Auto Workers Local 365 (Cecilware Corp.)

National Labor Relations Board - Board Decisions

Apr 21, 1992

307 N.L.R.B. 189 (N.L.R.B. 1992)

189
307 NLRB No. 33
AUTO WORKERS LOCAL 365 (CECILWARE CORP.)
1 Errors in the transcript have been noted and corrected.
2 While every apparent or nonapparent conflict in the evidence
may not have been specifically resolved herein, my findings herein
are based on my examination of the entire record, my observation
of the witnesses’ demeanor while testifying, and my evaluation of
the reliability of their testimony. Accordingly, any testimony in the
record which is inconsistent with or contrary to my findings is dis-
credited.
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica, Local 365 and Cecilware Corporation.
Cases 29–CB–7574 and 29–CB–7637
April 21, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 9, 1992, Administrative Law Judge Ste-
ven B. Fish issued the attached decision. The Respond-
ent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, United Automobile, Aero-
space and Agricultural Implement Workers of Amer-
ica, Local 365, Long Island City, New York, its offi-
cers, agents, and representatives, shall take the action
set forth in the Order.
Craig L. Cohen, Esq., for the General Counsel.
Stephen E. Appell, Esq. (Sipser, Weinstock, Harper & Dorn),
of New York, New York, for the Respondent.
Jeffrey L. Kreisberq, Esq. (Kreisberg & Maitland, P.C.), of
New York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant to
charges filed by Cecilware Corporation (the Employer or
Charging Party or Cecilware), the Regional Director for Re-
gion 29 issued a complaint, on May 25, 1990, alleging in
substance that Local 365 UAW (Local 365 or Respondent)
violated Section 8(b)(3) of the Act by failing and refusing to
execute a collective-bargaining agreement presented to it by
Charging Party, embodying the terms agreed on by the par-
ties and reflected in a memorandum of agreement executed
by the parties, and by refusing to honor the terms of the
agreement by claiming that the agreement was not binding
on Respondent.
The order consolidating cases and consolidated complaint
named the Local 365, UAW Welfare Trust Fund (the Fund)
as party-in-interest and duly served the Fund with the docu-
ment. The complaint neither named the International Union,
UAW, AFL–CIO, as either a Respondent or party-in-interest
nor was the International served with the complaint or any
other relevant papers.
The trial of the above matter was heard before me on
March 25, 1991. The Fund did not make an appearance or
otherwise participate in the hearing. The International neither
appeared, nor participated in the hearing. Nor did it move to
intervene or otherwise attempt to become a party to this pro-
ceeding.
Briefs have been filed by Respondent and General Counsel
and have been carefully considered.
Based on my review of the entire record,1 including my
observation of the witnesses, I make the following
FINDINGS OF FACT2
I. JURISDICTION AND LABOR ORGANIZATION
The Employer is a Delaware corporation engaged in the
manufacture, sale, and distribution of food service equipment
and related products, at its facility in Long Island City, New
York. During the past year, the Employer manufactured,
sold, and distributed at its Long Island City facility products
valued in excess of $500,000, of which products valued in
excess of $50,000 were shipped from the facility directly to
States other than the State in which it is located. It is admit-
ted and I find that the Employer is, and has been at all times
material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
It is also admitted and I so find that Respondent is and
has been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
II. FACTS
Respondent has been the recognized collective-bargaining
representative for employees employed by the Employer for
a number of years. The parties have executed a series of col-
lective-bargaining agreements during this period of time,
with the latest agreement, effective by its terms from August
1986 to November 21, 1989. That agreement as well as the
three prior collective-bargaining agreements between the par-
ties, dating back to the 1977 agreement, all included identical
language indicating that the agreement is between the Em-
ployer and ‘‘The International Union United Automobile Im-
plement Workers of America (UAW) and its Local 365.’’
The signature pages of each contract provided for and in-
cluded separate signatures for the Employer, Respondent, and
the International, as well as for members of the negotiating
committee. The director for region 9-A of the International
has signed each of these contracts, while Beverly Gans, sub-
regional director of region 9-A, also signed the 1983–1986
contract, where she was involved in the negotiations of the
contract.
According to the unrefuted testimony of Gans, during the
1983 negotiations in which she participated, she told Richard
Moore and Jerry Scharfman, executive vice presidents of and
chief negotiators for Cecilware, that the agreement was a
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 No evidence was adduced of any such requirement in the Inter-
national or Local’s bylaws or constitution.
‘‘tripartite agreement,’’ and that the International would have
to sign the agreement. However, Gans admitted that she did
not tell them that if Respondent agreed to terms of a contract
that the International had the power to reject these contracts.
Nor did Gans testify that she told them that the Respondent
could not sign the contract unless the International gave its
approval.
Moore while conceding that the International had always
been a signatory to past contracts between the parties,
viewed the International’s participation as ‘‘rubber stamp-
ing.’’ Thus in the past, the parties began implementing the
contract, and made them effective when the parties reached
agreement and the employees ratified the contract and/or they
signed memorandums of agreement. The contract was sent to
the International for its signature, only after it was signed by
Respondent and the Employer, and after its terms had al-
ready been implemented. Indeed in some prior years, when
Respondent was responsible for preparing the actual contract,
after it was ratified and implemented, it took several months
before Respondent did so, and it was signed by Respondent
and the Employer initially, and by the International at some
subsequent time.
It is based on this history of prior dealings between the
parties, that Moore viewed the International as a mere ‘‘rub-
ber stamp’’ to the effectiveness of the collective-bargaining
agreement.
Gans testified further that generally its locals are informed
that the International must review and sign all contracts.3 She
adds that in 1990, a Local reached and signed an agreement
with a company named Aeroflex. However, according to
Gans, she did not like some of the terms, and wrote to
Aeroflex reminding it of the fact that the agreement is a ‘‘tri
partite’’ agreement and that the International was not in
agreement with the contract agreed to by the Local. Gans re-
quested that Aeroflex negotiate further on some of the items.
