Bellhouse, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1965

151 N.L.R.B. 1296 (N.L.R.B. 1965)

1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
IT IS HEREBY ORDERED that the Decision and Order in this case be,
and it hereby is, amended in the following manner : 6
(1) On page 8, line 3, delete "119" and substitute "121".
(2) On page 8, delete sentence on lines 7 and 8 and substitute
"Respondent for various reasons objected to the use of 21 cards in
the computation of majority status."
(3) On page 8, line 9, delete words "at least"; delete "7" and sub-
stitute "9".
(4) On page 10, line 8, insert the findings made herein with respect
to the authorization cards of employees Mirim Holder, Doris (John-
son) Masters, Jayne Alley, Bertha Lamb, Dian Lopez, Gladys Wil-
liams, Mona Couch, Ruth Medlin, Myrtle Riegel, Earlene Cottrell,
Norma MacDonald, Ruth Ann Penry, Deanna Plank, and Roberta
Winchester.
(5) On page 10, line 10, delete "119" and substitute "121".
6 Amendments Nos. 1, 2, 3, and 5 are made in order that our Decision and Order herein
fully reflects the findings made herein.
Bellhouse, Inc. and District 50, United Mine Workers of America.
Case No. 10-CA-5677. March 30, 1965
DECISION AND ORDER
On January 13, 1965, Trial Examiner James F. Foley issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in unfair labor practices as alleged in the complaint,
and recommending that the complaint be dismissed in its entirety,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the Charging Party filed exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire record in the
case,1 and hereby adopts the Trial Examiner's findings, conclusions,
and recommendation.
IInadvertent dates appearing in the Trial Examiner 's Decision are hereby corrected
to show that in 1964 collective-bargaining meetings were held on January 28 , February 17,
and February 27; and that the Respondent 's proposed contract contained a termination
date of October 31, 1964.
151 NLRB No. 57.
BELLHOUSE, INC. 1297
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order the Recommended Order of the Trial Examiner, and orders
that the complaint be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, Case No. 10-CA-5677, was brought under Section 10(b) of the National
Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, herein called the Act,
on a charge filed April 20, 1964, and amended May 12, 1964, by District 50, United
Mine Workers of America, herein called the Union, against Respondent Bellhouse,
Inc., herein called Respondent. On May 27, 1964, General Counsel of the National
Labor Relations Board, herein called the Board , issued a complaint against Respond-
ent, alleging therein that it had violated Section 8(a)(5) and (1) of the Act by refus-
ing on February 27, 1964, and thereafter to execute the collective-bargaining contract
including the term thereof Respondent and Union had negotiated and agreed on.
General Counsel also alleged that Respondent violated Section 8(a)(5) and (1) by
refusing to bargain on November 5, 1963, and thereafter. Respondent by answer
filed June 4, 1964, denied the violations.
A hearing was held on the complaint and answer before Trial Examiner James F.
Foley on July 20 and 21, 1964, in Atlanta, Georgia. General Counsel, Respondent
and Charging Party were represented, and all parties were afforded an opportunity
to offer evidence, make oral argument and file briefs. General Counsel and Respond-
ent filed briefs after the close of the hearing.
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent, a Florida corporation with a principal office and place of business in
Stone Mountain , Georgia, is engaged in the manufacture and distribution of aluminum
glass windows and sliding glass doors for residential construction. During the calen-
dar year 1963, Respondent sold and shipped products valued in excess of $50,000,
from its Stone Mountain, Georgia, plant to points located outside the State of Geor-
gia. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act, and assumption of jurisdiction will effectuate the purposes of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issue
The only issue in this case is whether Respondent negotiated and agreed on a con-
tract for a term of 1 year with a reopener after 6 months, and then refused to sign
such a contract, but in turn drafted a contract with a provision for a term of 6 months
instead of the term of 1 year with a 6 months' reopener, executed such a contract,
and forwarded it to the Union for its execution, and has continued to refuse to
execute a contract for the term of 1 year with a 6 months' reopener.
B. Preliminary findings
On October 7, 1963, the Board certified the Union as exclusive bargaining repre-
sentative of the employees in the production and maintenance unit at Respondent's
plant in Stone Mountain, Georgia. On or about October 9, the Union requested
Respondent to bargain with respect to the wages, hours, and other terms and work-
ing conditions of these employees. Representatives of the Union and Respondent met
on October 29, November 11, and November 19, 1964.
On October 29 the Union submitted a contract proposal, and on November 11
Respondent submitted a contract counterproposal. Neither the proposal nor coun-
783-133--G G-vol 151-83
1298 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
terproposal provided for a termination date or a term during which the contract
would run. Both the proposal and counterproposal provided for recognition, man-
agement prerogatives, hours of work and overtime, holidays with pay, vacations with
pay, jury duty pay, and seniority. The Union proposal, unlike the counterproposal,
also provided for a checkoff, a grievance procedure, funeral leave pay, and an agree-
ment not to strike.' The counterproposal included a provision on absenteeism, in
addition to the provisions having counterparts in the proposal of the Union.
