Observer-Dispatch

National Labor Relations Board - Board Decisions

Aug 14, 2001

334 N.L.R.B. 1067 (N.L.R.B. 2001)

OBSERVER-DISPATCH 1067
Observer-Dispatch, a Division of Gannett Satellite
Information Network, Inc. and Graphic Com-
munications International Union, Local 259–M,
AFL–CIO, CLC. Case 3–CA–21337
August 14, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND TRUESDALE
On November 2, 1999, Administrative Law Judge
Thomas R. Wilks issued the attached decision. The
Charging Party filed exceptions and a supporting brief,
the Respondent filed a brief opposing the exceptions, and
the Charging Party filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs,1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted, and the complaint is dismissed.

Robert A. Ellison, Esq., for the General Counsel.
Wendell J. Van Lare, Esq. and William A. Behan, Esq., of Ar-
lington, Virginia, for the Respondent.
Anton G. Hajjar, Esq. (O’Donnell, Schwartz & Anderson,
P.C.), of Washington, D.C., for the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. On May 26,
1998, an unfair labor practice charge was filed by Graphic
Communications International Union, Local 259–M, AFL–
CIO, CLC (the Union) against Gannett Company, Inc., d/b/a
Observer–Dispatch, described here by its correct name, Ob-
server–Dispatch, a Division of Gannett Satellite Information
Network, Inc. (the Respondent). Thereafter, the Regional Di-
rector issued a complaint on March 18, 1999, against the Re-
spondent. The complaint alleged that on February 24, 1998, the
Union and the Respondent reached complete agreement on
terms and conditions of employment of the unit of seven em-
ployees to be incorporated in a collective-bargaining agreement
covering a bargaining unit of pressroom employees; that on
April 13, 1998, the Respondent withdrew its recognition of the
Union as the exclusive collective-bargaining representative of
the unit; that since April 14, 1998, the Union has requested that
the Respondent execute a written contract containing that
agreement; and that since April 17, 1998, by letter, the Respon-
dent has failed and refused to execute the agreement. The
complaint alleges that the refusal to execute the agreement and
the withdrawal of recognition constitute violations of Section
8(a)(1) and (5) of the Act.

1 The Charging Party has requested oral argument. The request is
denied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
2 The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.

