Personal Optics

National Labor Relations Board - Board Decisions

Aug 31, 2004

342 N.L.R.B. 958 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 96
958
Sunglass Products Inc. d/b/a Personal Optics and La-
borers International Asbestos & Toxic Abate-
ment, Local 882, Laborers International Union
of North America, AFL–CIO. Cases 21–CA–
34562 and 21–CA–34732
August 31, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND MEISBURG
On August 19, 2003, Administrative Law Judge Lana
H. Parke issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief and the Respondent
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 and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Sunglass Products Inc. d/b/a
Personal Optics, Fullerton, California, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order.

Lisa McNeill, Esq., for the General Counsel.
George S. Howard Jr., Esq. (Pillsbury Winthrop, LLP), of San
Diego, California, for the Respondent.
Carlos Perez, Esq. (Reich, Adell, Crost & Cvitan), of Los An-
geles, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This case was
tried in Los Angeles, California, on July 2 and 3, 2003.1 Pursu-

1 The Respondent 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.
2 The Respondent contends that any agreement reached by the par-
ties was subject to ratification by a vote of all bargaining unit employ-
ees. Even if the Union’s prior statements arguably may have led the
Respondent to believe that the Union would conduct a vote of the bar-
gaining unit, there was never any such agreement between the parties.
Accordingly, we agree with the judge that the Union’s acceptance of
the Respondent’s final offer created a binding collective-bargaining
agreement.
1 All dates are in 2001 unless otherwise indicated.
ant to charges filed by Laborers International Asbestos & Toxic
Abatement, Local 882, Laborers International Union of North
America, AFL–CIO (the Union), the Regional Director for
Region 21 of the National Labor Relations Board (the Board)
issued an order consolidating cases, consolidated complaint,
and notice of hearing (the complaint) on September 27, 2002.
The complaint alleges that Sunglass Products Inc. d/b/a Per-
sonal Optics (Respondent) violated Section 8(a)(5) and (1) of
the National Labor Relations Act (the Act) by refusing to exe-
cute an agreed-upon collective-bargaining agreement and to put
into effect various provisions thereof. Respondent essentially
denied the complaint allegations, and asserted, as affirmative
defenses, that the Union waived its right to bargain over the
alleged matters, that the Union failed and refused to bargain in
good faith, that ratification of the collective-bargaining agree-
ment was a condition precedent to agreement, that Respondent
detrimentally relied on union misrepresentations, and, as to
potential remedy, some unit employees were not eligible for
employment in the United States at relevant times.
On the entire record2 and after considering the briefs filed by
the General Counsel, the Charging Party, and Respondent,3 I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California corporation, with facilities in Full-
erton and Anaheim, California (respectively the Fullerton facil-
ity and the Anaheim facility), is engaged in the business of
wholesale distribution of sunglasses and reading glasses. Dur-
ing the 12-month period preceding the complaint, a representa-
tive period, Respondent sold and shipped from its California
locations directly to points outside the State of California goods
valued in excess of $50,000, and, during the same period, pur-
chased and received at its California locations goods and ser-

2 Counsel for the General Counsel’s unopposed posthearing motion
to correct the transcript is granted. The motion and enclosed corrections
are received as ALJ Exh. 1.
3 On August 4, 2003, counsel for the General Counsel moved to
strike Respondent’s posthearing brief as untimely under Sec. 102.111
of the Board’s Rules. In its opposition to the motion, Respondent fur-
nished date-stamp evidence that the Division of Judges received its
brief at 4:20 p.m. on July 31, 2003, the deadline date. The brief was
apparently hand delivered; its service on the administrative law judge
was timely. Affidavit of proof of service attached to Respondent’s
brief shows that on July 31, 2003, Respondent mailed it to the parties
located in Los Angeles, California, from San Diego, California. Ac-
cording to Rule 102.114 (a), “[W]hen filing with the Board is done by
hand, the other parties shall be promptly notified of such action by
telephone, followed by service of a copy in a manner designed to insure
receipt by them by the close of the next business day.” In her motion,
counsel for the General Counsel does not state whether the parties were
notified by telephone of hand delivery of Respondent’s brief to the
Division of Judges; there is no evidence such notice was not given.
Although deposit in regular mail in San Diego, California, of papers to
be delivered the following day in Los Angeles, California, may indicate
an overly sanguine view of the efficiency of the United States Postal
Service, I cannot find the presumption of delivery on the “next business
day” is entirely without basis. Accordingly, the motion to strike is
denied.
PERSONAL OPTICS

959
vices valued in excess of $50,000 directly from points outside
the State of California. Respondent admitted and I find it to be
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
Based on lack of knowledge, Respondent denied the Union
was a labor organization but stipulated that at all times since
August 9, 2000, it had been the exclusive bargaining represen-
tative of employees in the unit described below. I find that at
all times material, the Union has represented employees
with respect to their hours, wages, and terms and conditions
of employment, and has been a labor organization within the
meaning of Section 2(5) of the Act.4
II. ALLEGED UNFAIR LABOR PRACTICES
The Parties’ Bargaining History
On August 9, 2000, following a stipulated election con-
ducted by the Board, the Union was certified as the representa-
tive of Respondent’s employees in the following unit: All full-
time and regular part-time packing, manufacturing, assembling,
shipping and receiving employees employed at the Fullerton
and Anaheim facilities. In preparation for bargaining between
the parties, unit employees elected six employees to a negotiat-
ing committee, three as regular committee members and three
as alternates. By letter dated September 28, 2000, Humberto
M. Gomez (Gomez), business manager of the Union, informed
Respondent that Mario Brito (Brito), union organ-
izer/negotiator, had been assigned:

to be the Negotiator on the Union’s behalf with Personal Op-
tics. Mr. Brito will be contacting your office to set up the ne-
gotiation schedule. Mr. Brito has the authority to reach a ten-
tative agreement with Personal Optics subject to ratification
by the bargaining unit employees and the Local Union Execu-
tive Board.

Richard Steven Ruben (Ruben), attorney, served as Respon-
dent’s primary negotiator. Bargaining commenced in October
2000 and proceeded with the normal give and take of lawful
collective bargaining. The Union made no proposal concerning,
and the parties did not negotiate the question of employee ratifi-
cation of any agreement. On several occasions during bargain-
ing, Brito pushed for Respondent’s agreement to various pro-
posals, saying he really needed the concessions because it would
make his job easier at the time of “ratification” by the work-
force. At the meeting of April 11, in response to Brito’s ques-
tion, Ruben said the proposed wage increase would be effective
upon the first pay period following the Union’s approval of the
contract. Brito said some proposals were more important than
others in getting a positive committee endorsement of the con-
tract and a positive ratification vote and that a health plan was
the most important. During the negotiating meeting of April 12,
as reflected by Ruben’s bargaining notes and testimony, the
parties discussed the question of a “signing bonus” (an agreed
amount to be paid each employee upon the signing of the con-

4 Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of counsel, and/or unchallenged credible
evidence.
tract) to make a contract more palatable to the Union. Brito told
Respondent’s negotiators that a signing bonus would soften the
blow to employees of Respondent’s economic proposals. Ruben
noted a reminder to himself to ask the Union if it would recom-
mend the contract to employees if Respondent agreed to a sign-
ing bonus. Thereafter, Respondent refused to agree to a health
plan but made certain wage concessions and agreed to a signing
bonus of $105 per employee. As to the parties’ description of the
bonus, Ruben’s bargaining notes specifically referred to a “sign-
ing bonus” not a ratification bonus. Brito testified that he never
referred to the signing bonus as a ratification bonus during nego-
tiation, which Ruben’s notes corroborate. However, the sum-
mary of contract proposals prepared by the Union for presenta-
tion to employees includes a reference to the first wage increase
occurring “upon ratification” and the information, “Once contact
is ratified the employees will receive a $105.00 bonus from the
company.” A summary of contract proposals prepared by Re-
spondent also uses the term “ratification” as setting the effective
dates for the bonus and the first wage increase. The evidence as
a whole establishes that in reference to the bonus, the parties
used the terms ratification and signing interchangeably.
The Union issued a notice to unit employees of an April 20
meeting, which read, in pertinent part:
GENERAL MEETING
TO RATIFY OUR FIRST CONTRACT
THIS FRIDAY WE WILL HAVE A MEETING TO
EXPLAIN THE DETAILS OF OUR NEW CONTRACT.
. . . .
THOSE WHO ARRIVE WILL DECIDE FOR EVERYONE
As noted above, summaries of contract provisions pre-
pared by both the Union and Respondent referred to em-
ployee ratification. The Union’s summary, in pertinent
part, read:

