Concrete Pipe & Products Co.

National Labor Relations Board - Board Decisions

Jun 26, 1984

270 N.L.R.B. 1394 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concrete Pipe & Products Co., Inc. and Operating
Engineers Local Union No. 3, International
Union of Operating Engineers, AFL-CIO. Case
20-CA- 16270
26 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 15 June 1982 Administrative Law Judge
James M. Kennedy issued the attached decision.
The Respondent filed exceptions and a supporting
brief; both the General Counsel and the Union filed
cross-exceptions and supporting briefs respectively;
and the Respondent filed an answering brief to the
cross-exceptions.
By Order dated 30 August 1983, the National
Labor Relations Board remanded the proceeding to
the judge for further findings with respect to the
credibility of the witnesses and the weight of the
evidence as a whole with regard to the consider-
ation of the 19 May 1981 collective-bargaining
meeting between the parties.
On 19 December 1983 the judge issued the at-
tached supplemental decision. The Respondent
filed exceptions and a supporting brief to the sup-
plemental decision, and the General Counsel sub-
mitted a letter in support of the judge's supplemen-
tal decision and in response to the Respondent's ex-
ceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the initial decision and
supplemental decision and the record in light of the
exceptions and briefs filed with respect to both de-
cisions and has decided to affirm the judge's rul-
ings, findings,' and conclusions only to the extent
consistent with this Decision and Order.
The Respondent and the Union were parties to a
collective-bargaining agreement effective 20 Octo-
ber 1977 until 19 October 1980. The parties began
negotiations for a new agreement 2 October 1980.
During negotiations the Union commenced a strike,
which ended on 27 October 1980. The parties met
again on 28 and 29 October 1980, but agreement
was not reached. Bargaining did not resume there-
' The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
270 NLRB No. 163
after until 15 April 1981.2 The last meeting be-
tween the parties was held on 19 May.
During the brief strike in October 1980 the Re-
spondent hired some permanent replacements for
striking employees. On 29 October 1980 the parties
discussed whether these replacements would
remain in the Respondent's employ or whether
they would be laid off when the new contract was
signed. The Union sought reinstatement of strikers
who had been replaced. The Respondent would
not yield to that demand. Business agent Allen an-
grily announced that the replacements would be
charged an initiation fee of $1000. On the evening
of 29 October 1980 the Respondent's attorney and
collective-bargaining representative Murphy sent
the Union a mailgram changing its contract propos-
al to indicate that the Respondent would not agree
to a union-security clause unless the Union charged
the same fees and dues for all employees. Howev-
er, the Respondent did not indicate objection to the
concept of a union-security clause as such, only
that it desired to protect the Company and its em-
ployees.
When negotiations resumed on 15 April, Allen
retracted his remarks regarding the $1000 initiation
fee and stated that fees would be the same for all
employees. Murphy then raised two other issues
concerning matters that had transpired during the
hiatus in negotiations. One issue related to employ-
ees who had stopped paying dues and/or had re-
voked dues checkoff. The other issue concerned in-
ternal union charges filed against employee Salinas,
who had resigned from the Union and apparently
had circulated material designed to "disaffiliate"
the Union. Both Allen and Hoover, the Union's
district representative and a collective-bargaining
representative at the negotiations, told Murphy that
the Salinas matter was not a mandatory subject of
bargaining and would not be discussed. Allen simi-
larly told Murphy that the issue of employees who
canceled dues checkoff was not an appropriate sub-
ject for bargaining. Murphy indicated that he did
not know whether such matters were mandatory
topics of bargaining and stated that he would do
research on the question. Hoover also told the Re-
spondent that he had no authority to drop the
charges against Salinas or to forgive the dues for
individuals who had stopped paying them. He said
those matters would have to be taken up with the
Union's executive board.
During the the hiatus from April to May,
Hoover obtained permission from the Union to
drop the charges against Salinas and to forgive 3
months' dues for all employees in the bargaining
2 All dates hereinafter are in 1981 unless otherwise indicated.
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CONCRETE PIPE & PRODUCTS CO.
unit, including those who had canceled their dues
checkoff. However, Hoover never communicated
his authority to the Respondent.
At the 19 May meeting, Murphy presented the
Respondent's proposed final contract, noting that
there had been several changes from the last pro-
posal. The Respondent had withdrawn the union-
security clause and had reinserted a "zipper" clause
which Murphy had previously said would be re-
moved. Murphy informed the union negotiators
that the Respondent would not bargain to impasse
on internal union matters raised at the prior meet-
ings, i.e., the Salinas issue, the dues-forgiveness
issue, and the fair treatment of striker replacements.
Murphy noted, however, that since the union-secu-
rity clause was a mandatory subject of bargaining,
the Respondent was withdrawing it at this time.
The union committee caucused and then offered
the Respondent a l-year extension of the expired
contract with no wage increase and no changes in
the terms of that contract. Murphy rejected the
proposal. Allen then indicated to Murphy that the
Union was willing to discuss Salinas and the dues
treatment of the striker replacements. Murphy
would not discuss such matters until Allen assured
Murphy that the Union would not bring unfair
labor practices charges against the Respondent for
discussing the nonmandatory subjects of bargain-
ing. He received such assurances. Allen then ex-
plained, as he had at the 15 April meeting, that the
striker replacements would be treated the same as
other employees seeking membership in the Union.
The Union also told Murphy that it would forgive
3 months' back dues for all employees in the bar-
gaining unit rather than just for those who had
canceled dues checkoff. Hoover then asked
Murphy if he would reinstate the union-security
clause if the Union granted the 3 months' dues for-
giveness and dropped the Salinas trial. Murphy re-
plied, "That is our intent." The parties then agreed
upon a 3-year term for the length of the contract.
Allen then announced that the parties had an
agreement.
