proceeding pending
before the Board in Case 20-RD-1761.
In the decertification proceeding before the Board in
Case 20-RD-1761, Respondent in October 1982 entered
into a Stipulation for Certification Upon Consent Elec-
tion Agreement, approved by the Board's Regional Di-
rector, whereby Respondent consented to the Regional
Director conducting an election to determine whether
Respondent's employees desired to be represented by the
Union. In this election agreement Respondent stipulated
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and also stip-
ulated that "during the past year it received revenues in
excess of $50,000 from customers who meet the direct
jurisdictional standards of the National Labor Relations
Board." Based on these stipulations, the Board assumed
jurisdiction over the decertification proceeding in Case
20-RD-1761 and processed that petition which Respond-
ent is relying on as a defense to its alleged improper con-
duct in this proceeding
The General Counsel contends, and I agree, that Re-
spondent's aforesaid stipulations and admissions in the
closely related decertification proceeding in Case 20-
RD-1761 constitute a prima facie showing that during
the time material to this consolidated proceeding Re-
spondent was an employer engaged in commerce within
the meaning of the Act and met one of the Board's appli-
2 Respondent in its answers admits that the Union is a labor organiza-
tion within the meaning of Sec 2(5) of the Act
274 NLRB No. 148
AMER-CAL INDUSTRIES
cable discretionary jurisdictional standards. Triton Con-
struction Co., 191 NLRB 376, 377 (1971), Perko's Enter-
prises, 251 NLRB 522 (1980) See also Empire Dental Co.,
211 NLRB 860 (1974). For, "a state of affairs once
shown to exist is presumed to continue to exist until the
contrary is shown." NLRB v. National Motor Bearing
Co., 105 F 2d 652, 660 (9th Cir. 1939). Here, Respondent,
"although contesting jurisdiction herein, neither asserted
nor offered evidence to show that its operations have
substantially changed since the earlier case . ." Bordo
Products Co., 117 NLRB 313, 314 (1957). See also Greene
County Farm Co-Op Assn. v. NLRB, 317 F.2d 335, 336
(D.C. Cir. 1963).
Based on the foregoing, I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and meets one of the
Board's applicable discretionary jurisdictional standards
and that it will effectuate the purposes of the Act for the
Board to assert jurisdiction over these cases.
iI THE ALLEGED UNFAIR LABOR PRACTICES
A The Evidence
1. Background
The Union represents a bargaining unit of Respond-
ent's maintenance and service employees, including sales-
persons These employees were covered by a collective-
bargaining contract between the Union and Respondent
effective from September 1, 1981, until August 31, 1982
The Union, during the negotiations for a new collective-
bargaining contract in March 1983, took the position that
the parties had reached a complete agreement on all the
terms of a new contract. Respondent refused to sign this
agreement because, as it stated to the Union, it took the
position that the contract reached by the parties was
contingent on the outcome of the decertification pro-
ceeding pending before the Board in Case 20-RD-1761.
The decertification petition in Case 20-RD-1761 was
filed September 3, 1982, by Respondent's employee
Thomas Grates. In October 1982 all the parties to that
proceeding entered into an election agreement, approved
by the Board's Regional Director, in which they agreed
that the Board's Regional Director would conduct a rep-
resentation election among Respondent's employees rep-
resented by the Union to determine whether or not they
still wanted to be represented by the Union. This elec-
tion was held November 10, 1982 The election results
were inconclusive because the challenged ballots were
determinative. The Regional Director commenced to in-
vestigate the challenges but never announced the results
of this investigation, if any, for on May 2, 1983, the Re-
gional Director issued an order dismissing the decertifi-
cation petition presumably because he had concluded
that the Union's unfair labor practice charge filed in
Case 20-CA-17663 alleging that Respondent was respon-
sible for the filing of the decertification petition was mer-
itorious. Respondent appealed the Regional Director's
dismissal of the decertification petition to the Board.
This appeal was still pending before the Board when the
instant unfair labor practice cases were tried.
1047
2. The alleged illegal solicitation of the
decertification and showing of interest petitions
The person in charge of Respondent's business oper-
ations is its vice president and general manager, William
Weske. Marvin Williams is employed by Respondent as a
dispatcher. During the time material herein Williams
shared an office with Tom Grates, the Company's only
salesperson. Williams and Grates, who were represented
by the Union, were dissatisfied with union representa-
tion. Grates did not feel that a salesperson should be rep-
resented by the Union and objected to having to join the
Union pursuant to the contractual union-security provi-
sion and publicly stated that he did not want to be repre-
sented by the Union. There is no evidence that Respond-
ent or Weske personally were opposed to Respondent's
employees being represented by the Union
Early in June 1982 Williams, who had expressed his
unhappiness with union representation, was advised by
his brother-in-law that there were ways of getting out of
the Union by filing a decertification petition. Williams
then went to Weske and asked what, if anything, Weske
knew about employees petitioning the Labor Board to
get out of the Union and whether Weske could find out
where Williams could get such a petition. Weske told
him that he had no knowledge about those matters but
would seek the advice of Respondent's lawyer After
speaking to Respondent's lawyer, Weske told Williams
that the lawyer had told him that there was a form
which requested the decertification of the Union that had
to be filled out and submitted to the Labor Board and
that the lawyer would send Weske a copy of that form.
Thereafter, Weske gave Williams a blank decertification
petition form which is used by the Board and which the
lawyer had sent to Weske Weske also gave Williams the
address of the Board's Regional Office where the com-
pleted petition should be sent. Weske handed Williams
the petition with the Board's address and told him that
this was the information that he had asked about. Wil-
liams took the blank decertification petition to the office
which he shared with Grates where he filled it out. Wil-
liams discussed the petition with Grates, who helped him
fill it out Also, on that day or the next, Williams solicit-
ed employees to sign the 30-percent showing-of-interest
petition which must accompany the decertification peti-
tion Grates was one of the employees who signed the
showing-of-interest petition. After xeroxing a copy of the
decertification petition on the Company's duplicating
machine for his file, Williams mailed the decertification
petition and the accompanying showing-of-interest peti-
tion to the Board's Regional Office where, on June 21,
1982, it was received and docketed as Case 20-RD-
1748 3
After filing the above-described decertification petition
in Case 20-RD-1748, Williams received several tele-
phone calls from employees indicating that they were
hostile towards him for filing this petition. As a result he
3 The description of the circumstances set forth in this paragraph sur-
rounding the filing of the decertification petition in Case 20-RD-1748 is
based on the uncontradicted testimony of Weske and Williams They im-
pressed me as sincere and reliable witnesses whose testimony, in signifi-
cant respects, was not inconsistent
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decided to withdraw the petition and, about July 10,
1982, mailed a withdrawal request to the Board's Re-
gional Office which, about July 20 1982, was approved
by the Board's Regional Director. Williams told Grates
and Weske that he had submitted the withdrawal re-
quest. When Weske asked why Williams had done this,
Williams explained that he had received telephone calls
from employees saying that they objected to the filing of
the petition and that this made him uncomfortable be-
cause, as a dispatcher, it was necessary for him to work
closely with these employees. Weske replied by telling
Williams that since it was Williams' petition that Wil-
liams could do whatever he wanted with it. When Wil-
liams told Grates that he had withdrawn the petition,
Grates indicated that he was unhappy about Williams'
action and told Williams that he, Grates, intended to file
another decertification petition to take the place of the
one Williams had withdrawn. Williams explained to
Grates that he had withdrawn the petition because he
was getting harassed by the employees and did not like
this because he had to work with them. Grates replied
by stating that as a salesperson he did not have to work
with the other employees and would file the petition.
Grates asked where Williams had gotten the petition.
Williams told him that he had picked it up from Weske.4
Following his above-described conversation with Wil-
liams, Grates went to Weske's office and asked whether
Weske knew that Williams had withdrawn his decertifi-
cation petition.5 When Weske answered in the affirma-
tive, Grates told him that he was unhappy about Wil-
liams' actions and that as one of the cosigners of the
showing-of-interest petition Grates intended to write the
Board a letter protesting Williams' withdrawal of the de-
certification petition. Grates also asked Weske to get him
a decertification petition so that he could send it to the
Board in place of Williams' petition. Weske replied by
stating that if Grates wanted to write the Board a letter
that it was Grates' business, but that Weske would get
him the decertification petition he requested
About July 16, 1982, Grates mailed a typed letter to
the Board's Regional Office which was dated July 16,
1982, and which reads as follows:
I recently co-signed a petition asking the NLRB to
hold an election, for the employees of Amer-Cal
Sanitation Company, to decide the status of Union
representation.
It has come to my attention that the petition be
withdrawn and the opportunity to cast a vote be
cancelled As a member of Teamsters Local #150
and co-signer of the petition filed by Mr. Williams,
I request that the election be held as scheduled.
4 The above description of Williams' conversation with Grates is based
on Williams' undemed testimony When he testifed Williams impressed
me as an honest witness Grates testified that when Williams told him
that he had withdrawn the decertification petition that Grates responded
by stating, " I guess I'll have to file it "
5 Grates, when he testified initially, was unable to recall whether this
conversation with Weske took place before or after Williams had told
Grates he had withdrawn the decertification petition Later as a rebuttal
witness Grates testified that his conversation with Weske occurred prior
to his conversation with Williams I have not credited this testimony be-
cause demeanorwise Grates did not impress me as a credible witness
Before mailing this letter Grates showed it to Weske
Also during this same period of time Respondent's
lawyer sent Weske a blank decertification form which
Weske gave to Grates, along with the address of the
Board's Regional Office where the petition should be
mailed.
Early in September 1983, Grates, after filling out and
signing the decertification petition he received from
Weske, mailed it to the Board's Regional Office which
docketed it on September 3, 1982, as Case 20-RD-1761.
On that day the Board's Regional Office informed
Grates, by letter, that in order for the Board to proceed
with his decertification petition Grates would have to
submit a showing-of-interest petition signed by at least 30
percent of the employees represented by the Union.
Thereafter, Grates submitted such a showing-of-interest
petition signed by Grates and two other employees rep-
resented by the Union Grates placed the showing-of-in-
terest petition on Williams' desk for his signature. Wil-
liams refused to sign the petition. He told Grates that he
did not want to "fool with it again "
The above-described circumstances surrounding the
filing of the decertification petition in Case 20-RD-1761
are based entirely on the testimony of Weske except for
the solicitation of Williams' signature on the showing-of-
interest petition which is based on Williams' testimony.
Grates' version of the circumstances surrounding the
filing of the decertification petition and the showing-of-
interest petition differs significantly and conflicts sharply
with Weske's and Williams' versions.
Grates testified that Weske, after informing him that
Williams had withdrawn his decertification petition or
intended to withdraw it, solicited Grates to send a letter
to the Board asking that the decertification election be
held as scheduled. According to Grates his letter to the
Board dated July 16, 1982, was prepared by Weske and
typed by Weske's secretary, Jeanne Osborn, after which
Grates simply signed the letter and returned it to Weske
who mailed it.
Grates further testified that Weske thereafter told him
that because Williams had already withdrawn his petition
that Grates' July 16, 1982 letter to the Board had not
done any good and asked Grates to file a new decertifi-
cation petition with the Board. When Grates agreed to
this suggestion, Grates testified, Wesked handed him a
decertification petition form which had already been
completed and that Grates simply signed the petition and
returned it to Weske who said he would mail it.
Grates also testified that upon receipt of the Board's
letter asking him to submit a 30-percent showing-of-inter-
est petition he gave the letter to Weske who had Osborn
type the showing-of-interest petition which Weske then
gave to Grates for his signature and that Grates, after
signing it, immediately returned it to Weske who stated
he would get two of the other employees to sign the
showing-of-interest petition before sending it to the
Board. Grates testified that this was the last time he saw
the showing-of-interest petition
I am of the opinion that the description of the circum-
stances surrounding the filing of the decertification and
showing-of-interest petitions in Case 20-RD-1761 pre-
AMER-CAL INDUSTRIES
sented by Weske and Williams must be credited and
Grates' version rejected. My reasons for this opinion fol-
lows. (1) The testimonial demeanor of Weske and Wil-
liams was good, whereas Grates' was poor; (2) the prob-
abilities of the situation do not favor Grates' testimony
because there is no evidence that Respondent, or Weske,
were opposed to union representation or were antagonis-
tic toward the Union so as to make it plausible that
Weske would solicit employees to sign a decertification
petition; (3) Weske did not solicit the filing of the decer-
tification and showing-of-interest petitions filed by Wil-
liams shortly before Grates' petitions, but as in the case
of Grates' petitions Weske's sole connection with Wil-
liams ' petitions was to furnish Williams with a blank de-
certification petition and the address to which the peti-
tion should be mailed; and (4) Grates presuambly is
biased against Respondent because in December 1982 he
was discharged by Respondent which contested his claim
for unemployment compensation insurance.6 It is for all
of these reasons that I have rejected Grates' and credited
Weske's and Williams' description of the events connect-
ed with the filing of the decertification petition in Case
20-RD-1761 and the accompanying showing-of-interest
petition.
In crediting Weske's testimony, I have considered the
testimony of Respondent's witness Jeanne Osborn,
Weske's secretary, that she did not have an independent
recollection of whether or not she typed Grates' July 16,
1982 letter to the Board or the decertification or the
showing-of-interest petitions in Case 20-RD-1761 or
whether Weske instructed her to type these documents.
Osborn did not give me the impression that she was
merely using a lack of memory as a means of avoiding
giving testimony which would be damaging to her em-
ployer. Rather, demeanorwise she impressed me as a sin-
cere witness who due to the passage of time and the fact
that she types so many different letters and documents
had no independent recollection about the disputed doc-
uments. Indeed the fact that Grates' July 16, 1982 letter
to the Board misspells the word "reference," in the cap-
tion, and that another misspelled word was corrected by
an erasure rather than by the use of correcting liquid,
and the corrected letter was not placed on the same level
as the rest of the lettering in the misspelled word, war-
rants an inference that Osborn, a trained and experienced
secretary, did not type this letter.
3. The alleged coercive solicitation of Grates to
repudiate his testimony
Grates, who was discharged by Respondent in Decem-
ber 1982, on January 25, 1983, submitted an affidavit to
the Board in support of the Union's charge in Case 20-
RD-17633 which charge alleges, among other things,
that Respondent violated the Act by soliciting Grates to
file a decertification petition.
On February 11, 1983, at the conclusion of a hearing
held by the State of California Unemployment Appeals
Board involving Grates' claim for unemployment insur-
6 I note that it was after his discharge that Grates went to the Union
and the Board with his allegation that Respondent had solicited him to
file the decertification petition
1049
ance, it is undisputed that Weske spoke briefly with
Grates in the hallway outside of the hearing room.
Grates testified that Weske asked, "What's all this crap
with the NLRB" and told Grates that, "with what you
are doing, you will have a hell of a time getting unem-
ployment from [Respondent] " Weske's account of this
conversation conflicts with Grates' account. Weske testi-
fied that he initiated the conversation by telling Grates
that he was sorry about the way things had turned out
and asked Grates, "What's with this business with your
affiliation on the NLRB"7 and that Grates replied that
he was unable to live on unemployment compensation
and had been in touch with the Union and that Grates
and the Union were going to work something out.
Weske testified that he responded to Grates' comments
by motioning for Respondent's lawyer, who had momen-
tarily left the area, to rejoin them and that when the
lawyer rejoined them that Weske asked if Grates would
mind repeating his remarks. Grates repeated that he
could not get along and live on unemployment insurance
benefits and that he had contacted the Union and that
something was going to be worked out.
