Rogers Walla Walla, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1970

186 N.L.R.B. 25 (N.L.R.B. 1970)

ROGERS WALLA WALLA, INC. 25
Rogers Walla Walla, Inc. and Fruit and Vegetable
Packers and Warehousemen Local No. 760 , Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Ind. Case
19-CA-4048
October 21, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On April 9, 1970, Trial Examiner Martin S. Bennett
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in
certain unfair labor practices and recommending that
the complaint be dismissed in its entirety. Thereafter,
the General Counsel and the Charging Party filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's
Decision, the exceptions, the briefs, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint be, and it hereby is, dismissed in its
entirety.
1 N.L.R.B. v. Stepp's Friendly Food, Inc., 338 F.2d 883 (C.A. 9), cited by
the Trial Examiner in support of his conclusions , does not appear apposite,
and we do not rely on it.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Trial Examiner: This matter was
heard at Seattle , Washington on January 27, 28, and 29,
1 The record discloses that the time lag between the filing of the charges
and issuance of the complaint stems from the refusal of the Regional
Office to issue a complaint and the subsequent reversal of that decision by
the General Counsel.
1970. The complaint, issued August 22, 1969, and based
upon charges filed June 6 and August 5, 1968,1 by Fruit and
Vegetable Packers and Warehousemen Local No. 760,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Ind., herein called
the Union, alleges that Respondent, Rogers Walla Walla,
Inc., had engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act. Able briefs
have been submitted by the parties and a joint motion to
correct the transcript has merit and is hereby granted.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Rogers Walla Walla, Inc. is an Oregon corporation
engaged in the operation of food processing plants in the
States of Oregon and Washington one of which , at Warden,
Washington , was directly involved herein . Respondent
enjoys annual sales of goods and services in excess of
$500,000 and purchases and causes goods and materials
valued in excess of $50 ,000 to be transported directly across
state lines . I find that the operations of Respondent affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Fruit and Vegetable Packers and Warehousemen Local
No. 760, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Independ-
ent, is a labor organization within the meaning of Section
2(5) of the Act.2
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; The Issue
Prior to the time material herein, the potato processing
plant in Warden, Washington, was owned and operated by
another employer, Country Gardens, Inc. The employees
were covered by a contract with a sister local of the Union,
Local 148. Whereas the Union primarily represented
employees in the food processing industry, representation
was turned over to it by means of a secret ballot conducted
among the membership of both locals. Country Gardens
was notified thereof on December 1, 1966.
This was accepted by Country Gardens and Local 760
thereafter administered the contract. This was a 3-year
contract with an expiration date of May 1, 1967, with year-
to-year renewal absent 60 days written notice that it be
"amended or terminated prior to May 1, 1967...."
Prior to this, in November of 1966, Respondent had
acquired a 35 percent interest in Country Gardens, Inc.,
with an option to purchase a majority interest. On April 4,
1967, an agreement to merge Country Gardens and
Respondent was executed, this to become effective after
2 As was Local 148 of the same parent organization which represented
the employees involved herein and, after a secret ballot , ceded said status
to the Union in November of 1966. This presents no issue herein.
186 NLRB No. 6
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain events took place. This, coincidentally, did become
effective on May 1, 1967. It provided that the separate
existence of Country Gardens should cease and that shares
of Country Gardens stock should be exchanged for newly
augmented common stock of Respondent as provided
therein. The document is silent as to any successor
obligation or contract continuation clauses. There is no
evidence of any oral understanding in this area between the
two companies and it may be noted that the terminated
contract contains no successor clauses.
The Union first learned of the merger by letter from
Respondent dated May 4, 1967. Therein, Respondent asked
the Union to contact it about the status of any pending
labor negotiations. I find that it was the intent of
Respondent to recognize the existing collective-bargaining
agent as such and the record amply so demonstrates.
Turning back to the pending labor negotiations, the
record demonstrates the following. As provided in the
contract, the Union advised Country Gardens by letter
received February 28, 1967, of its desire to open the
contract and stated that proposals would be forthcoming.
Thereafter Country Gardens orally advised the Union that
it was drawing up a proposal of its own. No negotiations
were held, however, presumably due to the pending merger.
As stated, the sale became effective May I and the Union
was advised thereof on May 4.
The instant case stems from the fact that the terminated
contract with Country Gardens contains a clause that ".. .
when this contract is opened, [by 60 days timely notice] any
change in the wage scale shall be retroactive to the opening
date."
