Interprint Co.

National Labor Relations Board - Board Decisions

Feb 12, 1985

273 N.L.R.B. 1863 (N.L.R.B. 1985)

INTERPRINT CO 1863
Interprint Co. and Graphic Arts International
Union, Local 14L, AFL-CIO, CLC. Case 4-
CA-11919
12 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 14 May 1982 Administrative Law Judge
Walter J. Alpnn issued the attached decision. The
Respondent filed exceptions and a supporting
brief.' The General Counsel filed cross-exceptions
to the judge's decision and a brief.
The National Labor Relations Board has consid-
ered the decision and the record in light of the ex-
ceptions and briefs and has decided to affirm the
judge's rulings, findings, 2 and conclusions only to
the extent consistent with this Decision and Order.
The issue presented in this case is whether the
parties had reached a meeting of the minds on the
terms and conditions of the collective-bargaining
agreement. The judge found that the Respondent
violated Section 8(a)(5) and (1) of the National
Labor Relations Act by refusing to execute an
agreed-upon contract. We disagree with his finding
that the Respondent violated Section 8(a)(5) and
(1) of the Act by refusing to execute the draft since
we hold there was no agreement on the terms of
the proposed contract.
The essential facts are as follows: Representa-
tives from the newly certified Union and the Re-
spondent met at 10 bargaining sessions between 12
March and 23 September 1980 and agreed on nu-
merous items by initialing them. At the first session
the Union advised that its practice was to have the
employees vote to ratify any contract. It was also
agreed that noneconomic issues would first be ne-
gotiated before economic items, and that there
would be no complete contract until final agree-
ment was reached on all items.
After the parties could not agree on a number of
items at the 21 July 1980 meeting, the Union's local
representative Ed Toff contacted the Federal Me-
diation and Conciliation Service for assistance.
After the second meeting with the Federal media-
tor on 17 September 1980 the mediator told the
Union that Interprint was not going to move from
its last offer. The Union on 23 September 1980 held
a vote to decide whether to accept the Company's
final proposal. Toff called J. P. Jones, attorney for
1 The Respondent has requested oral argument The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties
2 In the first paragraph of sec D of the judge's decision the date 24
November should read 24 September
Interprint, and told him that the employees had
ratified the contract. Toff testified Jones said, "Oh,
okay." Toff said he would draw up a contract and
mail it for Jones' signature. Toff testified Jones re-
sponded, "Fine." Toff prepared the final contract
using articles initialed by both sides, his own notes
of issues agreed to during negotiations, and Inter-
print's proposals which had not been agreed to by
the Union during negotiating sessions. Three copies
of the contract were mailed to Jones on 5 Novem-
ber 1980 with a cover letter asking Jones to ap-
prove and sign the contracts. After more than 2
months, on 20 January 1981, the Union sent a fol-
lowup letter. Jones responded 29 January 1981
saying the Employer had some doubt as to whether
a collective-bargaining agreement had ever been
reached.
The judge found that there was a meeting of the
minds once the Union accepted the Employer's
proposals regarding not previously agreed-upon
items and therefore the resulting contract, albeit in-
artistically and inaccurately drawn, was binding on
both parties. We find, contrary to the judge, that
this is not a case in which the parties had a meeting
of the minds that is not reflected in the proffered
draft merely because it was inartistically or inaccu-
rately drawn. Instead, it is clear that the parties
here failed to discuss, much less agree to, certain
important clauses in the draft and that certain other
clauses, allegedly agreed on, were omitted or al-
tered by the Union.
First, there were no commencement and termina-
tion dates in the draft proposal. These had been left
blank. The judge takes care of this inadvertence by
noting that "generally" the effective date of a con-
tract is the date on which the offer is accepted
which would be the date that the Union agreed to
the proposed contract on 23 September 1980. Aside
from begging the question, this sort of analysis,
whether or not it is reasonable, is no substitute for
an express agreement of the parties. See Mercedes-
Benz, 258 NLRB 803 (1981).
In fact, Toff admitted at the hearing that at no
time during the negotiations did the parties discuss
or agree to a commencement date for the contract.
The Board will not write a contract for the parties
on the basis of what is "generally" done in these
circumstances.