On the evening of 19 May at a union district
meeting, Hoover caused the Salinas trial to be post-
poned indefinitely, and obtained a dues waiver for
the entire bargaining unit.3
In the meantime, shortly after the negotiation
session of 19 May ended, Murphy telephoned the
Respondent's corporate headquarters and spoke to
its general counsel. Murphy explained to the gener-
al counsel that if the matters mentioned above-the
Salinas matter, the dues-forgiveness issue, and the
3 As noted above the Union had already agreed to treat new hires
fairly, and thus no specific action was taken with respect to that issue at
the union meeting on 19 May.
striker replacement issue-were worked out, he in-
tended to reinsert the union-security clause in the
contract. However, Murphy was then informed
that the Respondent's president would no longer
accept a union-security clause and was told to
inform the Union of that fact immediately. Murphy
attempted to telephone Hoover that afternoon, but
was unable to reach Hoover until mid-afternoon of
the following day, 20 May. On the evening of 20
May, the Union held a ratification meeting. Prior
to voting on ratification, Hoover informed the as-
sembled employees that Murphy had told him the
union-security clause would be withdrawn from
the contract. Hoover informed the employees that
he thought the Respondent could not lawfully do
that. The contract was then submitted to the mem-
bership for ratification and it was unanimously ap-
proved. Although the Union asked the Respondent
to sign the contract, the Respondent declined to do
so.
In his initial decision, the judge found that the
Respondent, by its offer, invited the Union to
accept a contract with a union-security provision if
the Union acceded to the Respondent's requests on
the nonmandatory subjects of bargaining. The
judge interpreted Murphy's testimony as an admis-
sion that the Respondent would reinsert the union-
security provision and agree to a contract if the
three conditions on those subjects were met. The
judge then found that Hoover's act of exercising
his authority "to postpone the Salinas trial" and to
grant dues forgiveness were the acts of acceptance
invited by Murphy. The judge concluded that the
Union was not required to notify the Respondent
immediately that it had performed the invited act,
since the offer did not require such notification.
When Hoover had completed his actions, the judge
concluded, the Union had accepted the Respond-
ent's offer and the contract was completed. The
judge thus found it unnecessary to decide whether
a contract had been reached at the 19 May meeting
itself, and he thus failed to clarify conflicting credi-
bility issues as to what took place at the meeting.
In his supplemental decision, the judge, as re-
quested by the Board, resolved the outstanding
issues of what exactly occurred at the 19 May
meeting. The judge concluded that the parties spe-
cifically agreed at the meeting that a contract had
been reached. The judge found that his credibility
findings reinforced his initial conclusions. The
judge further found that, although the Union only
had begun to drop the Salinas charge, but had not
yet formally done so, this fact did not change the
result of the case. The judge found that the act of
postponing the trial of Salinas was a "significant
beginning" in the act of acceding to the Respond-
1395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's request, i.e., dropping the charge. However,
the judge found that the Union's actions were in-
terrupted by Murphy, who attempted to revoke his
offer of 19 May. He thus found that the Union was
stopped from completing the act of performance by
the Respondent's interference. Concluding that the
Union had significantly changed its position in reli-
ance on Murphy's invitation, the judge found the
Respondent was estopped from denying there was
a difference between the act of postponing and the
act of dropping the charge. He thus again conclud-
ed that a contract existed between the parties and
that the Respondent violated the Act by failing to
sign the contract. For the reasons that follow, we
find that no contract had been reached between the
Respondent and the Union and thus that the Re-
spondent did not violate the Act by refusing to
sign a contract.
Contrary to the judge, we do not believe that
the Union's mere postponing of the Salinas matter
is equatable with the Respondent's request for the
Union to "drop" the charge against Salinas. It
cannot be denied that this is a material issue re-
garding whether there was a contract between the
parties. It also cannot be denied that the Respond-
ent desired a completed act from the Union, and
not a partial act from the Union. Respondent had
no control over dropping the charge; only the
Union could have completed the act and put the
Respondent to the test of completing the contract
by reinserting the union-security clause as the Re-
spondent has promised to do. However, the Union
could not put the Company to the test without first
performing its part of the bargain. In other words,
until the charge was actually dropped per the
agreement of the parties at the 19 May meeting the
burden did not shift to the Respondent to comply
with the terms of the agreement. The Union's re-
tention of control of the charge, while perhaps un-
derstandable, nonetheless makes the Union's con-
duct incompatible with the Respondent's request. 4
The only reasonable conclusion that can be drawn
from the facts presented in this case is that the par-
ties had reached a stalemate over contract negotia-
tions. Neither condition extracted by the parties-
dropping the charge against Salinas or reinserting
the union-security clause-was performed by the
appropriate party. In these circumstances, we
cannot find that the parties reached agreement on a
contract. Accordingly, the Respondent's refusal to
sign any agreement did not violate the Act. We
therefore will dismiss the complaint in its entirety.
4 We note that there was no allegation that the Respondent violated
the Act by informing the Union that it would no longer accept the union-
security clause.
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This
case was tried before me at Sacramento, California, on
March 16, 1982, pursuant to a complaint issued by the
Regional Director for Region 20 for the National Labor
Relations Board on July 28, 1981,1 and which is based
on a charge filed by Operating Engineers Local Union
No. 3, International Union of Operating Engineers,
AFL-CIO (the Union) on May 27. The complaint al-
leges that Concrete Pipe & Products Co., Inc. (Respond-
ent) has engaged in certain violations of Section 8(a)(5)
and (1) of the National Labor Relations Act (the Act).
Issues
Whether on May 19 Respondent and the Union
reached a collective-bargaining agreement, and whether
on May 20 Respondent repudiated that agreement and
thereafter refused to sign it.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent admits it is a California corporation en-
gaged in the manufacture and distribution of concrete
pipe and related products having plants located in Sacra-
mento. It further admits that during the past year, in the
course and conduct of its business, it sold and sent goods
and materials valued in excess of $50,000 to customers
outside California. Accordingly it admits, and I find, that
it is an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
1. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Participants
This dispute arises from an attempt to obtain a new
collective-bargaining agreement. The previous agreement
was in effect from October 20, 1977, until October 19,
1980. Negotiations for the new agreement began on Oc-
t All dates herein refer to 1981 unless otherwise indicated.
1396
CONCRETE PIPE & PRODUCTS CO.
tober 2, 1980, and three bargaining sessions were con-
ducted before the contract expired. When it expired, a
strike commenced; three more negotiation sessions were
conducted while the picketing was in progress. The
strike ended on October 27, 1980. Two more bargaining
sessions were held on October 28 and 29, 1980. A long
hiatus followed but bargaining resumed on April 15,
1981. The last meeting was held on May 19.
Respondent was represented at its negotiation sessions
by its plant manager William Street and its attorney
Dennis R. Murphy. The Union was represented by busi-
ness agent Ken Allen throughout the negotiations; he
was joined in the 1981 meetings by the Union's district
representative Clem Hoover. Other individuals attending
on behalf of the Union were Steve Kuster, business rep-
resentative, Martin Villanueva, steward, and Jack Bohl-
ing, steward.