The Respondent filed a timely answer. In the answer and as
argued subsequently, the Respondent denied that any binding
contractual obligations had been effectuated on February 24,
1998. The Respondent argues that on February 24, it tendered
a final offer in the form of complete typed contract that re-
mained to be accepted on the condition of bargaining unit rati-
fication vote. The Respondent argues that its last offer was not
yet accepted by that vote when it withdrew recognition on April
13 because of the interceding receipt of objective evidence of
loss of majority status by the Union. The Respondent argues
that the Union’s subsequent ratification of one retired and two
active unit members on April 14 was thus untimely and it was
privileged to withdraw recognition, citing Auciello Iron Work-
ers, Inc. v. NLRB, 517 U.S. 781 (1996).
The General Counsel alleges that the Respondent’s with-
drawal of recognition was unlawful only by virtue of the fact
that full contractual agreement had been reached and embodied
in a written document, which only remained to be signed after
the formality of a ratification vote. The General Counsel ar-
gues that in the face of that contract agreement, the Respondent
could have raised no question concerning representation. The
General Counsel does not allege or argue the Respondent’s
bad-faith reliance on or improper relationship to the evidence of
loss of majority status, i.e., an employee vote and subsequent
employee petition. Thus, the Respondent’s reliance on that
evidence of loss of majority status is not in issue. If the Re-
spondent did not unlawfully withdraw recognition in the face of
an outstanding obligation to execute an agreed-upon collective-
bargaining contract, then it did not otherwise violate the Act
under the allegation of this complaint.
The General Counsel and the Union argue that agreement
had been reached on a complete contract on February 24, 1998,
which was reduced to typed form and remained to be signed
pending correction of an inadvertent error in that document
and/or ratification by a majority vote of bargaining unit mem-
bers. They argue that the union negotiators’ authority to reach
agreement was not subject to a ratification vote, that such vote
was an internal union matter and not a precondition to contract
agreement.
In issue, therefore, is what occurred in that negotiation meet-
ing of February 24, 1998, and, because of what occurred, was
the Respondent precluded from subsequently raising a question
concerning majority representation by the Union.
The matter was tried before me on June 22, 1999, at Utica,
New York, at which time and place all parties were given op-
portunity to adduce relevant evidence, to argue orally, and to
334 NLRB No. 132
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1068
submit posttrial briefs, which were received at the Division of
Judges on August 4, 1999.
The briefs submitted by the parties fully delineate the facts
and issues and, in form, approximate proposed findings of fact
and conclusions. Portions of those briefs have been incorpo-
rated herein, sometimes modified, particularly as to undisputed
factual narration. However, all factual findings here are based
on my independent evaluation of the record. Based on the en-
tire record, the briefs, and my observation and evaluation of the
witnesses’ demeanor, I make the following findings.
FINDINGS OF FACT
I. JURISDICTION
The Observer-Dispatcher is a division of Gannett Satellite
Information Network, Inc., which is a Delaware corporation,
with a principal place of business in Arlington, Virginia. The
Observer-Dispatch is engaged in the publication, circulation,
and distribution of a daily newspaper in Utica, New York, with
a principal place of business located at 221 Oriskany Plaza,
Utica, New York.
During the 12 months preceding the complaint, a representa-
tive period, the Observer-Dispatch, in the course and conduct of
its business operations, derived gross revenues in excess of
$200,000 and has held membership in interstate news services,
published nationally syndicated features, and advertised nation-
ally sold products.
It is admitted, and I find, that at all material times, the Re-
spondent has been engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
It is admitted, and I find, that at all material times, the Union
has been a labor organization within the meaning of Section
2(5) of the Act.
It is admitted, and I find, that the following employees of the
Respondent, the unit, constitute a unit appropriate for purposes
of collective bargaining within the meaning of Section 9(b) of
the Act:

All employees of the Respondent performing press and re-
lated work assignments in the Respondent’s pressroom, ex-
cluding guards and supervisors as defined in the Act.

It is admitted, and I find, that at all material times prior to
April 13, 1998, the Respondent recognized the Union as the
exclusive collective-bargaining representative of the pressroom
bargaining unit, as reflected in successive collective-bargaining
agreements, the most recent of which was effective from No-
vember 1, 1994, through October 31, 1997.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
The Union represents a seven-person bargaining unit in the
pressroom of the Observer-Dispatch newspaper in Utica, New
York, and has maintained a series of collective-bargaining con-
tracts for that unit for many years. The Union’s most recent
contract with the Respondent expired on October 31, 1997.
Negotiations for a successor contract began in September 1997.
Joe Belleville, union president, and William Clarke, union co-
treasurer, negotiated for the Union and invited the bargaining
unit members to attend any of the negotiating sessions; several
did so, including employee Stephen Lanter. Jim Wessing and
Mark Blum were the spokesmen for the Company’s negotiating
team. The negotiators met approximately five times. The last
meeting was held on February 24, 1998.
Only two ground rules were established for negotiations.
The first ground rule was that the Respondent’s secretary would
compare and maintain the official notes of the negotiations.
There was no other explicit ground rule agreed on, and no ex-
plicit reference was made at the bargaining table until the Feb-
ruary 24 meeting.
Belleville, who did not participate in past negotiations, testi-
fied in cross-examination that it was his understanding, as ex-
pressed by the preceding union president, that the Union’s pol-
icy was to submit any contract agreed on in negotiations to a
ratification vote of the bargaining unit membership.
An August 20, 1990 letter from the Respondent to the then-
union president stated in part:

Based on initial proposal letters and follow up verbal negotia-
tions between the Observer-Dispatch and Local 259M, an
agreement, subject to membership vote, has been reached.