Second, there were several clauses that were
omitted or altered by the Union in its proffered
draft to make the draft more acceptable to the
Union. For example, Interprint's proposal in article
19 dealing with transfer of equipment stated:
The Company agrees that it will not transfer
equipment to any other plant or location when
273 NLRB No. 222
1864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such equipment transfer will result in the lay
off of bargaining unit employees. This section
shall in no way be construed to prevent the
sale of equipment even if such sale results in
lay offs, but in such event, the rights of the
employees will be determined under the se-
niority provisions of this Agreement.
The altered version submitted to Interprint, as
written by Toff, said:
The Company agrees that it will not transfer
equipment to any other plant or location when
such equipment transfer will result in the lay
off of bargaining unit employees. This section
shall, in no way, be construed to prevent the
sale of equipment, except to a plant or subsidi-
ary company of Interprint or A.U.S. (Associated
Utilities Service).
Toffs explanation for changing the provision
was, "I wrote that in there because I thought the
language would be acceptable to me if we inserted
that. And it ended up getting into the final contract
when it was typed because it was on there. It
really doesn't belong in the final contract; it should
be taken out of there." The willingness of the
Union, at the hearing, to concede that certain
clauses should have been included in the contract
or retained in their original form does not convince
us that there has been a meeting of the minds on 23
September 1980.
Third, although the judge acknowleged that the
Board may not force the parties to agree to any
terms or to make concessions, he proceeded to go
through the "final contract" adding terms which
he surmised the parties would have agreed to,
adding terms that the Union had decided to leave
out, and correcting certain clauses which the
Union had modified to suit its purpose. For exam-
ple, article 15 of the contract on new machinery
and processes differs from the handwritten notes of
what was agreed to in that it left out language
which takes certain manning requirements decisions
from Interpnnt and makes them subject to binding
arbitration. Toff explained this inconsistency by his
own inadvertence since he did not have a copy of
the agreed provision when he made up the con-
tract. The judge found that the Union has admitted
its error in omitting this clause and "the addition
can be made." The judge also found that the Re-
spondent's proposal on the International Union re-
sponsibility clause was inadvertently left out and it,
too, should be added.
Other evidence which compels the conclusion
that the parties never reached a final collective-bar-
gaining agreement which could be executed is ob-
vious in examining article 11 of the contract in-
volving holidays. The judge found there was no
agreement on the Union's extensive proposal on
holidays but there was discussion resulting in Inter-
print agreeing "to the Union's counterproposal of
1/2 additional day before Christmas and New
Years for a total of 9 holidays" and in the third
year of the contract for an "additional holiday,
either the day after Thanksgiving or Martin Luther
King's birthday." The purported contract used the
specific language of the Union's original proposal
with, in addition, an effective date of 1 July 1980
without mention of the additional half days and ef-
fective 1 July 1982 the addition of a tenth day not
including an alternate choice of Martin Luther
King's birthday or the day after Thanksgiving. The
judge resolves the discrepancies by saying, "The
intent of the Holidays Clause is clear, and the lan-
guage can be altered to conform." A review of the
record shows the intent is not clear. Toff testified
he could not recall if the parties ever discussed the
specific holiday language at any time during the
negotiations. The United States Supreme Court
held in H J. Heinz Co. v. NLRB, 311 U.S. 514, 526
(1941), that, on request by an exclusive collective-
bargaining representative, it is only a written con-
tract embodying agreed terms which the Board
may require the company to sign. The judge him-
self admits that the Company had not agreed to the
specific wording of the Union's original extensive
proposal on holidays which is incorporated in the
purported agreement. The Company's counterpro-
posal of 15 July 1980 shows that it "agreed" to the
Union's counterproposal of additional half days for
a total of nine holidays and the addition of a 10th
day in the third year. The Company's notes, how-
ever, do not suggest that it "agreed" to the specific
language of the holidays clause as written by the
Union.
Finally, the judge found at a meeting on 18 April
1980 Interprint provided a list of proposals includ-
ing a zipper clause. The parties discussed the
clause, which provided that the contract contained
the entire agreement. Interprint's demand for the
clause was never withdrawn. The zipper clause
was not included in the contract. It was not speci-
fied to the mediator as being one of the items still
being open. The judge found, however, that in ac-
ceding to all open items on 23 September 1980 the
Union had agreed to the insistence of Interprint
that this clause be inserted.