After negotiating on January 17 and 27, and at meetings in the morning and after-
noon of February 27, the Union and Respondent appeared to believe they had nego-
tiated a contract covering the items in the proposal and counterproposal. However,
no provision was made for vacations with pay, and a provision for arbitration and a
wage schedule were added. Arbitration and wages were not covered in the proposal
or counterproposal The parties agreed on February 27 that E. Reginald Hancock,
attorney for Respondent and one of its negotiators, would reduce the contract to
writing, and send a copy of each page as it was drafted to Herman B. Adkins, regional
director, region 26, of the Union, who was chief negotiator for the Union, for his
approval and review. Hancock began sending the pages, page by page, on or about
March 6, 1964. He sent complete draft of the contract on April 6, 1964. Amended
pages including a check-off provision and adding Christmas Eve as a paid holiday
were then forwarded by Hancock to Adkins. The amended page including Christmas
Eve as a paid holiday was sent on May 4, 1964
Hancock included in the last page of the draft of the complete contract he sent
to Adkins on April 6, 1964, a termination date of October 31, 1964. General Coun-
sel contends that the Union and Respondent agreed on February 27, 1964, that the
contract would be for 1 year from February 27, with a 6 months' reopener on wages
and fringe benefits. Respondent contends that it agreed to sign a- contract only for
a period which included its summer season starting on or about March 1, 1964, and
ending August 31, 1964, and the period of time from that date to the day when the
financial statement would be available for the summer period. The evidence is clear
that the statement would be available by the end of September 1964, or at the latest
by October 10, 1964 In a telephone conversation with Hancock on April 10, 1964,
Adkins demanded that the contract include a term of 1 year. Hancock offered to
meet and discuss what appeared to him to be a misunderstanding, but Adkins refused
to meet with him until the term he contends was agreed on was made part of the
contract in place of the term ending with the date of October 31, 1964.
On May 20, 1964, the Union charged the Respondent with a refusal to bargain
in violation of Section 8(a)(5) for refusing to sign a contract for a term of 1 year,
subject to being reopened and modified with respect to wages and fringe benefits
after 6 months
To determine what the agreement was regarding the term of the contract, if any
was made, I have considered the evidence of what occurred at the meetings on Janu-
ary 28, February 17, and in the morning and afternoon of February 27, 1964, and
in the period after the draft of the complete contract was forwarded by Hancock to
Adkins.
C. The negotiations on January 28 and February 17 and 27, 1964,
and the drafting of the written contract
Robert L. Niehaus who, with President Bell, owned the stock of Respondent except
for a few qualifying shares, purchased Bell's stock on or about December 5, 1963.
He also became the president of Respondent at that time It is undisputed that
Respondent had a financial loss of $55,000 in 1962, and at least $33,000 in 1963.
Niehaus along with Hancock negotiated for Respondent in the meetings on Janu-
ary 28, February 17, and in the morning and afternoon of February 27, 1964.2 It is
clear that he had the objective in bargaining of reducing wages and other costs, or at
the least of resisting any increases in them, until he received the financial statement
for the season beginning with March 1, 1964, and ending on August 31. 1964. Adkins,
the chief negotiator for the Union at all meetings, had the objectives of securing a
'In addition, the union proposal had provisions for the freezing of wages agreed on
for the term of the agreement, rates for new job classifications, reporting tor work, use
of a bulletin board, amending of the contract, a health and safety program, and com-
pensation for injured employees. However, these provisions do not appear in the con-
tract that was negotiated
2 Steven A. Stewart, director of personnel, along with Hancock, negotiated for the
Respondent, prior to the Januaiy 28, 1964, meeting.
BELLHOUSE, INC. 1299
contract with Respondent, particularly in view of the Board certification of October 7,
1963, and of bettering the position the employees in the unit had on the day of the
certification, or at least maintaining that position.
Robert V. Brown, Respondent's production superintendent, and Charles H. Han-
sen, Respondents shipping superintendent, were also present at the four meetings in
January and February on behalf of Respondent. Lawrence Niehaus, a brother of
President Niehaus and secretary-treasurer of Respondent, was also present at the
January 28 meeting on behalf of Respondent. In addition to Adkins, William Smith,
the Union's international representative, and the employees negotiating team of
Charles S. Daugherty, Evelyn Whitehead, and J. B. Pilgrim, were present at the
February 17 and 27 meetings for the Union. Smith, Daugherty, and Pilgrim also
assisted Adkins at the January 28 meeting. Mildred Joyce was present at that
meeting, instead of Evelyn Whitehead.
1. The January 28 meeting
At the January 28 meeting, the negotiators for the Union and the Respondent
stated their respective positions. The spokesman for the Union was Adkins. Presi-
dent Niehous and Hancock spoke for the Respondent. Adkins read the Union's
proposals and Hancock read the Respondent's counterproposal. Adkins stated, as
he had in the October or November meetings, that the Union, as a policy, negotiated
for a contract of 1 year, but would accept a 2- or 3-year contract if the wages and
fringe benefits were flexible enough to warrant a contract for a term longer than a
year. He also stated that the Union was seeking wage increases ranging from 25
percent to 35 percent
President Niehaus discussed wages and fringe benefits at this meeting on behalf
of Respondent. He left contract language and standard contract provisions to Han-
cock. I credit Adkins' testimony that Niehaus withdrew the offer of paid vacations
contained in the counterproposal, and any offer of paid vacations that could be con-
strued from Respondent's providing of a paid vacation for the period between the
prior Christmas and New Year's. Niehaus said that President Bell made this com-
mitment prior to his selling his interest to him, and he later had to borrow the money
to pay for the commitment by Bell. With the assistance of his brother Lawrence,
the secretary-treasurer, who explained Respondent's financial statements, President
Niehaus took the position that Respondent was losing money at its then cost level,
and the costs had to be reduced. He referred to a proposal by women employees that
the differential of 20 cents between their rate and the male rate be eliminated.
