East Texas Steel Castings Co., Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1971

191 N.L.R.B. 113 (N.L.R.B. 1971)

EAST TEXAS STEEL CASTINGS CO.
East Texas Steel Castings Company, Inc. and Interna-
tional Molders and Allied Workers Union , Local 58,
AFL-CIO. Case 16-CA-4059
June 14, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On January 28, 1971, Trial Examiner Alvin Lieber-
man issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had not engaged in the
alleged unfair labor practices and recommending that
the complaint be dismissed in its entirety, as set forth
in the attached Trail Examiner's Decision. Thereafter,
the Charging Party filed exceptions to the Trial Ex-
aminer's Decision and the General Counsel filed excep-
tions and a supporting brief. In addition, the General
Counsel filed motions to reserve decision, to consoli-
date cases, amend complaint, and remand for trial.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified below.
The complaint alleged that the Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to sign an
agreement previously reached in negotiation with the
Union. The Trial Examiner found, and we agree, that
the Respondent, through its duly authorized agent, and
International Molders and Allied Workers Union, Lo-
cal 58, AFL-CIO, hereinafter called Local 58 or the
Union, reached complete agreement on the terms of a
collective-bargaining contract on May 14, 1970. How-
ever, the Trial Examiner also found that the Union's
subsequent letters requesting that the Respondent exe-
cute the aforementioned agreement were not received
by the Respondent. Accordingly, he held that the Re-
spondent's failure to sign the contract document did
not, in the absence of such a request, constitute a
refusal to bargain in violation of Section 8(a)(5) of the
Act. He therefore recommended dismissal of the com-
plaint. Although we agree with the Trial Examiner's
These motions were based upon the filing of a new charge by the Union,
following its alleged formal request of February 19, 1971, that the Respond-
ent sign a contract embodying the agreement reached by the parties. In view
of our disposition of the case, we deny these motions.
191 NLRB No. 28
113
findings in all other respects, we are satisfied that the
record amply demonstrates that the Union was at all
times demanding the Respondent's execution of the
agreement reached and that the Respondent was aware
of this.
Section 8(d) of the Act defines collective bargaining
as including "the execution of a written contract incor-
porating any agreement reached if requested by either
party ... " (Emphasis supplied.) It is thus clear that a
statutory obligation to sign a contract document does
not arise automatically when the parties have reached
agreement as to its terms. The Act contemplates that
a party request execution of a contract document in
order to bring the obligation to sign into play. How-
ever, the Act neither requires nor defines a specific
manner by which such a request must be manifested.
All that is necessary is that the party refusing to sign
be aware of the other party's request for formal execu-
tion of the agreement.
On the facts and for the reasons set forth below, we
find that the Respondent, fully mindful of the Union's
demand for signature, evidenced its intention neither to
acknowledge nor to abide by the agreement it reached
with the Union and, accordingly, that the Union was
bound to take no further action before seeking the aid
of the Board.
On May 2, 1969, the Union was certified as the repre-
sentative of the Respondent's employees. Bargaining
commenced shortly thereafter. The parties were unable
to reach agreement, however, and on July 27 the em-
ployees voted to strike.
On January 10, 1970, the employees voted to termi-
nate the strike and accept the Respondent's last con-
tract offer, so advising J. D. McLaughlin, Respondent's
chief spokesman during negotiations, by telegram and
letter. McLaughlin replied, promising to "put
together" and submit to the Union the agreements and
understandings reached during negotiations.
A misunderstanding surfaced as to the duration of
the proposed agreement during the ensuing correspon-
dence between the Respondent and the Union. The
Union's understanding was that the parties had agreed
to a 1-year contract term. The Respondent insisted that
the parties had bargained for a 3-year term. On Febru-
ary 12, 1970, McLaughlin prepared and sent to the
Union a contract document purporting to be the com-
plete agreement between the parties, effective January
12, 1970, through January 11, 1973. He stated in his
letter of transmittal: " . . . we will be glad to meet with
you and sign the enclosed contract, or it can be handled
by mail." A further exchange of correspondence took
place and in April the parties met in order to resolve
their differences over the contract term. On April 25,
McLaughlin wrote L. B. Beam, financial secretary and
business agent of Local 58, reiterating the Respond-
ent's position and adding: "We hope you can see fit to
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sign the three year agreement with us and that we can
look forward to a long period of harmony free from
industrial strife ." On May 14, counsel for the Union
sent McLaughlin a telegram , which was duly received,
stating:
INTERNATIONAL MOLDERS AND ALLIED WORK-
ERS UNION, ON BEHALF OF LOCAL 358 [SIC] UN-
CONDITIONALLY ACCEPTS TERMS OF CONTRACT
PROPOSED BY THE COMPANY FOR A THREE YEAR
PERIOD COMMENCING IMMEDIATELY.