In our view the judge has written the contract
for the parties. This is contrary to the Board's re-
medial powers as interpreted by the United States
Supreme Court in H K Porter Co. v. NLRB, 397
U.S. 99 (1970). The Court there held that neither
the company nor the union can be bound by a col-
1NTERPRINT CO. 1865
lective-bargaining provision to which it did not
agree.
As the Supreme Court held in NLRB v. Ameri-
can National Insurance Co., 343 U.S. 395, 401-402
(1952):
. . The National Labor Relations Act is designed
to promote industrial peace by encouraging the
making of voluntary agreements governing relations
between unions and employers. The Act does not
compel any agreement whatsoever between em-
ployees and employers. Nor does the Act regulate
the substantive terms governing wages, hours and
working conditions which are incorporated in an
agreement. The theory of the Act is that the
making of voluntary labor agreements is encour-
aged by protecting employees' rights to organize
for collective bargaining and by imposing on labor
and management the mutual obligation to bargain
collectively. [Footnotes omitted.]
In this case the judge went too far in drafting the
agreement for the parties. The record clearly
shows that there was no meeting of the minds on
many contractual issues, and therefore the Re-
spondent did not violate Section 8(a)(5) and (1) of
the Act when it refused to execute the purported
agreement.
ORDER
The complaint is dismissed.
MEMBER DENNIS, concurring in the result.
Because the parties never agreed on significant
contract terms, i.e., commencement and termina-
tion dates, I find that there was no "agreement"
within the meaning of Section 8(d) that the Re-
spondent was obligated to assist in reducing to
writing. Accordingly, the Respondent's refusal to
execute the collective-bargaining agreement that
the Union submitted did not violate Section 8(a)(5).
See Luther Manor Nursing Home, 270 NLRB 949
fn. 1 (1984); Mercedes-Benz, 258 NLRB 803 (1981).
It is, therefore, unnecessary to discuss the separate
issue of the extent to which the Union's draft con-
tract deviated from the proposals the parties agreed
to during negotiations.
DECISION
STATEMENT OF THE CASE
WALTER J. ALPRIN, Administrative Law Judge. The
primary issue in this matter is whether Respondent re-
fused to engage in collective bargaining in violation of
Section 8(a)(1) and (5) of the National Labor Relations
Act by failing since November 5, 1980 1 to execute a col-
, All dates are in 1980 unless otherwise specified
lective-bargaimng agreement allegedly reached about
September 23. The charge was filed March 4, 1981, and
the complaint issued April 17, 1981 The case was tried
at Philadelphia, Pennsylvania, on December 14 and 15,
1981, and briefs were later submitted by Respondent and
the General Counsel 2
FINDINGS OF FACT
I. JURISDICTION
The Respondent (Interpnnt) is a Pennsylvania corpo-
ration engaged in the business of printing at Trevose,
Pennsylvania It admits, and I hereby find, that it sold
and shipped goods valued in excess of $50,000 in inter-
state commerce during the past year, and that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Graphic Arts Inter-
national Union (the Union) constitutes a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II THE NEGOTIATIONS
The Union was certified on February 19 as collective-
bargaining representative of
All lithographic production employees, including
employees engaged in camera, stripping, platemak-
ing, and printing press operations, but excluding all
other employees, including office clericals, guards
and supervisors as defined in the Act.
Between March 12 and September 23 there were 10 bar-
gaining sessions, during which articles agreed upon were
initialed on behalf of the Union by Robert J Finnegan or
Edward J Toff, and on behalf of Interprint by Attorney
J. P. Jones. At the first session the Union advised that,
although not required by its constitution or bylaws, its
practice was to have the employees vote to ratify any
contract and that the employees had the final say on
whether or not a contract was accepted. It was agreed
that as far as possible the parties would first negotiate
noneconomic issues before moving to economic issues,
and that there would be no complete contract until final
agreement was reached on all items.
