F. W. Means & Co.

National Labor Relations Board - Board Decisions

Apr 5, 1966

157 N.L.R.B. 1434 (N.L.R.B. 1966)

1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board 's Regional Office, Sixth Floor,
707 North Calvert Street , Baltimore, Maryland , Telephone No. 752-2159.
F. W. Means & Company and Local 319, Amalgamated Clothing
Workers of America , AFL-CIO. Case No. ?5-CA-168. April 5,
1966
DECISION AND ORDER
On November 23, 1965, Trial Examiner James V. Constantine issued
his Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent and the Charging Party filed exceptions
to the Trial Examiner's Decision and briefs in support thereof. The
General Counsel filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with this
case to a three-member panel [Chairman McCulloch and Members
Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent that they are
consistent herewith.
As described more fully in the Trial Examiner's Decision, Local 319,
Amalgamated Clothing Workers of America, AFL-CIO, (herein
called Local 319) and Respondent have, since 1960, been parties to
' During the course of the hearing in this case , the Board granted an interlocutory
appeal by the General Counsel from rulings of the Trial Examiner refusing to allow the
General Counsel to make offers of proof . The Board directed the Trial Examiner to
permit the General Counsel to make the offers of proof . The Trial Examiner neverthe-
less thought it necessary in his Decision to criticize this ruling by the Board at some
length. Such comment was , in our opinion , completely inappropriate . We particularly
note with concern the Trial Examiner ' s misstatement as to the scope of the ruling, and
the complete absence of justification for his statement "that a Trial Examiner is powerless
to prevent a cluttering of the record to prevent interminable delay by patently frivolous
offers of proof."
157 NLRB No. 27.
F. W., MEANS & • COMPANY 1435
collective-bargaining,agreeinents covering employees at Respondent's
Sample Street plant -in South Bend, `Indiana. The parties' existing
collective-bargaining agreement was to expire June 13,1964, and Local
319 requested in March 1964 that negotiations' begin for a new con-
tract. The parties first met on June 3. to discuss written proposals
submitted by Local 319.
On July 8 Respondent submitted to Local 319 what it called a "last
offer," containing three 'alternative wage proposals and including all
previous agreements reached on contract terms. The next day, Local
319 members voted to accept one of Respondent's wage proposals.
Respondent was notified of the vote and thereon adjusted its wages to
conform to the accepted proposal.
The parties met on July 20 and discussed a draft submitted by Local
319 incorporating the understanding between the parties. During the
course of this meeting, the parties agreed on all provisions of the pro-
posed contract draft, except that Respondent's general manager took
the position that, while he did not object to the proposed duration and
retirement trust clauses in the draft, he wished to submit these clauses
to Respondent's counsel for approval. On July 22, in a telephone con-
versation, Falasz and Philbin, counsel for Respondent and`Loeal 319,
respectively, agreed on a duration clause and on a reference to the
retirement trust clause as suggested by Falasz.
About July 31, Philbin sent-to Respondent 15 copies of a collective-
bargaining agreement, duly executed by Local 319. This document
included, in addition to the clauses agreed to by the parties, provisions
as to union security and dues checkoff, matters which had not been
discussed by the parties during negotiations. Falasz thereon tele-
phoned Philbin, objecting to the inclusion of the new provisions and
suggesting that, instead of Local 319's proposals as to these new
matters, certain relevant language in previous contracts between the
parties be utilized. Philbin rejected the suggestion. The conversa-
tion ended with no agreement as to the new provisions, but with a
request by Falasz that Philbin discuss the matters with Local 319 offi-
cials to determine if agreement was possible.
By letter dated August 18, Union Counsel Lampert asked Respond-
ent to return all 15 copies of the contract that Local 319 had mailed
3 weeks earlier. On receipt of this letter, Falasz telephoned Lampert
on August 20. After explaining that Respondent had not signed the
contract because it contained agency-shop and checkoff provisions,
Falasz asked "what would the Union be willing to give in return for
an agency shop provision containing a checkoff authorization ?" Lam-
pert answered that these provisions were not bargainable. Falasz,
1436 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
thereon stated "if that were the case, that,.we would have to start
negotiations all over again. . ." and-requested a letter from Local 319
to that effect 2 -
On August 21 and- again • on August 26, Local 319 requested that
Respondent return the executed contracts and "set a date and time for
the resumption of contract negotiations...." On August 27, Local
319 wrote to Respondent, "officially withdrawing" the contracts mailed
to Respondent and "revoking retroactively the authority of the union
official who signed the contracts to execute any collective-bargaining
agreements on behalf of Local 319.
On August 27 Falasz wrote to Local 319, returning 7 of the 15 copies
of the July 31 contract executed by Respondent, stating that the union-
security and checkoff provisions were acceptable and that "we consider
this agreement in full force and effect retroactive to the date stated
therein [July 7, 1964]." In subsequent communications between the
parties, Local 319 sought to continue negotiations for a new contract,
but Respondent refused the request on the ground that there already
was a contract between the parties. On October 7, 1964, Respondent's
employees went out on strike.
The strike was still in progress March 8, 1965, when Local 319 sent
a telegram to Respondent demanding an "immediate meeting for
collective-bargaining negotiations." The Union's March 8 telegram
was sent pursuant to a decision reached by union officials, and commu-
nicated to the membership, that the strike would continue until Re-
spondent agreed to negotiate with Local 319. Respondent did not reply
to the telegram and since that time has refused to bargain with the
-Union. The strike was still in progress at the time of the hearing.
The complaint alleges that Respondent refused to bargain with
Local 319 for a new agreement on and after March 8, 1965, in violation
of Section 8(a) (5) of the Act.' Respondent's position is that the
parties had a binding agreement, and thus Respondent had no further
obligation to bargain with Local 319 for a new contract and its refusal
to negotiate did not violate the Act.
The Trial Examiner rejected Respondent's contention that a bind-
ing agreement had been entered into prior to March 8, 1965. He held
that although as of July 22, when Philbin spoke to Falasz and reached
agreement as to the duration and retirement trust provisions, an oral
a The above represents Lampert's testimony as to the telephone conversation . Falasz
testified that he took the position that the parties already had a contract , that Respondent
was holding Local 319 to it, and that Respondent would not reopen negotiations The
Trial Examiner implicitly credited Lampert's version of the conversations by finding
that Falasz did in fact state on August 20 that if Local 319 insisted on the contract as
submitted , negotiations would have to start anew and that Falasz "thought no contract
existed."
We have examined the record and we conclude that the clear preponderance of all the
relevant evidence does not demonstrate that the Trial Examiner 's credibility findings are
incorrect and we hereby adopt them. Standard Dry Wall Products , Inc., 91 NLRB 544,
enfd . 188 F. 2d 362 ( C.A. 3).
F. W. MEANS & COMPANY 1437
understanding had- been reached by the parties on all terms of the
collective-bargaining agreement , this oral agreement "would not be
binding upon the parties until all terms were reduced to writing and
the language thereof was acceptable to both parties." He held further
that no binding agreement was ever entered into by the parties; he
concluded, consequently, that Respondent violated Section 8(a) (5)
by refusing to negotiate with Local 319 on and after March 8, with
respect to a new agreement.