Grates also testified that following their February 11,
1983 conversation that Weske phoned him at home on
three separate occasions. In late February 1983 or early
March 1983; in mid-March 1983; and the last time 2 or 3
days later. Grates testified that the first time Weske
phoned Weske told him that the testimony he had given
the NLRB was causing Respondent a lot of trouble and
that Grates was stupid to have given such testimony and
asked whether Grates would consider changing his testi-
mony. Grates testified that the second time Weske
phoned Weske told him that they were getting on
Weske's case at the Company because of the charge with
the NLRB and asked Grates if he would consider chang-
ing his testimony. And the third and last time Weske
phoned, Grates testified, Weske told him that he was
causing a lot of trouble and pointed out that the family
which owned Respondent was very influential and could
make it very difficult for Grates to get a job. Weske spe-
cifically denied having engaged in the above-described
conduct and further testified that he has never tele-
phoned Grates' home.
As I have already indicated, supra, Weske's testimonial
demeanor was that of a sincere witness who appeared to
be telling the truth, whereas Grates did not impress me
as being a credible or a reliable witness. It is for this
reason that I have credited Weske's and rejected Grates'
above-described testimony.
4. The alleged unlawful refusal to sign an agreed-
upon contract
The Union's contract with Respondent was scheduled
by its terms to expire August 31, 1982. In May 1982 the
Weske's reference to Grates' "affiliation" with the NLRB during this
conversation was perfectly reasonable because shortly before the conver-
sation the Union had filed its charge in Case 20-CA-17663 accusing Re-
spondent of soliciting Grates to file his decertification petition Also
Union Business Respresentative Manuian had indicated to Weske that the
Union knew that it was Respondent, rather than Grates, that was respon-
sible for the riling of the decertification petition
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union notified Respondent of its intent to terminate the
contract after its expiration and to negotiate the terms of
a new contract On June 25, 1982, the Union by letter
submitted to Respondent a contract proposal. The repre-
sentatives of Respondent and the Union held their first
negotiating session on September 16, 1982, the first date
on which they were all available to meet.
Respondent at the start of the September 16, 1982 bar-
gaining session presented the Union with a written con-
tract proposal which was in the form of a letter from Re-
spondent's negotiator, Attorney Dennis Murphy, to the
Union's negotiator, Business Agent Angela Manuian,
which in its final paragraph stated. "It is understood that
the contract proposal is contingent upon the Union re-
taining representation status in the decertification elec-
tion now pending."8 Nothing was said at this meeting
about this portion of Respondent's contract proposals.
The meeting ended with the parties failing to reach
agreement on all of the terms of the contract.
The parties' next bargaining session took place late in
September 1982 at which time they discussed the disput-
ed issues particularly the health, welfare, and pension
proposals. The meeting ended with the parties still
unable to reach agreement on all the terms of the con-
tract.
On October 21, 1982, at the next negotiating session,
the Union submitted a revised contract proposal. During
this meeting each party revised their respective propos-
als, but the meeting ended with the parties still apart on
certain items.
On October 26, 1982, Respondent's negotiator, Attor-
ney Murphy, wrote the Union's negotiator, Business
Agent Manuian, as follows:
On September 16, 1982, I wrote you setting forth
the position of [Respondent] with respect to modifi-
cation of the Collective Bargaining Agreement the
[Union] and [Respondent]. At our most recent nego-
tiation session of October 21, 1982, [Respondent]
agreed to make certain modifications with respect
to that offer. So that there is no misunderstanding
as to the position of [Respondent], I am writing this
letter to set forth the disposition
[Respondent] remains firm in the position it set
forth in its September 16, 1982 letter except as to
the modifications set forth here.
