Kasser Distiller Products

National Labor Relations Board - Board Decisions

Jun 15, 1992

307 N.L.R.B. 899 (N.L.R.B. 1992)

899
307 NLRB No. 138
KASSER DISTILLER PRODUCTS
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 Not included in bound volumes. Member Raudabaugh dissented.
3 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.
Member Devaney finds it unnecessary to pass on the judge’s find-
ing that Elson’s credibility is ‘‘substantially mitigated by his bar-
gaining and legal representative capacities on behalf of the Respond-
ent.’’
4 The General Counsel excepts to the judge’s failure to include in
the recommended Order an express provision requiring the Respond-
ent to give effect to the terms and provisions of the parties’ memo-
randum of agreement reached on November 2, 1989. We find merit
in this exception and shall modify the recommended Order accord-
ingly.
Kasser Distiller Products Corp. and Teamsters
Union Local No. 115, a/w International Broth-
erhood of Teamsters, AFL–CIO.1 Case 4–CA–
18498
June 15, 1992
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On November 15, 1990, Administrative Law Judge
Elbert D. Gadsden issued the attached decision. The
Respondent filed exceptions and a supporting brief and
the General Counsel filed an exception and an answer-
ing brief in response to the Respondent’s exceptions.
On June 25, 1991, the Board remanded the proceeding
for further findings.2 On October 31, 1991, the judge
issued the attached supplemental decision. The Re-
spondent filed exceptions and a supporting brief and
the General Counsel filed an answering brief in re-
sponse to the Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decisions and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,3 and con-
clusions and to adopt the recommended Order as
modified.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Kasser
Distiller Products Corp., Philadelphia, Pennsylvania, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
‘‘(b) Give effect to the terms and provisions of that
memorandum of agreement retroactive to November 2,
1989.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER RAUDABAUGH, concurring.
The issue in this case is whether Respondent in-
formed the Union that Respondent Negotiator Knox
lacked authority to enter into an agreement. The evi-
dence establishes that Respondent’s negotiators, in
conversation with each other as they sat across from
the Union’s negotiators, spoke of the limitations on
Knox’s authority to enter into an agreement. However,
the judge appears to find that the union representatives
did not hear this conversation. Because of the physical
proximity of the Respondent and union negotiators,
and the unchallenged testimony that the conversation
was not conducted in a low voice, I find it hard to be-
lieve that the union negotiators did not hear this con-
versation. Indeed, they do not even claim that they did
not hear it. However, I do not find it necessary to re-
solve this issue. For, even if the union negotiators did
hear the conversation, the more significant finding is
that the remarks were not directed to them. The judge
found that the Respondent’s negotiators did not di-
rectly communicate to the Union the lack of authority
of Knox. I believe that a matter as important as plac-
ing limitations on bargaining authority should be di-
rectly and clearly conveyed to the other party. See
University of Bridgeport, 229 NLRB 1074 (1977). Be-
cause this was not done, I agree with my colleagues
that Knox’s subsequent agreement with the Union was
binding on Respondent.
APPENDIX
NOTICE TO EMPLOYEES
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
have violated the National Labor Relations Act and
has ordered us to post and abide by this notice.
WE WILL NOT fail and refuse to sign and execute the
memorandum of agreement entered into with the
Union on November 2 and 3, 1989, and transmitted to
us by the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL, on request, sign and execute the above-
described agreement we entered into with the Union on
November 2 and 3, 1989.
900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL give effect to the terms and provisions of
the above-described agreement retroactive to Novem-
ber 2, 1989.
WE WILL mail a copy of this notice to the Union
and to all former employees listed in the printed cost
out.
KASSER DISTILLER PRODUCTS CORP.
Monica McGhie-Lee, Esq. and Barbara Joseph, Esq., for the
General Counsel.
Barry R. Elson, Esq. and Regina M. Harbaugh, Esq.
(Kittredge, Donley, Elson, Fullem & Embick), of Philadel-
phia, Pennsylvania, for the Respondent.
Norton Brainard, III, Esq., of Philadelphia, Pennsylvania, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. On a
charge of unfair labor practice conduct filed on December 6,
1989, by Teamsters Union Local No. 115, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, AFL–CIO (the Union or Charging
Party), against Kasser Distiller Products Corp. (the Respond-
ent), a complaint was issued on February 26, 1990, by the
Acting Regional Director for Region 4 on behalf of the Gen-
eral Counsel.
The complaint in essence alleges that the Respondent has
failed and refused to bargain with the Union by failing and
refusing to execute a written settlement agreement of a full
and complete agreement on effects bargaining reached be-
tween the parties, with respect to benefits and other terms
and conditions of employment, in violation of Section 8(a)(1)
and (5) of the Act.
Respondent filed an answer on March 23, 1990, denying
that it has engaged in unfair labor practice conduct as al-
leged.
The hearing in the above matter was held before me in
Philadelphia, Pennsylvania, on June 27, 1990. Briefs have
been received from counsel for the General Counsel and
counsel for the Respondent, respectively, which have been
carefully considered.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is, and has been at all times material
herein, a Pennsylvania corporation engaged in the bottling
and wholesale distribution of alcoholic beverages at its facil-
ity located at Third and Luzerne Streets, Philadelphia, Penn-
sylvania.
During the past 12 months, in the course and conduct of
its business operations, Respondent has purchased and re-
ceived goods and supplies valued in excess of $50,000 di-
rectly from points outside the Commonwealth of Pennsyl-
vania.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits and I find that
Teamsters Union Local No. 115, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen, & Helpers
of America, AFL–CIO, are and have been at all times mate-
rial herein, labor organizations within the meaning of Sec-
tions 2(5) and 8(d) of the Act.
III. THE ALLEGED UNFAIR LABOR CONDUCT
A. Background Information
Respondent, at its Philadelphia facility, is and has been at
all times material herein engaged in the business of bottling
and distribution of alcoholic beverages.
At all times material herein, to at least October 24, 1989,
the Respondent has recognized the Union as the exclusive
representative of a unit consisting of full-time and part-time
production and maintenance employees at its facility and in
its employ.
The Respondent and the Union are parties to a collective-
bargaining agreement effective from May 1, 1988, to April
30, 1991.
