Graphic Communications Union District 2 (Riverwood International USA)

National Labor Relations Board - Board Decisions

Aug 31, 1995

318 N.L.R.B. 983 (N.L.R.B. 1995)

983
318 NLRB No. 95
GRAPHIC COMMUNICATIONS UNION DISTRICT 2 (RIVERWOOD INTERNATIONAL USA)
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In adopting the judge’s discrediting of Bernard Sapiro’s testimony
that he sent contract language changes to Gary Brooks within a
week or two of a meeting on March 12, 1993, we find it unneces-
sary to rely on Sapiro’s prior affidavit testimony, because we agree
with the other factors cited by the judge in discrediting this testi-
mony: Sapiro’s failure to keep a copy of the alleged changes in con-
tract language or the cover letter which, he alleged, accompanied the
changes; Human Resources Manager Gary Brooks’ correspondence
of March 26 and April 8, 1993, which are inconsistent with changes
in contract language; Sapiro’s June 6, 1993 cover letter that accom-
panied an alleged second mailing of the changes in the contract lan-
guage but which does not mention that the changes were sent pre-
viously. In any event, the date on which Sapiro proposed subsequent
unilateral changes in contract language is irrelevant to the issue of
whether the parties had agreed on a contract, in the first instance.
We have adopted the judge’s finding that the parties agreed on the
terms of their collective-bargaining agreement on December 12,
1992.
1 Respondent admits the jurisdictional aspects of the instant com-
plaint, including that Riverwood is an employer engaged in com-
merce and in a business affecting commerce within the meaning of
Sec. 2(6) and (7) of the Act. Further, Respondent admits that it is
a labor organization within the meaning of Sec. 2(5) of the Act.
Graphic Communications Union, District Council
No. 2, AFL–CIO and Riverwood International
USA, Inc., a subsidiary of Manville Corpora-
tion. Case 31–CB–9122
August 31, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On May 22, 1995 Administrative Law Judge Burton
Litvack issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Graphic Communications
Union, District Council No. 2, its officers, agents, and
representatives, shall take the action set forth in the
Order.
Ann Cronin-Oizumi, Esq., for the General Counsel.
Joseph L. Paller, Jr., Esq. (Gilbert & Sackman), of Los An-
geles, California, for the Respondent.
Lawrence S. Falter, Esq., of Denver, Colorado, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK Administrative Law Judge. The underly-
ing unfair labor practice charge in the above-captioned mat-
ter was filed by Riverwood International USA, Inc., a sub-
sidiary of Manville Corporation (Riverwood), on August 30,
1993. Based on the unfair labor practice charge, on October
14, 1993, the Regional Director Region 31 of the National
Labor Relations Board issued a complaint, alleging that
Graphic Communications Union, District Council No. 2,
AFL–CIO (Respondent) has engaged in, and is continuing to
engage in, acts and conduct violative of Section 8(b)(3) of
the National Labor Relations Act (Act). Respondent timely
filed an answer, essentially denying the commission of the
alleged unfair labor practices. As scheduled, the above-cap-
tioned matter came to trial before the me on May 11 through
13, 1994, in Bakersfield, California. At the trial, all parties
were afforded the opportunity to offer into the record all rel-
evant evidence, to examine and cross-examine all witnesses,
to argue their respective legal positions orally, and to file
posthearing briefs. The documents were filed by counsel for
all parties and have been carefully considered. Accordingly,
based on the entire record including the posthearing briefs
and my observation of the testimonial demeanor of the sev-
eral witnesses, I make the following
FINDINGS OF FACT1
I. THE ISSUE
The instant matter concerns negotiations between Re-
spondent and Riverwood on a successor collective-bargaining
agreement, particularly with regard to the establishment of a
line-of-progression system for the latter’s Bakersfield, Cali-
fornia plant finishing department and the seniority system ap-
plicable to the employees in the department after the imple-
mentation of the line-of-progression system. Counsel for the
General Counsel contends that, eventually, Respondent and
Riverwood reached a full and complete agreement on the
terms of a successor collective-bargaining agreement, includ-
ing on the matters involving the finishing department, and
the complaint alleges that Respondent violated Section
8(b)(3) of the Act by failing and refusing to execute a print-
ed version of the parties’ alleged full and complete collec-
tive-bargaining agreement. While conceding that it has failed
and refused to execute a document, purporting to represent
the parties’ agreement on a collective-bargaining agreement,
Respondent denies that it engaged in any conduct violative
of the Act, asserting alternatively that, while there may have
been a meeting of the minds on a collective-bargaining
agreement, the printed version does not conform to the
agreement; that the parties never reached final agreement re-
garding seniority in the finishing department; and that there
was no meeting of the minds regarding the seniority structure
in the finishing department.
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Riverwood was formerly known as Manville Forest Products,
changing its name in 1990.
3 Riverwood’s business is seasonal in that employment at the Ba-
kersfield plant fluctuates in accord with demand from the beverage
industry, and, therefore, Respondent’s employee complement is at its
peak from February through September each year.
4 Excluded from the bargaining unit are quality technician person-
nel, managerial personnel, office clerical personnel, guards, and su-
pervisors as defined by the Act. Respondent admits that the bargain-
ing unit is a unit appropriate for collective bargaining.
5 In the finishing department, there were four stand-alone jobs
(case stacker/utility, packer, feeder, and make ready operator) and
one line-of-progression job center, consisting of assistant operator
and operator.
6 Apparently, an employee may not refuse promotion in line-of-
progression jobs. Further, the employee’s seniority consisted on his
total time spent in each of the line-of-progression jobs.
7 Broughton Kelly, Riverwood’s director of human resources, ex-
plained that the system worked as follows: ‘‘the company would
post a notice on the bulletin board that there was a vacancy in the
packer classification, and all the employees in the plant could submit
a bid for it.’’
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Riverwood,2 a subsidiary of the Manville Corporation, is
a State of Delaware corporation; is engaged in the manufac-
ture and sale of paper beverage cartons for soft drink and
beer manufacturers; and maintains multiple manufacturing fa-
cilities throughout the United States including a plant, com-
prised of one building, in Bakersfield, California. At the the
facility, depending on the time of year,3 Riverwood employs
between 120 and 200 individuals, working in several depart-
ments, including cylinder, prepress, printing, finishing, main-
tenance, and shipping, and receiving. The record establishes
that, in 1989, Respondent was certified as the representative
for purposes of collective bargaining of the production and
maintenance employees employed at Riverwood’s Bakers-
field plant4 and that, in the same year, Riverwood and Re-
spondent entered into a collective-bargaining agreement, ef-
fective from September 4, 1989, through September 4, 1992.
Pertinent to any conclusions as to the alleged unfair labor
practices here is an understanding of the seniority systems at
Riverwood’s Bakersfield plant, as defined in the 1989
through 1992 contract, and how such affected employees in
the Respondent’s finishing department. In these regards, the
plant’s departments, in which bargaining unit employees
worked, were divided into line-of-progression and nonline-of-
progression departments. In the former, including the
prepress and printing departments, jobs were related in that
employees in such a department began on what are classified
as entry level jobs and progressed through various higher
classified jobs, eventually earning promotion to the highest
classified job in the department, and, in such departments,
what is known as the ‘‘job center’’ included all jobs within
the line of progression. In nonline-of-progression departments
under the 1989 through 1992 agreement, including the finish-
ing department, the jobs were not considered related, and
each particular job constituted a separate job center, a so-
called ‘‘stand-alone’’ job.5 As an employee worked in a bar-
gaining unit position, he or she earned two types of seniority,
as established by the contract. The first, plant seniority, con-
sisted of the employee’s ‘‘total, continuous, and uninter-
rupted length of service with the Company served within the
bargaining unit since [the employee’s] most recent date of
hire’’ and was determinative for promotion or transfer when-
ever vacancies occurred in nonline-of-progression jobs or in
entry level line-of-progression jobs and whenever layoffs
were required. In latter instances, an employee, with higher
plant seniority, was able to displace a junior employee in an
entry level line-of-progression job or in any nonline-of-pro-
gression job. The other seniority, job seniority, consisted of
the employee’s ‘‘total cumulative service with the Company
served within a job center since [the employee’s] most recent
date of hire’’ and was determinative whenever a permanent
vacancy occurred in a line-of-progression job above the entry
level (so that the job was given to the individual who had
the most job center seniority and was working in the wage
classification directly below the vacancy)6 and whenever lay-
offs were required in entry level line-of-progression jobs, in
stand-alone jobs, and in line-of-progression jobs above the
entry level, in which case layoffs were accomplished by de-
motion in the reverse order of promotion.