• ¢ .15 increase per hour upon ratification.
. . . .
• Once contract is ratified the employees will receive
a $105.00 bonus from the company.

Respondent’s summary noted that if employees accepted Re-
spondent’s proposal, an “Immediate Bonus $105 Per Person”
would be paid to all employees “[a]s soon as possible after
ratification.”
At the April 20 meeting, unit employees expressed dissatis-
faction with the lack of a medical plan in the proposed contract.
Brito asked the negotiating committee if they would approve
the contract. They refused. The only vote taken by the Union
was within the negotiating committee. By letter dated April 23,
the Union wrote to Ruben as follows:

On Friday April 20, 2001 the workers at Personal Optics and
rank file [sic] negotiation committee overwhelmingly rejected
the company’s last proposal. . . . Notwithstanding, the com-
mittee and workers expressed, they want to see a family
medical insurance to be implemented to the contract. We un-
derstand the company is close to their best and final offer, so
we request that the company forward to us their best and final
offer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

960

By letter dated April 23, Ruben informed the Union that the
rejected proposal was its “last and final proposal.” By letter
dated April 25, Ruben requested the Union furnish Respondent
with the final vote tally on Respondent’s proposal and asked
how the proposal had been presented to the employees. He
further wrote, in pertinent part:

I am also surprised that you have not communicated with us
in the five days since the vote, other than to ask whether our
final proposal was in fact our final proposal. You have not let
us know how you are planning to proceed. . . . In the event
you are planning to schedule another vote in the future, I as-
sume that you will give us the courtesy of advance notice of
when the vote will take place.

Following this letter, Brito told Ruben, by telephone, that how
the Union handled the contract was an internal union matter.
With the intention of pressing unit employees to accept the
contract, the Union asked Respondent to provide the full text of
its final bargaining proposal. With cover letter dated May 2,
Respondent furnished the proposal, stating in pertinent part:

Pursuant to your request, attached is the full version of the
Company’s final bargaining proposal. We understand that if
the proposal is ratified by the bargaining unit or otherwise ac-
cepted by the Union, the Union and the Company will enter
into the side letter discussed during the collective bargaining
negotiations.5

The attached bargaining proposal was in the form of a com-
plete collective-bargaining agreement (the Agreement.) A
cover letter to the Agreement read:

PERSONAL OPTICS’ FINAL CONTRACT PROPOSAL
DETERMINED AFTER COLLECTIVE BARGAINING
NEGOTIATIONS WITH THE LABORER’S [SIC]
INTERNATIONAL UNION OF NORTH AMERICA
(provided at Union’s Request)

The introductory and final paragraphs of the Agreement read,
respectively, as follows:
This Agreement is entered into this ____ day of
_______, 2001, by and between Sunglass Products, Inc.,
dba Personal Optics (“Company”) and the Southern Cali-
fornia District Council of Labor (affiliated with the Labor-
ers’ International Union of North America) and its affili-
ated Local Union No. 882 (“Union”) (“Agreement”).
. . . .
This Agreement shall remain in full force and effect
until and including 11:59 p.m., December 31, 2004, and
thereafter from year to year, unless one party or the other
gives notice, in writing, at least sixty days prior to the ex-
piration of this Agreement of the desire to terminate this
Agreement or modify its terms.