At all times material herein, Thomas Knox was chairman
of the board of directors of Respondent.
B. Bargaining Between the Parties
Gerald Sheahan is and has been vice president of Local
115 since 1980, and has engaged in collective-bargaining
with the Respondent on behalf of its employees. He identi-
fied the collective-bargaining agreement between the parties
effective May 1, 1985–April 30, 1988 (G.C. Exh. 2(a)). He
also identified a memorandum of an agreement extending the
contract until April 30, 1991, with amendments and modi-
fications (G.C. Exh. 2(b)).
Consistent with Sheahan’s additional testimony, the record
shows that a letter dated September 1, 1989, Respondent,
Chairman Thomas Knox, advised Union President John Mor-
ris as follows:
Kasser Distiller Products Corp., plans to permanently
close its manufacturing operations at 3rd and Luzerne
Streets, Philadelphia, PA. 19140, beginning on or about
October 31, 1989. As a result of this action, Kasser an-
ticipates that it will be required to terminate a number
of employees at that site. These terminations will be-
come effective between October 1, 1989 and December
31, 1989. A list of the job titles of the position to be
affected as a result of this action, and the names of the
workers currently holding affected jobs, is attached
hereto:
Wine Storage
Earl Spearman
Maintenance Plant
William Burnes
Nicholas Pulaski
Rectifying
Joe McElroy
Tom Tomlin
Jorge Polo
Bottling
901KASSER DISTILLER PRODUCTS
Melvin Scott
James Bryant
Fred Brooks
Bill Burns, III
Robert Choice
John Cornish
Ed Harsch
Luis Nartinez
Norman Mansfield
Angelina Pomponio
Jasper Robinson
Mike Robinson
Orlando Santiago
Jose Santa
Florence Sessions
Elbert Stokes
Greg Tait
Larry Washington
Ed Wilcox
Rose Trost
Wendell Williams
Tom Garofalo
Shipping
Fred Brook, Jr.
George Trost
Union Vice President Sheahan acknowledged receipt of
the above-identified letter and testified that in response there-
to, the Union requested to meet with Respondent to discuss
the effects of the closing and severance. A meeting was held
September 28, 1989, at the Union’s office. Present for the
Union were Business Agent Robert Henninger, steward Jo-
seph McElroy, and Gerald Sheahan. For the Company,
Thomas Knox. During the meeting the Union expressed its
belief that the Company was still a viable business but the
Respondent told them it was not and that it was closing
down. Under such circumstances, the Union proposed a sev-
erance package requesting 5 days’ pay for each employee for
every year of service with Respondent; the benefit con-
cerning health and welfare coverage, legal services coverage,
and scholarship fund coverage extended for a period of 6
months after the shutdown of the facility.
The Union also wanted information concerning the status
of each employee who is a member of Respondent’s pension
plan. It wanted employees to receive unused sick time, holi-
day pay, vacation pay for which they were eligible; and lan-
guage in an agreement which covered the eventuality of Re-
spondent reopening the business, that the employees would
be rehired and seniority of the Union recognized. Since Re-
spondent could cost out such an agreement at this time. The
parties agreed to meet again.
The parties met again October 17, 1989, at the Union’s of-
fice. Present for the Union was Sheahan and McElroy. For
Respondent, Knox, Art Mullin, financial executive, and
Elson, counsel for the Respondent herein. At the meeting the
Union again questioned the Company’s motive for closing
the facility but the Company counterproposed to give each
employee 1 day’s pay for each year of service, up to a max-
imum of 25 days of severance pay. It did not want to con-
tinue the benefits program for 6 months as the Union re-
quested, but in lieu thereof, Respondent would give each em-
ployee a flat payment of $1,000 which the Union rejected.
Respondent agreed with the Union’s request to pay the em-
ployees for unused vacation time, sick time, and holiday pay,
and to language providing for recall of unit employees and
recognition of the Union if Respondent reopened the busi-
ness operation. Respondent (Elson) said he did not think that
was a problem. Respondent also agreed to send the Union
its pension plan and the status of each employee participating
in it.
The Union requested that all the employees who had
worked for the Respondent receive the benefit of the sever-
ance pay and other benefits negotiated at this time. However,
the Company was opposed to employees who had left the
Company prior to the layoff and the shutdown receiving such
pay and benefits. The Union argued that those employees
knew the Company was going out of business and they left
to get jobs at the time when that opportunity presented itself.
The Union felt they should not be excluded from the formula
that the settlement agreement would cover because the em-
ployees in question had anywhere between 10 and 25 years
seniority.
Knox testified that at the meeting (October 17) Mullin told
him he (Knox) ‘‘could not commit the company to anything
at that time or in the future, without approval of Respond-
ent’s board of directors, of which Knox was chairman.’’
Knox testified he told Mullin if the Board did not approve
his offers, he (Knox) would pay for them out of his own
pocket. In any event, the record does not show that Knox did
not have authority to negotiate for Respondent without fur-
ther approval by Respondent. Nor does the record show that
Knox ever communicated any such limited bargaining au-
thority to the Union.
On October 25, 1989, the Union received a fax from the
Respondent concerning the pension plan, and also another
fax on the same date outlining a wage offer for a settlement
that was offered during the previous meeting.
Further testifying, Sheahan identified the first fax to the
Union dated October 25, 1989 (G.C. Exh. 5) at 8:56 a.m. or
p.m., producing the chart offer Respondent made to the
Union during the October 17 meeting, listing the names and
dates of hire of each of the employees in the unit with 10
to 25 years tenure with Respondent, along with their rates of
pay, pension and monthly benefits, but not showing sever-
ance pay for those persons who left the Company when they
learned Respondent had planned to close down.
Since the telecopy printed out did not include those em-
ployee’s who recently left the Respondent’s employ after Re-
spondent announced it was closing the facility, the Union ar-
gued that the five employees had combined 100 years of se-
niority with Respondent; that they should not be penalized
simply because they left Respondent’s employ 2 to 4 weeks
prior to the closing in order to take advantage of available
work; that the Union was not insisting on other employees
who left the employ of the Respondent months or years ear-
lier.