We agree with the Trial Examiner 's conclusion that Respondent
violated Section 8 (a) (5), but only for the following reasons. Initially,
we disagree with the Trial Examiner's view that an oral agreement is
not binding on the parties until reduced to writing. For, as the courts
and the Board 3 have consistently held when an oral agreement is
reached by the parties as to all the terms of a collective -bargaining
agreement, each party is obligated, on the other's request, to reduce
the agreement to writing, and its refusal to do so would constitute
an unfair labor practice .4
However, we find it unnecessary to decide whether on July 22 the
parties reached a binding oral agreement. As found above, Local 319
thereafter submitted a contract including union-security and checkoff
provisions, two clauses not previously agreed on. Respondent,
although objecting to the inclusion of these latter provisions, did not
do so on the ground that Local 319 had already made a binding ora'
agreement with Respondent, nor did it insist on submission of a written
contract which excluded these new- proposals. Rather, Respondent's
representative offered to bargain over the union-security and checkoff
provisions and indicated that if Local 319 insisted on these provisions,
the parties "would have to start negotiations all over again." And
Local 319 requested the return of the contract. By such conduct the
parties have, we find, mutually rescinded such agreement as they may
have reached on July 22.
Since the record establishes that the parties thereafter reached no
new agreement, we further find that there was no collective-bargaining
agreement in effect on March 8, 1965, when Local 319 requested
Respondent to bargain for a new agreement .5 We therefore find, in
agreement with the conclusions of the Trial Examiner, that Respond-
ent's refusal to negotiate with Local 319 on and after March 8 violated
Section 8(a) (5) and (1) of the Act. We also find, like the Trial
9 The leading case is H. J. Heinz Company v . N.L.R.B., 311 U.S. 514 , 523-526. See
also, Sharp's Market, Inc., 140 NLRB 1221
'The Trial Examiner in reaching his conclusion relied on the district court's holding
in Roadway Express, Inc. v. General Teamsters . Chauffeurs, and Helpers Union, Local
249, 211 F. Supp . 796 (W.D. Pa.) ; however , the Court of Appeals for the Third Circuit,
at 330 F. 2d 859, 863 , reversed the district court on this very issue , specifically dis-
agreeing with the district court's reading of the Heinz case.
5 In reaching this conclusion we specifically do not adopt the Trial Examiner's theories
of offer and acceptance as set forth in his Decision.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner, and for, the reasons stated by him, that the strike which
began on October 7, 1964, was prolonged after March 8 by Respond-
ent's unlawful refusal.to bargain with Local 319.
TThe Board adopted the Trial Examiner's Recommended Order
-with the following modifications :
[1. Add the 'following as paragraph 1(b) to the Recommended
Order :
[" (b) In any manner interfering with the efforts of Local 319 to
bargain collectively with F. W. Means & Company, South Bend,
Indiana."
[2. Add the following as the last indented paragraph of the notice :
["WE WILL NOT in any manner interfere with the efforts of Local
319 to bargain collectively with us."]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is an unfair labor practice case in which F. W. Means & Company is Respond-
ent. It was initiated by a complaint dated May 19, 1965, by the General Counsel
of the Board through the Regional Director for Region 25 (Indianapolis , Indiana).
The complaint , as amended at the hearing , is based on a charge filed on March 12,
1965, by Local 319, Amalgamated Clothing Workers of America, AFL-CIO, herein
called the Charging Party, Local 319, or the Union . In substance the complaint, as
$mended at the hearing, alleges that Respondent has violated Section 8(a)(1) and
(5), and that such conduct affects commerce within the meaning of Section 2(6) and
(7) of the National Labor Relations Act, herein called the Act . Respondent has
answered admitting some facts but putting in issue the commission of any unfair
labor practices.
Pursuant to due notice this case was heard before Trial Examiner James V. Con-
stantine on July 12 and 13, 1965, at South Bend , Indiana. All parties were repre-
sented at and participated in the hearing, and were granted full opportunity to
offer evidence , examine and cross-examine witnesses , present oral argument, and
tender briefs. All parties have submitted briefs.
During the course of the hearing I sustained objections of Respondent to certain
of the General Counsel 's questions and refused to allow the latter to make an offer
of oral or documentary proof thereon . This refusal was based upon my ruling that
the facts sought to be adduced were either patently irrelevant or were admitted in
the answer . Thus I excluded offers of proof that ( 1) other charges filed by the
Union or the Company had been dismissed by the Regional Director , whose action
was sustained on appeal to the General Counsel , and (2 ) documents in the represen-
tation case leading to the certification of the Union , since the Union's majority and
the appropriateness of the unit were admitted in Respondent 's answer . (In fact,
Section 9(d) of the Act requires the certification and other pertinent documents to
be included in the transcript of this case. Duplication by putting these in the record
a second time as exhibits of a party is hardly necessary.) Thereon the General Coun-
sel perfected an interlocutory appeal to the Board by merely asserting , without reciting
any facts, that I had denied him the right to make offers of proof and to place
excluded documents in the rejected exhibit file. See General Counsel's Exhibit 15.
As that appeal set forth no facts touching on such exclusion of offers of proof, it
manifestly presented a naked question of law whether a Trial Examiner is vested
with authority to reject as a matter of discretion offers of proof of oral testimony
which are patently frivolous or which tend to prove facts admitted in an answer, or
of documents as exhibits which the statute requires to be included in the transcript
anyway.
The Board sustained that appeal and directed me to accept the offers of proof and
the excluded exhibits . Hence the Board must have ruled that a Trial Examiner is
powerless to prevent a cluttering of the record to prevent interminable delay by
F. W. MEANS: &"COMPANY' ' - 1439
patently frivolous offers of proof: 'Certainly' evid6 ce of facts alread y' admitted in,
an answer or in a' stipulation should 'not take'up the-time of the Thal Examiner or
needlessly fill pages of the record. This is unnecessary, if not excessive, duplication.
Nor should a party'determined-to stall 1'the trial be enabled as a matter of right to
make offers of proof manifestly 'not germane to an, relevant or material issue. If
he may, such offers conceivably could consume days.. Further, the fact that other
charges have been filed against a respondent in general may have 'some
'
bearing on
a case ; but, when those charges have been dismissed by the General Counsel, it is
inconceivable that they then carry probative value when offered by .the same or an
associated party in the instant case.2 Attempting to introduce such dismissed charges
amounts to a frivolous contention, in my opinion, that the General Counsel's action
in dismissing charges may be subject to review by a Trial Examiner or that self-
serving statements in such charges must be considered.
Because of the importance of the issues, I have discussed it rather fully. My
action„based on a sound discretion to avoid cluttering 3 the record with unnecessary
as well as irrelevant evidence, has some support in the decided case law. Thus it
has been held that where the proffered evidence is laden with no probative signifi-
cance the court, in its discretion, may exclude offers of proof thereon. Downie, et al.
v. Powers, et al., 193 F. 2d 760, 768 (C.A. 10). See Peckham v. United States, 210
F. 2d 693, 702 (C.A.D.C.); James H. Molloy, et al. v. Bemis Bros. Bag Company,
et al., 283 F. 2d 32, 37 (C.A. 5); Massachusetts Mutual Life Insurance Company v.
Thomas E. Brei, etc., 311 F. 2d 463 (C.A. 2); 5 Moore, Federal Practice, 43.11; Fed.
R. Civ. P. 43(c); 89 ALR 292-300.
I. THE ISSUES
Succinctly stated, the issues in this case are- (1) whether Respondent's admitted
refusal to negotiate with the Union on and since March 8, 1965, is lawful, and (2)
whether the Union's strike, which has been in effect since October 7, 1964, has been
prolonged by the foregoing alleged illegal refusal to bargain since March 8, 1965.