Aeroflex agreed to negotiate concerning the terms that the
International objected to and in fact some changes were sub-
sequently made in the agreement that had been reached with
the Local.
Significantly, Gans conceded that had Aeroflex had not
agreed to negotiate and make these changes, the contract
originally agreed to between Aeroflex and the Local would
be in effect. Gans explained, however, that in such a case the
International would not have signed the agreement, and the
parties would not have the support of the International if
there was a strike.
Negotiations for a successor collective-bargaining agree-
ment began on October 12, 1989, with additional meetings
held on October 19 and 24 and November 9 and 20. Re-
spondent was represented at these negotiations by Salvatore
Mieli, its president, Business Representative Jeanne Conlon,
and various employee members of the negotiating committee.
Beverly Gans representing the International participated in
some of the sessions. Moore and Scharfman either collec-
tively or singly represented the Employer at the negotiation
meetings.
During the meeting on October 24, Respondent’s rep-
resentatives brought up an issue that several employees with
more seniority than new employees were making less than
the new workers. After some discussion, the subject was de-
ferred to future meetings. At the meeting of November 9,
Scharfman on behalf of the Employer agreed ‘‘in principle’’
with Respondent that the employees (10 in number) who
were making less than $5 per hour would be raised to $5 per
hour, and then would receive whatever additional increase
was agreed upon by the parties.
On or about November 20, at a meeting in the presence
of the mediator, the Employer presented a document entitled
‘‘Cecilware’s Final Offer.’’ The document provides for an
agreement effective from November 22, 1989, to November
21, 1991, which incorporates all terms of the expired contract
plus specific changes outlined in the offer. The changes in-
cluded a general wage increase of 30 cents per hour, per
year, a ratification bonus of $150 to all employees, and a
change in the Health Insurance Program (HIP), which in-
cludes an option for employees, hired prior to August 25,
1986, to opt out of Respondent’s welfare plan and be cov-
ered by an employer-sponsored HIP plan. The plan also pro-
vided that all employees hired after August 25, 1986, would
not have an option, and would be enrolled in the HIP plan.
Additionally, the proposal allowed any employee currently
enrolled in the UAW plan, the option of joining HIP with
family coverage by contributing $25 per month. Finally, the
proposal also provided that employees hired before Novem-
ber 21, 1989, who have other coverage (i.e., from a spouse)
will have the option of receiving $120 per month instead of
Cecilware paying for the coverage. Miele and Gans express
their disapproval of the health plan proposal, but Moore in-
sisted that ‘‘this was it.’’
Subsequent to the meeting, Respondent’s representatives
and Gans met to discuss the offer. Gans mentioned that the
offer did not contain the Employer’s previous agreement to
bring the 10 people up to scale. They discussed filing
charges against the Employer about that omission but de-
cided not to do so. The biggest problem with the offer was
the health plan proposal, which Mieli and Gans vehemently
opposed, particularly the $120 payment to employees in lieu
of coverage. It was decided that Gans would call Scharfman
and request further negotiations over the welfare plan, and
remind him about the additional wage increase for the 10
employees that the Employer had allegedly previously agreed
to include.
Gans reached Scharfman on the phone, later that day. She
began by telling Scharfman their final offer did not include
the raise for the 10 people that the Employer had agreed to
previously. Scharfman replied ‘‘that doesn’t seem to be im-
portant, nobody seems to care about it,’’ and added that this
is the Employer’s final offer. Gans then brought up the wel-
fare proposal, and asserted as she had during negotiations
over this plan, that she believed that many of the employees
are poor, and might opt for the payments in lieu of coverage,
not realizing that they would be hurt in the long run.
Scharfman replied, ‘‘there is nothing we can do, this is
where we’re at.’’ Gans asked, ‘‘Can we talk more about it?’’
Scharfman responded, ‘‘absolutely not, there’s nothing more
to be said.’’
Gans reported back to Respondent’s officials on the results
of her conversation with Scharfman. It was decided by Re-
spondent to permit the employees to vote on the Employer’s
final offer, but to recommend against ratification.
191AUTO WORKERS LOCAL 365 (CECILWARE CORP.)
4 To the extent that the testimony of Mieli and Conlon indicates
that union officials had expressed reservations that the document was
being signed for all purposes except for the welfare provision, I dis-
credit such testimony entirely. I found Mieli to be particularly un-
convincing, as he was evasive, argumentative, and inconsistent
throughout most of his testimony. Moreover, I note that the docu-
ment contains no such reservations, and I doubt that the Employer
would have implemented the terms of the agreement, had the Re-
spondent reserved its rights to negotiate further on welfare as con-
tended by Conlon and Mieli.
5 Approximately 36 or 37 of Cecilware’s employees opted to con-
tinue being covered by the UAW plan.
On November 20, Moore called a noncompulsory meeting
of employees, on worktime, during which he distributed to
employees a copy of the Employer’s final offer. Moore an-
swered any questions the employees had and explained the
details of the offer. He did not recommend to the employees
how they should vote on the offer.
Later that evening, a ratification meeting was held among
the unit employees, Mieli, Gans, and Conlon. All spoke in
favor of rejecting the Employer’s offer, primarily because of
the welfare proposal. They explained to the employees that
the Employer’s proposals would break up employees into
different tiers, and that this was unfair, and would cause em-
ployees to lose benefits in the future. The representatives ex-
pressed their view that all employees should receive the same
coverage and be equal.