Nevertheless the Union took the pension plan documenta-
tion (G.C. Exh. 5) and discussed it with its actuarian. There-
after, 2 days later, the Union (Sheahan) called Tom Knox
and informed him that the severance offer of 1 day’s pay for
each year of service up to a maximum of 25 days was not
acceptable; and that the $1000 flat fee was something the
Union did not want to entertain in lieu of benefits, health and
902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
welfare pension, scholarship and legal services for a period
of 6 months.
Sheahan counteroffered that severance pay be based on 2
days’ pay for each year of service up to 10 weeks’ pay, and
repeated the Union’s demand to include the five contested
employees in the total severance package; and that the bene-
fits covered be paid for 6 months following closing of the
facility. Knox reiterated that the five contested employees
would be included but agreed to get back with Sheahan.
On November 1, 1989, Respondent transmitted a fax on its
telecopier machine to the Union which was a printed costout
like the one sent to the Union October 25, 1989, except that
it had proposed severance pay based on 2 days’ pay for each
year of service only up to 8 weeks’ pay, instead of 10
weeks’ pay, with no payment for continuation of benefits
coverage. It contained the added handwritten language at the
bottom of the page: ‘‘1) All employees 2) without flat fee,’’
(G.C. Exh. 6, 63–64). Knox testified that the latter costout
included the cost of severance pay to the five contested sen-
ior employees.
The Union’s contention that Respondent’s November 1,
1989 fax was an offer because it embraced Respondent’s Oc-
tober 17 offer which was transmitted to the Union October
25, 1989, and that this time, the November 1 letter included
the five contested senior employees without payment for
continuation of benefits coverage. Under these circumstances,
I find that the Union’s interpretation and conclusion that the
Respondent’s November 1 letter was an offer was a reason-
able conclusion.
Consequently, Sheahan (the Union) testified he telephoned
Knox the next day (November 2, 1989). He testified without
dispute that he called Knox and told him he had taken a
‘‘major step’’ by offering to include the five senior employ-
ees previously excluded by Respondent, because the Union
probably could not settled this matter without including
them. Knox said ‘‘we raised the pay, we included the guys
but we eliminated the $1000. When Sheahan asked Knox
whether he was going to continue the benefits covered, Knox
said, ‘‘We’re going to eliminate the $1000 but we can’t do
anything else in this area.’’ Sheahan agreed, if Respondent
would increase the maximum severance pay to 10 weeks
with termination of the pension plan. The agreement would
not preclude employees from receiving unemployment com-
pensation, to which Knox replied, ‘‘I’ll do it.’’ When
Sheahan asked, ‘‘Do we have an agreement?’’ Knox replied,
‘‘Yes, we do.’’ Thereafter, they discussed drafting a memo-
randum of the agreement and Sheahan agreed to draft it and
requested Knox to send him a computer printed costout re-
flecting their agreement and he would send the memorandum
to Knox.
Although Knox acknowledged at the hearing that on No-
vember 1, 2, or 3, 1989, he discussed severance benefits with
Sheahan, he testified he did not agree or have authority to
agree, to pay severance benefits to all unit employees, in-
cluding the five contested employees. It is particularly noted
however, that Knox did not testify that he told Sheahan dur-
ing their conversations on November 1, 2, or 3, 1989, or at
any previous time, that he did not agree, or did not have au-
thority to agree to the terms which they discussed. Since
Knox did not so testify, I find that Sheahan’s testimonial ac-
count is not disputed by Knox, and I do not credit his latent
denial that he did not agree to the terms described by
Sheahan during their telephone conversations. Moreover,
Knox’s testimony in this regard is in conflict with his
telecopy letter transmitted to the Union on November 1, and
his first transmittal to the Union on November 3, 1989, infra.
On November 2, 1989, Sheahan completed the memo-
randum of agreement, except for the printed costout which
Knox was to prepare and transmit to him and he would
transmit the memorandum to Knox.
On the next day, November 3, 1989, the Union received
two computer printed costout sheets via the telecopier ma-
chine. One sheet (G.C. Exh. 7(a)) precisely reflected the
terms of the telephone discussion between Knox and
Sheahan on November 2, 1989; namely, severance pay for all
unit employees including the 5 contested employees Certaine,
Campbell, Keitt, Brooks, and Brooks, Jr., based on 2 days’
pay for each year of service up to 10 weeks’ pay, payment
for unused vacation pay, and pension payouts.
The second payout sheet transmitted by Respondent a few
minutes later on November 3, 1989, reflected the same terms
discussed during the November 2 telephone conversation, ex-
cept the inclusion of the five contested senior employees
(G.C. Exh. 7(b)). Handwritten on the face of this printed
costout was the word ‘‘preferred.’’ Since Sheahan recognized
the first printed costout (G.C. Exh. 7(a)) as the one Knox
agreed on during their November 2 telephone conversation,
he attached it (G.C. Exh. 7(a)) to the Union’s executed
memorandum of agreement, and transmitted it by telecopier
to Respondent (Knox) for his signature on November 3,
1989. Respondent (Knox) acknowledged it received the
memorandum agreement with the costout attached (G.C. Exh.
7(a)) at 4:15 p.m. on November 3, 1989, but Respondent did
not contact the Union after it received the memorandum.
Since Respondent acknowledged receipt of the memo-
randum agreement but did not thereafter contact the Union,
Sheahan (the Union) telephoned Knox on Monday, Novem-
ber 6, 1989, to inquire of its November 3 transmittal to Re-
spondent. Knox confirmed that he received the November 3
transmittal from the Union with the attached costout.
Sheahan asked Knox:
Sheahan: Is that our agreement?
Knox: Yes, it is.
Sheahan: Okay are you going to sign it and send it
back to us?
Knox: No, I’m going to send it to may attorney first
. . . that’s our agreement but I’m going to bounce it
off my attorney.
Sheahan: Okay, then we will wait to hear from you.
During their telephone conversation, Knox did not express
any objection or problem with the Union’s drafted agreement
and the attached costout (G.C. Exh. 7(a)) except that he had
to make sure that sick and holiday pay were not issues. Nev-
ertheless, the Union (Sheahan) unsuccessfully made several
calls and left several messages for Knox during the period
November 7–21, 1989, to inquire about the agreement. Fi-
nally, on November 22, 1989, the Union received two
telecopier transmissions from Knox. The first, at 2:01 p.m.
