Fisk University

National Labor Relations Board - Board Decisions

Aug 25, 1978

237 N.L.R.B. 1164 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELA'IIONS BOARD
The Fisk University and local 19-A. Distributive
Workers of America. Case 26 CA 6839
August 25, 1978
DECISION AND ORDE)R
By C(i IR1RMAN FANNING AN[) Mi HIRKS J11 NKINS
AND) M RP'iiY
On May 15, 1978, Administrative law Judge Nan-
cy M. Sherman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Iaw ,Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National l.abor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent. The Fisk .;niversits,
Nashville, Tennessee. its officers, agents. successors,
and assigns, shall take the action set forth in the said
recommended Order.
DECISION
SIAIEMENI ()1O 11t CASt
NAN(C M SHeRNIAN, Administrative L.aw Judge: This
case was heard at Nashville, Tennessee. on December 8
and 9, 1977, pursuant to a charge filed on August 26. 1977,
and a complaint issued on September 30. 1977. The ques-
tion presented is whether The Fisk University (Respondent
or the University) refused to sign a written agreement em-
bodying the terms of its agreement with Local 19-A, Dis-
tributive Workers of America (the Union), in violation of
Section 8(a)(5) and (1}) of the National Labor Relations
Act, as amended (the Act).
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed bv
Respondent and by counsel for the General Counsel. I
make the following:
FiN)iN(,S (): FA('I
I JURISD)I( I[ON
Respondent is a Tennessee corporation with an office
and place of business in Nashville, Tennessee, where it op-
erates a private educational institution. During the year
preceding the issuance of the complaint, Respondent re-
ceived gross revenues exceeding $1 million and purchased
goods valued at more than $10,000() directly from points
located outside Tennessee. I find that, as Respondent con-
cedes. it is engaged in commerce within the meaning of the
Act, and that assertion of jurisdiction over its operations
will effectuate the policies of the Act.
The Lnlion is a labor organization within the meaning of
the Act.
11 I tl AlIII(it) 1 NI: IR lABOR PRA('TIl(tS
A. Back ground
Since about 1971, the Union has been the recognized
bargaining representative of an admittedly appropriate
unit. specifically described in Conclusion of Law 3, which
consists essentially of Respondent's clerical, fiscal, and
technical employees. On July 1. 1973. the parties executed
a written collective-bargaining agreement effective by its
terms until June 30). 1974. "and it shall automatically be
renewed from year to year thereafter. unless notification be
given in writing by either party to the other, by Registered
Mail, at least sixt 1(60) davs prior to the expiration of this
Agreement. that changes in the Agreement are desired."
Attorney C'arlton Petway, who has been Respondent's gen-
eral counsel at all times relevant here, was a part of the
negotiating committee which negotiated the contract on
Respondent's behalf, I[his agreement was signed, on Re-
spondent's behalf, by Harrison Wilson, who was then the
executive assistant to Respondent's president; by Shirley
Carpenter, who was then Respondent's director of person-
nel; by Paul King, who was then Respondent's controller;
and by C'linton S. Jones, who at all relevant times has been
the director of Respondent's computer center. All these
signatories had participated in the negotiations on the con-
tract. James R. l.awson, who was then Respondent's presi-
dent, did not sign this document, and there is no evidence
that it was signed b, any member of Respondent's board
of trustees. On an undisclosed date after the contract was
signed. it was printed up for the employees.
About April 1974. the Union and Respondent each ad-
vised the other that it wanted to make changes in the con-
tract. During ensuing negotiations, Respondent was repre-
sented by Attorney Petway and, inferentially, others,
including Personnel Director Carpenter. Later in 1974, the
Union and Respondent agreed that "everything would re-
main as it was," except that the 40-hour workweek called
for bs the 1973 contract would be reduced by 2 hours. This
change was ratified at a union meeting conducted for that
purpose. After this change was agreed to, no further con-
tract negotiations took place in 1974.' Respondent sent the
I this finding is based on the testimronx of Mall I or:n. unron, prresidcn
front 1971 73 and in 1975. l ir demeanoir reason., I do noli accept
Carpenter's rather vague Itstilniln suggesting thlerl ise
237 NLRB No. 183
1164
rit. FISK UNIVERSITY
Union a "letter of approval" which undertook to effect this
hours reduction and which also named two employees to
be added to an appendix to the printed 1973 contract,
which is headed "Schedule A." and which lists the name.
classification, original employment date. and salar) of each
employee in the unit. The letter did not request a signature
from the Union or dictate a response from the Union. and
no such signature or reply was forthcoming. The reduced
38-hour workweek was put into effect. Otherwise, Respon-
dent continued to observe the conditions of employment
set forth in the 1973 contract.
About April 1975. the Union sent a letter to Respondent
asking for a renegotiation of the contract, meaning the
"1974 agreement." During negotiations, which began
about April or May 1975, the parties agreed that "ev-
erything . . would remain as it was," except that Respon-
dent would increase to 12 percent of payroll its pavyment
into the "Security Fund" (that is. the pension fund) as
compared to the 11-1/2 percent of total wages specified in
the 1973 contract and paid thereafter until 1975. This
change was ratified at a union meeting conducted for that
purpose. After this change was agreed to, no further con-
tract negotiations took place in 1975 (see .supra, fn. 1). Re-
spondent sent the Union a letter regarding the agreed-upon
increase in "Security Fund" payments. and in fact made
the increased payments. Respondent also continued to ob-
serve the 38-hour week agreed to in 1974. In all other re-
spects, Respondent continued to observe the conditions set
forth in the 1973 contract. During the 1975 negotiations,
Respondent was represented by Attornev Petwas. Person-
nel Director Carpenter, Dr. Theodore S. Syvkes (the head of
Respondent's mathematics department), and perhaps
others.
