Farrel Rochester Division of USM Corporation

National Labor Relations Board - Board Decisions

Jun 30, 1981

256 N.L.R.B. 996 (N.L.R.B. 1981)

996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Farrel Rochester Division of USM Corporation and
Leslie J. Andrews, Petitioner and International
Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America. Case
3-RD-654
June 30, 1981
DECISION ON REVIEW AND ORDER
On September 26, 1980, the Acting Regional Di-
rector for Region 3 issued a Decision and Direc-
tion of Election in the above-entitled proceeding in
which he directed a decertification election in the
unit of production and maintenance employees rep-
resented by the Union. Thereafter, in accordance
with Section 102.67 of the National Labor Rela-
tions Board Rules and Regulations, Series 8, as
amended, the Union filed a timely request for
review of the Acting Regional Director's decision
contending that in finding that its recently negotiat-
ed agreement with the Employer did not operate as
a bar to the petition, he departed from precedent.
The election was conducted as scheduled on Octo-
ber 24, 1980, and the ballots were impounded pend-
ing resolution by the Board of the Union's request
for review. By telegraphic order dated October 30,
1980, the National Labor Relations Board granted
the request for review. Thereafter the Union and
the Employer filed briefs on review.
The Board has considered the entire record in
this proceeding with respect to the issue under
review, including the briefs on review, and makes
the following findings:
The Employer is engaged in the manufacture of
heavy equipment at a facility located in Rochester,
New York. The Union was certified as the collec-
tive-bargaining representative of the employees in-
volved herein on February 6, 1979.'
The Employer and the Union commenced con-
tract negotiations in April. By autumn, the parties
neared agreement and the pace of the negotiations
accelerated. On November 15, the parties reached
a tentative agreements and signed a settlement
memorandum setting forth the substance of their
agreement and incorporating various other provi-
sions previously agreed to during the course of the
negotiations. 3 The Employer prepared a detailed
summary of the agreement which was distributed
to unit employees.
On November 18, the unit employees voted not
to ratify the agreement. The Union so informed the
All dates are for 1979 unless otherwise indicated.
2 This agreement was tentative in that its effectiveness was conditioned
upon ratification of its terms by the unit employees.
3 The terms of the other provisions ere set out in "sign-off sheets"
which were drafted, signed, and dated by the parties during their negotia-
tions as they reached agreement on the language of1' a particular conllract
term.
256 NLRB No. 162
Employer and requested a resumption of negotia-
tions. The Employer agreed with the proviso that a
mediator be present at the next meeting. The Union
acceded to this condition and the parties scheduled
a meeting for November 21.
The parties convened on November 21 as sched-
uled. Also present was Milton Goldberg, director
of the New York State Mediation Service. At the
start of the session Kenneth Irish, one of the Em-
ployer's negotiators, asked the Union to identify
the problem areas that had caused the employees to
reject the agreement. The union negotiators attrib-
uted the rejection to the absence of a paid absence
program (PAP) 4 and the failure to include a cost-
of-living adjustment (COLA). The Union also in-
formed the Employer that its membership had au-
thorized a strike for the following Monday, No-
vember 26, if no contract had been reached by that
date. Irish then stated that the offer accepted on
November 15 constituted the Employer's final offer
and that it did not intend to engage in substantial
renegotiations at that juncture. Goldberg interject-
ed to ask if the Employer would be amenable to
making adjustments in the contract if no additional
costs were involved. Irish replied that such an ar-
rangement might be acceptable. The mediator then
separated the parties and met with the union nego-
tiators.
According to Henry Cappellino, a member of
the union negotiating committee, during these dis-
cussions one of the union negotiators suggested
adding a revised PAP to the contract, providing
that an employee would earn 4 hours paid leave
for every 200 consecutive hours worked. After
completing his discussions with the Union's repre-
sentatives, the mediator met with the Employer's
negotiators.