As stated above, at the time they entered into their initial
collective-bargaining agreement, Respondent and Riverwood
agreed that, other than the assistant operator and operator
jobs, the finishing department jobs would not be in a line of
progression. Accordingly, plant seniority was determinative
for filling vacancies and for transfers between the four stand-
alone jobs7 and to the assistant operator position and when
reductions in force became necessary. At some point, how-
ever, during the term of the agreement, Riverwood abolished
the assistant operator position, and concluded that, with five
separate job centers and with plant seniority the criterion for
filling vacancies, there was a paucity of qualified and experi-
enced personnel for the jobs in the finishing department.
Thus, according to Broughton Kelly, ‘‘we had those [five]
job centers. And to fill . . . any of those jobs, we had to
post that job for everybody in the plant . . . so we didn’t
know who was going to go into the jobs.’’ Although for dif-
ferent reasons, over the term of the 1989 through 1992 col-
lective-bargaining agreement, finishing department employees
also became increasingly dissatisfied with the existing situa-
tion in their department. Thus, according to Bernard Sapiro,
Respondent’s president, dissatisfaction resulted from what
occurred during reductions of force, or ‘‘regressions,’’ as em-
ployees, possessing greater plant seniority, were able to
avoid losing their jobs and, in turn, adversely impact less
senior finishing department employees by bumping into the
jobs of the latter and from the placement of the assistant op-
erators, whose jobs were abolished, into inferior seniority po-
sitions.
2. The negotiations for a successor agreement and
ratification of the agreement
There is no dispute that Riverwood and Respondent com-
menced negotiations on a successor to the contract, which
was due to expire on September 4, on August 20, 1992; that
Kelly was the chief spokesperson for Riverwood and at-
tended each bargaining session; that Sapiro was the chief
spokesperson for Respondent at the bargaining sessions that
985GRAPHIC COMMUNICATIONS UNION DISTRICT 2 (RIVERWOOD INTERNATIONAL USA)
8 Also attending each bargaining session for Riverwood was Gary
Brooks, the human resources manager at the Bakersfield plant.
Brooks also was responsible for taking the Company’s bargaining
notes and testified that he attempted to do so by ‘‘highlight[ing]’’
what each person said in an ‘‘accurate’’ manner without paraphras-
ing.
9 Kelly stated the Respondent’s negotiators clearly understood that
the method to be utilized for determining the seniority order of em-
ployees in the finishing department was the same method used for
compiling seniority in all other job center line-of-progression depart-
ments.
10 Included in this ‘‘golden-rod’’ are written versions of all the
agreements reached during the bargaining. Respondent does not dis-
pute the accuracy of this document.
11 With regard to the parties’ last bargaining session, December 10,
1992, Brooks stated that, at its conclusion, Sapiro said, ‘‘We have
an agreement,’’ and that everyone shook hands and exchanged tele-
phone numbers for the purpose of notification of the contract’s ratifi-
cation. He added that the ‘‘golden-rod’’ version of the agreement
was delivered to the Union that night and that, 2 days later, Jeff
Cuellar telephoned him and said, without qualification, that the suc-
cessor agreement had been ratified.
he attended;8 that, in Sapiro’s absence, Jeff Cuellar, a busi-
ness representative, was the chief spokesperson for Respond-
ent; that the bargaining consumed 15 negotiating sessions
over approximately a 4-month period; that the parties agreed
to reduce all agreements to writing; that the parties’ final
bargaining session occurred on December 10 after which the
participants shook hands on what all agreed was a full and
complete successor collective-bargaining agreement; that all
new terms and conditions of employment were reduced to
writing by Riverwood and given to Respondent; that these
memorialized contract terms were presented to the bargaining
unit employees 2 days later on December 12 and ratified by
the employees; that, immediately thereafter, Cuellar tele-
phoned Gary Brooks and informed him that the parties’
agreement had been ratified; and that what is at issue herein
concerns the parties’ bargaining over the finishing depart-
ment and the applicable seniority system for the department,
what, if any, matters, with regard to the finishing department,
remained for resolution subsequent to ratification, and wheth-
er subsequent discussions between the parties over the se-
niority ranking of employees in the finishing department re-
vealed that, notwithstanding what apparently occurred during
the bargaining, there had, in fact, been no actual meeting of
the minds on a new agreement. In the latter regard, according
to Kelly, at the start of bargaining, ‘‘both the company and
the union had proposals [for a] finishing department line of
progression. They were somewhat different from each other
but both of us were proposing a line of progression for fin-
ishing.’’ He added that the difference was that Respondent’s
proposal separated the feeder and packer positions while
Riverwood’s offer combined the two jobs into one position
and that, on September 3, after much ‘‘give and take’’ on
the merits of both positions, the parties agreed to establish
a line of progression for the finishing department in accord
with Respondent’s proposal, with the details of the agree-
ment memorialized.
Although there is no dispute on this point and on the fact
that the subject next arose at the parties’ bargaining session
on October 6, there is significant disagreement about the
content of the continued bargaining. Thus, Kelly testified
that, on the above date, Respondent raised the subject of se-
niority in the finishing department and the method the com-
pany would use in determining it for each employee in the
departments and that he replied seniority would be deter-
mined ‘‘in accordance with the contract’’ for line-of-progres-
sion departments and described the procedure, explaining that
‘‘we would take the time that each . . . person had worked
in each one of those classifications and added up . . . that
would be [the] job center seniority for the finishing line of
progression’’ and that only those employees ‘‘currently’’ in
the department would be on the seniority list. Stating that
neither Sapiro nor Cuellar objected,9 Kelly testified that the
parties then discussed, and understood, that the ‘‘only thing
that was left was to . . . search personnel files and count the
number of days in each classification to determine [the cur-
rent department employees’] job center seniority’’ and that
said task would be ‘‘time consuming’’ and would be under-
taken by Gary Brooks. Kelly also testified that Thursday, De-
cember 10, was the final day of bargaining; ‘‘we negotiated
to a resolution on what the economic offer would be and in
the final contract language.’’ At the conclusion of the meet-
ing, he agreed to prepare the ‘‘gold copy’’ of their agree-
ments,10 which represented Riverwood’s ‘‘final and best
offer’’ to Respondent, and send it to Sapiro, who would use
it for purposes of ratification.
As to what, if anything, regarding line-of-progression se-
niority in the finishing department, was deferred, by River-
wood and Respondent, for resolution after ratification of the
successor collective-bargaining agreement, during his cross-
examination and his rebuttal testimony, Kelly denied stating,
at the October 6, 1992 bargaining session, that ‘‘details,’’ re-
garding line-of-progression seniority in the finishing depart-
ment, had to be worked out subsequent to contract ratifica-
tion and consistently maintained that the only unresolved
matter, to which he referred, was the seniority list itself,
which was to be researched by Gary Brooks. The latter, who
concurred with Kelly’s version of the contract negotiations11
and recalled that Kelly stated several times, during the bar-
gaining, that Respondent would ‘‘follow the contract’’ in
computing the seniority of employees in the finishing depart-
ment, during cross-examination when asked if any ‘‘detail
work’’ remained after the bargaining for determining how the
line-of-progression seniority in the finishing department
would be implemented, testified, ‘‘I had to put the structure
together by gathering the data from the personnel files . . .
and [come] up with the results of that in a job center senior-
ity structure . . . that’s basically what I had to do.’’ There-
upon, Brooks was shown what he identified as his notes of
the October 6 bargaining session wherein the following ex-
change between Kelly and Sapiro appears:
B.S. May want to clarify 7A Finishing—When what
is the status of seniority in case of layoff—would
bumping be by junior person i.e. packer.
B.K. Normally would be the junior packer. There are
a of [sic] details which will be worked out to take care
of the moves.
B.S. Job center—The dept is known as a job center
now?
B.K. Yes!! We need to work out the detail. We’ve
agreed to line of progression. Don’t know when we
should work this problem.
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Asked by me whether what remained to be worked out between
the parties was where each employee should go in the finishing de-
partment line of progression, Aguiler answered, ‘‘That’s correct,’’
and asked if anything else was deferred to another occasion as to
the line-of-progression, Aguiler replied, ‘‘Not that I remember, no.’’
13 As did Kelly and Brooks, Aguiler recalled that everyone shook
hands at the conclusion of the last bargaining session.
14 This became a contentious issue at the trial with both Kelly and
Brooks vehemently denying that Kelly uttered such a remark or
agreed to the proposition. Thus, Kelly said, ‘‘I made no reference
to hurt or harm or how many. . . . I told them we would apply the
labor agreement to determine the job center seniority of the peo-
ple. . . . I couldn’t tell them the extent of the changes.’’ Brooks
likewise denied hearing Kelly state that Riverwood’s intent was that
no employees or the fewest number would be hurt by changing to
the new system.
15 In fact, at one point during his cross-examination, Sapiro tacitly
conceded that Kelly may have said that the company would follow
the contract in ‘‘flushing out’’ the details of the line-of-progression
seniority in the finishing department, ‘‘I wouldn’t say he didn’t say
it.’’