Resolution of these issues in turn depends on the question of whether the parties
had entered into a valid collective-bargaining contract before March 8, so that fur-
ther meetings for a contract became unnecessary. -
H. JURISDICTION
F. W. Means & Company, an Illinois corporation, is engaged at South Bend, Indi-
ana, in the business of providing 'industrial and ' linen service to commercial 'cus=
tomers. It has three plants in South Bend. Only its Sample Street plant is involved.
The Company annually provides rentals, services, and products valued in excess of
$50,000 to points outside the State of Indiana. During the past year it also received
directly from points outside the State of Indiana goods and materials valued in excess
of $50,000. I find that Respondent is engaged in commerce within the meaning of
Section- 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act
to assert jurisdiction over Respondent in this proceeding.
III. THE LABOR ORGANIZATION INVOLVED
Local 319, Amalgamated Clothing Workers of America, AFL-CIO, herein called
Local 319 or the Union, is a labor organization within the meaning of Sections 2(5)
and 8(a) of the Act.
IV. THE UNFAIR LABOR PRACTICES
A. Preliminary, events
Since 1960 Respondent has recognized Local 319 for employees in the unit set
forth infra, and has entered into collective-bargaining contracts with it. On or about
April 29, 1964, a majority of Respondent's employees in the unit described below,
i I neither intimate nor believe that the General Counsel's attorney attempted to delay
this proceeding. But the principle that offers of proof must be accepted In all Instances
can be abused by an attorney anxious to procrastinate or otherwise prolong the hearing.
2It is true that one of said charges was filed by Respondent against Local 319 Its
dismissal by the General Counsel establishes nothing in the instant case. Hence its
relevance is conjectural , if not imaginary.
3 Cf. Pound, Appellate Procedure in Civil Ca8es, p. 6, where the author criticizes, the prac-
tice of "throwing a whole unorganized mass of testimony and exhibits [at a court] . .."
In administrative law cases.
1440 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
by a secret-ballot election conducted pursuant to Section 9 of the Act, designated
and selected Local 319 as their representative for the purposes of collective bargain-
ing with their employer. Thereafter, on or about May 7, 1964, the Board 's Regional
Director for Region 13 certified said Union as the exclusive collective-bargaining
representative of the employees in said unit , which comprises:
All employees of the Respondent in its plant located'at 125 East Sample Street,
South Bend, Indiana , excluding all executive , administrative, professional, and
office clerical employees , firemen-engineers , drivers, route salesmen , guards,
and supervisors as defined in the Act. [Case No. 13-RC-10027.]
I find that said unit is appropriate for the purposes of collective bargaining under
Sections 9 and 8 (a) of the Act. I further find that said Local 319 since 1960 (Sham-
rock Dairy, Inc., etc., 119 NLRB 998, 1002) and, in any event, since May 7, 1964,
has represented a majority of the employees in said unit , because no evidence has
been introduced to rebut the presumption that its majority continues following the
expiration of the certification year. United States Gypsum Company, 90 NLRB 964,
965-966; Celanese Corporation of America, 90 NLRB 664, 672-674. Accordingly,
I find that Local 319 is now and since 1960, and particularly since March 8, 1965,
has been the exclusive representative of all the employees in said unit for the purposes
of collective bargaining with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
B. The alleged refusal to bargain
1. General Counsel's evidence
Respondent has three plants in the South Bend area. Only that located on Sample
Street, South Bend, is involved herein. Local 319 and the Company had entered
into collective-bargaining contracts for that plant in the past, the last of which
expired on June 13, 1964. On March 24, 1964, the Union wrote to Respondent seek-
ing modifications in the then existing contract and- requesting negotiation meetings
therefor. Sometime thereafter, the Union's representative, Raymond Marin, spoke
to Dwight Carroll, the Company's general manager, whom I find to be a supervisor
under Section 2(11) of the Act, regarding the Union's demands. Carroll requested
that the Union reduce them to writing and mail them to him. Marin did as directed.
See General Counsel's Exhibit 5. The parties thereafter agreed to , and did, meet
on June 3, 1964.
On July 8, 1964, union and company representatives again met at the offices of
the Federal Conciliation and Mediation Service. At this session the Company,
among other things, offered the Union three different alternatives on wages, one of
which included a 2-cent-an-hour contribution by the employer to the health and acci-
dent program for the employees. In addition the Company "agreed to all previ-
ously agreed to agreements made during the course of prior negotiations." When
union representatives offered to submit these wage offers to the membership, the
Company replied, "This is our last offer. This is it." But the Union did not
then and there accept or reject the Company's offer.
On July 9, 1964, a vote was taken at a membership meeting of the Union on these
wage offers. It was voted to approve one of the three above alternatives submitted
by Respondent. Thereafter Union Representative Klass directed Union Counsel
Philbin to draft a proposal to the Company incorporating the entire understanding
of the parties. Klass also informed the Company of the foregoing vote. Respondent
then revised its wage scale to conform to this alternative. On July 20, 1964, Local
319 and Respondent met in the Union's offices. A rough draft (General Counsel's
Exhibit 9) of the agreement of the parties was handed by the Union to the company
representatives. The language of this draft, including that pertaining to the duration
and the retirement trust clauses, was thereupon discussed by the parties. Company
General Manager Carroll stated that he personally did not object to the wording of
the duration clause and the retirement trust, but he could not accept them until they
met the approval of Company Counsel Falasz. Carroll further voiced objection to
the wording of the "insurance and retirement" and health and accident insurance
clauses; but on all other provisions the parties reached an understanding.
Company Counsel Falasz telephoned Union Counsel Philbin 2 days after this
July 20 meeting. Falasz told Philbin that he (Falasz) had received the rough draft
(General Counsel's Exhibit 9) which was the subject of discussion at the July 20
meeting, noted that the duration clause differed from that in the previous contract
between the parties, and that he preferred a definite time of 2 years from June 14,
1964, rather than "a continuing duration clause." The two also discussed the retire-
F. W. MEANS & COMPANY, 1441
ment trust , Falasz claiming that no agreement had been reached thereon. After
further discussion Falasz and Philbin agreed on a duration clause and a reference to
the retirement trust as suggested by Falasz.
Thereafter Philbin prepared another draft embodying these changes and also
included therein an agency -shop clause and checkoff clause . Neither agency shop nor
checkoff had been previously discussed or agreed on by the parties ; hence they were
new provisions added by Philbin . Then he "submitted 15 copies of this proposal,"
which is ' in evidence as Respondent 's Exhibit 3, to Union Representative Klass. Not
long thereafter Klass signed all 15 copies and , as noted above , Philbin mailed them
about July 31, 1964, to General Manager Carroll with a covering letter. (Respond-
ent's Exhibit 2.) Shortly thereafter Company Counsel Falasz telephoned Union
Counsel Philbin to inquire why the agency-shop and checkoff clauses were included
in the most - recent draft proposal submitted by the Union and signed by Klass,
because these had not been made the subject of negotiations . As a result Falasz
objected to their inclusion in the contract , but offered instead to include certain
language of the 1962 and 1964 agreements between the parties. Thereupon Philbin
rejected this suggestion and remarked that "we have not finalized these matters."
Falasz asked that Philbin discuss this issue with the Union and report whether agree-
ment was possible thereon.
Union Counsel Lampert testified that the agency-shop and checkoff clauses in the
contract proposed by the Union (Respondent's Exhibit 3) were new proposals which
had not , prior thereto, been discussed or agreed on. Later on, in discussions with
the "staff," he learned that Respondent had entered into a more favorable contract
for its employees at its Beyer Street laundry (who are there represented by the
Teamsters Union). This caused Lampert to write to Carroll th-. letter of August 18,
1964, requesting the return of all the Union's 15 copies of a proposed contract.
(General Counsel's Exhibit 11.) Shortly after Carroll received this letter, Counsel
Falasz telephoned Lampert on August 20, inquiring why the Union was withdrawing
its proposals of July 31. Lampert replied that this was done because the Company
had done nothing with respect to the Union 's contract proposals . Falasz defended
this inaction on the ground that the proposals contained agency-shop and checkoff
provisions which had not been the subject of negotiations, and asked what the Union
would give in return for company acceptance of these two clauses. Lampert replied
that the Union insisted on the contract as submitted , and if it was not acceptable to
return it unsigned . Finally, Falasz stated that if this were the case, negotiations
would have to start all over again and asked Lampert to write him a letter to that
effect.
The next day , August 21 , Lampert wrote Falasz requesting a return of all the 15
copies of the Union 's proposal because Respondent refused to sign them , and also
requesting a resumption of negotiations to bargain on unresolved issues. (General
Counsel's Exhibit 19.)
On August 26, 1964, Lampert telephoned Falasz and informed Falasz that the
Union understood that the Company promised Local 319 it would not execute a more
favorable contract with the Teamsters Union and that the Company had not honored
this arrangement . Falasz requested a letter containing details as to dates and con-
tent of such an understanding. Lampert replied that the Union preferred further
negotiating meetings to settle unresolved issues, and requested "the earliest possible
date" for such meetings . Falasz replied that this would "stir up a hornet's nest," but
promised to consult with Respondent about it. Lampert again brought up the
understanding relating to the more favorable terms given the Teamsters , but Falasz
denied knowledge thereof. Later that day Lampert wrote to Carroll "officially with-
drawing" the Union's proposals and revoking the authority of Klass to sign for the
Union. (General Counsel's Exhibit 12.)
On August 28, 1964, Lampert received the Union's proposals by mail from Falasz.
(Respondent's Exhibit 3.) They were signed by Dwight L. Carroll for the Company,
who had signed them on August 26. They were accompanied by a letter dated
August 27, 1964, signed by Falasz, stating that:
Enclosed are seven (7) copies of the collective bargaining agreement signed
by F. W. Means & Company and by your Union, covering the employees of the
Company at its plant at 125 Sample Street, South Bend, Indiana.
The insertion into this contract of the agency shop agreement and check-off
provision, even though not negotiated during the course of bargaining, are
agreed to by the Company and accepted as part of this agreement.
We consider this agreement in full force and effect retroactive to the date
stated therein. [General Counsel's Exhibit 20.]
This letter was mailed from Chicago, Illinois, prior to 2.30 p.m., August 27, the time
of the earliest of three postmarks stamped on the envelope in which it was mailed.
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By letter dated September 11, 1964, Lampert wrote to Falasz, claiming that no
contract existed between the parties because the Union had "clearly and unequivo -
cally revoked the agreement"; that the contract signed by the Company and returned
to Lampert on August 28 (Respondent 's Exhibit 3) did not cover all items "negoti-
ated . . . and agreed to," so that no collective -bargaining agreement is currently in
effect; and that Respondent "induced" Local 319 to believe that it would receive as
favorable terms as the Teamsters Union, which "inducement ... has been violated."
The letter closed with a request for a time and place to resume "good faith bar-
gaining ." (General Counsel's Exhibit 22.)
By letter dated September 14, 1964, Falasz wrote to Lampert replying to the above
September 11 letter of Lampert. In his letter, Falasz contended that:
the collective bargaining negotiations between [the Company] and your
union were concluded on July 8, 1964, at South Bend, Indiana. On that date
and place an agreement was reached between the Company and the Union ....
This agreement was approved and accepted by the membership of your union
Local 319 several days later. Your union attorneys drafted this agreement,
which was signed by the Union and the Company.
Under these circumstances, F. W. Means & Company considers this agree-
ment to be in full force and effect for the term stated therein. [General Coun-
sel's Exhibit 23.]
At the time Lampert sent his letter of August 26, 1964, to Company General Man-
ager Carroll (General Counsel's Exhibit 12), the parties had not agreed, according
to Lampert, on three provisions, viz: a "favored nations" clause, agency shop, and
checkoff.
Respondent admittedly has not met with Local 319 on or since March 8, 1965, for
the purposes of negotiating a collective-bargaining contract. On March 8, 1965,
Local 319 sent to, and Respondent received, a telegram demanding an immediate
meeting for collective-bargaining negotiations because "you have ignored several
similar requests." In the telegram the Union also warned it would file charges with
the Board if Respondent continued to ignore the Union's demand for a bargaining
session. Respondent has neither replied to this nor met since then with Local 319
to negotiate or bargain.
On May 26, 1965, Local 319 again sent to, and Respondent received , a telegram
requesting "a meeting for collective bargaining." Respondent replied by telegram
on May 26, 1965, that "there is in effect a collective bargaining agreement entered
into between your union and this company covering the employees at our Sample
Street plant which agreement we request you honor and abide by." Local 319
received this the same day.
On Good Friday 1965, company representatives met with Local 319 representa-
tives in the office of John Falasz, Respondent's counsel, to ascertain and define the
dispute between them and to explore the possibility of settling it. The Union
requested that the parties negotiate a collective-bargaining agreement, but the Com-
pany insisted that an agreement already had been executed covering the employees
in question.
On October 7, 1964, the Union struck the Company. As the result of discussions
among members and officials of Local 319 it was decided to continue this strike until
the Company agreed to bargain. It was also agreed to send the telegram of March 8,
1965, mentioned above. Prior to this, Local 319 had forwarded similar telegrams
to Respondent requesting bargaining meetings. Among these telegrams is one
dated October 7, 1964, advising Respondent that "our members at your Sample
Street plant in South Bend, Indiana, are engaging in an unfair labor practice [strike?]
because of your bad faith refusal to bargain." (Charging Party Exhibit 1.) This,
in turn, was sent in reply to a telegram of Respondent to Local 319, of October 7,
1964, "that the employees of our Sample Street plant in South Bend, Indiana, repre-
sented by your Union, walked off the job to-day, without any reason in violation of
the existing contract between your union and this company. We are requesting these
employees to return to work at the regular starting time, on October 8, 1964. If they
fail to do so, we will assume that these employees have decided to terminate their
employment with this Company." (Respondent's Exhibit 1.)
2. Respondent's evidence
By letter dated July 31, 1964, John Philbin, counsel for Local 319, who was there-
unto lawfully authorized, wrote to Respondent, stating, in material part,
Enclosed you will find 15 copies of our contract which Mr. Klass [for the Union]
has signed. The Company's $13.00 a month contribution will provide the fol-
F. W. MEANS & COMPANY 1443
lowing coverage for its employees through the Amalgamated Social Benefits
Association: [here such benefits are enumerated in detail]. I will be able
to furnish you with further details regarding the insurance when the individual
policies are ready.
This was, according to General Manager Carroll, to whom it was addressed "a cover-
ing letter for the new contract negotiated." Accompaning the letter were 15 copies
of the contract (Respondent's Exhibit 3), all signed by Hyman Klass on behalf of
Local 319.
That contract is dated July 7, 1964, remains in effect for 2 years, and thereafter
continues from year to year absent a timely written notice by either party to the
other. Certain benefits, such as increased wages and vacation pay, are made retro-
active to June 15, 1964, and the Company has honored the contract by paying these
increases. Further, union dues for August and September 1964, have been checked
off and remitted to Local 319 pursuant to this contract, but not since then. How-
ever, prior to this the Company had also checked off dues for the Union under pre-
vious contracts.
On July 9 or 10, 1964, Klass told Carroll that the employees, at a meeting, had
ratified the Company's offer. Consequently, Carroll immediately notified the Com-
pany's payroll department to put into effect the new wage scales.
On August 3, 1964, Carroll received a rough draft of a contract (General Coun-
sel's Exhibit 9) from Philbin. Finding objectionable two discrepancies (as to the
duration clause and as to the retirement trust) and inclusion of an agency-shop
clause, Carroll turned over this document to Respondent's attorney (Falasz) for an
opinion as to whether these three clauses were acceptable as drawn. In particular,
the agency-shop and duration clauses had not been negotiated or mutually agreed on.
Carroll also asked Falasz to take up the matter with Local 319, leaving it to Falasz
whether the agency-shop clause should be included.
By letter dated August 18, 1964, Philip Lampert, counsel for Local 319, wrote to
General Manager Carroll, "Kindly return to us, as soon as possible, all of the fifteen
(15) copies of the collective bargaining agreement sent to you on July 31, 1964."
(General Counsel's Exhibit 11.) Carroll received it on August 19 or 20. At the
time Carroll received this letter he had not signed the 15 identical documents, one of
which is Respondent's Exhibit 3. On receiving Lampert's letter, Carroll telephoned
Counsel Falasz to notify him of it; but at that time Carroll had not yet signed the
documents. On August 25 Falasz instructed Carroll to sign the documents and
return them to Falasz. On the morning of August 26 Carroll did sign them and
mailed them immediately thereafter to Falasz.
By letter dated August 26, 1964, Union Counsel Lampert wrote to General Man-
ager Carroll:
Inasmuch as you have not returned the subject agreements as per our request
of August 18, 1964, and our request of August 21, 1964 submitted to your
Attorney Mr. John M. Falasz, we are herewith officially withdrawing said
agreement. We are also notifying you that the authorization of Mr. Hyman
Klass to sign collective bargaining agreements for our organization is hereby
revoked and that this revocation applies to the agreements sent to you on
July 31, 1964.
On August 27 Falasz then wrote and mailed a letter replying to this, as more fully
described under the General Counsel's evidence, supra. (General Counsel's
Exhibit 20.)
Union Counsel Lampert telephoned Company Counsel Falasz on August 20, 24,
and 26, 1964. During the course of their conversation Lampert remarked that his
Union was being put "in an untenable position with its employees" because during
negotiations the Company agreed that it would not give more favorable terms to the
Teamsters at the Beyer Avenue plant than those granted to Local 319 at the Sample
Avenue laundry. Falasz replied that he had heard about this for the first time at the
Federal Mediation office when the parties appeared there, but that no commitment
was made; in fact the Company expressly rejected the Union's request for such a
pledge or assurance. Further replying, Falasz stated that no reason was shown why
it should be then discussed, and asserted that the Company "had made an agree-
ment" which it expected the Union "to likewise recognize." Lampert insisted that
even if no such commitment had been made, the Company "is morally bound to do
the same thing for one group which it does for another." But Falasz was adamant
that the parties had entered into a contract, that they should abide by it, and that
the Company "is not going to reopen negotiations." But Falasz did tell Lampert
that no problem arose as to agency shop and checkoff.
221-374-66-vol. 157-92
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Other evidence of Respondent is set forth above under the General Counsel's evi-
dence . It need not be reiterated here, since both versions corroborate each other,
and no dispute has arisen on those aspects of the case.
C. Concluding findings and discussion as to the refusal to bargain
1. The Union's demands in its letter of May 25, 1964
By letter of May 25, 1964 (General Counsel's Exhibit 5), the Union made known
its demands to the Employer pursuant to a request by General Manager Carroll that
these demands be reduced to writing. I find that this is an offer. But I further find
that it was never accepted and that both the Union and the Employer neither treated
it nor regarded it as ever having been accepted. No brief of any party contends to
the contrary. Nevertheless this document served as a basis for acquainting the
Employer of the Union's position as of that date. It was discussed by the parties
at a negotiating session on June 3, 1964.
2. The negotiating session of July 8, 1964
When the parties met on July 8, 1964,4 to continue negotiations for a collective-
bargaining session, it was at the offices of the Federal Conciliation and Mediation
Service. At this meeting Respondent, inter alia, offered three different wage alterna-
tives, and also reiterated reaffirmance of all prior items theretofore agreed on by
the parties. But the Union neither accepted nor rejected this package proposi-
tion; instead it offered to submit the three wage alternatives to its members. But I
.expressly find that the offer to submit these three wage proposals did not impliedly
constitute a conditional acceptance of the Employer's total offer, i.e., that the Union
accepted the Employer's offer subject to ratification by the employees of any one of
,the wage provisions contained in it. This is because the Union did not actually or
impliedly accept conditionally and also because the parties by their subsequent con-
duct, did not manifest that their minds had met at this July 8 meeting. Hence no
.contract resulted when the employees on July 9 sanctioned one of the Company's
three alternative wage choices and Union Representative Klass informed the Com-
pany of this vote on July 9.
It is true that Respondent, on learning of the above employee vote of July 9,
.adjusted its current wage scale to adapt it to the alternative wage proposal confirmed
by the vote of the employees. But this action of the Employer fell short of con-
summating a contract not only because no agreement as to an entire contract had
been agreed on by the parties, but also because mutual agreement 5 as to one pro-
vision of a proposed contract does not extend such meeting of the minds to cover
those other provisions still being disputed by the parties.
3. The draft of July 20, 1964
On July 20, 1964, a negotiating meeting attended by both union and company
yepresentatives was held in the Union's offices. A rough draft (General Counsel's
Exhibit 9) of what the Union believed embodied the agreement of the parties was
given by the Union to Respondent. It was also there discussed. But I find that this
,draft did not reflect a meeting of the minds of the parties because Company General
Manager Carroll refused to acquiesce in the duration clause and the retirement trust
clause until Company Counsel Falasz passed on and approved them. While it is
true, and I find, that Carroll personally did not object to the text of these two clauses,
I further find that he expressly refused to accept them unless and until company
counsel assented to their wording. Hence it was an incomplete agreement. Ridge
.Citrus Concentrate, Inc., et al., 133 NLRB 1178. -
If material, I find that at this stage of the negotiations the parties had agreed on
All the terms of a collective-bargaining contract except for the duration of the con-
tract and the provisions relating to the retirement trust. And I find that at this point
* Sessions after June 3 and prior to July 8 are not material because no agreements
-were reached. Hence they are not discussed herein.
5 I find that agreement was reached as to wages because the Union, within 'a reasonable
time after they were inaugurated, failed to disavow them. Such inaction constitutes
ratification of the Employer's conduct, and I so find. In my opinion the Union was under
a duty to reject the new wage scale or be held to acquiesce in it by silence. Otherwise
the Employer would be committing an unfair labor practice by unilaterally changing wages
,even when the Union did not object thereto within a reasonable time.
F. W. MEANS & COMPANY 1445
the document (General Counsel's Exhibit 9) handed by the Union to the Respondent
constituted a firm offer by the Union. Further, I rule that, as a matter of law, when
one party makes a firm offer (1) such party may not withdraw said offer until a
reasonable time has elapsed even though the offer may not be signed or in writing,
and (2) the offeree of the firm offer may accept it within a reasonable time, even
though such acceptance follows a purported withdrawal of the offer during such
reasonable time.
In making the foregoing rulings, I have been guided by the principle that Federal
law, and not State law , governs the formations of contracts . Lozano Enterprises V.
N.L.R.B., 327 F. 2d 814, 818 (C.A. 9); New England Lead Burning Company, Inc.,
133 NLRB 863, 866, footnote 2; Henry V. Rabouin, d/b/a Conway's Express V.
N.L.R.B., 195 F. 2d 906, 910 (C.A. 2); N.L.R.B. v. Hearst Publications, Inc., 322
U.S. 111, 122-123; Michigan Bakeries, Inc., 100 NLRB 658, 660, footnote 3. See
Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas
Flour Co., 369 U.S. 95. While I have been unable to find Board adjudications
expressly holding that a firm offer need not be in writing or signed , and that it may
not be withdrawn in less than a reasonable time, I am of the opinion that these prin-
ciples are consonant with the Federal rule that, except in contract bar cases, an oral
collective-bargaining contract embodying the understanding of the parties is valid,
that neither party may withdraw therefrom, and that when such oral agreement has
been reached either party may demand that it be reduced to writing and signed.
H. J. Heinz Company v. N.L.R.B., 311 U.S. 514, 523-526; Lozano Enterprises, 143
NLRB 1347, enfd. 327 F. 2d 814, 818 (C.A. 9), and cases there cited. These rules
.also do not clash with the relevant principles contained in the Uniform Commercial
Code, although I recognize that such code is not binding on the Board or the Federal
,courts. In some respects the common law as to offer and acceptance is inconsistent
with the Uniform Commercial Code, but its extent is not a matter for further ampli-
fication in this case.
That the rough draft of July 20, 1964, does not embrace an entire, consummated
agreement is further evidenced by the fact, which I find, that on July 22, 1964,
Company Counsel Falasz spoke to Union Counsel Philbin in an effort to iron out
the differences of the parties on those matters, mentioned above, on which they had
until then disagreed. During this conversation Philbin and Falasz agreed on the sub-
stantive terms of a duration clause and a retirement trust clause . I find that, as of
this time, the parties had arrived at an oral understanding on all terms of a collective-
bargaining contract, but that no contract would be binding on the parties until all
terms were reduced to writing and the language thereof was acceptable to both parties.
Roadway Express, Inc. v. General Teamsters, Chauffeurs, and Helpers Union Local
249, 211 F. Supp. 796 (W.D. Pa.). Hence no enforceable oral contract had been
agreed on on July 22, 1964. International Union of Operating Engineers, Local
Union No. 547 v. Pfeiffer Brewing Co., 115 F. Supp. 650, 654 (E.D. Mich.). See
I Williston • on Contracts, § 28, (3d ed.). In my opinion, Los Angeles Mailers'
Union No. 9, etc. (Dow Jones & Company, Inc.), 155 NLRB 684, is distinguishable.
4. The Union's draft of July 29, 1964
As a result of the oral agreement reached on July 22, 1964, Union Counsel Philbin
prepared another draft document incorporating the terms agreed on but also adding
thereto two new clauses on substantive matters previously neither discussed nor
agreed on. These two clauses provided for an agency shop and a checkoff. Not
long after this, Union Representative Klass signed 15 copies thereof on behalf of
Local 319. I find that Klass was vested with authority to subscribe to said 15 copies.
Soon thereafter Philbin mailed these 15 copies, one of which is Respondent's
Exhibit 3, to the Company with a covering letter (Respondent's Exhibit 2). I find
that the transmission of these copies constitutes two severable firm offers by Local
319, either of which could be separately accepted or rejected without affecting
acceptance or rejection of the other; i.e., one related to all previously agreed items
and the other pertained to the new matter consisting of an agency-shop clause and
a checkoff clause. Further, I find that these two firm offers remained open for
acceptance or refusal, and could not be withdrawn, for a reasonable time after
receipt thereof by the Company as offeree. And I find that they were received by
the Respondent on August 1, 1964, and that a reasonable time thereafter expired at
the close of business on August 15, 1964.
Instead of accepting or rejecting these offers, the Company, through Counsel
Falasz, continued or prolonged bargaining negotiations by discussions as to the
agency-shop and checkoff clauses. These discussions, conducted by telephone shortly
1446' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after the Company ; received Respondent 's Exhibit • 3, amount' to a rejection as of that
time of the agency -shop and checkoff clauses by.the Company . But such rejection
did not affect ) the remainder of the document which contained the other firm offer.
Accordingly, at the termination of this -telephone conversation only one firm offer
of the Union remained open;` i.e., that embodying all terms previously agreed on.
The other-offer; concerning agency shop and checkoff,-had been rejected by Respond-
ent so that it no longer remained viable for the purpose of being later subject to,
acceptance, notwithstanding that such rejection occurred, prior to the passage'of a
reasonable time. ,,This is because rejection- of a firm offer, as distinguished from'
declination of one or more individual -items at the bargaining table,6 destroys its.
vitality and thereafter cannot be accepted. .
It follows, and I find, that, as Respondent had not accepted the unrejected part
of the draft of July 29, 1964 (Respondent's Exhibit 3), on or before the close of
business on August 15, 1964, that draft expired as an offer on the latter date. It also.
follows, and I have already found, that the other firm offer (as to agency shop and
checkoff) had lost vitality when it was rejected by Respondent prior to August 15,
1964. Hence I find that, when on August 27, 1964, Respondent signed and mailed
its copy of the draft of July 29, 1964, such acceptance was in fact a counteroffer and'
not an acceptance. This finding emerges from the fact that, after an offer has termi-
nated (either by rejection, or lapse of a reasonable time, or both), a purported
acceptance of such offer amounts to do more than a counteroffer by the offeree who,
is attempting to accept the offer.
5. Events after August 15, 1964
In view of the foregoing findings it should be unnecessary to pass on the subse-
quent conduct of the parties. Nevertheless I do so because these later-events become
material if it is found that either of the Union's firm offers retained vitality and was
capable of acceptance on August 27, 1964.
a. Counsel Lampert testified that the parties had agreed that no more favorable
terms would be granted by Respondent to the Teamsters than appeared in the
Union's draft of July 29, 1964. But I-do not find that such an agreement was made
by the parties at any negotiating session. In the first place Lampert ascertained this.
information from the "staff. Thus he had no personal knowledge thereof. More-
over, none of the "staff" was put on the stand to testify to such an agreement . Finally,
none of the instruments submitted by the Union to Respondent contained such a
provision. (See General Counsel's Exhibits 5 and 9, and Respondent's Exhibit 3.)
Accordingly, I find that the Union was not warranted or justified in withdrawing
any firm offer-or contending that no final agreement was reached because Respondent
failed to grant as favorable terms to Local 319 as it did to the Teamsters. This is
because I find that the parties did not agree that the grant of a "more favored nations"
clause was a condition precedent to executing a collective-bargaining contract.
b. As found above, Respondent received on or about August 1, 1964 , a document
containing two firm offers from Local 319, and had until the close of business on
August 15, 1964, to accept either one or both of said offers. However, Respondent
had not communicated any acceptance to the Union by August 17. On August 18
Union Counsel Lampert wrote to General Manager Carroll asking for a return of
all 15 copies of the "collective bargaining agreement" previously sent on July 31,
1964. I find that this letter constitutes a retraction of both firm offers contained in
the "collective bargaining agreement" (Respondent's Exhibit 3), that Respondent
received said revocation not later than August 20 (when Falasz telephoned Lampert
about it), and that, since no acceptance had been consummated 7 prior to August 20,
said retraction effectively, withdrew both firm offers and rendered them incapable of
acceptance thereafter. Moreover, Company Counsel Falasz thought no contract
existed, for in his conversation of August 20 with Union Counsel Lampert, Falasz
stated that if the Union insisted on the contract as submitted (i.e., Respondent's
Exhibit 3), negotiations would have to start all over again.
c. Hence I find no meeting of the minds by August 20, 1964. Nevertheless I do
find that during the course of the conversation of August 20, Lampert reopened the
Union's two firm offers by expressing a willingness to have Respondent accept them.
6 Since individual items constitute part of the give and take at bargaining sessions,
turning down one item does not constitute rejection of it so as to preclude acceptance
thereof later on, so long as no withdrawal of said items has occurred prior to its acceptance.
7 Respondent's evidence shows that the copies in its possession had not yet been signed
by it on or before August 26, 1964.
F. W. MEANS &i COMPANY 1447
But I further find that Respondent rejected these two offersr in the same telephone
conversation. Such rejection, effectively terminated said offers so that it was unneces-
sary that the Union thereafter withdraw, them to prevent their acceptance. But -I
find that the Union further withdrew them by a letter to Respondent dated August 21,
1964, which the Respondent received not later than August 24 (General Counsel's
Exhibit 19) and before acceptance by Respondent of the offers. Hence I find that
by August 24 there was no outstanding offer to Respondent from the Union which
Respondent could accept.8
d. On August 26, 1964, Union Counsel Lampert and Company Counsel Falasz,
by telephone, again discussed the "most favored nations" clause and a few other
matters. Although Falasz and Lampert gave contradictory testimony as to the talk
relating to the above clause, I do not resolve the conflict because no matter whose
version is credited patently no agreement or understanding was reached on said
clause. But I specifically find that no firm offers were made by the Union on either
Respondent's or the Union's version of the evidence thereon. Hence nothing
occurred to change the status of prior proceedings; i.e., no union offer existed on
August 26.
Later in the day, i.e., on August 26, 1964, Lampert wrote to General Manager
-Carroll again withdrawing "said agreement" (i.e., Respondent's Exhibit 3) and can-
celing the authority of Union Representative Klass to sign any agreement for the
Union, including the agreement in evidence as Respondent's Exhibit 3. (See General
Counsel's Exhibit 12.) This was a superfluous act since at the time Lampert wrote
this no-valid offer was extant which could be accepted. Hence there was nothing
to recall or rescind. Nevertheless I proceed on the assumption that a valid offer was
in existence at the time.
An issue then arises as to when Carroll received this withdrawal letter which is
in evidence as General Counsel's Exhibit 12. By indulging in a presumption of
regularity by the Post Office Department, I find that it was delivered to Carroll dur-
ing the morning business hours of August 27. Further, I find that such delivery
-constitutes a receipt by Respondent of the letter, regardless of whether Carroll read
it then, or later, or not at all. It is my opinion that receipt in due course of mail
of the revocation of an offer is sufficient to cancel the offer as of that time, provided
the offer has not been previously accepted and provided no enforceable promise has
been made by the offeror to continue the life of the offer until a later date. I find
that no such promise was made by the Union. Otherwise, an offeree could destroy
the effectiveness of an attempted revocation by refusing to read it after it has come
-into his possession.
The next question on this branch of the case is to ascertain whether Respondent
accepted the Union's proposition (as depicted in Respondent's Exhibit 3) before the
Union's revocation dated August 26 (General Counsel's Exhibit 12) and received
by Respondent in the morning of August 27. General Manager Carroll credibly
testified that he signed the Union's proposed agreement (Respondent's Exhibit 3)
,on the morning of August 26. But I rule that, as a matter of law, such signing alone,
without its being communicated to the Union, is inadequate to rise to the stature of
an acceptance. Hence, although this written assent preceded the effectiveness of the
Union's cancellation of its offer, it did not, without more, create a contract between
the parties.
Carroll also credibly testified that on August 26, 1964, he mailed the signed copies
,of the so-called contract (Respondent's Exhibit 3) to Company Counsel Falasz.
I find that Falasz received them in the morning of August 27. By letter dated
August 27, 1964, Falasz wrote to Respondent accepting the Union's proposed con-
tract (which is in evidence as Respondent's Exhibit 3) and enclosing with said letter
(General Counsel's Exhibit 20) seven copies signed by Respondent. This letter was
mailed by Falasz sometime before 2:30 p.m. on August 27, 1964, the time of the
earliest postmark on the envelope in which the letter and seven copies of the contract
were transmitted. I find that Respondent, which has the affirmative of proving the
proposition that a contract exists between the parties, has failed to present a fair
preponderance of evidence showing that the mailing of General Counsel's Exhibit 20
occurred before Respondent received the Union's revocation (General Counsel's
8It is true that in the conversation of August 20, Lampert said that the Union in-
sisted on the contract (Respondent's Exhibit 3) as submitted. I find this is a new
firm offer. But I further find that this firm offer was rejected by Company Counsel Falasz
in the same telephone conversation. If Falasz did not reject it then, I further find that
it was withdrawn by the Union's letter of August 21, 1964 (General Counsel's Exhibit
19), which reached Respondent before the purported acceptance of August 27, 1964.
1448 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
Exhibit 12) on the , morning, of, August 27, 1964.. In this connection , I am of the
opinion, and rule as a matter of law, that,using the mails by Respondent to submit
its-acceptance was reasonable and proper, and that the crucial time for ascertaining
when the acceptance becomes effective is the time when the Post Office Department
obtained possession of the acceptance,9 and not when the acceptance was actually
delivered to the Union by the postal authorities.
Accordingly, I find that the letter of Counsel Falasz of August 27 (General Coun-
sel's Exhibit 20) did not constitute an acceptance of the Union's proposal because
it has not been established that it came into the possession of the Post Office Depart-
ment , as agent for the Union, before the Union's revocation was received by Respond-
ent. I further find that said letter of Falasz amounts to a counteroffer by the Com-
pany. But the Union rejected this counteroffer by letter dated September 11, 1964.
(General Counsel's Exhibit 22.)
6. The refusal to meet on and after March 8, 1965
Since no collective-bargaining contract existed between the parties, I find that each
was under a statutory obligation to meet with the other at reasonable times on rea-
.sonable notice to "confer in good faith" on bargainable matters "or the negotiation
of an agreement ...." See Section 8(d) of the Act. Further I find that by telegram
to Respondent dated March 8, 1965, the Union demanded an immediate meeting for
collective-bargaining negotiations and requested Respondent to name a convenient
date for negotiations. (General Counsel's Exhibit 6.) Respondent did not reply
to this. This demand was reiterated on May 26, 1965, by a telegram (General Coun-
sel's Exhibit 7) which contained substantially the same language as that of March 8,
1965. By telegram dated May 27, 1965, Respondent replied to the Union, refusing
to meet with it on the ground that a collective-bargaining agreement had been exe-
cuted and demanding that the Union "honor and abide by" the same. (General
Counsel's Exhibit 8.) But I have already found that no such agreement was per-
fected by the parties.
Accordingly, I find that there rested on Respondent on and since March 8, 1965,
a statutory duty to meet with the Union for the purposes of collective-bargaining
negotiations, that the Union seasonably and reasonably requested Respondent to
meet for such purposes on and since March 8, 1965, and that Respondent's failure
and refusal to so meet cannot be defended on the ground that a collective-bargaining
contract has been executed by the parties. Hence I find such failure and refusal to
meet to be a violation of Section 8 (a) (5) of the Act.
On the basis of the above findings and the entire record in this case, I find that
Respondent has transgressed Section 8(a)(5), and that such conduct derivatively
also contravenes Section 8 (a) (1) of the Act.
D. Concluding findings and discussion as to the strike of October 7, 1964
Local 319 struck Respondent on October 7, 1964, and has since then 'continued
said strike. The General Counsel contends that, as alleged in his complaint (para-
graph 14(b), added by'amendment at the hearing) that said strike "was prolonged
by the unfair labor practices of Respondent in failing and refusing to meet with" the
Union since March 8, 1965. That strike was professedly commenced as an unfair
labor practice strike based on "bad faith refusal to bargain" because the Union so
characterized it in a telegram to Respondent on October 7, 1964. (See Charging
Party's Exhibit 1.) Respondent claimed the strike violated "the existing contract."
(See Respondent's Exhibit 1.) But I make no finding as to the actual motive pre-
cipitating the strike because the origin or lawfulness of the strike is not an issue
either under the complaint or the course of litigation at the trial.
But the question now is whether the failure and refusal to meet with the Union
since March 8, 1965, has prolonged the strike. As described above, such failure
and refusal have been found to be an unfair labor practice proscribed by Section
8(a)(5) of the Act. Further, I find that as a result of discussions among members
and officials of the Union a decision was reached to continue the strike until the
Company agreed to bargain with the Union and to send a telegram to the Company
to that effect. A telegram was sent on March 8 as more fully set forth elsewhere
above. (General Counsel's Exhibit 6.) I find that, on the basis of the above deci-
sion and said telegram that the Union determined to remain on strike until Respond-
ent met with Local 319 for the purposes of collective bargaining.
6I consider the Post Office Department as the Union's agent because it is fairly inferable
that the Union designated it as such agent under the circumstances of this case
F. W. MEANS & COMPANY 1449
Accordingly , I further . find that the strike , since ' March 8 , 1965 , has been pro-
longed by the failure and refusal of the Company to meet with the Union since said
March 8 , and that such conduct ( failure and refusal ) is comprehended by Section
8(a)(S) of the Act as an unfair labor practice . I treat September 14, 1964, as the
beginning of the 10(b) limitation period, for on that date Respondent first
unequivocably manifested its intent not to meet with the Union . (See letter of
Company Counsel Falasz to Union Counsel Lampert, in, evidence as General Coun-
sel's Exhibit 23.) Since the charge was filed on March 12, 1965, I consider it
timely as to the, refusal of September 14, 1964,' under, Section 10(b) of the Act.
Thus Greenville Cotton Oil Company, 92 NLRB 1033, is not pertinent. It is my
opinion, and I find, that the August 27, 1964, letter of Falasz to the Union (General
Counsel's Exhibit 20) does not display either a failure or refusal to meet with the
Union. Therefore, I find that the cause of action did not begin or accrue on
August 27, 1964.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section IV, above, occurring in connec-
tion with its operations described in section II, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
VI. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor prac-
tices prohibited by Section 8 (a) (5) and (1) of the Act, it will be recommended that
it cease and desist therefrom, and that it take specific affirmative action, as set, forth
below, designed to effectuate the policies of the Act. As I am not persuaded that
Respondent's conduct discloses an attitude of general opposition to the legislative
scheme manifested in the Act, it will be recommended only that Respondent cease
and desist from engaging in the violations found herein. See Sully-Miller Con-
tracting Company, 152 NLRB 1623. Leeding Sales Co, Inc., 155 NLRB 755, does
not dictate an opposite result.
Upon the foregoing findings of fact and the entire record in this case, I make the
following:
CONCLUSIONS OF LAW
1. Local 319 is a labor organization within the meaning of Section 2(5) of the
Act.
2. Respondent is an employer within the meaning of Sections 2(2) and 8(a),
and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
3. All employees of Respondent in its plant located at 125 East Sample Street,
South Bend, Indiana, excluding all executive, administrative, professional, and office
clerical employees, firemen-engineers, drivers, route salesmen, guards, and super-
visors as defined in the Act, constitute a unit appropriate for purposes of collective
bargaining within the meaning of Sections 9 and 8(a) (5) of the Act.
4. On May 7, 1964, and at all times material thereafter, Local 319 has repre-
sented a majority, and has been the exclusive bargaining representative, of all the
employees in the said appropriate unit for the purposes of collective bargaining
within the meaning of Sections 9 and 8(a)(5) of the Act; and Respondent was on
that date, and has been since, legally obliged to recognize and bargain with Local
319 as such exclusive bargaining representative.
5. By failing and refusing to meet with Local 319 on and since March 8, 1965,
for the purposes of conferring with respect to wages, hours, and other terms and
conditions of employment, or the negotiation of an agreement, although requested
to do so, Respondent has refused to bargain with said Local 319 and has thereby
engaged in unfair labor practices comprehended by Section 8(a)(5) and (1) of
the Act.
6. The foregoing unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
7. The foregoing unfair labor practices have prolonged the strike of Local 319
against Respondent which began on October 7, 1964.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and upon the
entire record in this case, and pursuant to Section 10(c) of the National Labor Rela-
1450 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
tions Act, as amended , I recommend that Respondent , F.. W.. Means & Company,
its officers , agents , successors , and assigns , shall:
1. Cease and desist from refusing to bargain, collectively with Local 319 as the
exclusive bargaining representative of all the employees in the aforesaid appropriate
unit. 1. 1
2. Take the following affirmative action , which I find will effectuate the policies
of the Act:
(a) Upon request , bargain collectively with Local 319 as the exclusive bargaining
representative of all employees in the aforesaid appropriate unit , and if an under-
standing is reached , embody such understanding in a signed agreement.
(b) Post at its plant at 125 East Sample Street, South Bend, Indiana, copies of the
attached notice marked "Appendix." 10 Copies of said notice, to be furnished by the
Regional Director for Region 25, shall, after being signed by a duly authorized rep-
resentative of Respondent, be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive 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 25, in writing, within 20 days from
the receipt of this Decision, what steps Respondent has taken to comply herewith."
I further recommend that unless Respondent shall, within the prescribed period,
notify the said Regional Director that it will comply, the Board issue an Order requir-
ing Respondent to take the aforesaid action.
10 If this Recommended Order is adopted by the Board , the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order " shall be substituted for the words "a Decision and Order "
n If this Recommended Order is adopted by the Board, this provision shall be modified to
read: "Notify said Regional Director , in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL, upon request , bargain collectively with Local 319, Amalgamated
Clothing Workers of America , AFL-CIO, as the collective -bargaining representa-
tive of all the employees in the bargaining unit described below with respect to
rates of pay , wages, hours of employment , and other conditions of employment,
and if an understanding is reached , embody such an understanding in a signed
agreement.
The bargaining unit is:
All employees of the Company in its plant located at 125 East Sample
Street , South Bend , Indiana, excluding all executive , administrative, pro-
fessional , and office clerical employees , firemen -engineers, drivers, route
salesmen , guards, and supervisors as defined in the Act.
F. W. MEANS & COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board's Regional Office, 614
ISTA Center, 150 West Market Street , Indianapolis , Indiana, Telephone No. 633-
8921.