Rudnick Land & Cattle Co.

National Labor Relations Board - Board Decisions

Jun 16, 1966

159 N.L.R.B. 477 (N.L.R.B. 1966)

RUDNICK LAND & CATTLE CO. 477
(e) Notify the Regional Director for Region 1, in writing, within 20 days from
the date of the receipt of this Decision, what steps have been taken to comply here-
with.I7
17 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read, "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
lYE WILL offer Howard T. Diamond his former job and pay him for wages he
lost since August 11, 1965.
WE WILL NOT threaten to discharge or discriminate against employees because
of their union activities or threaten them with violence for engaging in union
activities or interfere with them in any way because of their union activities.
All our employees have the right to join or assist International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 25, or
any other union, to engage in other concerted activities for mutual aid or pro-
tection, or to refrain from any or all such union or concerted activities.
CARMEN ADDARIO D/B/A ADDARIO'S EXPRESS AND
ORLEANS EXPRESS CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 20th Floor,
Federal Office Building, Cambridge and New Dudbury Streets, Boston, Massachu-
setts 02108, Telephone 223-3300.
Rudnick Land & Cattle Co., and its Divisions-Piute Packing Co.,
and Rudnick Truck Lines and Teamsters, Chauffeurs, Ware-
housemen & Helpers Local Union No. 87, International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen & Helpers of
America
Kern Valley Packing Co. and Teamsters, Chauffeurs, Warehouse-
men & Helpers Local Union No. 87 , International Brotherhood
of Teamsters , Chauffeurs, Warehousemen & Helpers of Amer-
ica. Cases 31-CA-62 (formerly 21-CA-6617) and 63 (formerly
21-CA-6618). Jwne 16,1966
DECISION AND ORDER
On March 25, 1966, Trial Examiner Louis S. Penfield issued his
Decision in the above-entitled cases, finding that the Respondent
159 NLRB No. 38.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not engaged in certain unfair labor practices and recommending
that the complaint be dismissed in its entirety, as set forth in the
attached Trial Examiner's Decision. Thereafter, the General Coun-
sel filed exceptions and the Respondent filed cross-exceptions to the
Trial Examiner's Decision, and briefs in support of the exceptions
and cross-exceptions; and the Respondent filed a brief in support
of the Trial Examiner's Decision and in opposition to the General
Counsel 's exceptions.
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 these cases to a three-
member panel [Chairman McCulloch and Members Brown and
Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the excep-
tions, cross-exceptions, and briefs and the entire record in these
cases , and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order
dismissing the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding with all parties represented was heard before Trial Examiner
Louis S. Penfield in Bakersfield , California , on October 19 and 20, 1965, on a com-
plaint of the General Counsel and answer of Rudnick Land & Cattle Co., and its
divisions Piute Packing Co., and Rudnick Truck Lines, ' and Kern Valley Packing
Co , herein jointly called Respondent .' The issues litigated were whether Respond-
ent violated Section 8 ( a)(1) and ( 5) of the National Labor Relations Act, as
amended, herein called the Act.
Upon the entire record, including consideration of briefs filed by the General
Counsel and Respondent, and upon my observation of the witnesses , I hereby make
the following:
'At the hearing the complaint was amended to show that in August 1965 a corporate
reorganization took place whereby Plate Packing Co. had its corporate name changed to
Rudnick Land & Cattle Co . and it became a division of Rudnick Land & Cattle Co. under
the name of Piute Packing Co. The complaint was further amended to show that during
the month of April 1965 Rudnick Truck Lines was established as a division of what was
then Piute Packing Co and since the reorganization has continued as a division of Rudnick
Land & Cattle Co The caption correctly reflects the corporate names as they presently
exist
2 The complaint issued on July 30, 1965, and is based on charges and amended charges
filed on the following dates: In Case 31-CA-62 a charge filed on April 8, 1965, and
amended charge on July 1, 1965, and a second amended charge on July 28, 1965 Copies
of the complaint , the charges , and the amended charges have been duly served on Respond-
ent. The name of Respondent , as set forth above, reflects the corporate names as changed
by the amendment to the complaint noted in footnote 1 above. Respondent's answer is
deemed amended to meet the circumstances as changed by this amendment . The term
Respondent is used hereinafter to refer to the corporate entities as they existed both
before and after the reorganization.