During the brief strike in October 1980 Respondent
hired a number of permanent replacements. At the meet-
ing of October 29, 1980, during a negotiation session
with a Federal mediator, the parties discussed Respond-
ent's intention regarding whether the replacements
would continue to remain employed or would be laid off
when the contract was signed. The Union sought the re-
instatement of the strikers who had been replaced. When
Respondent would not yield to that demand business
agent Allen, in anger, announced that the replacements
would be charged an initiation fee of $1000. The meeting
thereupon ended.
That evening Murphy sent the Union a mailgram
changing its contract proposal to say that it would not
agree to a union-security clause2 unless the Union
charged fees and dues at the same rate for all employees.
The mailgram also stated that Respondent did not object
to the concept of union security but would not allow it
to be used to punish either the Company or its employ-
ees.
B. The 1981 Negotiations
Approximately 6 months passed before the next meet-
ing was held. On this occasion, April 15, 1981, Allen
told Murphy and Street that his remark regarding the
$1000 initiation fee had been made in anger and he had
no authority to require such a fee even if he wanted;
indeed, he testified that no one in the Union had such au-
thority. He told Murphy that the initiation fee to be
charged new employees would continue as before, $92
plus I month's dues. Allen's testimony here is corrobo-
rated by Hoover and Respondent does not contest it.
During the 6-month gap in bargaining, there had been
some other developments. Some of the employees had
refused to pay any dues to the Union during this period
and others had canceled their dues-checkoff authoriza-
tions. In addition, one of the employees, Gerardo Salinas,
resigned from the Union and apparently circulated mate-
rials designed to "disaffiliate" the Union from Respond-
ent. This resulted in internal union charges being filed
against him.
When the April 15 meeting began, Murphy attempted
to inject these matters into the bargaining gristmill. Also,
2 The predecessor agreement contained a standard union shop clause.
at some point during this meeting Allen offered to renew
the expired contract for I year to expire on October 20,
1981, thus having retroactivity to the expiration date of
the previous agreement. The Company rejected that pro-
posal. According to Allen, both Street and Murphy op-
posed the discipline which they believed the Union
either had taken or was about to take. It was in this con-
text that Allen told them the $1000 remark had been
made in anger and that he had no power to enforce it.
Murphy and Street told Allen Respondent wanted to
protect Salinas from any internal union charges and
Murphy asked how the Union intended to treat employ-
ees who had canceled their checkoffs or had stopped
paying dues.
Both Allen and Hoover replied that the Salinas matter
was not a mandatory subject of bargaining and they
would not discuss it. Allen says he did tell them the
Union would charge striker replacements the same fees
and dues it charged everyone else. He testified he did
not promise to take the replacements as members but nei-
ther did he say the Union would refuse them admission.
With regard to those employees who had canceled their
dues checkoffs, Allen likewise asserted that their treat-
ment was not an appropriate subject for bargaining.
Murphy did not know whether those matters were
mandatory topics and told them he would research the
question. During their discussion of the dues and disci-
pline questions, according to Hoover, since Murphy had
said there would be no contract unless the charges
against Salinas were dropped and the dues forgiven for
those who had canceled their checkoffs, Hoover told the
company officials he had no authority to drop the
charges against Salinas or to forgive the dues for those
individuals. He said those were matters which would
have to be taken up with the Union's executive board.
Hoover testified that during the 4-1/2 weeks between
the April 15 and May 19 sessions he obtained permission
from his superiors within the Union to drop the charges
against Salinas and to forgive 3 months dues for every-
one in the bargaining unit, not just those who had can-
celed their dues checkoffs. He did not communicate his
having obtained that authority to Respondent. He says,
however, that after a caucus during the May 19 meeting
these matters were resolved.
There is some apparently critical testimonial conflict
about what occurred on May 19. Certainly there is a
conflict regarding what occurred; yet, much is not in dis-
pute and the credibility questions are overshadowed by
some objective conduct.
Matters which are not in conflict appear to be the fol-
lowing: Respondent submitted a proposal in final form.
Murphy told Allen and Hoover there were only two
changes from all the matters which had been agreed on
up to then. He had (1) withdrawn the union-security
clause, explaining Respondent was "protecting" the em-
ployees to whom its president had given his word and,
(2) reinserted the "zipper clause" which he had previous-
ly said he would take out. Allen quotes Murphy as now
agreeing that the Salinas and the dues-forgiveness ques-
tions were permissive bargaining subjects and Murphy
saying he had decided not to take the internal union mat-
1397
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ters to impasse. Allen remembers Murphy said that Re-
spondent "could not come to impasse on [those matters]
but the union security clause was a definite mandatory
issue and they were withdrawing it for that reason."
At that point the union committee called a caucus and
had a brief discussion. It returned and, according to
Allen, again offered to extend the previous agreement
for 1 year with no increases and no changes. Once again,
Murphy immediately rejected that proposal. Allen then
said the committee would agree to discuss the Salinas
matter, the intended treatment of those individuals who
had not been paying dues and the union membership of
the striker replacements. At first, Murphy said he did not
want to talk about those matters, but after Hoover prom-
ised not to file unfair labor practice charges against Re-
spondent for discussing them, Murphy agreed. At least
partial disagreement is seen from this point on.
Allen says he announced that his purpose in discussing
these issues was to get an agreement and to get the
union-security clause put back into the contract. Recall-
ing that Respondent had asked for 3 months' forgiveness
for those individuals who had withdrawn their dues
checkoffs, he said the Union would even go further. Not
only would the Union forgive those individuals their 3
months' dues, but it would forgive everybody in the bar-
gaining unit 3 months' dues. Allen also proposed drop-
ping the Salinas trial which was pending that evening.
Finally, he said the Union would take the striker replace-
ments as members at the normal initiation fee and that
each employee would be handled routinely. Hoover cor-
roborates Allen and in some respects so does Respond-
ent's witness Street. They also agreed that there was
some discussion regarding how the Union could accom-
pish those offers. Both union officials testified that those
matters would be taken care of at the district meeting
that evening for there would be enough executive board
members present to authorize it. Hoover conceded that
he did not tell Respondent that he had already obtained
the authority testifying he wanted to "reserve that pres-
tige for myself."
This, according to Allen, was followed by some small
talk regarding a reopener clause scheduled for October.