However, many of the members stated that although they
were not happy with the welfare proposal of the Employer,
they were not prepared to go on strike. These employees
suggested that they would vote to ratify the contract, but the
union representatives should then go back to the Employer
and try to ‘‘straighten out’’ this problem. Respondent’s rep-
resentatives informed the employees that it (going back to
the Employer to renegotiate) is not so easy as it sounds, but
they would do the best they could. Respondent’s representa-
tives informed the employees that they would try to go back
to the Employer to convince it to change the welfare pro-
posal, but that if the employees vote for the contract pro-
posed by the Employer, they would be stuck with it. Re-
spondent’s officials added that this (meaning the ratification
vote) is the place to take care of their concerns.
Notwithstanding the strong opposition to the proposed
contract expressed by Mieli, Conlon, and Gans, the employ-
ees voted to ratify the Employer’s final offer. Significantly,
both Conlon and Gans conceded that once the employees
voted to ratify this offer, that a binding contract came into
existence at that time.
Nothing was mentioned at the ratification meeting about
the necessity for the International approving the agreement,
or the absence of the agreement by Cecilware to raise the 10
employees to scale. The Employer’s offer provided that
Cecilware will pay to the Fund the full cost increase of $188,
$214, and $245, for the Welfare Fund, over a 3-year period
for employees, hired prior to August 25, 1986, who opt to
continue with the existing UAW coverage.
The next day, November 21, Moore after learning of the
ratification of the contract by the employees, called Mieli
and asked to meet and have the terms of the final offer
‘‘signed off on,’’ so the Employer could transcribe the final
document. The parties agreed to meet at Respondent’s office.
Moore handed a copy of the Employer’s offer, signed by
Moore to Respondent. Mieli asserted that he would not sign
the agreement, since it is the responsibility of the business
agent and not the president to sign such an agreement. Mieli
then handed the document to Conlon and directed her to sign
it. Conlon signed her name, on the bottom, as well as the
date and her title (business representative Local 365 UAW).
The document was also signed by David Stewart, shop chair-
man of Respondent. No comments or reservations were made
by any of Respondent’s officials about any of the terms of
the agreement. Nothing was said about the International hav-
ing to approve the document, nor any indication that Re-
spondent did not consider that it had a binding agreement
with the Employer as reflected in the document executed on
that day.4
In fact, the International was not notified of the meeting
to obtain the signatures of the parties, and according to Gans,
she did not receive notification that the document was signed
until shortly before the trial herein.
After the parties signed the document on November 21,
Mieli, in the presence of Charles Gibbons, an administrator
of the UAW Welfare Fund, gave Moore a letter on Welfare
Fund stationery. The letter, addressed to Moore, as vice
president of Cecilware, reads as follows:
Please adjust your records accordingly with the Welfare
Coverage Cost as follows:
12-13-89 $187.82
2-15-90 $214.35
12-15-91 $244.75
The final offer presented by the Employer and signed by
the parties included figures of $188, $214, and $245 for
these 3 years. Moore explained that these figures were
rounded off by the Employer from the figures that Respond-
ent had provided during negotiations as the amounts re-
quired, and the amounts anticipated in the succeeding 2
years. When the document was given to Moore, neither
Miele nor Gibbons expressed any reservations about the
amounts of contributions due, nor did they assert that the ap-
proval of trustees of the welfare fund would be required for
the adoption of these terms.
The Employer thereafter implemented, without protest
from the Respondent, all the terms of employment set forth
in the document signed on November 21, including the wage
increase, signing bonus, payments into the welfare fund, plus
the implementation of the new welfare programs.
On December 21, Moore sent a copy of a proposed new
collective-bargaining agreement for signature to Respondent
which incorporated the changes agreed to in the final offer
signed off on by Respondent and the Employer on November
21, with the prior contract in effect between the parties. The
document sent to Respondent did include a space for the
International to sign, as well as for Respondent by Mieli,
Conlon, and for two members of the negotiating committee.
Respondent has not executed a copy of the proposed con-
tract as requested by the Employer. However, on January 19,
1990, Gibbons received a letter from James Wallerstein, an
actuarial consultant utilized by Respondent’s welfare fund.
Wallerstein advised Gibbons that since under Cecilware’s
new welfare plan, over half of its employees had opted to
switch out of the UAW fund into HIP,5 that it would now
be actuarially necessary to increase the required contributions
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 I would note that Attorney Klein is a member of the same law
firm that represents Respondent herein.
7 I note that Moore, on advice of counsel, did not vote on either
of these motions.
from Cecilware. Wallerstein set forth what in his view the
new rates should be, which were $235, $268, and $305 over
the next 3 years.
On January 22, Gibbons sent a letter to Moore, enclosing
a copy of Wallerstein’s letter set forth above, and asserting
that based on Wallerstein’s letter, the Employer’s contribu-
tion for December 1989 was calculated incorrectly, since it
used $187.82 per employee instead of $235.55. Gibbons re-
turned the check, and requested that Moore send in a new
one for the proper amount.
Moore responded by letter dated January 29, asserting that
the check submitted was not calculated using the wrong
rates, but that the Employer used the $187.82 rate that was
negotiated and ratified. He characterized Gibbons as attempt-
ing to alter the agreement after the fact, since Respondent
was well aware during negotiations that a percent of employ-
ees would switch to HIP.
On February 21, Mieli sent a letter to Moore, protesting
the Employer’s action in removing employees from the
UAW Welfare Fund, and asserting that such action violates
the collective-bargaining agreement’s removal requirements.
Moore replied to this assertion by letter of February 28,
by claiming that the memorandum of agreement signed by
the parties permitted employees to choose to remove them-
selves from coverage in the UAW plan, and that this agree-
ment supersedes any previous notice requirements in the
prior contract.
Mieli responded by letter of March 13, and for the first
time asserted that Respondent did not believe it was bound
by the memorandum. Thus, Mieli asserted that at the time
the agreement was signed, he informed Moore of his reserva-
tions about it, and that ‘‘you should have realized having
Business Agent Conlon, the Shop Chairman and Committee
person sign it would serve no purpose and would not be
binding.’’