We are satisfied, in agreement with the Trial Exam-
iner, that a contract between the Respondent and Local
58 came into being at that time. Within a week, the
Respondent sought its repudiation. On May 21, 1970,
McLaughlin wrote to the Union's attorney that the
"new owners" of the Respondent never had an oppor-
tunity to review the agreement but that the document
in question was being sent to them for "review and
advice." As a further impediment to the agreement, the
Respondent raised for the first time the question of the
Union's majority status which, it now asserts, was dis-
sipated at a time subsequent to the Union's May 14
telegram of acceptance.
On the facts of this case, the conclusion is inescapa-
ble that the Respondent, at all times material, was
aware of the Union's insistence that it execute the May
14 agreement. Hence the Union's unsuccessful effort to
make a formal request for such action through the
mail' was not fatal to the instant complaint. Aside from
the clear implication emerging from the correspon-
dence exchanged by the parties, whereby in late April
1970 the Respondent invited the Union "to sign the
three year agreement" and the Union responded "un-
conditionally" accepting the 3-year agreement "effec-
tive immediately," other factors plainly demonstrate
that the Union, continuously since May 14, 1970, was
insisting upon the execution of the agreement and that
the Respondent, fully aware of the Union's position,
was seeking its abrogation.
Thus, as heretofore indicated, shortly after receipt of
the Union's telegram of May 14 signifying the Union's
unconditional acceptance of the Respondent's
proposal, the Respondent countered by asserting non-
meritorious legal grounds for its refusal to sign. In
consequence, the Union filed unfair labor practice
charges leading to the issuance of a complaint specifi-
cally alleging that the Respondent violated Section
8(a)(5) of the Act by its refusal to sign the agreement
reached. If the Respondent had any doubt, the filing of
the charge and the issuance of the complaint put it on
notice of the Union's desires and are themselves suffi-
cient to constitute a request to sign. At the hearing,, the
' As detailed in section C, 2, of the Trial Examiner's Decision, a letter
was sent twice to, but not received by, the Respondent 's attorney
Respondent again interposed defenses indicating it did
not intend to sign the contract3 and, in addition, joined
issue with the General Counsel and the Charging Party
on the question of whether the Union's requests by mail
for such signature were effective.
In this posture of the case, it can hardly be said that
the acts and conduct of the parties did not evidence a
union request to sign, and a failure and refusal by the
Respondent so to do. Clearly there was no ambiguity
respecting each party's intent, and to hold otherwise
would exalt form over substance.
Accordingly, we find that at all times material the
Respondent had been duly notified of the Union's in-
sistence upon execution of the contract and that the
Respondent, by its refusal to do so, violated Section
8(a)(5) and (1) of the Act.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, East Texas
Steel Castings Company, Inc., Longview, Texas, its
officers, agents, successors, and assigns, shall take the
following action in order to effectuate the policies of the
Act.:
1. Cease and desist from:
(a) Failing to execute and give effect to the collective-
bargaining agreement between it and International
Molders and Allied Workers Union, Local 58, AFL-
CIO, effective January 12, 1970, through January 11,
1973.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action:
(a) Execute, deliver, and give effect to the collective-
bargaining agreement between it and International
Molders and Allied Workers Union, Local 58, AFL-
CIO, effective January 12, 1970, through January 11,
1973.
(b) Post at its Longview, Texas, facility copies of the
attached notice marked "Appendix."5 Copies of said
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by its representative,
' Cf. Service Roofing Co., 173 NLRB 321, 322.
The Respondent's alleged doubt of the Union's majority is immaterial
since at the time agreement was consummated, the Respondent, by its own
assertion, had no basis for questioning the Union's majority. See, e g., Gen-
eral Asbestos & Rubber Division, Raybestos-Manhattan, Inc., 183 NLRB
No. 27, at TXD, section C, 2- Tanner Motor Livery, Ltd., 160 NLRB 1669,
1683.
