Ben Franklin National Bank

National Labor Relations Board - Board Decisions

Mar 17, 1986

278 N.L.R.B. 986 (N.L.R.B. 1986)

986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ben Franklin National Bank and United Food and
Commercial Workers Union , Local No. 1439,
AFL-CIO. Cases 19-CA-13794 and 19-CA-
14386
17 March 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 9 August 1982 Administrative Law Judge
James T. Barker issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of
the judge's decision.
The National Labor Relations Board has delegat-
ed 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 briefs" and
has decided to affirm the judge's rulings, findings,
and conclusions2 and to adopt the recommended
Order as modified.3
1 The Respondent has requested oral argument . The request is denied
as the record , exceptions, and briefs adequately present the issues and the
positions of the parties.
2 We agree with the judge' s conclusion that, under the circumstances
of this case, William Hart, the Respondent's president and a member of
its board of directors, obligated the Respondent to execute a collective-
bargaining agreement upon the Union 's acceptance of the complete con-
tract offer communicated by Hart on 19 June 1981, notwithstanding prior
reservation of the right of the Respondent 's president and board of direc-
tors to approve and ratify "any tentative agreement reached and ap-
proved by the Bank's negotiating committee." It is well established that a
principal may limit its agent 's negotiating authority by affirmative , clear,
and timely notice to the other party that any tentative agreement is con-
tingent upon subsequent ratification . E.g., University of Bridgeport, 229
NLRB 1074 (1977); Aptos Seascape Corp., 194 NLRB 540 (1971). An
agent whose authority depends upon such a contingency may have the
apparent authority, however, to convey its satisfaction . Walnut Hill Con-
valescent Center, 260 NLRB 258 (1982). Hart 's status as the Bank's presi-
dent would not per se bind the Respondent, but for reasons fully set forth
in the judge's decision , we find that Hart had the apparent authority to
convey the Respondent 's final and binding approval of the 19 June con-
tract offer which the Union subsequently accepted . See Walnut Hill Con-
valescent Center, supra; Niagara Therapy Mfg. Corp., 237 NLRB 1, 4
(1978). To conclude otherwise would effectively mean that an undisputed
negotiator for the Respondent had made a comprehensive , unconditional
final contract offer in bad faith, without any intention to be bound there-
by.
In addition , we find no merit in the Respondent's contention that under
technical rules of contract law the Union's acceptance of the Respond-
ent's offer was not effective until the acceptance mailgram was received
by the Respondent on 24 July 1981, after expiration of the Union's certifi-
cation year. As stated by the judge, technical rules of contract law do
not necessarily control the making of collective -bargaining agreements,
but assuming arguendo the applicability of such rules here, the Union's
acceptance was operative when its mailgram was dispatched on 23 July,
the final day of the certification year . 1 Williston , Contracts § 81 (3d ed.
1957); Restatement 2d, Contracts § 63 (1979).
9 The collective-bargaining agreement at issue here would have ex-
pired by its terms on 30 June 1984 . Consequently , we will modify the
recommended Order to provide that the Respondent shall sign the agree-
ment at the request of the Union or , absent such request , shall bargain in
good faith with the Union , on request , with respect to the terms and con-
ditions of a contract and, if an agreement is reached , embody it in a
signed agreement . Worrell Newspapers, 232 NLRB 402 (1977).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Ben Franklin National Bank, Pasco,
Washington, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraphs 2(a)
and (b).
"(a) On request, sign a collective -bargaining
agreement containing the terms and conditions of
employment agreed to between the Respondent
and the Union on 23 July 1981, give retroactive
effect to its t6rms and conditions, and make its em-
ployees whole for losses, if any, they may have suf-
fered as a result of its refusal to sign such an agree-
ment, with interest.
"(b) If no such request is made, bargain collec-
tively in good faith with the Union, on its request,
as the exclusive representative of the employees in
the appropriate unit, over the terms and conditions
of a new collective-bargaining agreement and, if an
agreement is reached, embody it in a signed agree-
ment."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively re-
garding wages, hours, or other terms and condi-
tions of employment with United Food and Com-
mercial Workers Union, Local No. 1439, AFL-
CIO as the exclusive representative of the employ-
ees in the following appropriate unit:
All employees of the Employer, employed
at its Pasco, Washington, and Connell, Wash-
ington, operation, excluding operations super-
visors, bank officers, executive secretary, and
all guards and supervisors as defined in the
Act.
WE WILL NOT refuse to execute the contract
with the Union which was agreed upon on 23 July
1981.
278 NLRB No. 136
BEN FRANKLIN NATIONAL BANK 987
WE WILL NOT fail and refuse to give effect to
the terms and provisions of the agreed-upon con-
tract with the Union.
WE WILL NOT refuse to honor the Union's re-
quest for information relevant and necessary to its
duty to serve as the exclusive collective-bargaining
representative of the employees in the unit de-
scribed above.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, sign a collective-bargain-
ing agreement containing the terms and conditions
of employment agreed to between us and the
Union on 23 July 1981.
WE WILL give retroactive effect to its terms and
conditions and make our employees whole for
losses, if any, which they may have suffered as a
result of our refusal to sign .a contract, with inter-
est.
WE WILL, on request, bargain with the Union
over the terms and conditions of a new agreement
if the Union does not request that we sign the
agreement and, if an agreement is reached, WE
WILL sign a new contract.
WE WILL furnish the Union with the names of
each employee employed in the above-described
unit, together with the address, wage rate, and job
classification of each unit employee.
statements , and to filed briefs with me . The General
Counsel and counsel for the Respondent timely filed
briefs.
On my observation of the witnesses , the entire record
in this proceeding , and the briefs filed herein , I make the
following
FINDINGS OF FACT
1. JURISDICTIONAL FACTS
At all material times, Respondent has been a chartered
national banking association with an office and place of
business in Pasco , Washington , where it is engaged in the
business of banking.
During the 12-month period immediately preceding
the issuance of the complaint, Respondent , in the course
and conduct of its business operations, had gross revenue
from its banking operations valued at in excess of
$500,000.
During the same 12-month period, Respondent, in the
course and conduct of its business operations, purchased
and caused to be transferred and delivered to its facilities
within the State of Washington, goods and materials
valued at in excess of $50,000 directly from sources out-
side of the State of Washington , or from suppliers within
the State which, in turn , obtained such goods and materi-
als directly from sources outside the State.
Respondent admits, and I find , that at all times materi-
al, Respondent has been an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
BEN FRANKLIN NATIONAL BANK
Patrick F. Dunham, Esq., for the General Counsel.
