Apache Powder Co.

National Labor Relations Board - Board Decisions

Mar 22, 1976

223 N.L.R.B. 191 (N.L.R.B. 1976)

APACHE POWDER COMPANY 191
Apache Powder Company and International Chemical
Workers Union, Local No. 184 . Case 28-CA-3453
March 22, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On December 10, 1975, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, General Counsel filed
exceptions and a supporting brief, and Respondent
filed an answering brief.
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, findings, and
conclusions of the Administrative Law Judge.
As explained more fully in the Administrative Law
Judge's Decision , we agree that both parties in their
1974-75 negotiations had not agreed to a change in
the so-called pension break date in the 1972-75 con-
tract, which provided that in computing monthly
pensions retiring employees were to receive $5 for
each year of service prior to January 5, 1973, and
$7.50 for each year after that date. The record shows
that during these negotiations the Charging Party
proposed, inter alia, that the $5 and $7.50 multipliers
be increased and a new schedule adopted. The Re-
spondent responded, on December 19, 1974, by pro-
posing that the $5 and $7.50 multipliers be increased
to $6 and $9, respectively. However, in its proposal
the Respondent also referred to the break date-that
is, the date when the higher rate became effective-
as January 5, 1972, instead of January 5, 1973. Later,
the Charging Party agreed to this proposal and their
stipulated agreement, signed and ratified on January
5, 1975, incorporates, by reference to "multipliers,"
the Respondent's December 19, 1974, offer. Shortly
thereafter, when the error in the break date was dis-
covered, the Respondent notified the Charging Party.
Since then the Respondent has refused to sign a fin-
ished, printed copy of January 5, 1975, stipulation
which contains the pension break date of January 5,
1972, although it has honored all other provisions of
the agreement.
We agree with the Administrative Law Judge that
the parol-evidence rule does not operate to exclude
testimony offered to establish that in fact no agree-
ment was reached in the first place. Moreover, we
agree that rescission for unilateral mistake is, for ob-
vious reasons, a carefully guarded remedy reserved
for those instances where the mistake is so obvious as
to put the other party on notice of an error. We find
that the instant case presents such an unusual in-
stance.
Thus, the Respondent's December 19, 1974, offer,
later agreed to and incorporated by reference in the
parties' stipulated agreement, proposed a "change"
in the existing multipliers of $5 (to $6) and $7.50 (to
$9), respectively, for the periods before and after Jan-
uary 5, 1972. The Charging Party argues that it as-
sumed that the Respondent was thereby offering to
change the break date as well as the" multipliers.
However, we agree with the Administrative Law
Judge that this interpretation is so palpably at odds
with the pension provisions of the existing contract
as to put the Charging Party on notice of an obvious
mistake by the Respondent. For in order to change
the break date from January 5, 1973, to January 5,
1972, the Respondent would be increasing the multi-
plier for the January 5, 1972-January 5, 1973, peri-
od from $5 to $9, and such an assumption clearly
cannot be reconciled with the Respondent's offer to
change only the $5 multiplier to $6 and the $7.50
multiplier to $9. Therefore, in agreement with the
Administrative Law Judge, we shall dismiss the com-
plaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint here-
in be, and it hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case, held on November 4, 1975, is based on
an unfair labor practice charge filed by International
Chemical Workers Union, Local No. 184, herein called the
Union, on March 12, 1975, and a complaint issued on Au-
gust 29, 1975, on behalf of the General Counsel of the
National Labor Relations Board, herein called the Board,
by the Regional Director for Region 28, alleging that
Apache Powder Company, herein called the Respondent,
has engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the National Labor Relations
Act, as amended, herein called the Act. Respondent filed
an answer denying the commission of the alleged unfair
labor practices.
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs submitted by the General Counsel and Re-
223 NLRB No. 39
192
spondent, I make the following:
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent, Apache Powder Company , is a New
Jersey corporation engaged in the manufacture and sale of
chemicals, explosive products , and related products at its
facility in the State of Arizona where it annually manufac-
tures and sells products valued in excess of $50 ,000 which
it ships directly to customers located outside the State of
Arizona.
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act . I further find that it will effectuate the
purposes of the Act for the Board to assert jurisdiction over
this matter.