Brooks testified that Kelly offered no explanation for what
he meant by ‘‘details’’ but that he understood Kelly as
‘‘meaning pulling the files, getting the records in order, de-
veloping job center seniority, number of days for the em-
ployees.’’ Likewise, on this same topic, Anthony Aguiler,
who was employed by Riverwood in the finishing depart-
ment until he quit his job on December 15, 1992, who was
on Respondent’s negotiating committee and attended all the
bargaining sessions, and who testified on behalf of the Gen-
eral Counsel, stated that establishment of a line-of-progres-
sion system in the finishing department was discussed at
more than one of the parties’ bargaining sessions, that agree-
ment on the matter was ultimately reached, that the parties
discussed that seniority was to be based on ‘‘the time you
had in the . . . . finishing department,’’ and that, as to
whether anything remained to be resolved with respect to the
line-of-progression in his department, ‘‘the details . . . I
mean the union stewarts [sic] and whoever was involved in
that were going to work out the details of where everybody
was supposed to go in the line.’’12 According to Aguiler, he
never learned what these ‘‘details’’ were but always under-
stood that ‘‘the details were to be worked out with the com-
pany and the union . . . after . . . the contract was over.’’13
With regard to the contract bargaining, Armando Flores,
an employee in the finishing department and Respondent’s
chief steward in the Bakersfield plant, testified that Sapiro
made the Union’s presentation regarding a line-of-progres-
sion for the finishing department and that Broughton Kelly
‘‘said he didn’t want anybody to get hurt. And, both sides
agreed on this, that nobody would get hurt by the new line-
of-progression.’’14 Asked if the parties discussed what would
govern the seniority determination for who would get what
jobs in the department, Flores replied affirmatively that the
parties agreed it would be ‘‘the time you’ve got in that job,
the amount of days, years that you’ve had doing the . . . job
. . . that’s what would govern . . . where you would go.’’
On this point, asked if any issues remained to be resolved
after the completion of bargaining, Flores testified that there
were ‘‘some mechanics’’ and ‘‘some other little things that
we had to get written up’’ and that ‘‘it would be the commit-
tees, both committees,’’ who have to resolve these matters.
During cross-examination, Flores could not recall that River-
wood presented its own proposal on line of progression for
the finishing department or that Gary Brooks was to search
through the personnel records in order to formulate a senior-
ity roster for the finishing department employees. Further,
while reiterating that the agreed-on seniority was that the
person in the job the longest would have the highest seniority
notwithstanding that others may have been in the finishing
department for a longer period of time, Flores admitted that,
in the 1989 through 1992 contract, total service in all jobs
determined seniority in a line-of-progression department; that
he saw no written proposals changing this contract provision;
that the parties agreed that all agreements would be reduced
to writing; and that he could not recall anything in writing
to verify what he asserted as the parties’ agreement on se-
niority in the finishing department. Finally, Flores said that
he could not recall any company representative saying, dur-
ing bargaining, that, in determining line-of-progression se-
niority, they would use all the time in the job classification
and conceded that the parties shook hands at the conclusion
of their final negotiating session.
Bernard Sapiro testified, during direct examination, that
the parties reached agreement on the line of progression for
the finishing department on September 3, 1992, and that the
issue again was raised at the parties’ October 6 bargaining
session, with the discussion concerning the ‘‘impact’’ of the
change to line of progression on the employees in the depart-
ment and how seniority would be determined. According to
Sapiro, he and Kelly realized that discussion of the matter
would be ‘‘forever’’ and ‘‘the conclusion was that the local
people better understood . . . where [the employees] should
be and it was left for the local . . . negotiating committee
and local management to hammer out what we both agreed
upon.’’ Specifically denying that such was to be the sole re-
sponsibility of the company, he added that the two local bar-
gaining committees were supposed to meet and determine
where each employee fit into the finishing department’s se-
niority list and that such constituted the ‘‘details’’ to be re-
solved. Sapiro next testified as to the December 12 contract
ratification meeting, stating that he utilized the ‘‘golden-rod’’
copy, which represented ‘‘the changes and the other things
necessary to create a new contract’’ and which ‘‘at that time
. . . appeared that it was what we agreed to,’’ that signifi-
cant time was devoted to discussing the line of progression
for the finishing department, that he told the bargaining unit
employees that the union and company would meet on the
local level ‘‘so that people will either not be harmed or
harmed as least as possible,’’ and that the agreement, be-
tween Respondent and Riverwood, was ratified by the em-
ployees. During cross-examination and examination by me,
Sapiro conceded that, during the successor contract bargain-
ing with the company, the only items, which were discussed,
were those raised by either party, neither party proposed any
change in the seniority provisions of the expired collective-
bargaining agreement, there was an agreement that, unless
the parties agreed on a language change, the existing contract
language would remain unchanged, and there was no agree-
ment that the existing seniority provisions would not apply
to the finishing department line of progression.15 Sapiro then
quickly pointed out that, as neither party proposed any
change in the seniority language, the provisions were never
discussed in any context and, with regard to the finishing de-
987GRAPHIC COMMUNICATIONS UNION DISTRICT 2 (RIVERWOOD INTERNATIONAL USA)
16 Sapiro conceded that he did not specifically object to the appli-
cation of the contract’s line-of-progression department seniority lan-
guage to the finishing department line-of-progression and that ‘‘if by
not discussing it means we agreed to it, I guess there’s logic to
that.’’
17 In this regard, Sapiro recognized that developing a seniority ros-
ter for the finishing department was not part of the negotiations for
a successor contract, ‘‘in the contract language is not the flushing
out of how it’s going to effect everybody, you don’t need that in
the contract language.’’
18 There is no contention that G.C. Exh. 12 inaccurately sets forth
the parties’ prior agreements.
19 As I understand from the record seniority, based on job classi-
fication, would give seniority on a particular job to the individual
who had worked the most days in that one job. There is no dispute
that such was not a seniority basis in the 1989 through 1992 collec-
tive-bargaining agreement.
20 That this conversation occurred was uncontroverted by Cuellar,
who failed to testify at the hearing notwithstanding that he remained
in Respondent’s employ at the time of the hearing and notwithstand-
ing my admonition to counsel for Respondent that Cuellar’s testi-
mony appeared to be necessary. Counsel stated that Cuellar would
not testify but never offered an explanation for such.
21 Apparently, with the exception of Kelly, who spoke from his of-
fice in Atlanta, Georgia, all the participants were in a conference
room at the plant.
22 Kelly was not sure if specific individuals were discussed but
knew from prior conversations with Brooks that, as a result of the
seniority list prepared by the latter, some employees would be placed
on different shifts, others, including Armando Flores, would lose
shift preference, one employee would be bumped from a classifica-
tion, and some faced demotion to other jobs during slack seasons.
23 Kelly and Gary Brooks consistently denied the statement in the
cover letter. According to Kelly, ‘‘We never discussed changing
anybody’s seniority in a classification. . . . We never made such a
commitment because we did not know where the seniority of the
people would wind up. All that information was to be determined
later.’’
24 Kelly denied that Riverwood ever agreed to these contract lan-
guage changes, and Sapiro conceded that the changes were never a
subject of the bargaining during 1992.
partment, ‘‘every time we began discussing what the format
would be . . . we never referred to a contract section. And,
every time we began discussing [where to place people] . . .
logic told us that this was not the place or body to do
this.’’16 Further, during cross-examination, while asserting
that he and Kelly had stated that each wanted to protect em-
ployees’ seniority and did not want anyone to suffer, Sapiro
conceded that there was no reference in Respondent’s own
bargaining notes to any statement or agreement by River-
wood’s representatives that no finishing department em-
ployee would be harmed by the change to a line-of-progres-
sion system. Also, Sapiro conceded that, despite the parties’
understanding that all bargaining agreements were to be re-
duced to writing, no written reference exists confirming any
agreement to defer any matters for resolution to the local
bargaining committees. Finally, while he maintained that
what would be accomplished subsequent to ratification ‘‘was
supposed to be worked out by mutual agreement,’’ Sapiro
conceded that the details, which were deferred until after
ratification, involved only the slotting of finishing department
employees into a seniority roster and that Gary Brooks
would be the individual who would search the records and
prepare a seniority list.17
2. Events subsequent to ratification
Broughton Kelly testified that, on Saturday, December 12,
Gary Brooks telephoned him and said that he had been in-
formed that the proposed contract had been ratified, and that,
as a result, Riverwood implemented all of the economic as-
pects of the agreement, including all wage increases and a
$200 bonus for each employee ‘‘for the elimination of a rate
retention situation.’’ Approximately 2 months later, on Feb-
ruary 9, 1993, Brooks sent him a job center seniority roster
for the 48 employees in the finishing department along with
a cover letter, in which Brooks stated that he had a ‘‘prelimi-
nary’’ discussion with Respondent’s chief steward, Armando
Flores, who said the list ‘‘is not what he expected.’’ Kelly
testified that, 2 months later, on or about April 12 or 13,
Brooks sent General Counsel’s Exhibit 12, the draft collec-
tive-bargaining agreement that memorialized all the nego-
tiated changes that had been ratified by the bargaining unit
employees in December and merged these with the unaltered
provisions of the expired collective-bargaining agreement,18
to Respondent and that, at about the same time, he received
a telephone call from Jeff Cuellar, who said that there was
a concern with seniority, in particular ‘‘[the] number of days
that people had using job center seniority was different than
what it would be if they just used job classification.’’19
Cuellar then asked if Kelly would be available for a con-
ference call, and the latter subsequently arranged such a tele-
phone conference,20 which occurred on May 3.21 According
to Kelly, Cuellar again said that Respondent had a ‘‘prob-
lem’’ with the seniority order of the finishing department
employees, and ‘‘we talked about methodology that we used
was the same as provided by the contract. We talked about
a different alignment of people. I said what we did [was the
same seniority measure as in all other line of progression de-
partments] . . . . He said . . . we’re having problems with
it’’ and proposed drafting different contract language and
sending it to Kelly, who replied that ‘‘we did it the way we
agreed to do it. If you want to talk about something else . . .