According to Irish's testimony, when Goldberg
met with the Employer's bargaining team he indi-
cated that the main problem appeared to be the ab-
sence of a PAP in the proposed contract, and he
then suggested adding the revised PAP and a
COLA to the agreement. The mediator's proposal
caught the Employer's negotiators by surprise and
they raised a number of questions relating to the
operation of the proposed PAP. In particular, they
wanted to clarify the term "consecutive hours" and
they asked Goldberg to define that term. Goldberg
replied that it meant "all hours that an employee
was scheduled to work." The Employer's negotia-
tors pressed Goldberg on this point and asked if
4 PAP referred to a program instituted by the Employer prior to the
Uliloli's certification to counter a increasing rate of e-mplo ee absentee-
ism Under thlat program, an emplosee earned a personal da oftf with
pay if he or she workcd 9( ceonsecutive davs wsith perfect attendance.
Ptrior It Nvemb er 15. tIhe n ploer had dscntinued this program
FARREIL ROCHESTER DIVISION OF USM CORPORATION 997
this definition included overtime; he replied that it
did. 5
After listening to Goldberg's suggestions, the
Employer's negotiators indicated a willingness to
add a PAP and COLA to the contract if other
benefits were reduced to offset the increased costs
of adding those provisions. They then asked the
mediator to leave the room. Roderick Fox, man-
ager of employee relations, proceeded to contact
the Employer's general manager and explain the
situation, including the possibility of a strike. The
general manager, after listening to Fox's account of
the negotiations, indicated that so long as the in-
creased costs could be offset by reductions in other
areas, he would have no problem with a revised
agreement encompassing Goldberg's suggestions.
The Employer's negotiators then recalled Goldberg
and accepted his proposal on the condition that the
Union agree to a reduction in certain other bene-
fits. The mediator agreed to present this counter-
proposal to the Union. Approximately a half-hour
later, Irish received a call from Goldberg who sug-
gested that the parties reconvene.
Although there is a conflict in the testimony
concerning what transpired after the parties recon-
vened, there is substantial agreement on a number
of points. When the parties reassembled they dis-
cussed the proposal to add a COLA and PAP to
the November 15 agreement. Furthermore, Irish
and Cappellino both agree that the parties dis-
cussed in considerable detail the matter of whether
the definition of consecutive hours in the PAP in-
cluded overtime.6 At the close of the discussions,
Irish drafted and the parties signed a memorandum
of agreement embodying their understanding. This
handwritten memorandum of agreement incorpo-
rated the terms of the November 15 agreement and
added four provisions: (1) a clause decreasing a
wage increase for the second year of the agreement
from 8 percent to 7 percent;7 (2) a clause adding a
b Irish testified that the Employer had previously negotiated a manda-
tory overtime clause which it deemed to be vecry important. In question-
ing Goldberg about the specifics of the proposed PAP, the Employer's
negotiators wanted to make sure that the PAP's provisions would not
tend to undercut the mandatory overtime provision. In the Employer's
view, a definition of consecutive hours that did not include overtime
would have had the effect of undermining the effectiveness of the manda-
tory overtime provision
6 However, their accounts concerning the substance of those discus-
sions conflict. Cappellino testified that parties agreed to maintain the defi-
nitions that existed under the original PAP. In the original PAP, perfect
attendance was defined as "[eJach scheduled -hour work day where an
employee is present for the entire shift " There is nothing in the original
PAP that indicates that a refusal to work overtime breaks an employee's
chain of consecutive hours worked anti the original provision was appar-
ently so interpreted by the parties On the other hand. Irish testified that
the Employer made it clear that coinsecutise hours in the new PAP
would be defined to include scheduled overtime and that the fUnion ac-
quiesced to this interpretation
7 The agreement provided that its terms would he in effect for 2 ears
from November 12. 1979. to November I I, 1981
cost-of-living adjustment to employee wage rates;
(3) a clause adding a PAP;8 and (4) a clause delet-
ing two employee holidays from the second year of
the contract. The parties also signed a second doc-
ument provided by Goldberg acknowledging that
they had reached a tentative agreement subject to
the ratification of the unit employees.9 Near the
close of the session Irish indicated that he would
compile a formal contract document encompassing
the numerous provisions that comprised the com-
plete agreement and submit it for the Union's sig-
nature. Later that day the unit employees ratified
the agreement.
On the following Monday, November 26, the
Employer put into effect the new wage rates and
various changes in employee fringe benefits and
pension programs as spelled out in the agreement.