11. THE LABOR ORGANIZATION INVOLVED
International Chemical Workers Union , Local No. 184,
the Union , is admittedly a labor organization within the
meaning of Section 2(5) of the Act.
111. THE QUESTIONS TO BE DECIDED
The ultimate question for decision is whether Respon-
dent violated Section 8(aX5) and ( 1) of the Act when it
refused the Union's request to sign a collective -bargaining
agreement incorporating an agreement on pension bene-
fits. In order to answer this question , it is necessary first to
determine whether the Respondent and Union reached an
agreement about pension benefits and, if so, the terms of
the agreement.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Union for about 20 years has represented a unit of
the Respondent's production and maintenance employees
and has been signatory to a series of collective-bargaining
agreements with Respondent covering these employees.
Prior to the instant dispute over the terms of the newly
negotiated pension benefit agreement , the most recent col-
lective-bargaining agreement was effective from January 5,
1972, until January 5, 1975 . This agreement , among other
things, contained a pension plan which in pertinent part
provided that the pension benefits received by eligible em-
ployees "shall be equal to the amount of: $5.00 multiplied
by the number of years of Continuous Service occurring
before January 5, 1973, plus $7.50 multiplied by the num-
ber of years of Continuous Service occurring after January
5, 1973 ." Regarding "Continuous Service," the plan set out
certain situations , i.e., layoffs or absences for over a certain
duration , wherein employment for purposes of pension
benefits was not considered continuous but to have been
broken . In summation, the amount of pension benefits re-
ceived by an eligible employee was computed by combin-
ing two factors, ( 1) the number of years of "Continuous
Service" occurring before and after January 5, 1973, herein
called the break date, multiplied by (2) different dollar
amounts , herein called the pension multipliers or the multi-
pliers.
The negotiations for a contract to succeed the one sched-
uled to terminate January 5, 1975, commenced early in
December 1974 at which time the Union made a number
of proposals, including one to change the existing pension
plan. This proposal, in pertinent part, provided that the
plan be amended "to provide immediate full credit for any
broken service" and that the break date between the multi-
pliers be eliminated and that employees eligibile for pen-
sion benefits receive $11 monthly for each year of service
from year 1 through 15, $12.50 monthly for each year of
service from year 16 through year 30 of service, and $14
monthly for all years of service in excess of 30.
On December 19, 1974, the Respondent, through its ne-
gotiators , came forward with a counterproposal, in writing,
on economic matters which included a pension proposal
that provided: "(1) Change the multiplier for all service
after January 5, 1972, from $5.00 to $6.00. (2) Change the
multiplier for all service after January 5, 1972, from $7.50
to $9.00." 1 Upon receipt of these proposals, the Union's
negotiators asked to be allowed to consider them for the
remainder of the day and respond the next day.
Thomas Drew, an International union representative
who was the Union's chief spokesman during negotiations,
considered the Respondent's economic proposal and then,
during the evening of December 19, met with the Union's
executive board. Drew told them that Respondent's pro-
posal was inadequate and that since the parties were a long
way from reaching an agreement , the Union had better
prepare for a strike . Several questions were asked about
Respondent's proposal, including one about the pension
proposal. Drew, using the blackboard, illustrated the pen-
sion benefits that an employee with 20 years of service
would receive under the existing pension plan, the Union's
proposed plan, and the Respondent's proposed plan. In
illustrating the Respondent 's proposed plan, Drew relied
on the break date set forth in that plan, January 5, 1972,
and believed that Respondent's use of January 5, 1972,
rather than January 5, 1973, as the break date constituted a
concession by the Respondent.'
The next day, December 20, the Union's negotiation
committee met with Respondent's committee and indi-
cated that Respondent's December 19 proposal was not
satisfactory and, with regard to the pension proposal, told
Respondent's negotiators that "the multipliers were not big
enough." There was no mention of or discussion about the
break date and at no time material herein, either before or
1 In addition to furnishing copies of its December 19 proposal at the
bargaining table , Respondent between December 20 and January 3 posted
copies of the proposal on its plant bulletin boards and distributed copies to
several employees.
2 Respondent did not intend to change the existing break date . Its use of
the January 5, 1972, break date in the December 19 proposal was due to the
mistake of its chief negotiator, John Boland . In drafting this proposal, Bo-
land intended to change the multipliers and retain the existing break date of
January 5, 1973, but inadvertently wrote the date January 5, 1972, based on
an erroneous assumption that the pension plan's break date for pension
benefits was the same as the effective date of the existing agreement, Janu-
ary 5, 1972.