Moore answered Mieli in a March 23 letter, in which he
related the facts at the signing which I have found above to
be accurate, i.e., Mieli stated it was not the job of the presi-
dent to sign, but the business agent, and he directed Conlon
to sign the agreement, without expressing any reservations.
Thus, Moore asserted that the memorandum is binding, and
again requested that Mieli sign the contract that had been
presented to him.
On April 12, a meeting of the trustees of the UAW Wel-
fare Fund was held. Moore was present as one of the Em-
ployer Trustees, Mieli as one of the union trustees, along
with Gibbons, Wallerstein, and Donald Klein, attorney for
the Fund.
The subject of Cecilware’s contributions was discussed.
Wallerstein stated that if Cecilware continued to make inad-
equate contributions to the Fund, the immediate impact on
the Fund would not be significant, since Cecilware represents
only 27 members out of a total of 4000 members. However,
he felt that such an action would set a poor precedent if
other companies followed suit.
Attorney Klein recommended that the Fund communicate
with Cecilware and Respondent and ‘‘request that they mod-
ify their collectively bargained agreement’’6 to reflect the
higher contributions recommended by the actuary. While the
recommendation was not passed, a similar motion, again pro-
posed by Klein, that the administrator of the Fund send a let-
ter to Respondent and Cecilware, ‘‘to have them revise their
collective bargaining agreement’’ to provide for the pay-
ments recommended by the actuary, was approved.7
Pursuant thereto, Gibbons wrote to Respondent and
Cecilware, by letter dated May 3. The letter states that on
behalf of the Fund, he was writing with respect to ‘‘the level
of Welfare Fund contributions and benefits which you assert
you have negotiated, to be incorporated in a collective-bar-
gaining agreement with Local 365, UAW, concerning
Cecilware employees.’’
The letter goes on to state that the level of contributions
proposed were not actuarially sound, and further urges both
parties to ‘‘reconsider your bargaining position and enter into
further negotiations,’’ and that ‘‘your collective bargaining
agreement be revised’’ to reflect the amounts deemed appro-
priate by the Fund.
Mieli, in response to this letter, wrote to Moore, in a letter
dated May 3, indicating the availability of Respondent to
meet and discuss the matter.
On June 5, Moore replied, agreeing to meet if it is made
clear that there is an existing agreement binding on both par-
ties, and that the meeting was to ‘‘amend and modify the ex-
isting Memorandum of Agreement.’’
By letter dated June 5, Mieli responded by asserting that
the negotiations ‘‘shall be without prejudice to your conten-
tion that [sic] is already a binding agreement between us, and
to our contention that there is no such binding agreement.’’
Moore replied by fax dated June 5, that under the terms
of Mieli’s June 5 letter, ‘‘there is no possibility for us to
have a meeting on this matter.’’
Respondent has continued to refuse to sign the collective-
bargaining agreement submitted to it by the Employer. The
Employer has continued to apply all the terms of the agree-
ment to the employees in the unit without objection by Re-
spondent. The proposed agreement has never been submitted
to the International for either its signature or its approval.
III. ANALYSIS
It is well established that a union violates its duty to bar-
gain in good faith with an employer, in violation of
Section8(b)(3) of the Act, where it refuses on request to exe-
cute a written collective-bargaining agreement with the em-
ployer which incorporates whatever agreements that they
have reached. Teamsters Local 287 (Pittsburgh-Des Moines
Steel), 193 NLRB 1078, 1086 (1971); Avis Rent-A-Car Sys-
tem, 280 NLRB 1323, 1315 (1986); Teamsters Local 70
(Emery Worldwide), 295 NLRB 1123 (1989).
It is also clear, that where the parties execute a memo-
randum of agreement which incorporated provisions of the
former contract plus additional terms agreed upon, the parties
are obligated to execute a full collective-bargaining agree-
ment containing the entire agreement between the parties.
Electrical Workers Local 1228 (RKO General), 130 NLRB
342, 343–344 (1977); Retail Clerks Local 322 (Ramsey Su-
permarkets), 226 NLRB 80, 87 (1976); Summit Tooling, 195
NLRB 479, 488 (1972).
193AUTO WORKERS LOCAL 365 (CECILWARE CORP.)
8 Although Respondent does refer to the Employer’s meeting with
employees as indicative of bad faith, as discussed infra, I conclude
that the Employer’s conduct in that regard was lawful, and not evi-
dence of bad-faith bargaining.
9 I would note that in any event, the Board will not permit a party
to a written agreement, which is clear and unambiguous, as this
memorandum is, to vary such terms by providing a contemporaneous
or prior oral understanding. Fayard Moving & Transportation, 290
NLRB 26, 27 (1988); cf. Diplomat Envelope Corp., 263 NLRB 525,
536 (1982).
It is not disputed herein that on November 21, Jeanne
Conlon, Respondent’s business representative and Richard
Moore, the Employer’s vice president, execute a document
entitled ‘‘Cecilware’s Final Offer’’ (the memorandum),
which consisted of seven new items plus a reference to the
prior contract in existence between the parties. It is also un-
disputed that subsequently, the Employer requested that Re-
spondent execute a full collective-bargaining agreement
which was submitted to Respondent by the Employer, and
which accurately incorporated the memorandum with the
prior collective-bargaining agreement between the parties.
The issue to be decided is whether or not Conlon’s signa-
ture on the memorandum created an obligation on Respond-
ent to execute the collective-bargaining agreement presented
to it by the Employer. Respondent has advanced a number
of different arguments and defenses which purportedly justify
its refusal to sign the agreement. I find that these defenses
and contentions are insufficient to singly or collectively, war-
rant Respondent’s failure to execute the agreement to which
it had agreed, and that it has violated Section 8(b)(3) of the
Act by refusing to do so.