At all times between 1973 and the beginning of the 1976
negotiations, the 1973 contract was the only complete con-
tract executed by the parties. Laying to one side the 1974
"letter of approval" regarding the 38-hour week and the
1975 letter regarding increases in Security Fund payments,
the parties never executed an agreement which incorporat-
ed such agreed-upon changes. Nor is there any evidence
that before the 1976 negotiations. either party ever pro-
posed the execution of any documents apart from the 1973
agreement.
B. The 1976 Negotiations
In April 1976, the Union sent a letter to Respondent
stating that it wished to renegotiate the current agreement.
In May 1976, the Union signed. and forwarded to the Fed-
eral Mediation and Conciliation Service, an FMCS form
with the printed statement, "You are hereby notified that
written notice of the proposed termination or modification
of the existing bargaining contract was served upon the
other part) to this contract and that no agreement has been
reached." The form called for, inter alia, "Name of em-
ployer" and "Contract expiration or reopening date." The
M)\ findling ;i to the l)ecembher I date is haed on Ford's and l oran 's
testime on, and FIord', colntetltpor.ineoii notes I hehlieve Pet.' i, was mlstak-
Union inserted in the appropriate blanks "Fisk University"
and "June 3). 1976."
The parties conducted several negotiating sessions be-
tween Mas and November 1976. Company Attorney Pet-
way testified that the persons on Respondent's negotiating
committee were himself. Michael Zavelle (King's successor
as controller, and Respondent's vice president for financial
affairs). Personnel Director C'arpenter, Computer Center
Director (linton S. Jones. Dr. Sykes, and Krishmamath
I)eshpande. who is coordinator of advanced institutional
programs and a professor of chemistry. Dr. Sykes had been
requested to sere on the committee by Personnel Director
Carpenter and bv Dr. Rutherford Adkins. who was then
acting as interim president. Deshpande had been named to
the committee b! Dr. George Core, Dr. Adkins' successor
as acting interim president. Zavelle. who was Respondent's
principal fiscal and operating officer, attended about two
negotiating sessions.
At the bargaining session on October 28, 1976, the
Union asked for a provision giving cash equivalency for
unused sick leave to employees who left Respondent's em-
ploy. paid time off to vote, a 3-hour reduction in the work-
week to 35 hours, some additional holidays, a change
(unexplained in the record) regarding payroll deductions.
and a 10-percent or cost-of-living wage increase. Petway
said that because the University was operating at a deficit
and the wsorkteek lsas already shorter than the workweek
of employees at other universities in the area, Respondent
could not give a 35-hour week. Petway further said that
payroll deductions would remain the same. Petway pro-
posed an increase in Respondent's Security Plan contribu-
tions from the existing 12 percent of payroll to 12-1/2 per-
cent of payroll. paid time off for voting, and a stipulation
for reopening the wage part of the contract should funds
become available. Petway further said that Controller Za-
velle. who was not present. had said that he thought he
would be able to give a 3-percent wage increase to begin on
December 1. 1976. and a 2-percent increase to begin on
Jul, 1. 1977.2 Petsway further said that Respondent would
renegotiate wages if money became available. The Union
said that it would have to take this proposal back to the
membership before deciding.
On November 17, the employees in the unit voted to
accept this proposal. At the November 18 negotiating ses-
sion. the Union advised Respondent that the membership
had agreed to Petwav's October 28 proposal and the Union
was willing to accept it. but asked for a written memoriali-
zation of the October 28 oral assurance that wages would
be renegotiated if more money became available. Petway
agreed that such a letter would be provided.3) The Union
en in tetfifs ilI thi Jdurinlg tiil, meetlng Respolndent proposed a laler effer-
t'.e d.itc and the I nln prlop,,ed I)eemher I In an) eent. Pelas tLestil-
fled thiat 7liellc l.lier d fhe s.ls "a3ienliabhle to the D)ecenher I date
Ms1 flnllnc 1is to. the date of Petva'x \ acreemenl io provide such a letter
i hbased on the e t stint , Ihen It nln President tl ran, then inion Vice
Prescident J.iannin I ord anl I)r Sskes I think Petway was mistaken in
attiaching i Jul, 1977 date ti his unidertaking to pros ide . letter. 11 is unde-
inld Ihat Pclit rl.l n ic this Octobler IS a:surance regarding vage renegotia-
lio i id tlh;it the suhstince of this as:lural ce . :al s acceptahle to the tnionl
i\s nolted intr,t. Pctwlas did pri\idc such a letter in Juls 1977,
1165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offered to type up the contract, but Petway said that he
would have it done and would get back to the Union. Re-
spondent and/or the Union wanted the attachment of an
up-to-date Schedule A-setting forth the name, job classi-
fication, original employment date, and salary of each em-
ployee in the bargaining unit-to the document which was
to be typed up. Some unit employees were filing unit posi-
tions (business accounting clerks in the office of the vice
president for finance) which had not been in existence in
1973. The parties agreed that Carpenter would work up job
classification titles for these new jobs, and that if the titles
were agreeable to the Union, they would be inserted in the
new Schedule A after the appropriate employees' names.
The parties agreed that the contract would run until June
30, 1978.
Respondent's representatives at the November 18 bar-
gaining conference included Petway, Carpenter. Desh-
pande, and Dr. Sykes. All of them testified that, as of the
close of that meeting, all issues between the parties had
been resolved and no proposals from either party were on
the table. Similar testimony was given by then Union Presi-
dent Toran, then Union Vice President Ford, and then
Shop Stewards Margaret Britt and Mildred Phillips, all of
whom represented the Union at the November 18 meeting.
Petway testified that the University subsequently put into
effect all the University proposals which the Union had
said it would accept at that meeting.