APACHE POWDER COMPANY 193
after December 20, did the parties mention or discuss the
break date during negotiations ; all that was discussed was
the multipliers.
At the conclusion of the December 20 meeting, negotia-
tions were broken off with no further meetings scheduled.
Thereafter, on January 3, 1975, the parties returned to the
bargaining table at the request of a Federal mediator. On
January 5 , an agreement was reached when Respondent on
that date made a new and improved economic proposal
which the Union accepted. The agreement, the outcome of
the negotiations , was assembled into one document, Gen-
eral Counsel's Exhibit 2, by the Respondent's chief negoti-
ator, John Boland. Boland attached Respondent's Decem-
ber 19 and January 5 proposals and, where pertinent, in the
January 5 proposal referred by reference to specific provi-
sions contained in the December 19 proposal which the
parties intended to incorporate into the final agreement.
Other items which had previously been settled prior to De-
cember 19 and reduced to writing were also incorporated
into the agreement . The agreements reached on still other
items were written out by Boland; other portions were xe-
roxed provisions from the prior agreement with the neces-
sary changes. All of these various documents, in patchwork
fashion, comprised the agreement reached on January 5.
To signify that they had reached a complete bargaining
agreement , Boland and Drew , on January 5, affixed their
initials to each page of the 21-page document . The part of
this agreement which pertains to pension benefits consists
of two documents. The Respondent's proposal of Decem-
ber 19, 1974, previously described, and Respondent's pro-
posal of January 5, 1975, which in pertinent part reads:
Pensions . Provide that all service with [Respondent]
be credited in determining pension entitlement for em-
ployees retiring on or after January 5, 1975.
Pension Multipliers As Proposed in 12-19-74 offer.
On January 5, 1975, following the initialing of the agree-
ment, the Union's membership ratified the agreement and
the president of the Union notified the Respondent 's direc-
tor of labor relations , Eugene Oliver, that the agreement
had been ratified and that the parties had a new contract.
Thereafter, Oliver took the agreement and put it in prop-
er form so that it could be typed for the parties ' signatures.
In so doing , he discovered that Boland in preparing the
Respondent's December 19 proposal had mistakenly used
the break date of January 5, 1972, rather than January 5,
1973, and had neglected to include a double indemnity
provision in the Respondent 's life insurance proposal.; On
January 8, 1975, Oliver informed Boland of these mistakes
who immediately phoned Drew and told him about the
mistakes . Drew , in the midst of negotiations with another
employer, answered that he understood what Boland was
saying and would get back to Boland . Boland then in-
3 The Union during negotiations had proposed an increase in the amount
of life insurance benefits from $6,000 to $ 10,000. The $6,000 coverage was
subject to a double indemnity provision . The Union's proposal only request-
ed an increase in the face amount of the life insurance ; it neglected to
include the double indemnity feature . The Respondent , however , decided to
offer a double indemnity provision applicable to the entire $10,000 policy
amount which Boland, when he drafted the December 19 proposal , inadver-
tently omitted.
structed the Respondent's officials to prepare a final agree-
ment for the signatures of the parties which would incorpo-
rate all of the terms of the January 5 agreement and specif-
ically directed them to include a provision for double
indemnity in the provision dealing with life insurance ben-
efits and to use a break date of January 5, 1973, in the
provision dealing with the pension benefits.