Initially, I note the contention of Respondent’s president
Miele in his letter to the Employer of March 13, to wit, that
the Employer should have realized that Conlon’s signature
on the memorandum would not be binding on Respondent.
This contention is so ludicrous, that Respondent correctly
and candidly, did not even include this argument in its brief.
However, since it has been raised by Miele’s letter, it is ap-
propriate to consider.
Although I agree that Miele’s refusal to sign the memo-
randum himself could reasonably have been construed by the
Employer as an assertion that he (Mieli) did not approve of
the terms of the agreement, by no stretch of the imagination
can it be concluded that Respondent was not bound because
Conlon was the official that signed the memorandum. Miele
directed Conlon to sign the memorandum which had been
ratified by the employees, and she did so in Miele’s pres-
ence. I conclude without question that both Respondent and
the Employer believed that Conlon’s signature, which was in
accordance with the wishes of the employees who had rati-
fied the terms therein, was sufficient to bind Respondent to
the memorandum.
Respondent does argue, however, that the memorandum
signed on November 21 did not include the complete agree-
ment of the parties, because it did not include the purported
previous agreement of the parties that the Employer raise
wages for 10 low paid employees.
However, what Respondent conveniently ignores is that it
clearly was aware of this omission prior to its execution of
the memorandum. Thus, Gans realized that this purported
agreement had not been included in the memorandum, called
Scharfman’s attention to this fact, and requested that it be in-
cluded. However, Scharfman, on behalf of the Employer, re-
fused to include this item. Notwithstanding this omission,
Respondent presented the memorandum for ratification, and
executed the memorandum without the inclusion of such a
provision. In these circumstances, Respondent has voluntarily
agreed to exclude this item from the agreement. General
Brewing Co., 238 NLRB 1168 (1978).
Respondent also contends that the refusal to include the
agreed-upon item by the Employer, coupled with the ‘‘Em-
ployer’s direct dealing with employees in holding a meeting
with employees, distributing the actual ‘‘final offer to them
and urging them to ratify it,’’ establish that the agreement
was a ‘‘product of bad faith negotiation on the part of the
Employer.’’ I do not agree.
Although it does appear that the Employer did withdraw
its tentative agreement with Respondent on the raise for
lower paid employees, a withdrawal from a tentative agree-
ment is not a per se violation of the Act, but represents only
one factor to be considered in determining good- or bad-faith
bargaining. Aero Alloys, 289 NLRB 497 (1988); Cook Bros.
Enterprises, 288 NLRB 387, 388 (1988), Merrell M. Wil-
liams, 279 NLRB 82, 83 (1986). Here, Respondent points to
no other evidence establishing or indicating bad-faith bar-
gaining by the Employer,8 nor does the record so disclose.
As for the Employer’s meeting with employees, I have
found that it conducted a voluntary meeting, albeit on
worktime, wherein it merely explained and clarified the
terms of its final offer to the employees, without making a
recommendation to them as to how they should vote. An em-
ployer is entitled to call a meeting and explain to employees
the status of negotiations, or of proposals made to the union,
or to clarify any misunderstandings employees may have
concerning such proposals. Storer Communications, 294
NLRB 1056 (1989); United Technologies Corp., 274 NLRB
609, 610–611 (1985), enfd. 789 F.2d 121 (2d Cir. 1986). Cf.
Globe Furniture, 290 NLRB 841 (1988). Such conduct is
neither unlawful nor indicative of bad-faith bargaining, even
where the employer, unlike the Employer herein, couples
these statements with comments urging employees to support
the employer’s proposals. United Technologies, supra at 610;
Stokely-Van Camp, Inc., 186 NLRB 440, 449–450 (1970).
Accordingly, I conclude that Respondent has not estab-
lished that the Employer engaged in bad-faith bargaining, or
that the agreement reached by the parties was the product of
bad-faith bargaining or any other unlawful conduct by the
Employer. Therefore, I reject Respondent’s purported defense
to this effect, to its refusal to execute the agreement sub-
mitted to it by the Employer.
Respondent also argues that Respondent signed the memo-
randum with respect to all items, except for welfare. Since,
I have discredited the testimony of Conlon and Miele that
such reservations were expressed by Respondent’s represent-
atives at the time that the memorandum was signed, this con-
tention needs no further discussion, and is rejected.9
I now turn to the defense most forcefully argued by Re-
spondent in its brief. Respondent asserts that the International
is an ‘‘indispensable partner’’ to the ‘‘tripartite’’ agreement,
and since it neither signed the memorandum nor otherwise
approved the terms thereof, Respondent cannot be compelled
to execute the collective-bargaining agreement.
However, where one party asserts that approval by another
party or another individual of a collective-bargaining agree-
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 I note it is significant that in both of the above cases, prior doc-
uments included the language that the agreement was subject to the
approval of the International. Notwithstanding this language, which
is much stronger than the instant case (since here the words approval
or subject to approval do not appear on any prior contracts), the
Board concluded based on the conduct of the parties, particularly the
implementation of the agreement, that no prior approval of the Inter-
national was contemplated by the parties.
11 In Mieli’s March 13 letter to the Employer, which I again note
was the first time that Respondent asserted it did not have a binding
agreement, the only reason given by Mieli for such an assertion, was
his contention that the Employer should have known the signature
of the business agent was not binding. As also found above, this
contention was so ludicrous that Respondent failed to even argue it
in the brief filed by its attorney.
12 I note that the attorney is a member of the same law firm that
represents Respondent.
ment reached by the negotiators, is a condition precedent to
a final and binding agreement, such a requirement must be
conveyed to theother party by clear and unambiguous notice.