' In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "POSTED BY ORDER
OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD "
EAST TEXAS STEEL CASTINGS CO. 115
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we violated Federal law by failing to
execute and give effect to a collective-bargaining agree-
ment:
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their rights guaranteed under Sec-
tion 7 of the Act.
WE WILL execute, deliver, and give effect to our
collective-bargaining agreement with Interna-
tional Molders and Allied Workers Union, Local
58, AFL-CIO, effective January 12, 1970, through
January 11, 1973.
General Counsel's complaint,' dated September 8, 1970, and
respondent's answer.' In general the issue raised by the plead-
ings was whether respondent, violated Section 8(a)(5) and,
derivatively, Section 8(a)(1) of the National Labor Relations
Act, as amended (herein called the Act). Particularly, the
questions for decision are as follows:
1. Did respondent and International Molders and Allied
Workers Union, Local 58, AFL-CIO (herein called the
Union), agree upon all the terms and conditions of a binding
collective-bargaining contract?
2. Assuming an affirmative answer to the foregoing ques-
tion, is respondent obligated to sign the contract?
Upon the entire record,' upon my observation of the wit-
nesses and their demeanor while testifying, and upon careful
consideration of the arguments made and the briefs submitted
by the parties,'I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation with its principal
office and place of business located in Longview, Texas, is
engaged in the production, sale, and distribution of steel cast-
ings. During the year ending on September 8, 1970, a repre-
sentative period, respondent produced, sold, and shipped to
customers located outside the State of Texas goods valued at
more than $50,000. Accordingly, I find that respondent is
engaged in commerce within the meaning of the Act and that
the assertion of jurisdiction over this matter by the National
Labor Relations Board (herein called the Board) is war-
ranted. Siemons Mailing Service, 122 NLRB 81, 85.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PARCTICES
EAST TEXAS STEEL
CASTINGS COMPANY,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Room 8A24, Federal Office Building, 819 Tay-
lor Street, Fort Worth, Texas 76102, Telephone 817-
3'34--2921.
TRIAL EXAMINER'S .DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Trial Examiner: The trial in this pro-
ceeding, with all parties represented, was held before me in
Longview, Texas, on November 5 and - 6, 1970, upon the
A. Introduction
Briefly, this case is concerned with respondent's failure to
execute a collective-bargaining contract. The complaint al-
leges, and the General Counsel and the Union contend,' that
all the terms of the contract in question had been agreed to
by the parties and incorporated in a written document. Ac-
cordingly, the General Counsel, relying on Section 8(d) of the
' The complaint was issued on a charge and an amended charge filed,
respectively, on July 27 and September 8, 1970, by International Molders
and Allied Workers Union, Local 58,,AFL-CIO.
S During the trial the answer was amended in several respects Thus,
paragraphs 3 and 4 were amended to admit, respectively , the allegations of
paragraphs 3 and 5 of the complaint. In addition, the following sentence was
added to paragraph 9•
Further, the Respondent says that the contract alluded to in the com-
plaint was at no time ratified by the membership of the union or by
those in the bargaining unit.
The General Counsel's motion to correct the stenographic transcript of
this proceeding in certain respects is hereby granted. Issued simultaneously
is a separate order correcting the obviously inadvertent errors in the tran-
script called to my attention by the General Counsel's motion as well as
other-errors of a similar nature
° Although all the arguments of the parties and the authorities cited by
them, whether appearing in their briefs or made orally during the trial, may
not be discussed in this Decision , each has been carefully weighed and
considered.
3 As the contentions of the General Counsel and the Union are, in the
main, similar, they will be referred to hereinafter as the General Counsel's
contentions.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, argues that respondent's failure to sign the agreement
was violative of Section 8(a)(5).6
In defense respondent asserts that it never received a re-
quest from the Union to sign the contract which the com-
plaint alleges was agreed upon by the parties. Alternatively,
respondent contends that the parties never arrived at the
point of agreement because a proposal, purporting to be a
collective-bargaining contract, made to the Union by re-
spondent's lawyer was never accepted by the Union nor
ratified by its members. Subsidiarily, in this regard, respond-
ent argues that its lawyer was without authority to make the
foregoing proposal to the Union.'
B. Preliminary Findings and
Conclusions'
1. Respondent's management personnel and the authority
of its bargaining agents
Respondent is a wholly owned subsidiary of American
Steel & Pump Corporation (herein called American), whose
offices are located in New York City. At least since June 1969
Carl Glickman has been chairman of the board of directors
of American.