It also prepared to implement the PAP which was
to go into effect on December 1. However, early in
December, not long after the Employer began to
implement the PAP, a dispute arose over the ad-
ministration of that program. This dispute involved
the issue of whether an employee's failure to work
scheduled overtime constituted a break in that em-
ployee's chain of consecutive hours worked. The
Employer maintained that a failure to work sched-
uled overtime constituted a break in an employee's
chain of consecutive hours; several of the employ-
ees affected by that ruling filed grievances chal-
lenging the Employer's interpretation and the
Union backed the employees.
In an attempt to settle this dispute, representa-
tives of the Employer and the Union met on De-
cember 13. Mediator Goldberg also attended this
meeting. However, after engaging in lengthy dis-
cussions the parties were unable to resolve their
differences. At a point near the close of this ses-
sion, when it had become apparent that the parties
had not been able to resolve the dispute, Irish
stated: "Well if you have any problems in the way
it is being handled, I will give you the right to
grieve on this, which you have the right anyway."
Later that week, on or about December 18, the
Union filed another grievance challenging the Em-
ployer's interpretation of consecutive hours. °
' The revised PAP in the November 21 memorandum of agreement
pros ides
3 Effective December 1, 179, a Personal Day Paid Absence Pro-
gram onl the basis of 1/2 day earned absence for each 200 consecu-
tive hours worked during each year of the agreement. Such earned
time may he taken in pas or time off with one day allowed to car-
ried over to the next year
, As roted abole. the ageement reached on No.ember 15 had also
pro'ided that the contract as to hecome effectrle upon ratification of
its terms hby the unit employees
"' I)uring December the Emplos er and the Union also worked out the
specific, of the union-security and dues-checkoff provisolms In the No-
(ontinued
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In early January 1980, the Employer sent the
Union a proposed draft of the complete contract
and about 2 weeks later the parties assembled to
discuss this proposed draft. The Union objected to
the draft, contending that it did not include details
of the pension and health insurance plans, did not
mention certain preexisting corporatewide benefit
programs, and failed to incorporate an ageement
reached by the parties regarding free parking for
employees. In addition, the Union objected to the
provision that spelled out the Employer's obliga-
tion to supply employees with safety glasses. Final-
ly, it objected to the PAP, claiming that the Em-
ployer's draft added terms to that provision that
went beyond what was agreed upon in the Novem-
ber 21 agreement. Specifically, the Union objected
to the Employer's insertion of a definition of con-
secutive hours that included scheduled overtime.
After this discussion Irish revised the comprehen-
sive agreement and submitted to the Union for its
approval a revised draft which was signed by the
Employer's officials. The Union, however, refused
to sign the revised draft, continuing to claim that
several of its provisions varied from the terms
agreed upon during negotiations. On February 13,
1980, Union Negotiating Committee Member
Massie Washington sent Fox proposed language for
a PAP clause," but the Employer rejected this
language.
The next meeting between the parties occured
on April 2, 1980. Fox asked the Union to identify
the objectionable items in the revised comprehen-
sive draft. The union negotiators listed five prob-
lem provisions: (1) the employee free parking pro-
vision; (2) the safety glasses provision; (3) the vaca-
tion pay provision; (4) the bulletin board posting
provision; and (5) the definition of consecutive
hours in the PAP provision. After some discussion,
the parties resolved the problems over the vacation
pay and safety glasses provision. Eventually, how-
ever, the parties stalemated over the definition of
consecutive hours in the PAP and the meeting
broke up. Either at the close of the meeting or ap-
proximately a week later, a member of the Union's
bargaining committee contacted Fox and agreed to
accept the Employer's formulation on all remaining
issues if the Employer would agree to accept the
Union's definition of consecutive hours in the
PAP. 2 The Employer rejected this proposal.
vember 21 agreement the parties agreed in general terms to those provi-
sions leaving the details to be worked out at a later date.
"i Washington's proposal specifically provided that a refusal to work
overtime would not constitute a break in an employee's consecutive
hours worked.