Mark A. Hutcheson, Esq. (Davis, Wright, Todd, Reise, and
Jones), of Seattle, Washington , for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge. This
case was heard before me at Richland, Washington, on
May 5 , 1982,• pursuant to an order consolidating cases,
consolidated complaint , and notice of hearing, issued on
March 25, 1982, by the Regional Director of the Nation-
al Labor Relations Board for Region 19 . The consolidat-
ed complaint is based on a charge filed in Case 19-CA-
13794 , on August 5, 1981 , by United Food and Commer-
cial Workers Union, Local No. 1439, AFL-CIO, (the
Union); and a charged filed by the Union in Case 19-
CA-14386 on March 11 , 1982 . The respective charges
were timely served on Respondent by certified mail. Re-
spondent filed an answer to the consolidated complaint
and, during the course of the hearing , amended the
answer to admit certain factual allegations contained in
the consolidated complaint . The parties were represented
by counsel at the hearing and were provided full oppor-
tunity to introduce relevant evidence , to examine and
cross-examine witnesses, to make opening and closing
Respondent concedes, and I find , that at all times ma-
terial the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether the parties achieved agreement on the
terms of a collective-bargaining agreement on or before
July 23, 1982, the last day of the certification year.
2. If no agreement was achieved , whether Respondent
entertained a reasonably based good-faith doubt about
the continued majority status of the Union when on July
24, and August 4, respectively, Respondent notified the
Union that it was withdrawing recognition and stated af-
firmatively that it could not sign a proposed bargaining
agreement because the Union no longer represented a
majority of the unit employees.
3. Whether on February 12, 1982, Respondent violated
Section 8(a)(5) of the Act by refusing to provide infor-
mation which had been requested by the Union in its as-
serted role as designated collective-bargaining represent-
ative of Respondent's employees.
B. Background Facts
At pertinent times William A. Hart has occupied the
position of president and chief executive officer of Re-
spondent. John Sean Harrigan .is president of the Union.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About July 24, 1980, the Union was certified as the
bargaining representative of the employees employed in
the following unit appropriate for the purposes of collec-
tive bargaining:
All employees of the employer, employed at its
Pasco, Washington, and Connell, Washington oper-
ation, excluding operations supervisors, bank offi-
cers, executive secretary, and all guards and super-
visors as defined in the Act.
Prior to October 7, 1980, Respondent received a re-
quest from the Union to engage in collective bargaining
for the purpose of achieving a collective-bargaining
agreement. On October 7, 1980, Respondent's legal coun-
sel, Mark Hutcheson, dispatched a letter to the Union
agreeing to engage in collective bargaining and stating,
inter alia.
In advancing proposals for an agreement, the
Bank reserves the right during negotiations to sub-
stitute proposals for those previously offered and to
delete proposals as negotiations proceed. Any tenta-
tive agreement reached and approved by the Bank's
negotiating committee will become final only after
it has been submitted to and has been approved and
ratified by the Bank's President and Board of Direc-
tors.
Subsequently on January 7, 1981,1 Harrigan requested
that negotiations commence and that the Bank be repre-
sented by bank officers possessing the authority to act on
behalf of the Bank and vested with authority to reach
agreement. Hutcheson responded by letter as follows:
We assure you that the Bank's negotiators possess
the authority to adequately represent the Bank, sub-
ject to the conditions outlined in our letter dated
October 7, 1980 . .. .
Therafter, in late Janaury collective-bargaining negotia-
tions commenced, and approximately 12 bargaining ses-
sions were conducted. At the early collective-bargaining
sessions Respondent was represented by Mark Hutcheson
and Respondent's incumbent personnel manager. In late
April William Hart began to participate in the negotia-
tions, along with Hutcheson and Cecil Monroe, the
newly designated personnel manager of Respondent.
Sean Harrigan was the principal collective-bargaining
representative for the Union and he was assisted by
Aleene Galloway, executive field representative of the
Union, and by an employee negotiating committee. At
the first negotiating session, Harrigan asked Hutcheson
whether or not he possessed authority to negotiate on
behalf of Respondent. Hutcheson stated that he had ne-
gotiating authority, subject to approval by the board of
directors of any agreements achieved. Hutcheson assert-
ed that he would be meeting with the board of directors
throughout the course of the negotiations to discuss pro-
posals and counterproposals. In response, the Union's
representatives informed Hutcheson that they were as-
Unless otherwise specified, all dates herein refer to the calendar year
1981
suming that "he had the authority to convince the Board
of Directors to agree to whatever was agreed to at the
bargaining table." The standard collective-bargaining
practice followed by the Union is to submit the terms of
an agreed-upon collective-bargaining instrument to the
membership for ratification. If the terms are rejected and
the employees decline to strike, the president of the
Union has the authority to execute the agreement.
At a meeting in May while collective-bargaining nego-
tiations were in progress, the employees voted strike au-
thorization which vested Harrigan, in his position as
president in the Union, to call a strike following specific
authorization from the International and without further
approval of the membership.2 The last bargaining meet-
ing was held on June 17.
C. The Alleged Unlawful Conduct
1. The purported agreement
a. The submission of final offers
Throughout the negotiations , Hutcheson served as Re-
spondent 's principal spokesman and negotiator. It was
Hutcheson who presented bargaining table offers on
behalf of Respondent and it was Hutcheson who was Re-
spondent's spokesman during all discussions at the bar-
gaining table . This procedure did not change after Hart
began attending negotiating sessions in late April. On
three or four occasions during the course of negotiations,
Respondent 's negotiators informed the negotiators for
the Union that it was necessary for them to obtain in-
structions from the board of directors with respect to
certain contract issues. On those occasions , Respondent's
negotiators would return to the bargaining table with a
statement of position . Hutcheson was the spokesman for
Respondent on these occasions.
By June 17 the party had achieved agreement on a
subtantial number of collective -bargaining items. In the
course of negotiations to that point in time, when union
proposals were accepted or rejected by Respondent,
Hutcheson served as the spokesman.
During the last few bargaining sessions, the parties dis-
cussed the term of the agreement . The Union pressed for
a 1-year contract while Respondent sought a 3-year
agreement with no wage reopeners during the term of
the contract.
The June 17 bargaining session was attended by Hut-
cheson, Hart, and Cecil Monroe, Respondent 's personnel
manager. Harrigan , Galloway, and two employee mem-
bers of the negotiating committee were in attendance on
behalf of the Union . During the course of the meeting,
the Union presented its final offer. It included all items
previously agreed to, as well as five issues on which the
parties had not reached agreement . The Union modified
its earlier request for an agreement of less than 3 years'
duration , by proposing a 3-year term with wage reopen-
ers on July 1, 1982, and July 1, 1983. As he had done in
previous bargaining sessions , Respondent 's spokesman
proposed a 3-year agreement and expressed the desire of
2 The foregoing is based on the credited and undisputed testimony of
Sean Harrigan
BEN FRANKLIN NATIONAL BANK 989
Respondent to make wages and other terms effective
from July 1, 1981, with no midterm wage reopener. In
responding to the Union 's submission of its final offer,
Hutcheson stated that he did not have authority to give
a final commitment . He further stated that he and Hart
would meet with the board of directors that afternoon
and would respond formally after the meeting with the
board of directors had been held. This exchange tran-
spired at approximately 4:30 p.m. and the bargaining ses-
sion ended on this note. 3
Hutcheson and Hart met with a quorum of the board
of directors in the late afternoon of June 17. The Union's
final offer was presented to the board of directors. The
directors decided not to accept the five union proposals
which had not received approval of Respondent's nego-
tiators . The outstanding issues were: (1) union shop; (2)
arbitration as-the final step in the grievance procedure;
(3) improved vacation accrual ; (4) improved dependent
medical coverage ; and (5) the term of the agreement, in-
cluding the concept of midterm reopeners.