Petway testified that it was his recollection that at this
November 18 meeting, when the Union said that the mem-
bership had agreed to his October 28 proposal, he said that
Respondent's negotiating committee would "recommend
this settlement to the University." No witness directly cor-
roborated Petway's testimony in this respect, and it is diffi-
cult to reconcile with the testimony of Ford, an impressive
witness, that on November 18 "Mr. Petway let us know
that we would receive our money, and that he would have
his secretary to type up the contract." Indeed, when Ford
asked Petway on cross-examination. "Did you not tell me
. . .that you would have your secretary type up and make
the changes and then we would sign the contract?" he re-
plied, "Right," and went on to testify that Ford and Car-
penter were to get together about the new job classification
titles and then he would have his secretary type it up for
Ford's approval as to typographical accuracy and to see
that the changes coincided with what the parties had
agreed on. I need not and do not determine whether Pet-
way said he would recommend the settlement to the Uni-
versity, in view of credible testimony by Respondent's wit-
nesses that the University administration did in fact
approve the agreement reached between Respondent's ne-
gotiating committee and the union negotiating committee.
Thus, then Personnel Director Carpenter credibly testified
that Interim University President Gore and/or Vice Presi-
dent for Financial Affairs Zavelle discussed with her (and
probably other members of Respondent's negotiating com-
mittee) the wage raises and increased Security Fund pay-
ments, that Zavelle approved the new business office job
descriptions to be included in the revised Schedule A, and
that everything she saw in General Counsel's Exhibit 4
(which memorialized the agreement between Respondent's
committee and the union negotiating committee, see infra)
had been approved by Gore and Zavelle. Moreover, Dr.
Ieonard. who became University president in June 1977
when Dr. Gore relinquished his interim presidency, testi-
fied that the University's board of trustees had authorized
I)r. Gore and Zavelle to enter into an agreement with the
Union, and that the University negotiators had been au-
thorized to agree to the December 1976 and July 1977 in-
creases. Similarly, University Vice President for Adminis-
tration Sherman Jones testified that until May 30, 1977, the
University's president (Gore) and its vice president for fi-
nance (Zavelle) had the authority to make contracts. Fur-
thermore. University General Counsel Petway testified that
as of November 18, 1976. he had authority, on behalf of
the University. to agree to all his October 28 proposals
which the Union had accepted on November 18, except
wages; and that between November 18, and December 1,
1976, Zavelle approved the December I, 1976, 3-percent
pay raise: the July 1, 1977, 2-percent pay raise; and
Petway's "dollars and cents" proposals.
C. EL,ents After the November 18 Meeting
On December 1, 1976, every employee in the unit re-
ceived the 3-percent wage increase proposed by Petway on
October 28. A few days later. at Petway's request, the
Union met with Petway and Carpenter in the office of the
University president. Those present went through the most
recent complete written contract-that is, the one executed
in 1973--and decided in what respects the language in this
document should be updated so that the contract to be
typed up would conform to the agreements reached on No-
vember 18. The parties also agreed to delete from the
Schedule A attachment to the printed contract executed in
1973 the names of employees who no longer worked for the
University, and to add to Schedule A the names of those
who had started working for the University after the ex-
isting schedule had been prepared. The Union offered to
help type up the contract. Petway said that he would have
his secretary type it up and would then send it back to the
Union for proofreading. The Union asked whether the
1Union could get it next week, and Petway said it might be
possible. On several occasions between then and early
April 1977, employee Ford, who had succeeded to the pres-
idency of the Union when Toran went on leave of absence
as of January 1, 1977, telephoned Petway to ask about get-
ting a typed contract. Petway told her that no contract had
been typed up because his secretary was out sick and Car-
penter had not yet obtained the job descriptions. During
this same period, Britt, who had succeeded Ford as vice
president, telephoned Petway's office on several occasions
to find out why it was taking so long to have the contract
typed. On each such occasion, she left word with Petway's
secretary asking him to return Britt's call, without explain-
ing its purpose, but he never did so. On an undisclosed
date between early April and late May 1977, on which lat-
ter date Carpenter resigned from Respondent's employ, she
and the Union worked out the new job descriptions.
In April or May 1977, at Petway's request, the Union
met with him in his office. Petway's secretary had started
to type up the contract, but had not completed it. Those
present reviewed the contract to make sure it was going to
1166
THE FISK UNIVERSITY
be typed correctly. In May 1977, Petway telephoned Ford
that his secretary had finished typing the contract, but that
Schedule A had not been completely revised and some new
employees had to be added thereto. A few days later, Pet-
way brought Ford a typewritten document, purporting to
be a collective-bargaining agreement. which was received
in evidence as General Counsel's Exhibit 4. This document
includes at the end, without a title but where Schedule A
appears in the printed 1973 contract, what purports to be a
list of employees by name, classification, employment date,
and salary as of December 1, 1976, not including the 3-
percent wage increases given that date. The most recent
hiring date listed is January 3, 1977 (last page, Madlock).
The document states, inter alia, "Effective January 1, 1977.
the following shall be the hiring weekly rates.... The
above rates will be increased by 2% per week as of July 1,
1977.... Employees covered by this Agreement will re-
ceive the increases effective January 1, 1977 and July 1,
1977 as listed in their classifications set forth in Schedule A
attached hereto." The document recites that it is an
"Agreement made this first day of January 1977." The
"Duration" clause states: "This Agreement shall go into
effect as of January 1, 1977, immediately upon receipt of
notification in writing by the Employer from the Union to
the effect that this Agreement has been duly ratified, and
shall continue in full force and effect until June 30, 1978,
and it shall automatically be renewed from year to year
thereafter, unless notification be given in writing by either
party to the other, by Registered Mail, at least sixty (60)
days prior to the expiration of this Agreement, that
changes in the Agreement are desired." The document con-
cludes, "In witness whereof, we have hereunto set our re-
spective hands and seals, the day and year first above writ-
ten." Blanks appear for the signatures of "Union
Representatives" and "Employer Representatives." This
document is identical to the contract as executed in 1973,
except as to certain dates, including the dates in the pream-
ble and in the "Duration" clause; the length of the work-
week (which, as previously noted, had been reduced by the
1974 agreement to 38 hours from 40); the addition in Gen-
eral Counsel's Exhibit 4 of a provision giving employees
the right to "leave their employment when, or prior to, the
regularly scheduled quitting time on days when there are
Federal, State or Local elections held"; the size of the re-
quired payments to the Security Plan; and the clauses re-
garding job classifications and wage rates.