Until March 1970 John Fleeger was respondent 's general
manager. Since then, that position has been held by Dale
Hall. At all material times Ross Williams has been respond-
ent's works manager.
Before Fleeger's replacement by Hall, Fleeger and J. D.
McLaughlin, respondent's lawyer, represented respondent in
its negotiations with the Union. Upon Hall's appointment as
respondent's general manager he took Fleeger's place at the
bargaining table. In this regard, at the first meeting of the
parties McLaughlin introduced himself as respondent's
spokesman and acted in that capacity throughout the bar-
gaining.
As will be more fully set forth below, the Union struck
respondent in July 1969, after some 2 months of bargaining.
In November 1969, while the strike was in progress, the
Union's lawyer suggested to Glickman, the chairman of the
board of directors of American, respondent's parent corpora-
tion, that the parties resume their negotiations and that
Glickman and a representative of the Union make arrange-
ments for a meeting.
In response, Glickman stated, in a letter dated November
28, 1969,9 that it would be fruitless for him "to enter the
negotiations" because of his lack of familiarity with what had
transpired. Instead, Glickman proposed that the Union's
In pertinent part this section provides.
Sec. 8.(a) It shall be an unfair labor practice for an employer
(5) to refuse to bargain collectively with the representatives of his
employees. .
Section 8(d) of the Act, insofar as material, requires "the execution of a
written contract incorporating any agreement reached [as a result of collec-
tive bargaining] if requested by either party."
' Respondent makes an additional argument relating to the loss of the
Union's majority status on a date subsequent to May 14, 1970. In view of
the conclusions I reach on the evidence in this case, which, in a nutshell,
are that a collective-bargaining contract between respondent and the Union
came into being on May 14, 1970, and that the Union never, thereafter,
effectively requested respondent to sign that contract, the validity of re-
spondent's majority contention need not be resolved However, findings
bearing upon this point will be made for such value as they may have.
8 The purpose of these findings is to furnish a frame of reference within
which to consider the facts relating to respondent's alleged unfair labor
practices and the conclusions to which they may give rise To the extent that
the contentions of the parties relate specifically to the findings made here
they will be treated here, although they, as well as the findings, may again
be considered in other contexts.
' General Counsel's Exhibit (G.C Exh.) 4
agent communicate with Williams, Fleeger, or McLaughlin,
respectively respondent's works manager, general manager,
and lawyer, in whom he had "explicit faith" and "who have
full power and authority to negotiate for and bind [respond-
ent]."
In view of this, I find that McLaughlin had, at least, appar-
ent authority sufficient to bind respondent in the area of
collective bargaining. N.LR.B. v. Ralph Printing & Litho-
graphing Company, 443 F.2d 1058 (C.A. 8); Inland Steel
Products Company, 120 NLRB 1678. This being so, I reject
respondent's assertion that McLaughlin was without power
to make binding commitments on respondent's behalf.
2. The Union's certification and the early bargaining
On May 2, 1969, the Union was certified as the collective-
bargaining representative of respondent's employees in a unit
(herein called the bargaining unit) consisting of "All
production and maintenance employees at [respondent's]
Longview, Texas, plant, including yard laborers and truck-
drivers."" Bargaining commenced soon after the issuance of
the certificate and continued until the latter part of July 1969,
when the Union struck respondent.
3. The strike
Being dissatisfied with respondent's wage proposal the
Union called a strike against respondent on July 28, 1969. At
the time there were 141 employees in the bargaining unit. Of
these, 109 answered the call.
The strike came to an end on January 10, 1970," at which
time there were some 90 employees in the bargaining unit.
Among them were the 32 people who did not strike. The
balance was composed of replacements for strikers.
Shortly after the termination of the strike the names of
employees who had not worked while it was in effect were
placed on a preferential hiring list. As jobs became available
employment was offered to those on the list in order of their
seniority. By May 17, when the list was exhausted, 28 strikers
had accepted, and 81 had refused, reinstatement.
Upon the exhaustion of the preferential hiring list, which
I have found occurred on May 17, respondent concluded that
the Union no longer represented a majority of the employees
in the bargaining unit. This conclusion was based upon the
numerical complement of the unit. On the day in question it
consisted of 95 employees; 32 nonstrikers, 28 strikers who
had accepted reemployment, and 35 people who had been
hired during, or since, the strike."