Women were receiving $1.35 an hour and men $1.55 per hour. A proposal was made
to reduce the male rate to $1.40 either at this meeting or at the meeting on Febru-
ary 17. Niehaus also took the position that he needed to find out from the operation
of the business for a season from March 1 to August 31, 1964, whether Respondent
could be operated at a profit. If it could, he would continue operating it. If not,
he would liquidate it. He expressed the opinion that he could recover the money
borrowed and the capital invested from the sale of the equipment.3
2. The February 17 meeting
While at the January 28 meeting the new ownership and the Union largely got
acquainted, and stated their respective positions, the February 17 meeting was an
intensive bargaining session. Standard contract provisions and contract language
were discussed and negotiated. Monetary items were discussed. Niehaus again
referred to the poor financial condition of Respondent shown by the financial state-
ment at the January 28 meeting. I credit Adkin's testimony that at this meeting
agreement was reached on management rights, recognition, seniority, grievance and
arbitration, funeral leave, shift differential and the sixth-paid holiday, which was
Christmas Eve.4 Adkins testified that there was a stalemate on language for vaca-
a I have premised these findings on the testimony of Adkins, Niehaus, Hancock, and
Daugherty, and the other evidence. I have considered the demeanor testimony of these
witnesses as well as their other testimony
4 The Union's proposal called for eight paid holidays. Respondent's original counter-
proposal provided for 6 paid holidays, which included Christmas Eve, and omitted
Armistice and Memorial Days which were included in the Union's proposal. Apparently,
on January 28, Niehaus withdrew the offer of a paid holiday on Christmas Eve when
he withdrew the offer of vacations in the counterproposal, and announced that he would
not give a paid vacation to the employees for the week the plant was closed down be-
tween Christmas and New Year's, as Bell had done for the Christmas week of 1963
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions and on checkoff . As stated , supra, provisions for vacations were in the proposal
and counterproposal , and a provision for checkoff was contained in the Union's pro-
posal. I find there was a stalemate on these items , but not merely because of lan-
guage. Niehous considered vacations and checkoff , in view of the bookkeeping
expense this item entailed to be monetary items, and resisted both because of the
increased costs that would result . Niehous said that Respondent would pay wages
for the week the plant was closed down between Christmas and New Year's if the
financial statement for the season ending August 31 showed that the Respondent had
gotten its money back. He said he would not enter into agreement on vacations until
the financial statement for the season was available, which would be by October 10
at the latest.
It was at this point in the meeting that Hancock gave Respondent's wage offer. It
was to reduce the hourly rate for the then male employees from $1 . 55 to $1.40 per
hour and retain the hourly rate of $1.35 for the then female employees ; hire new
male employees at $1.30 per hour and raise them 5 cents an hour after both 30 and
60 days to bring them up to the $1 .40 rate; and hire new female employees at $1.25
per hour with a 5 cent raise after both 30 and 60 days to bring them to the $1 . 35 rate.
Adkins countered by offering to Respondent 's negotiators , in writing , the wage sched-
ule it proposed at the January 28 meeting which in substance called for increases
ranging from 25 percent to 35 percent for then current employees.
Niehaus' reply to the counteroffer by Adkins was that the increases asked for were
ridiculous . He again talked about the precarious financial condition of the Respond-
ent. Adkins then said that there should be a year's contract with a reopener after 6
months for wages and fringe benefits , that at least there would be a year's contract.
Niehaus' response was that he would not sign any agreement for longer than a season,
that he did not wish Adkins or the Union around if he had to liquidate the business.
It was here that the voices of both Niehaus and Adkins were raised, and things were
said that were not relative or material to bargaining.
There was a recess in the bargaining . Adkins and International Representative
Smith met with the employees ' bargaining committee . When the bargaining session
was resumed on February 17, Adkins proposed a year's contract with a 6-month
reopener with wages for the then current employees to remain as they were ($1.55
per hour for male employees and $1.35 per hour for female employees ), wages for
new employees to be brought up to $1.40 and $1.35 as they had been in the past, and
a 10-cent-an -hour increase to be given all employees "across-the -board ." Both Nie-
haus and Hancock stated that Respondent could not pay the wages proposed by the
Union. This ended the bargaining for February 17.