(G.C. Exh. 9(a)) was a four-page document including a cover
page, which had a portion of the next page copied on the
lower half thereof. The pages of this document were numeri-
cally out of order and confusing. Even Knox acknowledged
903KASSER DISTILLER PRODUCTS
in his testimony that this transmission was a poor facsimile
of what he was trying to send to the Union.
The second transmission on November 22, at 2:17 p.m.,
was a three-page document including the cover sheet which
indicated there were four pages (G.C. Exh. 9(b)). Neverthe-
less, the second page was label ‘‘agreement between Kasser
Distiller Products Corp., and Teamsters Union Local No.
115.’’ The third page was the second page with signature
lines at the bottom. There was no four page. Sheahan dis-
regarded the first transmission (G.C. Exh. 9(a)) as a ‘‘mis-
fired fax’’ and read the second transmission (G.C. Exh. 9(b))
which he recognized was the Union’s draft of the memo-
randum agreement with minor changes which were agreeable
to the Union. However, this second document described the
severance pay formula as agreed upon November 2 during
the telephone conversation, although there was no list as to
which employees would receive what. It did not contain a
costout as had been attached to the drafted memorandum of
agreement the Union sent to Respondent November 3.
Sheahan called Knox that afternoon (November 22, 1989) to
inquire why the attached costout, as they had agreed, was not
returned. Their conversation was as follows:
Sheahan: We don’t have that third sheet. You know,
we need that to complete.
Knox: Well we don’t have any agreement on paying
everybody . . . we’re not going to pay the 5 guys.
Sheahan: What do you mean, we don’t have an
agreement? You already agreed to it before and you
said it was okay and we agreed to it. . . . What the hell
are you talking about? That’s how we got the agree-
ment in the first place. You agreed to pay everybody,
include them in there and they would get 10 weeks’
pay and that’s what we agreed to 3 weeks ago, and we
sent that to you and you said that was okay. Now
you’re saying its not okay?
Knox: We don’t have any agreement on that.
Sheahan testified without dispute that Knox did not state
why there was no agreement on the severance pay issue.
Thereafter, there was no communication between the parties
until November 27, 1989. On that date, Sheahan telephoned
Respondent to speak with Knox. Since Knox was not avail-
able, he spoke with Arthur Mullin, an executive of Respond-
ent. Mullin informed Sheahan that there was no agreement
between the parties and Sheahan insisted that there was an
agreement, and he agreed to transmit telecopies of what had
been transmitted to Knox November 3.
At a later hour on November 27, 1989, Mullin transmitted
a nine-page document (G.C. Exh. 11) to the Union in which
he (Mullin) denied that there was ever a severance agreement
between the parties including the five contested employees.
However, his letter continued with the following offers to the
Union:
1. Respondent’s identical offer made to the Union
November 1, of two days pay for each year of service
up to 8 weeks.
2. Respondent’s identical offer made and agreed
upon by the parties November 2, except the five con-
tested individuals would receive only 50 percent of the
10 weeks formula.
3. The Union could accept the bottom line of
$70,000 lump sum to distribute any way it desired.
Offers 2 and 3 had not been previously presented to the
Union.
Issues
1. The ultimate issue is whether the Respondent failed and
refused to excused a written contract embodying the terms of
an oral agreement with the Union, in violation of Section
8(a)(1) and (5) and 8(d) of the Act.
2. The subordinate factual issue presented for determina-
tion is whether the parties ever reached a severance pay
agreement.
The General Counsel argues that the parties reached a sev-
erance pay agreement during their telephone discussion on
November 2, 1989.
The Respondent argues that the parties did not reach a set-
tlement agreement because there was never a meeting of the
minds of the parties on November 2, 1989, or any other
time; and that the November 3, 1989 cost projections labeled
‘‘preferred’’ (G.C. Exh. 7(b)) differed from the formula in
the previous cost projection (G.C. Exh. 7(a)) transmitted by
Respondent to the Union only a few minutes earlier on No-
vember 2, 1989.
Analysis and Conclusions
In determining whether the collective-bargaining parties
reached an agreement under the Act, the Board and the
courts have established several guidelines in making such a
determination.
As counsel for both parties argue, while the technical rules
of contract law are not necessarily controlling in labor rela-
tions negotiations, Lozano Enterprises v. NLRB, 327 F.2d
814, 817 (9th Cir. 1964), the normal rules of offer and ac-
ceptance in contract law are applicable to determine whether
an agreement was reached between the parties. F. W. Means
& Co. v. NLRB, 377 F.2d 683, 686 (7th Cir. 1967). How-
ever, unlike the rules governing the creation of a commercial
contract, in collective bargaining, an offer is not automati-
cally terminated by the rejection or counteroffer of the other
party. Lozano Enterprises v. NLRB, supra.
Additionally, an offer can be accepted and the parties
bound without the agreement, being reduced to writing and
signed. Capitol-Husting Co. v. NLRB, 671 F.2d 237, 243 (7th
Cir. 1982).
In order to find acceptance of an offer, all that is needed
is conduct manifesting intention to agree, to abide and be
bound by the terms of an agreement, Capitol-Husting Co. v.
NLRB, supra; and that a party’s word and conduct are judged
by a reasonable standard with no consideration of real or
unexpressed intentions. Pittsburgh-Des Moines Steel Co., 202
NLRB 880, 888 (1973), citing 17 CJS, Contracts, sec. 32, p.
361.
In the instant case, the parties were engaged in collective
bargaining on the effects of Respondent’s announced closing
since September 28, 1989. However, the dispute arises as to
whether the parties reached an agreement upon the essen-
tially undisputed communications between them as follows:
1. Respondent’s (Knox) November 1, 1989 letter of-
fering severance pay based on two days pay for each
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 I credit Sheahan’s essentially undisputed testimonial account over
Knox’s latent denial that the parties reached an agreement during
their telephone conversation on November 2, 1989, because I was
persuaded by their demeanor that Sheahan’s fluent, self-assured and
positive manner of testifying was truthful and accurate. To the con-
trary, Knox’s account of their conversation was extremely limited
and uncertain in several respects. Moreover, I further find that the
timing and substance of Respondent’s first telecopy letter to the
Union on November 3, 1989 supports the testimonial account of
Sheahan. The November costout (G.C. Exh. 7(a)) was as much an
offer as was Respondent’s previous costout, which the Union had re-
jected.
year of service up to 8 weeks pay for all employees,
including the 5 contested employees who left the Re-
spondent’s employ after they learned or heard about
Respondent’s closing.