The Agreement acknowledges at section XXII,(2) that the
Union and Respondent had unlimited rights and opportunity to
make appropriate demands and proposals and that the “under-

5 The side letter referred to was a proposed resolution of outstanding
unfair labor practice charges.
standings and agreements arrived at by the parties after the
exercise of their rights and opportunities are fully set forth in
this Agreement and any mutually agreed upon side letters
thereto.” The Agreement is silent as to unit ratification except
for sections XI,(3) and XII, which read:

XI. (3) For the year 2001, the regular rate of pay for all em-
ployees who are employed as of the date of the ratification of
this Agreement shall be increased by fifteen cents ($.15) per
hour. The fifteen cents ($.15) per hour increase shall be effec-
tive as of the first day following ratification of this Agree-
ment.

XII. Ratification Bonus
All employees who are employed by the Company as
of the ratification date of this Agreement will receive a
bonus of $105.00 to be paid as soon as practicable follow-
ing the ratification of the Agreement.

On May 6, after receipt of the Agreement, Brito and Gomez
met with members of the full employee negotiating committee,
both regular and alternate members. The union representatives
explained that the Agreement was the Company’s best and final
offer. The full committee unanimously voted by show of hands
to accept the Agreement. Following approval by the Union’s
executive board, on May 9, Gomez had the final page of the
Agreement retyped to add the subscription, “Executed on May 9,
2001,” followed by signature lines for the Union and Respon-
dent.6 On May 9, Gomez signed the Agreement on the Union’s
signature line, and mailed the executed agreement to Ruben with
the following cover letter:

Please be informed that Laborers’ Local 882 has ratified the
Collective Bargaining Agreement between Personal Optic
and Local 882 under the authority of our International and
Local Constitution and bylaws. Enclosed please find two
executed copies of the Agreement. Please sign and date both
copies keep one copy for your records and send one copy
back to my office. The Union expects that all of this contract
will be in full effect as of May 8, 2001.

Although admittedly Respondent had not withdrawn the
Agreement prior to its execution by Gomez, Ruben felt the
Company had been taken advantage of. He felt like “an idiot, a
jerk viz a viz our client.” Jennifer P. Ashley (Ashley) of
Ruben’s office wrote to the Union by fax of May 14:

We understand that the Union has accepted Personal Optics’
final collective bargaining proposal without a vote of the bar-
gaining unit . . . please let us know the [constitutional] provi-
sion upon which the Union is relying to accept the Com-
pany’s proposal without a vote of the bargaining unit.

The Union’s constitution is silent regarding employee ratifi-
cation of collective-bargaining agreements. The Union did not
respond to Respondent’s request for information as to its inter-
nal union constitutional authority but left a voice mail message
with Ashley asking whether Respondent would sign the

6 The typist inadvertently substituted the time “11:50 a.m.” for
“11:59 p.m.” in the final paragraph of the Agreement. By letter dated
May 24, Gomez apologized for the typo and agreed to its correction.
PERSONAL OPTICS

961
Agreement. Ashley, by fax dated May 16, in pertinent part
responded:

As you can understand, Personal Optics is concerned about
signing any agreement that was not accepted by its employ-
ees. Such concern is especially reasonable considering that
prior to the Union’s unilateral acceptance, we understand that
the union members overwhelmingly voted to reject the Com-
pany’s proposal. Thus, before Personal Optics is able to re-
spond to any inquiry concerning its intent to sign the agree-
ment, it is imperative that the Union provide us with the au-
thority upon which it relied in accepting the Company’s final
proposal without a vote of . . . the represented employees.
Upon receiving such authority, Personal Optics will respond
to your question regarding its intent to sign the agreement.

Upon receipt of this communication, Gomez telephoned
Ashley and explained that the employee negotiating com-
mittee had accepted the Agreement and that he had authority
to accept the Agreement even if the bargaining unit rejected it.
After their conversation, Ashley faxed another letter dated May
16 to Gomez, which stated in pertinent part:

Again, Personal Optics is not refusing to sign the agree-
ment. The Company only wants to assure that its proposal
was accepted in accordance with the rules and laws of the
Union. Given your representation that the Constitution
clearly gives you the authority to accept the proposal as
you did, Personal Optics’ request for a reference to the
provision that confers such authority is not unreasonable
. . . Personal Optics cannot make a decision whether to
sign the agreement without reviewing the authority upon
which the Union has relied to accept its proposal.

Following this communication, the Union, by fax dated May
17, again requested Respondent to sign the Agreement. By fax
dated May 23, Ruben responded, in pertinent part:

[R]atification was a condition to any agreement. On many,
many occasions during the negotiations, you expressly bar-
gaining on the basis of your stated ability to obtain employee
ratification based upon whether the Company would or would
not agree to a specific provision or a specific monetary bene-
fit. At the end of the negotiations, you specifically negotiated
over whether the Company would make certain additional
concessions based on your express arguments that the conces-
sions would allow you to achieve the unanimous recommen-
dation of the agreement by the three employees on the nego-
tiating committee, and that the three employees would then
vigorously speak in favor of the agreement to the membership
at the ratification vote.
Furthermore, you bargaining for and obtained a “ratifi-
cation” bonus . . . which was for the sole purpose of ob-
taining membership ratification. During the negotiations,
we discussed the necessity and amount of such a bonus at
length, and all of the discussions centered around your
need for a bonus of this amount . . . to ensure a successful
membership vote. The Company would never have, and
did not, agree to pay the employees this sum without an
employee acceptance of the agreement . . . no such bonus
was agreed to by the Company in the absence of employee
ratification and approval.
In conclusion, the Company will not countersign the
purported “agreement” . . . based on two fundamental rea-
sons: (1) there was no agreement at any time to pay $105
per employee in the absence of any employee ratification
vote in favor of the agreement, as the express reason to
pay any bonus was to provide incentive for the employees
to approve the agreement, and absent the need for such in-
centive, the Company did not and would not agree to make
any such payment; and (2) your express representations
and detailed course of conduct which required that the
employees ratify the proposed agreement for a bona fide
agreement to result.

At all times thereafter, the parties continued to hold to their
respective positions: the Union that Respondent was bound to
honor the Agreement; Respondent that any agreement was to be
ratified by the employees and that the $105 bonus was to be
paid only after employee ratification of the Agreement. In June
or July, the first of three petitions seeking to decertify the Un-
ion was filed with the Regional Director.7
On August 28, the Union filed six grievances with Respon-
dent alleging Respondent’s violation of certain provisions of
the Agreement. The grievances addressed the following con-
duct: (1) refusal to provide facility access to union representa-
tives; (2) failure to pay the signing bonus; (3) refusal to pay
wage increases provided for in the Agreement; (4) failure to
remit union dues contributions, including supplemental dues
and initiation fees, in accordance with the Agreement.
By fax dated August 28, Ruben responded, in pertinent part:

Since all of your [grievances] are based on the pre-
sumption that there is a Collective Bargaining Agreement,
I do not believe that there are any issues which could be
fruitfully discussed arising from these purported griev-
ances. However, if you feel otherwise and believe that
discussion might be beneficial, I would be happy to par-
ticipate.
In the meantime, it is the company’s position that there
is no Collective Bargaining Agreement under which a
grievance can be brought, and thus, no grievance can
properly proceed.

Without altering their respective positions, the parties met
during October to discuss certain unit issues. Respondent con-
tinued to profess willingness to sign the Agreement if employ-
ees ratified it. Respondent submitted a new “alternative” con-
tract proposal to the Union, withdrawing certain economic con-
cessions and reducing the term of the contract.
III. DISCUSSION
Board law is clear regarding whether a binding agreement
exists where employee ratification is an issue. Employee ratifi-
cation is an internal union procedure; unless the parties ex-
pressly make ratification a condition precedent to reaching a

7 The record contains no further evidence of these petitions except
that Respondent filed one of them. Presumably they were dismissed
pending the outcome of the instant unfair labor practice hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