Respondent and union representatives agreed to meet again on February 25. This
date was subsequently changed to February 27. In parting, Hancock asked the union
representatives to talk to the members and see if they could not "get them down on
the wages." According to Adkins, Hancock said, "I hope you can sleep on it, and
get them down on the wages , because my client just can 't agree to it." 5
3. The February 27 morning meeting
At the outset of the February 27 morning meeting, Hancock said that he had a
proposal which the Union could hardly turn down. He made the proposal that for
a season ,6 to give his client an opportunity to get over the hump, they would keep
i I have premised these findings on the testimony of Adkins, Niehaus, and Hancock,
taking into account their demeanor testimony as well as their oral testimony of what
was said and what transpired , all considered in the context of the record as a whole
9 The finding of what Hancock proposed at the February 27 morning session is premised
on the testimony he gave in response to leading questions by Adkins, as a witness called
by the Charging Party General Counsel and Charging Party contend that Hancock at
this time proposed a contract for a term of 1 year, with a reopener after 6 months
Adkins, Smith, Daugherty, and Whitehead testified that he did Hancock, who was
called as a witness for the Charging Party and also appeared as a witness for the Re-
spondent denied that he referred to the term "1 year" for the contract at the February 27
morning session or at the January 28 or February 17 sessions. Niehaus and Brown,
witnesses for the Respondent, corroborated Hancock's testimony. Adkins' testimony of
what Daugherty said about a 6-month contract at this meeting discloses there was dis-
cussion about a contract for a season or 6 months. Daugherty, unlike on direct exam-
ination, stated on cross-examination he was not certain whether Hancock used the words
"1 year," but remembered that his words had that effect on him and gave him that im-
pression . While General Counsel ' s witness Whitehead testified unequivocally on direct
that Hancock proposed a 1-year contract , on cross-examination she recalled that Hancock
BELLHOUSE, INC. 1301
present employees at the rate they were getting and make them leaders if necessary;
that wages for new male employees would start with $1.30 an hour to be raised 5
cents after 30 days, and an additional 5 cents after another 30 days, and wages for
new female employees would start at $1.25 per hour, raised 5 cents after 30 days, and
another 5 cents after an additional 30 days. Hancock also said that after a season
the wages and fringe benefits could be reconsidered , and that checkoff could be given
if the wage proposal was acceptable . Daugherty , a member of the employees' nego-
tiating committee , and president of the Union 's local , asked how long a season was,
and Hancock said 3 to 6 months, and turned to Niehaus for confirmation ; Niehaus
said 6 months . Wages were discussed at length. Adkins made a counterproposal
that the wages be as Respondent proposed with an additional 5 cents an hour to all
employees . He referred specifically to $1.40 an hour for present female employees,
$1 60 for present male employees , and $1 .40 for new female employees after 60 days,
and $1.45 for new male employees after 60 days . Neither side would retreat from
its proposal.
During the morning session a 1-week vacation with pay was again discussed. This
was the week Respondent closed down between Christmas and New Year's and for
which Respondent paid the employees in 1963. Niehaus again said that he would
not agree to this paid vacation unless he got the money back he borrowed . He offered
to write a letter stating that if he found that during the season he got back the money
that he borrowed, he would pay the employees for the week the Respondent would
be closed down . The season ended August 31, and the financial statement for it would
be available at the latest by October 10. Adkins replied that the Union could not buy
a pig in the poke like that, but that if there was to be a reopener after the season,
vacations could be discussed at that time . Adkins was staying with his proposal on
February 17 of a year's contract with a 6-month reopener.
During this morning session Niehaus again stated that he would not agree to any-
thing for longer than a season. This is corroborated by Adkins ' testimony that during
this morning session when wages were being discussed , Daugherty , a member of the
employees ' negotiating committee , and the president of the Union 's local, said,
"Well, we feel we should have some money ," and asked the question , "Couldn't we
agree on a six months ' contract"; Adkins replied to Daugherty in the presence of all
the negotiators , "No, Charlie we can't agree to that. We won't agree to it because
the policy of our Union is that we don't agree to a contract less than one year"; and
Daugherty rejoined by saying, "Well , I was just trying something ." Statements such
as Daugherty made are not made in a vacuum . They are part of a discussion regard-
ing the subject matter. Daugherty had been apprised earlier by Niehaus that the sea-
son referred to by Hancock was a period of 6 months.
About noon Adkins expressed the opinion that they were getting nowhere on the
wage issue and suggested that they resort to the Federal Mediation and Conciliation
Commission . He asked Hancock to telephone the Commission to obtain the assist-
ance of a conciliator Hancock telephoned the Commission and arranged to have a
conciliator at his law office at 4 o'clock in the afternoon . Negotiations were being
held in the library of the law office . Adkins, International Representative Smith, and
the employees negotiating committee went to Adkins ' office. While they were there,
said about the same time that Respondent needed a season , that at the end of the season
it would be known if there was a company to operate , and if there was not a company
to operate at the end of the season there would be no point in having a contiact for a
company not in existence Smith, another of General Counsel ' s witnesses who testified
on direct examination that Hancock proposed a 1-year contract , testified on cross-
examination that Niehaus stated , at the January 28 and February 17 and 27 morn-
ing meetings , that it was important to get through the season to see whether he made
money or did not make it, that he needed one season to see how he got along, that it
was possible he might have to liquidate the business if the season was not successful,
and that he thought he could dispose of the business and come out even. Certainly,
Hancock, who was only the attorney for Niehaus, the owner of all the stock in Respond-
ent, would hardly propose a contract term directly contrary to the wishes of Niehaus
expressed at the February 17 and 27 morning meetings While witnesses Daughtery.