Thereafter, on January 9, this agreement was given to
the Union's negotiation committee for signature with the
explanation, by Oliver, that the break date in the pension
plan had been changed from January 5, 1972, to January 5,
1973, inasmuch as the 1972 date had been incorporated in
the Respondent's December 19 proposal by mistake. The
Union's representatives refused to sign the agreement so
long as it contained a break date of January 5, 1973, rather
than January 5, 1972. On January 27, 1975, Drew on behalf
of the Union, by letter, informed Boland that " [the Union]
stands prepared to sign the new agreement ;... as soon as
[Respondent] amends its signature draft to provide for pen-
sion amendments provided for within the signed tentative
agreement." At all times material, Respondent has refused
to sign a collective-bargaining agreement that contains a
pension agreement which includes a break date of January
5, 1972. It is undisputed, however, that immediately after
January 5, 1975, Respondent placed into effect retroac-
tively all of the terms agreed upon by the parties in their
January 1, 1975, agreement and that only the one covered
by this dispute was not placed into effect; namely, the pro-
vision dealing with pension benefits. Then, on June 25,
1975, the parties signed a document which, in effect, is the
same as the document given to the Union on January 9,
with minor corrections, but without agreeing to the break
date in the pension plan. A stipulation and agreement was
also signed by the parties which in substance states that the
parties agree that all provisions of the agreement are final
and binding except for the break date between the pension
multipliers and that the parties will accept "the final deci-
sion" rendered in the instant unfair labor practice case on
the matter of the break date and if "the final decision"
does not decide which date is the proper one, then the
parties will arbitrate the matter.
B. Discussion and Conclusionary Findings
The record establishes that, when the parties on January
5, 1975, initialed the multipage document, they had
reached agreement on all of the terms of a collective-bar-
gaining agreement and intended the initialed document to
be an integration of all that had been said and done in the
course of negotiations. What was their agreement with re-
spect to the break date between the pension multipliers?
This is the disputed question involved in this proceeding.
The part of the initialed agreement pertinent to a resolu-
tion of this dispute consists of the Respondent's proposals
of December 19 and January 5.
The December 19 proposal, agreed to by the Union and
a part of the final agreement, reads in pertinent part as
follows:
The following is proposed in settlement of all unset-
tled matters now pending:
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Pension
(1) Change the multiplier for all service prior to
January 5, 1972, from $5.00 to $6.00
(2) Change the multiplier for all service after Janu-
ary 5, 1972, from $7.50 to $9.00
The January 5 proposal, agreed to by the Union and a
part of the final agreement, reads in pertinent part as fol-
lows:
The following is proposed in settlement of all matters
pending between the parties.
A.....
B. Pensions.... .
Pension Multipliers As Proposed in 12-19-74 offer
It is the General Counsel's contention that the final
agreement initialed by the parties, on its face, unambigu-
ously establishes a break date between the pension multi-
pliers of January 5, 1972; thus, by refusing to sign a collec-
tive-bargaining agreement containing this break date, the
Respondent violated Section 8(aX5) and (1) of the Act.
Respondent, without conceding that the record establishes
that it agreed to change the existing break date from Janu-
ary 5, 1973, to January 5, 1972, urges that, when viewed
most favorably to the General Counsel, the record merely
establishes that there was no agreement whatsoever regard-
ing the break date, but that there was a mistake of fact and
no meeting of the minds on this subject. Respondent, over
the General Counsel's objection, urges that the parol evi-
dence rule does not apply to the consideration of evidence
adduced to support its contention that there was a mistake
of fact and no meeting of the parties' minds. General
Counsel argues that even assuming the parol evidence rule
is not applicable, the record does not establish that a mis-
take occurred and even if there was a mistake, Respondent
is in no position to use it as a defense in this case since it
was a unilateral mistake.
Turning first to the question of whether it is proper to
consider evidence before determining which interpretation
of the agreement is correct, I conclude that such evidence
is appropriate and, accordingly, deny the General
Counsel's motion to strike such evidence. It is well settled
that the parol evidence rule is a rule of substantive law
which requires that when the parties have made a contract
..and have expressed it in a writing to which they have [all]
assented as the complete and accurate integration of that
contract, evidence, whether parol or otherwise, of antece-
dent understandings and negotiations will not be admitted
for the purpose of varying or contradicting the writing." 4
Concededly, the January 5, 1975, agreement reached by
the parties constitutes a complete and accurate integration
of the terms of the collective-bargaining agreement reached
by the parties.' Thus, evidence outside the agreement can-
not be introduced to vary its terms. However, it is also well
established that evidence may be introduced for the pur-
4 3 Corbin Contracts 1573 (1960).
s An agreement is integrated where the parties thereto adopt a writing or
writings as the final and complete expression of the agreement . An integra-
tion is the writing or writings so adopted. Restatement of the Law, Con-
tracts Section 228.
pose of ascertaining the correct interpretation of an agree-
ment," as well as to establish the nonexistence of an agree-
ment.' The evidence here was offered in order to ascertain
the meaning of an agreement and to establish the nonexis-
tence of an agreement, not to vary the terms of an agree-
ment. I have considered the evidence for those purposes.