In cross-examination, Clarke testified that such agreement
“had” to be presented to the membership for a ratification vote,
i.e., a majority of those members voting was necessary for rati-
fication. Clarke testified that the Respondent was not notified
of any change in such policy in the 1997–1998 negotiations.
There is no International union or Local union bylaw or consti-
tutional requirement for a contract ratification vote.
Several proposals by both parties were exchanged during the
pre-February 24 negotiations. The Respondent sought, inter
alia, the elimination of the union-security clause and modifica-
tion of overtime computation criteria. The Union sought, inter
alia, wage increase, uniform allowances, and modified vacation
scheduling.
The local committees were unable to agree on terms for a
successor collective-bargaining agreement during the first four
sessions. At the conclusion of the fourth session on February 3,
1998, the union representatives stated that they intended to
invite an International representative to the next negotiation
session. This prompted the Observer-Dispatch to include a
representative from Gannett’s labor relations department on its
committee. In that way, Tom Johnson (GCIU International
representative) and Wendell J. Van Lare (vice president and
senior labor counsel of Gannett) joined the negotiations during
the next session on February 24, 1998.
Several important issues remained unresolved prior to the
commencement of the February 24 negotiations. These open
issues included the Observer-Dispatch’s union-security and
overtime proposals and the Union’s wage, uniform, and vaca-
tion scheduling issues. Belleville viewed the “stalemate” on
the union-security issue as the major impediment to agreement.
At the February 24 meeting, employee Lanter was present in
a capacity beyond that of mere employee observer. He testified
without contradiction that he substituted for the ailing, absent
shop steward and, therefore, he considered himself to be a
OBSERVER-DISPATCH 1069
member of the union committee. More importantly, his special
status was either explicitly or implicitly acknowledged by both
union and Respondent negotiators because of an employee
petition, of sorts, that he retrieved from the shop steward and,
with employee Roger Toper, presented to Union Negotiators
Clarke and Belleville at a private meeting with them shortly
before the February 24 negotiation session. The document,
signed by Lanter and three other bargaining unit members, set
forth their desire to concede the elimination of the union-
security clause as a quid pro quo for (company provided) uni-
forms, summer vacation scheduling changes, and a “base line
pay raise for all press room employees,” i.e., an across-the-
board general pay raise. The old contract provided for no uni-
forms and the cost of buying and laundering work clothes was a
major concern for pressroom workers.
In addition, the expired agreement did not provide that all
employees could take their vacation during summer. As to
overtime hours, while the expired agreement provided that unit
employees would receive overtime pay for any work beyond
the scheduled 7-1/2-hour shift in its initial proposal, the Re-
spondent sought to change this to provide that overtime would
only be paid in excess of 37-1/2 hours per week. Finally, re-
garding wages, the expired agreement contained no general
wage increases. Instead, all unit employees were eligible for
merit raises on their respective anniversary dates. By virtue of
merit increases received during the term of the expired agree-
ment, the journeymen were earning in excess of the standard
journeyman pay rate provided for in the agreement. With re-
gard to apprentices, the expired agreement provided that they
would receive a percentage of the standard journeyman rate,
ranging from 60 percent for first-year apprentices to 90 percent
for 4-year apprentices.
What was precisely stated by the negotiators at the February
24 meeting is in dispute. Clarke, Belleville, and Johnson testi-
fied for the General Counsel. Later, Van Lare and Blum testi-
fied for the Respondent.1
All witnesses were subject to some degree of bias. Lanter
admitted that he subsequently resigned from the Union and
signed a petition to decertify it and no longer desired union
representation. However, I found his demeanor to be the most
spontaneous and convincing of all witnesses. The union wit-
nesses, particularly Belleville, attempted to characterize any-
thing that emanated from the Respondent at the meeting as an
“agreement,” whereas the Respondent witnesses used such
terms as “final offer” and “tentative agreement.”
At the outset of the meeting, Clark described the receipt and
contents of the petition submitted to him by Lanter. He thus
thrust Lanter and his representation of unit employee demands
into a position of priority. The union negotiators clearly now
relented in their union-security demands and gave Lanter’s
representative position preeminent deference. Thus, Lanter
became no mere observer.
Van Lare and Blum testified that Van Lare expressed sur-
prise and stated that this put a new light on things and provided
good movement and a good beginning after a discussion of the

1 It was stipulated that no adverse inference be raised from the Re-
spondent’s failure to adduce cumulative corroborating testimony.
petition demands. Later, Van Lare and Blum testified that the
Respondent’s negotiators then requested a lengthy caucus, after
which they returned and presented a document in a final, full
contract format that Van Lare referred to as a contract proposal.
The Respondent’s prior proposals also had been set forth in the
same format. Van Lare testified that he presented it as a con-
tract proposal “as good as it will be,” i.e., a final proposal.
The Respondent’s negotiators announced that the document
that they presented after the caucus eliminated the union-
security clause and provided for uniforms, the requested vaca-
tion scheduling change, the requested restoration of the former
overtime computation provision and, instead of a general pay
raise, an increase in the base pay on which apprentice pay is
calculated, to be effective in November. However, It errone-
ously included the Respondent’s proposed change in overtime
computation.
Thus, according to the Respondent’s witnesses, the docu-
ment was the Respondent’s answer, i.e., counteroffer to the
Union’s revised position.
Clarke’s testimony of what was discussed prior to the caucus
was cryptic. He testified that Van Lare stated that the Respon-
dent would not accede to an across-the-board pay raise. He
subsequently admitted that the document produced after the
caucus now provided for the aforesaid scale adjustment. Thus,
something new was added and discussed. However, he had
inconsistently testified that the document was presented as a
written embodiment of what had been agreed to before the
caucus. When he identified it at trial, Clarke referred to it as
the “contract proposal.”
According to Clarke, he pointed out that the document still
failed to restore the old overtime criteria and the Respondent
quickly admitted that it was due to error and they would retype
it. Clarke testified that:

We looked at Steve Lanter, and we asked him if this is what
they’re agreeable to after what they had given us, here and he
nodded yes. After Wendell had explained to them that they
weren’t going to give them any more money as long as every
six months they got their regular raises [sic]. But they did
raise the minimum salary for a week’s pay from $522 to
$538.

According to Clarke, Van Lare stated that they had an
agreement and he, Belleville, and Johnson stated at that point
they had an agreement. However, Clarke testified that he also
made the statement “that it is normal for us to take it back to
the Union and have them ratify the contract which we encour-
age them to do.” In cross-examination, however, when asked
about the reason for the reference, he testified that it was be-
cause the unit members “are the union.” He answered, “That’s
right” when asked “and they have the final say in whether this
is a deal?” However, in cross-examination, when asked the
reason for the ratification reference, he testified that ratification
was necessary before the union negotiators could sign the con-
tract. Clarke then at least corroborated the testimony of the
Respondent’s witnesses that there was no agreement of any sort
until after the caucus when the Respondent presented its docu-
ment containing new proposals. According to Clark’s admis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1070
sion, the document did not become an agreement, tentative or
absolute, until it was accepted after the postcaucus presentation.
Clarke’s shifting and at times inconsistent testimony is in-
consistent with that of Belleville and Johnson. Belleville was
even more cryptic, but he also was more selective as to his
recollection of what was said before and after the caucus. Ac-
cording to him, agreement was quickly reached and the subse-
quent caucus was utilized merely to permit the Respondent to
have typed up in documentary form already fully agreed-upon
contractual terms. According to him, when the document was
presented after the caucus, it was discovered that the old over-
time criteria had not replaced the Respondent’s now-abandoned
change in computation criteria. Belleville testified that the
Respondent offered to retype the agreement then and there but
the union representatives wanted to leave as soon as they could
because of a raging blizzard outside.
Clarke testified that Van Lare declared “we have an agree-
ment” and that they all shook hands and there was no discus-
sion as to any future action regarding the agreement. Then he
recalled that Clarke stated that the document was “fine” but that
he would “run it by the membership for ratification.”
In cross-examination, Clarke insisted that he testified as to
everything he could recall. However, cross-examination re-
vealed that he recalled that other matters were indeed discussed
and that his direct examination was highly selective. He now
testified that Clarke stated at negotiations that he would “have”
to submit the document to a ratification vote. He conceded that
the document produced after the proposal contained new coun-
teroffers, and thus contradicted his direct examination.
Clearly, then, the document was a proposal and not merely a
typing up of everything previously agreed on orally. Belleville
conceded that the membership was free to vote to “accept or
reject the terms of the agreement.” He explained that it is the
Union’s practice, in the event of contract rejection by the mem-
bership, to attempt to ascertain their objection and possibly to
reopen contract negotiation.
In even further cross-examination, Belleville attempted to re-
tract his admission that the Respondent presented specific pro-
posals for wages for the first time after the caucus. In addition
to being inconsistent and contradictory, Belleville was also
evasive, calculating, and unresponsive. Like Clarke and John-
son, he lacked convincing spontaneity. Belleville’s demeanor
was exceptionally poor, particularly in cross-examination when
it was marked by hesitancy and at times, in critical areas, be-
came nearly inaudible. In redirect examination, he was not
reassuring as revealed by this testimony.

Q. Mr. Belleville, going back to the February 24 meet-
ing, to your knowledge did the Company ever refer to the
document that it provided to the Union as a revised pro-
posal?
A. Not that I recall.
Q. To your knowledge, did the Company ever refer to
it as a final offer?
A. I believe it was said that, no.
Q. Do you recall any specific words that were used to
describe the document?
A. The only words I recall was what Mr. Van Lare
said, you know, that if we had agreed to that stuff, we had
an agreement.

Despite Belleville’s persistent reference throughout his exami-
nation to the postcaucus document as a “contract,” in his April
14, 1998 letter to Wessing notifying the Respondent of ratifica-
tion, he referred to it as “your company’s final offer.” Belle-
ville’s testimony was conspicuously silent as to Lanter’s par-
ticipation.
Johnson, like Belleville, characterized the precaucus discus-
sion of February 24 negotiation as a full setting forth of offer
and counteroffer and agreement for which a caucus was taken
merely to type up a memorialization of the full agreement. He
testified that when it was presented they all read the document,
noted the error regarding the overtime provision, and Van Lare
stated, “We have a deal.” Johnson testified that Clarke stated,
“well, we have to run this by the members,” and then everyone
shook hands and departed because of the snowstorm. He, as
did Belleville, denied that the word “tentative” was uttered at
the meeting. Clarke ultimately conceded that he could neither
recall how Van Lare characterized the postcaucus document
nor whether he did or did not refer to it as a proposal.
In cross-examination, Johnson testified that he did not con-
sider the postcaucus document to be a proposal despite the fact
that he referred to it as such in his contemporaneous bargaining
notes. His convoluted explanation for such note reference was
disingenuous and unconvincing. He finally claimed he used it
“for want of a better word.”
In cross-examination, he testified that the Union did not sign
the agreement on February 24 because it needed to be cor-
rected. Then he admitted also that a ratification vote was to be
taken and that the union members were free “to reject” the
agreement in the ratification vote. He testified:

Q. Okay, would you agree with me, Mr. Johnson, that
local 259–M of GCIU cannot accept a contract if the
membership has refused to ratify?
A. As far as that statement goes, yes.
Q. At the conclusion of that meeting it was indeed
necessary to conduct the ratification vote to find out, to de-
termine if the membership, if the membership would ac-
cept or refuse the company’s proposal?
A. That’s our procedure, yes.
Q. I’m not talking about the usual procedure, I’m talk-
ing about at the OD on February 24th.
A. Yes.
In redirect examination, Johnson testified that the Union ac-
cepted the Respondent’s proposal on February 24. Then, in
cross-examination, he testified:

Q. Mr. Johnson, the acceptance by the union commit-
tee of the proposal still left that proposal subject to being
refused by the membership, correct?
A. Yes.