On June 19, by telephone, Hutcheson advised Harri-
gan that the board of directors had rejected the Union's
final offer. Moreover , by letter dated June 19, Hart ad-
vised Harrigan of the decision of the board of directors.
The letter explicated the Respondent's position with re-
spect to the five separate elements of the Union 's final
offer which Hart described as "features [the board of di-
rectors] cannot accept." In addition Hart's letter con-
tained the following paragraph:
Enclosed is the Bank 's final offer. It contains 83
separate paragraphs and sections . You have already
agreed to all but four of these provisions . In addi-
tion , you have agreed to our Appendix A, (list of
job titles); our Appendix C, (payroll deduction au-
thorization form ); and our Appendix B-1 (July 1,
1981 through June 30, 1982 wage rates).
The fourth issue relates to dependent medical
coverage . You have proposed that the cost of de-
pendent coverage for employees hired after April 1,
1980, be reduced to $45 .00 per month effective Jan-
uary 1, 1982, and to $30.00 per month effective
June 1, 1983. We do not believe our limited finan-
cial resources should be spent on this particular ben-
efit, especially since currently no employee hired
after April 1 , 1980 has elected dependent coverage.
The fifth issue relates to the term of agreement.
We have both proposed a three year agreement but
you want to reopen the agreement during the
second and third years to renegotiate wage rates.
We have proposed a three year wage package with
increases in our new system effective July 1, 1981,
July 1, 1982, and July 1, 1983, plus anniversary step
increases.
Under the circumstances , we believe our wage
package is quite reasonable and attractive . Many if
' The foregoing findings are based primarily on the credited testimony
of Sean Harrigan . I have also considered the testimony of William Hart,
the record representations of Mark Hutcheson made in response to a re-
quest to explicate defenses raised in Respondent's answer , and documen-
tary evidence of record.
not most of our employees have received pay in-
creases within the last few months . Many will re-
ceive additional increases when the new pay system
is implemented on July 1. Ignoring the recent pay
increases granted prior to July 1, we are proposing
increases from July 1, 1981 to July 1, 1982 of 13.6%
on the average . The three year package will gener-
ate increases in excess of 30% assuming no promo-
tions during the entire period. Upward movement
from one pay grade to another will, of course,
cause even greater increases in wages . Individual in-
creases will vary depending on placement in the
scale and anniversary date.
We believe the Bank's offer is fair and reasonable
and we ask that you present it to the employees for
their approval. Incidentally , we would also like to
implement the additional Birthday Holiday and in-
creased sick leave and funeral leave benefits effec-
tive July 1 along with the wage increases even if
our negotiations were not concluded by that date.
Agreement has been reached on these issues as with
the first year wage rates and we assume you have
no objections . Please advise if you do.
The letter was dispatched to Harrigan who received it
on June 22.
The comprehensive collective-bargaining proposal that
Hart dispatched to Harrigan , as an enclosure accompany-
ing his June 19 letter, was the first bargaining proposal
which Harrigan had received from Hart directly. Article
7 of the proposal, to which the parties had agreed on
June 10, provided:
Employees covered by this Agreement shall be paid
in accordance with the guidelines contained herein
and the applicable pay rates in Appendix B attached
and made part of this Agreement.
Appendices B-1, B-2 , and B-3 defined pay rates effective
from July 1, 1981, July 1, 1982, and July 1, 1983, respec-
tively.
Additionally, the proposal contained the following:
ARTICLE 22
TERM OF AGREEMENT
22.1 This Agreement shall become effective at
12:01 a .m. on the day after the date of execution
and shall continue in full force and-effect through
and including 11:59 p.m . , 1984 , and shall
continue in full force and effect from year to year
thereafter unless notice of desire to amend this
Agreement is served by either party upon the other
at least sixty (60) days prior to the date of expira-
tion . If notice to amend is given, negotiations shall
commence within thirty (30) days following the
date of the notice , and this Agreement shall remain
in effect unit] the terms of a new or amended agree-
ment are agreed upon ; provided , however , that if a
notice to amend is timely given , either party may at
any time thereafter notify the other in writing of its
desire to terminate this Agreement as of a date
990 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
stated in such notice to terminate , which date shall
not be earlier than the date of expiration , and shall
be at least sixty (60) days 'subsequent to the giving
of such notice to terminate.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed this
day of , 1981.
BEN FRANKLIN NATIONAL BANK
By
Its
United Food and Commercial Workers Union,
Local No. 1439, AFL-CIO
By
By
b. The rejection vote
In late June Respondent's final offer was submitted to
the employees, who voted to reject it. Thereafter, Harri-
gan contacted'the Federal mediator who had earlier been
involved in the negotiating process and sought to enlist
his assistance . From the information which Harrigan
later received from the mediator, Harrigan reached the
conclusion that further negotiations were not possible.
Thereafter, in his position as president of the Union, Har-
rigan caused to be prepared and distributed to the unit
employees a notice dated July 14 relating to a special
meeting which had been scheduled for 7 p.m. on July 22.
The notice recounted the chronology of events, includ-
ing the action of the employees in rejecting the Bank's
final contractual proposal and the input received from
the Federal mediator suggesting that further negotiations
would prove fruitless. In pertinent part the notice also
contained the following:
Based upon the banks [sic] position and their unsat-
isfactory contractual proposal, it appears that we
are being placed in a position of having but one
option-that being to intiate a work stoppage
against the bank. I had hoped that we would be
able to reach a peaceful settlement with the bank
management, but that no longer appears likely. At
this time we are anticipating that we will be initiat-
ing a work stoppage against Ben Franklin National
Bank of July 23, 1981.
The notice urged the employees to attend the July 22
meeting and stated the purpose of the meeting was "to
discuss our position, our strategy and our objectives."
As part of its strategy prior to the scheduled July 22
meeting , the Union handbilled Respondent's customers
advising, in substance, that the Union was anticipating a
work stoppage to commence on July 23- and suggesting
that customers make arrangements' to place their ac-
counts in other area banks. The handbilling received
some media attention in' the form' of new'spaper' articles
and radio commentary. The handbilling and the media
co`verage' came to the,attention ° of Hart.
c. Employees accept final offer
The July 22 meeting was held as scheduled. During
the cour'se' of the ' meeting ' a' majority of the employees
voting cast ballots in favor of accepting Respondent's
final offer . Thereafter, at 11:56 P .D.T. on July 23 a tele-
gram was dispatched from the Union 's Spokane, Wash-
ington offices addressed to Mark Hutcheson in Seattle,
Washington , containing the following text:
The bargaining unit employees at Franklin National
Bank voted on July 22, 1981, to accept the Bank's
contract proposal as presented to UFCW Local
1439. I will prepare five signed agreeement for
mailing. Upon receipt please execute the three
copies.
The telegram was dispatched over the signature of Sean
Harrigan. A confirmation copy was received in Hutche-
son's office on July 24.