Next, I turn to the primary question. Did the parties
agree to change the break date dividing the pension multi-
pliers in the contractual pension plan and, if so, what were
the terms of the agreement. In agreement with the General
Counsel, I conclude that the language in the initialed
agreement seems on the surface to establish a break date of
January 5, 1972, between the pension multipliers. Having
said that, I must examine the record to ascertain whether
the evidence establishes that the parties ascribed some
other meaning to the language in question. At the outset, I
note that the initialed agreement, insofar as it concerns
pension benefits, makes no sense by itself. It must be read
in conjunction with the terms of the contractual pension
plan which was in existence on January 5, 1975, and which
the parties by their initialed agreement intended to change.
The existing pension plan provides in substance that an
employee eligible to receive a pension shall receive a
monthly payment "equal to the amount of $5.00 multiplied
by the number of years of Continuous Service occurring
before January 5, 1973, plus $7.50 multiplied by the num-
ber of years of Continuous Service occurring after January
5, 1973." When the terms of the initialed agreement are
considered in the context of the then existing pension plan,
it is my opinion that they give support to the testimony of
Boland that it never was Respondent's intent to change the
existing break date and graphically demonstrate the
ambiguity of the terms contained in the initialed agree-
ment.
If one is to "Change the multiplier" for service after Jan-
uary 5, 1972, "from $7.50 to $9.00" as provided in the ini-
tialed agreement, then it is necessary that the existing pen-
sion plan pay eligible employees a $7.50 multiplier for all
service after January 5, 1972. It does not do so. The $7.50
multiplier in the existing pension plan applies only to ser-
vice after January 5, 1973. This circumstance is a strong
indication that Respondent's intent in advancing its pen-
sion benefit proposal was to change only the pension mul-
tipliers and not the break date between the multipliers.
Any doubt of the correctness of this inference is removed
when Respondent's final pension proposal is considered.
This proposal made on January 5, 1975, refers solely to
"pension multipliers" and does not refer to the break date.
Moreover, it is undisputed there was never one word ut-
tered during the contract negotiations, during the material
period of time, about the break date; rather, all discussion
centered around the dollar figures to be used as the pen-
sion multipliers.
Based on the foregoing, I find that the record over-
whelmingly establishes that it was Respondent's intent in
advancing its January 5, 1975, proposal to change only the
dollar figures used for pension multipliers and not to
63 Corbin Contracts § 543, 579 (1960); Restatement of the Law, Con-
tracts § 242.
7 3 Corbin Contracts § 573, 580; see also 30 Am Jur 2d, Evidence § 1033,
1037.
APACHE POWDER COMPANY 195
change the existing break date of January 5, 1973; but
through inadvertence, Respondent mistakenly used the
break date of January 5, 1972, in its proposal to change the
pension multipliers . I further find , for the reasons set out
below, that under the circumstances of this case , a reason-
ably intelligent person would have surmised that the Re-
spondent , in making its pension proposal , had no intent to
change the existing break date.
On its face , the Respondent 's proposals of December 19
and January 5 were worded in terms of changing the pen-
sion multipliers , not in terms of a change in the break date.
I realize that, if the Respondent's proposal of December 19
is viewed in isolation , it indicates Respondent was propos-
ing a break date of January 5, 1972. But it would be impos-
sible for a person to view the proposal in a vacuum because
it was proposed as a modification of an existing pension
plan and makes absolutely no sense unless considered in
the context of the existing plan. When read in conjunction
with the existing plan it is readily apparent, as found
above, that Respondent meant to change only the pension
multipliers and not the break date and that anyone consid-
ering the proposal in light of the existing agreement would
have realized this or been placed on guard. The Union's
negotiators admittedly were familiar with the existing pen-
sion plan and knew that the existing break date was Janu-
ary 5, 1973, not January 5, 1972. Moreover, if the Decem-
ber 19 proposal, when considered along with the existing
pension plan, did not introduce a sufficient degree of
ambiguity and uncertainty so as to place a person of rea-
sonable intelligence in doubt as to the nature of
Respondent's intention about the break date, then certain-
ly Respondent's final proposal of January 5, which was
worded solely in terms of a change in the "pension multi-
pliers," should have created a degree of uncertainty and
ambiguity so as to have placed a reasonably intelligent per-
son in serious doubt as to the nature of Respondent's in-
tention with respect to the break date. This doubt should
have been given even more substance by the fact that there
had been absolutely no discussion during the material part
of the negotiations about a change in the existing break
date ; rather, negotiations centered entirely around increas-
ing the dollar amounts used as the pension multipliers.