Lanter’s testimony as to what he said at the postcaucus docu-
ment production is not contradicted by the selective nor rebuttal
recollection of the General Counsel’s witnesses. Indeed, as
noted above, deference was admittedly made to his approval
OBSERVER-DISPATCH 1071
before the committee reacted. One of the General Counsel’s
witnesses testified that he nodded approval. However, in cross-
examination, Clarke implied that Lanter did more than nod
when he made unexplained referenced to Lanter’s vocal par-
ticipation.
If there is any arguable implied contradiction to Lanter’s tes-
timony, I discredit it, as I discredit the testimonies of the Gen-
eral Counsel witnesses Clarke, Johnson, and Belleville, which
are inconsistent with the testimony of Lanter, Van Lare, and
Blum. The testimony of Clarke, Johnson, and Belleville, as
found above, was inconsistent, contradictory, shifting, cryptic,
selective, evasive, and accompanied by an unconvincing de-
meanor. Accordingly, I find the following transpired after the
caucus, based on the testimony of Lanter, Van Lare, and Blum.
Van Lare read off the proposals in the document. They were
discussed. Lanter independently read the proposal as Van Lare
read them off. When Van Lare finished, he asked Lanter di-
rectly if they had an agreement. Lanter replied that except for
some wording that needed change, he personally had no prob-
lem with the proposal. Van Lare agreed to make those
changes.2 Lanter, whom I credit, testified:

A. Then I made the statement that I wanted to take it
back to the rest of the crew, the bargaining unit, and have
a vote on it after they had a chance to look over the pro-
posed contract.
Q. Why would you make that statement, Mr. Lanter,
that you wanted to take it back to the rest of the people in
the unit?
A. Because there are seven people that were in the
bargaining unit at the time, and I don’t think it’s right
making a decision for all of them.

Clarke then made the statement that it looked pretty good but
he “had” to take the agreement to the membership for a vote.
Van Lare asked whether the Respondent could consider that a
tentative agreement had been reached and Clarke responded
affirmatively that “it looks good” and that they had tentative
agreement. Van Lare asked when they would have the ratifica-
tion vote, and Belleville responded that he would let Van Lare
know.
The negotiators made a quick departure at this point to es-
cape the escalating storm. Lanter testified that after the nego-
tiation meeting, he discussed the terms of the February 24
document with four other bargaining unit employees who were
primarily concerned about the uniform issue. As to the two
employees with whom Lanter did not discuss the contract, he
testified that he did approach them but they told him that they
had already read a copy of it and gave him their opinion, which
he did not disclose in his testimony, but they had no time to
discuss it with him.
Clarke testified that he “figured’’ that the parties had
achieved a contract on February 24 because of an agreement on
all terms in the document presented and the promised overtime
clause correction. He testified that he went to Wessing 1 week
later for the corrected copy, only to discover that it remained in