send it, but we have done it the way we described.’’22
A month later, Kelly received a two-page document,
which was dated June 7, 1993, was drafted by Bernard
Sapiro, consisted of a cover letter and an attachment, and
contained suggested contract language changes, from Re-
spondent’s negotiating committee. The cover letter stated, ‘‘It
was agreed to, during negotiations, that nobody would suffer
any change in seniority earned in their job classification. Our
changes reflect these agreements as negotiated.’’23 The sug-
gested contract language changed the promotion and demo-
tion, layoff, and recall provisions of the expired collective-
bargaining agreement and the draft collective-bargaining
agreement, which had been sent by Riverwood to Respond-
ent in April, by recognizing the concept of job classification
seniority for filling vacancies in the finishing department
line-of-progression jobs above the entry level and by elimi-
nating language in the reductions in force in line-of-progres-
sion jobs provision.24 At about this same date, Respondent
sent its version of the parties’ agreed-on collective-bargain-
ing agreement, containing the above language changes, to
Riverwood. Shortly after receiving the suggested contract
language changes and Respondent’s collective-bargaining
agreement, which contained the suggested changes, on June
11, Kelly telephoned Cuellar. ‘‘I told him we were concerned
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 Inasmuch as he was not called as a witness, Cuellar did not
deny this conversation.
26 There is no dispute that Respondent has failed and refused to
execute G.C. Exh. 12, the proffered draft collective-bargaining
agreement.
27 Brooks testified that he utilized the same method for calculating
seniority as was mandated by the previous collective-bargaining
agreement for line-of-progression departments.
28 Respondent would argue that such began the negotiations on the
seniority roster for the finishing department. In contrast, in accord
with Brooks, Broughton Kelly was adamant that no negotiations
were to occur with regard to the roster and that ‘‘we shared [the
data] with people. We shared that with the steward, we shared it
with the union. . . . But there were no negotiations about the proce-
dure to determine how they were going to do this.’’
29 None of the language of the included contract provisions had
been altered or modified by the parties during the negotiations for
the successor collective-bargaining agreement.
30 Brooks denied that classification seniority had ever been utilized
at the Bakersfield plant as a seniority computation method.
31 In answering my question, Brooks denied telling Respondent’s
representatives that the contract language would have to be changed
to accommodate the method by which Respondent desired to com-
pute seniority. During his rebuttal testimony, Brooks explained that,
at the March 12 meeting, he told Respondent’s representatives that
he understood what they wanted in terms of seniority but that the
contract language was quite specific, ‘‘The language says this is the
way I have to do it. This is the way it projects, and if you want
it any other way, I can’t do that for you.’’
32 During cross-examination, Brooks denied showing any classi-
fication seniority list to Respondent’s representatives on March 12
‘‘because it was not developed until after the March 12 meeting, so
that I could show them what classification seniority would do vs.
what job center seniority would do.’’
about the status of the labor agreement, that it had been rati-
fied by the membership . . . in December. Here it is 6 or
7 months later. We do not have a signed labor agreement
from the union at this point in time. . . . we have filled our
commitments and the question was, do we have a contract?
And where is it? And he said yes we do.’’25 According to
Kelly, given what Cuellar said, he immediately telephoned
Sapiro and asked, ‘‘about getting a signed labor agreement,
and he told me . . . we don’t have a contract.’’26
Gary Brooks testified that, subsequent to the ratification of
the successor collective-bargaining agreement and River-
wood’s resulting implementation of the contract’s bonus pay-
ment and other financial items, as the Company’s peak busi-
ness season would begin in February, he immediately com-
menced the task of pulling personnel records in order to de-
termine each finishing department employee’s job center se-
niority.27 After approximately 700 man-hours of work, he
completed a draft seniority list for the finishing department
on or about February 8, 1993, called Armando Flores, the
chief steward, to his office, and showed it to him as a matter
of ‘‘courtesy.’’28 Flores ‘‘reviewed it and responded that this
was not what they were looking for’’ and, as a result, Brooks
sent his above-described February 9 memo to Broughton
Kelly. Brooks further testified that, on February 12, along
with Bill Hodges, the Bakersfield plant manager, and Robert
Abello, the finishing department manager, he met with Jeff
Cuellar and Flores in order to discuss a pending grievance
and his draft seniority list for the finishing department. With
regard to the latter subject, Cuellar ‘‘indicated that there
were some problems with the job center seniority and how
people fell into the position.’’ Brooks replied that he ‘‘need-
ed . . . some help if there’s another way to do it, then . . .
show me.’’ The meeting ended with Respondent’s represent-
atives saying they would respond within 10 days.
As a result what occurred on February 12, another meeting
was scheduled for, and held on, March 12 in a conference
room at Riverwood’s plant. Along with Bernard Sapiro, the
same participants, who attended the previous meeting, were
present, and Brooks began by distributing a multipage docu-
ment, consisting of the seniority, promotion, and demotions,
layoff, and recall sections of the previous collective-bargain-
ing agreement (3 pages);29 the line-of-progression seniority
list for the finishing department which ranks each employee
in job center seniority order (1 page); a ‘‘roll-up’’ seniority
list, which ranks each finishing department employee in job
center seniority order and which sets forth each employee’s
days of work in each finishing department job (1 page); and
the job center order of seniority rankings for every job in the
finishing department (15 pages), to each participant. Then,
utilizing an overhead projector, Brooks displayed the contract
pages, the complete job center seniority list, the roll-up se-
niority list, and one of the job center seniority lists for a par-
ticular job in the finishing department and explained each
document to the participants. According to Brooks, his pres-
entation engendered some ‘‘debate’’ and ‘‘discussion,’’ with
Respondent’s representatives contending that 13 finishing de-
partment employees had been ‘‘adversely effected’’ by the
use of job center seniority and suggesting that ‘‘classification
seniority,’’ the total time spent in a particular job,30 be uti-
lized as the governing principle for determining seniority for
employees in the operator classification and that job center
seniority be used for all other employees in the finishing de-
partment. In response, according to Brooks, he was adamant
that, in view of the specific seniority language of the agreed-
on and ratified successor collective-bargaining agreement,
classification seniority was not an option,31 ‘‘and that’s what
I basically presented.’’ Brooks denied that anyone gave him
with any revised contract language during the meeting.
Although maintaining that he never agreed to use classi-
fication seniority for any employees in the finishing depart-
ment, 2 weeks later, on March 26, Brooks mailed examples
of two finishing department seniority lists to Cuellar—the
first, in accord with Respondent’s representatives’ suggestion
at the March 12 meeting, ranked the operators in classifica-
tion seniority order and the department’s remaining employ-
ees in job center seniority order32 and the second list ranked
all of the department’s employees in job center seniority
order. In his cover letter, Brooks stated that ‘‘because of the
contract language on seniority, Management is submitting the
second example . . . as the proper method in compliance
with the contract.’’ Thereafter, on April 8, Brooks sent to
Cuellar a seniority list, which Riverwood intended to post as
the finishing department’s employees’ seniority ranking and
which was compiled on the basis of job center seniority. In
a cover letter, Brooks stated:
As I have indicated . . . [Respondent’s] version of
Classification Seniority will not work under the current
contract language. There are only two types of Senior-
ity according to the contract . . . . To develop a sys-
tem of seniority outside of the contract language would
violate the contract terms, and would be discriminatory,
989GRAPHIC COMMUNICATIONS UNION DISTRICT 2 (RIVERWOOD INTERNATIONAL USA)
33 Testifying on rebuttal, Brooks denied seeing Sapiro at any time
between December 10, 1992, and March 12, 1993, or having any
telephone contact with him. Further, he denied taking any ‘‘survey’’
of the packers; rather, Department Manager Abello spoke to each
packer on February 18 and 19 as to whether he desired to sign a
1-year waiver for joining the line-of-progression seniority list.