4. McLaughlin's practice concerning
"postage due" mail
J. D. McLaughlin, who was the chief negotiator for re-
spondent during its bargaining with the Union, is a lawyer
engaged in general practice in Paris, Texas. About November
1969 he instructed the clerk in his office who receives mail
addressed to him to reject all "postage due" letters.
'0 G C. Exh 1(a). The usual exclusions were also set forth in the certifi-
cate.
" All dates hereinafter mentioned without stating a year fall within 1970.
The briefs submitted by the parties contain lengthy arguments on the
question of whether the basis for respondent 's conclusion as to the Union's
loss of majority, arrived at on May 17, 15 days after the expiration of the
Union's certification year, comports with the authorities which seem uni-
formly to hold, in the circumstances present here, that to be effective such
a belief must be entertained in good faith and be based on objective consider-
ations See, for example, Coca Cola Bottling Works, Inc., 186 NLRB No.
142. However, as I have indicated in footnote 7, above, in view of the results
I reach on the evidence in this case it is unnecessary to determine the
validity of respondent's conclusion concerning the Union's majority status
EAST TEXAS STEEL CASTINGS CO. 117
McLaughlin's reason for doing so, he testified, was "one of
economics."
In conformity with this policy, and since its institution,
McLaughlin's clerk has refused to accept such mail and has
not reported to him "which letters she rejected." Accord-
ingly, McLaughlin further testified he has "no knowledge" as
to "which letters got sent back."
C. Facts Concerning Respondent's Alleged
Unfair Labor Practices
1. The acceptance of the contract
On January 10, 1970, the day the Union terminated its
strike against respondent, Charles Boyd, the Union's princi-
pal bargaining agent, notified J. D. McLaughlin, respondent's
chief negotiator, that respondent's employees had voted to
accept the wage proposal respondent had made before the
strike. At the same time Boyd asked McLaughlin to "prepare
the labor agreement incorporating the above, as well as all
other agreements and understandings reached during the
negotiations."" Among the "agreements and understand-
ings" thought by Boyd to have been "reached during the
negotiations" was a provision limiting the contract to a term
of 1 year.
McLaughlin complied with this request. On February 12
he sent Boyd a document purporting to be a complete collec-
tive-bargaining agreement.14 Its term, however, was set at 3
years rather than 1 year. McLaughlin's letter of transmittal"
stated, with reference to this matter, that "while [it] was not
discussed at length in negotiations, we do recall that we ad-
vised you that we would want a contract for at least a three
year period."
Between February 12 and April 25 the contract's duration
was the subject of one meeting and much correspondence
between the parties. In their letters and at the meeting each
side insisted that its recollection of their agreement as to the
term of the contract was correct.
Finally, in a letter dated April 21, 1970,16 from McLaugh-
lin, respondent's chief negotiator, to L. Beam, an officer and
business agent of the Union, McLaughlin summed up the
parties' negotiations. Regarding their respective positions as
to the time during which the contract was to remain in effect,
McLaughlin wrote:
While Mr. Boyd [the Union's principal negotiator] has
asserted that it was his understanding that the agreement
was for a one year period, we have heretofore advised
Mr. Boyd and now advise you that [respondent] at no
time agreed to a one year contract, and is not interested
in a contract of such short duration ....
We hope that you can see fit to sign the three year
agreement with us and that we can look forward to a
long period of harmony free from industrial strife.
There was no further communication between respondent
and the Union until May 14. On that day Anthony Cafferky,
counsel for the Union and for International Molders and
Allied Workers Union (herein called the International), with
which the Union is affiliated, sent a telegram to McLaughlin"
stating that the International "on behalf of Local 35818 un-
conditionally accepts terms of contract proposed by [re-
spondent] for a three year period commencing immediately."
At no time before May 14 was the contract proposed by
McLaughlin and referred to in Cafferky's telegram ratified by
the Union's general membership or by the employees in the
bargaining unit.
2. The request that Respondent sign the contract
On May 26, 1970, 2 weeks after Cafferky notified J. D.
McLaughlin, respondent's chief negotiator, of the acceptance
of the contract, Charles Boyd, the Union's principal bargain-
ing agent, in a letter to McLaughlin" suggested that a meet-
ing be arranged "for the purpose of... getting the agreement
signed by the parties." This letter was sent to McLaughlin by
certified mail.
When the letter arrived at McLaughlin's office two 10-cent
postage due stamps were affixed to its envelope. In accord-
ance, presumably, with McLaughlin's policy concerning
"postage due" mail the letter was not accepted by his clerk."
