Keystone Valve Corp.

National Labor Relations Board - Board Decisions

Oct 26, 1970

186 N.L.R.B. 64 (N.L.R.B. 1970)

64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Keystone Valve Corp . and Millwrights Local Union
2232 of the United Brotherhood of Carpenters and
Joiners of America , AFL-CIO. Case 23-CA-3416
October 26, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On May 20, 1970, Trial Examiner James M.
Fitzpatrick issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor
practices alleged in the complaint, and recommended
dismissal of such allegations. Thereafter, the Respon-
dent and the General Counsel filed exceptions to the
Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
amended (the Act), was tried before me in Houston , Texas,
on November 17, 18, and 19 , 1969 upon a complaint
alleging, and an answer denying that Keystone Valve Corp.
(herein Respondent or Company) had committed unfair
labor practices in violation of Section 8(a)(5) and ( 1) of the
Act. The complaint was founded on charges filed August
21, 1969 by Millwrights Local Union 2232 of the United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO (the Union)
Upon the entire record ,' my observation of the witness,
and consideration of the briefs filed by the General Counsel
and the Respondent , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Respondent, the employer involved herein, is a Texas
corporation engaged at Houston, Texas in the manufacture
and sale of butterfly valves. During the 12-month period
preceding the issuance of the complaint on October 2, 1969,
it shipped from its plant in Houston to points outside Texas
products valued at over $50,000
ii. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization which at times material
to this proceeding has admitted to membership employees
of Respondent. On June 26, 1968, in a Board-conducted
election a majority of the production and maintenance
employees at Respondent's Houston plant selected the
Union as their representative for the purposes of collective
bargaining with Respondent. On August 27, 1968, in Case
23-RC-3150 the Board's Regional Director for Region 23,
on behalf of the Board, certified the Union as such
exclusive collective-bargaining representative.2
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Keystone Valve Corp., Houston,
Texas, its officers agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
IT IS FURTHER ORDERED that those allegations of the
complaint as to which no violations have been found
are hereby dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Trial Examiner. This proceeding
under Section 10(b) of the National Labor Relations Act, as
The complaint alleges that since August 19, 1969,
Respondent has unlawfully refused to recognize or bargain
with the Union or to sign a written contract agreed upon
between them. According to the General Counsel the
unlawfulness of Respondent's conduct stems in part from
the fact that its refusal to recognize or bargain commenced
8 days before the end of the Union's certification year as
bargaining representative, and in part from the fact that a
complete agreement was negotiated between them. Respon-
dent denies that a complete agreement was negotiated. It
admits that commencing August 19, 1969, it refused to
recognize or bargain with the Union and that that date was
I In its brief Respondent moved to correct the transcript at page 505,
line 3, to read, "Was the number of the strikers brought up and discussed"
There being no opposition, the motion is granted and the transcript
corrected accordingly
2 The unit found appropriate for such collective bargaining consisted of
all production and maintenance employees employed by Respondent at its
Houston, Texas plant, excluding office clerical employees, guards,
watchmen, professional employees, and supervisors as defined in the Act
186 NLRB No. 9
KEYSTONE VALVE CORP. 65
technically within the certification year, but claims that the
8 days left in the year were of no practical or legal
consequence and that in any case unusual circumstances
justified its refusal on August 19. The General Counsel does
not contend that Respondent's refusal to recognize or
bargain antedated August 19, 1969, or that Respondent
bargained in bad faith or engaged in surface bargaining.
B. The Bargaining Sessions
Following the certification of the Union the parties met
on 25 occasions, the first such meeting being on September
26, 1968, and the last on August 19, 1969.3 The Company's
chief negotiator at all bargaining sessions was Clifford G.
Shawd , a management consultant, assisted by Bruce C.
Pettit, the Company's secretary-treasurer, and Don De-
Ville, production manager. The Union was represented by a
negotiating committee, the chief spokesman of which
varied from time to time but on every occasion was one or
another of the union officials. Thus at the initial sessions
the chief union spokesman was A. C. Shirley, a representa-
tive of the Carpenters International President. He was
generally assisted by Kenneth E. Banks, until December
1968, business representative of the Union and thereafter
representative of the Carpenters District Council, or by
Jack O. Fountain, executive secretary of the Carpenters
District Council. In December, Shirley was reassigned and
left the negotiations. Fountain, who was hospitalized in
December, left the negotiations at that time, returning
again in late January for a short time. He was thereafter
reassigned. During his absence and after he left the
negotiations Banks was the chief union spokesman
sometimes assisted by an attorney, William B. Gates. Banks
continued as chief union spokesman through the 24th
meeting on May 20. At the final meeting on August 19,
Fountain was the chief union spokesman assisted by Banks.
Thus the union representation had little of the continuity
which characterized that of the Company.
C. Topics of Tentative Agreement
At the initial session on September 26, 1968, the Union
presented a substantially complete contract proposal,
omitting certain items such as wages or proposed dates for
its commencement and duration. About October 17, 1968,
the Company responded with a package of counterpropo-
sals on most items proposed by the Union plus a few
additional, but not including proposals on wages nor dates
3 During 1968 , in addition to the first meeting in September, the parties
met on four occasions in October , three in November, and five in
December. During 1969 they met on three occasions in January , three in
March, three in April, and two in May in addition to the last meeting on
August 19 . During February and between May 20 and August 19 there
were no meetings.
4 Just what the negotiators contemplated by tentative agreement is a
matter of dispute . Early in the negotiations certain ground rules were
established including one relating to tentative agreements. Union
negotiators Shirley, Fountain , and Banks testified that the understanding
was that all agreements were contingent upon reaching agreement on a
whole contract . Chief company negotiator Shawd testified that all
agreements were contingent upon the parties signing the final agreement. I
credit the union version as being the more logical and because it squares
better with normal bargaining conditions . In addition Bruce Pettit who
assisted Shawd in negotiations at first testified in a manner corroborating
Shawd 's version , but when asked directly by the Trial Examiner, he
for duration. Thereafter they negotiated and agreed
tentatively4 on a substantial number of contract clauses
dealing with a wide variety of topics.5 The General Counsel
contends that by the end of the next to last meeting on May
20 the parties had tentatively agreed on all subjects under
negotiation except wages, insurance, and seniority, and that
at the final meeting on August 19, the Union accepted the
Company's terms on these three outstanding items, thereby
achieving agreement to a complete contract. Respondent
disputes the extent to which tentative agreement was
reached prior to the last session. At the last session on
August 19, Respondent refused to negotiate at all, and it
contends, therefore, that no agreements resulted from that
encounter.
Since on his theory of the case the General Counsel has
the burden of proving agreement by the parties on all
essential aspects of an agreement, and since he would fail to
sustain that burden if agreement were not reached on any
essential aspect of the contract, I deem it appropriate to
scrutinize those topics on which Respondent asserts no
agreement was reached.
D. Topics on Which Respondent Contends No
Agreement Was Reached
1. Wages and duration of the contract
There is no dispute that prior to the last session on
August 19 the Union and Respondent had not come to
agreement about wages or contract duration. These matters
were still open. There is a question, however, whether the
General Counsel has sustained his burden of adequately
identifying in the record outstanding company proposals of
these topics which on August 19 were susceptible of
acceptance by the Union. One confusing aspect is that
during negotiations discussion of contract duration seems
to have been intertwined with discussion regarding wages,
presumably because the significance of wage provisions
depended in part upon time factors. Contract duration was
not treated separately or in relation to other topics
discussed.
The initial proposals presented by the Union at the first
negotiating session on September 26, although substantially
complete, did not contain a wage proposal. However, at
some point in the early negotiations, the record does not
indicate exactly when, the Union made a wage proposal
covering various classifications of work. But the Union's
package of proposals, even when supplemented by its wage
testified the negotiators could have said that everything would be tentative
until agreed upon.
5 At the hearing the parties stipulated that tentative agreement was
reached on the following topics: recognition ; scope of agreement ; business
agents and union officials; strike and lockouts; probationary employees;
holidays; vacations; funeral leaves; jury service; safety; bulletin boards;
change in address, telephone number and personal status; rest periods;
payment for time lost for medical attention related to injury arising out of
employment ; equipment and clothing ; nondiscrimination because of union
activity; nondiscrimination because of race, religion , etc.; profit sharing
plan; and separability. In addition a preponderance of the evidence shows
that during the first 24 sessions the negotiators also arrived at tentative
agreement regarding the following topics; shop stewards ; hours of work;
overtime and premium pay; leave of absence; grievance procedure;
production standards; installation of new machinery , etc.; and, orally,
regarding management rights including provisions for checkoff.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposal, contained no term for the duration of the
proposed agreement nor did it indicate whether the
proposed effective date of the agreement would be
immediate, in the future, or retroactive .6 Moreover, in
making the initial proposal, the union negotiators said
nothing orally about contract duration. A. C. Shirley,
negotiator for the Union, testified that in oral discussions
regarding the Union's wage proposals he offered it as a 1-
year proposition, but that the Company never specifically
accepted the proposition.
In a similar fashion, the Company counterproposals
offered about October 17, did not include a wage proposal
and carried no dates regarding duration. Later, about
October 29, the Company separately offered as its
counterproposal on wages a 15-cent maximum increase in
the wage rate range. In making this counterproposal on
wages Shawd indicated orally that it embodied what the
Company was willing to do at that time and that if a longer
term contract were involved the Company might be willing
to do something else in the way of wages. Whether this
amounted to a 1-year wage proposal, or reasonably
construed could be understood to be a 1-year wage
proposal, is not entirely clear from the record. Shawd
testified that he did not designate it as such. According to
the testimony of Banks, Shawd said that presently this is
what they were willing to give. Shirley then asked if it was
for a 1-, 2-, or 3-year term and Shawd replied that naturally
if it goes into another year it could have more added to it.
This indicates that the Company's counterproposal on
wages was a 1-year proposal susceptible to adjustment for
longer periods of time. The union negotiators Shirley and
Banks took it as a ]-year wage proposal. According to
Shirley, prior to the Company's counterproposal on wages
the union negotiators had been talking in terms of a 1-year
contract and it was against this background that they
construed Shawd's remarks and the company proposal as a
1-year matter. Shirley testified that the Company's
counterproposals on wages itself had no term in it. I find
that the Company's initial counterproposal regarding wages
was, in context, a proposal for 1 year.
In any case the Union did not at that time accept it. In
subsequent discussions regarding wages, 2- and 3-year
terms for wage arrangements were considered. In January
the Union hired Attorney Gates to assist it in negotiations.
According to Banks, Gates (who did not testify) reported to
him regarding negotiations on April 24 at which the parties
discussed a company proposal for a wage package of three
successive annual raises of 10 cents, totaling 30 cents over a
3-year term. This was the last company proposal on wages.
The Union did not accept it. But discussions continued on
wages as well as seniority and insurance at bargaining
sessions on April 25, May 1, and May 20. Banks testified
that at the April 25 session the company wage proposals
were presented orally rather than in writing, and that on
behalf of the Company Shawd discussed wage proposals
not only for 1-year but also for 2-year and 3-year terms. On
the other hand Pettit, who assisted Shawd in the
6 Although both the union-and company-written contract proposals
contained separate articles dealing with termination, blanks were left in
both versions for insertion of the beginning and ending dates for the
proposed agreement
negotiations, testified that what the Company was talking
about was the 3-year wage proposal. I credit Pettit.
At the end of the May 20 bargaining session , which was
the 24th and next to the last meeting , the posture regarding
negotiations on wages was as follows: the negotiators were
stalled on wages, and also on insurance and seniority;
neither the Union's initial written wage proposal nor the
Company's counterproposal, also in writing, both made
early in the negotiations , contained any written terms
relating to duration, but the union proposal had been
augmented by statements of the union negotiators indicat-
ing they intended it as a 1-year proposal, and the company
counterproposal had been offered in an oral framework
which made the union negotiators' interpretation of it as a
1-year counterproposal not unreasonable; all this had been
followed, however, in later sessions by considerable
discussion including a proposal, made orally by the
Company, for an entirely different wage package to extend
over 3 years. In these circumstances it cannot be said that
the Company's original written counterproposal on wages
was its last offer on that subject. Moreover, none of the
wage negotiations, nor for that matter in any of the
discussions on any other portion of a proposed collective-
bargaining agreement, did either party specifically propose
a beginning or an ending date for the agreement. As of the
end of the 24th session therefore, there was no pending
proposal regarding the precise time of commencement or
termination of wage provisions or of a collective-bargaining
agreement as a whole. The situation was still the same when
the parties went into the 25th session on August 19.
2. Seniority
Of all topics discussed in negotiations, seniority caused
the greatest problems. The Union's initial package proposal
of September 26 included a number of provisions touching
on the subject, including one entitled Seniority, one on shift
preference in seniority, one on interdepartmental transfers,
and one on disciplinary transfers. Similarly, the Company's
package counterproposal presented about October 17
included provisions entitled Seniority, one on probationary
employees, and one on transfers. When a Federal mediator
entered the picture in early November he prepared an
agenda listing topics for discussion, including the topic of
seniority under which he included both the union and the
company proposals above referred to. Thereafter this
agenda was used as a general guideline for subjects to be
discussed. In subsequent meetings there were many
discussions about, and proposals and counterproposals
regarding seniority, including a written proposal by the
Company on December 10. By January 15 the talks had
reached a crucial point, with the Union threatening to strike
the next day if its terms were not met. In a marathon session
on January 15 the negotiators made a number of changes in
the then outstanding December 10 company proposals,
including a number of concessions by the Company made
in an effort to avert the strike.? The Union did not accept
this revised proposal. Instead it came back with the word
7 The proposal then under consideration was in writing The company
concessions were in the form of handwritten interlineations on this written
proposal It was this written proposal with the interlined handwritten
concessions which, according to Banks, the Union intended to accept at
KEYSTONE VALVE CORP.
that it would go on strike the next day. Thus the
concessions made by the Company in an attempt to avert
the strike did not succeed. Company negotiators Shawd
and Pettit testified that they then withdrew the concessions
and returned the company proposal to what it had been
before the concessions were made, and, moreover, that this
was communicated to the union negotiators. Banks who
was then negotiating for the Union denies that such
withdrawals were communicated to the Union. However, I
credit the company negotiators because they corroborate
each other and because their general recollection of the
negotiations was more precise than Banks. It further seems
unlikely that in the subsequent negotiations, which at times
dealt with seniority, the Company's position with respect to
these matters would not have been made clear to the union
negotiator.
It is not entirely clear on this record just what the Union
contemplated as the Company' s last offer on seniority.
Banks testified that he considered the Company's last offer
to be the one in written form under consideration on
January 15 together with the handwritten concession
thereon, referring to handwritten changes by Shawd on the
first page. But there were also handwritten changes on page
2 of that draft which with one exception are unexplained.
Nothing in the record indicates who made them, or whether
Shawd authorized or adopted them.
After the strike, which began January 16 and lasted about
a week, the subject of seniority was considered by all
concerned to be a matter which was up in the air. It was the
subject of further discussions, particularly at meetings on
April 24, and 25, and May 20, and although many other
matters were agreed upon, seniority was not. The record
does not reveal the details of what was discussed or
proposed on seniority during these meetings. The Company
contends it returned to its position prior to its prestrike
concessions. It offered in evidence its typewritten Decem-
ber 10 proposal as embodying that position, which it
considered to be its last proposal. Considering the
negotiations on seniority after the strike, the confusion
surrounding alterations to the December 10 company
proposal under consideration on January 15, and the
obvious disparity between the union and company view of
that last offer, I find the evidence insufficient to establish
with adequate precision, what that last offer was.
The Company had also included in its package of
proposals on October 17 a provision dealing with transfers.
Banks admitted that this topic was not agreed to prior to
the last meeting but he considered that the Union accepted
the Company's proposal at that time even though nothing
specific was said about it. Under the general heading of
Seniority the mediator had listed among other items the
Company's proposal on seniority, its proposal on proba-
tionary employees and its proposal on transfers. The
December 10 proposal of the Company on seniority
covered both seniority and probationary employees, but the
language did not cover the same subjects as the Company's
proposal on transfers. The question then is whether the
topic of transfers was inferentially covered into the topic of
seniority. In this connection the agenda did not redefine
67
the topics to be negotiated. It was merely a device of the
mediator for the grouping of items to be considered. Such
was the situation regarding seniority when the parties went
into the 25th and last meeting.
3. Insurance
The original package of provisions offered by the Union
at the first negotiating session did not include any proposals
on insurance. It did include, however, a bare topic heading
entitled Health and Welfare. Company proposals offered
later did include provisions on group insurance, covering
life and hospitalization insurance plans already in effect
with the Company. The parties stipulated that this was the
last company proposal on insurance.
4. Other subjects on which the Company claims
there was no agreement
Contrary to the union position that by the end of the 24th
meeting tentative agreement had been reached on all
subjects of negotiation except wages, insurance, and
seniority, the Company argues that a number of other
topics under consideration were not in fact agreed to. For
example the Company's initial package of proposals
contained one entitled Installation of New Machinery,
Changes in Production Methods and/or Devices, which
provided that the Union should be notified if such changes
were made which might reduce the number of jobs. Shawd
testified that this clause was never agreed to. Shirley
testified that the topic was discussed at the second and third
sessions on October 1 and 17, but that no agreement was
reached at that time. However, Banks, after referring to his
notes on his copy of the mediator's agenda, testified that on
April 23, when he was the chief union negotiator, he did
accept the Company's proposal. I credit Banks and find
that on April 23 the parties tentatively agreed on that
clause.
A somewhat similar situation existed with regard to the
Company's proposals on production standards which it
included in its first package and which the mediator had
included on his agenda along with several other proposals
under the general heading of Management and Union
Rights. Shawd and Pettit both testified that the proposal
was never discussed and that no agreement was reached on
it. On the other hand Banks testified that he accepted the
entire Company's proposal on April 23. I so find.
At their eighth meeting on November 13 the Company
and Union negotiated for 14 hours about grievances and
arbitration. By the end of the meeting they believed they
had orally agreed in principle on provisions for an article
on grievance procedures as well as for a following and
related article on arbitration. The chief union negotiator
was Fountain, Shirley and Banks being absent. As always
the Company was represented by Shawd, Pettit, and
DeVille. Fountain thereafter reported to Shirley that
tentative agreement had been reached on grievance and
arbitration and, based on Fountain's notes made at the
meeting, they prepared a typed draft of the proposals. At a
subsequent meeting with the Company in December
concessions which, according to Banks, the Union intended to accept at
the last meeting on August 19.
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shirley, who was again temporarily representing the Union
because Fountain was hospitalized, presented to Shawd the
typed draft on grievance procedure and arbitration as what
Fountain had said they had agreed upon. Shawd received it
and said he would check it for discrepancies and let them
know. He never did and nothing further was said about
those topics during later negotiations. Shawd never overtly
approved of the union draft, but then he never told the
union negotiators anything was wrong with it either. The
union negotiators believed they had reached tentative
agreement and that their draft embodied that agreement.
At the hearing Shawd testified he did not agree to the
union draft, that there were several discrepancies which
were unacceptable. Pettit also testified that the Company
never came back to the Union on the matter nor did it agree
to the language. Section 1 of the article on grievance
procedure in part appeared in the union draft as follows, "If
not settled within 2 working days and the complaint
qualifies as a grievance as defined in this article, if the
employee desires to present it for handling, he should do so
as hereinafter provided in this article." Shawd testified that
the word "should" was a discrepancy which should have
read "shall." And he testified that in Section 2 of the
grievance procedure draft the sentence "a grievance shall
be limited to a written specific allegation by an employee,
the Union or the Company, as the case may be, that a
provision or provisions of this agreement have not been
complied with" was unacceptable because the words
"specific cited" should have appeared before the word
"provision." Section 3 of the draft regarding arbitration in
part read, "The arbitrator shall have no power in anyway to
add to or subtract from, amend or modify, or project
beyond its express meaning any of the expressed terms of
this agreement, or any other agreement made supplementa-
ry hereto, change wage rates established by this agreement
or to establish any wage rates for a new job classification.
In the report of his decision, the arbitrator shall state the
basis of his findings" Shawd testified the union draft was
not acceptable because "expressed" should have been
"express" and it should have included after the words "job
classification" the words, "nor to rule on any dispute
regarding performance standards."
He also expressed at the hearing a tangential objection to
the draft arbitration provision based on his assertion that
during the negotiations leading up to the so-called oral
understanding in principle on grievance and arbitration, he
had, at the suggestion of the mediator, agreed to the
removal of language having to do with disciplinary action
and arbitration in case of a violation of work rules on the
understanding that the mediator would suggest a separate
article on work rules containing similar language, but that
such a separate article on work rules was never drawn nor
again discussed in the negotiations.
I find that Shawd's disagreement with the use of "should"
instead of "shall" and "expressed" instead of "express" and
his objection to the omission of the words "specific cited"
are inconsequential variances. However, the omission of
words from the Arbitration provision which would deny an
arbitrator the authority "to rule on any disputes regarding
performance standards" was a matter about which the
parties were in serious dispute and it was a point which the
Company never conceded. This was a variance of
substance and since the Union's draft embodied what it
considered to be the agreement between them, a preponder-
ance of the evidence fails to establish that they tentatively
agreed upon an arbitration provision. I find they did
tentatively agree on grievance procedure.
E The Last Meeting
The 24th and next to last meeting was on May 20. The
final meeting was on the following August 19. Between
there were no negotiations. A meeting had been scheduled
for June 5, but was cancelled because Banks was
hospitalized. After he left the hospital he endeavored
directly and through the mediator to arrange further
meetings. In talking with Pettit he attempted to persuade
the Company to negotiate without Shawd. Banks also wrote
to Pettit on July 11 requesting meetings on July 21, 22, 28,
or 29, requesting "that this meeting be for a package of the
remaining three items, wages, seniority, and insurance.
These three items are the remainder on the agenda as set up
by the Federal Mediation and Conciliation Service."
Pettit's secretary replied by letter of July 17 that company
representatives were not available on the suggested dates
because of vacations but could meet on July 23 or 24.
Banks did not respond to this suggestion. However, a few
days later with the help of the mediator arrangements were
made for a meeting on August 19.
On July 29, after these arrangements were made, a
decertification petition signed by 51 employees of a total of
81 then in the unit was filed with the Board. On August 18
Shawd and Pettit discussed the position the Company
should take at the August 19 meeting and concluded that in
view of the decertification petition signed by a majority of
the employees in the unit, the various union suggestions to
the Company to replace Shawd as its representatives in
negotiations, the relatively small number of employees that
had participated in the January strike, and the substantial
differences between the Company and the Union on still
resolved issues, that the Company would terminate its
bargaining with the Union and cease thereafter to recognize
the Union.
The Union also reviewed its situation in advance of the
August 19 meeting. Banks and Fountain concluded that
they would accept the Company's terms on what they
understood were the only three outstanding items, insur-
ance, wages, and seniority. Banks believed seniority
included all company proposals listed on the mediator's
agenda under the topic Seniority namely, seniority,
probationary employees, and transfers.
Thus each party approached the August 19 session with a
predetermined plan of action; the Union intending to
accept all outstanding company proposals as they under-
stood them; the Company intending to break off negotia-
tions and cease recognizing the Union.
On August 19, the Union was present in the persons of
Fountain and Banks and the Company in the persons of
Shawd, Pettit, and DeVille. The mediator opened the
meeting, noting that three topics remained open, wages,
insurance, and seniority. Shawd then handed Fountain a
letter addressed to Banks dated August 18 and signed by
Pettit reading as follows:
KEYSTONE VALVE CORP. 69
There is predominant evidence, known to both
parties, that the Millwrights Local Union 2232 of the
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO does not represent the majority of
our bargaining unit employees; therefore, we find it
inappropriate to resume or continue negotiations and
believe it to be contrary to the intent of the Act to do so.
For these reasons , we respectfully withdraw from
further negotiations.
Fountain and Banks read the letter. Then Fountain stated
that there were three items still open, wages, insurance, and
seniority, and that the "Union accepts the Company's last
firm proposal on these three items for a period of a 1-year
contract from this date as discussed previously." Shawd
replied, "The letter shuts off need for further remarks."
Fountain then asked if the company proposals were not
firm, whether the Company denied that the proposals were
made at the table. Again Shawd replied, that no answer was
required, and the meeting broke up.8
F. Discussion
The Union entered the August 19 meeting with the
assumption that only three items , wages, insurance, and
seniority, were outstanding. On the record before me,
however, this assumption was not entirely warranted.
Whether the union negotiators believed to the contrary or
not, the facts were that during the first 24 meetings,
tentative agreement had not been achieved on arbitration
and the record does not establish that the Company waived
its objections to the union version of that clause.
Consequently, even if the parties agreed on everything else
at the 25th meeting, the problems regarding arbitration still
remained outstanding.
With respect to the three items which in the Union's view
were still outstanding prior to the 25th meeting, it is clear
that one of these, insurance, was identifiable by an
outstanding last offer of the Company which was
susceptible of acceptance. However, the contrary was true
with respect to seniority and wages and also with respect to
the effective beginning date and duration of a proposed
contract. As to these items on which agreement was
essential to consummation of an operable contract, a
preponderance of the evidence does not establish outstand-
ing company last offers sufficiently specific to be amenable
to acceptance in the manner attempted by the Union at the
25th meeting without the necessity of further bargaining. I
find, therefore, that the events at the 25th meeting as well as
during earlier of the contract. negotiations did not result in
agreement on seniority, wages, or duration
On this record it would be impossible to order the
Company to execute a collective-bargaining agreement
because it would be impossible to determine the precise
terms agreed to on the subjects of arbitration, seniority,
wages , and duration. In these important respects the
8 1 base these findings as to sequence on the credited testimony of Pettit
which in the main was corroborated by the testimony of Shawd as well as
Fountain and Banks . However, Fountain and Banks testified that Fountain
accepted the company proposals before Shawd handed over the letter. On
further examination , however, Banks was not positive of the sequence, and
Pettit seemed to have the most precise recollection of all of the witnesses
regarding the meeting. In any case it seems to me that in the field of labor
agreement of the parties was incomplete, and there are
omissions which the Board cannot supply. Ridge Citrus
Concentrate, Inc., 133 NLRB 1178. In view of the foregoing
I find that the Company has not violated Section 8(a)(5) of
the Act by refusing to execute a collective-bargaining
agreement upon which the parties have agreed.
The General Counsel also contends that the Company
violated Section 8(a)(5) of the Act when it ceased to
recognize or bargain with the Union on August 19, 8 days
before the end of the certification year. Absent unusual
circumstances the majority status of a certified union is
conclusively presumed for a year. Ray Brooks v. N.L.R.B.,
348 U.S. 96. Respondent contends that unusual circum-
stances justified its refusal to recognize or bargain near the
end of the certification year and that in any case it factually
and legally fulfilled its obligation by honoring the Union
representative status through almost all of the certification
year.
The circumstances which Respondent urges as justifica-
tion for shortening the certification year are, first, that at
the opening sessions then chief Union Negotiator Shirley
threatened to entrap chief Company Negotiator Shawd in
that he warned Shawd that if he placed himself in a position
which amounted to a trap, Shirley would not warn him of it
but would spring the trap. The second so-called unusual
circumstance was that in late January at a time when the
Union felt negotiations were going badly, the then chief
union negotiator, Fountain, urged Pettit to have Shawd
replaced as company negotiator and threatened that there
would be difficulties in the installation of the Company's
products elsewhere if he were not replaced .9 The third
circumstance was that the Union's economic strike in
support of its bargaining demands, which began January 16
and lasted about a week, was supported by about only 30 to
35 of the approximately 107 employees then in the
bargaining unit. Fourth, in June the Union again made
efforts in the person of Banks to replace Shawd as the
company negotiator by suggesting to Pettit that they meet
without him. Fifth, the Company claims it was not sure if
the Union seriously desired continued negotiations because
Banks had failed to respond to the Company's suggestion
of July 23 and 24 as meeting dates. Sixth, the Company
urges that on July 29, 51 of the 81 employees then in the
bargaining unit filed a decertification petition with the
Board and that this indicates that a majority of the
employees did not desire continued representation by the
Union. Finally, the Company urges that by the last meeting
it had bargained through 24 sessions without reaching
agreement and that since at least May 20, the 24th session,
the parties had been at impasse or almost impasse on 3
issues, wages, insurance, and seniority.
Such circumstances are not comparable to the unusual
circumstances referred to by the Supreme Court in Ray
Brooks, supra, i.e., the certified union dissolved or became
defunct, a schism resulting in substantially all the members
relations an issue should not turn upon which negotiator happened to get
in the first word, when in fact all of the events occurred substantially
simultaneously.
9 Fountain's threat was the subject of Section 8(b)(1)(B) and (3) unfair
labor practice charges filed by Shawd on February 6 against the Union,
charges which were subsequently withdrawn.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and officers of the certified union transferring their
affiliation to a new union , or the size of the bargaining unit
fluctuating radically within a short time. By contrast, many
of the circumstances in the present case are of little
consequence. Shirley's comments at the opening of
negotiations regarding entrapment of Shawd was an
incident wholly without significance. Even if it were
significant, it was followed by months of collective
bargaining. Similarly Fountain's threats to the Company to
get rid of Shawd was followed by many further meetings
and much hard bargaining. In any case, the incident, which
was the subject of a charge which the Company later saw fit
to withdraw, can hardly now be said to have been so serious
as to warrant alteration of the normal rule of law dictating
the status of a certified representative for the full year. With
respect to Banks' efforts in June to persuade Pettit to
negotiate without Shawd, there is no suggestion in the
record that this conduct was coercive or unlawful; no
unfair labor practice charge was filed with respect to it, and
the Company was amenable to meeting with the Union on
subsequent occasions. In my view this circumstance was as
insignificant as Shirley's opening remarks to Shawd.
The week-long strike in January was a more significant
event, but economic strikes in support of bargaining
demands are hardly unusual in the history of collective
bargaining. The real significance of the strike was that it
was not well supported by the employees and that in effect
the Company won it at a point midcourse in the series of
bargaining sessions . At the time of the strike the
certification year still had 7 months to run. Subsequently
the parties met several times and reached tentative
agreement on a number of issues . It strains logic to say that
an unsuccessful strike in January was a sound basis for
cropping short the certification year ending the following
August.
The alleged existence of impasse or near impasse on the
three issues of wages, insurance, and seniority beginning at
least as early as May 20 likewise does not hold water as a
valid argument for cutting off negotiations. Assuming,
without deciding, that at the 24th session on May 20 the
negotiators had reached impasse, the story did not end
there. No company decision was then made to withdraw
from bargaining. A further negotiating session was
scheduled for June 5 and cancelled only because Banks
entered the hospital. When he got out considerable
communication passed between the Union and Company
regarding specific dates for further meetings, some of which
were not feasible because vacationing company negotiators
were unavailable. It is clear that the company decision to
withdraw was not made until after the July 29 decertifica-
tion petition was filed and probably not until Pettit's letter
of August 18 was drafted. In the meantime the union
negotiators had determined to accept what they believed to
be outstanding company proposals on the three issues and
they came to the final meeting intent upon agreeing with
the Company on these matters. Thus on the Union's side
the situation on the so-called impasse issues had changed. It
was the Company that entered the last session with a fixed
purpose of not agreeing, and its negotiators held fast to this
purpose even though during the meeting it became
apparent that the union attitude had changed. The asserted
impasse , therefore , could not be a basis for then
withdrawing from bargaining. At the time of the Compa-
ny's refusal to bargain it was nonexistent . See Kit
Manufacturing Company, Inc., 138 NLRB 1290, at
1294-1295.
The Company makes much of Banks' failure to respond
to the company letter of July 17 suggesting available
meeting dates on July 23 and 24. Prior to this, however,
Banks had sought to arrange meetings and while he did not
respond specifically to the July 17 letter he subsequently
did work out arrangements to meet on August 19. Perhaps
the Union could have been more aggressive in seeking
bargaining dates, particularly in view of the nearing end to
the certification year, but its conduct was not so lethargic as
to justify a conclusion that the Union was abandoning its
representative status.
The most serious point made by the Company is that on
July 29, 51 of 81 employees in the unit signed a
decertification petition filed with the Board. But the filing
of a petition for decertification, even when signed by a
majority of employees in the unit, is not dispostive of the
question. It is a mere preliminary, procedural step, and its
filing during the certification year does not vitiate the
presumption of the bargaining status of a certified union,
nor does it amount to an "unusual circumstance" under
Ray Brooks. Ridge Citrus Concentrate, Inc., supra; Holly-
General Co., 129 NLRB 1098, 1103, enfd. 305 F.2d 670
(C.A.9).
The Company argues not only from each of the alleged
unusual circumstances , but also relies upon the whole
package. What this amounts to is that in view of the
difficulties of past bargaining, the Union's none too
aggressive efforts to arrange meetings with the anniversary
of the certification fast approaching, and the employees
decertification petition, the circumstances were so weighty
as to justify a company decision to abandon negotiations 8
days in advance of the end of the certification year. I do not
find these circumstances so weighty. The totality of
circumstances in the case suggest instead that had the
Company maintained a bargainable attitude it might have
well achieved agreement with the Union during the
remaining 8 days
Respondent argues also that having bargained for almost
a year, it had bargained for what was legally the equivalent
of a full 365-day year. However, almost a year is not the
factual equivalent of a year. The last 8 days might have
been the most fruitful for bargaining purposes. And as
pointed out by the Ninth Circuit in N.L.R.B. v. Holly-
General Co., 305 F.2d 670, at 675, valid policy considera-
tions support a definite 1-year rule. Nor is almost a year the
legal equivalent of a year. Board law, with considerable
court approval, holds contrary to Respondent's contention.
Certain-Teed Products Corp., 161 NLRB 88, 100, enfd. 387
F.2d 639 (C.A. 5); Kit Manufacturing Company, Inc., supra,
at 1292; N.L.R.B. v. Holly-General Company, supra, at
674-675. In Kit Manufacturing at 1294 the Trial Examiner,
with Board approval, stated,
The Respondent in effect argues that since the year was
so close to its end, the Respondent was entitled to
anticipate its right to question the majority of the
Union. I do not believe it was entitled to do so. The
KEYSTONE VALVE CORP. 71
majority status accorded a certified union is absolute
for the definite period of 1 year and may not be
truncated, absent a showing of unusual circumstances.
Respondent cites N.L.R.B. v. Alva Allen Industries, Inc., 369
F.2d 310 (C.A. 8), and N.L.R.B. v. Satilla Electric
Membership Corp., 322 F.2d 251 (C.A. 5), as supporting its
position. One of the bases for the decision reached by the
Eighth Circuit in Alva Allen was, "the lethargic approach
of the Union during the preceding 8 months"(369 F.2d at 32 1).
In the present matter Respondent takes the position that it
was not sure whether the Union was interested in
continuing to represent the employees because it was not
sufficiently aggressive during the summer of 1969 in
pressing for negotiations. The facts here, however, are
quantitatively distinguishable from the 8 months lethargy
alluded to in Alva Allen. There were reasons known to all
why no meetings were held in June, namely, Banks'
hospitalization and subsequent convalescence. In July
considerable communication passed between the parties
looking toward meetings in the latter part of that month.
Respondent's only specific complaint is that Banks did not
respond to a letter from a secretary in the company office
that company negotiators were available for July 23 and 24.
But later they were in communication, either directly or
through the mediator, and did arrange for the final meeting
on August 19. These facts simply do not justify a company
felief that the Union was disinterested in representing the
employees. In this regard Alva Allen is distinguishable on its
facts. As for Satilla Electric,it was essentially a surface
bargaining situation not apposite to the present case. If
anything it supports the General Counsel's case in that it
reiterates the rule in Ray Brooks.
Based on the foregoing I conclude that in ceasing to
recognize or bargain with the Union since August 19, 1969,
Respondent has committed an unfair labor practice within
the meaning of Section 8(a)(5) of the Act.
many contract provisions , agreement is not established with
respect to certain others . As pointed out in Ridge Citrus
Concentrate, Inc., supra, the Board cannot supply the
omissions , and, accordingly , an order directing Respondent
to sign an agreement would not be appropriate. Stylecraft
Furniture Company, 111 NLRB 930.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by Respondent at its Houston, Texas, plant
excluding office clerical employees, guards, watchmen,
professional employees, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times since August 27, 1968 the Union has been
the exclusive bargaining representative of the employees in
the aforesaid appropriate unit within the meaning of
Section 9(a) of the Act.
5. By refusing since August 19, 1969 to recognize or
bargain collectively with the Union as the exclusive
representative of the employees in the aforesaid appropriate
unit. Respondent had engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
6. Such unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record herein I hereby issue the
following:
RECOMMENDED ORDER
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have 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 engaged in unfair labor
practices, I recommend that it cease and desist therefrom,
and take certain affirmative action to effectuate the policies
of the Act. To remedy Respondent's unlawful refusal to
fulfill its statutory bargaining obligation, I recommend that
it bargain on request with the Union as the exclusive
representative of its employees in the unit found appropri-
ate herein and, if an understanding is reached, embody
such understanding in a signed agreement. I also recom-
mend that Respondent post at its plant the attached notice
marked "Appendix." Although from this record it is
apparent that the parties were tentatively in agreement on
Keystone Valve Corp., its officers, agents, successors, and
assigns shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
Millwrights Local Union 2232 of the United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, as the
exclusive representative of all production and maintenance
employees employed by Respondent at its Houston, Texas
plant but excluding office clerical employees, guards,
watchmen, professional employees, and supervisors as
defined in the Act, concerning rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights to self-organization, to form labor organizations, to
join or assist the above-named union or any other labor
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or
all such activities.
2. Take the following affirmative action to effectuate
the policies of the Act:
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Upon request, bargain collectively with the above-
named Union as the exclusive representative of all the
employees in the unit described above, concerning rates of
pay, wages, hours of employment, and other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Post at its plant at Houston, Texas, copies of the
attached notice marked "Appendix." 10 Copies of said
notice, on forms provided by the Regional Director for
Region 23, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 23, in
writing, within 20 days from the receipt of this Decision and
Recommended Order, what steps have been taken to
comply herewith.ii
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
10 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
11 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 23, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively, upon
request, with Millwrights Local Union 2232 of the
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, as the exclusive representative of
all employees in the bargaining unit described below, or
in any like manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist the
above-named union or any other labor organization, to
bargain collectively through representatives of their
own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or
all such activities.
WE WILL bargain collectively, upon request, with the
above-named union, as exclusive representative of all
our employees in the bargaining unit described below
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment
and, if an understanding is reached, embody such
understanding in a signed agreement. The bargaining
unit is:
All production and maintenance employees at our
Houston, Texas, plant but excluding office
clerical employees, guards, watchmen, profession-
al employees, and supervisors as defined in the
Act.
Dated By
KEYSTONE VALVE CORP.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas
77002 Telephone 713-226-4296.