In June or early July 1977, the Union went back to
Petway's office. It pointed out that one or two employees
had been omitted from Schedule A. Ford telephoned the
University from Petway's office, and obtained the correct
spelling and titles of the two omitted employees. Also, the
Union pointed out some typographical errors in the docu-
ment.4 Petway said that he would have his secretary make
the appropriate corrections and would bring the contract
to Ford later that day, but he did not do so. During this
conference, Ford told Petway that Charles Story, who had
4 It appears that these errors included the insertion of "12'" rather than
"12-1/2%" in the clause calling for Securit' Fund contrihutions. After the
date specified in this document. Respondent in fact made contributions at
the 12-1/2 percent rate.
replaced Carpenter as personnel director in late May 1977,
thought that three or four more employees had been im-
properly omitted from Schedule A. Petway told Ford to
straighten out this latter matter and get back in touch with
him. Ford then telephoned Story that the employees in
question worked in an office which was "exempt." Story
accepted this.5
On July 11, 1977, Ford met with Petway in his office.
She told him that Story had agreed that the employees
omitted from Schedule A were exempt, and Petway accept-
ed her representation in this respect. He also gave her a
letter, under his law firm's business letterhead and signed
by him, stating, ". .. in the event Fisk University receives
funds from which increases in salaries can be made to em-
ployees covered by Local 19-A. Distributive Workers of
America, prior to June 30, 1978, the University will renego-
tiate the provisions of the contract pertaining to salaries."
Petway testified that the University had approved this
commitment, and that Zavelle had approved the giving of
a written assurance thereof to the Union. Petway told Ford
that he had to show a copy of the contract to Sherman
Jones, who on June 22, 1977, had become Respondent's
vice president for administration. Ford told him that since
she was going back to the University, she would deliver a
copy to Jones. As she left Petway's office, he said that after
the employees had finished work that day, he would come
out to the University to deliver a copy of the document and
to sign it. On her return to the University from Petway's
office, she gave Sherman Jones a copy of the document.
Petway did not get in touch with her that day.
D. Respondent's Failure To Honor the Union's Requests To
Sign the Document
After waiting for a couple of days without hearing from
Petway, Ford telephoned him. Petway said that he was
waiting to hear from Sherman Jones, and had heard noth-
ing from him. On several subsequent occasions before Au-
gust 4, she talked to Petway on the telephone about signing
the contract, and on each occasion Petway said that he was
waiting to hear from Sherman Jones. On August 4, Ford
sent the following letter to Petway:
Members of Local 19A have expressed grave concern
as to why their contract (agreed upon November 18,
1976) has not been signed and as to why we have not
heard anything concrete from you nor the Fisk Ad-
ministration regarding this matter. The Executive
Committee of 19A would definitely like to report some
positive action at their next meeting on August 9,
1977. Therefore, an early response from you would be
appreciated.
A courtesy copy of this letter was sent to Dr. Walter J.
Leonard, who had become president of the University in
June 1977.
The Union received no response to this letter. On August
26, 1977, it filed the charge herein, which alleges that since
about July 11, 1977, Respondent had refused to bargain
Art XXIII. sec B. of the document excludes certain positions from
provislons of "this Agreement" except for the provisions of the Securits
plan
1167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collectively by "failing to reduce a negotiated collective
bargaining agreement to writing and executing the same."
Sherman Jones received this charge, on the University's
behalf, on August 30.
After receiving a copy of General Counsel's Exhibit 4 on
July Ii, Sherman Jones prepared a memorandum to Dr.
Leonard, which is not in the record, regarding what Jones
saw as the major issued to be resolved. Among such issues
were the positions that would be included in the unit, the
policy on sick leave and vacation, how positions would be
filled, the transfer policy, the grievance and arbitration
procedure, and the "way we regarded wages and classifica-
tions of employees." Jones testimonially described the is-
sues set forth in his memorandum as "the non-wage kinds
of issues that were left unaddressed." He testified that he
obtained from Zavelle his information about which issues
needed continued discussions, but that Zavelle did not tell
him that the Union was in fact continuing negotiations
with respect to these issues. Jones further testified that he
discussed this memorandum with Dr. Leonard, and "based
on my conversations with Mr. Zavelle, and my knowledge
of the documents, it was the non-economic issues that we
decided needed to be pursued further."
By letter to Ford dated August 30, 1977, the same day
Jones received the charge herein, he stated:
We have found it necessary to propose certain mod-
ifications in the proposed contract between Fisk Uni-
versity and Local 19A. The attached contract includes
the modifications that we propose; this contract essen-
tially builds on the prior agreement between the local
union and Fisk.
We feel that the suggested contract is both reason-
able and the modifications proposed are suggested
with the primary objective of ensuring that the essen-
tial task of rebuilding Fisk can take place within an
atmosphere of trust and willingness for each of us to
do what we can to help the University in its recovery.
After you have had an opportunity to review the con-
tract, we should meet to discuss fully the proposed
contract. Let us plan on such a meeting during the
week of September 6th.