Upon its rejection, the letter, in what appears to be its original
unopened envelope," was returned to Boyd by the Post Office
Department with a notice22 stating "Refused because of 20
[cents] Postage Due."
Sometime in June, Boyd sent McLaughlin a copy of the
foregoing letter. This was mailed in an envelope bearing a
6-cents postage stamp, but no return address. Notwithstand-
ing that the letter was addressed to McLaughlin at his office
in Paris, Texas, "it was not," as McLaughlin credibly tes-
tified, and as I find, "received by [him] at any time."
D. Contentions and Concluding Findings Concerning
Respondent's Alleged Unfair Labor Practices
The complaint is narrowly drawn. It alleges a violation of
Section 8(a)(5) of the Act solely on respondent's refusal to
sign a collective-bargaining contract assertedly agreed upon
by respondent and the Union. To establish such an unfair
labor practice the burden rests on the General Counsel to
prove that the parties had, indeed, agreed upon all the provi-
sions of the contract and that respondent refused to sign the
agreement after being effectively requested to do so by the
Union. It is my conclusion, on the evidence adduced, that the
General Counsel has sustained the first half of his burden, but
not the second.
1. The agreement upon the provisions
of the contract
It is a familiar legal principle that the formation of a con-
tract contemplates an outstanding offer and its unconditional
acceptance. This fundamental concept is applicable in the
field of labor management relations law no less than in other
areas of jurisprudence. F W. Means & Company v. N.L.R.B.,
377 F.2d 683, 686 (C.A. 7); General Asbestos & Rubber Divi-
sion, etc., 183 NLRB No. 27.
Respondent does not take a contrary position. It contends,
rather, that the proposal it forwarded to the Union on Febru-
ary 12, 1970, appearing to be a complete collective-bargaining
contract, which it thereafter urged the Union to accept de-
spite the Union's objection to its term was not accepted by the
Union. Respondent further contends that because it was
never ratified by the employees in the bargaining unit the
contract lacks efficacy.23
13G.CExh7.
G C. Exh. 12(a)
" G C Exh 11.
16 G.C. Exh. 20.
17 G.C. Exh. 17.
11 It will be remembered that the Union's designation is Local 58, not
Local 358
G.C. Exh. 19.
20 In this regard McLaughlin testified that he "did not recieve [this letter]
or refuse it, personally." There appears to be no reason for disbelieving this
testimony
21 Charging Party's Exhibit (C.P. Exh) 1.
" C.P. Exh 2.
23 I have already rejected respondent's additional assertion that J. D
(Cont)
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's argument that the Union did not accept its
proposal is bottomed on the contents of the acceptance tele-
gram sent to McLaughlin on May 14 by Anthony Cafferky,
the Union's lawyer. It will be remembered, in this regard, that
in that telegram the party in whose interest Cafferky acted
was stated to be "Local 358." Local 358 being a stranger to
the negotiations between respondent and the Union, respond-
ent asserts that the Union, whose correct designation is Local
58, can not by Cafferky's telegram be deemed to have ac-
cepted its proposal.
This position is untenable. It is apparent from the sequence
of events that the telegram was sent in response to McLaugh-
lin's letter dated April 25, importuning the Union to accept
respondent's proposal for a "three year agreement [in the
hope that] we can look forward to a long period of harmony
free from industrial strife." In these circumstances the incor-
rect designation of the Union as "Local 358" in Cafferky's
acceptance telegram is obviously a nonmisleading clerical
error which should be read as "Local 58," the Union's correct
designation. 3 Williston on Contracts, § 614, Revised Ed.
1936.
When so read Cafferky's telegram constitutes an uncondi-
tional acceptance of respondent's outstanding offer of a con-
tract for a 3-year period. Thus, I conclude that, as a matter
of law, there came into being a collective-bargaining agree-
ment between respondent and the Union for a term of 3 years.
Equally untenable is respondent's argument relating to the
contract's lack of ratification. The short answer to this con-
tention is that "the Act imposes no obligation upon a bargain-
ing agent to obtain employee ratification of a contract it
negotiates in their behalf." North Country Motors, Ltd., 146
NLRB 671, 674.24
2. Respondent's failure to sign the contract
Section 8(d) of the Act "defines collective bargaining."25 It
provides, in relevant part, for "the execution of a written
contract incorporating any agreement reached if requested by
either party."