Induction Services, 292 NLRB 865 (1984); Metro Products,
289 NLRB 76 (1988) Painters Local 52 (South Central
Board), 223 NLRB 748, 750 (1976). See also Emery World-
wide, supra.
Here, in my view, Respondent has fallen far short of es-
tablishing that Respondent conveyed to the Employer or that
any of the parties believed, that the International’s approval
was a condition precedent to a final and binding agreement.
Although, in the past, as well as in the current negotia-
tions, representatives of the International participated in ne-
gotiations, and have in the past signed prior agreements, this
evidence is insufficient to establish the requisite notice to the
Employer. Electrical Workers IBEW Local 22 (Electronic
Sound), 268 NLRB 760, 763–764 (1984), enfd. 748 F.2d 348
(8th Cir. 1984); Paperworkers Local 795 (International
Paper), 254 NLRB 1332, 1333–1335 (1981).
Nor does the additional evidence that Gans told represent-
atives of the Employer in 1983 that the agreement was a
‘‘tripartite’’ agreement, and that the International would have
to sign the agreement, suffice to meet Respondent’s burden.
I note that Gans did not tell the Employer’s representatives
that if Respondent agreed to terms of a contract that the
International had the power to reject such contracts, nor that
Respondent could not sign the agreement, unless the Inter-
national gave its approval.
It is clear to me, and I find, that no party herein, including
the Employer, Respondent, and the International, regarded
the approval of the International as a condition precedent to
nor necessary for the agreement to be binding on Respond-
ent.
I note that Gans was present during the present negotia-
tions, as well as the ratification vote of employees, and at
no time during the negotiations, nor at the ratification vote,
did anyone mention that approval of the International was
necessary for the agreement to be effective. Moreover, when
the employees ratified the agreement, according to both
Conlon and Gans, there was an agreement at that time. This
testimony constitutes significant admissions against both Re-
spondent and the International, that it was not necessary to
obtain approval of the International as a condition precedent
to the binding effect of the agreement reached.
When Respondent and the Employer met to ‘‘sign off’’ on
the agreement ratified by the employees, Gans and the Inter-
national were not present, nor did anyone, including Re-
spondent’s officials, protest their absence. The memorandum
executed by Respondent and the Employer memorializing
their agreement, contained no space for the International to
sign, and was never presented to the International to sign. In-
deed, there is no evidence that the International was ever re-
quested to nor that it ever executed such memorandums in
past negotiations, although as noted it did sign the full col-
lective-bargaining agreements, executed many months after
the agreements were implemented.
It was obvious that Respondent’s officials, particularly
Miele were very upset about the fact that employees had rati-
fied the Employer’s proposals despite Respondent’s negative
recommendation. In fact, Miele was so displeased, that he
himself refused to sign the memorandum, while directing
Conlon to do so, thereby attempting to distance himself from
having any responsibility for the agreement. However, at no
time during this meeting did Mieli or anyone from Respond-
ent say to the Employer that the absence of the International
had any significance, much less that the International would
have to approve the agreement before it becomes effective or
binding on Respondent. Indeed, if that were the case, Mieli
who was so upset about the terms of the agreement, could
and in my view would have informed the Employer that
there cannot be an agreement unless the International signs
the memorandum. However, he did not do so, he directed
Conlon to sign on behalf of Respondent, and accepted the
implementation of the agreement, including wage increases
and ratification bonuses for employees without protest.
Thus, I conclude that the parties’ (Employer and Respond-
ent) immediate implementation of and adherence to the terms
of the memorandum ‘‘demonstrated their mutual acceptance
and intent to be bound by it.’’ International Paper, supra at
1334; Electronic Sound, supra at 763.10
Additionally, subsequent to the implementation of the
terms of the memorandum, there were a number of letters
back and forth between the parties, concerning Respondent’s
problems with the agreement, and its reasons for not signing
the full collective-bargaining agreement presented to it by the
Employer. At no time in any of these correspondences, nor
in other contacts between the Employer and Respondent, did
Respondent ever refer to the fact that the International had
not signed the memorandum or had not otherwise approved
the terms thereof, much less assert that such lack of approval
was a reason for Respondent not signing the full collective-
bargaining agreement.11 Ebon Services, 298 NLRB 219
(1990), General Brewing, supra at 1168, 1170; Avis Rent-A-
Car, supra at 1315; Operating Engineers Local 525 (Clark
Oil), 185 NLRB 609, 611 (1970).
In that connection, I note further the position of the Fund,
as reflected in its letter and at the meeting of the Fund trust-
ees, which included Mieli, on April 12. At this meeting, the
trustees and the attorney for the Fund discussed various op-
tions relating to Cecilware. The recommendation made by
the attorney,12 which was eventually approved by the trustees
was to request that Respondent and the Employer ‘‘modify’’
or ‘‘revise’’ their collective-bargaining agreement to provide
for the increased payments now deemed necessary by the
Fund’s actuary. The letter from the Fund to Respondent and
the Employer reflects this position, requesting that they ‘‘re-
consider’’ their bargaining and enter into further negotiations
195AUTO WORKERS LOCAL 365 (CECILWARE CORP.)
13 It is also significant to note that in the Aeroflex situation, unlike
the present case, the terms of the new agreement had not been im-
plemented, since the agreement between the local and Aerolfex had
been reached prior to the termination of the expiring contract.
so that their collective-bargaining agreement ‘‘be revised’’ to
reflect the amounts deemed appropriate.
It is quite significant, that there was apparently no discus-
sion at the trustees meeting, nor any mention in the letter of
any need for International approval. Indeed, if anyone even
remotely believed that International approval was required, it
would be a simple matter to have made such an assertion,
and simply demand further bargaining as a matter of right.