The letter then went on to detail these modifications,
which dealt with the subjects of employees' health, wel-
fare, and pension programs; a guaranteed 30-hour work-
week; a guarantee that bargaining unit work would be
performed by unit employees; and overtime. The letter
did not directly or by implication indicate that Respond-
ent was modifying its position taken in the September 16,
1982 letter that its contract proposal was contingent
8 As described in detail, supra, employee Grates filed a petition with
the Board in Case 20-RD-1761 on September 3, 1982, seeking to decerti-
fy the Union as the representative of Respondent 's employees On No-
vember 10, 1982 , an election was held in that case , however, the results
were inconclusive because of challenged ballots The decertification peti-
tion in Case 20-RD-1761, as described in detail supra, was still pending
before the Board on the day of the unfair labor practice hearing in these
cases
upon the outcome of the pending decertification pro-
ceeding.
On November 4, 1982, Union Business Agent Manuian
telegramed Attorney Murphy that, "[o]n November 3,
1982 the employees of [Respondent] represented by the
[Union] voted to accept the Employer's proposal dated
September 16, 1982 as amended October 26, 1982 includ-
ing the provision adding mother-in-law and father-in-law
to article 23 as previously agreed." Shortly thereafter
Manuian transmitted to Murphy copies of what the
Union felt was the agreed-upon contract and asked that
Respondent sign it.
On November 10, 1982, Attorney Murphy wrote Busi-
ness Agent Manuian as follows:
I have received and reviewed your draft of the
Collective Bargaining Agreement for execution by
Amer-Cal and Teamsters Local 150. In reviewing
the draft, I note that it accurately sets forth the
agreement of the parties in most respects. The ex-
ceptions are as follows:
1. The contract purports to be effective the first
day of September and continues through August 1,
1983. I believe that this is inappropriate as the com-
pany specifically stated, during negotiations, that
there would be no retroactivity. This retroactive
period would result in a cost to the company in that
the pension contributions would then be required
for the months of September and October. I believe
that a November 1, 1982 contract date would be ap-
propriate which should continue through October
31, 1983; and
2. By my letter of September 16, 1982, I pointed
out that the term of the agreement would be contin-
gent upon continued representation of the employ-
ees by the Union. This question will be resolved by
the Decertification Election which is scheduled for
November 10, 1982. Therefore, I would suggest
that we either refrain from executing the contract
until after the results of that election or, in the alter-
native, place in the contract, a provision recogniz-
ing the fact that the term is contingent upon the
Union's success in the Decertification Election.
If you have any questions regarding these com-
ments, please do not hesitate to contact me.
The next communication between the parties took
place on March 25, 1983, when Manuian wrote Murphy
as follows:
Enclosed you will find seven (7) copies of the
current contract between Amer-Cal Industries and
Teamsters Local Union No. 150 with the changes
that are consistent with our agreement. They are as
follows: Effective on the 1st day of November,
1982, and shall continue until October 31, 1983,
with no retroactivity. The reference to health and
welfare benefits prior to November 1, 1982, in Arti-
cle XVI, has been deleted.
Please secure signature on behalf of the Employ-
er and return six (6) copies to this office at your
earliest convenience. Upon receipt, same will be ex-
AMER-CAL INDUSTRIES
ecuted on behalf of the Union and three (3) fully ex-
ecuted copies will be returned to your office for the
Employer 's files.
On April 13, 1983, in response to Manuian 's March 25,
1983 letter , Murphy wrote Manuian as follows:
Thank you for your letter of March 25, 1983 en-
closing seven copies of the contract negotiated be-
tween Teamsters Local 150 and Amer -Cal Indus-
tries, Inc. As you know , the company 's offers with
respect to collective bargaining have been contin-
gent upon Local 150 retaining representation status
in the decertification election . This position was ac-
cepted by Local 150 by its telegram of November 4,
1982 As that contingency has yet to occur, the
agreements have yet to become effective . If Team-
sters Local 150 retains representation status after
the final determination of the results of the decertifi-
cation election, Amer-Cal will then sign the Collec-
tive Bargaining Agreement and give it retroactive
effect back to November 1, 1982 9
Lastly, there is no evidence of the Union ever object-
ing to Respondent 's proposal that the execution of a con-
tract was contingent upon the outcome of the pending
decertification proceeding . Indeed , there is no evidence
that the Union ever mentioned this proposal during the
negotiating sessions or in its correspondence with Re-
spondent.