Various articles were agreed or disagreed to during
the negotiations. On July 15, Interprint offered its second
counterproposal. At that meeting it agreed that whatever
final wage increases were negotiated would be made ret-
roactive to July 1. Its offer at the time was an increase of
25 cents per hour the first year of the contract, 30 cents
the second year, and 35 cents the third year. The Union
contacted the Federal Mediation and Conciliation Serv-
ice to ask assistance, and two meetings, one on August 1
with both parties, and one on September 17 with the par-
ties separately, were held with a Federal mediator At
the first meeting the mediator asked which issues were
open, and was told they were union shop, checkoff,
struck work, chain shop, management security, no trans-
fer of equipment, individual rights of the employees, for-
2 The General Counsel's unopposed motion to correct the transcript,
dated February 19, 1982, is granted and received in evidence as G C
Exh 54
1866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eign work, agreement continuity, international responsi-
bility, strikes, lock out, grievances, wages, cost of living,
night shift, hours of work, overtime, complement of
help, layoff, discharge, apprentices, health and welfare,
supplemental disability, delinquent liability, and sick and
bereavement days. After the last separate meeting on
September 17, the mediator told the Union that Inter-
print was not going to move from its last offer. The
Union then, on September 23, held a meeting of bargain-
ing unit employees, and the employees were given an op-
portunity to vote. There is a testimonial difference as to
the information presented to the voters, with Union Rep-
resentative Toff testifying that "we presented the con-
tract as it was proposed by the Company, you know,
their final proposals to the people." Charles Butler, Re-
spondent's sole witness, had been a member of the bar-
gaining unit but later became a higher paid supervisory
employee. Butler testified that the specific proposals
were not presented. In any event, the bargaining unit
voted to accept what they understood to be Interprint's
last offer
Either that night or the next morning, Toff phoned In-
terprint's attorney, Jones, and informed him that the em-
ployees had ratified the agreement, the response to
which was "Oh, okay." Toff said that he would put the
contract together and mail it out for signature, to which
Jones' response was "Fine." Toff then prepared the final
contract 3 using articles initialed by both sides, his own
notes of issues agreed to, and Interprint's proposals not
agreed to by the union during the negotiating sessions.
Because of other matters, it took until November 5 to
prepare the contract, when it was mailed to Jones, with
the following covering letter:
Enclosed are three contracts for Interpnnt Please
look them over and if they are correct have them
signed by the proper person and return all three
copies for signatures, after which a copy will be re-
turned to you.
After more than 2 months with no response, on January
20, 1981, the Union sent a followup letter Nine days
later, Attorney Jones answered as follows:
This is in reply to your certified letter of January
20, 1981
It appears as if we have some valid questions con-
cerning whether or not a collective bargaining
Agreement was ever reached.
We are in the process of reviewing this with our
client and will be in touch with you shortly regard-
ing our position on it.
The Union responded 6 days later, on February 4, 1981,
stating
It is the position of Local 14L that a collective bar-
gaining agreement was reached and ratified by the
employees of Interprint, and if we do not receive
3 It is understood that the issue in the proceeding is whether the docu-
ment actually was a contract, but for ease of reference it will be referred
to herein as a 'contract"
the signed agreements shortly, we will have to
pursue the legal means available to us
There were no further communications from Interprmt,
and 1 month later the Union filed its charge.
III. AREAS OF DISPUTE
Many of the provisions of the contract had been ini-
tialed by both parties and others have never been con-
tested. The following are all of the contract provisions
disputed by Interprint as having been not agreed to,
having been left out of the contract, or having been in-
cluded in the contract in altered form
1. Effective Date and Termination Date: Article 1 of the
Contract States:
This agreement executed and effective as of the 1st
day of July, 1980 . . . .
Article 33 states.
This contract shall be effective on the 1st day of
July, 1980 and shall terminate on the 30th day of
June, 1983.
Effective and termination dates in draft proposals were
all left blank. Toff explained that he utilized the agreed
dates of wage Increases, found in the undisputed Article
7, entitled "Wages," which states:
Effective July 1, 1980, a twenty-five cents (250
per hour increase for each employee.
Effective July 1, 1981, a thirty cents (300 per
hour increase for each employee.