34 Sapiro asserted that this was his first inkling that there was a
problem with the line-of-progression system and believes that Re-
spondent was ‘‘tricked’’ in this regard.
35 Sapiro asserted that he made these changes on a ‘‘flat’’ copy
of the expired collective-bargaining agreement, which had been dis-
tributed by Brooks at the start of the meeting.
Continued
preferential and illegal. Within the Finishing Depart-
ment, there is only one job center. Thus, seniority with-
in the Finishing Department ‘‘job center’’ determines a
worker’s job center seniority. For example, when an
Operator moves (down) into the Feeder classification,
they do so according to their job center seniority in the
Finishing Department. Also, when a Feeder moves (up)
into the Operator classification it must be done accord-
ing to job center seniority . . . .
Corroborating Kelly, Brooks testified regarding the May 3
conference telephone call for which representatives of Re-
spondent and of Riverwood gathered in a conference room
at the plant and spoke with Kelly, who was in Atlanta. Ac-
cording to Brooks, ‘‘their discussion centered around job
center seniority, some thoughts about language . . . the way
it was laid out. And . . . the differences between job classi-
fication seniority as opposed to job center seniority.’’ The
conversation then turned to particular individuals who were
adversely affected by the change from plant to job center se-
niority when the finishing department became a line-of-pro-
gression single job center. Brooks recalled that, while the
participants discussed the affect of the aforementioned se-
niority basis change, Cuellar, asserted, for the first time, that,
during the 1992 bargaining, Riverwood’s representatives had
promised that no one would be harmed. Both he and Kelly
immediately denied that such a commitment had been made.
Armando Flores testified with regard to the March 13
meeting, recalling being present when Brooks presented
slides, depicting different seniority systems. According to
him, the subject of the meeting was the line-of-progression
in the finishing department, and ‘‘the discussion was on
where the people were going to be slotted in. I mean the se-
niority was going to place them in.’’ Continuing, Flores said
that, previously, ‘‘we had agreed upon the line of progres-
sion. . . . that we’d talked about in negotiations,’’ and he
believed that the parties had agreed who would be placed
where. At one point in the meeting, according to Flores,
‘‘Mr. Brooks . . . said he couldn’t do anything unless we
had changes on the progression, on the wording of it. . . .
And Mr. Sapiro got the contract and he scratched out some
words . . . so we could go with the line of progression.’’ He
added that Respondent’s committee discussed and approved
what Sapiro had done, and Sapiro gave the changes to
Brooks, who said he would discuss these with Hodges be-
cause he didn’t have authority to agree. During cross-exam-
ination, Flores recalled that, in February, Brooks showed him
a finishing department seniority list, and ‘‘I [remember] tell-
ing him that was not what was proposed and that’s not what
we had agreed upon.’’ Flores denied looking for his own
name on the list. During cross-examination with regard to the
March 12 meeting, Flores couldn’t recall whether Brooks
distributed any of the materials, which he used for his over-
head projections, and, with regard to Sapiro’s written sug-
gested changes in contract language, he recalled, ‘‘I think he
gave it to [Brooks] or he suggested to [Brooks] what [the
new language should be].’’ On the latter point, ‘‘I’m saying
I don’t recall if he physically gave it to [Brooks] or he told
[Brooks] verbally . . . what to do.’’ As to what Sapiro was
proposing, Flores then conceded that what the former was
doing was changing the contract language to accommodate
what Respondent wanted the seniority system to be in the
finishing department; that Brooks’ response was that he did
not have the authority to do that but would check with the
plant manager; and that the existing contract language would
not permit what Respondent was seeking.
Bernard Sapiro recalled that, pursuant to a request from
Jeff Cuellar, he was present at a meeting at Riverwood’s Ba-
kersfield plant on or about February 12, 1993. He testified
that the meeting lasted several hours; that the purpose of it
‘‘was to attempt to work out . . . some differences between
the company and the union local committees on how the new
progression in the finishing department was to be applied’’;
and that ‘‘we discussed how . . . the seniority in the finish-
ing department with the new progression was going to be ap-
plied’’ and ‘‘a conclusion’’ was reached. Sapiro further re-
called that no specific employees were discussed—just ‘‘jobs
and classifications‘‘—and that Brooks said, at the end, that
he wanted ‘‘to survey’’ the packers in the finishing depart-
ment as to which wished to be promoted and which did
not.33 Sapiro next testified regarding the March 12 meeting,
which was held in the conference room at the plant, lasted
several hours, and was attended by Brooks and one or two
other company officials and by himself, Cuellar, Flores, and
other bargaining unit employees. He recalled that Brooks uti-
lized ‘‘a slide show’’ of three different seniority lists; that
there were papers attached to a blackboard; that Brooks ex-
plained, ‘‘why he put people there, why he gave them this
credit and that credit and it was a very thorough expla-
nation’’ as to where employees fit into the seniority lists and
why each list had different placements; and that Brooks an-
swered questions from Respondent’s representatives. Accord-
ing to Sapiro, when Brooks concluded, ‘‘there was a discus-
sion and there were some questions on whether a particular
person should be here or there.’’ As a result, ‘‘there was
some movement of individuals . . . but there didn’t seem to
be much difference of opinion on what the movement should
be’’ and Brooks, Cuellar, Flores, and the other participants
agreed that much of what was discussed ‘‘made sense.’’
Continuing, Sapiro testified that, when he was about to leave
the meeting, Brooks announced, ‘‘that he could not imple-
ment this schedule without a change in the contract lan-
guage. . . . I said . . . yes you can, let’s just do it . . . we
spent a heck of a lot of time and a lot of trouble and let’s
just do it. . . . He said I can’t do it without a language
change. And I said I think you can.’’34 Thereupon, according
to Sapiro, he and Brooks engaged in an argument over who
should propose the contract language changes, with each say-
ing the other should do so. At this point, Sapiro testified, he
met with Cuellar, Flores, and the other employees and sug-
gested some changes in the contract seniority language.35
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Notwithstanding that a photocopying machine was available, Sa-
piro did not retain a copy of his proposed new contract language but
believed that what he changed was in sec. 11.2 of the parties’ agree-
ment and that the new language was ‘‘when the permanent vacancy
occurs in a line of progression job that is above the entry level in
the finishing department it shall be filled by advancing the individual
who has the most seniority in the job vacancy and is working in the
wage classification directly below the vacancy.’’ In effect, this
would establish classification seniority in the finishing department.
36 Brooks specifically denied that Sapiro handed to him any pro-
posed contract language changes during the March 12 meeting.
37 Sapiro conceded preparing and mailing G.C. Exh. 13 to Kelly
in early June.
38 Sapiro testified that he failed to retain a copy of the cover letter
for in his files. He added that Brooks never responded to this docu-
ment. Notwithstanding his direct examination testimony, during
cross-examination, Sapiro was confronted with a sworn affidavit,
which he gave to the Board in connection with another matter and
in which he failed to mention sending anything to Brooks and stated
that nothing occurred between the March 12 meeting and his receipt
of the draft collective-bargaining agreement from Riverwood on or
about April 13.
Brooks denied seeing the contract language changes, set forth on
the second page of G.C. Exh. 13, prior to receiving a copy of the
document from Broughton Kelly on June 14 and specifically denied
seeing the changes in the 2-week period after the March 12 meeting.
39 Sapiro denied any later conversation with Kelly and denied tell-
ing the latter that the parties do not have a labor agreement. During
cross-examination, however, he was confronted with his sworn affi-
davit in which he admitted receiving a telephone call from Kelly
after June 15 during which Kelly asked him why Respondent would
not execute the draft collective-bargaining agreement and, during
which, Sapiro asked Kelly why he did not agree with what Sapiro
had written on June 7.
Then, ‘‘I brought [the contract language changes] back to
Mr. Brooks after clearing it with the committee and Mr.
Cuellar,’’ and the latter ‘‘said it looks okay to him but he
has to run it by other people that he can’t make that deci-
sion.’’36 Conceding that what he did was changing the se-
niority terms of the parties’ December 10 agreement, which
had been ratified by the bargaining unit employees, Sapiro
averred that he did so ‘‘because Mr. Brooks said he couldn’t
do what we mutually agreed we wanted to do . . . without
a change in the contract language.’’ Sapiro testified further
that he returned to his Los Angeles office after the meeting
and that, ‘‘within a week’’ of the meeting and certainly
‘‘within two weeks,’’ he prepared the second page of Gen-
eral Counsel’s Exhibit 13, the document received by
Broughton Kelly on or about June 7,37 and immediately
mailed a copy to Gary Brooks. Conceding that the latter
never requested that he do so, Sapiro stated that he drafted
the proposed contract language changes based on ‘‘the fact
that this . . . [had been] written in haste’’ and ‘‘because if
he was going to run this by other people in [the original]
form, I didn’t think it was . . . appropriate’’ and that, just
as he did in June, he mailed the document to Brooks with
an attached cover letter.38
Sapiro next testified that he heard nothing from Riverwood
until receipt of the written version of the parties’ successor
collective-bargaining agreement from Brooks in early April.
Sapiro noted that the draft agreement contained none of the
language changes, which he had submitted to Brooks, con-
sidered it to be a ‘‘response’’ to the proposed changes, but
‘‘made no immediate response because Mr. Brooks was re-
sponsible for getting the contract straightened out.’’ There-
after, sometime during the next 2 months but prior to June
7, Sapiro telephoned Kelly, and attempted ‘‘to explain why
we couldn’t sign the contract since the person administering
the contract said they couldn’t implement the seniority provi-
sion . . . that both parties wanted . . . implemented. And,
what was his objection to my language . . . And his reply
was . . . that Gary Brooks says . . . with the language in
the contract . . . he can’t implement what he finally agreed
to. . . . Gary’s probably right.’’ Sapiro replied that the issue
was not whether or not Brooks was correct but to get the
matter resolved. Kelly then ended the conversation with the
comment, ‘‘you sign the contract first and then we’ll discuss
any modifications;’’ Sapiro declined to do so.39
During his cross-examination regarding events subsequent
to ratification of the December 10 successor collective-bar-
gaining agreement, Sapiro admitted that, in the cover letter
of General Counsel’s Exhibit 13, his June 7 letter and attach-
ment to Kelly, his reference to negotiations was to those that
ended on December 10, 1992, and there was no reference to
what assertedly occurred on March 12 and that, neither on
nor after March 12, did Brooks, on behalf of Riverwood,
ever accede to Respondent’s contract language proposal. He
also admitted that Respondent has refused to execute the me-
morialized version of the parties’ December 10 agreement,
stating that Respondent could not do so unless the seniority
clause language is changed to perpetuate the parties’ intent.
Further, while claiming a lack of knowledge as to whether
Respondent ever proposed classification seniority during the
1992 negotiations, he conceded that the parties did not agree
to change the existing seniority language but added that, at
the time of ratification, ‘‘we had no idea that there was a
need for a language change in order to implement.’’
B. Legal Analysis and Conclusions
The complaint alleges that Respondent engaged in con-
duct, violative of Section 8(b)(3) of the Act, by failing and
refusing to execute the General Counsel’s Exhibit 12, the
draft collective-bargaining agreement that embodies the par-
ties’ December 10, 1992 agreement on a successor collec-
tive-bargaining agreement. There is no dispute as to the ap-
plicable legal principles herein. Thus, there can be no ques-
tion that an employer fails to bargain in good faith when it
fails in its obligation to execute a memorialized collective-
bargaining agreement, which fully encompasses the terms of
an agreement between itself and a labor organization. H. J.
Heinz Co. v. NLRB, 311 U.S. 514 (1941). It is equally well
established that a labor organization breaches its concomitant
duty to bargain in good faith with an employer, and acts in
violation of Section 8(b)(3) of the Act, when it refuses, on
request, to execute a written collective-bargaining agreement,
which fully and completely embodies whatever agreements
the parties have reached. Teamsters Local 617 (Christian
Salvesen), 308 NLRB 601, 602 (1992); Auto Workers Local
365 (Cecilware Corp.), 307 NLRB 189, 192 (1992); Team-
sters Local 70 (Emery Worldwide), 295 NLRB 1123 (1989);
Machinists Local 701 (Avis Rent A Car), 280 NLRB 1312
(1986). The existence or nonexistence of an agreement is a
question of fact. Metro Medical Group, 307 NLRB 1184
(1992). Moreover, minor discrepancies, which may exist, do
991GRAPHIC COMMUNICATIONS UNION DISTRICT 2 (RIVERWOOD INTERNATIONAL USA)
40 In the same vein, Kelly’s denials that the intent of the parties,
during bargaining, was that there should be mutual agreement, if not
bargaining, on the finishing department seniority roster seem not
credible.
41 I credit Kelly and Brooks that the former never stated to Re-
spondent’s bargaining committee that Riverwood’s intent was that no
Continued
not relieve a party’s obligation to execute an agreement. Ben-
nett Packaging Co., 285 NLRB 602 (1992).
The determination as to whether Respondent and River-
wood reached agreement on a full and complete collective-
bargaining agreement on December 10, 1992, one which was
ostensibly ratified by the bargaining unit employees 2 days
later and the memorialized version of which Respondent has
failed and refused to execute on grounds that the document
does not represent the parties’ agreement, is a question of
fact and requires resolution of the significant credibility con-
flicts found in the record. At the outset, in this regard, An-
thony Aguiler, who testified on behalf of the General Coun-
sel, was the most impressive of the five witnesses. His de-
meanor, while testifying, was that of an honest and straight-
forward witness, and I note that, having voluntarily termi-
nated his employment with Respondent on December 15,
1992, he had no interest in the outcome of this proceeding.
In contrast, Respondent’s chief shop steward in the Bakers-
field plant, Armando Flores, was the least impressive of the
five witnesses. Not only was his demeanor, while testifying,
that of a less than candid witness but also he exhibited a
flawed memory, his assertion that the parties had agreed on
job classification seniority for the employees in the finishing
department was contradicted by the lack of any written con-
firmation and directly by Bernard Sapiro, and, most signifi-
cantly, rather than looking directly at me, he averted me and
cast his eyes downward when taking the oath. Based on the
foregoing, I shall credit and rely on the testimony of Aguiler
and place no reliance on the testimony of Flores.
Neither Broughton Kelly, Gary Brooks, nor Bernard Sa-
piro impressed me as being a particularly truthful witness,
with each seeming to testify in accord with his own trial
agenda. Thus, Kelly’s repeated denials that, during the Octo-
ber 6, 1992 bargaining session or, indeed, at any time during
the bargaining, he ever stated or agreed that resolution of the
‘‘details’’ of the seniority structure in the finishing depart-
ment would be deferred until subsequent to ratification of the
parties’ eventual contract agreement, was contradicted by all
other witnesses and by Riverwood’s own bargaining notes.
Likewise, given his two subsequent meetings with Respond-
ent’s representatives and bargaining unit employees on the
subject and subsequent preparation of several forms of se-
niority rosters, Brooks’ assertion that he met with Flores and
showed him his initial draft of the seniority roster for the fin-
ishing department employees only as a matter of ‘‘courtesy’’
is questionable.40 Also, noting that he never made a photo-
copy of the language changes, which he assertedly gave to
Brooks on March 12, 1993, or retained a copy of the cover
letter, to which was attached a copy of the second page of
General Counsel’s Exhibit 13 and which was assertedly sent
to Brooks within a week or two of the above meeting, that
Brooks’ language in his March 26 and April 8 correspond-
ence to Cuellar is wholly inconsistent with Respondent’s
contention that Brooks either accepted job classification se-
niority or approved contract language changes, which adopt-
ed such seniority, at the March 12, 1993 meeting, that Re-
spondent’s June 7 cover letter, to which the second page of
Respondent’s Exhibit 13 was attached, fails to mention that
the suggested contract language had been offered to and
seemingly approved by Brooks on March 12, and that his
trial testimony was inconsistent with sworn affidavit testi-
mony as to what occurred after the March 12 meeting,
Sapiro’s account of the meeting and his assertion that he sent
a copy of the second page of General Counsel’s Exhibit 13
to Brooks no more than 2 weeks after the meeting are of du-
bious reliability. While reiterating that none of the three indi-
viduals impressed me with his veracity, Anthony Aguiler
corroborated Kelly and Brooks on a vital point—that the par-
ties discussed how seniority in the finishing department
would be determined and it ‘‘was the time you had in the
department.’’ Further, the documentary evidence, in particu-
lar his March 26 and April 8 memos to Cuellar, corroborates
Brooks as to what he agreed and did not agree on March 12.
Finally, I note that Respondent failed to call Jeff Cuellar as
a corroborative witness or for Sapiro or to controvert the tes-
timony of Brooks and Kelly and failed to offer any expla-
nation for not doing so. I find this crucial as Cuellar not only
participated in the contract bargaining but also was Respond-
ent’s spokesperson at the March 12 meeting. In these cir-
cumstances, whenever they conflict, I shall credit the testi-
mony of Gary Brooks over that of Bernard Sapiro, and I
shall rely on the testimony of Broughton Kelly when
uncontroverted or corroborated by others.
Based on my aforementioned credibility resolutions and
the record as a whole, I find that, at the outset of the 1992
negotiations between Respondent and Riverwood for a suc-
cessor collective-bargaining agreement, among each party’s
proposed changes from the existing contract terms, was an
offer that the finishing department be converted to a line-of-
progression department; that eventual agreement on this mat-
ter was reached on September 3; that the parties agreed that,
if unchanged, an existing contract provision would be in-
cluded in the successor agreement and neither party ever pro-
posed any change in the seniority provisions of the expired
collective-bargaining agreement; that, during the October 6
bargaining session, Broughton Kelly and Bernard Sapiro
agreed to defer discussion of the ‘‘details,’’ pertaining to the
placement of the finishing department employees in a senior-
ity roster, until after ratification of a successor collective-bar-
gaining agreement and to give Gary Brooks the responsibility
for researching the number of days each current finishing de-
partment employee worked in the department and for draft-
ing an initial seniority roster; and that, at the October 6 bar-
gaining session, Kelly and Sapiro also agreed that River-
wood’s Bakersfield plant management officials and Respond-
ent and its shop stewards would meet and mutually resolve
any problems concerning Brooks’ draft seniority list. More-
over, I find that, neither party proposed that the expired con-
tract’s seniority provisions not apply to the finishing depart-
ment; and that, during the October 6 bargaining session,
Kelly informed Sapiro that Brooks would adhere to the
above provisions with regard to formulating the seniority ros-
ter for the finishing department and the parties discussed, as
the criterion for the placing of employees on a seniority ros-
ter, their entire time in the finishing department.41 I further
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees or the fewest possible number of employees would be
harmed by the change of the finishing department to a line-of-pro-
gression department.
42 Assuming arguendo that a subjective misunderstanding existed
on this point, the law is clear that ‘‘the expression ‘meeting of the
minds’ in contract law does not literally require that both parties
have identical subjective understandings on the meaning of material
terms in the contract. Rather, subjective understanding (or misunder-
standings) as to the meaning of terms which have been assented to
are irrelevant, provided that the terms themselves are unambiguous
. . . .’’ Vallejo Retail Trade Bureau, 243 NLRB 762, 767 (1979);
Teamsters Local 287 (Reed & Graham), 272 NLRB 348 (1984).
Here, no party argues that any term of G.C. Exh. 12, the draft agree-
ment, which was submitted to Respondent for execution in mid-
April, is ambiguous. Indeed, that the terms of the seniority provi-
sions of the collective-bargaining would mandate the application of
job center seniority in the finishing department seems clear given
Respondent’s proposed language changes.
43 Aguiler, whose testimony was the most credible here, stated that
the details, which were to be resolved by the company and the shop
stewards, involved ‘‘where everybody was supposed to go in the
line’’ and that nothing else was involved.
44 On this point, I note that Flores and Sapiro asserted that River-
wood agreed that no employee would suffer harm as a result of
transforming the finishing department into a line-of-progression de-
partment; however, I credit Brooks that such a claim was first raised
during the May 3, 1993 telephone conference call and credit Brooks
find that, on December 10, 1992, the parties reached agree-
ment on all changes from the expired collective-bargaining
agreement’s terms and conditions of employment and shook
hands on their agreement; that, later on December 10, River-
wood prepared and submitted to Respondent a ‘‘golden-rod’’
version of all the agreed-on contract changes; that the docu-
ment accurately set forth the agreements of the parties; that,
on December 12, the bargaining unit employees ratified a
successor collective-bargaining agreement, consisting of the
expired terms and conditions of employment and all agreed-
on changes; that, later on December 12, Jeff Cuellar tele-
phoned Brooks and informed him, without qualification, of
the ratification; that, shortly thereafter, Riverwood placed all
economic aspects of the parties’ agreement into effect; and
that, on April 12, Riverwood submitted a draft collective-bar-
gaining agreement, which embodied the terms of the parties’
December 10 agreement on a successor to their expired con-
tract, to Respondent for execution.
As evidenced by the meeting participants’ handshakes on
December 10, 1992, by the bargaining unit employees’ un-
qualified ratification on December 12, by Riverwood’s subse-
quent implementation of the economic aspects, and by each
party’s own understanding of what occurred, there can be no
doubt that, on December 10, both Respondent and River-
wood believed that they had reached full and complete agree-
ment on the terms of a successor collective-bargaining agree-
ment, including the conversion of the finishing department to
one with line-of-progression jobs, and, based on my above
findings, the record warrants the conclusion that, in fact, an
agreement was reached on the language of a successor agree-
ment. Notwithstanding their agreement on the wording of an
agreement, however, the real issue is whether the parties ar-
rived at a ‘‘meeting of the minds’’ as to all aspects of their
bargaining, particularly regarding the application of job cen-
ter seniority to the finishing department and what matters
were deferred for resolution until subsequent to ratification.
As to the former, as set forth above, each party engaged in
bargaining, understanding that the negotiations concerned
proposed changes from that which had been set forth in, and
existed pursuant to, the expired collective-bargaining agree-
ment and that, unless either proposed to change some aspect
of the prior agreement, said provision would remain as a
term of the successor agreement. Thus, neither party pro-
posed changing any aspect of the seniority provisions of the
expired agreement, including the forms of seniority and ap-
plications thereof and how an employee’s seniority should be
calculated, and, accordingly, there can be no doubt that the
parties intended to include the entire seniority provision of
their predecessor agreement in the successor agreement.
Therefore, as Sapiro reluctantly admitted, given that the fin-
ishing department had been converted to a line-of-progres-
sion job structure, one may reasonably infer that, as with all
other line-of-progression departments in Riverwood’s Bakers-
field plant, the parties intended, and clearly understood, that
job center seniority would apply in devising a seniority roster
for the department’s employees. Of course, such an inference
is not necessary, for not only did Sapiro fail to object to
Kelly’s statement that the company would apply the contract
in determining seniority in the finishing department but also,
as Aguiler reliably testified, the parties discussed seniority as
being based on ‘‘the time you had in the department . . . .’’
In the above circumstances, I am convinced that a meeting
of the minds had occurred with regard to the application of
job center seniority to the seniority placement of employees
in the finishing department.42
Moreover, I believe that the parties also reached a meeting
of the minds as to the matters which were to be deferred for
resolution until after ratification of the successor collective-
bargaining agreement. Thus, while not being frank with re-
gard to stating that discussion of the details, pertaining to se-
niority in case of promotion and layoff, should be deferred,
Kelly, who was corroborated by Aguiler on this point,43 stat-
ed that what remained was the formulation of the seniority
roster for the finishing department. Likewise, Sapiro testified
that the details, which remained unresolved at the conclusion
of bargaining involved the placement of the finishing depart-
ment employees into a seniority roster. Further, as conceded
by Sapiro, the parties agreed that Gary Brooks would be
charged with the responsibility for researching each finishing
department employee’s time on each job in the department
and for drafting an initial seniority list.
In his posthearing brief, counsel for Respondent argues
that there was no meeting of the minds over either the appli-
cable seniority method for the finishing department or what
matters were to be deferred for resolution; however, as set
forth above, the record evidence does not support such an ar-
gument. Thus, not only have I credited the testimony of
Aguiler and of Brooks that Kelly said that the company
would apply the contract in determining seniority for the fin-
ishing department employees and that he also explained that
each finishing department employee’s seniority would be
based on his time in the department but also Sapiro himself
reluctantly conceded that Kelly made the former comment.
Nevertheless, Respondent’s counsel argues that, ‘‘because the
company and the union had different goals in mind, it is rea-
sonable to conclude that the parties had different ideas about
what they agreed to during negotiations.’’44 Assuming there
993GRAPHIC COMMUNICATIONS UNION DISTRICT 2 (RIVERWOOD INTERNATIONAL USA)
and Kelly that the latter never made such a statement during the
1992 bargaining.
45 Counsel argues that the unresolved ‘‘details’’ involved more
than merely the placing of employees in a seniority roster, specifi-
cally that they concerned ‘‘how the line-of-progression system would
be implemented in the finishing department,’’ including bumping
rights. I disagree. Thus, while, contrary to his testimony, I believe
Kelly understood and stated that ‘‘details’’ would have to be re-
solved at some future date, he credibly testified that what was de-
ferred concerned researching each finishing department employee’s
time in each finishing department job, adding the days spent on the
jobs, and placing the employees in order of their total time in a se-
niority roster. Contrary to counsel, Sapiro also understood this to be
what remained to accomplish. Thus, asked by me whether all that
was involved in flushing out the details concerned fitting the em-
ployees into a seniority roster, Sapiro answered, ‘‘Yes.’’ Then, asked
if anything else was involved, Sapiro answered, ‘‘No.’’ Finally,
asked if what remained was just the development of the seniority
roster, Sapiro said, ‘‘Yes.’’
46 The parties disagreed over the language of, at least, 11 articles
of the alleged contract, including the interpretation of the health in-
surance provision.