B. Conclusionary Findings
1. Weske's alleged illegal solicitation of the
decertification and showing -of-interest petitions
filed by employee Grates
As I have found , supra, employee Grates was unhappy
with union representation and when he learned that em-
ployee Williams had withdrawn his decertification peti-
tion Grates decided to file a decertification petition him-
self. Grates told General Manager Weske that he intend-
ed to file a decertification to replace Williams' and asked
Weske to get a decertification petition for him. Weske
complied with Grates' request and in addition to furnish-
ing Grates with a blank decertification petition gave him
the address where the completed petition should be
mailed . As I have found, supra , there is insufficient evi-
dence to establish that Weske encouraged , promoted, or
assisted Grates with the preparation or the filing of the
showing-of-interest petition or that it was Weske , rather
than Grates , who solicited the employees ' signatures for
the showing -of-interest petition. Weske's sole connection
with the filing of Grates' decertification and showing-of-
interest petitions was to secure a blank decertification pe-
tition for Grates at Grates' request and to give Grates
the address where the completed petition should be
mailed.
B This is the first time that Respondent proposed that the contract's
effective date be retroactive Previously Respondent 's position was that
the contract 's effective date would be synonymous with its date of execu-
tion
1051
Weske's above-described conduct does not constitute a
violation of Section 8(a)(1) of the Act because it is not
illegal for an employer to furnish information to employ-
ees when the employees have independently decided to
exercise their statutory right to decertify a union and
seek their employer' s advice and their employer other
than providing the requested information does not ac-
tively encourage, promote, or assist the employees in re-
pudiating their collective-bargaining representative
Jimmy-Richard Co, 210 NLRB 802, 803 (1974); KDI Pre-
cision Products, 176 NLRB 135, 138 ( 1969). See also
Placke Toyota, 215 NLRB 395 (1974). Respondent's con-
duct herein did not go beyond the mere ministerial act of
assistance and did not constitute an attempt to have or
induce Grates to file a decertification petition . I therefore
shall recommend that these allegations be dismissed.
2. Weske's alleged coercive attempts to have
employee Grates repudiate the testimony Grates
gave to the Board
As I have found , supra, Grates was not a credible wit-
ness, whereas Weske credibly denies Grates' testimony
that on four separate occasions Weske attempted to
coerce him into retracting the testimony he had given to
the Board . I therefore shall recommend the dismissal of
these allegations.
3 The alleged refusal to sign an agreed-upon
contract
The complaint in Case 20-CA-17830 alleges in essence
that since April 13 , 1983, Respondent , in violation of
Section 8(a)(5) and ( 1) of the Act, has refused the
Union's request of March 23 , 1983, to execute a contract
containing all of the provisions agreed on by Respondent
and Union in collective -bargaining negotiations. I am of
the opinion , for the reasons set forth below, that this al-
legation is without merit.
The record reveals that the parties did not reach
agreement on all of the terms of a collective -bargaining
agreement because there was no meeting of the minds
over Respondent 's proposed condition precedent to the
execution of the agreement , which was an integral part
of Respondent 's bargaining proposals. As described in
detail, supra, Respondent from the very start of the con-
tract negotiations and continuously thereafter during the
time material herein conditioned its offer of a contract
upon the Union's promise to defer the effective date of
the contract until the decertification proceeding in Case
20-RD- 1761 pending before the Board was resolved. i o I
recognize that Respondent was not privileged under the
Act to refuse to execute an agreed-upon contract because
a decertification proceeding involving the employees
represented by the Union was pending before the Board.