This was not done, nor even suggested by anyone, which fur-
ther buttresses my view as detailed above, that no one in this
case, (except perhaps for Respondent’s present attorney) re-
garded the signature of the International on the memorandum
or their subsequent approval of the terms therein, as essential
for the formation of a contract binding on Respondent and
the Employer. I conclude that Moore was correct in his testi-
mony that the signature of the International on the collective-
bargaining agreement was considered by all parties, including
the International itself, to be nothing more than a ‘‘rubber
stamp’’ or a ministerial or perfunctory act. Carpenters Dis-
trict Council, 197 NLRB 905, 907 (1972); Operating Engi-
neers 3 (California Assn.), 123 NLRB 922, 930 (1959).
The only significance of the signature of the International
as far as the parties herein are concerned, is candidly dis-
closed by the testimony of Gans, which also constitutes a
significant admission against Respondent. Thus when testi-
fying about her prior dealings with another company
(Aeroflex) she detailed her successful efforts to persuade
Aeroflex to change terms that she on behalf of the Inter-
national did not like, which had been agreed to between
Aeroflex and the local union. However, Gans conceded that
had Aeroflex not agreed to renegotiate these items, that a
binding agreement would be in effect, but in such a case the
International would not have signed, and would not support
a subsequent strike.13
Accordingly, based on the foregoing, I conclude that the
absence of the approval of the International, was not re-
garded by anyone, and in fact was not necessary, in order
to bind Respondent to the agreement reached, and provided
no defense to Respondent’s refusal to execute the collective-
bargaining agreement presented to it by the Employer.
Respondent also argues that since the International was
never made a party to this proceeding, i.e., was never named
in the complaint as charged party or even as party-in-interest,
or invited to participate, the complaint must be dismissed on
due-process grounds. Thus, Respondent contends that the
International is an indispensable party to this matter, and that
an order against Respondent to sign and be bound by the
contract, could ‘‘arguably’’ bind the International to the
agreement which would be improper. However, the problem
with Respondent’s contention, is that no one is contending
that the International is bound by the agreement reached by
Respondent and the Employer, and in fact both the Charging
Party and General Counsel have expressly disclaimed any as-
sertion that the International should be compelled to execute
the contract, or that it be bound by the agreement.
In these circumstances, and since I shall not order the
International to sign or be bound by the agreement reached,
I find the due-process concerns advanced by Respondent on
behalf of the International to be without merit.
I would further note that to the extent that the International
might believe that an order to Respondent to sign the agree-
ment, may have some adverse or indirect effect on the Inter-
national, it was not without options. Thus, it is clear from
the record that Gans, an official of the International was fully
aware of this proceeding and the nature of the allegations,
since she was a witness on behalf of Respondent. Therefore,
I find that the International having constructive notice
through Gans, was aware of the trial being conducted and the
pertinent allegations involved, and could have if it felt its in-
terests might be adversely affected, moved to intervene to
protect its interest or position. It did not do so, which in my
view waives any due-process claims it may have in this case,
which as I have concluded above, will result in no order
against the International itself, nor any finding that it is
bound to the agreement.
This brings me to what is in my view, the real reason why
Respondent refuses to execute the collective-bargaining
agreement, and it is best summarized by Mieli’s own testi-
mony, when asked by his own attorney, why he refused to
sign the memorandum. Mieli responded as follows:
A. I didn’t sign because as a president of the local
union I have two hats. One is with the heart and one
is with the two hearts, because if we go out of business
and the welfare fund, that means we have no money to
pay the members, and that’s why I didn’t sign. Mr.
Moore know that we were in disagreement from the
first day to take off anybody from our welfare fund,
and keep all the old people with the families, with chil-
dren, with seven, eight dependents, and take off all the
rest of the people.
What happened is simply that the employees of Cecilware
over the vehement objection of Mieli, accepted Cecilware’s
final offer. Mieli never fully accepted this decision, and
when the trustees of the Fund received the report of the actu-
ary that Cecilware should be paying more money, as a result
of the new health plan in the parties’ agreement, he seized
on this fact as support for his already formulated decision not
to sign a contract which contained the welfare plan that he
opposed.
In this connection, Respondent has raised several argu-
ments dealing with the dual status of Moore and Mieli as
trustees of the Fund as well as representatives of their re-
spective clients for collective-bargaining purposes.
Initially, Respondent argues that since Moore and Mieli
were both trustees and fiduciaries of the Fund, ‘‘it was nec-
essarily understood that any agreement reached would be
contingent on the blessing of the actuarial experts who guid-
ed the Fund.’’ However, Respondent has not adduced any
evidence that there was any understanding, expressed or im-
plied between Moore and Mieli that the agreement reached
was contingent on any subsequent action of Fund or the actu-
aries employed by the Fund. Indeed, on the date that agree-
ment was reached, Mieli handed Moore a copy of a letter
from the Fund setting forth the rates to be paid, which con-
formed essentially to the rates set forth in the Employer’s
final offer which became the memorandum executed by both
parties. There was no reservation made at the time that these
196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
rates were subject to possible revision, as a result of some
future action by the Fund. Nor does the record reveal any
past history of such developments. I therefore reject this con-
tention of Respondent.
Respondent also argues that notwithstanding the existence
of an agreement between the parties, it became impossible
for Mieli to sign the agreement, and ‘‘simultaneously comply
with his fiduciary responsibilities under the Employment Re-
tirement and Income Security Act, known as ERISA.’’ Thus,
Respondent argues in effect, that once the actuary of the
Fund concluded that the contributions of Cecilware were ac-
tuarially unsound, Mieli’s fiduciary responsibilities as a trust-
ee of the Fund, pursuant to his obligations under ERISA,
take precedence over his responsibility under the National
Labor Relations Act as president of the Respondent to exe-
cute a collective-bargaining agreement previously agreed to.
