Printing Industries of Northern California

National Labor Relations Board - Board Decisions

Jun 20, 1973

204 N.L.R.B. 329 (N.L.R.B. 1973)

PRINTING INDUSTRIES OF NORTHERN CALIF. 329
Printing Industries of Northern California and Book-
binders and Bindery Workers Union of Northern
California , Local 3, Graphic Arts International
Union, AFL-CIO. Case 20-CA-7839
June 20, 1973
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND PENELLO
On March 23, 1973, Administrative Law Judge
James T. Rasbury issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
a brief in opposition to the General Counsel's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and orders
that the complaint be, and it hereby is, dismissed in
its entirety.
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined
the record and find no basis for reversing his findings
2 The General Counsel, citing Coletti Color Prints, Inc, 159 NLRB 1593,
contends that Respondent 's executive secretary , as an agent of Respondent,
bound Respondent to inclusion of the disputed language in the contract We
find , however, that , based upon the testimony of the Union's chief negotiator,
the Union was aware that the executive secretary did not have authority to
make changes in the proposed contract, but that such changes had to be
approved by Respondent' s negotiating committee
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY , Administrative Law Judge: This case
was tried at San Francisco, California, on January 18 and
19, 1973. The complaint was issued on November 20, 1972,
based on a charge filed on October 12, 1972, and served on
the Respondent on the same date. The Respondent is
charged with having violated Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended (herein the Act).
The issue to be resolved concerns the alleged refusal by the
Respondent to sign an agreed-upon contract with the
Charging Party, Bookbinders and Bindery Workers Union
of Northern California, Local 3, Graphic Arts International
Union, AFL-CIO (herein the Union or Charging Party).
Upon the entire record including my observation of the
demeanor of the witnesses and after due consideration of
the briefs received from the participating parties, I make the
following:
FINDINGS OF FACT
I JURISDICTION
The Printing Industries of Northern California (herein
referred to as PINC or Respondent) is an employer associa-
tion with offices in San Francisco, California, whose mem-
bers are engaged in printing and bindery operations. PINC
exists, in whole or in part, for the purpose of representing
its employer-members in collective bargaining and partici-
pating in the negotiation, execution, and administration of
collective-bargaining agreements on behalf of its employer-
members. It is alleged and the Respondent admits that dur-
ing the past 12 months the employer-members of Respon-
dent, in the course and conduct of their business operations,
have received gross revenues in excess of $500,000 and pur-
chased and received goods valued in excess of $50,000 di-
rectly from suppliers located outside the State of California.
On the basis of the alleged and admitted facts, I find that
the Respondent is engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Bookbinders and Bindery Workers Union of North-
ern California, Local 3, Graphic Arts International Union,
AFL-CIO, is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of the
Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Charging Party has represented the employees of the
various employer-members of the Respondent in an appro-
priate bargaining unit for a number of years. The Respon-
dent and the Union have negotiated written contracts for
the same number of years and they have generally been for
a 2-year period. For a good many years, the Union has
negotiated its contract with PINC and with the Associated
Printing Industries (API)-another employer association-
at the same time. The employer-members of the two associ-
ations are different, but they are represented at the negotia-
tions by a single spokesman, or chief negotiator, supported
by representatives from each association. A chief spokes-
man for the Union represented the employees from the
204 NLRB No. 67
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member companies of both association groups and was sup-
ported by various employee committee members. The re-
sulting contracts have always been identical except for: (1)
the title page; (2) the list of employers represented; (3) the
holidays (the number of holidays was the same, but there
were differences in the days designated in the two con-
tracts); and (4) the PINC contract carried language cover-
ing a special agreement relative to pressmen doing
papercutting in a shop that does not employ a bookbinder
full time which clause was apparently not applicable in the
API contract. Other than these minor differences, the con-
tracts were always the same and, as the union spokesman
testified, the same galley proofs were utilized in the prepara-
tion of the punted booklets containing the contract between
the Union and PINC, and the Union and API.
In the 1968 and the 1970 negotiations the chief spokes-
man, or negotiator, for the employer associations was Percy
Crane; in 1972, the negotiations in dispute, it was Lew
Libhart. Robert Bell, president of Local 3, participated in
the 1968 and the 1970 negotiations and was the chief negoti-
ator and spokesman for the Union in the 1972 negotiations.
Negotiations began February 7, 1972,1 between the par-
ties in an effort to agree on new terms and conditions to
replace the contracts scheduled to terminate February 27.
Some 17 negotiating sessions were held prior to reaching an
impasse 2 on May 22. At noon that day the Union went on
strike and began actively picketing all of the plants repre-
sented by PINC (also API, which as noted, supra, is not a
party to this proceeding).
B. The Events That Precipitated
the Current Dispute
The parties met at the call of a Federal mediator on May
23 and eventually on May 26 a memorandum of agreement
was signed by representatives from PINC and the Union.
(See Exh. A attached to Respondent's answer, or G.C. Exh.
2.)
The parties had presumably reached some sort of tenta-
tive oral agreement late in the day on May 26 3 when Lib-
hart, Schmidt, and Johnson, all employer representatives,
left the group to return to the PINC office and have the
agree-upon "changes" typed in the form of a memorandum
of agreement.
Both parties are in accord that the memorandum of
agreement was not intended to be the contract, but rather it
was to reflect the "changes" to be made in the former, or
most recently expired, contract. (See G.C. Exh. 3 for the
1970-72 PINC contract and G.C. Exh. 4 for the 1970-72
API contract.) Thus, before a complete contract could be
signed by the appropriate parties, it was necessary to incor-
porate the provisions of the memorandum of agreement
into the former contract.
After Libhart, Schmidt, and Johnson returned from the
PINC office to the Sutter Hotel where the negotiations were
taking place with typed copies of the memorandum of
agreement, copies were distributed and various groups en-
gaged in proofing."
Jim McClay, who is chairman of the labor policy commit-
tee for PINC, and Robert Bell were working together and
in Bell 's words:
I might point out that since it was rather a lengthy
document and the hour quite late, it was decided that
we would split the action into two categories-the ac-
tive reading of the document and the fitting in of these
parts into the respective parts of the contract would be
handled by myself and Mr. McClay across the table,
while other members of the committee were proofing,
for typographical or other obvious errors, the entire
document.
It was during this time, while working with McClay, that
Bell claims he pointed out, "That the inclusion of 11(b) from
the old contract was necessary in order to make mechanical-
ly sound the implementation of the overtime section." Ac-
cording to the Union's version,' Richard Hanford, a union
committeeman , joined Bell and McClay in the conversation
and pointed out that unless 11(b) was included it would be
necessary to renew negotiations concerning the shift limits.
(See sec . 6 of the 1970-72 contract, G.C. Exh. 3.)
According to Bell, at this point, "There was some general
discussion after which the end result was that I asked wheth-
er or not 11(b) would be carried forward, it was decided, or
it was expressed to me it would remain as it was. At that
point there was still some discussion going on the
employer's side of the table and Mr. Libhart said, `Let's get
on with it, let's get this thing tied up."'
McClay testified for the Respondent and stated that he
had no recollection of any discussion of 11(b) either during
the proofreading or during the absence of the three manage-
ment representatives when they were having the memoran-
dum of agreement typed. McClay stated that he
remembered that section 6 was mentioned, but he did not
recall that it was a heated discussion, nor was it raised in
connection with retaining 11(b) from the old contract. Mc-
Clay's testimony of hearing no discussion of 11(b) after the
memorandum of agreement had been prepared was con-
firmed by Mort Schmidt. Schmidt has been manager of
industrial relations for one of the employer-members for 35
years and attended all of the bargaining sessions as a mem-
ber of PINC's negotiating committee. Walter Kalasa, owner
of one of the member companies of PINC, who was presi-
dent of API at the time and also a member of the associa-
tions' bargaining team for the 1972 negotiations, testified in
response to Mr. Libhart's questions as follows:
Q. You were present on May 26, 1972 When an
agreement was reached between the parties?
A. I was.
Q. Would you describe what occurred after a verbal
agreement had been reached between the parties on
i Hereinafter, all dates shall be 1972 unless otherwise indicated.
2 The use of this legally evasive conclusory word seems appropriate, inas-
much as it went unchallenged during the testimony of union witness Bell.
3 General Counsel's and Respondent's witnesses do not agree on the hour,
but I do not regard the time as significant and certainly not critical to the
merits of this decision
Proofing or proofreading were terms used by various witnesses, but the
impression left with me was one of each side checking its bargaining session
notes or minutes to ascertain if the language contained in the memorandum
of agreement accurately reflected what it believed had been agreed to.
5 In a most inarticulate manner, Hirshberg, recording secretary of Local
3, corroborated Bell and Hanford
PRINTING INDUSTRIES OF NORTHERN CALIF.
May 26, 1972?
A. Well, that was the conclusion of the negotiations,
and after we had agreed, several of the committee
members left to rewrite and to type up the conditions
that we had agreed to. The balance of the committee
remained at the table, each one of them reviewing and
rereading, comparing to their notes the conditions of
their understanding of what was agreed to.
Q. Were you at the bargaining table the entire time
after an agreement had been reached and after we had
returned with the Memorandum of Agreement for the
proofreading?
A. I was there at all times.
Q. Were you sitting in close proximity to Mr. Mc-
Clay?
A. I was sitting next to Mr. McClay.
Q. The entire time?
A. Yes.
Q. During this time did you hear any discussion, or
were you involved in any discussion concerning the
insertion of 11(b) into the amended agreement?
A. No, we were not.
Regardless of what was said, or not said, about the neces-
sity of retaining section 11(b) of the 1970-72 contract in the
new contract, the memorandum of agreement was signed by
both parties on the evening of May 26 without any notation
that 11(b) was to be included in the new section 11 of the
1972-74 contract.
C. The Sequence of Events Which Followed
the Formal Negotiations
Bell testified that he met with Neil Johnson-the execu-
tive secretary of PINC, who had attended the negotiations,
but who had not been a spokesman for PINC-on June 19,
and "we made up a paste-up version of all the changes that
had been made, using a stripping method whereby un-
changed sections of the contract and the new sections that
were changed were ultimately put into a complete form. He
then turned that over to his typist to have typed."
When we reached areas that were not properly cov-
ered in the Memorandum of Agreement, stipulations
were made by both Mr. Johnson and myself as to the
final text that would appear. In other words, as we
pointed out in the Maternity Leave Section, since the
entire thrust of this particular section was not to pro-
vide merely language for leave , but to protect the sen-
iority of a person who was granted such leave by the
employer, that we had by omission completely left this
particular substantive out of it, in other words that
seniority would be protected. We provided the mecha-
nism but not the reason for it, we didn't identify it.
So, I pointed this out to Mr. Johnson, he agreed with
me, and we were then in a position of putting this into
the final agreement.
Now...
JUDGE Just let me ask this question. Do I understand
that all of these differences, whether they be minor or
of real substance , that occurs in the final contract as
being different from the Memorandum of Agreement,
you and Mr. Johnson agreed to and worked that out,
331
just the two of you?
THE WITNESS Correct. Subject, however, as I told him,
to my taking the completed document back and pre-
senting it to my negotiating committee and having their
okay, and then it would be properly signed or executed.
JUDGE I understand.
THE WITNESS I would assume that procedure-wise
that Mr. Johnson would possibly do something of a
similar nature.
The resulting document was then sent to Bell who re-
viewed it with his union committee members in mid-July
and returned the copy to Johnson with a cover letter dated
July 17, noting certain corrections which Bell and his com-
mittee felt should be made. (See G.C. Exh. 6 and 7.) The
cover letter and the notations on the draft contract indicate
that Bell and his committee felt the now-disputed section
11(b) language from the old contract should have been in-
cluded as a part of the new contract.
According to Bell , about 10 days later (July 27) two co-
pies of the PINC contract with the corrections that had been
suggested in his July 17 letter were received from Johnson.
(Two copies of the similarly corrected API contract were
also received at the same time.) It should be noted that these
contracts were not copies signed by PINC. It had apparent-
ly been the practice for the PINC office to do the typing,
or mechanical act of getting the final agreement prepared,
and the contract was then submitted to the Union for its
review and signature if satisfactory. Thereafter, the contract
would be returned to PINC for final review and signatures
of the PINC representatives and then the printed booklets
would be prepared.
Following receipt of the contracts at the union office, Bell
testified as follows:
Well, they were, uh, signed by myself and the recording
secretary, Ted Hirshberg, and returned to Neil
Johnson's office and he was to present them to the
employers who would be responsible for their signing.
Approximately 1 week or 10 days later, a copy of the API
contract was returned to the Union with appropriate signa-
tures, but the PINC contract has never been returned. Bell
contacted Neil Johnson to inquire concerning the PINC
contract and was advised that George McDonald, president
of PINC, "had been out of town and had just returned back
and had not had sufficient time to go over the contract, and
that he would get into it shortly."
Q. Did you talk to Mr. Johnson about the matter
again later on?
A. Yes, inasmuch as within a reasonable length of
time . Another week passed by and I still had not re-
ceived the PINC contract back. I again called Mr.
Johnson and asked him what the status of the contract
was. At that point he told me that since George Mc-
Donald had not been physically present at the negotia-
tions , he had given the document to Jim McClay, who
was present to check it over.
Q. Did you hear further from Mr. Johnson about the
PINC contract?
A. Still later in a conversation at a grievance pro-
ceeding with Mr. Johnson, I asked him why we had not
received the contract back and he informed me that it
was being held up because there was a dispute on the
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11(b) section. I expressed surprise, but he said that he
thought that he could clear it up.
To complete the sequence of events-other than one or
two tangential pieces of evidence that will be commented on
infra under the analysis section of this decision-it should
be noted that representatives of the Union and PINC met
shortly after the filing of the charge in this case in an at-
tempt to settle their respective differences relative to the
disputed section 11(b), but to no avail. PINC has had typed
and have had signed and delivered to the Union its version
of the agreed-upon contract, which needless to say does not
contain the disputed 11(b). (See G.C. Exh. 8.)
D. Positions of the Parties
General Counsel argues first that Respondent orally
agreed to carry over the disputed 11(b) language from the
old contract into the new agreement ; second , failure to
indicate in the memorandum of agreement that 11(b) was
to be deleted is evidence that it was to remain in the new
contract ; third , because the new API contract contains the
disputed language , there is a strong inference that the par-
ties agreed to continue the disputed language in the PINC
contract ; fourth, failure to call certain witnesses and failure
to produce the corrected version of the PINC contract that
was signed by Bell and Hirshberg , and presumably returned
to the offices of PINC warrants an inference that it was
signed by PINC respresentatives ; and fifth , Johnson was an
agent of PINC and his agreement to include section 11(b)
should be a binding commitment on Respondent.
The Respondent argues first that the memorandum of
agreement contains all of the mutually agreed-to changes
and clearly 11(b) from the former contract was to be deleted
in the new contract ; second , Respondent disavows and den-
ies any oral agreement to include the disputed 11(b) lan-
guage in the new contract ; third, no adverse inferences
should be drawn from the API contract , because it does not
reflect what was actually negotiated and was only signed on
the basis of misrepresentations ; and fourth, Johnson, while
admittedly an agent , had no authority to negotiate or make
changes not approved by the PINC negotiating committee.
Analysis
1. Was a contract agreed to on May 26?
At the outset, it should be clearly understood that the
question to be decided is not what was agreed to by the
parties. Rather, the question is: Was there at any time a
meeting of the minds, a mutuality of understanding, that
might legally be a contract which the Act requires be re-
duced to writing, and signed by the parties? 6 My answer to
6 Sec 8 (d) of the Act, in relevant part, reads as follows "For the purposes
of this section , to bargain collectively is the performance of the mutual
obligation of the employer and the representative of the employees to meet
at reasonable times and confer in good faith with respect to wages, hours,
and other terms and conditions of employment, or the negotiation of an
agreement or any question arising thereunder , and the execution of a written
contract incorporating any agreement reached if requested by either party
[Emphasis supplied ]" See H J Heinz Co v N L R B, 311 U S 514
(1941), where the Supreme Court clearly and unmistakably held that the Act
that question, based on all the evidence and testimony pre-
sented, is that there was not a meeting of the minds.
Respondent would have the Administrative Law Judge
decide that the memorandum of agreement is a written
agreement (to make certain changes in the former agree-
ment), unambiguous on its face and therefore not subject to
parole evidence that would alter its provisions, signed by
competent agents of the contracting parties and thus, be-
cause Respondent is willing to sign a contract incorporating
the changes provided for in the memorandum of agreement,
that there is no violation of Section 8(a)(5) and (1) of the Act
as alleged.
If I were not bound to follow Board and court precedent,
I would agree. However, such a simplistic resolution of this
dispute, in accordance with ordinary contract-law princi-
ples, indicates a misunderstanding of the nature of collec-
tive-bargaining contracts. (In this instance, the
memorandum of agreement.) The collective-bargaining
agreement is not a simple commercial contract to which the
usual technical rules of construction, including the parole
evidence rule, are applicable.
A collective bargaining agreement is not an ordinary
contract to which apply the principles of law governing
contracts. It must be construed liberally rather than
narrowly and technically, and it must read as a whole
and in the light of the law relating to it when made
In order to interpret a collective bargaining agree-
ment, it is necessary to consider the scope of other
related collective bargaining agreements as well as the
practice, usage, and custom pertaining to all such
agreements... .
The industrial common law-the practices of the
industry and the shop-is equally a part of the collec-
tive bargaining agreement, although not expressed in
it.,
This quotation would seem to make clear that the parole
evidence rule as applied to commercial contracts is unsuita-
ble of application to a collective-bargaining agreement. If
the true intent of the parties is to remain our concern it
would seem important that we not be required to close our
eyes to all but the uncertain writing itself.'
In giving careful consideration to the testimony of all
witnesses regarding conversations that may have occurred
on the evening of May 26, while the memorandum of agree-
ment was being proofed, I am convinced there were conver-
sations about section 6 of the expired contract and probably
in some manner (at least in the minds of union representa-
tives) in connection with a consideration of 11(b). However,
I am equally convinced that the PINC representatives made
no commitment to include 11(b) as a part of the new con-
tract, or the memorandum of agreement. This conclusion is
supported by the testimony not only of the Respondent's
witnesses , but also by General Counsel 's witness , Melanie
Pierce, a union committee woman. Under questioning by
the General Counsel, as well as the Administrative Law
Judge in this case, Pierce was not able to positively state that
requires the parties to execute a written contract upon agreement
48 Am Jur. 2nd., Labor and Labor Relations, § 1208.
s See Communications Workers of America v Pacific Northwest Bell Tele-
phone Company, 337 F 2d 455 (C A 9, 1964)
PRINTING INDUSTRIES OF NORTHERN CALIF. 333
a commitment to include 11(b) had been made by the Re-
spondent , but only testified that she felt it was implied from
conduct . A finding that would compel a contracting party
to include language in a contract , which said party vigor-
ously disputes was ever consented to, is too serious a conse-
quence to be based on inference from conduct. If the parties
had agreed to include I1(b) it would have been a simple
matter to make a short notation to that effect on the agree-
ment ; i.e., "Include 11(b) from old contract here ." I con-
clude and find that Respondent made no commitment at
any time on the evening of May 26 to include the language
of section 11(b) from the old contract as a part of the new
1972-74 contract.
Moreover this finding and conclusion is further support-
ed by the early events following May 26. For example, if
11(b) had been the issue on the evening of May 26 that
General Counsel' s witnesses now contend, why was the lan-
guage again left out of the pasteup draft put together by Bell
and Johnson on June 19? Again, why was 11(b) not includ-
ed in the memorandum of agreement that Bell negotiated
with Mort Schmidt in the Cardoza contract negotiated on
June 12? (See Resp . Exh. 2, p. 3.) The fact that the final
Cardoza contract, as well as the API contract, included
11(b) has almost insignificant value . In the first place, there
was a logical and reasonable explanation as to why and how
the disputed language was included as a part of those final
contracts , which I believe and accept; secondly, and more
importantly, parties are always free to agree or disagree on
any terms of a contract they may care to negotiate . The full
story of what happened in these two instances has not been
litigated and inferences therefrom drastically affecting
other parties ' interests should not be lightly drawn.
2. The events after the formal negotiations
General Counsel contends that Respondent is bound by
the conduct of its agent , Neil Johnson , who apparently
agreed to go along with the Union's request to include 11(b)
in the new contract . Thus Respondent's agent having
agreed , Respondent is now guilty of an 8 (a)(5) violation of
the Act for its failure to sign an agreed -upon contract. This
argument is grounded in legally sound agency principles.
In the ordinary case , the principal is bound by all that
his general agent does within the apparent scope of the
business for which he is employed, and once a third
person ascertains the character of the agency to be
general , he is not obliged to inquire whether there are
secret limits or private instructions , unless he has
knowledge of such facts which should put him on such
inquiry . In the absence of notice to the contrary, a
person dealing with an admitted agent may presume
that he is a general agent acting within the scope of his
authority , and the burden is on the principal to show
notice of any limitation upon the agent 's authority. At
the same time , third persons dealing with a general
agent are not acquitted of all duty to inquire and ascer-
tain the character and extent of his agency, since a
general agent has no implied authority to bind his prin-
cipal by acts unusual to agencies of like character, or
beyond the usual scope of such agencies ; and when he
attempts to bind his principal by extraordinary acts,
the one dealing with him is put upon notice and re-
quired to ascertain upon some authoritative source
whether the agent had the power to bind his principal
thereby. [Footnotes omitted.]'
However , as the quoted paragraph indicates , the general
principles of agency must be tempered by the conduct oc-
curring between the parties and the knowledge reasonably
flowing therefrom which would place a third party on notice
of the agent's limited authority. Johnson was the chief ad-
ministrator of the day-to-day activities of Respondent, but
he played a minor role in the contract negotiations occur-
ring between the principal parties. He was not the chief
negotiator in these negotiations and there is nothing in the
record to indicate that he has ever served as a chief spokes-
man for the Respondent. While there is evidence in the
record indicating that Johnson attended most, if not all, of
the negotiating sessions , there is nothing to indicate that he
played a policymaking role. James McClay, who was chair-
man of the labor relations policy committee for PINC, sat
to the immediate right of Lew Libhart, and Mort Schmidt,
the experienced industrial relations director for one of the
member companies of PINC, sat next to Libhart on the left.
Johnson sat at the extreme end of the management side of
the table . He was frequently absent from the negotiating
room and did not participate in the final "proofing" of the
memorandum of agreement on the evening of May 26.
Johnson 's role in the contract negotiations was ministerial,
or clerical, not policymaking. In my opinion any commit-
ment by Johnson which was in addition to the language
contained in the memorandum of agreement was outside
the scope of his authority and subject to ratification by the
Respondent association, or someone in a policymaking ca-
pacity of PINC, insofar as the contract negotiations were
concerned.
Moreover , Johnson 's ministerial role was disclosed to the
Union 's chief negotiator, Bell, as well as the Union's re-
cording secretary, Hirshberg. The testimony by Bell which
is set forth in section III, C , supra immediately following the
caption herein "Sequence of Events Following Formal Neg-
otiations," clearly indicates that the clerical act of putting
the final contract together was subject to the approval and
signatures of the respective principals. On the occasion of
Bell's first inquiry as to why the finalized version of the
PINC contract had not been returned, Bell was informed by
Johnson that it had not been properly proofread.10 On the
next inquiry, Johnson informed Bell that because McDon-
ald had not been present at the negotiations, he (McDon-
ald) had asked McClay "to check it over ." Still later
Johnson informed Bell, "that it was being held up because
there was a dispute on the 11(b) section." Hirshberg's affi-
davit (G.C. Exh. 10), given to the Board agent in October,
indicates that Hirshberg was informed by Johnson that Mc-
Clay was giving him (Johnson) trouble about including
11(b) in the draft contract . It seems clear from all the evi-
dence that the responsible union representatives knew, or
had reasonable cause to believe, that Johnson did not have
authority, on his own, to include substantive language
9 See 48 Am Jur 2nd, General Agent p 484, §80.
10 According to the testimony there had been a delay because the president
of PINC, George McDonald , had been out of town
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changes in the finalized contract that had not been included
in the memorandum of agreement and I so find.
General Counsel argues that the typed PINC contract
which was presumably sent to the Union by Johnson and
which included the disputed 11(b) language should be re-
garded as an offer that was accepted by the Union when
signed and returned to Respondent, thereby creating a valid
and binding contract. As indicated above the testimony of
Bell nullifies such an argument. The Union fully expected
the Respondent to review the finished document as signed
by the union representatives and then sign and return it to
the Union before it was printed in the form of booklets.
The General Counsel has the burden of proving the alle-
gations of the complaint by a preponderance of the evi-
dence. This he has failed to do. As indicated hereinbefore,
I am of the opinion that the conduct of the parties was such
on the evening of May 26 that something more remained to
be negotiated before there was a "meeting of the minds." On
the basis of all the evidence there has never been a "meeting
of the minds" and the Respondent is not guilty of refusing
to sign a contract."
CONCLUSIONS OF LAW
1. The Respondent association is comprised of employ-
er-members engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Bookbinders and Bindery Workers Union of Califor-
nia, Local 3, Graphic Arts International Union, AFL-CIO,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. Employees in the bindery or related departments em-
ployed by the employer-members of Respondent, excluding
office clericals, guards and supervisors, constitute a unit
appropriate for collective bargaining within the meaning of
Section 9(b) of the Act and the Union is the exclusive repre-
sentative of said employees.
4. The Respondent has not engaged in the unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:')
ORDER
11 Cf Local 295, Intl Bro of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, 197 NLRB 26, wherein the union was found guilty of an
8(b)(3) violation for insisting on something more than the "Memorandum of
Agreement "
It is ordered that the complaint issued herein against the
Respondent, Printing Industries of Northern California, be
and it is hereby dismissed.
12 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes