Lithochrome Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1190 (N.L.R.B. 1985)

1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lithochrome Corporation and Graphic Communica-
tions - International Union , Local 503 . Case 3-
CA-11935
30 September 1985
DECISION AND ORDER
BY MEMBERS DENNIS ,- JOHANSEN, AND
BABSON
On 7 May 1985 Administrative Law Judge D.
Barry Morris issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a brief in opposition'
to the General Counsel's exceptions.'
The National Labor Relations Board has delegat-
ed its- authority in this proceeding to a three-
11 and 12 June 1984. Upon a charge filed on 22 Novem-
ber 19831 a complaint was issued on 27 December and
amended on 9 March 1984, alleging that Lithochrome
Corporation (Respondent) violated Section 8(a)(1) and
(5) of -the. National Labor Relations Act. Respondent
filed 'an answer denying the 'commission of the alleged'
unfair labor practices.
The parties were given full "opportunity to participate,
produce evidence, examine and cross-examine witnesses,
to argue orally, and to file briefs. Briefs were filed by all ,
the parties.
On the entire record of the case, including my obser-
vation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
member panel. Respondent, a New York corporation with a place of
The Board has considered the decision and the business in Rochester,. is engaged in the business of pro-
record' in light of the exceptions and briefs and has viding and performing engraving and color separation
decided to affirm the judge's rulings, ,findings, I and and related services. It annually performs services valued
conclusions and to adopt ' the recommended Order. in excess of $50,000 for businesses which ' ship goods
valued in excess of $5.0,000 from locations within New
ORDER York State to customers located outside the State. Re-
The recommended Order of the administrative spondent admits that it is an employer engaged in com-
law judge, is •adopted and the complaint is dis- .
merce within the meaning of Section 2(2), (6), and-(7) of
the-Act, and I so find. In addition, Graphic Communica-
missed. ' I l
' We adopt the judge's finding that"the Respondent's refusal to execute
the contract presented to it by the Union did not violate the Act Al-
though the judge failed to specifically resolve certain credibility disputes
between Union President Woomer and the Respondent 's President
Lewandowski, the preponderance of the record evidence supports the
judge's finding that Woomer himself did not believe that an agreement on
a contract had been reached In this regard , we note that in his 25 Octo-
ber 1983 letter to Lewandowski transmitting copies of the Union's con-
tract with another printer, Woomer requested, "lp]lease contact me with
changes or a date mutually convenient for signing " In addition, in his
initial affidavit filed in the Supreme Court of the State of New York in
support of a "Petition to Compel- Arbitration," Woomer did not allege
that the parties had reached a new agreement , but claimed instead that
the provisions of the expired contract continued in effect Under these
circumstances, it is apparent that there was no "meeting of the minds" as
to all substantive terms of the contract , and accordingly the Respondent
had no obligation to execute the contract
In the absence of exceptions thereto, we pro forma adopt the judge's
finding that the language of the expired agreement 's arbitration clause in-
dicates that the parties did not intend the arbitration clause to survive the
contract , and his conclusion under Nolde Bros Y. Bakery Workers Local
358, 430 U S 243 (1977), that the Respondent had no duty to arbitrate
the Wets grievance
Michael Coperman, Esq., Buffalo, New York, for the
General Counsel.
Carl R. Krause, Esq. (Harris, Beach, Wilcox, Rubin &
Levey), Rochester, New York, for the Respondent.
Harold Cohen, Esq., Rochester, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This'
case was heard before me' in Rochester , New York; on
bons nternationa Union, Local 503 (the union) is a
labor organization within the meaning of Section 2(5) of
the Act.'
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues are:
1. Did Respondent refuse to execute a written contract
embodying the terms of an agreement previously reached
by the parties?
2. Was Respondent's refusal to arbitrate an employee's
grievance unlawful?
3. Did Respondent unlawfully condition the execution
of the agreement on withdrawal of the grievance?
B. The Facts
1. Background
Respondent is engaged in the printing business, primar-
ily in the preparation of color separations for the adver-
tising industry. It competes with all of the larger local
printing companies capable of performing color separa-
tions, including Great Lakes Press, Case Hoyt Corpora-
tion, Hammer Lithograph, and Rochester Empire
Graphics. The Union and Respondent have been parties
to'- several successive collective-bargaining agreements,
the most recent of which expired 30 April 1983.
Prior to 1983 Respondent did not negotiate its own
contract separately with the Union. Instead, a contract
would be negotiated with the major printing companies
i All dates refer to 1983 unless otherwise specified
276 NLRB No. 132
LITHOCHROME CORP -
in Rochester and the smaller companies, like Respond-
ent, would routinely sign the same contract. The major
printing companies generally had been members of the
Printing Industries Association of Western New York
(PIA) which negotiated the labor agreement for all of its
members as a multiemployer group. Case Hoyt Corpora-
tion, Hammer Lithograph, Great Lakes Press, and Roch-
ester Empire Graphics had all been members of PIA. In
prior years, after the Union settled with PIA a complet-
ed agreement would be taken to Respondent's president,
Norman Lewandowski, who would review the contract
and sign it.
In February or March 1983 the Union was notified by
the PIA members that they wished to negotiate their
contracts separately and were withdrawing from multi-
employer bargaining. Separate bargaining subsequently
took place with Case Hoyt, Hammer Lithograph, Great
Lakes Press, and Rochester Empire Graphics. Four dif-
ferent contracts were eventually signed with these four
companies.
2. Spring 1983 meeting
Robert Woomer, president of the Union, testified that
in March or April he spoke to Lewandowski explaining
to him the different position currently being taken by the
companies in negotiating the new contracts. Woomer tes-
tified that he asked Lewandowski:
. . . if he wanted to participate in negotiations this
time or if we would continue the posture that we
had in the past, that is, that when we get a contract
prepared that we would bring it to him and that he
would sign it then
Q. What did Norm Lewandowski say then?
A. Well, Norm indicated to me that he saw no
reason to change our relationship. He indicated to
me at that time that when we signed the contracts
in the city, that is, put together the contract and
bring it to him that he would sign it.
Lewandowski's recollection of the meeting differed.
He testified:
Q. When did you first have a conversation with
[Woomer] regarding the renegotiation of your then
expiring labor agreement? -
A. Well, sometime in the spring when he came
and said to me that this year the employers are all
negotiating separately and consequently that he was
going to be overwhelmed with work. He asked me
what I wanted to do. He asked did I want to in-
volve myself now or negotiate with him later. I
then told him that it would be foolish for me to ne-
gotiate now because I don't have much to say about
the contract. The major corporations in the city do.
When he gets done with negotiating with the major
companies to come and see me and we will negoti-
ate a contract then. Basically, that was the end of it.
That was the way that we left it.
1191
3. June` meeting
On 9 June Woomer met with Lewandowski at which
time Woomer submitted a proposed letter of agreement
or "white letter" for Lewandowski to sign . Woomer tes-
tified:
I told him "Norm, I have what is referred to as a
white contract that.we feel as a union will be the
contract in the city at Case Hoyt, Hammer Litho-
graph and Great Lakes Press. I am asking you to
sign this so you don't get involved in any kind of a
city-wide dispute." Norm, Mr. Lewandowski told
me that he had been involved in this once before
... and that as a result of him agreeing to that, the
rest of the companies had tried to put him out of
business. He then indicated to me that he would not
sign it . He said , "You have got my word that when
you get done with the contract with the rest of the
companies, bring me a -contract and I will sign it."
However, he stipulated one major difference in
1983 on that particular date. He said that there is
one provision which has to be the same, no more,
no less than Rochester Graphics, which was his
main competitor here in the City of Rochester.
Again with respect to this meeting, Lewandowski's
recollection differs in some respects from that of
Woomer's. Lewandowski testified that during the June
meeting, after Woomer asked him to sign the "white
paper agreement," Lewandowski replied that he "wasn't
going to sign any agreement. I said that when he got
done negotiating the major contracts in the city to then
come back and see me and that we wouldn't have any
problem." Lewandowski further testified:
Q. Now, Mr. Lewandowski, in the meeting that
you had in -your office in June, did you propose to
him at that time that you would agree to sign the
same thing that Rochester Empire Graphics agreed
to sign?
A. No. For some reason that seems to be a bone
of contention with Mr. Woomer. He started at that
time insisting that I was going to sign the Rochester
Empire Graphics contract. I told him then, as I told
him prior to that day, that I was going to sign a
contract that was negotiated by some of the people
in town. I have no intentions of signing the Roches-
ter Empire Graphics agreement. I told him then I
didn't know if it was a loaded contract or not. I
stated to him that I wanted to see all of the con-
tracts, which he said, "no- problem." He said, "I
will show you all of the contracts," but I never got
them.
4. The Weis grievance
-On 19 September Bernard-Weis was suspended follow-
ing the discovery of damage to certain equipment at Re-
spondent 's plant. A grievance regarding this suspension
was submitted to Respondent on 23 September. Woomer•
testified that on 28 September he asked Lewandowski
whether the-grievance could be settled, to which Lewan-
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dowski replied that it could not be settled and "you are
going to- have to arbitrate it." On the same day the
Union's attorney requested a panel of arbitrators from
the Federal Mediation and Conciliation Service. After
receiving the list of proposed arbitrators dated 3 Octo-
ber, Lewandowski contacted Respondent's counsel and
was advised that he may not be required to go to arbitra-
tion. Lewandowski then informed the Union that Re-
spondent was unwilling to arbitrate the Weis grievance.
On 7 November the Union filed in Monroe County
Supreme Court a petition to compel arbitration. The pe-
tition, verified by Woomer, contains no reference to an
agreement between the parties subsequent to 30 April.
Attached to the petition as an exhibit is a copy of the
collective-bargaining agreement which expired 30 April.
The petition also included an affirmation by the Union's
attorney which stated, inter alia, "pending negotiations
for a new agreement, any matter involved under the
former contract including wrongful discharge must be
resolved through the arbitration procedure." This was
consistent with a letter dated 27 October from the'
Union's attorney to Respondent's counsel which states,
"the cases under circumstances of this type sustain arbi-
tration for interim grievances during negotiations." That
letter contains no reference 'to any agreement entered
into after 30 April.
On 18 November counsel for the Union was served
with Respondent's "Memorandum of Law-in Opposition
to Petitioner's Motion to Compel Arbitration.',' On 22
November Respondent was served with a supplemental
affidavit signed by Woomer, and on the same day the
charge in the instant proceeding was filed. The supple-
mental affidavit stated, inter alia, that on 9 June "Lewan-
dowski indicated to your deponent that he would not
partake in any negotiations but would sign any agree-
ment that was at least- equal of, but not less favorable
than, that had with Rochester-,,Empire Graphics, a com-
petitor of his.'-'.-
5. Presentation of agreement to Respondent
Tentative agreement was- reached with Rochester
Empire Graphics on 16 September. The Union subse-
quently prepared a document entitled "Tentative Articles
of Agreement" for review by the employees of Roches-
ter Empire Graphics and the contract was ratified on 22
September. A copy of this document was also delivered
to Lewandowski by Willard Cole, secretary-treasurer of
the - Union. Lewandowski testified that 'when Cole
brought him the document he told Cole that "I would
like to see copies of the rest of the agreements with Case
Hoyt, Great Lakes and Hammer Litho[graph]."
On 25 October Woomer sent copies of a proposed
contract to Lewandowski. Attached was a cover letter
from Woomer which stated, in pertinent part, "please
contact me with changes or a date mutually convenient
for signing." On' 21 November the two had a telephone
conversation concerning signing this agreement. Woomer
testified that Lewandowski told him; "If you withdraw
the grievance on Bernie Weis and if you-find him a job I
would sign the contract right now." On 29 November
Lewandowski and Woomer met. Woomer testified:
. . the statement was made again or reiterated
again, that is, if the Union would withdraw. the
grievance and the insistence to go to arbitration and
find Bernie Weis a job- that he would sign the con-
tract then. He then added that it would be as of this
date .. November the 29th. I said I could not do
that.
Woomer further testified that Lewandowski` never had
any counterproposals other than that the effective date
of the contract should be '29 November. Lewandowski
testified that he told Woomer that he was willing to sign
the' contract "without retroactivity." On 2 December
Lewandowski wrote to Woomer confirming the conver-
sation of 29 November and stating that he agreed to exe-
cute the contract with the effective date of 29 Novem-
ber. Lewandowski never received any response and on 9
February 1984 sent a second letter withdrawing his offer
to sign.
C. Discussion
1. Refusal to execute contract
It is well established that an employer's ' failure to
reduce to writing an agreement reached with a. union
constitutes an unlawful refusal to bargain. H.J. Heinz Co.
v. NLRB, 311 U.S. 514 (1941). The principal question,
therefore, is whether the parties reached agreement or,
put another way, whether the parties had reached ' a
"meeting of the minds" on terms and conditions of em-
ployment for Respondent's employees. Diplomat Envelope
Corp., 263 NLRB 525, 535 (1982); S & W Motor Lines,
236 NLRB 938, 949 (1978), enfd. in relevant part 621
F.2d 598 (4th Cir. 1980).
The General Counsel's case rests on Woomer's testi-
mony that in June 1983 Lewandowski told him, "you
have got my word that when you get done with the con-
tract with the rest of the companies, bring me a contract
and I will sign it ." On the other hand, Lewandowski tes-
tified that, during the spring meeting with Woomer,
Lewandowski said that when the Union "gets done with
negotiating with the major companies to come and see
me and we will negotiate a contract then." Similarly, at
their meeting in June, when asked to sign the, "white
paper agreement," Lewandowski refused to sign it and
testified that he told Woomer that when the Union com-
pleted "negotiating the major contracts in the city to
then come back and see me and that we wouldn't have
any .problem." Lewandowski further testified that he told
Woomer he wanted to see not only the Rochester
Empire Graphics contract but "all of the contracts."
Subsequent events cast some doubt as to whether
Woomer himself believed that an agreement had been
reached. As late as 25 October, Woomer, in transmitting
copies of the proposed contract, stated, "please contact
me with changes." In addition, the petition to compel ar-
bitration, verified-by Woomer on 7 November, makes no
mention of Tiny existing collective-bargaining agreement
or of any promise by Lewandowski to be bound by an
agreement entered into by Rochester Empire Graphics.
It could reasonably have been expected that had there
been such an agreement or promise it would have been
LITHOCHROME CORP. - 1193
mentioned . On the contrary, the petition indicates that
the parties were operating pursuant to the old agreement
and states that "the resolution of problems in the interim
of negotiations, or even: upon the termination of an
agreement , is required to be resolved by arbitration." It
was not until 22 November, after the Union received Re-
spondent 's memorandum- of law responding to the
Union 's contention that the requirement to arbitrate sur-
vived the expired 'agreement, -that there appears the first
mention in ' writing of Respondent's agreement to be
bound by the Rochester Empire Graphics contract.
Accordingly, I find that the General Counsel has not
proven by a preponderance of the evidence that Re-
spondent agreed to be bound by the terms of one or
more of the other contracts . Consequently , its refusal to
execute the contract presented to it by the Union was
not a violation of the Act` Therefore, the allegation is
dismissed.
2. Requirement to arbitrate
The complaint alleges that Respondent has refused to
proceed to arbitration under the terms of both the collec-
tive-bargaining agreement which expired on 30 April,
and the agreement which- the General Counsel alleges
existed - on the basis of the Rochester Empire Graphics
agreement . Inasmuch ' :as"I have already found that the
General Counsel has not proven that the latter agree-
ment existed ,, the, ensuing discussion will concern itself
with whether Respondent was required to arbitrate pur-
suant to the'agreemeht which expired on 30 April.
In Nolde Bros. v. Bakery, Workers Local 358, 430 U.S.
243 (1977), the Supreme Court held that when the par-
ties to a collective-bargaining agreement have agreed to
a grievance and arbitration procedure , "the parties' obli-
gations under their arbitration clause survived contract
termination when the dispute was over an obligation ar-
guably created by the expired agreement ."- Id. at 252. As
the court further stated , "in the absence of some con-
trary indication , there- are strong reasons to conclude
that the parties did not intend their arbitration duties to
terminate automatically , with the contract ." Id. at 253
See also American Sink Top & Cabinet Co., 242 NLRB
408 (1979).
Article 25 , section 3 of the collective-bargaining agree-
ment between the parties that expired on 30 April pro-
vides:
The arbitrator shall have no power to determine ar-
bitrability nor to add to, subtract from , modify or
amend any provision of this Agreement , change ex-
istingiwage rates, modify disciplinary action, award
monetary damages except back pay in case of
wrongful discharge , or arbitrate proposals for the
amendment or renewal of this Agreement. No
award shall be effective retroactively beyond the
date on which the grievance was first presented in
writing pursuant to the grievance procedure as
herein provided, , nor for any period subsequent to the
termination of this Agreement . [Emphasis added.]
The last sentence of the provision stipulates that no
award shall be effective "for any period subsequent to
the termination of this Agreement ." The Weis grievance
was first presented on 23 September , approximately 5
months after the expiration - of the agreement . Had the
matter gone to arbitration , under the terms of article 25
no award could be effective inasmuch as the grievance
arose subsequent to the termination of the contract. In
Nolde Bros., supra , 430 U. S. at 255 ; the Court stated,
"where the dispute is over a_ provision of the expired
-agreement , the presumptions favoring arbitrability must
be negated expressly or by implication ." I believe that
the language in article 25 satisfies the Court 's require-
ment and the 'parties thus indicated in the contract that it
was not their intention for the arbitration requirement- to
survive the termination of the contract.
Similarly in S & W Motor Lines, supra , 236 NLRB at
949-950, the parties were bound to be parties of the
Piedmont Grievance Committee only during the term of
the "Contract Agreement ." The agreement then specifi-
cally limited the obligation to participate in the Piedmont
Grievance Committee proceedings to the duration of 'the
contract . The decision pointed out (at 950):
Inasmuch as the committee proceedings are a neces-
sary step in the arbitral process the clear implication
is • that the ;parties did not intend arbitration to
extend beyond the'-contract term for grievances
arising subsequent to the expiration of the contract.
The presumption favonng arbitrability referred to
in Nolde Brothers was thus negated. .
While the General Counsel in its brief cites American
Sink Top & Cabinet Co., supra , as an example where arbi-
tration was required even after expiration of the con-
tract, there is no indication in that decision that the con-
tract's arbitration provision contained language similar to
the provision in the instant proceeding or in the provi-
sion discussed in S & W Motor Lines, supra.
Accordingly , I conclude that the language contained
in article 25 indicated that the parties did not intend their
arbitration requirement to survive the contract and, as
required by Nolde Bros., supra, the presumption favoring
arbitrability has been negated . The allegation that Re-
spondent unlawfully refused to arbitrate the Weis griev-
ance is therefore dismissed.
3. Did Respondent condition execution of the
proposed agreement on withdrawal of the
grievance?
The complaint alleges that on 21 November Respond-
ent. offered to execute the contract if the Union agreed to
drop the Weis grievance. In this connection'Woomer tes-
tified that on 21 November Lewandowski told him "if
you would withdraw the grievance on Bernie Weis and
if you find him a job I would sign the contract right
now." Woomer also testified that Lewandowski made
substantially the same statement a week later , on 29 No-
vember . Lewandowski testified that the only time the
matter was discussed was during the luncheon on 29 No-
vember . He testified:
At that time we tried to negotiate a contract. That
is the day that I said to him, you know , "between
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the middle of summer and now you have been
rebel-rousing all of the guys in the plant to tell them
that I won't sign a contract and that they should go
on strike because I have no intentions to sign a con-
tract. I am trying to bargain in good faith." I made
an offer to sign the contract without retroactivity.
He said . . "I-can't do that." He said, "The reason
that I can't do that, number one, if I don't backdate
the contract, Bernie Weis is going to sue the Union.
He is going to sue Lithochrome. He is going to sue
you personally." He said, "I have got to get this
backdated so you got to be forced to go to arbitra-
tion."
Thus, while Woomer testified that Lewandowski con-
ditioned signing the contract on withdrawal of the griev-
ance, Lewandowski, on the other hand, stated that he
merely advised Woomer that there would be no retroac-
tivity. In this connection, the record contains a letter
dated 2 December from Lewandowski to Woomer,
which states:
This will confirm our conversation of Tuesday, No-
vember 29. At that time I agreed to sign the con-
tract which you proposed to us by your letter of
October 25, 1983, with the effective dates of said
agreement being the date this agreement was actual-
ly made; that is, November 29, 1983 and not May 1,
1983.
I do not believe that the General Counsel has shown
by a preponderance of the evidence that Respondent
conditioned its execution of the proposed agreement on
withdrawal of the Weis grievance or withdrawal of the
request to arbitrate. Accordingly, the allegation is dis-
missed.2
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The complaint is dismissed.
2 Respondent argues in its brief that Woomer conceded that the griev-
ance procedure had been completed and that, at most , Woomer's testimo-
ny would indicate that Lewandowski requested that the "arbitration" be
withdrawn. Respondent maintains that since the complaint alleges that
Respondent conditioned its executing the contract on the Union 's agree-
ment to drop the "grievance," the allegation must be dismissed on that
ground alone. Inasmuch as I have found that the General Counsel has
not shown by a preponderance of the evidence that such a condition was
made, I need not determine the question . I note, however, that Respond-
ent had every opportunity to litigate the matter and fully availed itself of
that opportunity. In addition, I believe that a request to drop the "arbi-
tration" is "sufficiently related to the subject matter of the complaint," as
to be encompassed by the allegation contained in par. XI(b) See Pace
Oldsmobile, 256 NLRB 1001, fn. 5 (1981), enfd. in relevant part 681 F.2d
99 (2d Cir. 1982).
2 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.