Effective July 1, 1982, a thirty-five cents (350
per hour increase for each employee.
2. International Union Responsibility: The Union's pro-
posal was as follows:
This agreement is subject to the approval of the
International President. Such approval does not,
however, under any circumstances, make the Inter-
national responsible for the observance of this con-
tract, or any breach thereof.
The entire provision was left out of the contract and
Toff testified:
I left it out . . I left it out inadvertently because I
just didn't think that the International would sign
this contract anyway, and it's out of the final docu-
ment; but it should be in.
3. New Machinery and Processes: As article 15 of the
contract, this provision differs from the handwritten
notes (G.C. Exh. 29) of what actually was agreed to in
that it took certain manning requirement decisions from
Interpnnt and made them subject to binding arbitration.
Toff testified that this was a matter of inadvertence on
his part, occasioned by not having a copy of the agreed
provision when he made up the contract.
4 Picket Lines: The provision to which the parties
agreed (G.C. Exh 23) had a handwritten insert of the
word "primary," so that a clause referred to "any pn-
INTERPRINT CO. 1867
mary lawful authorized picket line." The word "pri-
mary" was not included in article 18 of the contract.
5. Seniority: This union proposal (G.C. Exh. 19) con-
sisted of three single-spaced typed pages of material.
Various changes proposed by Respondent (G.C. Exh. 43)
primarily related to apprenticeship matters were all in-
cluded in article 13 of the contract, but for one. One of
the six grounds by which employees would cease to hold
seniority was originally stated:
d. Failure to report for work when recalled during
a layoff within seven (7) working days, except in
case of illness.
During negotiation the words "during a layoff within
seven (7) working days" were stricken through, and a
clause added: "Provided at least seven days notice is
given." (R. Exh. 2, Art. 17, p. 2) This change did not
appear in the final contract.
6. Transfer of Equipment: Interprint's proposal (G.C.
Exh. 25) was:
The Company agrees that it will not transfer equip-
ment to any other plant or location when such
equipment transfer will result in the layoff of bar-
gaining unit employees. This section shall in no way
be construed to prevent the sale of equipment even
if such sale results in layoffs, but in such event, the
rights of the employees will be determined under
the seniority provisions of this agreement.
As article 19 of the contract, the words "except to a
plant or subsidiary company of Interprint of A.U.S. (As-
sociated Utilities Service)" were added after the words
"sale of equipment." Further, the final clause of the
original, from the words "but in such event," was left
out.
The only explanation for the addition to the agreed
provison was Toff s testimony that "I wrote that in
there, because I thought that language would be accepta-
ble to me if we inserted that. And it ended up getting
into the final contract when it was typed because it was
on there. It really doesn't belong in the final contract; it
should be taken out of there. There is no explanation for
dropping the final clause of the original provision."
7. Holidays: The Union made an extensive proposal
(G.C. Exh. 41) covering two-thirds of a single-spaced
typewritten page. There was no agreement on this
clause, but there was discussion (G.C. Exh. 34, second
page) resulting in Interprint's agreeing "to union's coun-
terproposal of one-half additional day before Christmas
and New Years, for total of nine holidays," and, in the
third year of the contract, for "an additional holiday,
either day after Thanksgiving or Martin Luther King's
birthday."
Article 11 of the contract used the Union's original
language, with, in addition, an effective date of July 1,
1980, with no mention of additional one-half days, and
with the addition of a 10th day, not including the alter-
native choice of Martin Luther King's birthday, after
July 1, 1982.
8. Entire Agreement Clause: At the meeting of April
18, Interprint provided a list of proposals which included
a provision that the contract contained the entire agree-
ment between the parties, a so-called zipper clause. The
parties discussed the clause, and the demand for it was
never withdrawn. However, the clause did not appear in
the final form of the contract. .
IV. SECOND VOTE
Respondent's sole witness, Butler, was the shop stew-
ard during the negotiations. He testified that on Novem-
ber 24, the morning after the vote had been taken, he
was approached by three bargaining unit members who
felt they had voted too quickly. Butler decided to hold a
meeting that afternoon for another vote, and gave oral
notice to the unit members but no notice to the Union.