The General Counsel contends that by word and deed
thereafter, this Respondent agreed to be bound to the
terminated contract between the Union and Country
Gardens and, specifically, to the above-quoted language.
He contends further that a subsequently negotiated wage
increase was not applied retroactive to May 1, 1967. This is
disputed on various grounds by Respondent.
It is to be noted that after extensive negotiations the
Union struck Respondent on March 25, 1968, and that in
December of 1968 Respondent sold the business to another,
and on this record unrelated, entity. The sole remedy
sought herein by the General Counsel is the payment by
Respondent of the allegedly negotiated wage increase for
the period from May 1, 1967, through March 25, 1968.
B. The Authority of the Union Representatives
There were 23 negotiating sessions between the parties.
James Farrington, then secretary-treasurer, attended only
13 of these and one of his six assistants, Business Agent Ray
Dietz, attended and participated in all 23. Dietz is assigned
to five plants in the area, including that of Respondent. The
other business agents are assigned to the remainder of a
total of 40-50 plants handled by Farrington at that time.
At this hearing, Farrington testified that he was chief
negotiator for the Union and that Dietz was not authorized
to speak for Local 760 except "under certain circum-
stances." He contended further that he had so advised
William Lawr, assistant operations manager for Respon-
dent and its negotiator.
Lawr testified that no such representation had been made
to him and, aside from Farrington's absence at 10 of the
meetings , there is ample evidence that Dietz held himself
out as endowed with authority to bargain. Indeed, in a
communication to a board agent, Famngton referred to
Dietz as one who "at my direction," met with this employer
on occasion.
A consideration of the testimony of Dietz amply discloses
that he commented at meetings on the topic of retroactivity
of wage rates, and that he adjusted grievances at the plant.
He testified that in speaking of retroactivity he was
"restating the position" of the Union, namely, "Mr.
Farrington's position." He conceded that he never said this
was Farrington's position. As for meetings when Farring-
ton was not present, Farrington testified that these were
merely "discussions" but not negotiations. He did not so
advise Respondent.
Dietz conceded that on one occasion he questioned the
bargaining authority of Lawr. And, in his affidavit to the
General Counsel, he deposed that "I have taken part in the
negotiations" between Respondent and the Union. Farring-
ton also admitted that he was not disavowing any
statements made by Dietz at these meetings.
Farrington has drawn attention to and relies upon a letter
sent by him to Respondent on May 8, 1967, wherein he
stated:
In order to avoid any misunderstanding, you should
also be advised, as I previously did with Country
Gardens, Inc., that Local 760 does not authorize any
other person or group to negotiate or speak for it and no
other person or group has that authority unless you are
specifically directed to another person by me at some
future date.
This was in response to a letter sent him on May 4 by
Lawr asking that Farrington advise Respondent as to the
status of all unsettled negotiations . The record demon-
strates, however, as will appear below that the Union had
previously, on November 1, 1966, ceded its bargaining
rights to another Teamster organization, Western Potato
Processing Industry Committee, herein the Committee; this
envisaged bargaining on an area basis with the predecessor
of Respondent, Country Gardens and other concerns.
This rapidly came to the fore in the negotiations as
Respondent became confronted with conflicting demands
for bargaining from the Union and the Committee. Indeed,
Farrington later admitted herein that when Local 760 was
made aware of this activity, it took steps "to advise the
Employer that there was improper activity . . . and Local
760 had not authorized such activity." I find that
Farrington's letter of May 8 was directed to the intraunion
recognition dispute and not to the status of Dietz in the
negotiations.
The evidence strongly preponderates that the acts of both
Farrington and Dietz are binding upon the Union and,
more specifically, I find that Farrington both authorized
and ratified the participation of Dietz and his actions at
these meetings . See Local 168 Teamsters (Mid-County
Buick, Inc), 156 NLRB 67; Sheet Metal Workers Union
Local No. 65, AFL-CIO (Inland Steel Products Co.), 120
NLRB 1678; and Operating Engineers Local 3, 123 NLRB
922, 929.
ROGERS WALLA WALLA, INC. 27
C. Alleged Compliance with the Contract
The General Counsel and the Union stress that despite
the change of ownership and the termination of the
contract on May 1, 1967,3 Respondent, by its acts and
conduct in continuing certain of the prior contractual
commitments , thereby assumed and agreed to be bound to
the contract as such .4 The following factors are urged:
(1) Respondent admittedly continued to deduct and
remit dues to the Union under the union shop clause in the
contract, pursuant to duly authorized cards.