He says they agreed the reopener would be limited to
wages only. Hoover then asked Murphy if Respondent
would reinstate the union-security clause if the Salinas
question and the dues forgiveness were "taken care of."
Murphy replied, "This is our intent." At that point, ac-
cording to both Hoover and Allen, both sides stood up,
shook hands, and Allen said, "Gentlemen, we have an
agreement."
Murphy agrees that he said it was his intent to reinsert
the union-security clause upon resolution of the disputed
matters, but puts it in a different context. Yet, both he
and Street say that at the April 15 and again at the May
19 meetings the union officials never said they could get
the authority to resolve those questions. Both say that
the union officials' point of view was at all .times
"gloomy," doubting that such authority could be grant-
ed. They recall Hoover observing that Local 3 was a big
union with an unwieldy bureaucracy having policies
which could not easily be changed. Murphy says his
remark that it was "our intent" to reinsert the union-se-
curity clause was made only in the context that if the
Union would ever change its mind about Salinas and for-
give the dues he would be inclined to reinsert the clause.
Both he and Street say the meeting ended on a dour
note; no one claimed to have an agreement, and no one
shook hands. They recall it as the first meeting which
ended noncordially.
Afterwards, the union officials directed the two stew-
ards to call a bargaining unit meeting for the following
evening for the purpose of ratifying the contract as per-
ceived by the Union's negotiating committee.
Shortly after the negotiation meeting ended, Murphy
telephoned Respondent's corporate headquarters in Rich-
mond, Virginia, and he spoke to its general counsel Al-
exander Wellford. During the course of that conversa-
tion he informed Wellford about the progress of negotia-
tions including telling him, at the very least, that in the
event the problems over Salinas, the dues forgiveness,
and the striker replacements were worked out it was his
intent to reinsert the union-security clause. He learned,
to his surprise, that Respondent's president would no
longer accept a union-security clause. Wellford told him
to inform the Union immediately. That afternoon
Murphy says he attempted to telephone Hoover but was
unable to do so. He did not reach Hoover until mid-
afternoon the following day.
In the meantime, at the district meeting, Hoover had
caused the Salinas trial to be indefinitely postponed
pending execution of the contract. He had also exercised
his previously granted authority to grant dues forgive-
ness for 3 months for the entire bargaining unit. The
membership of the striker replacements was, as dis-
cussed, to be handled in the ordinary course.
On the evening of May 20 the ratification meeting was
held. Prior to voting on the ratification, Hoover in-
formed the assembled employees that Murphy had that
afternoon advised him that the union-shop clause was
being withdrawn from the contract. He told the employ-
ees it was his view that Respondent could not lawfully
do that. He submitted the contract to them for ratifica-
tion as he understood it to have been reached the previ-
ous day. The membership unanimously approved the
contract.
Since that time, following Respondent's contention
that no contract was ever reached, Respondent has de-
clined to sign it. It is not clear whether Respondent has
complied with any of the terms relating to fringe bene-
fits.
IV. ANALYSIS AND CONCLUSIONS
As can be discerned, there is a credibility resolution
which appears to require resolution, at least on first
blush. That relates to the disputed versions of what tran-
spired on May 19. The union officials say that after give
and take and in order to obtain the reinstitution of the
union-shop clause they agreed to drop the charges
against Salinas and to forgive the dues of the entire bar-
gaining unit. Indeed, as an additional showing of their ef-
forts to reach a contract they even decided to ignore Re-
spondent's reinsertion of the "zipper clause," something
which had not been an issue for some meetings. Re-
1398
CONCRETE PIPE & PRODUCTS CO.
spondent's witnesses, on the other hand, say the handling
of Salinas, the dues forgiveness, and the membership
status of the striker replacements were left hanging tenu-
ously without resolution. Thus, Respondent argues there
was no offer and no acceptance.
Yet, implicit in Murphy's testimony is an admission.
He concedes that Respondent, before it would reach an
agreement with the Union, wanted the Union to drop the
Salinas trial, to refrain from collecting dues from em-
ployees who were behind in payment, and to treat the
striker replacements fairly insofar as initiation fees and
dues were concerned. In essence, that was Respondent's
offer to the Union. On May 19, when Hoover asked if
Respondent would reinsert the union shop clauses if
those issues were resolved as Respondent wanted,
Murphy replied, "That is our intent." I view this ex-
change as a classic offer/acceptance exchange. Respond-
ent offered a contract to the Union, containing the old
union-shop clause upon the Union's, granting Respond-
ent's request to forbear on those three matters. Respond-
ent, by the terms of its offer, invited the Union to accept
by the act of acceding to its request. In that circum-
stance, it was not necessary for the Union immediately to
notify Respondent that it had performed the invited act.
Governing language is found in 1 Restatement, (2d) of
Contracts, 54(1) (1979):
(1) Where an offer invites an offeree to accept by
rendering a performance, no notification is neces-
sary to make such an acceptance effective unless the
offer requests such a notification.
Similarly, see 1, Corbin, "Contracts," 62 (1963). 4
Thus Hoover's act of exercising his authority to post-
pone the Salinas trial and grant the dues forgiveness
were the very acts of acceptance invited by Murphy.
Fair fees and dues treatment of the striker replacements
had already been announced (and, in any event, were
mandated by law; see Sec. 8(a)(3) of the Act). When
Hoover did these things, the Union had accepted Re-
spondent's offer and the contract was completed. 5
Thus, the General Counsel has proven that on May 19
a collective-bargaining agreement had been reached. It is
true that Respondent did not yet know it, but that is of
no consequence. When Murphy attempted to revoke the
offer the next day, it was too late.6 Respondent's refusal
to sign the agreement thereafter violated Section 8(d)
and Section 8(a)(5) and (1). H. J. Heinz Co. v. NLRB,
311 U.S. 514 (1941).
3 Meaning pars. 04.01.00, 04.02.00, 04.03.00 of the expired agreement.
4 The Ninth Circuit has said in the context of labor negotiations that
the Board is not strictly bound by the technical rules of contracts relating
to determining whether or not an agreement has been reached. Lozano
Enterprises v. NLRB, 327 F.2d 814 (9th Cir. 1964). It is equally true, how-
ever, that contract law principles will govern a determination of offer
and acceptance where the facts so warrant. NLRB v. Donkin's Inn, 532
F.2d 138 (9th Cir. 1976), cert. denied 429 U.S. 895; F. W. Means & Co. v.