12 There is a conflict in the record as to when this offer was actually
made, however, the testimony is consistent that such an offer was made
by the Union in early April 1980. Fox testified that at the close of the
April 2 meeting Cappellino told him that the Union would not sign the
On April 22, 1980, the Union filed a charge al-
leging that the Employer violated Section 8(a)(5)
of the Act by refusing to reduce to writing and ex-
ecute a contract containing the terms agreed to in
the negotiations.' 3 The Petitioner filed the instant
petition to decertify the Union on May 1, 1980. By
letter dated June 6, 1980, the Regional Director
dismissed the unfair labor practice charge filed by
the Union on the ground that the investigation did
not reveal that the parties had a meeting of the
minds with respect to the detailed provisions of the
PAP and, therefore, there did not appear to be
agreement to all the terms of a contract. This de-
termination was subsequently sustained on appeal
to the General Counsel. Thereafter, the parties
continued their discussions, meeting on July 14 and
17, 1980, and exchanging proposals in July and
August 1980. The hearing in this proceeding was
held on August 28, 1980. At that time, Fox indicat-
ed that an arbitration over the Employer's defini-
tion of consecutive hours under the PAP was
scheduled to be held on September 30, 1980. He
also testified that those provisions of the contract
previously put into effect had remained in effect
and that the Employer had continued to process
grievances throughout the period from the date of
the contract's ratification to the date of the hear-
ing.
In concluding that there was no existing contract
that would bar the instant petition, the Acting Re-
gional Director found that, although the parties
may have reached substantial agreement on No-
vember 21, a substantial agreement is not a final
agreement and a partial contract will not serve to
bar an election.' 4 Furthermore, the Acting Region-
al Director noted that the Board has not found a
contract bar to exist in instances where the parties
continued to negotiate after the agreement raised as
a bar has been executed.15 Acting Regional Direc-
tor concluded that the November 21 document did
not represent the parties' final agreement and,
therefore, could not be considered an effective col-
lective-bargaining agreement that barred the instant
petition. The Employer contends that the Acting
Regional Director correctly determined that the
Employer and the Union never reached a complete
contract even if the parties resolved their dispute over the definition of
consecutive hours. Cappellino denied having made the statement, claim-
ing, instead, that on the occasion in question he offered on behalf of the
Union to drop its demands on the remaining points if the Employer ac-
cepted the Union's definition of consecutive hours. Fox conceded that
about a week after the April 2 meeting the Union informed him that the
Employer's position on all remaining issues, with the exception of the
PAP, was acceptable.
13 Case 3-CA-9744.
14 Citing Fort Tryon Nursing Home, 223 NLRB 769 (1976), and The
Permanente Medical Group, 187 NL RB 1033 (1971).
i5 Id.
FARREL ROCHESTER DIVISION OF USM CORPORATION 999
meeting of the minds on the details of the PAP.
The Employer also argues that the only contro-
verted issue of fact brought out at the hearing, in-
volving the terms of that PAP, underscores the
Acting Regional Director's finding that there was a
failure to reach a mutual understanding concerning
the details of that provision. Contrary to the Em-
ployer, the Union asserts that the November 21
agreement constitutes a signed contract covering
substantial terms and conditions of employment
and thus is a bar to the instant petition. We find
merit in the Union's position.
In order for an agreement to serve as a bar to an
election, the Board's well-established contract-bar
rules require that such agreement satisfy certain
formal and substantive requirements. The agree-
ment must be signed by the parties prior to the
filing of the petition that it would bar and it must
contain substantial terms and conditions of employ-
ment sufficient to stabilize the parties' bargaining
relationship. Appalachian Shale Products Co., 121
NLRB 1160 (1958). The agreement, however, need
not be embodied in a formal document. An infor-
mal document which nonetheless contains substan-
tial terms and conditions of employment is suffi-
cient if it satisfies the other contract-bar require-
ments. 1 6
In Gaylord Broadcasting'l the Board considered
the applicability of its contract-bar rules to a fact
pattern that parallels the instant case in many re-
spects. There, an informal agreement raised as a
bar to a decertification petition was initialed by the
employer and the union on the date they complet-
ed their negotiations, August 23, 1978. Shortly
thereafter the employees ratified the agreement and
the employer began implementing its provisions.