RUDNICK LAND & CATTLE CO.
FINDINGS OF FACT
479
1. THE BUSINESS OF THE COMPANIES
Respondent is comprised of two separate corporate entities, Rudnick Land &
Cattle Co., herein called Rudnick, and Kern Valley Packing Co., herein called Kern,
which are separate legal entities but are commonly owned and managed. Each is
engaged in the business of meatpacking and processing at separate plants located in
Bakersfield, California. Each corporate entity in the course and conduct of its busi-
ness operations receives goods valued in excess of $50,000 from points located out-
side the State of California. It is agreed, for purposes of this proceeding, that Rud-
nick and Kern may be regarded as a single employer engaged in commerce, or a
business affecting commerce, within the meaning of Section 2(6) and (7) of the Act,
and I so find.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No. 87, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
herein called the Union, is a labor organization within meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that the Union is the statutory representative of certain
employees of Respondent, that in November 1964 the Union and Respondent
reached agreement on the provisions of a collective-bargaining contract, that in
February 1965 the Union requested that Respondent execute a document purporting
to embody the provisions of such agreement, and that at all times since Respondent
has refused to execute such agreement thereby refusing to bargain within the mean-
ing of Section 8(a) (5) of the Act. Respondent acknowledges the Union to be the
statutory representative, acknowledges that it reached agreement with the Union in
November 1964, but denies that it is now refusing, or has ever refused, to bargain
with the Union, because it contends that the written document which the Union
insists that it sign "does not contain the provisions of" the November agreement.
As an additional reason for its refusal to sign, Respondent asserts that the agree-
ment presented contains provisions violative of Section 8(e) of the Act.
It is agreed that the Union is the statutory representative of employees of
Respondent in a single unit comprised of all truckdrivers, swampers, and office
employees employed by both Rudnick and Kern, excluding all other employees, and
supervisory employees as defined by the Act. I find such unit to be appropriate
within the meaning of Section 9(b) of the Act, and further find the Union to be the
exclusive representative of employees in such unit within the meaning of Section
9(a) of the Act.3
The authorized representatives of the parties who conducted the bargaining
negotiations and who figure in this proceeding are as follows: for the Union, Virgil
Dunham and George Branson; for Respondent, Richard Little, Sam Rudnick, and
Philip Rudnick. Dunham and Branson testified concerning the negotiations for the
Union, and Little and Philip Rudnick for Respondent. Although some differences
in recall and emphasis appear, no substantial conflict exists among witnesses on
either side of the controversy regarding the circumstances of the negotiations which
they describe.
A. The bargaining history prior to the 1964 negotiations
The collective-bargaining relationship between Respondent and the Union has
been a harmonious one which has existed for some 9 years. At all times bargaining
has followed a pattern set by Teamsters Union Local No. 626 in Los Angeles where
that local represents employees in meatpacking houses and bargains collectively for
them. Respondent has never participated in the Los Angeles negotiations. It has
3 Prior to the corporate reorganization both corporations bargained jointly with the
Union. However, in some instances, at least, two separate but identical contracts were
signed by each of the two separate corporate entities then existing. Whether or not this
circumstance indicates the existence of two separate units in the past, a single contract
intended to cover employees of both corporations was presented in 1964, and all parties to
the proceeding now agree that a single unit covering employees of both Rudnick and
Kern is appropriate.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been the practice for Respondent and the Union to meet following completion of
the Los Angeles negotiations and to adopt their results with such modifications as
might be separately negotiated.