The draft proposed contract attached to this letter con-
tained provisions significantly different from General
Counsel's Exhibit 4 with respect to, inter alia, the scope of
the unit; management rights; no discrimination; discharge:
weight to be given seniority in layoffs, recalls, and promo-
tions; number of paid holidays; sick leave; maternity and
paternity leave; compensatory time off in lieu of overtime
pay; mourning time; paid leave: supervisors' performance
of unit work; on-the-job injury; job safety; and the griev-
ance-arbitration procedure. Also, the draft proposal called
for a 40-hour week and (effective January 1, 1977) for em-
ployer payments into the Security Fund of I I percent of
total payroll, and omitted any provision for time off on
election day. As previously noted, the parties had agreed in
1974 to a 38-hour week, Petway had rejected in October
1976 the Union's proposal for a 35-hour week, the parties
had agreed in 1975 to a 12-percent Security Fund contribu-
tion, and Petway and the Union had agreed in November
1976 to a 12-1/2 percent contribution effective Jul) 1977
and to time off on election day. As discussed infra, in late
June 1977 Respondent had begun making 12-1/2 percent
payments into the Security Fund. Also, Respondent's pro-
posal called for wage scales effective July 1, 1977-June 30,
1978, substantially different from those called for during
this period by General Counsel's Exhibit 4. As noted infra,
as of July 1, 1977, Respondent had put into effect the wage
increases called for as of that date by General Counsel's
Exhibit 4.
By letter to Sherman Jones dated September 1, 1977,
with courtesy copies to Petway and Dr. Leonard, Ford
stated:
We, the Union and the University, reached a final
agreement on November 18, 1976 on a contract which
was to be in effect until June 30, 1978. We are still
expecting to receive a signed copy of that which we
agreed upon from you. Because of the fact that we
have already reached an agreement, the contract is not
open for amendment; therefore, we believe that your
new proposals are untimely.
Therefore, Ford made an appointment with Sherman
Jones to meet in his office on September 13. Five members
of the union committee, including Ford, went to Jones'
office at the appointed time. Jones said that he had thought
Ford was coming alone and the two of them would just sit
down and have a discussion across the table about his con-
tract. Ford advised Jones that the Union had a committee,
whereupon Jones called in Personnel Manager Story. The
parties then went into the conference room of the Univer-
sity president's office. Jones stated that "we were there to
continue negotiations," and that "we had to get a contract
signed." Ford said that she did not know what he had
reference to. He said that the parties had not completed
negotiations. Ford said that "on November 18th 1976, we
had completed negotiations until June of 1978, which Mr.
Petway clearly stipulated when we had those negotiations
they would be for 18 months." Jones said that he thought
the parties should discuss his proposals. Ford said that it
was not time for negotiations and the Union would not
negotiate any more at this time. Ford credibly testified that
Jones said "our contract was not acceptable." Ford said
that it was not time for negotiations, and if and when it was
time for negotiations, the parties would send each other a
letter prior to the time for termination of the contract.
E. The Wages and Working Conditions Observed by
Respondent after December 1, 1976
As previously noted, on December 1, 1976, Respondent
put into effect the 3-percent wage increase called for by
General Counsel's Exhibit 4 as of January I, 1977. On July
1, 1977, Respondent put into effect the 2-percent wage in-
crease called for as of that date by General Counsel's Ex-
hibit 4. On June 27, 1977, Respondent put into effect the
increase in its Security Fund contributions (to 12-1/2 per-
cent of payroll, as compared to the prior 12 percent of
payroll) which the Union and Petway had agreed on No-
vember 18, 1976, to make effective July 1, 1977 (see supra,
fn. 4). By memorandum dated August 30, 1977, Sherman
Jones advised the unit employees, "During fiscal year
1168
THE FISK UNIVERSITY
1977-1978, which began on July 1, your holiday schedule
will be that outlined in the agreement between your Union
and the University." 6
The contract executed in 1973, General Counsel's FIx-
hibit 4, and Respondent's August 30 proposal all contain
the following checkoff clause:
The Employer will deduct all Union membership
dues, initiation fees and assessments as provided for in
the authorization form set forth below upon condition
that the Union shall furnish the Employer with a writ-
ten authorization executed by the worker in the fol-
lowing form:
I hereby authorize and direct my employer to de-
duct from my wages and to pay over to the Union.
such amounts, including initiation fees and assess-
ments (if any owing by me) as my membership dues
in said Union as may be established by the Union
and become due to it from me during the effective
period of this authorization. This authorization may
be revoked by me as of any anniversary date hereof
by written notice signed by me of such revocation,
received by my Employer and the Union, by regis-
tered mail, return receipt requested, not more than
sixty (60) days and not less than fifty (50) days be-
fore any such anniversary date, or on termination
date of the collective bargaining agreement covering
my employment, by like notice, prior to such termi-
nation date, whichever occurs the sooner.
The employer will notify the Union promptly of anN
revocation of such authorization received by it.
The Union agrees to indemnify the Employer and
hold it harmless from and against any and all losses or
damage that may be incurred by the Employer by rea-
son of making such deductions and remittances.
At all material times herein, Respondent continued to
deduct union dues and fees from the paychecks of employ-
ees who had authorized such deductions.
About September 14, 1976, employee Helen J. Adams
filed a request that her wages be raised, retroactive to April
1975, to equal those paid to other employees with the same
job title employed under the union contract. By letter dat-
ed June 10, 1977, with courtesy copies to Ford, Zavelle.
and Petway, Acting Personnel Director Charles Story ad-
vised her that her salary would be increased effective as of
the date of the letter. The letter further stated:
This increase is made as a full compromise and set-
tlement of the grievance filed by you as a result of
your position being included within the bargaining
unit of Local 19A Distributive Workers of America.
This is to further advise that the University is not
6 This letter stated, "Because New Year's Day falls on Sunday. It 'ill be
celebrated on Monday." T'he 1973 contract and G.C. Exh. 4 both contain
the provision, absent from Respondent's August 30 proposal. that a holldas
which falls on Sunday will be observed the following Monday (art VII)
The letter further states that there would be no formal "Christmas recess" ill
1977. but the University would close on December 22. 23, 26. and 27 rhe
1973 contract and C G.'s Exh. 4 both contain the provision. absent fronm
Respondent's August 30 proposal. that "All days designated by the nm-
ployer as the official Christmas recess" are to be paid holidass (art. VII).
liable for any back pay which you may he entitled to.
therefore the 2%( increase to be given employees cov-
ered by the contract effective July 1. 1977 shall not be
applicable to this increase and agreement.