962
contract, it is not obligatory. If ratification is a self-imposed
requirement, an employer may not refuse to sign an otherwise
agreed-upon contract because of nonratification. See Mine
Workers (Arche of West Virginia), 338 NLRB 406 (2002); Ob-
server-Dispatch, 334 NLRB 1067 (2001); Sheridan Manor
Nursing Home, 329 NLRB 476 fn. 9 (1999); Hertz Corp., 304
NLRB 469 (1991) [express oral bilateral agreement to submit
the parties’ negotiated contract to a ratification vote]; Bea-
trice/Hunt Wesson, 302 NLRB 224 (1991) [both parties agreed
to require ratification by the bargaining unit members to make
the tentative agreement binding].
In the instant matter, contrary to Respondent’s contention, it
is clear the parties never made employee ratification a condition
precedent to the Agreement. The Union stated its intention to
obtain employee ratification and urged acceptance of some of
its proposals because of its need to satisfy the desires of ratify-
ing employees. However, there is no evidence that ratification
was established as, or understood to be, a precondition of the
Agreement; there is no testimony of any negotiating statements
to that effect,8 and no contract or memoranda language sets any
such precondition.9 I do not accept Respondent’s argument that
either the Union’s urging concessions to facilitate “ratification”
or references to ratification in the Agreement evidence a bilat-
eral agreement to require ratification for a binding agreement.
The Union’s pressure for concessions and the Agreement’s
ratification references are both consistent with the Union’s self-
imposed intention to seek ratification. If, therefore, Respondent
and the Union effectively reached complete agreement on terms
and conditions of employment to cover unit employees as me-
morialized in the Agreement, Respondent was required to exe-
cute the Agreement upon request.
I have considered whether the parties effectively reached
complete agreement on terms and conditions of employment.
Respondent argues that the parties never intended the Union to
be able to accept the Agreement without unit ratification, point-
ing out that in order to accept the Agreement, the Union “had to
remove the cover page” and “create . . . a signature page . . .
[making] an admitted error on the termination time.” Those
facts do not demonstrate that the parties did not mutually agree
on all material terms of the contract. The document provided to
the Union on May 2, bore the following cover-page description:
PERSONAL OPTICS’ FINAL CONTRACT PROPOSAL
DETERMINED AFTER COLLECTIVE BARGAINING NEGO-
TIATIONS WITH THE [UNION]. The cover page was merely a
description of the document Respondent furnished the Union. It
was not relevant to any of the terms of the Agreement. The
terms of the attached agreement were complete, including the

8 See C & W Lektra Bat Co., 209 NLRB 1038 (1974) [a stated inten-
tion to take any contract reached to the membership for approval does
not constitute an agreement to make ratification a condition precedent
to a collective-bargaining agreement].
9 “Since [ratification] was not offered as a proposal, there could be
no acceptance by Respondent in any event.” Id. at 1039, citing Shreve-
port Garment Mfrs., 133 NLRB 117 (1961). In Hertz and Beatrice,
supra, the parties specifically and bilaterally agreed to ratification,
which agreement does not exist in the instant case. Respondent’s reli-
ance on Hertz and Beatrice is, therefore, misplaced.
termination date of the contract.10 Only the initial paragraph,
which left blank the date on which the Agreement would be
entered into, was incomplete. Unlike the situation in Sheridan
Manor Nursing Home, supra, the duration of the Agreement had
been mutually determined. The Agreement, by its written terms,
was to last through December 31, 2004. From the language in
sections XI,(3) and XII, it is reasonable to infer that the parties
intended the Agreement’s effective date to be the date it was
ratified (by whatever internal union process) and accepted by the
Union. There is no evidence that either party believed there was
yet any contract term to be negotiated. Indeed, in the extensive
correspondence following the Union’s acceptance of the
Agreement, Respondent never raised a question of any out-
standing or unnegotiated contract term. Its only qualification
was its insistence that unit employees ratify the Agreement be-
fore Respondent sign and implement it. Accordingly, the evi-
dence shows the parties reached complete agreement on terms
and conditions of employment when the negotiating committee
ratified the Agreement, and Gomez so notified Respondent on
May 9.
I have considered the fact that two provisions of the Agree-
ment specifically refer to “ratification” as the catalyst to certain
payments to employees. Section XI, (3) of the Agreement notes
that the first-year negotiated wage increase will be effective “as
of the first day following ratification of this Agreement.” Sec-
tion XII Ratification Bonus provides that the bonus is to be paid
as soon as practicable following the ratification of the Agree-
ment. This language certainly links the first-year wage increase
effective date and the bonus to ratification of the Agreement.
However, the evidence establishes that the Union did, in fact,
obtain employee ratification of the Agreement and thereby met
the requirements of sections XI,(3) and XII. In reaching that
conclusion, I rely on several bases. There is no testimony or
evidence that the parties, in formulating sections XI,(3) and XII,
discussed how ratification was to be achieved. There is nothing
to suggest the Union in any way limited itself to obtaining ratifi-
cation by the full unit complement. When ratification became
an issue, the Union consistently maintained that the process of
ratification was an internal union matter in which Respondent
had no part. In taking this position, the Union was asserting an
established legal principle: “It is well settled that contract ratifi-
cation votes and procedures are ‘internal union affairs upon
which an employer is not free to intrude. London Chop House,
Inc., 264 NLRB 638, 639 (1982).” Sheridan Manor, supra at
477. It was for the Union, not Respondent, to determine how to
effect ratification. It was for the Union, not Respondent, to
determine that ratification was achieved when the negotiating
committee unanimously accepted the Agreement. The Agree-
ment was, therefore, ratified when the negotiating committee
unanimously accepted it.
Respondent argues that any remedy requiring payment of the
ratification bonus and the first year wage increase would be
inequitable as those contractual terms were dependent upon
employee ratification, which did not take place. I cannot accept

10 The Union’s inadvertent error as to termination time was quickly
rectified and has no relevance to whether an effective agreement ex-
isted.
PERSONAL OPTICS

963
that argument. As set forth above, ratification occurred when
the negotiating committee unanimously accepted the Agree-
ment. Further, I note that the parties interchangeably used the
terms “signing” and “ratification” during bargaining. Ruben’s
bargaining notes refer to the proposed bonus as a “signing”
bonus as does his June 4 letter to the Union. Ashley’s May 5
letter to the Union anticipates the Agreement being “ratified by
the bargaining unit or otherwise accepted by the Union.”11
Further, as set forth above, Respondent and the Union never
discussed how ratification was to be accomplished. It is clear
the Union did not believe itself bound to obtain approval of a
unit majority. Its notice to employees of the general meeting to
ratify the Agreement cautioned, “Those who arrive will decide
for everyone,” and Brito’s statements during negotiations re-
garding ratification focused on the negotiating committee.12
The logical inference is that the parties contemplated the
agreed-upon bonus as a one-time benefit to make the Agree-
ment more palatable to employees and thereby to facilitate its
acceptance but that unit majority ratification was not a condi-
tion of bonus payment. I conclude that neither the first-year
wage increase nor the bonus was inextricably based on full unit
ratification rather than union acceptance of the proffered terms.
When the employee negotiating committee accepted (or rati-
fied) the Agreement, Respondent had neither contractual nor
legal standing to protest that the Agreement’s section XI,(3)
wage increase and section XII ratification bonus provisions had
not been met. The employee negotiating committee’s accep-
tance of the Agreement and Gomez’ signing of it on May 9,
constituted a binding acceptance of Respondent’s final contract
offer. Upon receipt of the Union’s acceptance of the Agree-
ment, Respondent was, perforce, obliged under the Act to exe-
cute the Agreement and honor its terms. By refusing the Un-
ion’s request to sign the Agreement, and by refusing to imple-
ment its terms, Respondent refused to bargain within the mean-
ing of Section 8(a)(5) and (1) of the Act. By refusing to proc-
ess grievances under the Agreement, Respondent also refused
to bargain within the meaning of Section 8(a)(5) and (1) of the
Act.13

11 I reject Respondent’s argument that this statement does not show
that Respondent contemplated union acceptance could be achieved by
other than employee ratification. The statement is consistent with
Respondent’s interchangeable use of “ratification” and “signing” in
reference to the proposed bonus.
12 Ruben’s May 23 fax to the Union suggests Respondent also re-
garded the negotiating committee as key to the ratification process,
noting “[the Union expressly argued that] concessions would allow you
to achieve the unanimous recommendation of the agreement by the
three employees on the bargaining committee, and that the three em-
ployees would then vigorously speak in favor of the agreement to the
membership at the ratification vote.”
13 Except for those issues addressed, Respondent failed to introduce
evidence to support its affirmative defenses and I have not considered
them. As to its remedial defense that some unit employees were not
eligible for employment in the United States at relevant times, I leave
that issue to compliance.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to execute the agreement reached with the Union on
May 9, 2001.
2. Respondent violated Section 8(a)(5) and (1) of the Act by
refusing, since May 9, to implement the terms of the agreement
reached with the Union on May 9, 2001.
3. Respondent violated Section 8(a)(5) and (1) of the Act by
refusing, since August 28, 2001, to process grievances filed by
the Union pursuant to the terms of the agreement reached with
the Union on May 9, 2001.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
The recommended Order will also require that Respondent
make employees whole for any loss of wages and benefits suf-
fered as a result of its refusal to sign and abide by the terms of
the agreement reached with the Union on May 9, 2001, and that
Respondent make the Union whole for any unpaid membership
dues as a result of Respondent’s failure to honor the dues-
check-off provisions of the agreement reached with the Union
on May 9, 2001.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14
ORDER
The Respondent, Sunglass Products Inc. d/b/a Personal Op-
tics, of Fullerton, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to execute the agreement reached with the Un-
ion on May 9, 2001.
(b) Refusing, since May 9, to implement the terms of the
agreement reached with the Union on May 9, 2001.
(c) Refusing, since August 28, 2001, to process grievances
filed by the Union pursuant to the terms of the agreement
reached with the Union on May 9, 2001.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Upon request of the Union, sign and give retroactive ef-
fect to the collective-bargaining contract agreed upon between
Respondent and the Union on May 9, 2001, and make employ-
ees whole, with interest, for any loss of wages and benefits
suffered as a consequence of Respondent’s refusal to sign that
contract in May 2001; and if no such request is made by the
Union, bargain, upon request, with the Union as the exclusive

14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

964
bargaining representative of the employees in the previously
described appropriate unit and embody any understanding
reached in a signed agreement.
(b) Upon request of the Union, process grievances filed by
the Union on August 28, 2001, pursuant to the terms of the
agreement reached with the Union on May 9, 2001.
(c) Make the Union whole for all membership dues it has
failed to receive as a result of the failure to honor the Agree-
ment’s dues-checkoff provisions.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of compen-
sation due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Fullerton, California, copies of the attached notice
marked “Appendix,” in both English and Spanish.15 Copies of
the notice, on forms provided by the Regional Director for Re-
gion 21 after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since May 9,
2001.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT refuse to sign a collective-bargaining agree-
ment, the terms of which have been agreed to with Laborers
International Asbestos & Toxic Abatement, Local 882, Labor-
ers International Union of North America, AFL–CIO (the Un-
ion).
WE WILL NOT refuse to implement the terms of any collec-
tive-bargaining agreement agreed to with the Union.
WE WILL NOT refuse to process grievances filed by the Union
pursuant the terms of an agreement reached with the Union on
May 9, 2001.
WE WILL NOT in any like or similar manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL upon request of the Union, sign the collective-
bargaining agreement agreed to on May 9, 2001, and give it
retroactive effect to that date. In the event the Union does not
now request that we sign such agreement, WE WILL, upon re-
quest of the Union, bargain collectively with it and embody any
understanding reached in a signed agreement.
WE WILL make our employees whole for any losses suffered
because of our refusal to sign the collective-bargaining agree-
ment agreed to on May 9, 2001.
WE WILL make the Union whole for all membership dues it
has failed to receive as a result of our failure to honor the dues-
checkoff provisions of the collective-bargaining agreement
reached with the Union on May 9, 2001.
WE WILL, upon request of the Union, process grievances
filed by the Union on August 28, 2001, pursuant to the terms of
the collective-bargaining agreement reached with the Union on
May 9, 2001.

SUNGLASS PRODUCTS INC. D/B/A PERSONAL OPTICS