(2) Respondent continued to make health and welfare
payments to the Washington Teamsters Welfare Trust as
provided in the contract .5
(3) In 1967, a question arose as to when employees would
receive vacation pay. Country Gardens, in the past, had
issued the checks at the time the employee left on vacation.
Respondent, in turn, had a company policy of doing so at
the time it was due, namely, while the employee was on
vacation. This was raised by the employees with the Union
and on June 13, 1967, Respondent notified Business Agent
Dietz that the former practice would be followed in 1967,
but that Respondent's policy would be followed thereafter.6
(4) When vacations were given in 1968, the basis was the
hours worked formula set forth in the expired contract.
(5) In discussing grievances with Dietz and Farrington,
Respondent would on occasion cite the former contract.
(6) The expired contract provides for a 5-cent differential
on the second and a 10-cent differential on the third shift.
Respondent continued this policy after the merger.
(7) On July 28, 1967, Lawr wrote to Farrington and
complained that Farrington, Dietz, and another had
entered the plant on June 26, created a disturbance, and
interfered with the work of employees. He pointed out that
Dietz had engaged in similar conduct on July 25. He
reminded Farrington that the latter had previously assured
him that employees at work would not be disturbed. Lawr
then referred to Article IX, Section 7 "of our labor
agreement ," the latter providing that the union representa-
tives were to be admitted if the company was contacted and
a convenient time agreed upon. He then stated that all
arrangements for entries to the plant were to be made
between 8 a.m. and 4 p.m.
Respondent, in turn, points to a number of factors.
(1) The prior contract was duly terminated and there was
no agreement that it be adopted or followed between
Respondent and the Union or between Respondent and
Country Gardens.
(2) In many respects, the terms of the expired contract
were not followed.? For example, the expired contract had
eight different classifications and four different wage rates;
the latter, as of May 1, 1967, were $1.54, $1.84, $1.99, and
$2.09.
In November of 1967, the Union asked Respondent for
3 Respondent contends that the contract was terminated on April 30.
The Union at one point contended that it was March 2, 1967. On all dates,
the conclusions hereinafter would be identical.
4 As previously noted , the record is entirely silent as to any express
commitment, oral or written , to be bound.
5 It may be noted that Lawr uncontrovertedly testified he was advised
by a named representative of the Board , after the merger, that it was not
desirable to change existing conditions of employment.
6 However , as I read the former contract , the section on vacations is
the existing classification and wage scales . This in itself
reflects knowledge of departure from the previous scales.
Respondent duly advised the Union, and this is undisputed,
of its existing structure. There were more classifications and
12 rather than 4 different hourly rates, ranging from $1.54
to $2.59 per hour.
(3) Similarly, Lawr uncontrovertedly testified that 25 to
30 percent of the employees received different wage rates
than those provided in the expired contract.
(4) In September or October of 1967, Respondent
removed the foreladies from the company medical
insurance program and advised them, if they so desired, to
join the Union in order to obtain this coverage .8
(5) There is evidence that the Union disputed the
application of the former contract, urging that past practice
controlled. Thus, it disputed Respondent's right to assign
work pursuant to the language of the contract.
(6) The former contract provided that Respondent would
be "the sole judge as to the competency of the employees."
The Union in turn, and after the expiration of the former
contract, contended that it had never allowed this.
(7) The contract provided that grievances could be
handled by the shop committee or the business agent. The
Union, in turn, contended that it did not tolerate the
existence of shop committees in any plant where it had
achieved representation.
To sum up, the former contract was duly terminated and
there was no agreement express or implied to follow it
thereafter. Respondent was advised by a named Board
agent that it was unwise to disturb existing conditions of
employment and followed many of them. Both parties,
when it was to their interest, either advanced or rejected the
language of the contract.
This is not a situation of a successor employer refusing to
recognize an established bargaining representative. It is
rather an issue of whether a duly terminated contract, on
this record, carries over in toto. I find that it did not .9
D. The Course of Bargaining and the Alleged
Agreement on Retroactivity
Shortly after the effective date of the merger, Secretary-
Treasurer Farrington and Business Agent Dietz, together
with other union representatives, met with Lawr. According
to Farrington, the Union covered some of the areas in
which it was desirous of making changes. Lawr at this time
refused to commence negotiations because of Respondent's
doubt as to who was the bargaining agent. This was a
reference to a wire received by Respondent on the previous
day from the Committee claiming bargaining rights under
the previous transfer of authority from Local 760, described
above.
According to Lawr, he informed Farrington that he had
discussed this with a named Board attorney who had
silent as to when vacation pay is to be disbursed.
7 As Respondent puts it, both parties followed the language of the
contract when it was to their respective advantage.
8 This is based upon the uncontroverted testimony of Lawr. It is not
clear just which language of the former contract, if any, was applicable.
9 Even in John Wiley and Sons, Inc. v. Livingston, 376 U.S. 543, it was
held only that the arbitration clause of an existing contract survived a
merger. A fortiori, if there is no existing contract, there is nothing to be
bound to.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advised him not to enter into negotiations with a party
when two parties were claiming recognition. That two labor
organizations were claiming recognition at that moment is
readily apparent. Lawr testified further that no union
representative contended that Respondent was bound by
the former contract.
Farrington testified also that he protested the delay and
Lawr replied that the employees had nothing to be
concerned about because wage rates would be retroactive
to May 1, 1967. Business Representative Dietz also testified
that he recalled a meeting during May when Lawr stated
that the Union had nothing to worry about because they
were "guaranteed retroactivity under the old contract."
Lawr flatly denied making this statement or anything like it
and also testified that the subject of retroactivity was not
raised until a meeting much later on February 15, 1968.
Lawr was a precise and meticulous witness who attended all
meetings and kept notes of all, as was not the case with
Farrington. Dietz was a vague witness who manifestly was
attempting to bolster his side of the case. In many areas, the
recollection of Lawr impressed me as the superior and I
credit him here as elsewhere.
On May 26, Farrington advised Respondent, in effect,
that the Committee was not duly authorized to act in this
area. On May 29, Respondent advised its employees that it
could not enter into negotiations until there was legal
clarification of the bargaining agent. While the General
Counsel has directed attention to Respondent's reference to
"renewal of the labor agreement," I see nothing here to
support his contention, treated above, that there had been
an adoption by act and deed of the former contract.
On June 28, 1967, the Union filed a representation
petition covering the Warden plant, admittedly for the
purpose of putting to rest the representation issue. A
consent election was conducted, the Union won, and it was
certified on October 19, 1967.10
Turning to the first negotiating session on November 1,
1967,11 the Union, according to Lawr, submitted its 13-
page standard form contract as a basis for negotiations I
note initially that this was substantially more than the
eight-page contract with Country Gardens. This refutes the
position of the General Counsel that the Country Gardens
contract was utilized as a basis for bargaining
According to Farrington, at this and subsequent
meetings , the Union sought Respondent's position on
wages, but Respondent sought to defer discussion of cost
items pending resolution of noncost items. Farrington
testified that this contract was presented as an "amendment
. . . to the existing labor agreement." I do not accept this
because, on this record, with the former contract having
been terminated, this was manifestly a new and substantial-
ly augmented contract proposal.
Lawr testified, and he is fully supported by his notes, that
the union proposal was reviewed including its provisions
for union security, overtime, and seniority. There was no
10 A prior petition had been filed by it in January 1967 for two plants,
the Warden plant and another then operated by Country Gardens at
Pasco, Washington Late in January, Joint Council of Teamsters No 28 in
Seattle directed Local 760 to cease interfering with the organizational
activities of its sister local, Local 839 at Pasco On June 30, 1967, the
Union withdrew this earlier petition covenng the two plants
11 Not all aspects of these meetings are treated fully, as those set forth
discussion of retroactivity as such and there was no claim
that Respondent was bound in any manner to the old
contract. The only possible indication of retroactivity was
the proposed effective date of May 1, 1967.
Farrington testified only that Respondent's position at all
times was that a wage increase was to be effective upon date
of reaching a contract, contrary to the union claim that
May 1, 1967, was established by "the existing" contract.
The next meeting on November 15, 1967, was attended
by both Farrington and Dietz. As Lawr uncontrovertedly
testified, they discussed the composition of the bargaining
unit, union security, and grievance procedure. Respondent
came forward with a nine-page proposal and both this and
the union proposal were discussed. Lawr orally proposed
that the company proposal with its various economic
features be effective on December 1, 1967. The topic of
retroactivity was not discussed and no union representative
contended that Respondent was committed thereto.
Farrington and Dietz attended the November 29
meeting. According to Lawr, the Union sought a wage offer
and he advised that Respondent would submit a wage
proposal when agreement was reached on other general
contract language. Respondent's proposed new grievance
procedure was also discussed. There was no discussion of
retroactivity and the Union did not claim that Respondent
was bound by the former contract.
The December 13, 1967, meeting was attended only by
Dietz.12 Dietz, according to Lawr, was the chief negotiator
on this occasion. He described a contract that the Union
had recently reached with another employer and reviewed
some of the features therein. There was no discussion of
retroactivity and no claim was made that Respondent was
bound by the former contract with Country Gardens.
The January 11, 1968, meeting was attended by both
Farrington and Dietz. They discussed the composition of
the unit, union security and grievance procedure. Lawr
listed the areas in which he believed there was agreement,
but was advised otherwise by the union representatives.
There was no discussion of retroactivity and no contention
was made by the Union that Respondent was bound to the
expired contract with Country Gardens.
The next meeting was held on February 7, 1968, and this
was the first of five successive meetings which Farrington
did not attend. Dietz did not state that he could not bind
the Union because of Farrington's absence at any of these
meetings. The parties did discuss contract language agreed
to by another employer, Dietz stating that the Union had
modified its original proposal and now advocated that
contract, except for wages and several other areas. Lawr
agreed to make a new proposal to the Umon, except for
wages. There was no discussion of retroactivity and there
was no contention that Respondent was bound by the
expired contract with Country Gardens.
The parties met again on February 15. Dietz reviewed a
new proposal brought to the meeting by Respondent. He
below, in my view, dispose of the case Similarly, and for the same reason, I
deem it unnecessary hereinafter to treat with all of Respondent's
contentions
12 All meetings were attended by other union officials , although with
rare exception later in the day, Farrington and Dietz were the only
spokesmen
ROGERS WALLA WALLA, INC.
asked that Respondent submit a wage proposal and Lawr
agreed to do so at the next meeting with specific effective
dates. This was the first meeting at which retroactivity was
discussed. Lawr said that he would do so, except that if
Respondent did offer retroactivity, it might not include an
increase effective upon arrival at agreement.
Retroactivity was discussed at the next meeting on
February 21, 1968. Lawr brought a three-step wage
proposal with rates effective (1) on the date of agreement
(2) December 1, 1968, and (3) December 1, 1969. Dietz
reviewed this and made a counteroffer that the first step be
effective May 1, 1967. Lawr told Dietz that it was
Respondent's position that "retroactivity would be subject
to discussion." Dietz adhered to the May 1, 1967, date and
stated that Respondent would be in a better position if it
submitted a firm offer on retroactivity. Lawr reviewed
Respondent's offer and stated that Respondent realized
that it had "an obligation on retroactivity." Lawr was of the
belief that Respondent was bargaining on this topic. Dietz
never stated that this topic was foreclosed because of the
language in the prior contract.
Lawr contended that when he referred to retroactivity he
had in mind that the employees of Respondent at the Pasco
plant were receiving higher wage rates than the employees
at the plant at Warden and that increases had gone into
effect at Pasco on June 1, 1967. Respondent had in mind
that a retroactive settlement might serve to erase these
differences.
On February 29, the parties met again. Dietz introduced
the topic of retroactivity. It may be noted that at all
meetings where the topic was raised, according to Lawr, it
was raised by the Union. Dietz asked for Respondent's
position on retroactivity and Lawr responded that Respon-
dent would leave the topic "open for discussion . . . [but
that] we are opposed to retroactivity . . ." Lawr explained
that his opposition was based upon his belief that
settlement on a retroactive basis promoted delays in
settlement and Dietz responded that the Union had never
signed an agreement without a provision for retroactive
pay.13 The parties did discuss other contract clauses.
On March 7, the parties met under the auspices of a
Federal mediator. As in the past, Dietz did not contend that
he was not authorized to bind the Union in the absence of
Farrington. The topic of retroactivity was not raised on this
occasion.
On March 21, the parties met again with the Federal
mediator and Farrington reappeared on the scene. In
addition, representatives of Local 839 at Pasco, where
negotiations were also pending, attended. The mediator,
after conferring with the Union, advised Lawr that the
Union considered retroactivity as one of five critical issues;
this was not predicated upon foreclosure because of
language in the expired contract with Country Gardens and
that claim was not made during the meeting.
The mediator asked Lawr, according to the latter, what
Respondent would offer in this area, namely, "how much
and how far back." Lawr responded and outlined the
general position of Respondent concerning the provisions
of the contract and added that "wages could be negotiated
29
back to the Country Gardens [contract expiration] date at a
lesser rate than that proposed now.... " At a later stage of
the meeting, Lawr flatly told the Union that "if we reached
agreement on a basic wage schedule . . . we could work out
agreement on retroactivity." It may be noted that the Pasco
situation did not involve retroactivity because Local 839 at
Pasco had abandoned retroactivity during the negotiations
in favor of a larger wage increase, contrary to a prior
position it had taken.
The next meeting was a joint one on March 25 and
attended by Farrington, Dietz, and Business Agent Sarver
of Local 839. Respondent took the same position as before,
contending that if an agreement could be reached on the
other provisions of a contract agreement could be reached
on retroactivity. Respondent was aware that a strike was
imminent and hoped that a settlement might avoid it. The
question of wage rates and other clauses was still open and
unresolved on this date. Indeed, at this meeting, Dietz did
ask what Respondent's position was on wages. At the close
of the meeting, Farrington announced that the Union was
reverting to its original proposal of November 1, 1967, and
that the Union intended to force on Respondent "the most
undesirable contract provisions of any within the industry."
No contention was made at this meeting that the subject of
retroactivity was foreclosed by the expired contract with
Country Gardens. Both the Warden and Pasco plants were
struck by the Union later that day and the strike was still
current at Warden when Respondent sold the Warden
plant in December of 1968.
On April 8, 1968, the parties held a joint meeting for both
plants, again under the auspices of a Federal mediator, and
Farrington was absent on this occasion as well as at the
following meeting on April 10. It is noteworthy that in
making arrangements for meetings, Farrington advised the
mediator that if he was not available the mediator should
contact Dietz. At the meeting, Dietz reaffirmed that the
Union was reverting to its original contract proposal. The
mediator advised Respondent that the Union had raised
the possibility of using the expired contract with Country
Gardens as a basis for further talks, but Lawr declined. This
was the first reference in the negotiations to that contract.
The topic of retroactivity was not raised.
Another joint meeting was held on April 10. Present with
Dietz and representatives of Local 839 at Pasco was
International Representative Bill Williams of the Teamsters
International Union and both he and Dietz spoke in behalf
of Local 760. Williams reviewed the status of Respondent's
proposal as to both Warden and Pasco. The subject of
retroactivity was not raised and no claim was made that the
question of retroactivity was foreclosed by the expired
contract with Country Gardens.
The next meeting was held by a Federal mediator on
April 12 with Farrington, Dietz, representatives of Local
839, and Williams present. There was much discussion of
proposed contract language, but retroactivity as such was
not discussed.
On May 16, Respondent wrote to Farrington and advised
that because of business needs, it was contemplating
disposing of its raw potato stocks at Warden. This was
13 This I view as a contention predicated upon union practices rather
than on the language in the expired contract with Country Gardens.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
predicated upon the fact that both plants at Warden and
Pasco had been closed since the inception of the strike on
March 25 and Respondent needed funds to protect its
financial position.
On May 31, Farrington, Dietz, and representatives of
Local 839 met with Lawr in a cafe in Warden. Shortly
thereafter, four local citizens including the mayor, the
managing editor of the local newspaper, and the bank
manager appeared on the scene. Lawr reviewed the
company proposal of March 21, 1968. Farrington replied
with a series of questions about Respondent's potato stocks
and Lawr responded. There was discussion of the
scheduling of previous meetings. There was no discussion
of retroactivity or foreclosure of discussion thereon because
of the expired contract with Country Gardens.
The next meeting was held on June 5 and was attended
by Farrington and Dietz for the Union; Sarver for Local
839; P. Andrade and B. Grams for the Western Conference
of Teamsters; and International Organizer B. Williams of
the International. This meeting, according to Lawr, was
arranged by Grams who proceeded to review the differ-
ences between the parties. Grami said that the Union was
seeking retroactivity from the expiration of the Country
Gardens contract to the date of the strike [March 25]. He
said nothing about the problem being covered by the
former contract. The meeting ended on the note that the
Union would supply a copy of a contract arrived at with
another employer.
On June 13, the parties met again. Present were
Farrington, Dietz, and representatives of Local 839.
Respresentative Sarver of Local 839 asked if there would be
retroactivity and Lawr replied in the negative. Dietz in
behalf of the Union asked if this was truly Respondent's
position and Lawr replied that Respondent had no
intention of changing this position. Dietz asked if this was a
final position and Lawr responded that Respondent
believed that there was no possibility for a change, because
the parties did not know "what the exact positions will be in
the final agreement" Lawr added that Respondent was "no
longer willing to consider retroactivity." The Union's
representatives did not advance any obligation of Respon-
dent predicated upon the expired Country Gardens
contract.
At this meeting, Respondent did submit a handwritten
proposal to the Union which was silent as to retroactivity
and proposed an effective date as of the date of agreement.
This offer was contingent upon acceptance in toto by the
Union.
The parties met again on June 25 with Farrington, Dietz,
and Sarver in behalf of Local 839. They discussed the
qualification of employees for various benefits, but
retroactivity was not discussed and no proposal was
predicated upon the expired Country Gardens contract.
On July 12, Lawr met with representatives of Local 839
and reached an agreement for the struck Pasco plant. It was
agreed that Lawr would prepare the final document and
present this to representatives of Local 839 on July 13. This
14 The contract with Local 839 at Pasco and the proposal to the Union
bore an initial wage scale effective July 15, 1968
is No issue is raised herein as to the unit description
16 The Union took the position that the opening date of the contract
differed considerably from the prior contract with Local
839 and required considerable rewriting. Later that
afternoon, Lawr, as he testified, was telephoned by Dietz
who asked if Respondent would present the same offer to
the Union. Lawr agreed to do so. Dietz insisted that the
offer be made to the Union at the same time it was offered
to Local 839.
On the afternoon of July 13, Lawr went to the office of
Local 839. Present were Farrington, Dietz, and Sarver. The
parties reviewed the proposal and Lawr announced that
the proposals were identical except for unit description and
the fact that July 15 was to be the effective date. Farrington
reviewed the document , there was no discussion of
retroactivity, and no mention was made of obligations
under the expired Country Gardens contract. Later that
afternoon, Sarver advised Lawr that Local 839 had voted in
favor of the contract and they executed the document that
day.
Thereafter, on July 13 or 14, Lawr spoke with Dietz and
advised him that the unit description at Warden was in
error. Lawr did speak with Farrington about the unit
description, but there was no discussion of retroactivity and
the prior Country Gardens contract was not mentioned.
On July 19, 1968, Farrington and Dietz met with Lawr.
The Union had questioned certain of the proposals
previously made by Respondent and Lawr, on this
occasion, presented a revised contract including changes in
the unit description and in the dental program. At the end
of the meeting, Farrington asked what would be the
effective date of the contract. Lawr proposed that it be
effective upon agreement and in fact wrote "Effective Date
of Execution" across the top of the document pursuant to
Farrington's request.14 Lawr offered to sign the contract if
Farrington would. Farrington demurred, explaining that he
had to present it to the employees first. There was no
discussion of retroactivity or of the expired contract with
Country Gardens. Lawr did initial each page, but was
unwilling to sign until such time as Farrington did.
On July 21, Farrington wrote to Lawr, enclosing signed
copies of the contract and stated that it had been approved
by the employees. However, Farrington advised on this
occasion that two changes had been made in the ostensible
agreement of July 19: (1) A change in the description of the
bargaining unit to comport with the certification of the
Board on October 19, 1967,15 and (2) the effective date of
the new wage scale "is shown as March 2, 1967, in accord
with the provisions of our Agreement with you which had
that opening date and which we opened by letter mailed
February 27, 1967." 16
On July 23, Lawr replied and pointed out, quite
accurately, that the agreement executed by Farrington was
not the proposal made by Respondent and that it amounted
to a counteroffer. I find that there was no contract and that
there was not a meeting of the minds between the parties.
On September 5, Lawr wrote to Farrington and requested
further negotiations. Farrington responded on September
24 that a contract was in "full force and effect," referring to
was at or about the time of the notice to modify, rather than the May 1,
1967, expiration date of the contract On either date, the conclusions herein
would be identical
ROGERS WALLA WALLA, INC. 31
the document he had executed as containing "the non-
mandatory subjects of bargaining relating to the certified
bargaining unit and the effective date of the wage change."
As noted, it is readily apparent that there had never been
agreement in the negotiations as to the effective date of the
new wage scales.
The matter remained in limbo for a number of months
until February 3, 1969, when Lawr wrote to Farrington and
advised that Respondent was considering the sale of its
Warden facility and had commenced discussions with
interested parties . Farrington replied on February 14 with a
request to meet and discuss how this might affect
conditions of employment of the employees.
The parties met again on March 7 with no result. Present
were Lawr and Teamster Officials Andrade, Grami, and
Williams ; the meeting had been arranged at the request of
Grami in behalf of the Western Conference of Teamsters.
On November 21, 1969, Lawr advised the new Secretary-
Treasurer of the Union, Bill Wallace, of further negotia-
tions for the sale of the Warden facility and renewed
Respondent 's offer to discuss the effect of this upon the
employees. On December 1, the parties met and discussed
the sale of the facility and on December 3, Respondent
advised the Union that a lease-purchase agreement had
been executed with an unrelated employer on December 2.
Lawr further testified that the Union never took the
position that the subject of retroactivity was foreclosed and
the topic arose only when the Union sought Respondent's
position thereon . He denied conditioning his willingness to
bargain on a flat agreement of no retroactivity , although
freely admitting Respondent's opposition thereto, and
Farrington admitted that Respondent at all times wanted
any wage increase effective upon arrival at a contract.
E. Analysis and Conclusions
A consideration of the evidence impels the conclusion
that both parties made proposals concerning and bargained
on the subject of retroactivity of wages. As for Respondent,
its proposals concerning retroactivity are in evidence and
each time the topic was discussed it was raised by the
Union. On February 15, 1968, the Union asked Respondent
to put forth a wage proposal and, on February 21,
Respondent did so , suggesting that the first step be effective
on the date of agreement . Needless to say, the subject of
retroactivity is perforce tied to the amount of a wage
increase.
The Union then sought a May 1, 1967, date and
Respondent replied that this was subject to discussion and
conceded that there was an obligation on retroactivity,
relying on the fact that Pasco employees were receiving
higher wages than those at Warden . At the next meeting on
February 29, Lawr voiced no opposition to retroactivity,
but left it open for discussion ; this was manifestly
predicated upon the amount of the wage increase, because
on March 21 Lawr agreed to make an offer on retroactivity
if the negotiated wage scale was lower.
Finally, in an effort to avoid a strike on March 25,
Respondent offered to consider retroactivity for employees
then on the payroll. It may also be noted that there were
many unresolved issues at the time . Finally, when
agreement was reached on a contract identical with that at
Pasco which had no retroactivity and was effective July 15,
Farrington inspected the proposal with its July 15 effective
date and made no comments thereon . On July 19, the
parties met and Respondent presented a revised proposal to
clarify certain areas raised by Farrington which did not
include retroactivity . At Farrington 's request , Lawr stated
that the effective date would be the date of execution and so
indorsed the document . The union representatives were
silent on retroactivity . However,,on July 21, the Union in
effect reneged, changing the description of the bargaining
unit and providing a wage scale retroactive to March 2,
1967. Respondent accurately termed this a counter -propos-
al. As Respondent stresses, what is significant here is that
Dietz in behalf of the Union sought the Pasco contract
which was silent as to retroactivity and indeed was effective
July 15, 1968.
Respondent contends initially that it did not insist to the
point of impasse on no retroactivity. The fact is that
Respondent, although opposed to retroactivity, was
flexible, this depending on the amount of a wage increase.
Moreover, even if Respondent had insisted on no wage
retroactivity to the point of impasse , the record warrants
only a finding that Respondent bargained in good faith on
the terms of the contract , confronted with the Union's
claim that it never signed a contract without wage
retroactivity.
As previously noted , there was no successorship obliga-
tion to the contract with Country Gardens and no
agreement was made in the merger to take over the expired
contract . To put this in perspective , the General Counsel is
attempting to saddle Respondent with an expired contract
entered into by a predecessor union and a predecessor
employer.
As the mediator was informed by the Union, a retroactive
pay raise was a prime issue, clearly not a claim that the
Country Gardens contract language was controlling . Stated
otherwise , I see no violation of the Act here , whether the
topic of retroactivity on this record be deemed a mandatory
or nonmandatory subject of bargaining. In view of all the
foregoing considerations , I shall recommend that the
complaint be dismissed in its entirety . N.L.R.B. v. Stepp's
Friendly Ford, Inc., 338 F .2d 883 (C.A. 9).
CONCLUSIONS OF LAW
1. Rogers Walla Walla, Inc., is an employer whose
operations affect commerce within the meaning of Section
2(6) and (7) of the Act.
2. Fruit and Vegetable Packers and Warehousemen
Local No. 760, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Ind.,
is a labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(aX5) and (1) of the Act.
RECOMMENDED ORDER
In view of the foregoing findings of fact and conclusions
of law, it is recommended that the complaint be dismissed
in its entirety.