Later, when the employer and the union met to re-
organize and assemble the provisions making up
the agreement, they discovered that they had omit-
ted certain previously agreed-upon provisions from
the pages initialed on August 23, and they added
those provisions to the agreement. Also, when it
was discovered that the contract language relating
to employee vacations was awkward to apply, the
employer and the union during the next several
months engaged in negotiations over a proposed
change and they finally reached agreement on re-
vised language in late April 1979, which the em-
ployees ratified. Thereafter, the parties scheduled a
session for the formal execution of their agreement,
but before that process could be completed the de-
certification petition was filed. The Board there
i6 Georgia Purchasing Inc., 230 NLRB 1174 (1977); The Bendix Corpo-
ration, Process Instruments Division, 210 NLRB 1020 (1974) and .4ppala-
chian Shale Products Co., supra at 1162.
17 Gaylord Broadcasting Co d/b/a Television Station WiU'7, 250 NLRB
198 (1980).
held that the agreement reached on August 23 was
sufficient to operate as a bar to the petition. The
Board noted that it was a signed agreement-albeit
by initialing-covering substantial terms and condi-
tions of employment and was intended to be a final
and binding agreement. The Board further ob-
served that the negotiations which took place after
August 23, and the minor amendments made to the
agreement after that date, did "not indicate that the
agreement lacked finality or that its terms were in-
sufficient to govern the parties' relationship." (Id.
at 199.)
Here, the Employer and the Union affixed their
signatures to the November 21 memorandum of
agreement alleged as a bar to the instant petition,
and it is clear that that agreement, together with
the initialed documents which were incorporated
by reference, covered substantial terms and condi-
tions of employment, sufficient, in our opinion, to
stabilize the bargaining relationship. 18 The parties
scheduled no further negotiations after November
21 and, after receiving notice thatthe employees
had ratified the agreement, the Employer immedi-
ately began to implement its provisions. It is clear,
therefore, that when the November 21 agreement
was signed and ratified it was intended to be final
and binding. 19 The grievance provisions in the No-
vember agreement provided a means by which the
contracting parties could resolve their differences
concerning application of its terms, indeed, those
provisions have been resorted to on several occa-
sions to resolve successfully a number of disputes
involving contract interpretation or administra-
tion. 2 0 Thus, when the dispute over the proper im-
'I The Acting Regional Director noted that the parties agreed only in
general terms to a union-security clause and dues-checkoff provision on
November 21, leaving the language of those provisions to be worked out
at a later date. The Employer contends that this provides an additional
reason for finding that the November 21 agreement did not achieve bar
quality. We do not agree. Although the Board has held that certain
agreements are insufficient to serve as bar (contract limited only to wages
or benefits not sufficient, J. P. Sand and Gravel Company, supra; contract
substantially altered or abandoned not sufficient, Austin Power Company,
201 NLRB 566 (1973)), the Board does not require that an agreement de-
lineate completely every, single one of its provisions in order to qualify as
a bar. See Stur-Dee Health Products, Inc. and Biorganic Brandr Inc.. 248
NLRB 1100 (1980); Levi Strauss & Co., 218 NLRB 625 (1975); and Spar-
tan Aircraft Company, 98 NLRB 73 (1952). What is required is that the
agreement in question contain substantial terms and conditions of employ-
ment sufficient to stabilize the parties' bargaining relationship. The No-
vember 21 agreement satisfies that requirement
IQ At no time did the contracting parties condition the finality or effec-
tiveness of the agreement upon the signing of the formal contract to be
prepared.
20 In I'sitainer Corp., 237 NLRB 257 (1978), the issue presented was
whether the parties there had abandoned their agreement so as to remove
its effectiveness as a bar In finding that the contract had not been aban-
doned and remained effective as a bar, the Board noted not only that
there had been compliance with many of the contract's terms and sub-
stantial compliance with others, but also that any breaches could be the
subject (of the grievance procedures which the union had successfully
used before Cf J P Sand and Gravel Company. 222 NLRB 83 (1976).
1000 DECISIONS OF NATIONAL LABOR RELATIONS H()ARD
plementation of the PAP arose, the Employer indi-
cated that under the contract the Union had the
right to file a grievance over the matter. The
Union proceeded to file such a grievance and it
was processed through Step 4. Step 5 is arbitration
and was scheduled to take place about a month
after the hearing held herein. Whether or not arbi-
tration occurred as scheduled, it is clear that dis-
putes of this nature are resolvable either through
the contractual grievance procedure or through ne-
gotiations. Though not dispositive, we note that the
Union has attempted to resolve the dispute over
the proper implementation of PAP through both
means. We conclude that the November 21 agree-
ment operates as a bar to the instant petition.2 '
Accordingly, we shall dismiss the petition.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
MEMBER JENKINS, dissenting:
This case involves the application of our long-
standing requirement that to constitute a bar to an
election a contract must embody agreement on sub-
stantial terms and conditions of employment so as
"to chart with adequate precision the course of the
bargaining relationship, and [so that] the parties
can look to the actual terms and conditions of their
contract for guidance in their day-to-day prob-
lems." Appalachian Shale Products Co., 121 NLRB
1160, 1163 (1958). Agreement on the necessary
terms and conditions, of course, means final agree-
ment and not merely "substantial agreement." Fort
2 The cases cited by the Acting Regional Director o support his con-
trary conclusion are distinguishable. In 1ort Tryon Nursing lHome, supra.
the parties never signed an agreement which at the time of its execution
was understood and intended by the parties to be a final and binding
agreement. Also, in that case, the union, which was the party that was
contending that the agreement in question achieved bar quality, had dis-
tributed a leaflet to its unit members 2 days after the petition was filed
claiming in effect that there was no final agreement because the negotia-
tion process had not been completed. In The Permanente Medical Group,
supra, the parties had not completed their negotiations at the time the pe-
titions were filed, and there was no evidence that a signed agreement ex-
isted at that time.
The dismissal by the General Counsel of the refusal to bargain charges
filed by the Union, relating to the negotiations centering on the dispute as
to the proper interpretation of the PAP provisions of the November
agreement, in no way is binding on the Board on the issue of whether the
November 21 agreement bars the instant petition.
Tryon Nursing Home, 223 NLRB 769, 771 (1976).
Thus, an informal, signed document may constitute
a contract bar, but only if it is clear that the parties
intend it to be a final agreement.
Here, it may be arguable that, as the majority
finds, the parties thought on November 21, 1979,
that they had a final agreement. By December
1979, however, a dispute had surfaced over what
precisely had been agreed on with respect to the
paid obsence program (PAP), and in the ensuing
months it became clear that the parties did not
have a complete, mutually understood agreement.
Therefore they resumed negotiations and their dif-
ferences remained unresolved at the time the in-
stant petition was filed. 22 Unlike the situation in
Gaylord Broadcasting,2 3 the parties were still apart
on significant matters and acted inconsistently with
a mutual understanding that they had a final agree-
ment. 24 I am not impressed with the majority's
speculation that the dispute over PAP could be re-
solved through the grievance procedure. It might
or might not be resolvable that way. But it certain-
ly had not been resolved at the time the petition
was filed, nor had the parties agreed that the dis-
pute was merely one of interpretation of a fully-ne-
gotiated agreement. 2 5 This live dispute, over an
issue that was a matter of great concern to both
parties and that apparently arose with great fre-
quency, left the parties "in a continuous state of
uncertainty . . . with the direct consequence of
rendering the contract incapable of providing the
stability contemplated by the Act." Appalachian
Shale, supra.
I would affirm the Acting Regional Director's
finding that no contract bar exists and proceed
with the election.
22 Cf Georgia Purchusing. Inc. 230 NI.RB 1174, 1175 (1977): he Pr-
manente Medical Group, 187 NLRB 1033, 1034 1971)
21 Gaylord Broadca.sting Co. d/b/a lleviion Salion Il, 2 50 NLRH
198 (198().
2 The fact that certain provisions on hich agreement has been
reached are put into effect while negotiations continue does not, of
course, convert a tentative agreement into a final one
23 iainer Corp., 237 NI.RB 257 (1978), is inapposite There, the
issue was whether the employer's noncompliance vwith the contract had
reached the point where the contract had been abandoned Availability
and use of the grievance procedure 'was deemed evidence of the con-
tract's continued iability No one had questioned the existence of a com-
plete contract