Based on the foregoing, I am convinced that the record
establishes that Respondent did not intend to change the
existing break date of January 5, 1973, but mistakenly used
the break date of January 5, 1972, in its December 19 pro-
posal; that this mistake was so obvious so as to have placed
a person of reasonable intelligence on guard ; and that the
terms of the initialed agreement, considered in context, are
ambiguous with respect to the intent of the parties con-
cerning the break date . For these reasons , I am of the opin-
ion that there was no meeting of the parties ' minds as to
the break date or, phrased another way, there was no mu-
tual assent by the parties on this subject. Respondent and
the Union each attached a different meaning to the ini-
tialed agreement insofar as it pertained to the break date
between the pension multipliers. Whether this situation is
viewed, as contended by the General Counsel, as one of
unilateral mistake, or as contended by Respondent, as one
of mutual mistake , there was in my view no agreement.
If the situation herein is viewed as one of mutual mis-
take-which I am inclined to do because of the ambiguity
of the initialed agreement-then the comments of Profes-
sor Corbin are applicable:
If the court is convinced that the two parties gave
substantially different meanings to the words of a con-
tract, and it is not convinced that either one of them
knew or had reason to know what the other meant or
understood by the words, then there is no reason for
choosing one interpretation rather than the other and
there is no contract. 3 Corbin Contracts, supra §538 at
64-65.
Likewise,
It is essential to every agreement that the parties to
it should have consented to the same subject matter in
the same sense ; they must have contracted ad idem.
Hence, where one person offers a thing and the other
accepts it and the parties have in mind different
things, there can be no agreement; so, where the lan-
guage used is understood differently by the parties,
there is no meeting of the minds and there can be no
agreement. A mutual misunderstanding as to an essen-
tial element of a supposed agreement vitiates the
agreement. 17 C.J.S., Contracts, § 144(b) at 897.
If the situation herein is viewed as one of unilateral mis-
take, then:
There is considerable authority to the effect that a
mistake of one party known to the other affects the
validity of their agreement. This is held to be true
where the mistake is obvious on the face of the con-
tract. Accordingly, where there is a mistake that on its
face is so palpable as to put a person of reasonable
intelligence on his guard, there is not a meeting of the
minds, and consequently there can be no contract. 17
Am Jur 2d, § 146 at 493-494.
Likewise,
The remedy of rescission for unilateral mistake is
particularly available where the offeree, from the very
nature of the offer, should be aware that there has
been a mistake; in short, where the mistake should
have been "palpable to the offeree." 13 Williston on
Contracts § 1573 at 490 (1970).
In many cases under consideration, the party not in
error did or should have suspected the existence of a
mistake, in which case, of course, rescission .. .
should and will be allowed. 13 Williston on Contracts
§ 1578 at 514 (1970).
Based on the reasons set forth above, I conclude that the
parties did not reach an agreement on the break date divid-
ing the pension multipliers; thus, it was not an unfair labor
practice for Respondent to refuse to sign a collective-bar-
gaining agreement incorporating a break date of January 5,
1972. Cf. McLean-Arkansas Lumber Company, Inc., 109
NLRB 1022, 1038-39 (1954); Taylor Chevrolet Corporation,
199 NLRB 1064, 1067-68 (1972); and Oil Chemical and
1% DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Atomic Workers International Union and its Local 7-507
(Capitol Packaging Company), 212 NLRB 98 (1974). Ac-
cordingly, I shall recommend that the complaint be dis-
missed in its entirety.
Upon the foregoing findings of fact , conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
The complaint is dismissed in its entirety.
8 In the event no exceptions are filed as provided by Sec. 102.46 of Rules
and Regulations of the National Labor Relations Board , the findings, con-
clusions , and recommended Order herein shall, as provided in Sec . 102.48 of
the Rules and Regulations, be adopted by the Board and become its find-
ings, conclusions and Order, and all objections thereto shall be deemed
waived for all purposes.