2 The inadvertent failure to restore the old overtime criteria in the
document and the agreement to do so is not disputed.
error. Wessing quickly admitted the error to Clarke and prom-
ised a corrected copy, which was received by Clarke on about
March 24.
Clarke testified, in effect, that he considered the ratification
to be a foregone conclusion. He testified that only seven ac-
tively employed bargaining unit members would be able to
vote.3 Clarke reasoned that an affirmative vote was a foregoing
conclusion because four of those seven eligible voters already
obtained what they wanted. This is, however, not accurate as
the Respondent’s last offer did not acquiesce to everything
demanded, i.e., the across-the-board wage demand. Further-
more, as Clarke admitted, if only a single member showed up
and voted, he alone could determine the result regardless of the
absent members who could very well include the four petition
signers. Thus, his presumption of ratification certainty is
flawed.
Before responding to that last offer at the February 24 meet-
ing, the focus was placed on Lanter as the representative of
those petition signers. His explicit affirmation was solicited
either explicitly by the union negotiators or implicitly when
Clarke deferred to him for approval. Lanter explicitly deferred
final acceptance to the ratification of his coworkers. Clarke, in
effect, adopted Lanter’s precondition by immediately stating
that he “had” to submit the agreement to a ratification vote.
Accordingly, the agreement was characterized as “tentative,”
i.e., an agreement subject to the condition of bargaining-unit
member ratification. Thus, regardless of past practice or union
policy, the union negotiators on February 24 waived their au-
thority to come to a final agreement by deferring to Lanter’s
representational capacity and his imposition of the condition of
ratification to a final agreement.
Lanter testified without contradiction that a ratification meet-
ing notice on a date prior to April 13 was posted and canceled.
Clarke testified that a notice for a contractual vote was posted
in the pressroom to occur at the regularly scheduled member-
ship meeting of April 13. When asked in cross-examination,
Clarke explained that the lapse of time between February 24
and the ratification vote was due to the fact that he and Belle-
ville were “busy” with other matters. He made no reference to
the delay of receiving a corrected copy from the Respondent as
a reason. In contradiction to Clarke, Belleville testified that the
reason for the delay on the vote was the Union’s failure to re-
ceive a corrected copy and that he told that to Wessing in late
March or early April when Wessing asked him when the Union
intended to schedule the ratification vote. According to Clarke,
the corrected copy was received on about March 24.
According to Lanter’s uncontradicted and credible testimony
elicited in cross-examination, the bargaining unit members met
among themselves on Saturday, April 11, and voted to reject
union representation entirely. Lanter deposited on the same
day a copy of their rejection petition in a sealed envelope on
Wessing’s desk. Wessing was absent and not expected until
Monday morning. Lanter did not attend the ratification vote.
Lanter and four other bargaining unit employees signed that
petition renouncing union representation.
3 In fact, only two of three voters were actively employed at the rati-
fication vote. Belleville testified that retirees were able to vote.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1072
By letter dated April 13, signed by Wessing, the Respondent
informed Belleville that it was immediately withdrawing rec-
ognition of the Union because of the Union’s loss of majority
status. On the same date, the Respondent informed the bargain-
ing unity employees in writing that it had withdrawn recogni-
tion based on the receipt of evidence as to the loss of majority.
The letter advised that employee and employer contributions to
the union pension fund would cease but that these amounts
would be included in their pay and available for participation in
the Respondent’s 401(k) plan. The employees were informed
that uniforms would be provided.
There had been no compliance with the terms of the Febru-
ary 4 document or attempted enforcement of it by the Union.
Uniforms were provided by the Respondent to unit employees 2
weeks after the recognition withdrawal. There was no imple-
mentation of the proposed change in summer vacation schedul-
ing or the proposed increase in apprentice pay percentage com-
putation. There is no evidence as to whether the Respondent
changed the overtime computation formula or retained it as
proposed in the February 24 document.
Subsequently, notwithstanding the above, the Union con-
ducted a ratification vote among the one retired and two active
unit employees on the evening of April 13, who voted in favor
of ratification of the agreement. On April 14, the Union in-
formed the Respondent that the “members present at this meet-
ing voted by a majority vote to accept your Company’s final
offer of a three (3) year agreement.” On April 17, the Respon-
dent replied that it had properly withdrawn recognition prior to
the Union’s acceptance of the Respondent’s final offer and,
therefore, prior to the creation of a binding contract.
B. Analysis
The General Counsel accurately sets forth the state of Board
law in his argument in the brief as follows:

In determining whether a binding agreement exists in
circumstances where employee ratification is involved, the
Board examines whether the parties had an express
agreement that ratification was a condition precedent to
reaching a binding contract or whether ratification was a
self-imposed required [sic] by the union. In circumstances
where there is an express agreement on the need for ratifi-
cation, the Board has generally found that a contract can-
not become effective if ratification has occurred. See
Hertz Corp., 304 NLRB 469 (1991) and Beatrice/Hunt
Wesson, 302 NLRB 224 (1991). Thus, an employer under
these circumstances need not execute such a contract that
has not been ratified.13 In cases in which a union has self-
imposed an internal ratification requirement, the Board has
long held that an employer must sign the agreement upon
request, regardless of whether or not ratification has taken
place. North Country Motors, 146 NLRB 671 (1964) [em-
ployer ordered to sign agreement even though initially re-
jected and then approved by a single employee at second
vote; Martin J. Barry Co., 241 NLRB 1011 (1979) [em-
ployer ordered to sign agreement rejected by first ratifica-
tion vote but later accepted by a small minority of mem-
bers]. See also C & W Lektra Bat Co., 209 NLRB 1038
(1974) [employer ordered to sign agreement even though
union dispensed with earlier stated intent to obtain ratific-
tion where ratification looked impossible14]. Williamhouse-
Regency of Delaware, 297 NLRB 199 (1989) [employer
unlawfully refused to execute a contract after the union ac-
cepted the employer’s offer without obtaining ratification;
although the union had informed the employer during nego-
tiations that any agreement would have to be ratified before
it became a binding contract, the union’s self-imposed limi-
tation of its own authority did not constitute a condition
precedent].
. . . .
The Board has, in appropriate in appropriate circum-
stances, found ratification to be a condition precedent to
the formation of a binding agreement on the basis of an
express understanding that the union negotiators lacked
the authority to bind the union to a contract. For example,
in Sunderland’s Inc., 194 NLRB 118 (1971), the employer
specifically sought to ascertain if the union negotiators had
final authority to accept or reject a contract, and the union
had only been given authority by the membership to sub-
mit the employer’s best offer for ratification. Since the
negotiators did not have final authority to accept or reject,
ratification was made a precondition. Similarly, in Tele-
dyne Specialty Equipment, 327 NLRB 928 (1999), the
Board concluded that the employer had timely and unlaw-
fully withdrew from a tentative agreement. In that case,
the union had informed the employer that it did not have
the authority to grant a no-strike pledge, as such authority
rested solely with the employees. In these circumstances,
ratification was found to be a condition precedent to a
binding agreement, where the parties were aware that rati-
fication was required by the union constitution, the union
expressly refused to agree to the no-strike provision be-
cause it lacked the authority to independently do so, and
the draft agreement included that provision.
________________________
13 In his concurring opinion in Beatrice/Hunt Wesson, Chair-
man Stephens observed that in the case of self-imposed ratifica-
tion, although an employer may signal its acquiescence, such a re-
sponse is only a tacit acknowledgement of a precondition that
may have to be satisfied before the contract becomes finally
effective.
14 The Board majority, in finding the lack of sufficient basis to
establish ratification was a condition precedent, stated, “There is
no evidence that the parties agreed in express words to such a
condition. We find, rather, on this record, that the Union was
merely stating its intention, albeit forcefully, to take any contract
reached to the membership for approval. We are unwilling to dis-
tort words of intention into words of agreement, particularly
where the subject is unrelated to wages and terms and conditions
of employment. We regard the words ‘[w]e demand that we
would ratify,’ even if said during negotiations by the union, as
part of the ambiance of negotiations rather than as a concrete pro-
posed offer for inclusion as a term of the contract.

The General Counsel and the Union argue that there is insuf-
ficient credible evidence that the parties either explicitly condi-
tioned their agreement on unit employee ratification or that the
union negotiators had limited their authority to agree to the full
terms of a collective-bargaining agreement without unit mem-
OBSERVER-DISPATCH 1073
ber ratification. I disagree. The above findings of fact clearly
demonstrate otherwise on both points. The key to the resolu-
tion of these issues is the critical event of Lanter’s intervention
and participation on an express mandate of bargaining unit
employees. Lanter’s new position and the mandate was recog-
nized and deferred to by the union negotiators. When Lanter
expressed personal approval of the Respondent’s last offer, he
explicitly conditioned acceptance on his coworkers’ ratifica-
tion. Clarke immediately endorsed that condition by asserting
that ratification was necessary when asked by Van Lare if they
had an agreement. Thus, Clarke and his co-negotiators not only
affirmed the conditional acceptance of that last offer but, by
endorsing Lanter’s response, asserted explicitly enough if n otin
precise words that their authority was now limited by Lanter’s
mandate and his decision as to acceptance or rejection. Thus,
the characterization of the agreement as “tentative” becomes
meaningful and not merely some verbal gloss by which the
Respondent attempted to escape its agreement.
Accordingly, I find that the Respondent’s final offer of Feb-
ruary 24, 1998, had not been accepted and could not have been
accepted until the unit member ratification vote. That vote did
not occur until after the Respondent timely and lawfully with-
drew recognition. Auciello Iron Works, supra.
I, therefore, find that the Respondent did not unlawfully re-
fuse to execute the February 24 document, nor did it unlawfully
withdraw recognition because of the existence of a fully
agreed-upon contract.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The complaint is dismissed in its entirety.

4
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.