Butchers' Union Local 120, Etc.

National Labor Relations Board - Board Decisions

Jul 27, 1965

154 N.L.R.B. 16 (N.L.R.B. 1965)

16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership and activity in any labor organization
of our employees, by discriminating in any manner in regard to hire, tenure, or
any other term or condition of employment.
WE WILL NOT interrogate our employees in an unlawful manner concerning
their union and concerted activities, and the union and concerted activities of
other employees; create or attempt to create the impression that our employees'
union and concerted activities are kept under surveillance; urge or solicit our
employees to refrain from and abandon, and attempt to get other employees
to abandon, their union and concerted activities, and to designate a preference
to abandon these activities by signing a statement to that effect; promise or in-
stitute wage and other benefits in order to discourage union organization and
other concerted activities of our employees; or in any other manner interfere
with, restrain, or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist the above-named or
any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to refrain
from engaging in any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor organization
as a condition of employment in conformity with Section 8 (a) (3) of the Act.
WE WILL offer Paul R. Ashmore immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to any seniority or
other rights and privileges, and make him whole for any loss of pay suffered
as a result of the discrimination against him.
SECURITY GUARD SERVICE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1015
Tijeras Street, NW., Albuquerque, New Mexico, Telephone No. 247-0311, if they
have any question concerning this notice or compliance with its provisions.
Butchers ' Union Local 120, Amalgamated Meat Cutters & Butcher
Workmen of North America, AFL-CIO and United Employers,
Inc. Case No. 20-CB-1174. July 07, 1965
DECISION AND ORDER
On January 4, 1965, Trial Examiner Maurice M. Miller issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
154 NLRB No. 1.
BUTCHERS' UNION LOCAL 120, ETC. 17
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, Respondent filed exceptions to the Decision with
a supporting brief. The General Counsel filed cross-exceptions with
a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Jenkins, and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision,
the exceptions and cross-exceptions, the briefs, and the entire record
in this case and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner, and orders that Respondent, Butchers'
Union Local 120, Amalgamated Meat Cutters & Butcher Workmen of
North America, AFL-CIO, its officers, agents, and representatives,
shall take the action set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed January 21, 1964, and duly served thereafter , the General
Counsel of the National Labor Relations Board caused a complaint and notice of
hearing, dated March 13, 1964, to be issued and served upon Butchers ' Union Local
120, Amalgamated Meat Cutters & Butcher Workmen of North America , AFL-CIO,
designated as Respondent Union in this Decision . Therein, Respondent Union was
charged with the commission of unfair labor practices affecting commerce within
the meaning of Section 8(b)(3) of the National Labor Relations Act , as amended, 61
Stat. 136, 73 Stat . 519. Subsequently , through an answer duly filed, Respondent
Union conceded certain factual allegations made in the complaint , but denied the
commission of any unfair labor practice.
Pursuant to notice , a hearing with respect to the issues was held at San Francisco,
California , on June 30 , 1964, before Trial Examiner Maurice M . Miller. The Gen-
eral Counsel, Respondent Union, and complainant were represented by counsel.
Each party was afforded a full opportunity to be heard , to examine and cross-examine
witnesses , and to introduce evidence pertinent to the issues . Certain stipulations
were received when the hearing began ; pursuant to one such , General Counsel's mo-
tion to amend the complaint was granted without objection . Shortly thereafter,
counsel for the General Counsel briefly stated his theory of the case. When the
testimonial presentations were complete , counsel for Respondent Union presented a
brief oral statement of position . Both counsel declared their desire to file briefs.
These have been received and duly considered.
206-446-66-vol. 154-3
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire testimonial record, ' documentary evidence received, and my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTION
A. Chip Steak Company
Chip Steak Company, sometimes designated as the Company within this Decision,
is a California corporation , with its main office and principal place of business in
Oakland, California ; there it is engaged in processing frozen and chopped meat.
During the 12-month period which preceded issuance of the present complaint, the
Company, in the course and conduct of its regular business operations , purchased
goods and materials valued in excess of $50,000, which were transported directly to
its Oakland , California , plant from various out -of-State points and places.
B. United Employers, Inc.
United Employers , Inc., sometimes designated as United or the complainant within
this Decision , is a voluntary businessmen's association with some 400 employer-
members. It maintains its main office in Oakland , California ; there-among other
functions-it assists employer-members and represents them in the negotiation and
execution of labor contracts with various collective -bargaining representatives of
their employees . Throughout the period with which this case is concerned, Chip
Steak Company has been one of United's employer -members. During the 12-month
period which preceded the issuance of the present complaint , United's employer-
members, in the course and conduct of their regular business operations , shipped
goods valued in excess of $50,000 directly to points and places located outside the
State of California.
C. Conclusions
Upon the record as a whole-with particlular reference to the General Counsel's
complaint, various concessions within Respondent Union 's answer, and stipulations
by counsel-I find that United and the Company each is, and throughout the period
with which this case is concerned has been, an employer within the meaning of Sec-
tion 2 ( 2) of the statute , engaged in commerce , and business operations which affect
commerce , within the meaning of Section 2 ( 6) and ( 7) of the Act , as amended.
With due regard for the jurisdictional standards which the Board presently applies-
see Siemons Mailing Service , 122 NLRB 81 , and related cases-I find assertion of
the Board 's jurisdiction in this case warranted and necessary to effectuate statutory
objectives.
II. THE RESPONDENT LABOR ORGANIZATION
Butchers ' Union Local 120, Amalgamated Meat Cutters & Butcher Workmen of
North America , AFL-CIO, is, and at all times material herein has been, a labor
organization within the meaning of Section 2 ( 5) of the Act , as amended, which
admits the Company 's employees to membership . Throughout the period with which
'Review of the record reveals several errors in transcription . No motions for correc-
tion of the record have been filed by counsel , though General Counsel has cited one trans-
cript mistake within his brief. Since I deem some few corrections necessary to make the
record more accurate and comprehensible , those listed below will be made upon my own
motion.
Page 82, line 11, reads "prescribe ," should read " subscribe"; page 82, line 12, reads
"truth," should read "trust"; page 86 , line 11, reads "as," should read "and", page 90,
line 2 , reads "variant difference ," should read "variant, different" ; page 120 , line 22, reads
"cases," should read "basis"; page 121, line 3, reads "construe it way," should read
"construe it his way " , page 127, line 24, reads "now , oh," should read "now owe" ; page
140 line 9 , reads "agreements ," should read "grievances "
On page 121 of the transcript , line 18, the witness is quoted as confirming an agreement
"to continue the successive level of benefits " Since Respondent Union 's counsel , within
his brief, has based part of Respondent Union ' s argument upon the witness ' reported
use of the word "successive ," this portion of the transcript was checked against the re-
porter's notes . Within my presence , the reporter produced and read his notes, which
showed that the witness had said "to continue the existing level of benefits ." The record,
in this respect, therefore , reflects a mistranscription ; correction is hereby ordered by the
deletion of "successive" and the substitution of "existing" within the phrase in question.
BUTCHERS ' UNION LOCAL 120, ETC. 19
this case is concerned, S. E. Thornton and John Finnic have functioned as Respond-
ent Union's secretary-treasurer and business representative, respectively; with respect
to the matters with which this case is concerned, they have acted in Respondent
Union's behalf, functioning as its agents within the meaning of Section 2(13) of
the Act, as amended.
III. UNFAIR LABOR PRACTICES
A. Background
1. Stipulated matters
General Counsel contends, counsel for all parties stipulate, and I find that all
Company employees at its Oakland, California, plant engaged in production and
meat processing work within Respondent Union's recognized jurisdiction, including
janitorial maintenance employees, but excluding machinery maintenance mechanics,
all other employees, guards, and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act, as amended.
Throughout the period with which this case is concerned-specifically, since Sep-
tember 14, 1961, and continuing to date-Respondent Union has been recognized
and has functioned as the exclusive representative of the Company's employees within
the bargaining unit just described, for the purposes of collective bargaining with
respect to their rates of pay, wages, hours of employment, and other terms and con-
ditions of work.
2. Bargaining history
For a period of some years, Chip Steak Company was an employer-member of
Pacific Coast Meat Jobbers Association, to be designated as the Jobbers Association
within this Decision. (This condition prevailed until sometime in September 1961
when the Company withdrew from Association membership) By virtue of such
membership, the Company was-before its withdrawal-privy to successive contracts
which Respondent Union had negotiated with the designated multiemployer group.
The last such contract between Respondent Union and the Jobbers Association to
which the Company was privy-through Association membership-was the so-called
Jobber, Sausage & Miscellaneous Agreement, sometimes designated as the Jobber
Agreement within this Decision; this labor contract had an October 1, 1961, terminal
date. Following its withdrawal from Association membership, however, the Com-
pany continued to bargain with Respondent Union; this it did as a separate employer,
with United as its bargaining representative.
For a period of about 11 weeks beginning in June 1962, Company employees
represented by Respondent Union were on strike. Their strike was terminated with
the execution of a September 5 strike settlement agreement by the parties. Pursuant
to this agreement, Respondent Union and Chip Steak Company became privy to a
"new contract" based upon their prior contract-the previously noted 1959-61
Jobber Agreement specifically-with certain designated changes. One negotiated
modification was a provision whereby employer payments for health and welfare
would be increased to the "standard contribution" of 12.2 cents hourly per worker.
By its terms, this agreement was to be effective from the date of its acceptance by
Respondent Union to and including August 31, 1963, "but open for straight-time
wage negotiations only" on January 1 of the designated year.
B. Current negotiations
On or about November 1, 1962, Respondent Union, through a telegram to United,
requested that the Company's contract be opened for the purpose of negotiating a
wage increase. Negotiations began sometime during the following month.
Secretary-Treasurer Thornton functioned as Respondent Union's principal negotia-
tor, while Sam Axtell, one of United's staff negotiators, represented the Company
during the first few bargaining sessions . Beginning in March 1963, Chip Steak
Company was represented by John E. Cantwell, United's executive vice president.
The latter attended all negotiation sessions thereafter; there were, I find, two ses-
sions in March, three during August, and a session on September 10, 1963. (Dur-
ing the period from December 1962 through the designated date, representatives of
Respondent Union and the Company met some 8 or 10 times.) Conciliator Gene
Barry of the Federal Mediation and Conciliation Service was present at most of
the bargaining sessions , particularly the last one designated, in his official capacity.
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Before July 5, 1963, negotiations between the parties concerned straight-time
wages only. On the date noted, however, Thornton notified the Company by tele-
gram that, pursuant to the September 5, 1962, agreement, their labor contract should
be considered terminated at the end of the contract year; Respondent Union requested
a meeting with Company representatives to negotiate a new contract. Thereafter,
negotiations between the parties were broadened to cover several subjects other than
wages. (There is a record suggestion that United's representative, functioning as
Chip Steak Company's spokesman, initially questioned the timeliness of Respond-
ent Union's contract termination notice. The course which negotiations thereafter
took, however, suggests persuasively that any reservation which Company representa-
tives may have had on that score, with respect to the propriety of general contract
negotiations, were tacitly waived. No question with respect to the timeliness of
Respondent Union's notice was subsequently raised.) Within a letter which Thorn-
ton sent United dated August 14, references were made to wage questions and three
different substantive proposals; the letter contained no reference to negotiations
regarding health and welfare benefits.
During a preliminary August 30 discussion between Cantwell and Thornton, how-
ever, looking toward some later, formal negotiation session, United's vice president
suggested the possibility that a 3-year contract might be negotiated. Some discus-
sion followed with respect to various matters which would have to be considered
should a 3-year agreement be reached. Thornton, I find, pointed out that the Com-
pany's current contribution rate for its workers' health and welfare benefits-which
had been fixed at 12 2 cents hourly per employee by the strike settlement previously
noted-might have to be reviewed during the course of any 3-year contract, since
the cost of providing such benefits might conceivably rise sufficiently, during the con-
tract's term, to require a higher contribution rate per worker. (Representatives of
Respondent Union, United, and Chip Steak Company, I find, were fully aware during
this period that Respondent Union's then current industrywide Jobbers Association
contract would be subject to renegotiation during October 1964, that questions rela-
tive to employer contribution rates for health and welfare benefits would be discussed
during such negotiations; and, further, that the Northern California Butcher Unions
and Employers Health Trust Fund, charged with responsibility for the selection and
procurement of a health and welfare plan pursuant to the provisions of the Jobber
Agreement previously noted, would be negotiating with various insurance firms
thereafter-sometime prior to March 1965, specifically-for contract coverage cal-
culated to provide various health and welfare benefits for workers covered by any
newly negotiated association contract. Thornton's reference to some possible modi-
fication of the Company's current health and welfare contribution rate, therefore,
was calculated to put United's representative on notice-so he testified-that rising
costs for hospital and medical care might conceivably boost the cost of required
insurance coverage, which would probably make higher Company contributions
necessary.) United's vice president, I find, mentally noted Thornton's comment, but
made no reply. So far as the record shows, however, that comment was not coupled
with any statement or forecast that broader health and welfare benefits, for which
Trust Fund negotiators might wish to contract, would be a factor in requiring
higher contribution rates.
When the negotiators next met in formal session, September 10, 1963, verbal
"agreements" were reached with respect to the three matters which then remained to
be settled. These open questions, I find, had involved wages, contract duration, and
health and welfare provisions. Through their representatives, Respondent Union
and Chip Steak Company agreed upon a 3-year contract with three successive wage
increases of 7.5 cents per hour across the board, the first effective September 1, 1963,
and the others thereafter, on the same date within each of the next 2 years. Verbal
commitments which the various negotiators mutually construed to reflect a con-
sensus were also made with respect to health and welfare questions
Thornton's recapitulation of the discussion with respect to this latter subject-
during the examination which General Counsel conducted under rule 43(b) of the
Federal Rules of Civil Procedure-however, was brief. He testified that:
we told them that we could possibly go for a longer term contract . .
but at this time I told the Negotiating Team for the employers that we would
have to take into consideration the increase in cost of the Health and Welfare
as a result of the negotiations coming up in October in the industry, and inas-
much as they participated in this particular Plan and had been participating in
it for years, it would be necessary that they continue to go on with this, along
BUTCHERS ' UNION LOCAL 120, ETC. 21
with this. Inasmuch as I had no knowledge at this time of what that plan
was going to cost, it would be necessary also that they subscribe to this. [Em-
phasis supplied.]
Having reached this point in his recital, Thornton capsulized the conclusion of the
discussion and declared that "based upon this consideration" their settlement was
reached.
Cantwell's recollection, during direct examination, was more detailed. He con-
ceded that, during their formal negotiations, Thornton had said the Company's con-
tribution rate for health and welfare benefits would "hold fast" until March 1, 1965,
approximately, but that the cost of health and welfare benefits thereafter might rise
during the term of a 3-year contract. United's vice president, together with a Com-
pany representative-so the former testified-then caucused separately with the Fed-
eral conciliator. According to Cantwell's recollection:
I informed Mr. Barry that our position would be on this problem of Health
and Welfare to guarantee the existing level of benefits, and in order to do that
we would meet any increased costs that might arise March 1, 1965. He then left
the room ...then he came back and told us...that he thought our proposal
would be okay, provided we made another wage adjustment on the third
year. . . . [Emphasis supplied.]
When Cantwell and the Company representative expressed some concern whether
such a concession might stimulate further Union demands, Conciliator Barry brought
Thornton to join the discussion. Respondent Union's secretary-treasurer, accord-
ing to Cantwell's testimony, raised the health and welfare question:
.. . but raised it simply with remarks like, on Health and Welfare, of course,
on a three-year term, why hospital bed rates, doctors' fees, and so forth are
going to spiral upward, and we will have to have protection on that score.
I said, "This means no difficulty so far as we were concerned, because we were
prepared to commit on a three-year agreement." Theie was no discussion
of any other benefits, there was no discussion at the meeting of tying in the
industry ... Health and Welfare plan as it might subsequently be negotiated in
October, 1964, there was no discussion of that at all. [Emphasis supplied.]
With matters in this posture, Cantwell testified, he, together with the Company
spokesman, exercised their "authority" to reach an agreement then and there.
According to United's vice president, the verbal agreement in question was reached
with only himself, Thornton, a Company spokesman, and Conciliator Barry present;
Business Representative Finnic, together with four employee-members of Respond-
ent Union's negotiating committee-so Cantwell testified-had been left behind in
another room when Conciliator Barry summoned Thornton to join the Company
caucus. The latter session-so Cantwell testified-broke up quickly, with Thornton
stating that he would call a meeting of Chip Steak Company workers to obtain
ratification of the consensus reached.
Respondent Union's secretary-treasurer, however, testified-when queried with
respect to the circumstances under which the negotiators declared their agreement-
that:
After the caucus, Mr. Barry, myself, and Bill Cude and Mr. Cantwell came
back to the general meeting of the negotiating group, and at that meeting Mr.
Barry opened the meeting by making a few remarks and turned the meeting over
to the employer [Mr. Cantwell] who made his formal proposal . . . he out-
lined basically the final proposal of the negotiations, the one that we tentatively
agreed to. We had a little more discussion as to the actual intent of the final
negotiations, and he indicated it would be necessary that he check with Mr.
Cheney [Company president] to find out whether or not . . . the company
agreed to the Welfare Plan, and at that time he left the room and then he re-
turned shortly thereafter and indicated that they would go along with the final
settlement . that the company would go along with our final proposal, and
we indicated that we would recommend this to the membership.
So far as Thornton's testimony shows, this exchange ended the session; the negotia-
tors left, committed to await Respondent Union's word with respect to worker ratifica-
tion of their consensus.
Confronted with a record, therefore, which contains divergent testimony relative
to the procedure which the negotiators followed while purporting to settle their dif-
ferences, I find such testimonial variations devoid of real significance. United's vice
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
president and Secretary -Treasurer Thornton were both convinced , when their Sep-
tember 10 session terminated , that some verbal contract settlement had been reached;
whether that agreement had been reached within a small group which included
Thornton as Respondent Union's sole spokesman , or within the larger group which
included Respondent Union's full negotiating committee , cannot be considered
material.
The only significant question presented for determination , now, relates to the
nature and content of the consensus reached. With respect to this, however, both
Thornton and Cantwell , when testifying with respect to their September 10 session,
were somewhat vague. Consideration of the record as a whole, nevertheless, does
provide some basis, more reliable and probative than their respective recollections,
for a determination in this respect . Some time after September 10, Thornton-
under circumstances to be noted-consulted Conciliator Barry with respect to his
(Barry's ) contemporaneous notes regarding the settlement . These notes-which
Respondent Union 's spokesman and United's vice president both presently concede
to be correct-show that the parties then reached a consensus as follows-
In regard to health and welfare , the employer agrees to pay whatever increase
is arrived at in regard to present health and welfare plan in order to maintain
the same level of benefits . This increase will be effective February 1, 1965.
With due regard for the complete record, I find that this note , contemporaneously
recorded , correctly reflected the consensus regarding health and welfare which the
negotiators reached.
On September 13, Thornton telephoned Cantwell to report that the Company's
employees had ratified their agreement ; Cantwell was promised a letter to that effect.
Thornton 's letter, dispatched on September 16, confirmed worker acceptance of the
Company's "final proposal "; request was made that the Company prepare the
"memorandum of that settlement" for Thornton to review and sign . (Upon receiv-
ing Thornton 's letter relative to ratification , I find, Company representatives put the
first of the three annual wage increases into effect . Chip Steak workers received
their first 7.5 cents hourly raise for the first pay period subsequent to September 16.)
Pursuant to this request , Cantwell prepared a complete contract draft, based upon
the 1959-61 Jobber Agreement , as modified by (1) the September 5, 1962, strike
settlement , and (2 ) the September 10, 1963, verbal agreements with respect to con-
tract duration , wages, and health and welfare provisions. Eight copies of the draft
were forwarded to Thornton , together with a cover letter dated October 18 request-
ing Respondent Union's negotiator , "if you find these in order," to sign and return
seven copies.
For reasons not related directly to the problem with which this case is concerned,
Thornton did not wish to see Respondent Union's contract with the Company set
forth in a single document , newly drafted . His attempts to convey this position to
Cantwell by telephone , however, were frustrated , I find, by the latter's unavailability.
Approximately 2 weeks later, United's vice president-not having heard from Re-
spondent Union's negotiator-himself reached the latter by telephone . Thornton
stated the reasons why he did not wish to sign a new instrument which purported to
set forth Respondent Unions complete contract with the Company in a single docu-
ment; he declared his preference for a mere supplementary document , which would
contain the September 10, 1963, agreement and would incorporate the prior Jobber
Agreement and strike settlement by reference . Cantwell , I find, declared that if
such a change was necessary to "get the contract signed" he would do it. (During
their conversation , I find, Thornton raised no objection with respect to Cantwell's
formulation of the proposed contract 's health and welfare provision , although he had
then held the contract draft for approximately 2 weeks. While a witness , Thornton
testified , however, that he had never read through Cantwell 's submission-not even
those portions which purported to reflect their September 10 consensus-since his
decision not to sign the contract presented as a single document had been reached
promptly upon his discovery-after a perusal of its first few provisions-that the
document presented for his signature reflected a complete contractual redraft.)
Thereafter , United's vice president drafted a short, one -page contract which pur-
ported to detail the September 10 agreement , and incorporated by reference the
1959-61 Jobber Agreement as modified by the parties ' 1962 strike settlement
On November 21, 1963, Cantwell forwarded eight copies of this document to
Thornton , with a cover letter which requested the latter to sign and return seven
copies. With respect to health and welfare, this contract draft contained a provision
that:
Existing health and welfare benefits as provided in the "Jobber and Miscel-
laneous Agreement " to continue unchanged during the term of the new Agree-
BUTCHERS' UNION LOCAL 120, ETC. 23
ment, provided, however, if the Trustees of the Northern California Butchers
Unions and Employers Health Trust Fund determine, during the term of this
Agreement, that an increase in the amount of the Employer's contribution is
required to maintain the health and welfare benefits presently in effect, the
Employer will pay such increase as may be required. Such increased contribu-
tion shall go into effect no earlier than February 15, 1965. [Emphasis supplied.]
Following dispatch of his short-form contract draft, Cantwell tried, without success,
to reach Thornton by telephone. On December 10, he wrote Respondent Union's
negotiator, stating that he had received no response relative to the draft. Thornton
was reminded that it was "not only proper but legally necessary" to execute a written
contract incorporating an agreement, upon request, under Section 8(d) of the Act,
as amended.
On January 2, 1964, Thornton replied by letter. Cantwell was advised that-
with respect to his formulation of their September 10 consensus on health and
welfare matters-some "slight misunderstanding" was present. Thornton declared
that he had understood Chip Steak Company's commitment as an agreement:
To continue with the Health and Welfare Plan as determined by the Trusts of
the Northern California Butchers Unions and Employers Health Trust Fund
and that the Co. would pay whatever costs that were required to maintain said
Plan. [Emphasis supplied.]
Respondent Union's negotiator pointed out that Cantwell's formulation, within his
November 21 submission, would indicate that "there were to be no changes in the
Welfare Plan"; Thornton declared that he had explained, during the negotiations,
that this (maintenance of the current health and welfare plan without change) was
"not only improbable but impossible" because of anticipated changes then under
discussion by the Fund trustees. Cantwell was advised that if he could modify
his last submission "to outline these understandings as indicated" Thornton would
execute the agreement on behalf of Respondent Union's membership.
On January 13, Cantwell wrote Thornton, protesting the latter's belatedly pro-
fessed "understanding" that their settlement regarding health and welfare envisaged
the addition of benefits during the projected 3-year term of Respondent Union's new
contract. Respondent Union's secretary-treasurer was advised that:
My recollection is otherwise and my notes confirm this; namely, that we had
agreed to underwrite any increased cost of existing benefits only. My recollec-
tion and notes are confirmed by others who attended the meeting and with
whom I have checked this.
Cantwell declared that further investigation by Thornton would verify his conten-
tion that their understanding, with respect to health and welfare matters, had been
correctly set forth within the November 21 draft submitted in the Company's behalf;
Respondent Union's negotiator was urged to execute the draft as promptly as possible.
On January 16, confronted with requests from Thornton that certain grievances
be processed, purportedly in conformity with the requirements of the collective-
bargaining agreement between the parties, Cantwell noted that:
The first obvious step is to execute the collective bargaining agreement which
you refer to and which you have not yet executed.
Thornton was advised that the parties could then, properly, take up questions aris-
ing under their contract.
C. Subsequent developments
The charge which initiated the present case was filed on January 21. While the
matter was being investigated by a Regional Office representative, Thornton tele-
phoned Conciliator Barry-on or about January 29-and requested his views relative
to the September 10 agreement regarding health and welfare matters. The con-
ciliator read his note concerning this portion of the September 10 session, with fore-
knowledge that Thornton's secretary was recording his dictation stenographically.
(Her transcription of the brief note in question has been cited previously within this
Decision.) Thornton told Barry, during their telephone conversation, that United's
vice president and Respondent Union were in disagreement with respect to their
interpretation of the September 10 settlement. While a witness, Thornton could
not recall whether he had, then, revealed concurrence or disagreement with the con-
ciliator's formulation regarding the health and welfare settlement: queried as to
whether he had fully agreed with Barry's formulation of the consensus which had
been reached, when he heard it, Thornton implied such prior concurrence, with a
statement that he had "no disagreement with it" even now.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 30, Thornton and his counsel discussed the present case with a Re-
gional Office field examiner. During their talk, Respondent Union's negotiator
declared that he was then willing to sign Cantwell's November 21 memorandum
draft, provided that Conciliator Barry's words were substituted for paragraph 2 of
the document in question While a witness herein-when asked if he were still
willing to enter into an agreement on that basis-Thornton replied:
I am if we can meet a common understanding as to what it means. You see,
actually, if there is no sound agreement as to what the langauge means, the
language has no meaning, and I told the Field Examiner that I was not in
dispute with Gene Barry's language, because this is, in effect, what I had been
talking about all along . but there is no real reason to sign the agreement
with this plan [the Jobber Agreement health and welfare plan] in it unless there
is notice as to what the language actually means, because then, in effect, you are
right back where you started.
Early in February 1964, the field examiner apprised Cantwell of Conciliator Barry's
formulation regarding the disputed health and welfare settlement. Cantwell was
asked whether Barry's language reflected his (Cantwell's) understanding of the con-
sensus reached. United's vice president replied that he thought his own formulation
of the consensus was more succinctly stated. According to Cantwell's testimony,
however, which I credit:
I said to Mr. Immel that it seemed to me that Mr. Barry was stating the same
thing twice, but that if we could conclude the matter . and get collective
bargaining agreement .. . on the [basis] of this language, I would be prepared
to recommend it to the company.
On Friday, February 7, the Board's field examiner seems to have advised Thornton
that Cantwell had declared his willingness to sign a memorandum agreement within
which the disputed "Health and Welfare" provision would be couched in the specific
language which Conciliator Barry had supplied. Thornton, at least, so advised
United's vice president within a February 11 letter. Elsewhere within the letter,
however, Respondent Union's secretary-treasurer went on to request a meeting with
Cantwell and Company representatives:
. to see if we cannot iron out our misunderstandings on the intent of the
settlement. It is the understanding of the Union that the intent of the settle-
ment was that automatic benefit levels and concomitant contribution increases
would be assumed by the employer. [Emphasis supplied.]
Cantwell was advised that if the negotiators could have a meeting of the minds on
this issue, Respondent Union would concede the fact of consensus and sign the
collective-bargaining contract.
Subsequently, Cantwell and Thornton met-possibly several times but once at
least-to discuss the matter. Cantwell's testimony-which I credit in this con-
nection-reveals, however, that Chip Steak Company was, in substance, told that it
would have to construe Conciliator Barry's language consistently with Respondent
Union's position before Thornton would agree to make that language part of their
contract.
When cross-examined herein, Cantwell-like Respondent Union's secretary-
treasurer-reiterated his present willingness to sign a contract with Conciliator
Barry's language used for the disputed health and welfare provision Unlike
Thornton, however, so far as the record shows, Cantwell has never qualified his
readiness to sign a contract with such language for the disputed provision.
By way of summary, finally, United's vice president conceded the correctness of a
statement by Respondent Union's counsel that
. although the parties may be in agreement as to this exact language, their
only difference is in the interpretation . . . .
With matters in this posture, discussions have come to an end and the parties await
disposition of the present case.
Conclusions
A. Issue
The duty to bargain collectively with an employer-which Section 8(b)(3) of
the statute imposes upon labor organizations and their representatives-includes the
duty to execute a written contract incorporating any agreement reached, if requested
by either party. Section 8(d); H. J. Heinz Company V. N.L.R.B., 311 U.S. 514, 526.
Respondent Union so concedes.
BUTCHERS ' UNION LOCAL 120, ETC. 25
Confronted with this recognized statutory requirement , however, counsel for
Respondent Union argues that-whatever consensus may have been reached during
negotiations with respect to the content of a collective -bargaining contract between
Chip Steak Company and the Respondent labor organization-no "full and complete
agreement" was reached , sufficient to bring statutory requirements into play. Sub-
stantially , Respondent Union contends that any putative consensus which the negotia-
tors may have thought they reached should be considered completely vitiated now,
because they subsequently discovered their "complete failure" to reach some "meet-
ing of the minds" with respect to the proper interpretation of their projected contract's
health and welfare provision.
The General Counsel's representative , however, contends-contrariwise-that the
parties did really reach "full and complete agreement" with respect to the terms of
their collective -bargaining contract during September 10 negotiations ; further, Gen-
eral Counsel argues that Respondent Union's refusal to sign the first contract draft
proffered by the Company 's representative cannot be justified, when the record
reveals consensus with respect to the contract 's language , despite proof that a sub-
sequent discussion between the negotiators revealed their persistent disagreement
regarding the proper interpretation to be given the language in question.
B. Discussion
1. The consensus reached
With matters in their present posture , there can be no doubt that both parties
herein believed they had reached full and complete agreement with respect to a
collective -bargaining contract when they terminated their September 10 session.
Respondent Union's secretary-treasurer-clearly motivated by that belief-pre-
sented his summary of the consensus reached to Company workers for their ratifica-
tion. Company representatives-clearly motivated , likewise, by their good-faith
reliance upon Thornton 's report with respect to such ratification-promptly granted
their workers the first of three successive yearly wage increases , with respect to
which no doubt existed that agreement had been reached.
The testimony proffered by Respondent Union's secretary-treasurer and Chip
Steak Company 's principal negotiator-which was patently colored by their realiza-
tion, some time subsequent to September 10, that no consensus existed with respect
to the meaning of their verbal commitment on health and welfare matters-provides
no reliable , probative , or substantial basis for a precise determination with respect to
the nature and content of the agreement which they thought they had reached.
(Within his brief, counsel for the General Counsel has cited many portions of the
record which-so he contends-will support a determination that Thornton , really,
must have conceived the consensus reached in terms consistent with Cantwell's sub-
sequent October 16 and November 21 formulations . Respondent Union's counsel,
however, contends that record testimony regarding the course of negotiations per-
suasively calls for the conclusion that Cantwell knowingly committed Chip Steak
Company to bear the cost of whatever health and welfare plan the Fund trustees
might thereafter negotiate and purchase , during the 3-year term of Respondent
Union's projected contract . These contrary contentions , however, would seem to
be directed toward resolution of the present disagreement regarding the meaning of
whatever consensus was reached ; they do not facilitate a determination with respect
to what the negotiators concerned mutually thought their consensus was.) Since
Thornton 's challenge regarding the correctness of Cantwell 's subsequent draft for-
mulations was first manifested , however, both negotiators have conceded-before
and during the hearing in this matter-their readiness to acknowledge the Federal
conciliator 's contemporaneously recorded note as the definitive memorandum with
respect to this portion of their consensus . Based upon these concessions determina-
tion has been possible, within this Decision, that Respondent Union's secretary-
treasurer and United 's vice president did really reach a consensus with respect to
health and welfare matters That consensus , I find, was memorialized and defined
by the language set forth within the Federal conciliator 's notes.
2. The meaning of the consensus
a. The question posed
Subsequent correspondence and discussion , however, soon revealed a disagreement,
between the negotiators , with respect to the precise scope of the Company's con-
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tractual health and welfare commitment . Counsel for Respondent Union , within
his brief, has defined this disagreement , with respect to the meaning of the relevant
consensus , most succinctly:
Does it mean that the existing Plan was to continue , or does it mean that only
the existing level of benefits was to continue ? That is, the "same level of bene-
fits" can mean those benefits, and only those , which presently exist under the
contract ; or the phrase can refer to that same level of benefits , whatever it
might be, that the "present Health and Welfare Plan" may negotiate In the
former , one is subscribing to a level of benefits in se; in the latter, to the Plan
itself. It is the General Counsel's contention that the parties, as evinced by
the draft contract , agreed on the maintenance of the presently existing level of
benefits only , the employer agreeing to pay any additional costs necessary to
that end. It was the Union's understanding , however, that the employer had
agreed to subscribe to the Health and Welfare Plan with all of its accoutrements,
known and unknown.
Should the presence of such a subsequently discovered disagreement , with respect to
the proper interpretation of their conceded consensus , be considered sufficient to
justify Respondent Union's refusal to sign a document clearly couched in terms
consistent with the Company 's view? The Board's determination of this narrow
question , really, would seem to be dispositive of the present case.
b. Applicable principles
Preliminarily , some review of basic principles would seem to be necessary. When
Cantwell and Thornton concluded their September 10 discussions , their consensus-
since it was verbal , and since they had not then "adopted" the conciliator 's written
formulation-was not "integrated " within the conventional meaning of that term in
contract law. Restatement , Contracts § 228 (1932 ). Without integration , verbal
manifestations of intent , forming an agreement , will be given the mean-
ing which the party making the manifestations should reasonably expect that the
other party would ascribe to them. (There are certain exceptions to this rule:
When one party has manifested his intention ambiguously , and neither party knows
or has reason to know that the other party may give a different meaning to the
manifestation , it is given the meaning in favor of each party that he intended it
should bear ; the same rule of interpretation is considered applicable where both
parties know or have reason to know that ambiguity is present . When one party
manifests his intention ambiguously , knowing or having reason to know that the
manifestation may reasonably bear more than one meaning, and the other party
believes it to bear one of those meanings , having no reason to know that it may bear
another, that meaning is given to it . Ibid ., § 233.) These rules merely define the
standard by which verbal "manifestations of intention " should be interpreted; they
do not, themselves , control determination with respect to the legal effect of such
manifestations.
Consistently therewith , threshold questions with respect to the meaning of
relevant manifestations proffered by Thornton and Cantwell , respectively , will have
to be resolved.
Conventional contract law, however , does provide certain decisional principles,
pursuant to which determinations may be made as to when mistakes due to misun-
derstandings with respect to the meaning of words or other acts will make a presump-
tive agreement void; that is, when the ordinary rules which govern the formation of
contracts will be rendered inapplicable by mistake.
What circumstances , first, reveal the presence of mistake caused by some misun-
derstanding with respect to the meaning of particular manifestations given to con-
firm the formation of an agreement? See Restatement , Contracts § 501 (1932),
in this connection:
Misunderstanding exists where the words or other acts of the parties indicate
assent, but one or both of the parties in fact intend something different from
what the words or acts express.
For reasons to be noted within this Decision , determination seems warranted that
there was a genuine "misunderstanding" between Cantwell and Respondent Union's
secretary-treasurer , with respect to the meaning of their purported September 10
consensus.
When such misunderstandings are due to the fault of one party , and the other
party understands the transaction according to the natural meaning of the words
or other acts , both parties are bound by that natural meaning. When, however, mis-
BUTCHERS ' UNION LOCAL 120 , ETC. 27
understandings may be traced to ambiguity for which neither party is to blame, or
for which both parties are equally to blame, and the parties differ in their under-
standing , their seeming agreement will create no contract.
The decisional rules or principles clearly reflect some qualification of the general
contract law doctrine that manifestations of mutual assent , given by the parties to an
informal contract , are essential to its formation , regardless of the possible absence
of mental assent . Williston on Contracts , § 22 (3d ed. 1937 ); Restatement , Contracts
§§ 20, 71 ( 1932 ). Within Restatement , these qualifications of the general contract
law doctrine have been the subject of comment , as follows:
The mental assent of the parties is not requisite for the formation of a con-
tract . . . If the manifestations of the parties have more than one reasonable
meaning, it must be determined which of the possible meanings is to be taken.
If either party has reason to know that the other will give the manifestations
only one of these meanings and in fact the manifestations are so understood,
the party conscious of the ambiguity is bound in accordance with that under-
standing . On the other hand, if a party has no reason to suppose that there
is ambiguity, he may assume that his words or other acts bear the meaning
that he intended , that being one of their legitimate meanings , and he will not
be bound by a different meaning attached to them by the other party. [Em-
phasis supplied.]
With these principles for guidance-distilled from the general body of contract
law-disposition of the question presented herein may be facilitated . Basically,
some determination would seem to be required as to whether responsibility for what-
ever misunderstandings Thornton or Cantwell may have had-with respect to the
nature and scope of their consensual commitment on health and welfare matters-
can reasonably be laid upon the former , the latter, or neither . To that question,
therefore , consideration must now be directed.
c. Discusssion
Reference has been made to Respondent Union's contention that Chip Steak Com-
pany was committed to underwrite whatever changes the Fund trustees might
negotiate , in futuro, for the general health and welfare plan set up pursuant to their
prior contract . Substantially , this contention derives from counsel's definition of
the designated "plan" concept as one which covers the total "arrangement" between
the contract parties, whereby a trust is created, and trustees are empowered to deal
with insurance carriers, for the purpose of purchasing the best possible benefit cov-
erage for "plan" beneficiaries . Since the particular level of benefits or benefit sched-
ule which the carriers may contract to provide pursuant to such a plan-so counsel's
argument runs-would necessarily derive from coverage contracts negotiated by the
Health Fund trustees within their discretion , Chip Steak Company's negotiators
could not, reasonably , have considered their firm 's consensual agreement with Re-
spondent Union's spokesmen limited merely to reciprocal commitments that some
given "level of benefits" would be maintained by those trustees . This contention,
however, fails to persuade.
(During the hearing, I did suggest my readiness to concur with the views of Re-
spondent Union's counsel regarding the broad scope of the contractual "plan" con-
cept. Subsequent study of the record, however , has convinced me that counsel's
definition of that concept covers too much ground . Within the Jobber Agreement's
relevant provision-which presently binds Respondent Union herein-there is a
distinction drawn between ( 1) the unnamed "Trust" which the contract parties had
already formed pursuant to the terms of their previously negotiated Trust agreement,
and (2 ) the health and welfare plan selected and purchased from certain designated
insurance carriers by trustees of the designated trust. The brochure which outlines
the plan in question shows that the board of trustees of Northern California Butcher
Unions and Employers Health Trust Fund has "arranged " for a program of life,
accidental death and dismemberment , hospital , surgical, and medical care benefits.
This program-designated as the Fund 's health and welfare plan within the
brochure-rests upon certain stated eligibility requirements , provides various specified
benefits for workers covered , describes the procedure by means of which such bene-
fits may be procured , and, finally, defines the right of worker beneficiaries to con-
tinued coverage , under certain designated circumstances , should their employment,
within the worker group covered, be terminated . Determination would seem war-
ranted, therefore , that this particular "plan" concept-though it clearly compasses
more than a mere benefit schedule-does not include the trust "arrangement"
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proper; rather , the contractually designated health and welfare plan can be charac-
terized best as a product which the Trust Fund provides , pursuant to a decision for
which the Fund's board of trustees is responsible . I so find )
Within their total context , true, relevant negotiations between the Respondent
Union and Company spokesmen reflect no consensus calculated to define or limit,
directly, the discretion of Health Fund trustees with respect to their purchase of
benefit coverage for Chip Steak workers ; nothing in the record , however, can be said
to warrant a conclusion , contrariwise , that the negotiators mutually conceived their
verbal commitments as commitments whereby Chip Steak Company consciously
agreed to underwrite whatever coverage the Fund trustees , within their discretion,
might later purchase . Thornton and Cantwell , so far as the record shows, merely
conceived their negotiations as discussions directed , narrowly, toward some con-
sensus regarding Chip Steak Company 's prospective "contribution rate " for health
and welfare purposes . This was, realistically , the only matter-related to health
and welfare coverage for the Company 's workers-upon which their negotiations
could properly focus . And, with respect thereto, determination clearly seems war-
ranted that United's vice president-during caucus discussions first with Conciliator
Barry, and subsequently with Respondent Union 's principal negotiator-merely de-
clared the Company's readiness "to pay whatever increase is arrived at . in order
to maintain the same [current ] level of benefits"; so far as can be determined, what-
ever references Cantwell may have made to the Health Trust Fund's "present health
and welfare plan" were merely calculated to define the frame of reference within
which the Company's statement of position was proffered . They were not calculated
to convey Company readiness to underwrite the complete "plan" regardless of possi-
ble future changes in benefit levels. I so find. ( Respondent Union's secretary-
treasurer, when questioned with regard to the context within which Cantwell's verbal
commitments were made , first testified , positively , that "there was no discussion
whatsoever" regarding "any possible added benefits which might be put in [effect]
in 1965," during their September 10 session . Shortly thereafter , however, he de-
clared that there had been "considerable discussion " during that session regarding
the ",possibility or probability" that Respondent Union would subsequently
seek certain new health and welfare benefits; substantially, Thornton 's testimony
suggested that Cantwell was told about the "possibility or probability" that
Respondent Union would seek higher health and welfare "contribution rates"
during forthcoming October 1964 industrywide negotiations , not merely to cover
prospectively higher costs for present benefit programs , but likewise to facilitate
possible supplementation of the Health Trust Fund sufficiently to permit the Fund
trustees to purchase new types of benefit coverage. Questioned further in this
regard, Thornton conceded that whatever discussion had taken place with respect
to the latter possibility , during the September 10 session , had been purely a specula-
tive "off-the -record" discussion without "consequence" relative to the negotiations.
Finally, Respondent Union's secretary -treasurer professed a failure of recollection
as to whether he had mentioned to Company representatives , during their Septem-
ber 10 session , that there was some "probability" of change in the plan's current
benefit schedule . Thereafter, Arnold John, a Company employee and member of
Respondent Union's negotiating committee , testified that he had heard no specific
references to new health and welfare benefits during any plenary discussions. With
matters in this posture , the present record, certainly, will not sustain a determination
that United 's vice president committed the Company to some prospectively higher
"contribution rate" within a clearly defined context of talk regarding the possible
supplementation of current health and welfare benefits .) Specifically : Without
proof that negotiations were conducted with both parties knowingly looking toward
the possibility of some benefit schedule expansion , determination cannot be consid-
ered warranted that Company spokesmen conceived of their commitments as a com-
mitment that the firm would guarantee continuation of the contractually bottomed
health and welfare plan regardless of possible future mutations.
Nothing in the present record will support a determination that Thornton's con-
trary view , with respect to the scope of Chip Steak Company's commitment , merely
reflects some post facto contrivance calculated to excuse Respondent Union's rejec-
tion of their previously reached consensus . Stated otherwise , with matters in their
present posture , Respondent Union's January 2 refusal to sign Cantwell 's previously
proffered contract draft cannot , reasonably , be found indicative of that organiza-
tion's bad -faith determination to deny a consensus, because subsequent reflection
had suggested that it may not have been sufficiently provident. (Within his brief,
General Counsel has, indeed , suggested that Thornton 's failure to protest Cantwell's
October 18 draft formulation , with particular reference to their contract 's health and
BUTCHERS ' UNION LOCAL 120, ETC. 29
welfare provision-coupled with the 6-week delay which preceded his written protest
regarding the revised submission by United's vice president-would justify a con-
clusion that his reluctance to sign both drafts derived from second thoughts about
the wisdom of Respondent Union's previous consensual commitment. Such a con-
clusion, however, would have to rest upon mere inference and suspicion ) There
can be no doubt, however, that Respondent Union's principal negotiator-whatever
his views may have been with regard to the necessity or desirability of some broad
Company commitment to support a possible future modification of benefit schedules
under the firm's present health and welfare plan-never really made it clear, during
their final negotiations, that his willingness to confirm the achievement of a con-
sensus rested upon a supposition that Chip Steak Company was consciously so
committed.
Cantwell's testimony, which I credit in this connection, reveals, contrariwise, that
Chip Steak Company's position with respect to the limited scope of its commitment
was clearly delineated; both Conciliator Barry and Respondent Union's secretary-
treasurer were told, substantially, that the firm would be bound merely to pay what-
ever higher "contribution rate" would be required to maintain a health and welfare
plan for Company workers with the "same [benefit] level" currently provided.
Thornton, so far as the record shows, made no effort to protest-then and there-
that such a limited commitment would not be satisfactory. Thereby, Respondent
Union's secretary-treasurer-having failed to make it clear that his "manifestation
of assent" with respect to the consensus reached was predicated upon his belief that
Chip Steak Company was broadly committed-bound his principal to consensual
health and welfare undertakings consistent with Cantwell's more limited concept.
By way of summary-consistently with well-settled principles of contract law-
the Respondent labor organization's situation, regarding its contractual commit-
ment, may be stated as follows: Since the group's principal negotiator had full
"reason to know" that Company representatives would give their reciprocal "mani-
festations" that particular "reasonable meaning" whereby the firm's commitment
was most narrowly defined-and since Chip Steak Company's spokesmen did, in
fact, consider their "manifestations of assent" reflective of their willingness to under-
take nothing more than a limited health and welfare commitment- Respondent
labor organization must be considered bound in accordance with whatever "under-
standing" Chip Steak Company's negotiators had, regarding the nature and scope
of their September 10 health and welfare consensus. That "understanding" was
correctly set forth, I find, within Cantwell's November 21 contract draft.
d. Conclusion
With matters in this posture, determination seems warranted that Respondent
Union's principal negotiator-when he refused to sign Cantwell's November 21 con-
tract draft, submitted in Chip Steak Company's behalf-refused to bargain collec-
tively within the meaning of the statute. I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent Union's course of conduct set forth in section III, above, since it
occurred in connection with the business operations of Chip Steak Company de-
scribed in section I, above, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States; absent correction, such conduct
would tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Since I have found that Respondent Union did engage in and continues to engage
in unfair labor practices, I will recommend that the designated labor organization
and its representatives cease and desist therefrom, and take certain affirmative action,
including the posting of appropriate notices, designed to effectuate the policies of the
Act, as amended.
Specifically, my determination has been that Respondent Union improperly re-
fused to sign the document proffered November 21 in the Company's behalf, reflec-
tive of the consensus which its negotiators had reached with Chip Steak Company's
spokesmen, during their September 10, 1963, session. Accordingly, my recom-
mendation will be that Respondent Union sign, upon request, copies of the draft
contract which Chip Steak Company's representative had submitted on Novem-
ber 21, 1963, for review and signature by Respondent Union's secretary-treasurer.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(General Counsel argues that Respondent Union should be ordered , upon request, to
sign the Company's October 16 draft submission, which purported to represent,
within the compass of a single document, the complete collective-bargaining agree-
ment between the parties. The contention is made that-should the Company be
denied the convenience of having its collective-bargaining contract set forth within
a single, complete, up-to-date instrument-something less than an effective remedy
would be provided. This contention, however, fails to persuade. General Counsel,
herein, made no effort to litigate the validity of the reasons which Respondent
Union's secretary-treasurer gave to bolster his preference for a contract set forth in
three separate documents; no reliable, probative, or substantial evidence can be
found which would warrant a conclusion, now that his reasons were specious. Since
Thornton's request that Chip Steak Company provide a draft limited to the substance
of the consensus most recently reached-with prior commitments incorporated by
reference-was a request which met with Company concurrence, before the present
charges were filed, no convincing reason can be found for a determination that
Respondent Union should be considered bound to sign the Company's October 16
submission.) While the charge which began the present case was being investigated,
negotiators for the Company and Respondent Union did declare their present readi-
ness to sign a contract within which the Federal conciliator's language reflective of
their consensus, with respect to health and welfare matters, would be employed.
Since Respondent Union's secretary-treasurer, however, clearly maintains, now, that
such contract language would-within his view-merit a construction consistent with
his previous claims relative to the scope of the Company's health and welfare com-
mitment, reformation of the Company's November 21 submission, through sub-
stitution of the conciliator's health and welfare phraseology for that of United's vice
president, would merely be likely to generate future controversy. For this reason,
no recommendation has been made-despite my previous determination that the
conciliator's note in question correctly reflects the substantive consensus which the
negotiators reached-that the contract presented for Respondent Union's signature
should be redrafted to reflect their ;putative post facto consensus with respect to the
propriety of such contract language.
In light of these findings of fact, and upon the entire record in this case, I make
the following:
CONCLUSIONS OF LAW
1. Chip Steak Company and United Employers, Inc., are both employers within
the meaning of Section 2(2) of the Act, and are engaged in commerce and business
activities which affect commerce within the meaning of Section 2(6) and (7) of
the Act, as amended.
2. Butchers' Union Local 120, Amalgamated Meat Cutters & Butcher Workmen
of North America, AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act, as amended, which admits employees of Chip Steak Company to
membership. S. E. Thornton and John Finnie, Respondent Union's secretary-
treasurer and business representative, respectively, were, throughout the period with
which this case is concerned, agents of the designated organization, within the mean-
ing of Section 8(b) and Section 2(13) of the Act, as amended.
3. All employees of Chip Steak Company at its Oakland, California, plant engaged
in production and meat processing work within Respondent Union's recognized
jurisdiction, including janitorial maintenance employees, but excluding machinery
maintenance mechanics, all other employees, guards, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act, as amended.
4. Since September 14, 1961, approximately, and at all times material thereafter,
Respondent Union has been recognized and has functioned as the exclusive repre-
sentative of the Company's employees within the unit herein found appropriate for
the purposes of collective bargaining within the meaning of Section 9(a) of the Act,
as amended.
5. By failing and refusing to execute the written contract submitted for signature
by its representative on November 21, 1963, because of a contention that the docu-
ment submitted did not correctly reflect the agreement previously reached on Sep-
tember 10, 1963, Respondent Union has engaged in and continues to engage in
unfair labor practices affecting commerce within the meaning of Section 8(b)(3)
and Section 2(6) and (7) of the Act, as amended.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law and the entire record in the
case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended,
BUTCHERS ' UNION LOCAL 120, ETC. 31
I hereby recommend that the Respondent Union , Butchers ' Union Local 120, Amal-
gamated Meat Cutters & Butcher Workmen of North America , AFL-CIO, its
officers, agents , and representatives , shall:
1. Cease and desist from refusing to bargain collectively in good faith with Chip
Steak Company , on behalf of workers within the unit herein found appropriate for
the purposes of collective bargaining, by refusing to sign the contract draft submitted
for signature by its representative on November 21, 1963, or from engaging in any
like or related conduct in derogation of its statutory duty to bargain.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act, as amended:
(a) Upon request , bargain collectively with Chip Steak Company as the exclusive
representative of that Company 's employees , within the unit herein found appropriate
for the purposes of collective bargaining , and embody any understanding reached in a
signed agreement.
(b) If requested by Chip Steak Company , or its designated representative , execute
the draft contract submitted on November 21, 1963, for signature by its representative.
(c) Post at its business offices and meeting halls , copies of the attached notice
marked "Appendix ." 2 Copies of the notice , to be furnished by the Regional Di-
rector for Region 20 , shall, after being duly signed by an official representative of
Respondent Union, be posted immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter , in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall be taken by
Respondent Union to insure that said notices are not altered , defaced, or covered by
any other material.
(d) Furnish to the Regional Director for Region 20 signed copies of the attached
notice for posting, the Company willing, at its office or plant, in places where notices
to employees are customarily posted. The notice shall be maintained at such places
for a period of 60 consecutive days thereafter . Copies of said notice , to be furnished
by the Regional Director for Region 20, shall, after being duly signed by Respondent
Union's official representative as provided above, be forthwith returned to the Re-
gional Director for such posting.
(e) File with the Regional Director for Region 20, as the Board 's agent, within
20 days of the date of service of this Decision , a written statement setting forth the
manner and form in which it has complied with this Recommended Order.3
2 Should the Board adopt this Recommended Order , the words "a Decision and Order"
shall be substituted for the words "the Recommended Order of a Trial Examiner" in the
notice . Further, should the Board's Order be enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of Appeals , Enforcing
an Order" shall be substituted for the words "a Decision and Order".
3 Should the Board adopt this Recommended Order , this provision shall be modified to
read- "Notify said Regional Director , in writing, within 10 days from the date of this
Order, what steps Respondent Union has taken to comply herewith."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND ALL EMPLOYEES OF CHIP STEAK COMPANY
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , you are hereby notified that:
WE WILL NOT refuse to bargain collectively in good faith with Chip Steak
Company as the exclusive representative of their employees , within the unit
described below, by refusing to sign the written collective-bargaining contract
submitted to our representatives for signature on November 21, 1963; WE WILL
NOT, further , engage in any like or related conduct , in derogation of our statu-
tory duty to bargain , provided we remain the statutory representative of the
employees within the appropriate unit, within the meaning of Section 9 of the
Act, as amended.
WE WILL, if requested by Chip Steak Company or that Company ' s designated
collective -bargaining representative, execute the draft contract submitted for
signature by our representative on November 21, 1963.
The unit found appropriate for the purposes of collective bargaining is- All
Chip Steak Company employees at its Oakland , California , plant engaged in
production and meat processing work within our recognized jurisdiction, in-
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eluding janitorial maintenance employees, but excluding machinery maintenance
mechanics , all other employees, guards, and supervisors as defined in the Act,
as amended.
BUTCHERS' UNION LOCAL 120, AMALGAMATED MEAT CUTTERS
& BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material. Members of
the signatory labor organization and employees may communicate with the Board's
Regional Office, 450 Golden Gate Avenue, San Francisco, California, Telephone
No. 556-6721, if they have any question concerning this notice or compliance with
its provisions.
Food Giant Supermarkets ; Mayfair Markets, d/b/a El Rancho
Markets; Safeway Stores , Inc. and Retail Clerks International
Association Local 727, AFL-CIO. Case No. 28-CA-975. July 27,
1965
SUPPLEMENTAL DECISION AND ORDER
On January 24, 1964, the Board issued a Decision and Order in this
case I finding that the Respondents had engaged in and were engaging
in certain unfair labor practices in violation of Section 8(a) (1) and
(3) of the Act. The Board noted in its Decision that this case was
indistinguishable from John Brown et al., d/b/a Brown Food Store,
137 NLRB 73,2 enforcement denied 319 F. 2d 7 (C.A. 10), then pend-
ing before the Supreme Court of the United States. Thereafter the
Respondents filed a request for review in the Court of Appeals for the
Ninth Circuit and the Board filed a cross-petition for enforcement.
On March 29, 1965, the Supreme Court rendered its decision in
N.L.R.B. v. John Brown, et al., d/b/a Brown Food Store, 380 U.S.
278, affirming denial of enforcement of the Board's Order. Sub-
sequently the court of appeals, on the Board's motion, extended the
time for all further proceedings in this case to June 29, 1965, to enable
the Board to consider the case further in the light of the Brown
decision.
Thereafter, on June 28, 1965, the Board issued and caused to be
served upon the parties a notice to show cause in which the Board
stated that, having reconsidered the entire record in this proceeding in
light of the decision of the Supreme Court in Brown, supra, it had
concluded that the instant case is controlled in all respects by the
Brown decision; and that, therefore, the Board proposed to issue a
Supplemental Decision and Order dismissing the complaint in its en-
tirety, unless the parties showed cause in writing, on or before July 8,
1965, why the complaint should not be so dismissed.
1145 NLRB 1221.
2 Members Rodgers and Fanning dissenting.
154 NLRB No. 8.