In the meantime, the July 23 edition of the Pasco,
Washington newspaper carried a report that the mem-
bers of the Union had approved a 3-year contract with
the Bank and that Aleene Galloway of the Union decline
to release details of the contract until it "is formally rati-
fied by the bank directors."4
On July 24 Harrigan dispatched by mail to Hutcheson
in Seattle, Washington, six signed copies of a document
which he characterized as "the recently negotiated and
ratified" agreement. He requested that the document be
signed and copies be returned to him "as quickly as pos-
sible." The provisions of Repsondent's last offer had
been reformated but no relevant substantive changes had
been made in the provisions of Respondent's final offer
except:
1. A cover page was supplied identifying the parties in
a manner not previously agreed to and specifying a June
30, 1984 expiration date.
2. An "index" was supplied.
3. A heading to the textual portion of the agreement
was supplied which again identified the parties in a
manner not previously agreed to, i.e., "Labor Agreement
By and Between Ben Franklin National Bank and United
Food and Commercial Workers Union, Local 1439,
AFL-CIO."
4. In article 22.1, an expiration date of June 30, 1984,
was supplied.
d. Respondent withdraws offer and recognition of the
Union
On July 24 Hart dispatched a letter to Harrigan stat-
ing:
On July 23, 1981, I have received a letter signed by
a majority of our employees in the bargaining unit
stating that they no longer wish to be represented
by your Union. As a result, we must withdraw our
recognition of your organization as a collective-bar-
gaining representative of our employees. We have
been advised that the Bank would be committing an
unfair labor practice if it continued to deal with
your organization since it no longer represents a
4 The General Counsel stipulated to receipt of the newsclipping solely
to prove the fact that the item was reported and not for proof that Gallo-
way actually made the statement attributed to her.
BEN FRANKLIN NATIONAL BANK - 991
majority of our employees. We also withdraw from
the bargaining table our last offer sent to you on
June 19, 1981.
Thereafter, on ' August 4, Hutcheson dispatched a letter
to Harrigan wherein he acknowledged receipt of Harri-
gan's July 24 letter forwarding the five signed copies of
a purported agreement between Respondent and the
Union. In his letter, Hutcheson recited that the letter ar-
rived while he was out of town on vacation . Hutcheson
declined to return executed copies of the purported
agreement pursuant to Harrigan 's request, asserting:
As you know by now, the Bank has received a
letter signed by a majority of employees in the bar-
gaining unit stating that they do not wish to be rep-
resented by your labor organization . As a result, the
Bank's last offer was withdrawn before it was sub-
mitted to the Board of Directors for approval and
ratification.
No collective-bargaining agreement between the Union
and the Respondent has been executed. 5
e. The alleged good-faith doubt
(1) The alleged lack of support for the Union
In the meantime , April 22 employee Diane Daniels dis-
patched a letter to Aleene Galloway informing Galloway
that she,' Daniels, was withdrawing as a member of the
employee negotiating committee . Included in the letter
was the following:
I am just not the kind of person to try to get people
all stirred up about something, when they aren't
really interested, and that's how the majority feel.
Daniels gave a copy of the letter to Judy McKinny, a
branch office manager. Daniels testified credibly that she
worked with seven or eight of the employees in the unit,
was in daily contact with them, and had friends who
were unit employees employed at other branches.
At approximately 4:45 p.m. on July 22, 3 months later,
during the course of a manager's meeting, Judy
McKinny informed Hart that one of the employees
working under her direction had asked her what the em-
ployees could do to get rid of the Union . Hart sought
legal advise from Hutcheson.
Later that evening Hart received a telephone call from
McKinny who stated that she had conversed with Caryl
Story, an employee, who had informed her that a peti-
tion was being circulated among unit employees'. In the
meantime , during the afternoon and evening of July 22,
Caryl Story circulated among unit employees a petition
which read : "We the undersigned employees of Ben
Franklin National Bank wish to no longer be represented
by the United Food and Commercial Workers Union ef-
fective immediately." Eighteen employees signed the
document . The General Counsel stipulated the signatures
are valid.
5 The foregoing is based on the composite of the credited testimony of
William Hart and Sean Harrigan , as well as documentary evidence of
record. -
In the interim , at lunch on July 22, Caryl Story spoke
with Aleene Galloway inquiring into the voting proce-
dure to be followed at the special meeting which the
Union had scheduled for that evening. Galloway stated
that the employees would be voting either to accept the
Bank's proposal or to strike. Story responded, "Then
either way, the Union wins." Galloway laughed and said,
"Well, I guess you could say that."
Thereafter, before the meeting , which was to begin at
7 p.m., employees congregated in the parking area out-
side the meeting room . As employeess approached, they
would be asked if they wished to "get rid of the Union."
They would be given an opportunity to sign the petition
stating that they wished to no longer be represented by
the Union. Donna Kunish and Janice Palin were among
the employees who signed the petition , under those cir-
cumstances . The employees gathered in the parking lot
also discussed the strategy for voting. Confusion reigned
over whether or not to cast a ballot during the meeting
in light of the procedures that were to be followed and
the choices that were thereby presented to them. Story
instructed employees not to cast a ballot , but some em-
ployees remained undecided with respect to the proprie-
ty of that suggestion.
(2) The July 22 meeting
The meeting was held as scheduled . Harrigan, Gallo-
way, and two agents of the Union were present. Ap-
proximately 20 employees attended . At,the outset, Harri-
gan expressed the opinion that matters had reached the
point where the employees had two choices , either to
accept that Bank 's offer or to strike . He quickly read
aloud the provisions of the Bank 's proposal and some
discussion concerning the terms ensued . One of the em-
ployees asked Harrigan to explain the- effect of leaving
the ballot blank . Harrigan stated that it would not be
counted. The employees were told that the decision
whether to accept the proposal or to strike would be
based on a majority of ballots cast . The union representa-
tives were asked to leave the room . They did so, and the
employees carried on a discussion . Some of the employ-
ees remained confused and dissatisfied with the necessity
of having to, effectively vote for the contract , including
union recognition, or for a strike . Thereupon, the union
representatives were invited to return to the meeting.
Ballots were distrubuted to the employees containing a
"yes" and "no" box to be checked by the employee to
indicate his or her perference with respect to acceptance
or rejection of the Bank's proposal . Fifteen ballots were
cast in favor of accepting the proposal, one favored re-
jection, and four ballots were declared void because they
were blank.
Employees Caryl Story, Donna Kunish, and Janis
Palin credibly testified that they understood that if they
voted to accept the Bank 's proposal , they would be rep-
resented by the Union , whereas if they voted to strike
there would be a strike and the employees would go out
on strike . They testified they did not wish to strike and
they did not desire to be represented by the Union.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) Respondent receives employee petition
The employee petition bearing the valid signature of
18 of the 28 employees comprising the bargaining unit on
July 22 was received by Hart on July 23. Two former
members of the Union 's employee bargaining committee
had signed the petition . On July 27 another valid em-
ployee signature was submitted . Respondent played no
role in the circulation of the petition or the acquisition of
the signature.
c. The request for information
By letter dated February 3, 1982, the Union requested
Respondent to provide a list of the names, addresses,
wage rates, and classifications of all employees in the
unit . The letter was received in the due course of the
mails. Thereafter, on February 12, 1982, Hart advised the
Union as follows:
This responds to your letter of February 3, 1982. As
you are well aware, the Ben Franklin National
Bank would be committing unfair labor practice if it
treated you as exclusive representative of our bar-
gaining unit employees. We do not believe you
have the necessary majority status. Once the pend-
ing case (19-CA-13794) is ultimately resolved, the
matter will be settled and any obligations that may
exist between this bank and your organization may
then be considered.