However, Respondent has not cited any provisions or sec-
tions of ERISA that either compel or even suggest that a
trustee of a Fund who is also an official of a union, must
or may renege on or reject a collective-bargaining agreement
previously entered into or agreed to by the parties. In the ab-
sence of such a citation of such authority, I decline to imply
such a rather startling and novel proposition. Indeed, such a
conclusion, i.e., that the Board will imply as a result of some
undefined principles under ERISA, that the trustees of a
Fund can change the terms of a collective-bargaining agree-
ment, would run afoul of the Supreme Court’s admonition in
H. K. Porter & Co., 397 U.S. 99 (1970), that the Board may
not compel either party to agree to a substantive term of a
contract between the parties.
The appropriate time for Mieli to have raised objections to
the amount of contributions or the effect of the Employer’s
proposals on the actuarial soundness of the Fund was during
negotiations and prior to agreeing to terms of a new agree-
ment. Respondent did in fact raise objections to the Employ-
er’s proposals during negotiations, and certainly should have
been aware that acceptance of such a plan would result in
a number of employees of Cecilware opting to withdraw
from the Fund’s plan. Thus, Mieli as trustee and president
of Respondent, should have made sure that an actuarial study
was conducted during negotiations, and prior to the ratifica-
tion vote, so that the parties and the employees could be
fully informed about the potential effects of the Employer’s
proposal on the Fund. Having failed to do so, Mieli and Re-
spondent cannot now rely on this post agreement actuarial re-
port to justify Respondent’s refusal to execute a collective-
bargaining agreement that it agreed to, was ratified by the
employees in the unit, and the terms of which have been
fully implemented by the Employer. Accordingly, I conclude
that all of Respondent’s defenses are lacking in merit, and
that it has violated Section 8(b)(3) of the Act by failing and
refusing to sign the agreement presented to it by the Em-
ployer.
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(2) and (7) of the Act.
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. At all times material herein, Respondent has been the
exclusive collective-bargaining representative for the employ-
ees of the Employer in the appropriate unit described below:
All employees employed by Cecilware, exclusive of
company executives; office employees, metal stamping
personnel, guards and all supervisors as defined in Sec-
tion 2(11) of the Act.
4. Respondent has violated Section 8(b)(3) of the Act by
failing and refusing since on or about December 21, 1989,
to sign the collective-bargaining agreement embodying the
terms and conditions of employment agreed upon and ratified
by the employees in the above unit, on or about November
21, 1989.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated Section 8(b)(3)
of the Act, I shall recommend that it cease and desist there-
from and take certain affirmative action necessary to effec-
tuate the policies of the Act.
I note that in Electronic Sound, supra, one of the cases
that I have relied on above, in concluding that Respondent
had not established that International approval was a condi-
tion precedent to binding Respondent to the agreement, the
Board approved the judge’s somewhat limited remedy. Thus,
the judge concluded that since the parties therein had in fact
agreed that International approval was a condition subsequent
to the continued viability of the agreement reached, that the
recommended Order would so reflect, and ordered Respond-
ent to execute and give effect to the agreement until its expi-
ration or until the International disapproves its terms. Id. at
764.
However, I do not believe that such a remedy is appro-
priate herein. I again note that in Electronic Sound, supra,
the prior contracts of the parties contained specific language
that the agreement was subject to the approval of the Inter-
national. No such language appears in any of the prior con-
tracts herein, nor is there any record evidence that any of the
parties considered the International to have a right to dis-
approve the agreement. To the contrary, as I have empha-
sized above, both the International and Respondent, as re-
flected in admissions by Gans and Conlon respectively be-
lieved that a contract was in existence when the employees
ratified the agreement. Moreover, Gans’ further admission
that the significance of the International’s signature on the
document related only to matters involving strike benefits,
fortified my acceptance of Moore’s testimony that the parties
treated the International’s signature as a ‘‘rubber stamp.’’
In these circumstances therefore, I conclude that the stand-
ard remedy for this type of violation is appropriate herein.
International Paper, supra; Cotati Cabinet, supra.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America,
197AUTO WORKERS LOCAL 365 (CECILWARE CORP.)
15 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Local 365, Brooklyn, New York, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Cecilware Cor-
poration by failing and refusing to sign the collective-bar-
gaining agreement embodying the terms and conditions of
employment for the Employer’s employees agreed upon by
the Respondent and the Employer on or about November 21,
1989.
(b) In any like or related manner engaging in conduct in
derogation of its statutory right to bargain with Cecilware
Corporation.
2. Take the following affirmative action necessary to ef-
fectuate the purposes and policies of the Act.
(a) On request of the Employer, sign the agreement sub-
mitted to it by the Employer on or about December 21, 1989,
embodying the terms and conditions of employment for the
Employer’s employees agreed to on or about November 21,
1989.
(b) Post at its business office and meeting hall in Brook-
lyn, New York, copies of the attached notice marked ‘‘Ap-
pendix.’’15 Copies of the notice, on forms provided by the
Regional Director for Region 29, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees and members are custom-
arily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(c) Furnish the Regional Director with signed copies of the
notice for posting by Cecilware, if willing, at all places
where notices to their employees are customarily posted.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
Cecilware Corporation by failing and refusing to sign the
collective-bargaining agreement embodying the terms and
conditions of employment for the Employer’s employees
which we agreed upon on or about November 21, 1989.
WE WILL NOT in any like or related manner engage in
conduct in derogation of our statutory right to bargain with
the Employer.
WE WILL, on request of the Employer, sign the agreement
submitted to us by the Employer on or about December 21,
1989, embodying the terms and condition of employment of
the Employer’s employees agreed to on or about November
21, 1989.
INTERNATIONAL UNION, UNITED AUTO-
MOBILE, AEROSPACE AND AGRICULTURAL IM-
PLEMENT WORKERS OF AMERICA, LOCAL 365