2. Sheahan’s telephone call to Knox to November 2,
1989, in which Sheahan told Knox he had taken a
‘‘major step’’ by including the 5 contested employees
because the Union could not settle without their inclu-
sion. Knox undisputedly stated, ‘‘we raised the pay,’’
‘‘we included the guys,’’ eliminated the $1000 and we
can not continue the benefits coverage. Sheahan
undeniedly agreed if Respondent would increase the
maximum severance pay to 10 weeks with termination
of the pension pay and not preclude the employees
from receiving unemployment compensation. Knox
undisputedly responded, ‘‘I’ll do it.’’ Sheahan asked
Knox, ‘‘do we have an agreement?’’ Knox undisputedly
replied, ‘‘yes, we do.’’
At the conclusion of the above-described November 2,
1989 telephone conversation, Sheahan and Knox discussed
drafting a memorandum of agreement, and Sheahan volun-
teered to draft it and he requested Knox to send him a com-
puter printed costout reflecting their agreement. Apparently
elated that he had a settlement agreement, Sheahan com-
pleted the memorandum of agreement and sent it to Knox
that afternoon (November 2, 1989).
On the next day (November 3, 1989), Sheahan received
two computer printed costout via telecopier. The first costout
(G.C. Exh. 7(a)) embraced the terms of the telephone con-
versation the parties had the day before, providing severance
pay for all unit employees, including the five contested em-
ployees, Certaine, Campbell, Keitt, Brooks, and Brooks Jr.,
based on 2 days’ pay for each year of service up to 10
weeks’ pay for unused vacation pay and pension payouts.
Sheahan (the Union) received a second printed costout
from Knox by way of the telecopier (G.C. Exh. 7(b)) a few
minutes later, which reflected the same terms of the Novem-
ber 2, 1989 telephone conversation, except for the inclusion
of the five contested employees and bearing a handwritten
label ‘‘Preferred’’ on its face. Since Sheahan recognized the
first printed costout (G.C. Exh. 7(a)) as the one to which he
and Knox had agreed on November 2, he attached a copy of
it to the Union’s executed memorandum of agreement and
sent it by telecopier November 3, 1989, to Knox for his sig-
nature.1
Based upon the credited testimony of Sheahan and the
written communications between the parties, I conclude and
find that Respondent (Knox) amended his written offer of
November 1, 1989, during the November 2, 1989 telephone
conversation with Sheahan, to increase the severance pay
based on 2 days’ pay for each year of service from 8 weeks’
pay for all employees, to 10 weeks’ pay. Since Respondent’s
November 1, 1989 letter had already assented to including
the five contested employees who left Respondent’s employ
after they learned or heard about Respondent’s closing, such
proposal by Respondent constituted an offer. Consequently,
when Sheahan told Knox Respondent had taken a ‘‘major
step’’ by including the five contested employees, and Knox
repeated the terms of the agreement, including the same pay
for the five contested employees, and further agreed not to
preclude the employees from receiving unemployment com-
pensation, the parties had reached an agreement, and Knox
unequivocally stated that they had an agreement.
Under the above-described circumstances, it is clear that
the Respondent had accepted the proposal to raise the 2
days’ pay for each year of service to 10 weeks and the
Union had accepted the Respondent’s offer to include the
five contested employees. It is also clear that the parties
agreed that Sheahan would reduce the terms of the parties’
agreement to writing. Respondent did not immediately object
to the memorandum of agreement upon its receipt of it.
Moreover, on November 3, 1989, Respondent mailed the
copy of its costout (G.C. Exh. 7(a)) for all of the employees,
including the five contested employees, to the Union, as
Sheahan had telephonically requested during their November
2 conversation. Consequently, when Sheahan attached the
costout (G.C. Exh. 7(a)) to a copy of the memorandum of
agreement and transmitted it to the Respondent for Knox’
signature on November 3, 1989, the severance pay agreement
had been effectively reduced to writing. In fact Sheahan’s re-
ceipt of the first computer printed costout (G.C. Exh. 7(a))
on November 3, 1989, constituted documentary confirmation
of the parties’ November 2, 1989 oral agreement, which
Sheahan had reduced to writing and transmitted to Knox on
both November 2, and again, with Respondent’s costout
(G.C. Exh. 7(a)) on November 3, 1989.
Respondent further argues that its second printed cost pro-
jection of November 3, 1989 (G.C. Exh. 7(b)), labeled ‘‘Pre-
ferred,’’ was evidence that the parties had not reached an
agreement but continued to negotiate. However, I find that
Respondent’s latter argument is not supported by the evi-
dence. On the contrary, the Union’s receipt of this preferred
document (G.C. Exh. 7(b)) was after the fact of the parties’
telephone agreement of November 2, 1989, as well as after
the fact that the Union had received Respondent’s printed
costout (G.C. Exh. 7(a)) that the Union had requested Re-
spondent to transmit to the Union. Respondent complied with
that request, and later, indicated on its second transmitted
costout (G.C. Exh. 7(b)), that it ‘‘Preferred’’ the latter
costout. However, by transmitting the memorandum of agree-
ment to the Respondent for signature on November 2, and
again on November 3, the Union had further confirmed its
acceptance of Respondent’s offer to include the five con-
tested employees. Likewise, by ignoring the printed cost pro-
jection (G.C. Exh. 7(b)), labeled ‘‘preferred,’’ the Union re-
jected what Respondent preferred and held Respondent to its
telephone offer and its written confirmation of the printed
costout (G.C. Exh. 7(a)), transmitted to the Union before the
second ‘‘preferred’’ printed costout (G.C. Exh. 7(b)).