NLRB, 377 F.2d 683 (9th Cir. 1967). See also Teamsters Local 524 v. Bill-
ington, 402 F.2d 510 (9th Cir. 1968).
1 All other issues, including reinsertion of the zipper clause had been
resolved.
a The Union's decision to have the contract ratified by its membership
was not a condition of agreement on which Respondent may now rely to
claim the contract was still executory.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. The
affirmative action recommended shall include an order
requiring Respondent to immediately sign the collective-
bargaining agreement and give it retroactive effect in-
cluding to make whole, where necessary, employees for
lost wages and the pension plan for lost premiums. In ad-
dition, in the event Respondent did not maintain the
health insurance required, it shall make whole any em-
ployees who suffer economic loss as a result thereof.
Any loss of earnings under the recommended order shall
be computed in accordance with the Board's formula set
forth in F. W Woolworth Co., 90 NLRB 289 (1950), and
interest shall be paid on wages in accordance with Flori-
da Steel Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1962). Interest on the pen-
sion plan payments is not required at this stage. See
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979).
On the foregoing findings of fact and on the entire
record in this case, I make the following
CONCLUSIONS OF LAW
1. Respondent Concrete Pipe & Products Co., Inc. is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Operating Engineers Local Union No. 3, Interna-
tional Union of Operating Engineers, AFL--CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The following employees of Respondent constitute
an appropriate unit for collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees at its
Sacramento, California plants, excluding office and
clerical employees, professional employees, sales-
men, guards and supervisors as defined in the Act.
4. At all times material the Union has represented a
majority of employees in the bargaining unit described in
paragraph 3 above, and by virtue of Section 9(a) of the
Act has been and is now the exclusive representative of
all employees in that unit for the purpose of collective
bargaining.
5. On May 20, 1981, by repudiating a collective-bar-
gaining agreement reached on May 19, 1981, to be effec-
tive between October 20, 1980, and October 19, 1983,
and by refusing thereafter to sign the agreement, Re-
spondent failed in its duty to bargain collectively in good
faith within the meaning of Section 8(d) and violated
Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
1399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL DECISION
JAMES M. KENNEDY, Administrative Law Judge. On
June 15, 1982, I issued my original decision in this
matter. Thereafter all parties filed exceptions with the
Board. On August 30, 1983, the Board, in an unpublished
order, remanded the case for the purpose of preparing
and issuing a supplemental decision "setting forth resolu-
tions of credibility of witnesses, further findings of fact,
conclusions of law, and a recommended Order in accord-
ance with the order of remand." By letter of September
8, 1983, I asked the parties if they wished to make fur-
ther submissions to me, either evidence or argument. In
separate replies each party has advised me that it did not
intend to do so.
Issues on Remand
The principal incident under scrutiny in this case is
what transpired at a collective-bargaining meeting on
May 19, 1981. In my original decision I concluded that
specific credibility findings were unnecessary. In the
context presented therein I found the Union and Re-
spondent had nearly agreed on a new collective-bargain-
ing agreement. Insofar as the contract itself was con-
cerned every substantive item, except for the reinsertion
of the union-shop clause, had been agreed to. Both union
and management officials testified that Respondent's
chief negotiator and counsel Dennis Murphy had stated
that it was his "intention" to reinsert the union-security
clause, i.e., enter into the contract, if the Union would
respond favorably to three requests, each of which were
nonmandatory subjects of bargaining as defined by Sec-
tion 8(d) of the Act.
In my earlier decision I concluded that Murphy's
statement constituted an invitation to the Union to
accept his offer by complying with those requests.' In
that circumstance I concluded it was unnecessary to re-
solve the conflict in testimony regarding the various
statements individuals on each side allegedly made
during the course of the meeting.
The Board concluded that additional findings with re-
spect to the credibility of witnesses and the weight of the
evidence as a whole would be "efficacious in assisting it
to reach a determination on the merits of the alleged vio-
lations." As I read the Board's Order, it is requiring fur-
ther explication of two questions. The first is whether
the conflicting testimony at the May 19 meeting can be
resolved, and, if so, whether it would warrant a different
conclusion. The second deals with one of the three re-
quests which Murphy made. In that particular request,
Murphy asked the Union to "drop" certain intraunion
charges which were then pending against employee-
member Gerardo Salinas. In my original decision I found
that Salinas' trial had been scheduled to be conducted at
a union meeting on May 19, several hours after the nego-
tiation session. I further found that at the union meeting
the Union's district representative, Clem Hoover, caused
Salinas' trial to be "indefinitely postponed." I concluded
I Restatement (2d) Contracts, § 54(1) (1979). I should observe, to obvi-
ate confusion, that contrary to Respondent's exceptions, I found a bilater-
al contract here and relied on the rules for bilateral contracts, not those
for a unilateral contract.
from those facts that the Union had "dropped" its
charges against Salinas as Murphy had requested. Re-
spondent's exceptions raised, and the Board now asks me
to resolve, the question of whether the "indefinite post-
ponement" is the same as "dropping" the charges.
Oddly, it is the prevailing parties, the General Coun-
sel, and the Union which have filed exceptions with re-
spect to the credibility question, not Respondent. Re-
spondent has not specifically challenged my findings of
fact with respect to Murphy's statement that it was his
intention to reinsert the union-shop clause if the nonman-
datory issues were resolved. Rather, its principal conten-
tion is that the Union did not resolve the Salinas trial fa-
vorably or that if it did, notice of it was not timely trans-
mitted to Respondent prior to Respondent's revocation
of the offer. Nevertheless, in compliance with the
Board's Order of Remand I shall attempt to resolve
those issues.
I. THE CREDIBILITY ISSUE
At the May 19 meeting, according to Union Business
Agent Ken Allen, Murphy presented a proposed con-
tract in final form saying that there had only been a
couple of changes. He had withdrawn the union-shop
clause2 and had reinserted the "zipper" clause which
Murphy had previously said he would remove. Allen re-
calls Murphy saying that the Company had decided not
to go to impasse on the internal union matters (the Sali-
nas issue, the dues-forgiveness issue, and the fair treat-
ment of striker replacements), but since the union-securi-
ty clause was a mandatory subject, Respondent was
withdrawing it.
Allen recalled that the union committee then caucused
and afterwards offered Respondent a 1-year extension of
the old contract with no wage increases and no changes.
Murphy rejected that proposal. Allen then recalls saying
that "we" (meaning himself and fellow negotiator Clem
Hoover) were willing to discuss Salinas and the dues
treatment of the strike breakers. Allen recalls Murphy re-
fused to do so until Allen told Murphy the Union would
not bring unfair labor practice charges against Respond-
ent for discussing that issue. Allen says his purpose in
raising these matters was to get the union-security clause
back into the contract. Once again Allen explained, as he
had at the April 15 meeting, that the striker replacements
would be treated the same as any other employees seek-
ing membership in the Union. Furthermore, either he or
Hoover told Murphy that they would forgive 3 months
back dues for the entire bargaining unit rather than just
for those who had canceled their dues checkoffs as
Murphy had asked. Hoover then asked Murphy if he
would reinstate the union-security clause if the Union
granted the 3-month dues forgiveness and drop the Sali-
nas trial. Murphy replied, "That is our intent."
Then there was a short discussion with respect to the
length of the collective-bargaining agreement and the
parties agreed on a 3-year term. Allen recalls that he
stood up immediately saying: "Gentlemen, we have an
agreement." He says the participants shook hands all
2 The clause had been contained in predecessor agreements.
1400
CONCRETE PIPE & PRODUCTS CO.
around and the meeting ended. He remembers the hand-
shaking as being his normal custom when negotiations
are successfully concluded.
Hoover corroborates Allen in nearly every respect
adding only that he had earlier obtained the authority to
grant the dues forgiveness and to drop the Salinas trial.
He remembers telling Murphy that those things would
be accomplished that evening at the district meeting
during which the Salinas trial was to be held. Hoover
admits he did not tell anyone the he had already ob-
tained the authority. He testified he did not do so be-
cause he wanted to retain "that prestige" for himself.
More likely he did not want to give that bargaining chip
away before he absolutely had to. Nonetheless, Hoover
says he told Murphy that he would ask permission that
night to withdraw the charges against Salinas and to
waive the dues for the employees for 3 months. He re-
members telling Murphy that the zipper clause was not
an issue although he asked Murphy if he would "consid-
er" taking it out. Murphy responded he would think
about it. Later on, according to Hoover, the union com-
mittee accepted the entire proposal with the zipper
clause included. He, too, recalls: "I specifically asked
Mr. Murphy that if I was able to get the permission from
the officers and the executive board members that
evening, that if he would reinstate the union-security
clause, and that if we had an agreement. And he an-
swered, 'Yes' the first time I asked him. The second time
I asked him, he answered that 'That is our intention."'
Hoover says he then explained how the Salinas and dues
waiver matters would be handled; then Allen stood up
saying, "Gentlemen, we have an agreement" and they all
stood up, shook hands, and left.
That evening at the district meeting Hoover caused
the Salinas trial to be indefinitely postponed and the dues
waiver to be granted for the entire bargaining unit. No
specific action needed to be taken with respect to the fair
treatment of the new hires.
Allen testified that in his view the Salinas charges had
indeed been "dropped." Both he and Hoover observed
that Salinas has never been tried on the charges.
In July, according to Hoover, after Respondent had
reneged on the contract, the Union's executive board re-
versed itself, and the Salinas matter was again set for
hearing. He says, however, the letter drafted to that
effect was never delivered to Salinas.3 By that time, of
course, the instant charge had been filed and Respondent
was pursuing the matter through litigation. The execu-
tive board in September placed the matter "into abey-
ance pending the outcome of the instant unfair labor
practice proceeding."
Hoover testified that if Respondent had signed the
agreement of May 19 the charges against Salinas "would
no longer be pending."
Union steward Martin Villanueva, a member of the ne-
gotiating committee who attended both the April 15 and
May 19 meetings, generally corroborated Allen and
Hoover. He, too, recalls the parties standing up and
shaking hands. He also remembers Hoover saying he
s Although the letter was mailed, it was returned by the post office.
Hoover says it was never delivered thereafter.
would take the Salinas matter to the "board" that night
and cancel the trial. Furthermore, he remembers that at
one point Murphy said the Union's 3-month dues-for-
giveness proposal was acceptable. Villanueva testified
that when the union officials advised Murphy and Plant
Manager William Street that the three issues would be
resolved, Murphy "kind of just shook his head and had
to agree with it" and Street sat up at his desk with a
"surprised look on his face."
Street and Murphy's recollections are somewhat differ-
ent. Street testified that the Salinas matter and the striker
replacements question was brought up by Murphy but
"The Union's response was that there was not much
chance in that having occurring [sic], that they would
have to go to an executive board, the executive board
was really out of their control, that they had no influ-
ence. They told us the magnitude of Local 3, how large
of a Union it was and pessimistic that it would be ap-
proved." Street says the only thing which was discussed
with respect to the union-security clause was that toward
the end of the meeting, as they were leaving, Hoover
asked Murphy, "If we can resolve these issues, would
you put the union security clause back in?" Murphy re-
plied, "That, in effect, is our intention." Street denies
there was any discussion regarding when the union offi-
cials would present these questions to the executive
board. Furthermore, he says, they did not indicate what
their next step would be or when. He said the union offi-
cials did not say what they intended to do about Salinas
and denies there was any discussion regarding the trial
scheduled for that evening.
Murphy testified that between the April 15 and the
May 19 meetings he had researched the issue of union
discipline and amnesty and had learned, as contended by
the Union, that such matters were permissive bargaining
subjects. He also said he had learned that "[NLRB] cases
say that one can adjust to refusal to discuss permissive
bargaining by adjusting mandatory provisions." So, ac-
cording to Murphy, he had memorialized all the agree-
ments to date, including concessions by both sides,
except for reinserting the zipper clause and continuing to
delete the union-shop clause.4 He says that after he
pointed out the changes he had made the union repre-
sentatives wished to talk about "the amnesty issue."
Murphy says he replied he did not want to do that for
he did not wish to risk being charged with an unfair
labor practice for going to impasse on a nonmandatory
subject. He says that the union officials, without identify-
ing which one, told him, "maybe we can make some ac-
commodations with respect to dues." He testified: "They
talked about terminating dues for 3 months or some
other alternatives, none of which were ever agreed
upon." He editorialized that the 3-month-dues forgive-
4The latter had been removed by Murphy's mailgram of October 29,
1980, in response to Allen's threat to charge striker replacements exces-
sive initiation fees. In it Murphy had said, however, that Respondent did
not oppose the union-shop clause so long as it was not used to punish
Respondent or its employees. As noted, at the April 15 meeting Allen
apologized for his outburst and said the replacements would be treated
fairly.