Dresser Industries, 264 NLRB 1088 (1982). However, it is
not repugnant to the policies of the Act for the parties to
collective-bargaining negotiations to agree that the exe-
cution of a contract will be contingent upon the Union's
10 As I have found, supra , the decertification proceeding in Case 21-
RD-1761, which was initiated by employee Grates' petition , was not the
product of Respondent 's unfair labor practices
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
success in a pending decertification proceeding. Thus,
Respondent's proposal conditioning the signing of a con-
tract upon decertification proceeding in Case 20-RD-
1761 being resolved in favor of the Union was a permis-
sible or nonmandatory subject of bargaining which the
Union could have forced Respondent to remove form
the bargaining table by simply objecting to it. The
Union, however, did not object to this proposal and at
one point in the negotiations, on November 4, 1982, en-
gaged in conduct calculated to lead Respondent to be-
lieve that the Union had accepted this proposal. i i
Thereafter, the Union, without informing Respondent
that it objected to Respondent's proposals that the execu-
tion of the parties' contract be contingent upon the out-
come of the pending decertification proceeding, transmit-
ted copies of the parties' agreed-upon contract to Re-
spondent for its signature even though the decertification
proceeding was still pending But, since Respondent's
proposal that the exception of a contract would be con-
tingent upon the outcome of the decertification proceed-
ing in Case 20-RD-1761 was proposed as an integral
part of Respondent's contract proposals, the Union, de-
spite the fact that this proposal was a nonmandatory sub-
ject of bargaining, was not entitled to ignore it, and then
remove it from the rest of Respondent's contract pack-
age and demand that Respondent sign a contract contain-
ing the remainder of the package See generally, Good
GMC, Inc, 267 NLRB 583 (1983), and cases cited there-
in Therefore, because no agreement was reached on Re-
spondent's proposal that no agreement be executed until
the Union was successful in the decertification proceed-
ing, I conclude that there was no agreed-upon contract
here and that Respondent's refusal of the Union's March
23, 1983 request to execute the proposed collective-bar-
gaining agreement was not violative of the Act This
result makes especially good sense because of the
Union's failure to object to Respondent's proposal that
the execution of the parties' agreement be contingent
upon the outcome of the pending decertification pro-
ceeding.12 This proposal which the Union must have
l i As described in detail supra, the Union on November 4, 1982, by
telegram informed Respondent that it accepted Respondent's September
16, 1982 proposal as amended by Respondent's October 26, 1982 modifi-
cations
12 There is no support in the record for the General Counsel's conten-
tion that the Respondent's disputed proposal herein was proposed as a
known was an integral part of Respondent's other con-
tract proposals was not illegal per se, but was a perfectly
permissible proposal for Respondent to place on the bar-
gaining table. Its inclusion among Respondent's other
proposals would have been illegal only "if in the face of
a clear and express refusal by the Union to bargain about
the [nonmandatory subject]" Respondent insisted upon
its acceptance Union Carbide Corp, 165 NLRB 254, 255
(1967), enfd. 405 F.2d 1111 (D.C. Cir 1968), about the
Respondent's proposal that the execution of the parties'
agreement be made contingent upon the outcome of the
decertification proceeding. Quite the opposite, the Union
remained silent about this proposal and at one point in
the negotiations engaged in conduct which was calculat-
ed to lead Respondent to believe that the Union had ac-
cepted this proposal. If the Union had alerted the Re-
spondent that it was opposed to this proposal it is highly
probable that Respondent, rather than commit an unfair
labor practice by continuing to insist on its acceptance,
would instead have reevaluated its bargaining position
Under the circumstances to hold that Section 8(a)(5) of
the Act required Respondent to accept a contract em-
bodying all of its contract proposals except for the non-
mandatory proposal which was an integral part of Re-
spondent's contract package, even though the Union
never put Respondent on notice that it objected to this
nonmandatory proposal, would lead to an inequitable
result It is for all of the foregoing reasons that I shall
recommend the dismissal of the allegation that Respond-
ent violated the Act by refusing to sign an agreed-upon
contract
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The complaints in Cases 20-CA-17663 and 20-CA-
17830 are dismissed in their entirety
condition subsequent, rather than as a condition precedent, to the signing
of the parties' contract
la If no exceptions are filed as provided by Sec 10246 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses