Monument Printing Co.

National Labor Relations Board - Board Decisions

Sep 8, 1977

231 N.L.R.B. 1215 (N.L.R.B. 1977)

MONUMENT PRINTING CO.
Rockwell Printing and Publishing Co., Inc. d/b/a
Monument Printing Co. and Graphic Arts Interna-
tional Union, Local 280, AFL-CIO.' Case 20-CA-
11920
September 8, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On May 18, 1977, Administrative Law Judge
Harold A. Kennedy issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and a brief in
support of the Administrative Law Judge's Decision.
The Charging Party also filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge, but not to adopt his recommended Order.
No exceptions have been filed to the Administra-
tive Law Judge's finding that Respondent refused to
bargain with the Union in violation of Section 8(a)(5)
and (I) of the Act by declining to sign a collective-
bargaining agreement upon which Respondent and
the Union had agreed. However, General Counsel
and the Charging Party have excepted to the
Administrative Law Judge's failure to recommend
that Respondent be required to give retroactive effect
to the provisions of the labor contract, and to make
the employees whole for any loss of wages or other
benefits they may have suffered by reason of
Respondent's illegal refusal to sign the contract. We
find merit in this exception, as it is established Board
policy to require retroactive implementation of a
collective-bargaining agreement which a respondent
employer has unlawfully refused to execute. Ogle
Protection Service, Inc. and James L. Ogle, 149 NLRB
545, 547-548 (1964), enfd. in pertinent part 375 F.2d
497 (C.A. 6, 1967); 183 NLRB 682 (1970), enfd. 444
F.2d 502 (C.A. 6, 1971); Premier Fa5rics of Califor-
' We hereby grant General Counsel's motion to amend the caption in
this proceeding to show that Local 280, rather than Local 260, of Graphic
Arts International Union is the Charging Party.
2 The Administrative Law Judge found that at one point the Union filed
an unfair labor practice charge against Respondent. alleging that Respon-
dent "was insisting that a foreman engaged in production work was to be
included in the bargaining unit," and that the charge was subsequently
withdrawn. The record shows, however. that Respondent took the position
that the foreman should not be included in the unit.
:' We do not, however, regard as meritorious Charging Party's exception
to the Administrative Law Judge's failure "to grant a remedy of lost fees and
231 NLRB No. 105
nia, Inc., 224 NLRB 710, 716 (1976). We agree with
the General Counsel that August 23, 1976, is the date
from which the labor contract should be given
retroactive effect.3
In his recommended Order, the Administrative
Law Judge failed to set forth the appropriate unit,
and failed to include a necessary and proper
provision specifically ordering Respondent to cease
and desist from failing and refusing to give effect to
the terms of the contract, and to bargain collectively
with the Union upon request.
To correct these noted omissions in the recom-
mended Order, we shall issue the following:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Rockwell Printing and Publishing Co., Inc. d/b/a
Monument Printing Co., Pleasant Hill, California, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively regarding
wages, hours, and other terms and conditions of
employment with Graphic Arts International Union,
Local 280, AFL-CIO, as the exclusive representative
of the employees in the following appropriate unit:
All production and maintenance employees em-
ployed by the Respondent at its 2941 Estand
Way, Pleasant Hill, California, plant; excluding
all other employees, inspectors, office clerical
employees, guards and supervisors as defined in
the Act.
(b) Refusing to execute the collective-bargaining
agreement with the Union which was agreed upon on
August 18, 1976, and which should have taken effect
on August 23, 1976.
(c) Failing and refusing to give effect to the terms
and provisions of the agreed-upon collective-bargain-
ing agreement with the Union.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
dues to the union as a result of the employer's unfair labor practice." The
Board has held consistently that a union is not entitled to reimbursement for
any loss of dues resulting from a respondent employer's unlawful refusal to
sign a collective-bargaining contract, unless employees have individually
executed dues-checkoff authorizations. California Blovpipe & Steel Compa-
ny, Inc., 218 NLRB 736 (1975), enfd. 543 F.2d 416 (C.A.D.C.. 1976);
Southland Dodge, Inc., 205 NLRB 276 (1973), enfd 492 F.2d 1239 (C.A. 3.
1974). As there is no evidence that employees have individually signed dues-
checkoff authorizations in this case. the remedy sought by the Union is
inappropnate.
1215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Upon request, bargain collectively with the
Union as the exclusive representative of the employ-
ees in the appropriate unit described above regarding
wages, hours, and other terms and conditions of
employment.
(b) Execute forthwith the collective-bargaining
agreement with the Union which was agreed upon on
August 18, 1976.
(c) Give effect to the terms and provisions of that
collective-bargaining agreement retroactively to Au-
gust 23, 1976.
(d) Make whole its employees for their loss of
wages and other benefits, which are provided for in
the agreement, for the period on and after August 23,
1976, plus interest as set forth in Isis PlumnJing &
Heating Co., 138 NLRB 716 (1962), and Florida Steel
Corporation. 4
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(f) Post at its facility at Pleasant Hill, California,
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
Regional Director for Region 20, after being duly
signed by Respondent's authorized representative
shall be posted by Respondent 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.
(g) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977). we shall apply the current 7-percent rate for periods prior
to August 25. 1977. in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
'" In the event that this Order is enibrced 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."
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
regarding wages, hours, and other terms and
conditions of employment with Graphic Arts
International Union, Local 280, AFL-CIO, as the
exclusive representative of the employees in the
following appropriate unit:
All production and maintenance employees
employed by the Respondent at its 2941
Estand Way, Pleasant Hill, California,
plant; excluding all other employees, inspec-
tors, office clerical employees, guards and
supervisors as defined in the Act.
WE WILL NOT refuse to execute the collective-
bargaining agreement with the Union which was
agreed upon on August 18, 1976, and which
should have taken effect on August 23, 1976.
WE WILL NOT fail and refuse to give effect to
the terms and provisions of the agreed-upon
collective-bargaining agreement with the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain collectively
with the Union as the exclusive representative of
the employees in the appropriate unit described
above regarding wages, hours, and other terms
and conditions of employment.
WE WILL execute forthwith the collective-bar-
gaining agreement with the Union which was
agreed upon on August 18, 1976.
WE WILL give effect to the terms and provisions
of that collective-bargaining agreement retroac-
tively to August 23, 1976.
WE WILL make whole our employees for their
loss of wages and other benefits, which are
provided for in the agreement, for the period on
and after August 23, 1976, plus interest.
ROCKWELL PRINTING
AND PUBLISHING Co.,
INC. D/B/A MONUMENT
PRINTING Co.
1216
MONUMENT PRINTING CO.
IV. THE ALLEGED UNFAIR LABOR PRACTICE
STATEMENT OF THE CASE
HAROLD A. KENNEDY, Administrative Law Judge: This
unfair labor practice case was initiated by a charge filed on
September 14, 1976, by Graphic Arts International Union,
Local 280, AFL-CIO,i the Charging Party, hereinafter
referred to as the Union, against Rockwell Printing and
Publishing Co., Inc. d/b/a Monument Printing Co.,
hereinafter referred to as the Company or Respondent.
Complaint was thereafter issued on October 20, 1976, on
behalf of the General Counsel of the National Labor
Relations Board by the Regional Director of Region 20 of
the Board. The complaint alleges that Respondent has
engaged in an unfair labor practice within the meaning of
Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended, by failing to execute a collective-
bargaining agreement reached between the parties on or
about August 18, 1976, and ratified and approved on or
about August 19, 1976.2 Respondent's answer denies that it
committed the alleged unfair labor practice.
This case was heard by me on March 1, 1977, in San
Francisco, California.3 Briefs were filed on behalf of
Respondent, the Charging Party, and the General Counsel.
Upon the entire record, including the observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a California corporation engaged in the
business of commercial printing with its principal office
located at 2491 Estand Way, Pleasant Hill, California.
Respondent sold goods and services valued in excess of
$50,000 to customers located outside the State of California
during the past fiscal year. Respondent admits these facts
and that it is an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Graphic Arts International Union, Local 280, AFL-CIO,
is a labor organization within the meaning of Section 2(5)
of the Act.
111. THE ISSUE
The principal issue in the case is whether Respondent
and the Union had reached a complete understanding on
all of the terms of the collective-bargaining agreement.
Local 280 of Graphic Arts International Union is the Charging Party in
this proceeding, not Local 260.
2 The 8(a)(l) violation is alleged only as a derivative violation.
:' The proposed changes in the transcript requested by the General
Counsel and the Charging Party have been noted and corrected.
Respondent concedes that all production and maintenance employees
of the plant constitute an appropriate unit and that the Union has been
certified as the exclusive representative of the unit.
The Union swas also represented by Vincent Passanisi and Mike Miro
at the bargaining session, but neither testified in the proceeding
Representatives of the Union and Respondent met for
the purpose of negotiating an initial collective-bargaining
agreement covering wages, hours, and working conditions
of the production and maintenance employees of the
Respondent's Pleasant Hill plant beginning in early
January 1976. 4 Discussions continued until August 1976.
Russell Wilson, the executive vice president of the Union,
was its principal negotiator, and Martin Sullivan, director
of industrial relations, was the principal negotiator for the
Respondent. Raymond C. Pappert, president of the Union,
participated in the bargaining sessions only "at the very
beginning." 5 Jerry M. Cambra, owner of the Company,
attended all of the bargaining sessions.
There is no real conflict in the evidence about the
following events that transpired between January and
August 12, 1976:
I. The parties had concluded a 3-year "tentative"
agreement on April 22, 1976. An agreement that had been
previously negotiated by the Union with Herald Printers,
Inc., was used as a model or guide in negotiating the
tentative agreement as well as in the negotiations that
followed. The tentative agreement was submitted to the
membership for ratification on or about May 5, 1976, but
ratification did not occur because "[t]here was a question
as to whether or not the foreman would be considered a
member of the bargaining unit."
2. Thereafter, the Union filed an unfair labor practice
charge against the Company based on the allegation that
the latter was insisting that a foreman engaged in
production work was to be included in the bargaining unit.
3. The unfair labor practice charge was subsequently
withdrawn and negotiations were resumed.6 A negotiating
session was held on June 4, 1976, at which time Respon-
dent submitted a new proposal (G.C. Exh. 2) that would
have eliminated or changed four specific features of the
tentative agreement. These features were concerned with a
"Union Shop" clause, "Struck Work" clause, an "Interna-
tional Approval" proviso, and the duration of the agree-
ment. With respect to the latter, Respondent requested that
the agreement be reduced from 3 years to I year. The four
changes proposed by Respondent resulted in a new charge
being filed with the Board. This new charge was also
withdrawn after the four features of the agreement were
reinstated into the agreement.7
4. The parties held a bargaining session on August 12,
1976, at which the Union's chief negotiator, Russell
Wilson, presented a six-page document, General Counsel's
Exhibit 5, entitled, "STATUS OF NEGOTIATIONS
WITH MONUMENT PRINTING AS OF 4-12-76." The
first three pages of such document lists 33 sections,
numbered I through 33. A title appears for each numbered
section under which a word, or a few words, also appears.
s Mr. Wilson stated that the eligibility of the foreman to vote arose at the
ratification meeting. He testified that he consulted Mr. Cambra who advised
that the foreman "was not going to be a member of the union, but he was
going to do production work."
7 See G.C. Exh. 4. The number of unfair labor practice charges and the
time of their withdrawal are not entirely clear. The record permits an
interpretation that there was one charge that was later supplemented when
the Company sought to change the four features of the tentative agreement.
DECISION
1217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Each section and title relate and correspond to provisions
contained in the Herald Printers agreement.8 The term
"okay" appears under many of the sections, but there are
also other entries (e.g., "delete") contained under certain of
the numbered sections. After the August 12 meeting, the
principal negotiators on each side, Russell Wilson and
Martin Sullivan, placed their initials at the bottom of each
of the six pages. An "OK" appears next to each set of
initials. Under "Section 12-Vacations," the following
appears:
12.1 2 weeks after I year of employment, and 3 weeks
after 3 years. (Language to be developed).
5. All the terms and conditions of the collective-
bargaining agreement had been agreed upon before August
18, 1976, except those relating to vacations.
According to Mr. Wilson, the parties had agreed to the 2
and 3 week vacation arrangement on or before April 22,
1976.9 There were, he said, other matters pertaining to
vacations that had also been agreed to on or before April
22: a paragraph dealing with probationary employees had
been deleted; also, the rate of vacation pay had been
agreed upon (4 percent for 2-week vacations, 6.12 percent
for 3-week vacations). Mr. Wilson thought, in fact, that the
only matters that may not have been agreed upon were two
specific items pertaining to 2-week vacations. One item
moved up the time by I month for taking 2 consecutive
weeks of vacation (May I to September 30 instead of May
31 to November I), and the other item specified that
persons entitled to 2-week vacations could, upon mutual
agreement, take 2 weeks consecutively, with a week being
defined as "5 consecutive working days." Mr. Wilson was
not sure whether these two items had been agreed upon
during earlier negotiations or during a telephone conversa-
tion he had had with Mr. Sullivan in August 1976. In any
event, he testified that he and Mr. Sullivan reached
agreement on all of the provisions dealing with vacations
during a telephone conversation held on August 18, 1976.10
The testimony of Mr. Wilson and Mr. Sullivan with
respect to the telephone conversation they had on August
18, 1977, is in conflict. Mr. Wilson said he prepared the
language covering the subject of vacations as set forth in
General Counsel's Exhibit 7 and telephoned Mr. Sullivan.
They talked, he thought, for about 20 minutes and reached
full agreement. Quoting from the transcript:
Q. And did you in fact - Can you tell me whether
or not you read this language that appears here as
General Counsel's 7 to Mr. Sullivan on the phone?
A. I did, verbatim.
Q. I see. Now, you state you read that verbatim to
him?
A. Yes.
The document also contains an additional item captioned "New
Sections" under which there are entries that refer to "No Strike-No Lock
,ut." "Struck Work." and "Training Fund and Program" provisions.
An examination of copies of the Herald Printers agreement in evidence
(G.C. Exh. 3. Mr. Wilson's copy; Resp. Exh. 4, Mr. Sullivan's copy) shows
how some sections were renumbered and the language of some sections
changed during negotiations.
" Martin Sullivan agreed that the parties had reached agreement on the
2- and 3-week vacation arrangement early in the negotiations.
Q. I see. Can you tell me, in your reading it
verbatim to him, did you just read it directly through,
or did you make any stops or hesitations, or ask
anything of Mr. Sullivan at the time?
A. I stopped each time as I changed from the
Heralds Printers contract, and called it to his attention.
Q. Is this language that appears here on Section 12
formulated on the language that appears in General
Counsel's 3, as Section 12, which is the Herald Printers
contract?
A. Yes.
Q. So would it be correct to state that this
language, other than the changes which you made is
essentially that of the Herald Printers contract, Section
12?
A. Yes, it is.
Q. But you made certain changes?
A. Yes.
Q. Now, did you indicate to Mr. Sullivan during
the course of your reading General Counsel's 7 to him
what points you were altering from the Herald Printers
contract language?
A. Yes, I did.
Q. Did he make any comment at the time you
indicated the change you were making?
A. No, he just indicated that he was in agreement
by okay or all right or yes.
Q. I see. Can you tell me, in your conversation, did
it appear to you or do you have any knowledge, I
should say, of whether or not Mr. Sullivan was reading
from any document also on his end of the line?
A. Yes. He had a copy of the Herald Printers
contract that is General Counsel's Exhibit 3 before him.
Q. I see. So he was reading that language and you
were reading the proposed language, is that correct?
A. Yes.
On cross-examination, Mr. Wilson conceded that he
could not "recall his precise words" but that he understood
Mr. Sullivan was "giving me the green light." According to
Mr. Wilson, Martin Sullivan "made affirmative comments
after each section that was read to him, like yeah or okay."
While indicating that the parties had not agreed to use
initials to signify agreement, Mr. Wilson stated that he told
Mr. Sullivan on the phone that he would deliver a copy of
the section 12 language covering vacations to Mr. Sullivan
for initialing." Mr. Wilson testified that on the next day
after the phone call he personally delivered a copy of the
section 12 language to Mr. Sullivan's office but found Mr.
Sullivan was not there. Also, on that day, August 19, the
employees of the bargaining unit met and ratified the
section dealing with vacations as well as all of the other
terms of the "Agreement between GRAPHIC ARTS
'° At one point, Mr. Wilson indicated that the conversation took place
on August 17. but, having considered the whole record. I find the telephone
call occurred on August 18.
n Mr. Wilson testified that he had not felt a need for initialing but that
Mr. Sullivan had indicated that it was important with respect to "previous
sections."
1218
MONUMENT PRINTING CO.
INTERNATIONAL UNION LOCAL 280 AND MONU-
MENT PRINTING."'2 Mr. Wilson sent a letter dated
August 19, 1976, to Mr. Sullivan advising that the entire
bargaining agreement had been ratified and that a
"complete draft of the Agreement is being prepared for
signature." Such a draft, Respondent's Exhibit 1, was
prepared, and, after being signed by Union President
Pappert and Mr. Wilson, was sent to Respondent for
signatures of company officials.
Mr. Sullivan remembered the August 18 telephone
conversation in a different way than did Mr. Wilson. Mr.
Sullivan testified about the telephone call as follows:
Q. Can you tell me what the subject of that
conversation was?
A. The subject of the conversation was that I
suggested to Mr. Wilson to compile the vacation
language, mail it to me. We'd go over it and I'd send
him back an initialled copy.
Q. Did Mr. Wilson have any response to your
request?
A. Yes.
Q. Which was what?
A. Mr. Wilson talked about the vacation language
in generalities and my position was to the whole
conversation was that I insisted on having a copy so
that I could check it with Mr. Cambra before I
initialled it, as we had done with the previous parts of
the contract.
Q. Did Mr. Wilson go through what has - well,
strike that. Referring your attention to General Coun-
sel's Exhibit No. 7, do you recall whether or not Mr.
Wilson went through and discussed each one of those
items with you on the telephone during your August
18th conversation?
A. No, he did not.
Testifying on cross-examination, Mr. Sullivan indicated
that he was not sure how long he and Mr. Wilson had
talked on the telephone on August 18 or what they talked
about. He said he had a copy of the Herald Printers
contract in his office at the time but asserted that Russell
Wilson "didn't read me any verbatim language, no." Asked
if certain vacation language had been discussed during the
conversations with Mr. Wilson, Mr. Sullivan replied:
No, I don't recall the exact things he said about the
vacation language. I'm sure he talked about it. I'm sure
he talked about parts of it, but that was the first
discussion we had since way back in negotiations.
12 Sec. 12 of the "agreement" as prepared by Mr. Wilson and ratified by
the Union differs from the Herald Prnters agreement in the respects
indicated by the interlining on G.C. Exh. 3. The section 12 vacation
language also appears in Resp. Exh. 1, the "agreement" that was ratified by
the Union.
m': Mr. Sullivan said he advised Mr. Wilson of essentially the same thing
during another phone conversation on or about August 24.
m" Quoting from the Court's opinion at p. 526:
The freedom of the employer to refuse to make an agreement relates to
its terms in matters of substance and not, once it is reached, to its
Mr. Sullivan stated that he took leave on Friday,
August 19, and did not see the vacation language set forth
in General Counsel's Exhibit 7 until he returned to the
office on Monday, August 23. On August 23 he also
received Mr. Wilson's August 19 letter advising that the
Union had ratified the "agreement." Mr. Sullivan testified
that before he had seen the vacation language contained in
General Counsel's Exhibit 7 or Mr. Wilson's August 19
letter, however, he received a call from Jerry Cambra,
Respondent's owner, inquiring about the ratification of the
contract. Mr. Sullivan said that he told Mr. Cambra that he
had not seen the vacation language and that he "didn't
believe a contract could be ratified until all sections had
been agreed to."
Mr. Sullivan further testified that he called Mr. Wilson
on the morning of August 23 to advise that there was no
contract between the Company and the Union as there had
been no agreement on the vacation section. Quoting from
the direct examination of Mr. Sullivan:
Q. Did you indicate that you had not - or what, if
anything, did you say to Mr. Wilson about the vacation
clause?
A. I said I had just gotten it that morning; I had
not read it; I had not talked it over with Mr. Cameron
[sic]. I had not initialled it and mailed it back to him.
Mr. Sullivan said he followed up on his phone conversa-
tion 13 with a letter to Russell Wilson stating in part:
Section 12. Vacation Language as proposed by the
Union has not been agreed to by the Employer and
therefore, your assumption of an agreement to be put
into effect is erroneous.
Discussion
The definition given for "to bargain collectively" in
Section 8(d) of the National Labor Relations Act includes
"the execution of a written contract incorporating an)
agreement reached if requested by either party .... " This
language was enacted by Congress in 1947 but the Supreme
Court had held in H. J. Heinz Company v. N.L.R. B. 311
U.S. 514 (1941), that an employer's failure to reduce to
writing an agreement reached with a union constituted an
unlawful refusal to bargain.i4
The parties all agree that the Respondent Employer is
obligated to execute the draft of the agreement if complete
agreement had in fact been reached and that it violated the
Act by not doing so. The General Counsel and the
Charging Party both contend that an agreement was
reached. s5 Respondent argues, however, that there was "no
expression in a signed contract, the absence of iwhich. as experience has
shown, tends to frustrate the end sought by the requirement for
collective bargaining. A business man who entered into negotiations
with another for an agreement having numerous provisions. with the
reservation that he would not reduce it to writing or sign it. could
hardly be thought to have bargained in good faith. ..
And see the Fourth Circuit's Decision of January 28. 1977. enforcing the
Board's Order (222 NLRB 478 ( 1976)) in Trojan Steel Corp., 551 F.2d 308.
1, The Charging Party argues that agreement was reached on all essential
matters as early as August 12. 1976, and that it is not necessair to resolse
f( ontinued)
1219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement on the Union's proposed vacation clause" -
beyond the fact that "the parties reached agreement on the
number of weeks of vacation" - and there was a "mistake
in the health and welfare provision on the proposed
agreement, all of which demonstrates that no meeting of
the minds on an agreement occurred."
Little need be said about the supposed "mistake" in the
health and welfare provision. Section 26 of the final draft
submitted to Respondent provides that:
The Employer agrees to maintain a level of benefits
equal to, or greater than, the present Plan with Great
Western.
In the direct examination of Martin Sullivan, Respondent
brought out that Provident was actually selected and later
replaced by New York Life as Respondent's insurance
carrier instead of Great Western as originally proposed.
The name of the insurer is of no significance. The record
reveals no disagreement as to this provision whatever.' 6
Furthermore, section 26 does not purport to designate any
particular insurance company; it only requires that
Respondent maintain a level of benefits at least equal to
"the present Plan with Great Western." As to whether
there was agreement with respect to the vacation language,
I find Russell Wilson's version of the August 18, 1976,
telephone conversation more credible than the one given
by Martin Sullivan and, accordingly, hold that full
agreement was reached on that date.' 7
The parties had reached substantial agreement on
virtually all matters, including vacation terms, by August
12, 1976. The number of weeks of vacation, the deletion of
a paragraph in section 12 dealing with probationary
employees, and the bases for computation of vacation pay
- all of these terms, which varied somewhat from the
Herald Printers model agreement, had been agreed upon.
The technical matter of incorporating proper language
covering them remained to be done, of course. The only
other two changes made in the Herald Printers vacation
section model - i.e., the moving forward of the time for
taking 2-week vacations by 1 month, and the specification
that persons entitled to 2-week vacations could take them
in consecutive weeks upon mutual agreement, with "each
week" being understood to include "5 consecutive working
days" - may have also been agreed to by that time. Mr.
Wilson was not certain that these two items had in fact
been agreed upon before his August 18 call to Mr. Sullivan,
so I am unable to find that complete agreement had been
reached before that date. I do find that a complete
the conflict in the testimony between Russell Wilson and Martin Sullivan
concerning their August 18 telephone conversation. In my view, however,
final agreement was reached during the August 18 telephone conversation.
and the conflicting testimony must be resolved.
'i Mr. Sullivan himself indicated at one point that only the vacation
language could have been discussed during the August 18 telephone
conversation he had with Russell Wilson because "[w e had agreed to the
rest of it." Also, Owner Cambra testified that "there was only one [section ]
in question, that being the vacation section."
17 Mr. Sullivan indicated at the hearing at one point that he did not have
the authority to bind Respondent in negotiating a contract with the Union,
but Respondent's brief (fn. 13) concedes he had such authority. The
pleadings also foreclose argument on this issue.
is Mr. Sullivan testified that a discussion with Mr. Wilson about the
agreement was reached between Russell Wilson and
Martin Sullivan during their August 18 telephone conver-
sation.
While Mr. Wilson could not say for certain whether the
parties had agreed prior to the August 18 telephone call to
move up the time for taking certain vacations and to spell
out the time when persons entitled to 2 weeks vacation
could be away (sections 12.4 and 12.5 of G.C. Exh. 7 and
Resp. Exh. 4), his recollection that agreement was reached
on August 18 is sufficiently clear and credible.' Mr.
Wilson remembered reading the entire vacation section to
Mr. Sullivan and getting affirmative responses as passages
were read. Actions taken by Mr. Wilson after the August
18 telephone call were consistent with his testimony that an
agreement had been reached during the telephone conver-
sation of that date. He delivered the vacation language to
Mr. Sullivan's office on the following day and presented
the "agreement" to the membership for ratification.
Mr. Sullivan, on the other hand, was uncertain and at
times evasive and inconsistent. He had "no idea" how long
the telephone conversation had taken. At one point he even
indicated that he was not sure the vacation language was
even discussed, although he conceded Mr. Wilson "might
have talked about it." Said Mr. Sullivan:
He very well might have, but I was not following his
conversation and I was not checking out with the
contract book that we worked with.'9
There are statements of Mr. Sullivan in the record that
suggest that he was well aware that full agreement had
been reached between the parties. He acknowledged that
he let the tentative agreement, with "no specific language"
having been developed, go to a ratification meeting in
April 1976 "without any argument" on his part. He agreed
that he had stated in an affidavit signed in early October
1976 that:
On August 18, 1976, I had a telephone conversation
with Wilson. By this time we had already agreed upon
everything. The only thing left to work out was the
vacation language ....
In the same affidavit, Mr. Sullivan had stated:
I have not really looked at Section 12, vacation
language, although I believe that I would be agreeable
provision shifting the time for taking vacations was "possible," but "I'm not
sure when or how" it occurred. He added later that he "didn't disagree with
that" provision.
19 1 am of the view, and hold, that Company Spokesman Sullivan and
Union Negotiator Wilson reached complete understanding on the vacation
section and thus, the entire agreement during the August 18. 1976, telephone
discussion. If Mr. Sullivan had not understood the vacation language
because of his lack of attention or carelessness. Respondent would
nevertheless be held to have assented to it due to the "fault" of its
negotiator. See Oil, Chemical and Atomic Workers International Union and its
Local 7-507 (Capital Packaging Company), 212 NLRB 98 (1974): also
discussion in Butcher's Union Local 120, Amalgamated Meat Cutters &
Butcher Workmen of North America, AFL-CIO (United Employer, Inc.), 154
NLRB 16(1965).
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MONUMENT PRINTING CO.
to that language. I have not examined it closely since
the charge has been filed. 20
Mr. Pappert testified that Mr. Sullivan had told him
during a telephone conversation on August 30 that he
(Sullivan) "was in full agreement with the vacation
language" but that Mr. Wilson had "no right to go over
there without my initial."2 ' According to Mr. Pappert, Mr.
Sullivan also insisted that the ratification vote was not
valid because "not everybody was present," and "you can't
approve a contract in pieces and bits."2 2
Based on the foregoing, and the whole record, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing and refusing to execute the collective-
bargaining contract between the Union and Respondent,
as agreed upon on August 18, 1976, Respondent has
2O Mr. Sullivan indicated elsewhere that he probably had not read the
vacation language contained in G.C. Exh. 7 "for some weeks" after his
August 18 conversation with Mr. Wilson. Mr. Sullivan said "I did not"
discuss the language with Owner Cambra on or about August 23. At one
point Mr. Cambra also stated, "No, I did not" discuss the vacation language
with Mr. Sullivan on "August 23rd or thereabouts," although earlier he had
testified that he and Mr. Sullivan had "discussed the vacation section
specifically" during a conversation of"on or about August 24th or 25th."
:' There was no understanding that the items agreed upon had to be
initialed. however.
2' Testifying on surrebuttal, Mr. Sullivan said he did discuss the vacation
language with Mr. Pappert but maintained "that there was no contract until
all items of that contract had been agreed to by the parties."
engaged in and is engaging in an unfair labor practice
within the meaning of Section 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has unlawfully refused to
bargain with the Union by failing and refusing to sign a
collective-bargaining contract agreed to between the Union
and Respondent, I shall recommend that it cease and desist
therefrom and take affirmative action to effectuate the
policies of the Act.
The Charging Party Union requests in its brief that
Respondent be "ordered to make the Union whole for all
the fees, and dues, reasonably lost as a result of the
employer's conduct." The request is denied. The traditional
remedy is adequate to effectuate the policies of the
National Labor Relations Act. The instant case presents
debatable issues, not "aggravated and pervasive miscon-
duct," "frivolous litigation" or "flagrant refusal to bar-
gain." Extraordinary relief is, therefore, not warranted. See
Heck's, Inc., 215 NLRB 765 (1974), and cases cited therein.
[Recommended Order omitted from publication.]
Both the Charging Party and the General Counsel point out in their
briefs, correctly, that it was the timing of the ratification vote that "upset"
the owner of Respondent and not the vacation language set forth in section
12. According to the brief of the Charging Party, Respondent thought that
the ratification vote would come at a time when new employees would be on
hand and "vote against ratification," thus relieving Respondent of "the
responsibility to abide by the collective bargaining agreement." Regardless
of the motivation of Respondent's officials for not signing the agreement,
full agreement had been reached, and Respondent violated the Act by not
executing it.
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