Ahbout September 1977, employee Joanne Adams wrote
a letter to Personnel Manager Story complaining that he
had failed to repost a vacancy after the job had been up-
graded, and that in consequence. she had failed to bid on
thejob until after the vacancy had been filled at the higher
grade. Thereafter, Joanne Adams went with several union
representatives to Story's office to discuss the matter. He
told them to follow the "grievance procedures." and
brought out a copy of the printed 1973 contract. The griev-
ance and arbitration provisions in this document are iden-
tical to those in General Counsel's Exhibit 4, and give an
unsuccessful grieving party the right to obtain arbitration
by an arbitrator appointed by the "Federal Board of Medi-
ation." Joanne Adams then filled out a grievance form and
gave it to Steward Vivian White, who sent copies to the
union officers and to the personnel office. After that. Jo-
anne Adams and several union representatives went to
Story's office again to discuss the grievance, but were un-
able to resolve it. By letter dated October 20, 1977, to the
Federal Mediation and Conciliation Service. Ford stated:
Under the terms of Article XX, of our agreement
between Fisk University and the Union, 19A, we are
requesting that you appoint an arbitrator to settle a
dispute which arose on September 20, 1977, between
Fisk University and the Union with regards to Article
5 Section G & H of our present contract.
All the provisions cited in this letter have the same word-
ing and numbering in the 1973 contract and in General
Counsel's Exhibit 4.
After Story received a courtesy copy of this letter, the
University told the arbitrator that it "just couldn't" take
the matter to arbitration at this point, because "we had to
follow the internal grievance procedure, and after that pro-
cedure was followed. we would be amenable to the possi-
bility of going to arbitration." 7 Thereafter, the internal
grievance procedure was exhausted, with both parties using
the 1973 printed contract. The grievance remained unre-
solved. Sherman Jones testified that the University and the
Union did not discuss what the) would do about arbitra-
tion after the internal grievance procedure was exhausted.
The Union again got in touch with the arbitrator, who got
in touch with Story and Sherman Jones and made arrange-
ments about a convenient time to conduct the proceedings.
At the arbitration hearing on November 30, 1977, Story
and Sherman Jones appeared for the University, and Ford
(inter alia) for the Union. On December 6, 1977, the arbi-
trator issued an award which favored the grievant. In so
finding. the arbitrator quoted and relied on provisions
which are set forth in the 1973 agreement, including the
"Duration" clause. All the clauses (except the "Duration"
clause) thus quoted and relied upon are in General Coun-
sel's Exhibit 4 with the same clause numbers, and none
Both the 1973 contralct and Gi.(i Exh. 4 state. "The abohe [griesancel
procedure is designed to faIiliiitc orderl? handling of grievances; hossever.
failure Io follow these steps shall not be grounds for denying the right to
arbitr;lte"
1169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appears in Respondent's August 30 proposal. TI he
arbitrator's opinion states that the issue stipulated by both
parties was. "Did the Company follow the procedures, as
set forth in the Agreement. in regards to not allowing the
Grievant a thirty day trail period. . .?" A 30-da) trial pe-
riod for promotions is called for in the 1973 contract and in
General Counsel's Exhibit 4 (art. V. sec. C), but not in
Respondent's August 30 proposal. The opinion further
states, "The University states that ... the contract, as it is
currently written, does not address itself to how the Uni-
versity will fill vacancies on the CFT staff, and that sec-
tions G and H of Article V refer only to how an employee
is promoted. It is the position of the University that under
Article XXVI, Management Rights, it has the right to hire
[whoever] they feel is the most qualified individual." The
management rights clause in Respondent's August 30 pro-
posal is numbered article 4. and differs from the manage-
ment rights clauses in the 1973 contract and General
Counsel's Exhibit 4. However, Ford testified that when the
grievance was arbitrated, the Union contended that Re-
spondent had violated the contract which had been agreed
to in November 1976, and Respondent contended that no
contract had been agreed to in November 1976.
The arbitrator's decision issued on December 6. 1977. 2
days before the opening of the hearing in the instant case.
On December 9, 1977, at the hearing before me. Sherman
Jones testified that Respondent did not know whether it
would comply with the award. The General Counsel's Feb-
ruary 1978 brief avers, and the other parties (duly served
with the brief) do not dispute, that on January 6, 1978,
Sherman Jones sent the following letter to Ford:
After considerable discussion regarding the griev-
ance filed on September 22, 1977 against the Univer-
sity, we have decided to take no present action regard-
ing the [Joanne Adams grievance] until after the
unfair labor pratice issue is resolved. If, as the union
aruged at the NLRB hearing, the last signed agree-
ment between the University and the Union terminat-
ed on June 30, 1975 then there has been (or was) no
official agreement on hours, working conditions, et al.
since that time and accordingly-as the Judge said--
no binding grievance procedure, except that which ap-
plies to all employees."
If you will recall, the arbitrator was asked to enter
this particular grievance only because the University.
and the Union at the time I might add, was operating
under the understanding that the provisions of the
1973-1974 Union agreement applied until both parties
reached a new agreement. The case presented by the
Union at the NLRB hearing, of course, refuted this
interpretation of our contract completely by arguing
that the old contract ended on June 30, 1976. As you
well know, the basic disagreement between the Uni-
versity and the Union is, in fact, whether there is an
agreed-to contract and if there is of what duration it
s I had stated, ". . . it is my understanding that upon the expiration ,of a
contract, the Employer is no longer under a duty to arbitrate grievances that
arise after the expiration of the contract. I maN be in error there, and I
expect Counsel to draw my attention to this if I am." (Emphasis supplied) I
See infra. n. II.
lasts or should last. Until that issue is decided. an)
further discussion about the Igrievance] will be moot.
[Emphasis supplied.]