The Respondent has not supplied the information re-
quested by the Union.
Conclusions
I find that Respondent violated Section 8(a)(5) of the
Act by failing and refusing to sign a contract embodying
the terms of a comprehensive, integrated bargaining
agreement achieved with the Union. I also find, howev-
er, that the obligation to execute the agreement arose in
context of a convergence of interrelated events transpir-
ing during the final 36 hours of the certification year and
carrying over to the initial day following the expiration
of the 1-year certification period, and these events gave
rise to a reasonably held doubt on the part of Respond-
ent about the existence of an agreement and the legal
propriety of executing it to extend recognition of the
Union. Although I find that this doubt did not provide
Respondent with a legal excuse for executing the agree-
ment, I do find that the record carries no reasonable im-
plication that the respondent failed to bargain in good
faith witht he Union during the course of the extended
bargaining that transpired, and that Respondent was
guilty of no independent unfair labor practices prior to
the time it failed and refused to execute the collective-
bargaining agreement which it had achieved with the
Union. However, I specifically find that Respondent
breached its statutory bargaining obligation and violated
Section 8(a)(5) and (1) of the Act by refusing to honor
the request of the Union for information pertinent to the
Union's role as bargaining representative of unit employ-
ees. This subsequent breach was derivate and ancillary to
the earlier failure and refusal of Respondent to execute
the agreement which it had achieved with the Union and
is not an independent manifestation of bad faith.
Absent unusual circumstances, the majority status of a
certified collective-bargaining representative is conclu-
sively presumed for the entire duration of the initial cer-
tification year and may not be truncated. See Ray Brooks
v. NLRB, 348 U.S. 96 (1954); Kit Mfg. Co., 138 NLRB
1290, 1294 (1962); NLRB v. Holly-General Co., 305 F.2d
670 (9th Cir. 1962); Keystone Valve Corp., 186 NLRB 64,
69 (1970). A petition bearing the signatures of a majority
of unit employees, signed and presented to the employer
during the certification year "is not the type of unusual
circumstances warranting suspension of the 1-year rule"
to release the employer from its obligation to grant ex-
clusive recognition to the certified labor organization for
the entire period of its certification. See Bluefield Produce
Co., 117 NLRB 1660 (1957); Peninsula Asphalt Co., 127
NLRB 136, 146 (1960); Holly-General Co., 129 NLRB
1098, 1103 (1961). However, in a corollary sense, the au-
thority of a certified bargaining representative to bargain
on behalf of unit employees or to sign a new collective-
bargaining agreement covering unit employees does not
survive the termination of the certification year and the
presentation of evidence establishing that the union's ma-
jority status has, in fact, ceased to exist. See Wigwam
Stores, 193 NLRB 471 (1971). In cases arising under the
Act and involving a determination of whether an em-
ployer and a union have arrived at an agreeement which
must be reduced to writing and executed by the parties,
technical rules of contract law are not necessarily con-
trolling. E.g., Penasquitos Gardens, 236 NLRB 994, 995
(1978); NLRB v. Donkin's Inn, 532 F.2d 138, 141-142
(9th Cir. 1976). "(A) complete package proposal made on
behalf of either party through negotiations remains
viable, and, upon acceptance in toto, must be executed as
part of the statutory duty to bargain in good faith, unless
expressly withdrawn prior to such acceptance, or de-
feased by an event upon which the offer was expressly
made contingent at a time prior to acceptance." Pepsi-
Cola Bottling Co., 251 NLRB 187, 189 (1980), enfd. 659
F.2d 87 (8th Cir. 1981). A contract offer is not automati-
cally terminated on rejection by the other party to the
bargaining process and, in the absence of prior with-
drawal of the proposal, either expressly, or through the
operation of change circumstances giving rise to a rea-
sonably based conclusion that the offer has been with-
drawn, the rejecting party may supercede its previous
action and accept the proposal, giving rise to the legal
imperative on the part of the offer or to abide by the
mandate of Section 8(d) of the Act. Pepsi-Cola Bottling
Co. Y. NLRB, id. at 90. However , the' 8(d) obligation to
reduce to writing and execute the provisions of the col-
lective-bargaining agreement on which a meeting of the
minds has been achieved does not arise if the obligation
to do so has expressly been made contingent on the ful-
fillment of a condition subsequent , such as, for example,
ratification by the employer's board of directors, or a
union's International organization . See NLRB v. Alter-
man Transport Lines, 587 F.2d 212, 221 (5th Cir. 1979);
Aptos Seascape Corp., 194 NLRB 540, 544 (1971); see also
Lane Construction Corp., 222 NLRB 1224 (1976). Condi-
BEN FRANKLIN NATIONAL BANK
tions precedent or subsequent may be waived by the
party in whose favor they are made , either expressly or
by implication resulting from that party 's acts or con-
duct . 4 Williston , Contracts, § 676 (3d ed .), et seq.
The issues, which separate the parties here deal not
with the validity of this body of precedent , but with its
application in the factual circumstances of this case. For
his part , the General Counsel contends that Respondent's
final offer was accepted by the Union in a timely fashion
during the certification year . The General Counsel avers
that the Respondent 's obligation to execute the document
embodying its final offer matured on July 23, the last day
of the certification year , with the Union 's dispatch of its
telegraphic notice of acceptance , and, in the total cir-
cumstances here pertaining , was not defeasible by any
condition subsequent , requiring ratification by the board
of directors . It is the General Counsel 's view, in this
regard , that the expressed limitation on the authority of
Respondent 's negotiators at the bargaining table which
subjected any agreement formulated through the bargain-
ing process to board of director approval, did not carry
over to the comprehensive, self-contained , complete col-
lective-bargaining agreement submitted out of the normal
context of bargaining table exchange , as the final offer of
the Bank by Respondent 's president and chief administra-
tive officer , himself a member of the board of directors.
The General Counsel asserts, in substance , that, (1) Re-
spondent's president , Hart, possessed actual or apparent
authority sufficient to bind the Bank to the bargaining
proposals contained in Respondent 's final offer, or, (2), in
the alternative, no contingency or reservation of power
attached to the June 19 offer in that it was submitted
only after some action had been taken away from the
bargaining table by individuals who. had final authority
to bind Respondent.
On the other hand , Respondent contends , ( 1) there
was no valid acceptance by the Union of Respondent's
June 19 offer; (2) no binding contract was created be-
cause the terms of the purported agreement were never
ratified by the board of directors ; and (3) no contract
was created by the Union's act of signing the June 19
final offer because there had been no meeting of the
minds with respect to either the commencement date of
the purported agreement or its expiration date.
Contrary to Respondent , the Union's outright rejection
of the Bank 's June 19 final offer did not operate to fore-
close subsequent acceptance, for neither the passage of
time nor intervening circumstances rendered that accept-
ance a nullity. Federal labor policy encourages the for-
mulation of collective -bargaining agreements, and the
common law rule that a rejection terminates an offer has
little relevance in the collective -bargaining setting . Pepsi-
Cola Bottling Co. v. NLRB, supra ; Penasquitos Gardens,
supra . Lane Construction Corp., involving a contract-bar
issue does not require a contrary determination here, for
the compelling implications of the subsequently decided
Pepsi-Cola and Penasquitos cases is that , in assessing a
party's compliance with the 8(d) mandate , a clear rejec-
tion of proffered contract terms is but one factor in the
composite of circumstances determining whether a bar-
gaining proposal remains open and susceptible of later
acceptance . I discern no equitable consideration at work
993
in this case justifying a time bar against the Union's ac-
ceptance of the once rejected final offer advanced by
Respondent on June 19. The Union 's decision , reversing
its earlier June 28 rejection of the offer, came at a time
when the certification year presumption of majority
status remained operative and Respondent was obligated
to treat with the Union and no other as bargaining repre-
sentative of the unit employees . The offer which the
Union accepted was one which , in substantive aspects,
Respondent had proposed in good faith, as a means of
achieving a meeting of the minds with the Union on
terms and conditions of employment for 3-year period.
Thus, by reason by the Union 's change of mind, Re-
spondent incurred no detriment beyond that inferred
from the terms of its own final offer . Settlement of pre-
cise commencement and termination dates for the agree-
ment was cosmetic in form and effect , for by its terms,
the agreement was to take effect at 1 minute after mid-
night on the day after execution ; and article 7 covering
compensation , construed in conjunction with appendices
B-1, B-2, and B-3 thereof, reflect proposed annual wage
increases to be effective July 1, 1981, 1982, and 1983, re-
spectively . Moreover, incorporated into the agreement
by reference from the Respondent 's June 19 submission
letter was a proposal of a 3-year term , a mere reiteration
of what the Respondent had sought at the bargaining
table . Thus, the contract on its face could reasonably be
construed as having a 3-year term with the normal me-
chanics of acceptance and execution by the last signatory
serving to toll the beginning of the relevant time periods.
Cooper Tire Co., 181 NLRB 509 (1970); cf., Cind-R-Lite
Co., 239 NLRB 1255 (1979 ). Both parties to the bargain-
ing process thus knew what was being offered and what
was being accepted and their conduct manifested this.
When the Union agreed to the proposals which emanat-
ed from Respondent a "meeting of the minds" resulted.
Mount Airy Psychiatric Center, 230 NLRB 668, 677-678
(1977). Clearly, it was the desire of Respondent to have
the July 1, 1983 wage increase remain effective for 1 cal-
endar year, and the integrity of the bargaining process,
and the interests of Respondent, as expressed in its final
offer were not compromised by the Union 's act of agree-
ing to a June 30, 1984 termination date for the contract.
Cf. Mercedes-Benz, 258 NLRB 803 (1981 ); Lane Aviation
Corp., 211 NLRB 824 ( 1974). The determination turns
primarily on objective facts and circumstances. Pittsburgh
Trucking Co., 249 NLRB 833, 837-838 (1980); Lozano
Enterprises v. NLRB, 327 F .2d 814 , 818 (9th Cir . 1964);
cf. Williston, CONTRACTS, § 22, 66 (3d ed.)
Respondent contends, however, that, in any event, no
obligation to execute the purported agreement arose be-
cause , prior to receipt of the Union's notice of accept-
ance , the final offer had been withdrawn. Respondent in-
vokes principles of contract law to support this position
and cites Board precedent having authoritative. gloss for
the proposition that an acceptance of a bilateral contract
is not effective until communicated to the offeror. Log-
gins Meat Co., 206 NLRB 303 (1973); Olin Corp., 248
NLRB 1137 ( 1980); Worrell Newspapers, supra. But these
concepts and determinations , however . valid . in,the ab-
stract, or in the context of their promulgation , are .be-
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lieved not controlling . The following statement of the
court in Lozano Enterprises v. NLRB, supra, is pertinent:
We do not think that , in deciding whether , under a
particular set of circumstances , an employer and
union have in fact arrived at an agreement that the
employer is then obliged to embody in a written
contract upon the union 's request, the Board is
strictly bound by the technical rules of contract
law.
Morever, the Board has observed : "[I]t is well recog-
nized that some areas of general contract law simply do
not accommodate themselves to the special mandatory
bargaining scheme established by the status governing
labor relations . Worrell Newspaper, supra at 407. The
Board has further held that reliance on the rules of con-
tract law so as to forestall and to avoid agreement does
not satisfy the obligation that an employer approach the
bargaining table with a fair and open mind and with a
sincere desire and purpose to conclude an agreement on
mutually satisfactory terms. See Shannon & Simpson
Casket Co ., 99 NLRB 430 (1952), enfd. 208 F .2d 545 (9th
Cir. 1953). In the context of its statutory bargaining obli-
gation, I find that Respondent falls into error in relying
on technicalities to vitiate a meeting of the minds previ-
ously achieved on the terms of a fully integrated collec-
tive-bargaining contract, even though bad faith or im-
proper motivation does not prompt its action . Further,
resort to principles of offer and acceptance imbedded in
principles of contract law gives rise to a conflict with an-
other fundamental , threshold proposition here pertinent,
namely , that under generally held contract law princi-
ples, where the revocation of an offer is by mail or tele-
gram, it must appear that it was received by the offeree
before he' accepted the offer by mailing or telegraphing
his acceptance . The facts reveal that employee ratifica-
tion of Respondent 's final offer, and the dispatch of the
Union 's telegraphic notice of acceptance, both transpired
during the certification year and before Respondent
posted its letter, ( 1) declining further dealings with the
Union and (2) withdrawing its "last offer." On July 24
the Union's notice of acceptance and Respondent 's letter
of withdrawal were received by the respective address-
ees, having "crossed in ' the mails," as it were. I find that
Respondent's last offer remained open at the time it was
accepted by the employees and the Union dispatched its
telegram of acceptance . I find also that Respondent's
effort to withdraw its offer came too late to affect its
legal obligation to execute the contract which had result-
ed.
Nor, in the circumstances of this case, do I find basis
for invalidating the Union's acceptance based on either
the elapse of 34 days from Respondent 's submission of its
offer to final acceptance by the Union , or the passage of
23 days from the date of initial rejection to the date of
ultimate acceptance on the part of the Union. In submit-
ting its ' proposal to the Union , Respondent fixed no date
certain on which ' the offer would expire , and Respondent
took no action expressly withdrawing the offer prior to
the Union 's, dispatch of its telegraphic acceptance mes-
sage . In the relevant context, the mere passage of time is
not deemed sufficient, in and of itself, to negate accept-
ance . Penasquitos Gardens, supra. Concomitantly, the
Union's act of handbilling customers and scheduling an
employee meeting proclaiming expectations of a strike,
while possibly palliative in its effect on Respondent's
perception of the Union's collective-bargaining inten-
tions, was not the type of conduct or action which
would give rise to an estoppel foreclosing the Union's
later acceptance of Respondent's still outstanding final
offer. The resort to strikes or threats thereof by labor or-
ganizations as strategy or technique for softening em-
ployer resistance to contract terms and advancing union
collective-bargaining objectives is commonplace in the
arena of labor relations . It is not clear how the Union's
use of this accepted and acceptable form of economic
persuasion could be found to have so misled Respondent
to justify the invocation of principles of equity and fair-
ness to release Respondent from its final offer of contract
terms. Cf. Worrell Newspapers, 232 NLRB 402, 407
(1977).