It is therefore clear, by both the oral conversations of the
parties and Respondent’s conduct of transmitting the printed
905KASSER DISTILLER PRODUCTS
costout projection (G.C. Exh. 7(a)) in concurrence with the
parties conversation of November 2, 1989, that the parties
reached agreement on November 2, which was further con-
firmed on November 3, 1989. Pittsburgh-Des Moines Steel
Co., supra; Capitol-Husting Co. v. NLRB, supra. See also
Ogle Protection Service, 149 NLRB 545 (1964).
Finally, Respondent contends that Knox did not have au-
thority to reach an agreement with the Union without ap-
proval of the board of directors of Respondent, of which he
was the chairman. The record however, is barren of any evi-
dence that Knox did not have authority to execute a final
agreement, or that he ever communicated such lack of au-
thority to the Union. In fact, Knox undeniably testified that
during the October 17, 1989 bargaining meeting with the
Union, in response to Mullin telling him he did not have the
authority to make an offer—commit the company without the
approval of the board of directors, he (Knox) told Mullin,
‘‘well if they won’t approve it, I’ll pay it out of my own
pocket.’’ hereafter, Knox continued to make offers to the
Union on behalf of Respondent for severance pay. At no
time was the Union notified that Knox was negotiating on
behalf of Respondent without authority to do so.
It is particularly noted that Respondent does not contend
that Knox did not have the authority to negotiate. It only la-
tently implies that Knox was required to have prior approval
to reach a binding agreement with the Union. However, the
Board has long held that an agent appointed to negotiate a
collective-bargaining agreement, as Knox obviously was, is
deemed to have apparent authority to bind his principal in
the absence of clear notice to the contrary. University of
Bridgeport, 229 NLRB 1074 (1977). Here, the Union was
not given any notice that Knox did not have authority to bind
Respondent and I find that Knox had such authority. Univer-
sity of Bridgeport, supra. NLRB v. Donkin’s Inn, Inc., 532
F.2d 138 (9th Cir. 1976); Ben Franklin National Bank, 278
NLRB 986, 995 fn. 8 (1986).
Notwithstanding, when Sheahan did not hear from Knox
after he transmitted the memorandum of agreement with the
printed costout (G.C. Exh. 7(a)) to Knox, he called Knox on
November 6, 1989. At that time, Knox acknowledged receipt
of Sheahan’s transmittals of November 2 and 3, 1989, and
that the parties had an agreement. He expressed no objec-
tions to the memorandum of agreement with the attachment,
and only reiterated what the parties had agreed would not be
included in the agreement: namely, sick leave and holiday
pay. Knox only stated that he wanted his attorney to review
the document. Thereafter, no word was heard from the Re-
spondent until November 22, 1989, at which time Respond-
ent returned an edited version of the memorandum of agree-
ment to the Union, with the most material change being dele-
tion of the five contested employees from the printed costout.
Other minor editorial changes were made by the Respondent
referable to the provision that Respondent would offer em-
ployment to all employees should Respondent reopen its
business were as follows: ‘‘operation’’ to ‘‘current oper-
ations,’’ ‘‘offer employment’’ to ‘‘employ,’’ and the addi-
tion: ‘‘to the extent positions are available and former em-
ployees are competent to perform duties of those positions.’’
In this regard, the Union and the General Counsel argue,
and I agree, that these minor changes are not of the ‘‘quality
as to infer a lack of agreement or an intent to modify what
was agreed upon.’’ This is especially true since the Union
(Sheahan) had no disagreement with the minor changes.
Cowles Publishing Co., 280 NLRB 903, 911 (1986).
Additionally set forth in Shawn’s Launch Service, 261
NLRB 836, 837 (1982), and cited in Cowles Publishing Co.,
supra:
With regard to the discrepancies in the first draft of
the contract, there can be no question that they were
merely inadvertent errors in transcription by the Union
and in no wise indicated that the minds of the parties
had not met. While it is, of course, true that, as Re-
spondent argues, an employer is not obligated to exe-
cute a contract which does not mirror the agreements
reached, that the problem was obviated once the Union
willingly made the correction sought and prepared a
fresh copy. Reppel Steel & Supply Co., Inc., 239 NLRB
358, 362 (1978).
Consequently, I find that these and other minor changes
made by Respondent herein, do not indicate a failure to
agree (that the minds did not meet). In fact, the Union does
not object to any of these and other minor editorial changes
by Respondent. The waiver language is performer language
and is appropriate and not uncommon in such settlements. At
most, such editing by the Respondent is in accordance with
an employer’s obligation to comment upon a draft and assist
in reducing an agreement to writing. Georgia Kraft Co., 258
NLRB 908, 912 (1981).
I therefore conclude and find upon the foregoing credited
evidence, reasons and cited legal authority, that the Union
and the Respondent reached a settlement agreement on No-
vember 2, 1989, which was further confirmed on November
3, 1989; that Respondent agreed that the Union would reduce
the agreement to writing and Respondent would furnish the
Union with a printed costout for employees, including the
five disputed former employees; that the Respondent accord-
ingly transmitted the printed costout to the Union on Novem-
ber 3, 1989; and that the Union accordingly transmitted the
memorandum of agreement to Respondent for signature on
November 2, and again on November 3, 1989.
I further find that since November 3, 1989, Respondent
has failed and refused to sign and return the memorandum
of agreement as agreed to by the parties on November 2 and
3, 1989, H. J. Heinz Co. v. NLRB, 311 U.S. 514, 526 (6th
Cir. 1941), and that such failure and refusal constituted a
failure and refusal to bargain in good faith, in violation of
Sections 8(a)(1) and (5) and 8(d) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with the operations of the Respond-
ent described in section I, above, has a close, intimate, and
substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor
practice conduct within the meaning of Sections 8(a)(1) and
(5) and 8(d) of the Act, I shall recommend that it cease and
906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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 the shall be deemed
waived for all purposes.
3 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.’’
desist therefrom and that it take certain affirmative action de-
signed to effectuate the policies of the Act.
Because of the character of the unfair labor practice con-
duct herein found, the recommended Order will provide that
Respondent cease and desist from or any like or related man-
ner interfering with, restraining, or coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir.
1941).