Respondent 's first written agreement with the Union was signed in May 1956. At
that time , Respondent executed a one-page document entitled "Stipulation" which
provided that Respondent would abide "by the agreement covering wages, hours,
and working conditions which now exists in the contract covering the packing houses
located in Los Angeles with Teamsters ' Union No. 626 and all supplements." The
stipulation also listed modifications or "exceptions" applicable to Respondent's
Bakersfield operations . These exceptions covered such matters as premium rates,
load limits , and special rates applicable to certain classifications of Respondent's
drivers. The Los Angeles contract , although referred to in the "Stipulation ," is not
specifically incorporated by reference . This Los Angeles contract was not introduced
into the record . Apparently , however, this master agreement , like later contracts,
contained provisions which the parties orally agreed were not applicable to
Respondent 's operations.
In 1959, following the execution of a Los Angeles master agreement , Respond-
ent and the Union commenced negotiations for their new agreement. Such
negotiations resulted in the execution by Respondent and the Union of a document
entitled "Labor Agreement" which is described as "a stipulation to the master
agreement with certain changes pertaining " directly to Respondent 's operations. At
about the same time , the parties also executed another document entitled "Stipula-
tion," which purports to supplement the "Labor Agreement" by providing a wage
scale for swampers employed by Respondent . The so-called "Labor Agreement"
does not specifically incorporate the Los Angeles master agreement . A copy of
such master agreement , however , was submitted to Respondent at the opening of
negotiations , and references to it in the "Labor Agreement" are unmistakable.
Thus, we find that modifications agreed to by Respondent and the Union refer
specifically to articles in the master agreement noting specific areas of agreement
or disagreement with its terms . These include : ( 1) Agreement to use the same
union-security clause; (2) agreement to check on the legality of the unfair prod-
ucts clause in the master agreement ; ( 3) agreement on a similar 15 percent wage
increase for all classifications ; (4) deletion of rest-period provisions set forth in
the master agreement; (5) amendment to vacation clauses as set forth in the
master agreement ; ( 6) agreement for the same contract duration ; and (7) a spe-
cial agreement as to payment of extra men used by Respondent . The "Labor
Agreement" concludes with the following statement : "The Union will write a new
contract , embracing all the other conditions contained in the old Labor Agree-
ment, with the above additions and changes ." It is not shown that any "new
contract" was ever subsequently written. The sketchy nature of the stipulations,
coupled with their direct references to the master agreement presented , signify an
intent to have all the documents considered together as the operative collective-
bargaining agreement , and I so find. Examination of the master agreement, how-
ever, discloses provisions not noted in the modifications which are conceded not
to apply to Respondent 's operations . Thus, provisions in the master agreement
for rest periods , for Monday through Friday work with overtime after 8 hours,
for double pay on Sundays , and for night premiums admittedly were not deemed to
apply to Respondent 's line drivers , and no attempt was ever made to have Respond-
ent adhere to them. Accordingly , it would appear that by 1959 , and perhaps
before, Respondent had bound itself to a writing which did not accurately reflect
the understanding of the parties, but whose terms were varied by the oral under-
standing that some of its provisions did not apply to Respondent 's operations. At
this time , Respondent did not press for more exactness in the writing, possibly
because its relationship with the Union was good, and no problems concerning
the discrepancy between the writing and the oral understanding had theretofore
arisen. Respondent was not unaware of possible difficulties , however, for Little
testified that "On numerous occasions in past negotiations " he had asked "that
we have a tailored agreement."
in 1961 the Union approached the bargaining somewhat differently. The
parties again followed the Los Angeles pattern and negotiated as before on certain
modifications applicable to Respondent 's operations . The modifications , however,
were not embodied in a signed stipulation but were encompassed in three so -called
appendixes labeled B, C, and D, which the Union thereafter attached and incorpo-
rated by reference with the Los Angeles master agreement . The entire agreement,
complete with appendixes , was then presented to Respondent for execution.