Butler testified at one point that the vote was on the
contract, and at another point that it was whether or not
to retain the union. Under questioning by the Adminis-
trative Law Judge he testified it was "a vote as to
whether we wanted to accept 90 cents over 3 years or
just forget the union, period." After the second vote,
Butler phoned Toff, and told him that the employees
"had changed their mind about the previous vote that
we had the night before."
V. DISCUSSION
Section 8(a)(5) of the Act makes it an unfair labor
practice for an employer to "refuse to bargain collective-
ly with the representatives of his employees." Section
8(d) of the Act requires "the execution of a written con-
tract incorporating any agreement reached if requested
by either party." It has long been settled that in imple-
menting these statutory provisions "the Board may not,
either directly or indirectly, compel concessions or oth-
erwise sit in judgment upon the substantive terms of col-
lective-bargaining agreements." 4 On the other hand, the
Board has authority to order the signing of a contract to
which the parties have agreed. 4 The central issue in this
matter is whether there was a meeting of the minds
among the parties to the collective bargaining.
When the Federal mediator was called in, he was told
of all the open items to the negotiations. When he re-
ported that Respondent would not change its position,
the Union surrendered and accepted all of the Employ-
er's proposals. On being told this on September 23 Re-
spondent raised no objection and agreed that the Union
would collect the various clauses into a hard copy of the
contract. Throughout the period from late September to
early November, while this was being done, Respondent
never took the position that the agreement was less than
complete.
Respondent then held the contract without comment
from about November 5 until January 29, 1981. Then, in
answer to a followup letter from the Union, it raised for
the first time the issue of "whether or not a collective-
bargaining agreement was ever reached." Though prom-
ising that it would be "in touch with you shortly regard-
ing our position," Respondent did not contact the Union
4 NLRB v. American National Insurance Co., 343 U.S. 395, 401 (1952).
5 NLRB v. Electra-Food Machinery, 621 F.2d 956, 958, and cases cited
therein (9th Cir. 1960).
1868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior to the charge being filed a month later on March 4,
1981, after the charge was filed, or after the complaint
was issued.
In its answer of April 28, 1981, to the complaint
herein, Respondent denied that the particular employees
constituted an appropriate bargaining unit, denied that
the Union was the exclusive bargaining agent of the
specified employees, denied that it had recognized the
Union, denied it had engaged in negotiations with the
Union, and denied that it had been requested to execute
a written contract, in addition of course to denying that
it had reached a full agreement with the Union. It also
raised an affirmative defense laches. At no time prior to
the hearing, some 15 months after it received the con-
tracts from the Union with the invitation to "look them
over," did the Respondent specify any alleged differ-
ences between the contract it received and what had
been agreed to after 6 months of collective bargaining.
The parties participated in a mediation designed to
cover all open items of disagreement The Union capitu-
lated and accepted Respondent's position on all such
items. Respondent tacitly agreed from September 23,
1980, until January 29, 1981, that an agreement had been
reached, and never particularized any argument that
agreement had not been reached until the hearing herein.
On all the evidence it is clear that the parties did in fact
reach an agreement through collective bargaining
Though there was a meeting of the minds, the result-
ing hard copy contract was inartistically or inaccurately
drawn. However, it has been said that:
The purpose of the Act is to achieve industrial sta-
bility by encouraging the processes of collective
bargaining and the execution of agreed-upon bar-
gaining contracts . . . . The mere fact that (to re-
flect the terms of the agreement as reached) re-
quired some additions or alterations in the agree-
ment submitted does not relieve the parties of the
obligation to execute the bargaining contract agreed
to. See International Union of Operating Engineers
Local 525, AFL-CIO (Clark Oil 41 Refining Corp.),
185 NLRB 609 (1970).6
The Union has admitted its error in failing to include Re-
spondent's proposals regarding international union re-
sponsibility, and regarding new machinery and processes.
The additions can be made. The single word left out of
the clause relating to picket lines is easily inserted, as are
the short portions left out of the seniority clause and the
transfer of equipment clause. The intent of the holidays
clause is clear, and the language can be altered to con-
form thereto.
The entire agreement clause, or "zipper clause," was
not among those specified to the mediator as being open.