On the basis of the above findings of fact and on the en-
tire record in this case, I make the following
CONCLUSIONS OF LAW
1. The Employer, Kasser Distiller Products Corp., is, and
has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Teamsters Union Local 115, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen, and Helpers
of America, AFL–CIO, are, and have been at all times mate-
rial herein, labor organizations within the meaning of Sec-
tions 2(5) and 8(d) of the Act.
3. By failing and refusing to sign and execute the memo-
randum of agreement to which the parties previously agreed
November 2 and 3, 1989 and transmitted to Respondent by
the Union, the Respondent has, and is failing and refusing
to bargain in good faith with the Union, the lawfully des-
ignated collective-bargaining representative of its former em-
ployees, in violation of violation of Sections 8(a)(1) and (5)
and 8(d) of the Act.
On these findings of fact and conclusions of law and on
the entire record, and I issue the following recommended2
ORDER
The Respondent, Kasser Distiller Products Corp., Philadel-
phia, Pennsylvania, its officers, agents, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with the Union in good
faith by failing and refusing to sign and execute the memo-
randum of agreement transmitted from the Union, which em-
bodies the oral agreement to which the parties agreed No-
vember 2, 1989.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, sign and execute the memo-
randum of agreement embodying the oral agreement to
which the parties agreed November 2, 1989, which was
transmitted to us by the Union.
(b) Post at Respondent’s Third and Luzerne Streets, Phila-
delphia, Pennsylvania facility copies of the attached notice
marked ‘‘Appendix.’’3 Copies of the notice, on forms pro-
vided by the Regional Director for Region 4, after being
signed by Respondent’s authorized representative, shall be
mailed to the Union and to each former employee named in
the printed costout (G.C. Exh. 7(a)) at their home addresses.
(c) Notify the Regional Director in writing within 20 day
from the date of this Order what steps the Respondent has
taken to comply.
Monica McGhie-Lee, Esq. and Barbara Joseph, Esq., for the
General Counsel.
Barry R. Elson, Esq. and Regina M. Harbaugh, Esq.
(Kittredge, Donley, Elson, Fullem & Embick), of Philadel-
phia, Pennsylvania, for the Respondent.
Norton Brainard, III, Esq., of Philadelphia, Pennsylvania, for
the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. A hear-
ing in the above-captioned case was held before me in Phila-
delphia, Pennsylvania, on June 27, 1990. I issued a decision
in the matter on November 15, 1990. The Respondent filed
exceptions and a supporting brief and the General Counsel
filed an exception and answering brief.
The Board having considered the decision and record in
light of the exceptions and briefs filed, remanded the deci-
sion to me to discuss the testimony of Respondent’s wit-
nesses, Thomas Knox, Arthur Mullin, and Barry Elson, with
respect to statements made by them in the presence of Union
Representative Gerald Sheehan concerning the bargaining au-
thority of Thomas Knox.
In my decision, I found that the bargaining parties, Thom-
as Knox (Respondent) and Gerald Sheehan (the Union),
reached a severance pay agreement on November 2, 1989.
Respondent contended the parties did not reach an agreement
because Thomas Knox did not have authority to reach a
binding agreement without approval of the board of directors
of Respondent; and that such fact of his authority had been
communicated to the Union (Sheehan) during an October
1989 bargaining session.
In this regard the evidence established that the parties first
met in bargaining session at the Union’s office on September
28, 1989. Present for the Union were Business Agent Robert
Henneger, steward Joseph McElroy, and Union Representa-
tive Gerald Sheehan. Present for Respondent was Thomas
Knox. Prior to the meeting, the Union had been notified by
the Respondent that it was closing down, and during the
meeting Knox reiterated that announcement by informing
Sheehan that Respondent was closing the subject business.
Thereupon, the Union proposed its first severance package as
described in my original decision. However, since Respond-
ent could not cost out the proposal, the parties agreed to
meet again. Nothing was mentioned during this meeting
about Knox’s authority to bargain for the Respondent.
The bargaining parties met again on October 17, at which
time Respondent presented a severance pay counterproposal
(not germane here, but described in my decision). Knox testi-
907KASSER DISTILLER PRODUCTS
fied that during this meeting, Arthur Mullin of the Respond-
ent told him (Knox) that he (Knox) ‘‘could not commit the
company to anything at that time or in the future without ap-
proval of Respondent’s Board of Directors,’’ of which Knox
was chairman; and that he (Knox) told Mullin ‘‘if the Board
did not approve his offers, he (Knox) would pay for them
out of his own pocket.’’
Testifying in this regard, Arthur Mullin stated he did not
tell Knox, in the presence of other persons, that Knox did
not have binding bargaining authority, and that any offer that
he (Knox) made was subject to approval by Respondent’s
board of directors. It is particularly noted, however, that al-
though Knox testified that Mullin gave him the stated admo-
nition about his bargaining authority, and Mullin acknowl-
edged he gave Knox the admonition, neither Knox nor
Mullin testified or verified that Sheehan, McElroy, or any
other union representative was present and overheard
Mullin’s admonition to Knox.
Only counsel for Respondent, Barry Elson, testified that he
believed Knox stated in the presence of other persons in the
October meeting, that any offers made by him (Knox) were
subject to approval by Respondent’s board of directors. Such
a belief is not a statement of fact. Even Knox did not testify
the admonition was given in the presence of other union per-
sons.
Elson further testified that Mullin had in fact admonished
Knox in the presence of union representatives in the October
17 meeting about Knox’s lack of authority to reach a binding
agreement with the Union without prior approval of the
board of directors. Again, even if Mullin had given such ad-
monition to Knox Respondent has not shown that such ad-
monition was directly communicated to the union representa-
tives present, or that such representatives (Sheehan) over-
heard or responded to such admonition.
Respondent appears to contend that through its witnesses
(Knox, Mullin, and Elson), Respondent had in fact apprised
the Union that Knox did not have bargaining authority to
reach a binding agreement with the Union without prior ap-
proval of its board of directors. I am not persuaded by Re-
spondent’s contention.
Although Respondent was represented by Thomas Knox in
the first bargaining session on September 28, 1989, neither
Knox nor any other representative of Respondent informed
the Union that Knox did not have authority to reach a bind-
ing agreement without prior approval of Respondent’s board
of directors, of which Knox is chairman. Under these cir-
cumstances, I find it was normal and not unreasonable for
the Union to assume and rely on the apparent authority of
Knox to reach a binding agreement with the Union.