RUDNICK LAND & CATTLE CO. 481
Respondent 's negotiators complained that "they couldn't sign a document of this
order" and that they never had , since "there were provisions in there that didn't
apply to us." These provisions, as in the case of the 1959 contract, related
principally to existing practices with regard to Respondent 's line drivers. The
Union conceded that Respondent 's line drivers were not subject to such provisions
despite their inclusion in the master agreement . However, union representatives
urged Respondent to sign the agreement anyway because "this was the only thing
they had prepared for [Respondent] to sign " At that time Respondent acquiesced
and executed the 1961 agreement as presented . It may be noted , however, that
once again Respondent had executed a written agreement containing terms which
were not specifically applicable to it. There is no showing , however, that during
the term of this agreement the Union sought adherence by Respondent to any of
these concededly inapplicable provisions.
B. The 1964 negotiations
The 1961 agreement remained in effect until September 1, 1964. Prior thereto
the Union gave notice of a, desire to negotiate a new agreement Pursuant to
such notice the parties met on August 17, 1964, and the Union presented certain
proposals. It advised Respondent that the membership had voted again to follow
the Los Angeles pattern, and it invited Respondent to attend the Los Angeles
negotiations which were to take place in the near future. The Union also sub-
mitted in writing a series of proposals to be discussed following the completion of
the Los Angeles negotiations . These proposals included wage increases , vacation
changes, the adoption of a dental program, increases in pension plan contributions,
a revised swampers' scale, and a revised office workers' scale. However, no
serious negotiations were undertaken on any matters at this time . Following the
August 17 meeting, Little advised the Union that Respondent "did not desire to
join the Los Angeles negotiations , that [it] wanted to do it on [its ] own level"
The next meeting took place on November 19, 1964. The Los Angeles negotia-
tions had , by this time , been completed . The Union presented Respondent with
a document entiled "Supplementary Agreement" which purported to embody the
changes in the previous master agreement which had been negotiated in Los
Angeles. Although this "Supplementary Agreement" had been signed by the Los
Angeles employers and Local 626, neither on November 19, nor at any time later,
was Respondent asked to sign it.4 The Union represented to Respondent that the
"Supplementary Agreement" included all the changes which had been agreed
upon at Los Angeles, but it undertook to use the "Supplementary Agreement" only
as a basis for discussion during the course of the negotiations with Respondent.
The "Supplementary Agreement" contained 10 provisions. At the November 19
meeting Respondent agreed to accept the provisions of paragraphs 2, 6, 7, 9, and
10. These involved the following: a general wage increase for drivers , increased
health and welfare contributions , increased pension contributions, dental plan
contributions , sick leave changes, and an agreement on a 3-year duration for the
contract commencing October 1, 1964. In addition , Respondent and the Union
reached agreement on changes in provisions of paragraph 3 so that they would
apply to Respondent's operations . The parties also agreed to delete paragraph 4.
They likewise agreed that paragraph 5 should be changed to bring the Bakersfield
office workers ' scale up to that in Los Angeles , but to do so in three increments
during the term of the contract . Rates for swampers , not mentioned in the "Sup-
plementary Agreement ," were also the subject of discussion on November 19.
Agreement was not forthcoming on swampers ' rates at that time, however, but
by November 21, after an exchange of proposals by telephone, agreement was
attained. Paragraph 1 of the "Supplementary Agreement" reads as follows: "All
terms and conditions of the previous labor agreement shall remain in full force
and effect except as changed herein ." Neither at the November 19 meeting nor
6 The "Supplementary Agreement" does not state that it was intended to be an interim
agreement , but apparently that was its purpose It was signed by the Los Angeles local
and employers who had participated in the negotiations there presumably as a memoran-
dum of the understanding reached The preparation and execution of a full agreement,
however, embodying all provisions , including the modifications , was contemplated. The
agreement which was later presented to Respondent in February 1965 was their Los
Angeles master agreement as finally drawn up with locally negotiated modifications added.
243-084-67-vol. 159--32
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter was there any discussion of the significance of this paragraph , or of any
provision of the "previous labor agreement " or its applicability to Respondent's
operation except what has been set forth above . It may be noted , however, that
the provisions of the "previous " master agreement were known to Respondent at
the time since it had become bound thereby in signing the 1961 agreement.