Smith, and Whitehead could not recall what occuried during the February 17
negotiations , the day on which the most intensive negotiations were held , they had un-
equivocal and similar recollections on direct examination of what transpired at the ses-
sions on February 27 These recollections were not as clear on cross -examination. Wit-
ness Whitehead testified that the most important issue in the case was the term of the
contract . I have made the finding of what Hancock proposed in the February 27 morn-
ing session after evaluating the demeanor testimony , and the testimony of what transpired
in context of all the witnesses who gave testimony regarding this session.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Adkins received a telephone call from Hancock in which the latter told him that the
checkoff had been discussed with Niehaus and was withdrawn . During the morning
session Niehaus had stated that checkoff with the attendant clerical duties would be
additional overhead expense. This was contrary to his objective of reducing rather
than increasing operation costs.
4. The February 27 afternoon meeting
About 4 p.m . on February 27, Conciliators Cocalis and Lesley of the Federal
Mediation and Conciliation Commission met with the negotiators for the Union and
the Respondent in the library of Hancock's law office. As previously stated, the union
negotiators were Adkins , Smith, Daugherty , Whitehead , and Pilgrim , and Respond-
ent's negotiators were President Niehaus, Hancock, Brown, and Hansen. After
introductions , Hancock, who had telephoned the Commission and arranged for the
mediation session at Adkins' suggestion , asked Adkins , the union spokesman, if the
issues to be considered should be stated in a joint meeting with the conciliators or
whether they should be stated by each side in separate meetings . Hancock said he
preferred the latter alternative , and Adkins said he also preferred it. Hancock and
Respondent 's other representatives then left the library and went to Hancock's private
office. Conciliators Cocalis and Lesley then listened to Adkins ' statement of the
issues to be considered.
Adkins said to Cocalis and Lesley that the parties were apart on wages, fringe
benefits, and checkoff. The Union wanted 5 cents an hour more than Respondent's
proposal of that morning , and the same Christmas -week vacation with pay the employ-
ees received in 1963 on the commitment Respondent 's former President Bell gave
before Niehaus purchased his interest on December 5, 1963. The checkoff sought
was the standard checkoff set out in the Union 's original proposal . In this first con-
versation between the union representatives and the conciliators , there was some
colloquy about the term of the contract between Cocalis and Lesley . In the course
of it, Adkins said to Cocalis that the parties had discussed a 1-year contract with a
6-month reopener . 8 There is no evidence , however, that Adkins listed the term of
the contract as an issue to be mediated.
Cocalis and Lesley then went to Hancock 's office and talked with him, Niehaus,
Brown , and Hansen . Cocalis stated the Union 's demands for wages , vacation, and
checkoff. Niehaus spoke about the poor financial condition of Respondent , the neces-
sity of being able to operate for a season without cost increases to see if operations
could be continued beyond that time . Cocalis asked about the paid vacation given in
1963, and Niehaus explained that the former President Bell had agreed to give it
prior to transferring his ownership to him. Niehaus then began recounting the union
proposals that Respondent had accepted , until Hancock stated that the only matters
before the conciliators were wages and checkoff . Niehaus refused to move from the
wage proposal made by Hancock in the morning or to accept the Union 's demand
for a paid vacation or checkoff . Either Hancock or Niehaus stated to Cocalis what
Respondent 's wage proposal was. The term of the contract was not discussed. It
was not mentioned by Cocalis or by Niehaus or Hancock.
Cocalis and Lesley returned to the library and Cocalis informed the union repre-
sentatives that Respondent would not budge from its position on wages, vacations,
or checkoff . Adkins, after talking to the employees ' committee (Daugherty , Pilgrim,
and Whitehead ) said to Cocalis that if Respondent would bring the new employees
up to what the present employees were getting , and give the Christmas week paid vaca-
tion, and checkoff, they would drop the demand for the 5-cent increase. The
Union's second proposal was then conveyed to Respondent 's representatives by
Cocalis and Lesley. Cocalis again did the talking . Niehaus or Hancock told Cocalis
that the new male employees would start at $1.30 and be brought up to $1.40 only,
15 cents below what the present employees were getting , and there would be no
commitment on vacation with pay at least until after the financial condition of the
company following the 6-month season was known. Niehaus , as he did in the morn-
7 The earlier proposal that morning by Hancock regarding checkoff, and the telephone
withdrawal from any position favorable to checkoff , appears to have been a move by
Respondent to induce the Union to be more receptive to the wage terms it had proposed
s I make this finding on the testimony of witness Whitehead that Adkins said to Cocalis
that the parties had discussed a year' s contract that moining the evidence that Cocalis
in the last discussion with the union repiesentatives prior to the joint meeting with
Respondent ' s negotiators rereried to a year ' s contract with a 6-month reopener, and
Hancock's testimony that in a later conversation he had with him Cocalis said that the
contract was for a year
BELLHOUSE, INC. 1303
ing session, offered to write a letter to the Union stating he would give the paid
Christmas week vacation if he found that he got back during the season the money
he borrowed. Cocalis and Lesley, were told by Niehaus or Hancock that if the
Respondent's proposals on the wages and vacations were accepted, it would agree
to a checkoff.
At the third meeting with the union representatives, Cocalis informed them that
Respondent would not budge on wages or vacation, but that they thought that they
could get them the checkoff if they accepted Respondent's proposals on wages and
vacation. Cocalis also said that a year's contract with a 6-month reopener was better
than no contract at all. Adkins said to the employees committee, "Let's surprise
them and take it," and the committee agreed. Cocalis and Lesley returned to Han-
cock's office and informed Niehaus, Hancock, Brown, and Hansen that the Union
would accept the proposal. Hancock testified that on their return, Cocalis "indicated
to us that it was a deal." Respondent's representatives along with Cocalis and Lesley
then went back to the library.