F. Analvlis and ( oncfluIsion
I agree with the General Counsel that the Union and
Respondent had reached a complete and binding agree-
ment, consisting of General Counsel's Exhibit 4 with the
modification explained supura fn. 4. no later than the May
1977 date on which Ulniversity Attorney Petway gave that
document to Union President Ford. By that date, the
union membership had ratified the union negotiating
committee's agreement to the University negotiating
committee's October 28, 1977, proposals: the union negoti-
ating committee had agreed with Petway and then Person-
nel Director Carpenter about the contents of Schedule A:
and the entire contents of General Counsel's Exhibit 4 had
been approved by Dr. Gore and Zavelle, who until late
June 1977 were, respectively, Respondent's interim presi-
dent and its vice president for financial affairs, and who
were authorized by the University's board of trustees to
enter into an agreement with the Union. Moreover, at all
times between December 1. 1976. and Respondent's Janu-
ary 6, 1978, letter to the Union regarding the Joanne Ad-
ams grievance. Respondent treated the unit employees as if
it were in fact bound by General Counsel's Exhibit 4. Thus.
Respondent granted a 3-percent wage increase on Decem-
ber 1,. 1976. and a 2-percent increase on July I, 1977,9 in-
creased its contributions to the Security Fund in late June
1977. and otherwise complied with all the University pro-
posals to which the Union had agreed on November 18.
1976. Respondent continued to honor the employees'
checkoff authorizations, ° and participated in the arbitra-
tion of a grievance without entering into any agreement to
arbitrate that particular grievance. Also, Sherman Jones'
August 1977 letter to the employees about holidays relied
on "the agreement between your Union and the Univer-
sity"; and Personnel Manager Story's June 1977 letter
about the Helen Adams grievance referred to "the 2% in-
crease to be given employees covered by the contract."
Further. Respondent has at no time signed General
Counsel's Exhibit 4 notwithstanding the Union's requests
for such signature by letters dated August 4 and September
1. 1977: in the charge received by Respondent on August
30. 1977: and in conversations between Ford and Petway
between about July 13 and August 3, 1977; and notwith-
standing Petway's testimony on the witness stand that the
Union had requested the signing of "the contract." I con-
clude that by such admitted failure and, in effect, refusal to
)r L.eonard testified that the unit employees received these raises on
the basis of the Unlersit,'s "sense of equit!." No other employees received
; raise i [)ecemlhber 1976 On Juin 1977. the facult) received a 5-percent
raise. decided on Irn April or Max 1977
t See Bethlhheml Steel (o. (Shiphbuilding liviionl. 136 NLRB 1500. 1502
1962). See. how;eer, the opinion of the ('ourt of Appeals for the Third
(Circuit reminding this Board decision (industri'al 'nion of Marine and Ship-
hlidinig fi'rkers o"nf '4merita Amil ('10 lethlehem Steel Co.l v. N L R.B.
320 :.2d 615.619 (C.A 3, 1963), employer's petition for certiorari denied
375 /U.S. 984 (1964J ) The instant contracts do not contain a union-securiNl
clause. which is forbidden bh Tennessee law.
ISee lilr/onl-Diari (Cheiti'ali (.o, Dii.siion oif Sterling Drug, Inc. 18S
NIRB 241 (1970): cf. Bethlchetn, ~upra, 320 F 2d at 620.
1170
THE FISK UNIVERSITY
honor the Union's repeated requests that Respondent sign
this document, Respondent has violated Section 8(a)(5)
and (1) of the Act. I note that Section 8(d) of the Act
defines the duty to bargain as, inter alia, "the execution of
a written contract incorporating any agreement reached if
requested by either party." Because a binding agreement
had been reached during Dr. Gore's administration and,
indeed, with his approval, Respondent remained under a
duty to sign the agreement notwithstanding the conclusion
of Dr. Leonard, Dr. Gore's successor, that this agreement
was not "acceptable." Nor is Respondent's failure to sign
General Counsel's Exhibit 4 excused by Dr. Leonard's tes-
timony that Zavelle told him negotiations were continuing
and a number of issues were still unresolved and that Za-
velle and Dr. Gore did not tell him the University had
"ratified" any proposals discussed between the Union and
the University's negotiating committee, in view of the un-
contradicted direct testimony that Dr. Gore and Zavelle
had ratified the agreement and negotiations had ended. See
Jackson Sportswear Corp., 211 NLRB 891, 902 (1974).12 1
note that after Zavelle's July 1, 1977, departure from the
University staff, Dr. Leonard had available, as first-hand
sources of the actual status of negotiations, University gen-
eral counsel Petway and two members of the University
faculty, Deshpande and Dr. Sykes, all three of whom testi-
fied at the hearing that as of the close of the November 18
bargaining session, all issues between the parties had been
resolved and no proposals from either party were on the
table." Moreover, Dr. Leonard testified that after receiving
Ford's September 1, 1977, letter asserting, inter clia, that in
November 1976 the parties had reached a final agreement
which the Union expected Respondent to sign, except for
discussion with counsel he made no further investigation of
any assertion by Zavelle that negotiations were continuing.
The original complaint alleged that the refusal to sign
the agreement occurred "at all times since November 18,
1977." After all parties had rested, the General Counsel
moved to substitute therefor the date "1976." This
motion was granted without objection. The 6-month limi-
tations period imposed by Section 10(b) of the Act did not
begin until February 1977. 1 find that Respondent's unlaw-
ful failure and refusal to sign the agreement on request
began in mid-July 1977, when the first such request was
made, and has continued at all times thereafter.
CONCLUSIONS OF LAW
I. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following unit of Respondent's employees is ap-
propriate for collective bargaining purposes within the
meaning of Section 9(b) of the Act:
2 Zavelle did not testify. At the time of the hearing, he was no longer in
Respondent's emplo) and was temporarily in Greece. Zavelle attended
about two of the negotiating sessions, and did not attend either of the last
two sessions, on October 28 and November 18.