Similarly, in the factual context in which it occurred,
the Union 's failure in the time interval between initial re-
jection and the final acceptance of Respondent's offer to
request further negotiations did not create an unfair con-
dition releasing Respondent from the operation of princi-
ples of offer and acceptance applicable in the arena of
labor relations . The certification year rights, obligations,
and limitations remained operative for the parties; the
Union's acceptance modified no term of Respondent's
final offer and Respondent was not confronted (nor
could it legally have been) with any conflicting bargain-
ing demand . Cf., Worrell Newspaper, supra; Lane Con-
struction Corp., supra. Moreover, in the described cir-
cumstances , as Respondent at no time prior to the
Union's dispatch of its telegraphic notice of acceptance
withdrew its final offer , the ongoing, continuing effect of
that final offer was not nullified by the absence of further
bargaining sessions or any affirmative indication on Re-
spondent's part that the final offer remained viable. Cf.
Pepsi-Cola Bottling Co., supra. Again, I specifically find
that Respondent 's final offer remained open at the time it
was accepted by the Union.
Having reached an agreement , it was then incumbent
on the parties to sign a written document incorporating
their agreement. H. J. Heinz Co. v. NLRB, 311 U.S. 514
(1941). However, Respondent contends that the, obliga-
tion to sign any tentative agreement reached between the
Union and its negotiators was subject to a condition sub-
sequent requiring ratification of contract terms by the
board of directors of the bank. Concepts of good faith in
collective bargaining require rejection of Respondent's
contention that the condition remained a viable consider-
ation in determining whether Respondent was legally ob-
ligated to execute the fully integrated collective-bargain-
ing agreement which it had submitted to the Union for
ratification and acceptance . As the General Counsel cor-
rectly contends , Respondent 's final offer was communi-
cated, as such , not in the manner of a routine bargaining
offer, by its bargaining table spokesman , Hutcheson, but
by Respondent 's president and chief executive officer,
William Hart, himself a member of the board of direc-
BEN FRANKLIN NATIONAL BANK
tors. The letter accompanying the dispatch of the final
offer; by wording and content, implied full authority on
the part of Hart, both to proffer final contract terms and
to seek union acceptance of those terms by submitting
them to the membership for ratification. Specifically, the
offer was explicitly described in Hart's letter as "the
Bank's final offer" and as a "fair and reasonable" one. In
explicit terms Respondent requested that the offer be
presented to the employees for their approval. Signifi-
cantly, the letter contained no caveat to the effect that
further action by the board of directors was essential to
an ultimate meeting of the minds on contract terms. No
reservation or preservation of the condition was under-
taken.6 Moreover, the contract terms which Hart dis-
patched to the Union in the form of the Bank's final
offer were comprised entirely in terms upon which the
parties had achieved bargaining table agreement, aug-
mented by proposals of the Bank . Union proposals which
the Bank found clearly inimical (union shop, arbitration,
vacation accrual , medical coverage and wage reopeners
during the term of the agreement) had been deleted or
modified.' For these reasons, together with the wording
of Hart's covering letter, and the investiture of apparent
authority in Hart by viture of the letters dispatched by
Hart and not a subordinate agent or negotiating repre-
sentative, Hart's submission contained an implied good-
faith assurance that the terms presented embodied a com-
plete contract which Respondent was prepared to accept
and execute , conditioned only upon timely acceptance by
the Union. I conclude, therefore, that Respondent may
not validly interpose the condition subsequent to board
of directors approval as a legal defense of its failure to
execute the document embodying contract terms on
which a meeting of the minds had been achieved.8
Similarly, contrary to Respondent, the legal obligation
to embody the agreed-on collective-bargaining terms in a
signed agreement was not removed by Respondent's re-
ceipt, during the certification year, of a petition purport-
edly bearing the signatures of a majority of employees
stating their desire no longer to be represented by the
Union. Respondent's refusal to execute its own contract
proposal in deference to the petition is not the type of
unusual circumstances warranting suspension of the 1-
year rule. Ray Brooks v NLRB, supra; Holly-General Co.,
supra at 1103 ; Maywood Do-Nut Co., 248 NLRB 529, 537
8 Not applicable here is the limitation upon Hart's individual and offi-
cial authority as bank president deriving from the mandate of the region-
al administrator for National Banks that the board of directors assume a
higher-than-usual degree of control over the administration and operation
of the bank . In issue is not the individual authority of Hart which existed
at pertinent times by reason of Respondent 's status as a supervised bank,
but the authority of the entire board of directors which was operative at
relevant periods and which received expression through Hart's communi-
cation dispatched in the course of official bank business.
T The Union's insertion in-the reformated copies of the Respondent's
final offer , which Harrigan signed and submitted to the Bank for execu-
tion, of a cover page , index, and prefatory description and identification
of the contracting parties, was peripheral ' and 'inconsequential, • without
meaningful effect upon the substance of'the'matfei : % •• • - e
6 Indeed, application of'prinbiplbs,of- contract " la)y,would • also,appear
to require this conclusion , for it is an established principle that a party
may waive a condition precedent or subsequent either by specific written
withdrawal of that condition , or by conduct sufficiently explicit in nature
and implication of accomplish the intended purposes .and-effects of,the
condition .
;
:- I ,Tt3rt •. tt^'
995
(1980); Keystone Valve Corp., 186 NLRB 64 (1970). In
Holly-General, 129 NLRB 1098 at 1103, the Board adopt-
ed the following rationale, findings, and conclusions:
In other words, Respondent refused to execute its
own contract proposal because it bowed to its em-
ployees' "change of mind" regarding their 'union af-
filiations. The choice selected by Respondent was
without the pale of the law, since , as the cases hold,
the "change of mind" by employees within the cer-
tification year is not the type of unusual circum-
stances warranting suspension of the 1-year rule.
Respondent, therefore, must be directed to reverse
its position to conform to the requirements of and
be ordered to embody in a written agreement all the
contractual terms and conditions to which it agreed
.... Moreover, in Keystone Valve the Board adopt-
ed the finding that, absent unusual circumstances,
the presumption of majority status deriving from a
Board certification is for a definite 1-year period.
"Almost a year" was held to constitute neither the
actual or legal equivalent of a -year. See also North
Bros Ford, 220 NLRB 1021 (1975).
In Mount Airy Psychiatric Center, • supra at 679, it was
stated:
In the instant case, the Union was the certified
collective-bargaining representative of an appropri-
ate' unit of the Respondent's employees. A 1-year
period of time had elapsed by August 9, 1976, so at
that point in time the Union would have enjoyed
only a rebuttable presumption of majority status,
except in the present case, the Respondent and the
Union had previously reached agreement on a col-
lective-bargaining agreement on July 28, 1976.
Having agreed to a 3-year contract with the Union
on July 28, 1976, the Respondent in the circum-
stances of this case was not free to challenge the
Union's majority status 12 days later during the ex-
istence of the contract.
These cases articulate well-established principles of
law which must be recognized and applied here. As the
parties had achieved agreement on the terms of a collec-
tive-bargaining agreement, and as that agreement had
been reached during the certification year, Respondent
incurred the legal obligation to execute the written in-
strument evidencing the, terms of the agreement. On
August 4, by -letter addressed to the Union, Respondent
declined to-do so. .
The question nevertheless arises whether the mandate
(that Respondent execute, and give effect to the agree-
ment achieved with the Union during the, certification
year), should- be set .aiide, in, deference to the employee
-petition : signed by,, a, majority of • employees prior to the
July 22 meeting,.andspresented,to the Respondent during
the,certjtjcation,year,,'but before it had, executed the con-
tract•, ;evidencing t ttlae. ;;collective-bargaining, . terms • on
which there had been agreement. The dual principle of
majority rule and self-determination, which lies at the
heart. of. the statutory, scheme is not, to.. be ,lightly regard-
,,ed; •but••must^be,balancedfagainst,theidictates pf a•body of
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engrained precedent designed to achieve stability in col-
lective-bargaining relationships. I find no basis in the
precedent cited and deemed controlling, warranting a
resort to extradordinary procedures for post hoc ballot-
ing or referendum by or among unit employees. Cf. Cel-
anese Corp. of America, 95 NLRB 664 (1951); Terrell Ma-
chine Co., 173 NLRB 1480 (1969), enfd. 427 F.2d 1088
(4th Cir. 1970); Carolina American Textiles, 219 NLRB
457, 463 (1975); Hydro Conduit Corp., 254 NLRB 433,
436 (1981); Guerdon Industries, 218 NLRB 660 (1975).
Indeed, I am aware of no precedent suggesting that in
circumstances wherein, as here, the desires of unit em-
ployees concerning representation by their incumbent
bargaining representative has become colorably clouded,
there resides with an administrative law judge an area of
remedial discretion. I feel constrained, therefore, to
apply traditional remedies consistent with established
precedent as enunciated in Pepsi-Cola Bottling Co., supra;
Holly-General Co., supra; Keystone Valve Corp., supra; and
Mount Airy Psychiatric Center, supra. I conclude that arti-
cle 22 of the agreement should be applied to render the
contract effective retroactive to August 5, 1981.
On the foregoing findings of fact, and the entire
record, I make the following
CONCLUSIONS OF LAW
1. Ben Franklin National Bank is an employer within
the meaning of Section 2(2) of the Act, engaged in com-
merce and in an industry affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. United Food and Commercial Workers Union,
Local No. 1439, AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. On July 24, 1980, the Union was certified as the bar-
gaining representative of the employees employed in the
following described unit appropriate for the purposes of
collective bargaining:
All employees of the employer, employed at its
Pasco, Washington, and Connell, Washington oper-
ation, excluding operations supervisors, bank offers,
executive secretary, and all guards and supervisors
as defined in the Act.
4. On July 23, 1981, Respondent and the Union
reached agreement on the terms of a collective-bargain-
ing agreement covering the terms and condition of em-
ployment of the employees of Respondent in the above-
described appropriate bargaining unit.
5. As a consequence of the meeting of the minds
achieved, Respondent incurred the statutory obligation
to execute a written contract incorporating that agree-
ment, but, since August 4, 1981, 'and at all times thereaf-
ter, has failed and refused to do so.
6. Respondent violated Section 8(a)(5) and (1) of the
Act by refusing since about August 4, 1981, to execute
the written contract incorporating the agreement
reached between it and the Union.
7. Since about February 3, 1982, Respondent has failed
and refused to provide the Union with information rele-
vant and necessary to the Union's duty to represent the
employees in the above-described appropriate collective-
bargaining agreement and, by virtue thereof, Respondent
has engaged in conduct in violation of Section 8(a)(5)
and (1) of the Act.
8. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Repsondent has engaged in certain
unfair labor practices , I recommend that Respondent
cease and desist therefrom and take certain affirmative
action necessary to effectuate the puposes and policies of
the Act.
Having further found that Respondent violated Sec-
tion 8(a)(5) and ( 1) of the Act by failing and refusing to
execute a written agreement reached , I recommend that
Respondent cease and desist and sign the agreement. It
shall be recommended further that Respondent give
effect to the terms of agreement retroactive to August 5,
1981 , and that the employees shall be made whole for
losses they may have suffered by reason for the failure of
Respondent. to sign said agreement, which interest there-
on to be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 298 (1950), plus interest as set
forth in Isis Plumbing Co., 138 NLRB 716 (1962), and
Florida Steel Corp., 231 NLRB 651 (1977).
Having found that Respondent violated Section 8(a)(5)
and (1 ) of the Act by failing to honor the request of the
Union to furnish certain information relevant and neces-
sary to the Union's fulfillment of its obligation as the ex-
clusive collective -bargaining representative of the em-
ployees in an appropriate bargaining unit, I recommend
that Respondent cease and desist and in writing , furnish
the Union with the information requested.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed9
ORDER
The Respondent, Ben Franklin National Bank , Pasco,
Washington, its officers, agents, successors , and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively and in good faith
with the Union by declining to execute a written agree-
ment embodying the terms of the contract fully agreed
to on July 23, 1981.
(b) Refusing to bargain collectively and in good faith
with the Union by failing and refusing since February 4,
1982, to furnish the Union with the names of all bargain-
ing unit employees, and the current mailing address,
wage rates, and classifications of those employees.
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
° If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
BEN FRANKLIN NATIONAL BANK 997
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Sign the collective-bargaining agreement dis-
patched to it on July 24, 1981, embodying the terms of
the contract fully agreed to on July 23, 1981.
(b) Give effect to the terms of that contract retroac-
tive to August 5, 1981, and make employees whole for
any losses they may have suffered in consequence of the
failure to execute and sign said contract , with interest as
set forth in the remedy section of the decision.
(c) Forthwith, in writing, provide the Union with the
names of the employees employed in the following de-
scribed unit, together with the addresses , wage rates, and
classifications of each of these employees . The appropri-
ate bargaining unit is:
All employees of the employer, employed at its
Pasco, and Connell , Washington , operations, ex-
cluding operations supervisors , bank officers, execu-
tive secretary , and all guards and supervisors as de-
fined in the Act.
(d) Preserve and, on request, make available to the
roll records , social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Pasco and Connell , Washington facilities
and branches copies of the attached notice marked "Ap-
pendix ." 10 Copies of the notice, on forms provided by
the Regional Director for Region 19, 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 are cus-
tomarily posted . Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced , or covered by any other material.
(f) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
10 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Board or its agents for examination and copying, all pay- Labor Relations Board."