It is undisputed that the Union and Respondent's negotiators met with Cocalis and
Lesley in the library for a period of 5 to 10 minutes. In part of this short period,
Cocalis said that Lesley and he had worked out the problems between them on wages
and checkoff, and understood that they had reached agreement on the other items
in the contract. The parties agreed. Cocalis then specifically enumerated a wage
schedule consisting of the then existing wage rates for "present" male and female
employees of $1.55 and $1.35 respectively, and starting rates of $1.30 and $1.25 for
new male and female employees, respectively, with a 5-cent increase in each of the
rates after 30 days and another 5-cent increase after 60 days, to bring the new
employees up to rates of $1.40 and $1.35, respectively. When each rate was announced
he asked for indorsement by the Union and Respondent by the use of the word
"Right" expressed in the tone of a question, and Adkins for the Union and Niehaus
or Hancock for Respondent answered in the affirmative by the use of the same word,
"Right," expressed in the tone of a statement of fact Cocalis then stated, "Standard
checkoff," and in the same questioning tone, said "Right," and Adkins and Niehaus or
Hancock answered in the affirmative by repeating this word. At this point, Lesley
asked, "Effective today?" and Hancock answered by the words, "Of now," and Adkins
by the word, "Right." Hancock said that if there was any problem on the wages it
could be handled through the grievance procedure in the contract. Cocalis con-
cluded by asking, "Now, is everyone satisfied?" Daugherty answered, "Well, I'm not
satisfied, but I can live with it if the rest of us can." Niehaus said that he did give
them something, he gave them "the sixth holiday" and "a funeral relief day." This
5 to 10 minutes get together ended with Daugherty asking who was going to write
the contract, Adkins answering, "Well, Mr. Hancock can write it up according to his
notes, shoot it to me as he gets it done for my approval, and we will work that out,"
and Hancock saying, "That arrangement suits me." 9
5. The draft of the contract and the aftermath
As stated, supra, Hancock began sending to Adkins about March 6, 1964, the pages
of the contract as he drafted them, and sent a complete draft of the contract to
e I have relied on the testimony of Daugherty evaluated in connection with the testi-
mony of Adkins, Smith, and Whitehead as to what occuired in the discussions between
the conciliators and the union repiesentatives, and have relied on the testimony of
Hancock, evaluated in connection with the testimony of Niehaus and Biown as to what
occurred in the discussions between the conciliators and Respondent's representatives
My findings of what occurred during the brief joint meeting following the mediation are
premised on the testimony of Hancock and Daugherty evaluated in connection with the
testimony of Smith. Adkins, Whitehead, Niehaus, and Biown I have not credited the
testimony of Adkins, Smith, Whitehead, and Daugherty that at the 5- to 10-minute point
meeting at the end of the mediation, Cocalis also listed contract provisions agreed to by
the parties prior to the afternoon session including the term of the contract These
negotiated provisions had not been reduced to writing and except for a reference to the
term of the contract by Adkins when the union representatives first met separately with
the conciliatois had not been discussed with them Thcie is tistiaionv that Le-ley had
something in his hand which may have been the original proposal and counterproposal
and Cocalis was reading from notes How either Cocalis or Lesley in a very brief period of
minutes could have been aware of the other negotiated matters by looking at the proposal
or counterproposal or at some unidentified notes, and Cocalis have had the time within
the short joint session to have listed them even very briefly, when what I have credited
as having taken place was obviously crowded into it, is beyond my comprehension
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hancock on April 6 Amended pages to include the standard checkoff provision
which was in the Union's original proposal, and list Christmas Eve as the sixth-paid
holiday were later sent by Hancock to Adkins to
As stated, supra, the draft Hancock sent to Adkins on April 6 contained a termi-
nation date of October 31, 1961. In the draft following the no-strike clause, which
was taken from the Union's proposal, Hancock provided that at termination of the
contract "wages, vacation, and other terms and conditions of employment are open
for reconsideration and may be baigamed upon," and "at that time the Union and
Company may then resort to their economic weapons and the Union specifically
reserves the right to strike if the wage and vacation package is not agreeable to both
parties " At the February 17 meeting, after listening to Niehaus elaborate on the
poor financial condition of Respondent, Adkins said there ought to be a reopener on
wages and fringe benefits in a 1-year contract after 6 months, but the Union would
have the right to strike if an agreement was not reached. While at this time Niehaus
said he would not sign any agreement for more than a season, Adkins was assured
by Niehaus or Hancock that the Union would have the right to strike when wages
and fringe benefits were renegotiated.11
Adkins received the draft on April 6. In a telephone conversation of that date
with Hancock he referred to the termination date of October 31, 1964. He stated
to Hancock that the agreement was a contract of 1 year with a 6-month reopener.