13 Dr. Leonard testified that he "'did not know of a [Universitv negotiat-
ing} committee. I knew Mr. Zavelle, and I knew Mr. Petway."
All clerical, fiscal and technical employees located at
the Fisk University, Nashville, Tennessee, excluding
supervisors as defined in the Act.
4. At all times relevant here, the Union has been the
exclusive representative of the aforesaid unit, within the
meaning of Section 9(a) of the Act, for the purposes of
collective bargaining with respect to rates of pay, wages,
hours. and other terms and conditions of employment.
5. At all times since about July 15, 1977, Respondent
has failed and refused to honor the Union's request to exe-
cute a collective-bargaining agreement reached between
the parties, and has thereby violated Section 8(a)(5) and (I)
of the Act.
6. The foregoing unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated its bargain-
ing obligations by failing and refusing on request to exe-
cute a collective-bargaining agreement already reached, I
shall recommend that Respondent be required to cease and
desist from such conduct, or from in any manner interfer-
ing with the Union's efforts to bargain collectively with
Respondent." I shall further recommend that Respondent
be required, on the Union's request, to sign the collective-
bargaining agreement containing the terms and conditions
of employment agreed to between Respondent and the
Union by May 1977: to give retroactive effect to its terms
and conditions; and to make its employees whole for loss-
es, if any, they may have suffered as a result of its failure to
sign such an agreement. with interest as called for in Flor-
ida Steel Corporation, 231 NLRB 651 (1977).' 5 Any back-
pay due in consequence of loss of a job will be calculated
as prescribed in F. W. Woolworth Company. 90 NLRB 289
(1950). However, the automatic-renewal clause aside, that
contract will expire by its terms less than 2 months after
the issuance of this Decision. Accordingly, I shall recom-
mend that Respondent be ordered-if the Union does not
request Respondent to sign that agreement-upon request,
to bargain with the Union in good faith with respect to the
terms and conditions of a contract and, if an agreement is
reached, embody it in a signed contract. Worrell New spa-
pers, Inc., 232 NLRB 402 (1977). 1 reject the General Coun-
sel's contention that Respondent should be required to exe-
cute, on the Union's request, a contract effective beyond
the June 30, 1978, expiration date agreed to by the parties.
The General Counsel's position is not furthered by the pre-
cise holding in Crimptex, Inc., et al., 221 NLRB 595 (1974),
where, although the parties had intended a contract to be
effective upon execution, the Board required in 1975 its
execution with the initial effective date to be the 1973 date
when it would have become effective but for the employ-
er's unlawful refusal to sign it. In the instant case, the con-
tractual expiration date would have been June 30, 1978,
even if Respondent had complied with its statutory duty to
sign the contract in July 1977. The General Counsel relies
on the Crimptex rationale that "To allow any later effective
4 See 5 1. RB . Espress Puhlhshing (,. 312 L: S 426. 438 439 (1962).
See. generallk. Isii Plumbing & Hlearihg Co, 138 NLRB 716 (1962).
1171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date of the agreement would permit [the employer] to ben-
efit by its own wrong." However, this consideration does
not empower me to order the execution of a contract which
extends beyond the date agreed to by the parties. Raven
Industries, Inc., 209 NLRB 335 (1974), modified 508 F.2d
1289 (C.A. 8, 1975).
Upon the foregoing findings of fact, conclusions of law,
upon the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 16
Respondent The Fisk University. its officers, agents, suc-
cessors, and assigns, shall:
I. Cease and desist from:
(a) Failing or refusing to sign, on request, a collective-
bargaining agreement incorporating terms and conditions
of employment agreed upon between it and the Union.
(b) In any manner interfering with the Union's efforts to
bargain collectively with Respondent.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Upon request, sign a collective-bargaining agree-
ment containing the terms and conditions of employment
agreed to between Respondent and the Union by July I 1,
1977, give retroactive effect to its terms and conditions,
and make its employees whole for losses, if any, they may
have suffered as a result of its refusal to sign such an agree-
ment, in the manner set forth in that part of this Decision
entitled "The Remedy."
(b) If no such request is made, bargain collectively in
good faith with the Union, upon its request, as the exclu-
sive representative of the employees in the appropriate
unit, over the terms and conditions of a collective-bargain-
ing agreement and, if an agreement is reached, embody it
in a signed contract.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security pay ment records, timecards,
personnel records and reports, and all other records neces-
sary or useful to analysis of the amount of backpay due
under the terms of this Order.
(d) Post at its Nashville, Tennessee, location, copies of
the attached notice marked "Appendix." 17 Copies of said
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent's au-
thorized representative, shall be posted by the Respondent
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 cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 26, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
I~ In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions. and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
In the event that this Order is enforced by a judgment of a United
States (Court of Appeals. the words in the notice reading "Posted by Order
of the National I.aboir Relations Board" shall read "Posted Pursuant to a
Judgment of the United States (Court of Appeals Enforcing an Order of the
National La ibor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law by failing to sign an agreement we had reached
with Local 19-A, Distributive Workers of America. We
have been ordered to post this notice. We intend to carry
out the order of the board and abide by the following:
WE Wit. NOT fail or refuse to sign, on request, a
collective-bargaining agreement incorporating terms
and conditions of employment agreed upon between
us and the Union.
WE WILL NOT in any manner interfere with the
Union's efforts to bargain collectively with us.
WE Wil.L.. upon request, sign a contract with the
Union containing the terms and conditions of employ-
ment agreed to between us by July 11, 1977; give ret-
roactive effect to its terms and conditions; and make
our employees whole, with interest, for any losses they
may have suffered as a result of our failure to sign an
agreement.
WE WI.LI. if no such request to sign that agreement is
made, upon request, bargain collectively with the
Union over the terms of an agreement and, if an
agreement is reached. WE WILL sign that agreement.
THE FISK UNIVERSITY
1172