47 I do not credit Sapiro’s testimony that he was present at the
February 12 meeting.
is validity to this statement, as set forth above, given unam-
biguous contract terms, such as apparently involved here,
that parties to an agreement may have different subjective
understandings as to the meaning of the contract terms does
not mean that there has been no meeting of the minds as to
the terms. Vallejo Retail Trade Bureau, supra. As to the sec-
ond part of counsel’s argument, based on the testimony of
Aguiler and Kelly and the concession of Sapiro, there can be
no doubt that the parties agreed that what details remained
for resolution involved the placing of employees into a se-
niority roster.45 Although counsel also argues that the parties
may have agreed to utilize a seniority system for the finish-
ing department different than that used for the other line-of-
progression departments, there just is no record evidence to
support such a view; rather, as discussed above, no bargain-
ing participant proposed that the existing seniority provision
not apply to the finishing department. Based on the fore-
going, I reject counsel’s contention that no meeting of the
minds on the above matters occurred here.
Counsel for Respondent next argues that Respondent is
under no obligation to execute General Counsel’s Exhibit 12
inasmuch as the parties agreed to mutually resolve the place-
ment of finishing department employees in a seniority roster,
as, at the March 12 meeting, the parties could not agree on
the seniority roster for the finishing department employees,
and as such establishes a disagreement over substantive
terms of the parties’ agreement. In support, counsel cites to
Luther Manor Nursing Home, 270 NLRB 949 (1984). There-
in, the Board refused to order an employer to execute a draft
collective-bargaining agreement as the parties disagreed over
the substance of certain contract terms and, as ‘‘the requisite
meeting of the minds as to all substantive matters did not
occur.’’ Id. at 949 at fn. 1.46 Contrary to counsel, I find the
cited decision to be inapposite. Thus, Luther Manor con-
cerned the failure of the parties to reach a true meeting of
the minds over substantive provisions of an asserted collec-
tive-bargaining agreement. Here, the simple fact is that the
seniority roster for the finishing department was never con-
sidered to be a substantive term of the December 10 agree-
ment between Respondent and Riverwood. Rather, it was an
extraneous matter, the formulation of which happened to be
governed by the terms of the parties’ collective-bargaining
agreement, and disagreements over the seniority positions of
individual employees would have only delayed final agree-
ment on a successor collective-bargaining agreement. This is
the precise reason why the parties deferred resolution of the
seniority roster until after the conclusion of the contract bar-
gaining. That my view is correct is clear from the testimony
of Respondent’s president, Sapiro, who stated that ‘‘you
don’t need [the seniority roster] in the contract language.’’
Put another way, final agreement on the successor contract
was not dependent on resolution of the finishing department
seniority roster. Accordingly, this argument is without merit.
At the hearing, counsel for Respondent advanced another
defense—that, inasmuch as, at the March 12 meeting, the
parties agreed to a seniority list governed by classification
seniority, as Brooks said such would require a change in the
seniority language of the contract, as Sapiro drafted new lan-
guage, as Brooks said that such was acceptable to him, and
as Riverwood, therefore, recognized that the parties’ Decem-
ber 10 agreement required change, Respondent was no longer
under no obligation to execute General Counsel’s Exhibit 12.
Contrary to counsel, however, and based on my belief that
Gary Brooks was a more reliable witness than Bernard
Sapiro, I find that, at the start of the March 12 meeting,
Brooks distributed a document, consisting of the existing
contract seniority provisions, a job center seniority roster for
the finishing department employees, a roll-up job center se-
niority roster showing each finishing department employee’s
time spent in each department job, and seniority rosters for
each wage classification in each job based on job center se-
niority; that, using an overhead projection system, Brooks
then displayed three of the above seniority lists; that a dis-
cussion ensued, with Respondent officials stating their objec-
tions to the placement of, at least, 13 individuals on Brooks’
draft seniority roster and suggesting that the problem could
be resolved by computing the seniority of the employees in
the operator position on the basis of classification seniority
and the remaining finishing department employees’ seniority
on the basis of job center seniority; that Brooks replied that,
in view of the existing contract seniority language, classifica-
tion seniority was not an option to be considered; that, at no
time during this meeting, did Brooks and Respondent agree
on any seniority roster, computed on the basis of classifica-
tion seniority, for the finishing department employees; that,
at no time during this meeting did Brooks state that he could
not implement the agreed-on seniority roster without chang-
ing the contract seniority provision; and that, at no time dur-
ing this meeting, did Bernard Sapiro, who attended the meet-
ing,47 draft new contract language, which would provide a
contractual basis for such a seniority list, and give it to
Brooks. Accordingly, as I do not believe that, at the March
12 meeting, the parties agreed to a finishing department se-
niority roster, which incorporated classification seniority,
Brooks requested new seniority language, or Sapiro drafted
such language and gave it to Brooks, I find that the credible
record evidence does not support this asserted defense.
Based on the foregoing, I believe that, on December 10,
1992, Respondent and Riverwood arrived at a meeting of the
minds on all of the substantive terms of a successor collec-
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
48 In agreement with counsel for the General Counsel, after close
scrutiny of the record, it is evident, to me, that the crux of Respond-
ent’s problem is not that G.C. Exh. 12 does not represent the agree-
ments between itself and Riverwood but, rather, that executing the
document would perpetuate Respondent’s serious error in judgment
during the 1992 negotiations, which resulted in 13 finishing depart-
ment employees becoming harmed by the transformation of the fin-
ishing department into a line-of-progression department. Clearly, nei-
ther Respondent nor the bargaining unit employees correctly cal-
culated the effect job center seniority would have on the employees
in the finishing department and did not realize, during the negotia-
tions, that changes were necessary in the contract seniority language
in order to avoid resulting harm. Respondent, however, may not re-
scind its agreement with Riverwood on such a basis.
49 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
50 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
tive-bargaining agreement, which was ratified by the bargain-
ing unit employees 2 days later and the economic terms of
which were immediately implemented by Riverwood. There
is no dispute that, on or about April 12, 1993, Riverwood
submitted a draft collective-bargaining agreement (G.C. Exh.
12), which combined the unchanged provisions of the ex-
pired contract and the parties’ December 10 agreements,
which had been memorialized in the so-called golden-rod
document, to Respondent for the latter’s signature or that Re-
spondent has failed and refused to execute said document.
Inasmuch as there is no contention that General Counsel’s
Exhibit 12 misrepresented the parties’ December 10 agree-
ment, I find that Respondent violated Section 8(b)(3) of the
Act by failing and refusing to execute said a copy of said
document. Teamsters Local 617 (Christian Salvesen), supra;
Auto Workers Local 365 (Cecilware Corp.), supra; Electrical
Workers IBEW Local 3 (Eastern Electrical), 306 NLRB 208
(1992).48
CONCLUSIONS OF LAW
1. Riverwood is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. Since on or about April 12, 1993, by failing and refus-
ing to execute the draft collective-bargaining agreement,
which embodies the December 10 agreement between itself
and Riverwood on a successor collective-bargaining agree-
ment, Respondent has engaged in acts and conduct violative
of Section 8(b)(3) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in unfair labor
practices, violative of Section 8(b)(3) of the Act, I shall rec-
ommend that it be ordered to cease and desist therefrom and
to take certain affirmative action necessary to effectuate the
purposes and policies of the Act. I have found that Respond-
ent is the collective-bargaining representative of Riverwood’s
production and maintenance employees, engaged in bargain-
ing with Riverwood, and, on December 10, 1992, reached a
meeting of the minds with Riverwood on the terms of a suc-
cessor collective-bargaining agreement. Further, I have found
that Respondent has failed and refused to execute a draft col-
lective-bargaining agreement, which was submitted to it on
or about April 12, 1993, and which embodies the December
10 agreements. Accordingly, I shall recommend that Re-
spondent be ordered, on request by Riverwood, to execute
the draft agreement.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended49
ORDER
The Respondent, Graphic Communications Union, District
Council No. 2, AFL–CIO, Bakersfield, California, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Failing and refusing to execute the draft collective-bar-
gaining agreement that was submitted to it on or about April
12, 1993, and which embodies the agreement reached be-
tween itself and Riverwood on a successor collective-bar-
gaining agreement on December 10, 1992.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, forthwith execute the draft collective-bar-
gaining agreement, which was submitted to it by Riverwood
on or about April 12, 1993.
(b) Post at its office and meeting halls in Los Angeles and
Bakersfield, California, copies of the attached notice marked
‘‘Appendix.’’50 Copies of the notice, on forms provided by
the Regional Director for Region 31, after being signed by
the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT fail and refuse to sign the collective-bar-
gaining agreement, which was submitted to us by Riverwood
International USA, Inc., a subsidiary of Manville Corporation
995GRAPHIC COMMUNICATIONS UNION DISTRICT 2 (RIVERWOOD INTERNATIONAL USA)
(Riverwood), on or about April 12, 1993, and which em-
bodies the terms of our December 10, 1992 agreement with
Riverwood on the terms of a successor collective-bargaining
agreement.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed to you by
Section 7 of the Act.
WE WILL, on request, forthwith execute the collective-bar-
gaining agreement, which was submitted to us by Riverwood
on or about April 12, 1993.
GRAPHIC COMMUNICATIONS UNION, DISTRICT
COUNCIL NO. 2