Hancock said it was his understanding that the termination date of October 31, 1964,
was what was agreed on, but that he would talk "to his people." Adkins talked to
Cocalis about the term of the contract, and had another telephone conversation with
Hancock on April 8. Hancock said that he had talked "to his people" and they
understood the agreement to be what was in the contract. Adkins asked Hancock to
call Cocalis, and said he would also call him. Adkins talked to Cocalis that day by
telephone about the termination date. Hancock had a personal conversation with
Cocalis on April 8 or 9. He asked him if he recalled any agreement about the term
of the contract. The latter told Hancock it was his recollection the contract was for
a year. Adkins telephoned Hancock again on April 10 and each disclosed to the
other he had talked to Cocalis Hancock told Adkins that Cocalis believed the con-
tract was for a year. Hancock, however, stated that Respondent's position was that
the agreement was as stated in the contract He said to Adkins that there was a mis-
understanding, and they ought to meet and work it out. Hancock repeated this posi-
tion in a letter to Adkins dated April 13. Adkins took the position that it would be
pointless to meet until Hancock changed the contract to provide a term of 1 year
with a 6-month reopener.
On April 13, 1964, Adkins addressed a letter to Respondent in which he stated that
Respondent had failed to fulfill its promise to sign the agreement that it and the
Union had agreed on. He referred to an agreement for a term of 1 year with a
6-month reopener on wages and fringe benefits after 6 months. He then notified
Respondent that unless it signed the agreement it would file charges against it for
refusing to bargain in good faith. On April 16, President Niehaus sent a reply to
11 It is obvious from the record that the omission of these items from the draft sent
on April 6 was just an oversight in the course of the drafting. While parties may
negotiate a contract , and make notes of what was agreed on , including language, it may
well be that in the process of drafting provisions may be omitted or stated differently
than what a negotiator understood the agreement to be . Hancock contributed substan-
tially to the bargaining by drafting the contract , and readily included provisions for
checkoff and a paid holiday on Christmas Eve when their absence from the contract was
brought to his attention The arrangement between Adkins and Hancock was that they
would work out any drafting problems that appeared when the initial draft was prepared
by Hancock . Any contention that Hancock omitted the checkoff and the sixth-paid
holiday deliberately , and included them under the threat of the unfair labor practice
charge is lacking in merit
"Hancock had negotiated a 1-year contract with Adkins for another client, and had
knowledge of another 1-year contract that Adkins had negotiated . He was aware of the
Union's policy of seeking a contract for at least a period of 1 year. On the other hand,
he was Niehaus ' attorney , and since January 28, 1964 , Niehaus controlled the bargaining
on monetary matters . This included the term of the contract . He left to Hancock the
bargaining on standard contract provisions and language.
BELLHOUSE, INC. 1305
Adkins He stated that the contract agreed on was the one drafted by Hancock and
that he was ready to sign it. He also stated that the Union was contributing to
Respondent's difficulty of surviving until it received a financial statement for the sea-
son from March 1 to August 31, and that he would hold the Union and Adkins
responsible "for closing this business and putting 120 people out of work."
Analysis and Concluding Findings
From the foregoing findings it is clear that the Union through Adkins made a
demand for a contract of at least a year at the January 28 meeting, and at the Febru-
ary 17 meeting proposed a 1-year contract to be reopened after 6 months for negotia-
tions on wages and fringe benefits. Respondent, by its president, Niehaus, stated at
the February 17 meeting that he would not sign a contract for more than the period
of a season. A season was identified as the 6 months from March 1 to August 31,
1964. He stated further that he would renegotiate wages and fringe benefits when
he received a financial statement for the period ending August 31, which at the latest
would be October 10, 1964. The Union's proposal of a 1-year contract with a
6-month reopener was renewed at the February 27 morning meeting, and at that
session, Respondent's president, Niehaus, reiterated his February 17 position that he
would not sign a contract for more than a season To Niehaus, increases in wages,
vacations with pay, and the term of the contract were inextricably enmeshed with
what happened during the 6-month period. He had to know before he would com-
mit himself or his company on any of these three items beyond the 6-month period.
I have credited Whitehead's testimony that Adkins stated to Conciliator Cocalis at
the first separate meeting the union negotiators had with him and Conciliator Lesley
at the February 27 mediation that a 1-year contract with a 6-month reopener had
been discussed It had only been discussed. The parties were apart on this issue.
No agreement had been reached as Adkins was firm in his position that the contract
had to be for a period of at least a year, and Niehaus was firm in his position that he
would not commit himself or his company for longer than the 6-month season. The
evidence of what transpired at the mediation shows clearly that both parties avoided
mediation on the term of the contract. Conciliators Cocalis and Lesley apparently
had the impression that the term of the contract was not an lssue.12 I conclude and
find from the evidence of record that when the mediation ended on the afternoon of
February 27, no agreement had been reached on the term of the contract.
Hancock, whose bargaining was controlled by President Niehaus, his positive-
thinking and strong-minded client, and who was aware that Adkins was impervious
to settling for a contract of less than a year, had the unhappy assignment of drafting
the contract. In an attempt to state, in writing, what he considered to be the best
accommodation of the respective positions of the Union and Respondent, he provided
a termination date of October 31, 1964. Since the contract was effective from
February 27, the term ending on October 31 was roughly about 8 months. This was
2 months longer than the season for which Niehaus said he would sign. But Niehaus
had also said the financial statement would be due at the latest by October 10 So
he rounded out this date to October 31 to stretch the term as far as he could The
provision in the contract that the Union had the right to strike during reconsideration
of the wages and fringe benefits after the conclusion of the contract represents what
Niehaus and Hancock believed was agreed to at the February 17 meeting after dis-
cussing the right to strike in connection with the renegotiations. While Adkins had
in mind renegotiations during a 1-year contract after the first 6 months with the right
to strike contrary to the no-strike clause of the agreement, Niehaus had in mind
renegotiations after the expiration of the contract.