1401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ness was insufficient because a number of employees had
not paid dues for 5 months.
Murphy also said that, as far as the S1000 initiation fee
was concerned, Allen had told him the Union did not
intend to impose it. When Murphy asked Allen how he
could be sure, Allen replied, "You'll have to take my
word for it." Murphy says he then asked about Salinas
but the union officials told him that Salinas was their
business and they would take care of that. Murphy con-
tends Hoover told him, "This is out of our control, it's a
matter of the executive committee." He says Hoover as-
serted that the Union was so large it could not quickly
take a position on such questions.
At that point a caucus occurred. Murphy testified that
on their return one of the union officials "basically said,
'We don't know if we can get amnesty for these people
and resolve these questions, but if we can, would you
put union security back in?' And I was under the impres-
sion that they said, 'would you be inclined to,' and I said,
'yes,' meaning I would be inclined to. But we indicated
we would seriously consider putting [the union-security
clause] back in." Murphy went on to say that there was
a discussion about whether the zipper clause could once
again be deleted but it was not resolved.
Murphy says the meeting then ended; it was the first
meeting which had ended without a handshake. He testi-
fied, "As the meeting left, I was under the impression
that they were going to seek out amnesty and resolve
these issues, but they were pessimistic that they could
solve them and if they were going to end."
Thereafter, as described in my original decision, the
union officials began taking steps to comply with Mur-
phy's request with respect to all three issues, although
the fair dues treatment of striker replacements really
needed no action. In the meantime, according to
Murphy, he telephoned Respondent's headquarters in
Virginia and learned for the first time that Respondent's
president would no longer assent to a union-shop clause
under any circumstance. It was not until the following
day that Murphy was able to telephone Hoover to
inform him. Hoover, of course, by that time had ob-
tained the indefinite postponement of the Salinas trial as
well as the dues forgiveness for 3 months for the entire
bargaining unit. Moreover, he had secheduled a ratifica-
tion meeting for that evening.
II. RESOLUTION OF THE CREDIBILITY ISSUE
First of all, it is fair to say that although Allen,
Hoover, and Villanueva tend to corroborate each other,
so do Street and Murphy. There are, of course, testimo-
nial differences. These could be described as the normal,
expected differences of memory having nothing to do
with probity. They may also be described as deliberate
attempts to shade the truth. It is not an easy matter for
there are few, if any, objective touchstones from which
probabilities may be discerned. Moreover, there is the
third possibility that the perspectives of each side were
significantly different and that although the meaning of
what was said was clear to the speaker, it was not clear
to the listener. Indeed, Hoover's testimony that he delib-
erately withheld knowledge of his special authority to
resolve the three issues is an example of the latter. Simi-
larly, if Murphy is to be credited, his testimony that
Allen's question was, "Would you be 'inclined' to put the
union-security clause back in" rather than a flat accept-
ance if the nonmandatory issues were resolved, might
also be seen as a perception matter, although in fact I do
not. I make this observation only to point out that reso-
lution of the credibility questions here is filled with pit-
falls. Obviously some of the testimony on each side is be-
lievable and other testimony on each side is subject to
doubt. Translating that doubt to disbelief, however, is an
uncertain business.
Nevertheless, in comparing Street's testimony with
that of Murphy, there are a few areas where they are not
corroborative. Street had no difficulty admitting to
Allen's version that Murphy had told the Union it was
Murphy's intention to reinsert the union-secruity clause if
the Union would resolve the three questions. Murphy,
on the other hand, hedged as described above and did
not wish to make that concession., Similarly, Murphy
readily admitted that the Salinas matter was discussed,
while Street somewhat disingenuously denied there was
any discussion of Salinas. He could not recall any discus-
sion of the Salinas trial which was scheduled for that
evening. Murphy concedes he was aware of the trial but
claims it was not discussed because "it didn't matter that
we didn't give a union-security clause. We didn't care
what the Union did because Salinas had already resigned
from the Union. So it was absolutely irrelevant unless
they decided to grant amnesty and whether we were
going to put the union-security clause back in. As long
as we didn't have a union-security clause in, that's irrele-
vant."
While Murphy's explanation of the minimal discussion
of the Salinas situation is somewhat more credible than
Street's disingenuous total denial, nonetheless it gives me
pause, to which I shall return shortly.
Yet, in his explanation Murphy admits that he knew
Salinas' trial was scheduled for that evening and, since
amensty for Salinas was one of the requests Respondent
was making to the Union, it seems unlikely that there
would be only a little discussion of the Salinas matter as
described by Murphy or no discussion as described by
Street. The three union witnesses testified at some length
that Allen and Hoover told Murphy the Salinas matter
could be resolved and could be accomplished that very
night. To that extent, therefore, I think it more probable
that the Union's version on the point is accurate and that
Respondent's is not.
Furthermore, Murphy denies that on May 19 the 3-
month-dues forgiveness was ever agreed to, although ad-
mitting it was discussed. Yet he does not say he rejected
the proposal. Villanueva and Allen have testified that
Murphy specifically accepted that proposal. Curiously,
I I also observe that a portion of Murphy and Street's testimony seems
more likely to refer to the April 15 negotiation meeting rather than the
one of May 19. I refer in particular to their reference to Hoover and
Allen describing the inability of the Union's executive board to respond
promptly to the "amnesty" issues. It is possible, of course, that such a
discussion occurred on both occasions, but unlikely in view of the quick
response which occurred on May 19. Confusing the two meetings is not
limited to Murphy and Street; Villanueva, to a more limited extent, also
appeared to confuse them.
1402
CONCRETE PIPE & PRODUCTS CO.
Street is silent here. Moreover, under the versions of
Allen and Hoover, it appears that Murphy had no real
objection to resolution of the question as they suggested;
after all, it was a greater dues concession than Murphy
had even asked for. Accordingly, it seems to me that
Murphy's credibility on the point is less than that of the
union officials.
Finally, there is no reason to doubt Hoover and Allen
who testified that following the May 19 negotiations
they went to the Union's district meeting and proceeded
to postpone indefinitely Salinas' trial and to obtain the
dues forgivenss. Their conduct here is certainly consist-
ent with their testimony. Had there been no resolution of
these issues and had the contract not been at stake, they
would not have taken that action.