However, it was a proposal made by Respondent and
fully discussed by the Union, and was litigated by the
Respondent during the hearing herein. In acceding to all
open items on September 23, the Union also agreed to
the continued insistence by Interpnnt that this clause be
included in the written contract, and it must be inserted.
There remain for consideration the effective date and
the period or termination date of the contract. Generally,
the effective date of a contract is the date on which the
offer is accepted, unless the agreed terms state otherwise.
Here, agreement came with the Union's acceptance on
September 23, and except for an agreed retroactivity ap-
plying solely to wage increases, there is no other expres-
sion of effective date. Therefore, the effective date is
September 23
The termination date is provided by the clear intent of
the parties. "Even though the contract may not state in
express terms that it is to endure for a definite period,
the time mentioned therein may indicate that the parties
intended that it shall continue for at least such period."
The parties understood that the principal point of the
agreement was a wage increase of 90 cents over a 3-year
period-25 cents the first, 30 cents the second, and 35
cents the third year Even the "second vote", hereinafter
referred to, was clearly as to this understanding. Thus,
we have a contract agreement for a 3-year period meas-
ured from the first wage increase. The parties explicitly
agreed that the wage provision would be retroactive to
July 1, 1980, and the 3-year term intended will expire
and the contract terminate on June 30, 1983.
Respondent argues that this case should be governed
by the decision of the Board in Mercedes-Benz, Inc., 258
NLRB 803, (1981). In that case six prior contracts had
been effective February, and when that date had passed
in new contract negotiations a strike took place. The
strike was settled a month later, after further negotiations
which did not directly concern effective date. The Union
erroneously testified the wage increases to have been ret-
roactive, while the Employer correctly insisted that
there was no such agreement. The Board found that
under these circumstances there had not been a meeting
of the minds between the parties, and that there was no
contract The facts of the matter at hand are different.
This was the first contract negotiated between the Re-
spondent and the recently certified Union. The parties
specifically agreed to retroactivity on wage increases.
There was no misunderstanding or disagreement as to an
effective date, and the contract came into effect upon the
Union's capitulation on all outstanding open issues. In
this case there was no disagreement between the parties
as would negate the formation of a contract when the
offer was accepted.
Finally, the Respondent alleges that, by reason of the
"second vote" described above, the Union failed to re-
ceive a proper ratification of the proposed contract. As
pointed out by the Union, that "second vote" came after
the proposed contract had already been accepted and at
most could be a unilateral and ineffective act. Of greater
importance, the so-called ratification was not necessary
to the acceptance of the contract, and the vote was a
purely internal union affair having no effect on the valid-
ity of the contract. See Bronson Methodist Hospital, 223
NLRB 95 (1976); Pioneer Broadcast Co., 202 NLRB 1005,
1008 (1973).
6 Trojan Steel Corp, 222 NLRB 478, 483 (1976) 7 17 Am Jur, , Contracts 955-956
INTERPRINT CO. 1869
On the foregoing facts and on the entire record,
I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Charging Party is a labor organization within
the meaning of the Act.
3. All lithographic production employees, including
employees engaged in camera, stripping, platemaking,
and printing press operations but excluding all other em-
ployees, Including office clericals, guards, and supervi-
sors as defined in the Act constitute a unit appropriate
for bargaining within the meaning of Section 9(b) of the
Act.
4. At all times material herein, the Union has been and
continues to be the exclusive representative of the em-
ployees in the aforesaid appropriate unit for the purpose
of collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing to execute the collective-bargaining
contract agreed to by Respondent and the Union, Re-
spondent violated Section 8(a)(5) and (1) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
and is engaging in unfair labor practices in violation of
Section 8(a)(1) and (5) of the Act, it will be recommend-
ed that Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act.
As I have found that Respondent violated its obliga-
tion under the Act by refusing to execute the agreement
herein, I shall also recommend that Respondent be or-
dered upon request to sign such an agreement, to comply
retroactively with its terms, and to make whole the em-
ployees for losses, if any, which they may have suffered
by Respondent's refusal to sign such an agreement, in ac-
cordance with the formula set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231
NLRB 651 (1977).8
[Recommended Order omitted from publication.]
8 See also Isis Plumbing Co, 138 NLRB 716