It appears from the conversations between Hancock and Adkins that took place
after Adkins received the draft on April 6, and from Hancock's letter of April 13,
that Respondent was willing to meet and discuss further the term of the contract.
Niehaus wrote to Adkins on April 16 that he would sign the contract with the Octo-
ber 31, 1964, termination date in it. The Union refused to meet with Respondent
121 have considered the apparent willingness of the parties to have unsettled issues
mediated, what they mediated, and their failure to submit the term of the contract to
mediation. I do not give any weight to Conciliator Cocalis' opinion that an agreement
was reached on a term of 1 year as it was obviously based only on what Adkins told him.
See Midas International Corp. et al., 150 NLRB 486.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the ground that an agreement had been reached on this issue. Contrary to the
Union's position, however, Respondent and the Union had bargained to an impasse
on the term of the contract by the end of the morning session of February 27, 1964,
and did nothing to break this impasse either during the afternoon meeting on Febru-
ary 27, or in their later conversations or correspondence regarding the termination
date Hancock inserted in the draft of the contract. I conclude and find that Respond-
ent did not accept the Union's proposal of a contract term of 1 year from February 27,
1964, to be reopened after 6 months for negotiations on wages and fringe benefits.13
I conclude and find that Respondent offered to sign a contract for a season of 6 months
from February 27, 1964, and to renegotiate wages and fringe benefits after the finan-
cial statement for the 6-month period was available, which would be October 10, 1964,
at the latest, and subsequently offered to sign an 8-month contract with a termination
date of October 31, 1964, and renegotiate at that time wages and fringe benefits. The
Union did not accept either offer.
Respondent has, therefore, not violated Sections 8(a)(5) and 8(d) of the Act by
refusing to sign a written contract incorporating an oral agreement proivding for a
term or duration of 1 year to be reopened after 6 months for renegotiation of wages
and fringe benefits, as alleged in the complaint General Counsel has not proved by
substantial evidence that Respondent orally agreed to this contract term or duration
Since the General Counsel's complaint, the theory of his case, and the thrust of
his evidence predicated bad faith on a refusal to comply with an agreement of a
contract term or duration of 1 year, bad-faith bargaining predicated on a refusal to
agree to a contract term or duration of 1 year, and proposing and bargaining for
a contract of the duration of a season of 6 months only,14 is beyond the scope of the
complaint and the theory of the case as framed by the General Counsel. Evidence
was presented to support and rebut the General Counsel's theory of the case. The
evidence of record has an incidental relationship only to the second issue of bad-
faith bargaining. This issue is not properly before me, and I do not pass on it.15
For the foregoing reasons, I shall recommend dismissal of the complaint.
CONCLUSIONS OF LAW
1. Respondent Bellhouse Inc , is engaged in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
2 Respondent has not engaged in unfair labor practices within the meaning of
Section 8 ( a)(5) and (1) of the Act as alleged in the complaint.
3. The complaint should be dismissed in its entirety.
RECOMMENDED ORDER
It is recommended that the Board issue an Order dismissing the complaint in its
entirety.
19 Respondent's agieement on paid holidays, funeral leave, and jury duty provisions,
which would have application beyond the 6-month period, does not rebut Respondent's
position that it bargained only for a 6-month contract These provisions are standard
contract provisions and reflect a national labor-management relations policy. They are
not tied to the term of a contract as are wages.
i4 See Section 8 (d) of the Act , N L R B v. American National Insurance Co , 343
U S 395, 404; Fibreboard Paper Products Corp v. N L R B , 379 U S 203, 57 LRR\I
2609, 2611 , N L R B v Henry Heide, Inc , 219 F 2d 46, 49 (C A 2), cert denied 349
U S. 952 , Esti Neiderman., et at , d/b/a Star Baby Co , 140 NLRB 678, 681, enfd. as
modified 334 F 2d 601, 604 (CA. 2) ; General Electric Company, 150 NLRB 192,
The Htinde & Daaroh Paper Company, 104 NLRB 847, 848
is See Local 542, International Union of Operating Enginceis (Elmhurst Contracting
Co ), 141 NLRB 53, 55, N L R B v Fred H Johnson, d/b/a Atlas Linen and Indust) gal
Supply, 322 F 2d 216, 219-220 (C A. 6) Respondent's president offered to sign the writ-
ten contract with the termination date therein of October 31, 1964, drafted by Hancock, his
attorney The certification year ended on October 6. 1964 During the baigaining, he
refused to sign a contiact for more than 6 months See Yutana Barge Lines, Inc, 123
NLRB 1073-1074, enfd 315 F 2d 524, 528 (CA 9), regarding bad faith per se in a
refusal to accept a contract coextensive with the certification year, and substantial
evidence of bad faith, of a proposal, standing alone, of a contiact of only a season's
duration of 5 months Also see cases cited in footnote 14.