According to the credited testimony of Respondent 's representative Little, he
told Dunham and Branson during the course of the November 19 meeting that he
F'was damned tired of pouring through this long document that we were getting
and [he] wanted something tailored around our agreement that contained only
provisions that pertained to our operations ." Little states that the Union responded
with "Oh, we will get that for you." Neither Dunham nor Branson recall making
such statement , or recall making any commitment to get Respondent a tailored
agreement , but they do not deny that the statements may have been made. I
find that the events occurred as related by Little.
On or about November 21, 1964, after the parties had reached accord on the
swampers ' scale, the Los Angeles "Supplementary Agreement ," together with the
local modifications agreed upon , were submitted to the union membership for
their approval . The membership ratified the understanding , and Union Representa-
tive Branson so advised Little who replied "Fine , I am glad that is behind us."
Following notification of ratification , Respondent put into effect all the sub-
stantive provisions to which it had agreed , and at all times since then it has con-
tinued to abide by such provisions . These include all the terms of the "Supple-
mentary Agreement" as modified by the local negotiations described above.
Some delay ensued pending the preparation of the Los Angeles master agree-
ment. On February 24, 1965, the Union presented Respondent with a written
document for signature purporting to incorporate the Los Angeles master agree-
ment and the local modifications which had been agreed to by November 21. The
document itself consists of a printed form some 17 pages long , most of which is
comprised of the Los Angeles master agreement, but which includes also appen-
dixes incorporating the modifications negotiated . This document , just as the master
agreements of 1959 and 1961 , also contains a variety of provisions principally
relating to working conditions of drivers but also other matters, which admittedly
are not applicable to Respondent 's line drivers , or to certain other aspects of its
operation . As noted above , none of these matters was discussed at the Novem-
ber 19 meeting. This agreement was left with Respondent with the understanding
that it would be looked over , and that the Union would be notified regarding its
execution . On examining the document Respondent concluded that the inappli-
cable provisions were matters to which it had not agreed in the November
negotiations . For this reason , Respondent decided it was not prepared to execute
the document presented.
Within 2 weeks from the receipt of this proposed agreement representatives
of Respondent met with union representatives . Philip Rudnick had become presi-
dent of Respondent in February , and the transportation operations of both corpo-
rations had been centralized in a separate division . The meeting was called by
Respondent in March both to introduce the new president to the union representa-
tives, and to explain the effect of the centralization . During the course of the
meeting, however, the contract which had been presented came up for extended
discussion , and Respondent apprised the Union that the agreement was not accept-
able because it contained matters to which Respondent had not agreed. At the
same time , Rudnick brought up some new issues as subjects of possible negotia-
tion. It does not appear, however , that the signing of any agreement was in any
way conditioned on obtaining agreement on these new matters. The real thrust
of Respondent 's position taken at this meeting, and thereafter , was that it would
not sign the agreement presented because it contained provisions to which
Respondent had not agreed in November, and which were not applicable to
Respondent's operations. The Union, despite acknowledging that some of the
provisions in the master agreement were not applicable to Respondent 's opera-
tions, at all times remained adamant in its position, and insisted that Respondent
had committed itself in November to accept the terms of the agreement pre-
sented, and that no changes in language or otherwise were acceptable to the
Union.
C. Discussion of the issue and conclusions
The only issue before me is whether or not Respondent is obligated to execute
the agreement presented in February . The General Counsel makes no claim
RUDNICK LAND & CATTLE CO. 483
that Respondent has acted in bad faith, or in any other manner failed to fulfill
its statutory bargaining duty. It is only asserted that Respondent and the Union
reached accord in November , and that Respondent refused to bargain in Febru-
ary when it would not execute the document which allegedly embodied the udder-
standing . The principle involved is a well-established one. For many years
the statute itself has defined the bargaining duty as requiring the "execution of a
written contract incorporating any agreement reached if requested by either
party ." The converse , however, is equally true. If the agreement presented
is not in substance the agreement reached , but, as Respondent contends here, is
one containing matters upon which the parties did not reach accord , the duty to
execute does not arise .5 It is precisely this question that we must resolve.
The General Counsel views the bargaining history and the November negotia-
tions as evidencing acceptance at that time by Respondent of the Los Angeles
bargaining pattern in all its particulars , and the contract presented in February
to be merely the written memorial of such understanding . Respondent does not
dispute the existence of agreement in November on all basic issues, but it con-
tends that the full master agreement presented in February containing, as it
admittedly did, provisions not applicable to Respondent 's operation , does not
represent the actual agreement reached in November. The General Counsel
acknowledges the February contract to contain provisions not applicable to
Respondent 's operations , but he points out that identical provisions appeared
in the 1959 and 1961 contracts to which Respondent bound itself , that Respond-
ent was made aware that such provisions would be carried over in the 1964 con-
tract by the provisions of section 1 of the "Settlement Agreement ," that Respond-
ent signified its agreement in November on all matters , including section 1, and
that Respondent cannot now be heard to repudiate a contract which embodies
the full understanding.
The General Counsel's approach oversimplifies the bargaining picture . Bargain-
ing between Respondent and the Union has been conducted with no great degree
of precision from the outset of the relationship . The Los Angeles pattern in
general has always been the standard , but the parties have always understood that
the -Los Angeles master agreements contained provisions not applicable to
Respondent 's operations. The relationship between Respondent and the Union
traditionally has been a harmonious one. Thus while on occasion in the past,
Respondent had made half-hearted protests , and had asked for a "tailored " agree-
ment, it had not pressed its objections strenuously , but had accepted what the
Union requested . Prior to 1961 , the Los Angeles master agreement remained
somewhat in the background . It was at all times referred to in the stipulations
which Respondent and the Union executed , but the parties uniformly had oral
understandings regarding the applicability of some of its express provisions to
Respondent 's operation . These oral understandings had been uniformly observed,
and this resulted in Respondent 's protests remaining minimal. The applicability
question came into sharper focus in 1961 when the Union asked for the first time
that Respondent sign a document incorporating the full master agreement.
Respondent acquiesced only after making a stronger protest than it had thereto-
fore done.
In 1964, the full master agreement was not initially presented to Respondent
in November. Indeed, at the time the master agreement had not yet been pre-
pared. Respondent was not even asked to sign the Los Angeles "Settlement
Agreement," but this was used solely as a basis for discussion during the negotia-
tions. The section 1 reference therein was in general terms, and , as we have
seen, was not the subject of discussion . The November negotiations resulted in
Respondent and the Union promptly reaching accord on all issues discussed, and
this was followed by Respondent 's immediately putting into effect the substantive
terms of their understanding pending preparation of a full agreement . The parties
appear to have viewed the ultimate shape of the full agreement differently. On
the one hand , the Union envisaged it as the master agreement as modified by
the local negotiations , while on the other hand, Respondent contemplated being
presented with a tailored agreement suited to its own operations . While the
understanding was full and complete as to the so-called "money" issues, the struc-
ture into which they were to be placed was separately assumed but not really
considered during the course of the discussions in November. It is possible that
5 Henry I Siegel Co., Inc ., 153 NLRB 1448; Watertown Undergarment Corporation, 137
NLRB 287.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in view of past acquiescence by Respondent, the Union concluded that no dis-
cussion was needed. Respondent, however, had clearly indicated its dissatis-
faction with the past by its request for a tailored agreement, and it had been
givgn some assurance by the Union, albeit not a very precise one, that this might
come about. Insofar as this record shows, the Union made no effort whatsoever
along such lines. In February, it proceeded to present the whole master agree-
ment as a package including provisions which it conceded did not apply to
Respondent's operation, and to demand acceptance and execution of this agree-
ment in that form. It has advanced no explanation for its unwillingness to tailor
the agreement, but has maintained a rigid position which tolerates no deviation
from the terms of the document presented.
Under the circumstances I do not agree that the agreement presented in February
must necessarily be viewed as the actual agreement which the parties had reached in
November. Everyone agrees that in November there was an agreement which
included specific provisions and a commitment to follow the general Los Angeles
bargaining pattern. The specific provisions were put into effect immediately, and
Respondent still stands willing to execute a contract embodying them.
It is not claimed that Respondent is not following the general Los Angeles area
pattern. Respondent has balked, however, at executing a contract which also con-
tains provisions admittedly not applicable to its operations . Respondent 's entire
approach seems taken in good faith, and to be a reasonable one. The statutory
requirement on execution of agreements rests on the basic principle that failure to
do so is in effect an expression of bad faith, since it frustrates the ultimate fruition
of the statutory bargaining mandate. If, having gone through the motions of reach-
ing an agreement, a party may thereafter avoid responsibility for it by refusing to
sign its embodiment in writing , its initial good faith in reaching the agreement is
open to question. Respondent, however, is not so acting. If any accord can be
said to have been reached in November on the admittedly inapplicable provisions, it
appears more nebulous than real. Even Respondent's prior acceptance of agreements
incorporating inapplicable provisions had not been made without its voicing some
objection. In November, although we find it accepting the area pattern and sub-
stantive terms, it reiterated even more strongly a plea for a tailored contract. At
the most , Respondent failed to discuss with the Union in November exactly what it
had in mind in this connection. It would not be unreasonable, however, for us to
require the Union to assume that at the very least this meant the elimination of
provisions to which Respondent was not required to adhere. The Union, on its
part, did not undertake to explore the matter or to explain that it would later
insist on execution of a contract containing verbatim all terms of the Los Angeles
master agreement. I am therefore convinced, and find, that the only actual accord
reached in November was limited to an acceptance of the Los Angeles general
pattern together with the specific provisions later put into effect, and that it did
not include acceptance of all the terms of the Los Angeles master agreement
regardless of their applicability to Respondent's operations. Thus the contract
presented in February clearly exceeds the limits of the mutual agreement in
November, and the case does not fall within the statutory principle requiring
execution of agreements reached. Accordingly, I find that the General Counsel
has not established that Respondent has breached its statutory duty to bargain
and engaged in conduct violative of Section 8(a)(5) of the Act. I shall recom-
mend therefore that the complaint be dismissed.6
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. Rudnick and Kern constitute a single employer engaged in commerce, or a
business affecting commerce, within the meaning of Section 2(2), (6), and (7)
of the Act.
6 As noted above Respondent has also urged as a further reason for its not being ordered
to sign the contract that such agreement contains provisions unlawful within the mean-
ing of Section 8(e) of the Act. In view of the findings above set forth and my conclu-
sion that inasmuch the contract presented does not embody the agreement reached
Respondent is not required to sign it, I do not reach the 8(e) issue. Accordingly, I do
not undertake to pass on the lawful or unlawful character of any clauses in the contract
within the meaning of Section 8(e).
WILSON & CO., INC. 485
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. Neither Rudnick nor Kern , jointly or severally, has engaged in unfair labor
practices as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case , it is hereby recommended that the complaint
be dismissed in its entirety.
Wilson & Co., Inc. and United Packinghouse , Food and Allied
Workers, AFL-CIO. Case 11-CA-2981. June 16, 1966
DECISION AND ORDER
On May 17, 1966, Trial Examiner Sidney Lindner issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner 's Decision. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner, includ-
ing his granting of the General Counsel's motion for judgment on
the pleadings, and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, and
the entire record in this case, and hereby adopts the findings, con-
clusions , and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION ON MOTION
FOR JUDGMENT ON THE PLEADINGS
STATEMENT OF THE CASE
Upon a charge filed February 28, 1966, by United Packinghouse , Food and
Allied Workers , AFL-CIO, herein called the Union , against Wilson & Co., Inc.,
herein called the Respondent , the General Counsel of the National Labor Rela-
tions Board , by the Regional Director for Region 11, issued a complaint dated
March 9, 1966 , alleging the Respondent's refusal to bargain with the Union in
violation of Section 8(a)(5) and ( 1) of the Act. The complaint alleges the
Union's certification following a secret-ballot election conducted by the Regional
Director among the employees of Respondent 's Wilson, North Carolina, branch
159 NLRB No. 58.