As explicitly set forth in the statute, the obligation to sign
the contract does not automatically follow the making of the
agreement. To bring the signing obligation into play there
must first be a request for;the contract's execution. This was
made crystal clear in N.L.R.B. v. Mayes Bro&, Incorporated,
383 F.2d 242, 248 (C.A. 5), where the court stated "Section
8(d) ... requires `the execution of a written contract ... '
only `if requested by either party"' (emphasis supplied)."
It goes without saying that in order to be effective a request
by one party to a collective-bargaining contract that it be
signed by the other party must be communicated to that
McLaughlin, its chief negotiator, did not have authority to make binding
commitments on its behalf.
2' Allis-Chalmers Manufacturing Company v. N.L.R.B., 213 F.2d 374
(C A. 7), cited by respondent in support of its ratification position, seems
to have been effectively nullified by the Supreme Court in N.L.R.B. v
Wooster Division ofBorg-Warner Corp., 356 U.S. 342, 348-350. See, in this
regard, Houchens Market, etc., 155 NLRB 729, 730, 734, enfd 375 F 2d
208 (C.A. 6)
25 N.L.R.B. v. WoosterDivision ofBorg-Warner Corp., 356 U.S. 342, 348.
24 To the same effect, see also N.L.R.B. v. Ralph Printing & Lithograph-
n:gCompany, 443 F.2d 1058 (C.A. 8); Huttig Sash andDoor Company, 151
NLRB 470, 474, enfd. in this respect 362 F 2d 217 (C.A. 4).
party. The evidence in this case shows that the Union at-
tempted to do this on two occasions. However, both efforts
miscarried. The first was aborted when the "postage due"
letter making such a request was refused by McLaughlin's
office in accordance with its policy concerning letters bearing
insufficient postage.21 The second such attempt went astray
when the Union's subsequent letter, although properly ad-
dressed, stamped, and mailed to McLaughlin, was never re-
ceived.by him.28
The foregoing being the only evidence adduced bearing on
the issue here under discussion, I find that the General Coun-
sel has- not sustained his burden of proving that the Union
effectively requested respondent to sign the collective-bar-
gaining contract upon which the parties had previously
reached agreement. Accordingly, considering the record as a
whole; I conclude that it has not been shown that respondent
engaged in unfair labor practices within the meaning of Sec-
tion 8(a)(5) or (1) of the Act by not signing the contract
theretofore agreed upon between respondent and the Union.
Inasmuch as the complaint does not allege that respondent
violated Section 8(a)(5) or (1) in any other manner or that it
engaged in any other unfair labor practices, I shall recom-
mend that the complaint be dismissed in its entirety.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion- 2(2) of the Act and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees at respond-
ent's. Longview, Texas, plant, including yard laborers and
truckdrivers, excluding office clerical employees, professional
employees, technical employees, guards, watchmen, and
supervisors as defined in the Act constitute aunt appropriate
for purposes of collective bargaining.
4. Respondent and the Union are parties to a collective-
bargaining contract covering the employees included in the
unit described in Conclusion of Law 3, above, the provisions
of which contract are set forth in the document received in
evidence in this proceeding as General Counsel's Exhibit
12(a).
5. Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(5) or (1) of the Act by not
signing the collective-bargaining contract described in Con-
clusion of Law 4, above.
"As I have noted in this regard (see footnote 20, above) McLaughlin,
respondent's chief negotiator, did not personally refuse to accept this letter.
28 It is well settled that the presumption that a duly posted letter was
received by its addressee is not conclusive. This presumption may be rebut-
ted by evidence showing that the letter was not received. When evidence
of this nature is offered an issue arises which must be determined by the trier
of the facts. Wright v. Grain Dealers, etc., Ins. Co., 186 F.2d 956, 960 (C.A.
4). On credible testimony given by McLaughlin I have found that he did not,
in fact, receive the Union's second letter requesting respondent to sign the
contract.
EAST TEXAS STEEL CASTINGS CO. 119
Upon the foregoing findings of fact, conclusions of law, and
the entire record , and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:29
ORDER
It is ordered that the complaint be, and the same hereby
is, dismissed.
" In the event no exceptions are filed as provided by Section 102.46 of Section 102.48 of the Rules and Regulations, be adopted by the Board and
the Rules and Regulations of the National Labor Relations Board, the become its findings , conclusions , and order, and all objections thereto shall
findings, conclusions , and recommended Order herein shall, as provided in be deemed waived for all purposes.