Demeanor is of little significance here as all five wit-
nesses presented themselves reasonably favorably. More-
over, both the Charging Party's witnesses and Respond-
ent's witnesses displayed some minor and inconsequential
testimonial modifications. Murphy was probably the
most flawed here, displaying a tendency to editorialize
and characterize. Even so, that may simply be a problem
inherent with lawyers who testify, unable to separate
their advocate self from their testifying self. I tend to
doubt that as a reason, however.
I have earlier quoted Murphy's testimony claiming Re-
spondent "didn't care" about Salinas as he had resigned
his union membership and what happened to him was ir-
relevant; unless amnesty was granted, the union-shop
clause was out of the contract. Furthermore, Murphy
stated early in the May 19 negotiation session that he
had, between the April 15 and May 19 meetings, learned
that his three "amnesty" concerns (i.e., Salinas, etc.)
were nonmandatory bargaining subjects. But, he said, be-
cause the union-shop clause was mandatory, he decided,
in essence, to go to impasse on it rather than the amnesty
issues. He had managed to avoid bargaining for 6
months; was he now willing to engage in sharp practice
to gain continued avoidance? His refocus on the union-
shop clause as a specific target for impasse suggests he
was, considering Respondent's past acceptance of the
clause and its October 29, 1980 mailgram.
Combining those two statements with his tendency to
hedge with respect to his "that is our intention" state-
ment at the conclusion of the meeting, I find that Mur-
phy's testimony is but an extension of his role as a bar-
gainer. He seeks either no contract or one without a
union-shop clause. Thus, rather than testifying factual-
ly-for good or ill-he is deliberately playing the advo-
cate's role while a witness. His testimony is colored
thereby.
Accordingly, I credit the Union's version here as
being more probable than Respondent's version. More-
over, I find significant the discrepancy between Street
and Murphy with respect to whether Murphy said it was
his intention to give the Union the union-shop clause in
exchange for the resolution of the three nonmandatory
questions. Street admits to the Union's version; Murphy,
however, does so only grudgingly. The concession, of
course, leads to the same conclusion I reached in my ear-
lier decision-that there is no real dispute about what
was said in this exchange. That, of course, is the precise
fact upon which I based my earlier conclusion-that
Murphy invited acceptance of his proposal by acceding
to the requests. Therefore, to the extent that the credibil-
ity resolutions made above have any bearing on my earli-
er findings, I hold that they simply reinforce them. They
are, therefore, reaffirmed. Without question Murphy in-
vited the Union, at the May 19 meeting, to accept his
proffered contract with the union-security clause by car-
rying out the three requests: dropping Salinas' trial,
granting dues forgiveness, and fair dues treatment of the
striker replacements. 6
III. THE CHARGES AGAINST SALINAS
At the Union's district meeting on May 19, Hoover,
one way or another, caused the Union to indefinitely
postpone the charges against Salinas. The trial was
scheduled for that meeting; it was never held. Whether
Hoover obtained that result by the exercise of powers
granted him by the Union's headquarters personnel or
whether he persuaded the executive board members
present on May 19 to do it is immaterial. Clearly he did
it.
Respondent contends, however, that indefinite post-
ponement was not compliance with Murphy's request. It
argues that there is a significant difference between "in-
definite postponement" and "dropping." I would not, ini-
tially, disagree. However, Hoover best described what
happened:
We dropped the-we requested that the charges be
dropped and that the trial was not held that
evening. At a later date when the Company had
reneged on their agreement, then the executive
board reversed their position that it would be post-
poned. That's what happened.
Clearly, the Union had begun to drop the charge. It had
indefinitely postponed the hearing-a significant begin-
ning. The act of completion, however, was interrupted
not by the Union but by Murphy who attempted to
revoke his offer-per instructions from Respondent's
Virginia headquarters. Obviously, the Union's next step
would have been to complete the act by "dropping" the
charges altogether, but was stopped from doing so.
When the Union would have completed that step is un-
clear, as it would be, given the short time frame in-
volved, for Murphy's revocation of the offer came the
very next day. The actual dismissal of the charge might
have occurred in the few hours before the ratification
meeting,7 immediately afterwards, or a month later. It is
speculation to guess. But whenever that moment was to
be, Respondent's revocation prevented it from occurring.
Thus, had Allen or Hoover called Murphy and told
him on May 20 or thereafter that the trial had been in-
6 I am unable to resolve the conflicting testimony over the handshake
at the end of the meeting. Given the testimony about the manner in
which Murphy invited acceptance of the offer, however, I do not believe
its resolution essential to the disposition of this case.
7 There is no evidence that the parties had ever agreed that the con-
tract was conditioned upon employee ratification. On this record ratifica-
tion appears to be an internal union requirement. Respondent's reference
to that occurrence, under this analysis, is simply a non sequitur.
1403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
definitely postponed, but not dropped, Respondent might
well have responded, reasonably, that the postponement
was not the equivalent of "dropping." That, however,
did not occur. Instead, Respondent disrupted the process
of acceptance before it was completed.
I conclude, therefore, as the Union had significantly
changed its position in reliance on Murphy's invitation,
that Respondent is now estopped from denying that
there is a functional differentiation to be drawn from the
two terms.8
8 Cf., Restatement 2d, Contracts, supra, § 90(1).
Promise Reasonably Inducing Action or Forbearance
A promise which the promisor should reasonably expect to induce
action or forbearance on the part of the promisee or a third person
and which does induce such action or forbearance is binding if injus-
tice can be avoided only by enforcement of the promisee. ...
Here, of course, Murphy's invitation is the "promise" on which the
Union relied. I see, however, no difference between reliance on a prom-
ise, to which the Restatement is specifically directed, and the invitation
I observe that the same rule would have applied to the
Union, had Respondent signed the agreement, but the
Union had nonetheless proceeded against Salinas. In that
situation the Union would be estopped from denying that
it had dropped the charges, for Respondent would have
relied on the "indefinite postponement" as "dropping"
and would have changed its position substantially.
I conclude, therefore, that in the circumstances of this
case the terms "indefinite postponement" and "dropping"
are equatable.
Conclusions
Based on my findings and conclusions as set forth in
my original decision of June 15, 1982, and supplemented
by my additional findings and analyses herein, I hereby
reaffirm in its entirety my original decision, its findings,
conclusions, and recommended Order.
found herein. To the same effect, see Restatement (2d), Contracts, supra,
§ 139(1).
1404