With respect to the October 17 meeting and the statements
Mullin and Knox testified Mullin made to Knox about his
authority to reach a binding agreement, I find that the evi-
dence fails to establish that any limitations placed on Knox’s
bargaining authority was ever communicated directly to
Sheehan or the Union by Respondent. At most, Respondent
presented testimony that Mullin gave Knox such an admoni-
tion about his lack of binding bargaining authority during the
October 17 meeting. For certain, the record is barren of any
evidence that Mullin had directed any statements about
Knox’s lack of binding authority to Sheehan or other union
representatives, or that Sheehan or any union representatives
overheard or inquired about such authority of Knox. Con-
sequently, I do not find that Knox or Mullin ever commu-
nicated any limitations on Knox’s bargaining authority to the
Union. To the extent that their testimony may be construed
that they did so communicate, I discredit their accounts be-
cause I was not persuaded by their demeanor that they truth-
fully testified that they did communicate limitations on
Knox’s bargaining authority to the Union.
Although Respondent’s counsel, Barry Elson, testified he
believed Knox stated in the presence of Sheehan or other
Union representatives during the October meeting that Knox
had such a limitation on his bargaining authority, Elson
could not categorically state as a fact that Knox made such
a statement during the meeting. Elson simply stated he be-
lieved that Knox made such a statement in the presence of
other persons. Although Elson later testified, that Mullin ulti-
mately made such a statement during the meeting on October
17, no evidence was offered to show that the statement was
directed to Sheehan or that Sheehan (the Union) heard or re-
sponded to any such statement by Mullin.
Elson is an attorney at law and, presumably, is aware of
the importance to explicitly communicate to the Union, any
limitations on the bargaining authority of the Respondent’s
bargaining representative (Knox), the evidence fails to show
that such a communication was directed to and transmitted
to the Union during the October bargaining meeting, or at
any other time prior or subsequent thereto.
Elson is also counsel for Respondent in this proceeding
and as such, he has an interest in its final disposition. Under
these circumstances, his credibility is substantially mitigated
by his bargaining and legal representative capacities on be-
half of the Respondent. Moreover, I was not persuaded by
his demeanor that he was testifying truthfully in this regard.
For the above reasons, and the uncertain testimony of
Elson’s ‘‘belief’’ what Knox may have said in the October
bargaining meeting, I do not credit Elson’s testimony that the
Union was informed that Knox did not have bargaining au-
thority to reach an agreement with the Union, without ap-
proval of the board of directors.
Additionally, I am further persuaded by the evidence of
record that the Union was not informed of any limitations on
Knox’s bargaining authority during the bargaining discus-
sions (offers and counteroffers) between Knox and Sheehan
prior and subsequent to October 17. The record does not
show that Knox ever told Sheehan he had to obtain approval
of any offers or acceptances made by himself on behalf of
Respondent. This was true even on November 2, when
Sheehan asked Knox, ‘‘Do we have an agreement?’’ Knox
replied ‘‘Yes, we do.’’ Knox did not say ‘‘Yes, if the Board
of Directors approve it.’’ When Sheehan did not receive a
reply to his written recitation of their oral agreement with the
transmittal attached to it, and called Knox on November 6
and asked Knox was the transmittal a completion of their
agreement, Knox said ‘‘Yes, it is.’’ When Sheehan asked
Knox was he going to sign it, Knox said ‘‘No, I’m going
to send it to my attorney first,’’ acknowledging that the No-
vember 3 transmittal was their agreement but stating, ‘‘I’m
going to bounce it off my attorney.’’ Knox did not tell
Sheehan he had to have any of the series of offers and
counteroffers by Respondent or the Union approved by Re-
spondent’s board of directors. Under these circumstances,
Sheehan simply said, ‘‘Okay, then we will wait to hear from
you.’’
908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Union made several calls and left several messages
for Knox between November 7 and 21, 1989, to inquire
about Respondent’s signing the agreement. Finally on No-
vember 22, Knox sent documents to Sheehan the terms of
which were inconsistent (partially changed) with the terms of
their telephone conversations and telecopy transmittals of
November 1 and 2. Specifically, during the telephone con-
versation on November 22, Knox told Sheehan ‘‘Well we
don’t have any agreement on paying everybody we’re not
going to pay the five guys.’’ At no time did Knox tell
Sheehan their telephone agreement was not approved by the
board of directors, but merely denied there was any agree-
ment. When Sheehan thereafter called Mr. Mullin on No-
vember 27, Mullin told Sheehan there was no agreement. He
did not tell Sheehan the agreement or the proported agree-
ment was not approved by Respondent’s board of directors,
but simply stated that there was no meeting of the minds of
the parties. However, I find otherwise, as explained in my
previously issued decision.
The record shows that Respondent raised for the first time
in this proceeding, the defense that Knox did not have au-
thority to reach an agreement with the Union without prior
approval of Respondent’s board of directors. However, I dis-
credit the testimonial accounts of Knox, Mullin, and Elson
in this regard for the reasons discussed above. Moreover,
other nontestimonial evidence of record discussed above does
not support their testimony, nor the Respondent’s defense,
that Knox did not have authority to reach an agreement with
the Union, without the approval of Respondent’s board of di-
rectors.
Assuming arguendo, that Knox did not in fact have unlim-
ited bargaining authority to reach an agreement with the
Union without approval of the board of directors, the record
does not show that Knox’s statement of his personal assump-
tion of a severance package was ever directed to or over-
heard by the union representatives. Consequently, the Union
could not have been relying upon Knox’s exclamation which
it did not hear or know about. If it had, Knox in all prob-
ability would be personally bound to pay out of his own
pocket, the severance pay package agreed to on November
1 and 2, 1989. Under the circumstances here, Knox is not
individually and personally responsible for the severance
package because Knox’s personal exclamation was not
shown to have been communicated to the Union.
Based on the foregoing findings, reasons and conclusions,
I am persuaded that no change is warranted in the findings
and conclusions of law, as they may relate to the bargaining
authority of Knox, set forth herein and in my decision of No-
vember 15, 1990.