Senca Enviromental Products

National Labor Relations Board - Board Decisions

Jul 23, 1979

243 N.L.R.B. 624 (N.L.R.B. 1979)

IDE('ISIONS OF NATIONAL I.ABOR RELATIONS BOARD
Seneca Environmental Products, a Division of Seneca
Sheet Metal, Inc. and Lake Erie District Council of
Carpenters, Affiliated with United Brotherhood of
Carpenters and Joiners of America, AFL-CIO.
Case 8 CA 11391
July 23, 1979
DECISION AND ORDER
BY MFMBERS JENKINS, MURPHY, ANDI TIRUESI)AI.I
On March 29, 1979, Administrative Law Judge
William F. Jacobs issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
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 Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Seneca
Environmental Products, a Division of Seneca Sheet
Metal, Inc., Tiffin. Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, as so modified.
i Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Prui rv. Inc. 91 NI.RB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 The Administrative Law Judge failed to order as part of the remedy that
Respondent make employees whole for any losses they may have suffered as
a result of Respondent's unfair labor practices with interest computed
thereon in accordance with Board precedent. Where, as here, a respondent
has failed to execute a contract as agreed upon. a rrtrus quo ante remedy is
appropriate. Werner Kallman dh/a Charles Sporswrear Mantufl turting Conm-
pany, 231 NLRB 797 (11977).
In addition, the Administrative Law Judge failed to include a provision
requiring Respondent to honor any dues-checkoff authorizations which may
have been submitted to it after it was obligated to honor the contract. Slack-
pole Components Company. 232 NLRB 723 (1977). We have modified the
remedy accordingly.
Although it appears that Respondent implemented some of the provisions
of the agreement, the record does not establish that all the terms of the
contract have been implemented and maintained. Therefore, we find that
remedial order provision requiring such implementation, retroactively, is
necessary to effectuate the purpose of Act.
I. Insert the following after paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(c) Upon execution of the aforesaid agreement,
give retroactive effect to the provisions thereof and
make whole its employees for any losses they may
have suffered by reason of Respondent's failure to
sign the agreement with interest computed thereon in
the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977). (See, generally, Isis Plumhing
& Heating o., 138 NLRB 716 (1962).)
"(d) Reimburse the Union for all membership dues
which, since June 2, 1977, Respondent has failed to
withhold and transmit to the Union pursuant to
signed dues-deduction authorizations and in accord-
ance with the checkoff provision of the collective-bar-
gaining agreement, with interest thereon in the man-
ner prescribed in Florida Steel (Corporpration. supra."
2. Substitute the attached notice for that of the
Administrative Law Judge.
A PPLI'N[)IX
No II(EI To EPI.()YIIS
PoSIrTD BY ORI)DR () IE
NAI()ONAI. LABOR RI.AI()ONS BOARD
An Agency of the United States Government
WI WillI. N()I refuse to bargain collectively in
good faith with Lake Erie District Council of
Carpenters, affiliated with United Brotherhood
off arpenters and Joiners of America. AFL
('10. by refusing, upon request, to sign the col-
lective-hargaining agreement. the terms and con-
ditions of which were agreed upon on June 2,
1977.
WiV wIn I. NOI unilaterally and without prior
notification to the Union discontinue the holding
of safety meetings which were instituted, and
which were held, under the terms of the collec-
tive-bargaining agreement agreed upon on June
2, 1977.
WEI WII.. NOI in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights to self-organization,
to form, join. or assist labor organizations, in-
cluding the Union herein, to bargain collectively
through a bargaining agent chosen by our em-
ployees, to engage in concerted activities for the
purposes of collective bargaining or other mutual
aid or protection, or to refrain from any such
activities.
Wi Wl.l., upon request by the Union. sign the
collective-bargaining agreement, the terms and
conditions of which were agreed upon on June 2,
1977. The bargaining unit is:
243 NLRB No. 77
624
SENECA I!NVIRONMINNIAL PROI)t( I'S
All regular and part-time production emplox -
ees. but excluding all office clerical employees,
professional. engineering, technical. school
work programs, administrative emplosees, in-
cluding working supervisors and guards as de-
fined in the Act.
Wti wil l upon request by the Union reinsti-
tute the holding of safety meetings in accordance
with the terms of the aforesaid collective-bar-
gaining agreement.
WE wit, 1l reimburse the Union for all member-
ship dues which, since June 2. 1977. were autho-
rized by our employees to be deducted, but
which we failed to deduct and transmit to said
Union.
WE wl,, upon execution of the aftresaid
agreement. give retroactive effect to the proAi-
sions thereof and make whole its employees for
any losses they may have suffered by reason of
our failure to sign the agreement. plus interest.
SENE(fA ENVIRO)NNIMNtAl. PRI)It(l IS, A 1)I-
VISION OF SENE(A SIEI MHlAI., IN('.
DECISION
S r..i MItN I ill: ( AS
WIlI IAM . JA.oBs, Administrative aw Judge: This
case was heard before me on February 21 and 22. 1978. in
Tiffin, Ohio. The charge was filed September 27. 1977, and
amended on November 3. 1977. b Lake Erie District
Council of Carpenters, affiliated with United Brotherhood
of Carpenters and Joiners of America. AF -CIO, herein
called the Union. The complaint issued on November 4,
1977, alleging that Seneca Environmental Products. a Divi-
sion of Seneca Sheet Metal. Inc.,' herein called the (Coom-
panrty or Respondent, violated Section 8(a)( I) and (5) of the
National Labor Relations Act. as amended, by refusing to
execute a collective-bargaining agreement previously
agreed upon and by unilateralls discontinuing safety meet-
ings which had been instituted pursuant to said collective-
bargaining agreement. Respondent denied the substantive
allegations contained in the complaint.
All parties appeared, were aflforded flull opportunity to be
heard, and presented evidence and argument. Briefs were
not filed. Upon the entire record. my observation of the
demeanor of the witnesses, and after giving due consider-
ation to argument of counsel I make the following:
FINI)IN(S O I:( I
1. fill Ht SINISS ()I RISIPONDNI
Respondent. an Ohio corporation, operated a holl
owned division with a plant in Tiffin. Ohio, knoun as Sen-
i As of Octiober 31. 1977. Seneca Ensironmental Products. Inc. beanlme i
separate corporation aInd s aIdmitted Io he a succesor It, Respondenl named
herein
eca Environmental Products where Seneca Metal. Inc.. also
had its corporation headquarters and general otlices and
Mhere it \%as engaged in met;al lahrication of dust control
and sound control devices. miscellaneous metal work, and
air handling engineering work. Annuall, Seneca EInviron-
mental Products. s a l)ivision of Seneca Sheet Mletal. Inc..
in the course and conduct of its operations hippcd goods
and products valued in excess of $50().X) directl to points
outside of the State of Ohio. As of Octoher 3 1. 1977. Seneca
ln,ironmiental Products, Inc.. hereinafter also called the
(onlmpa; or Respondent. became separate corporatiln.
no longer a Di, ision of Seneca Sheet Metal. Inc. B3 stipula-
tion of the parties, it has been agreed that Seneca In ron-
mental Products. I nc.. is a sccessor to Seneca En ironmen-
tal Products, a tivision of Seneca Sheet Metal. Inc.. and
adimitted that it is an emplo'er engaged in commerce
within the mea;ning of Section 2(6) and (7) of the Act.
11. 1111 I AB(R ¢/R(,NIOlN
It is admitted and I find that the tlnion is a labor orga;ni-
lation ithin the meaning of Section 2(5) of the Acl.
111. lit tNIl AIR l.tA )R P'RA( II IS
A. Iciu
I. Negotlations. April June 2, 1977:
The (ompanN began operation in the spring of 1975. In
April 1977. the Union contacted the executie ice pres-
ident of the (ompans. ilarple. and told him that the em-
ployees desired representation and that it wanted a recogni-
tion agreement signed. On April 25 Louis Fusile. organizer
tior the U nion, met with i larple tr the purpose of executing
a recognition agreement. According to llarple. the Com-
pan 5 had. from its inception. suffered a high turn,. er rate
and since the small community in which it was located had
a limited amount of skilled labor this turnov. er rate posed a
serious problem for the Conmpan3 . For that reason Iltarple
felt that any labor agreement upon which the parties might
agree. would hae to first he ratified b the emploees be-
fiore it could become etlectixe. since ans failure of ratifica-
tion b the emplosees might result in additional losses of
employees which in turn would cause further problems for
the Compan. Pursuant to these considerations. again ac-
cording to Harple he told Fusile during the April 25 meet-
ing that he thought the parties could work things out but
whatever was worked out. tlarple had to be sure that it was
acceptable to the compan\ work force. and that this uould
have to he a condition greed to even before he signed the
recognition agreement. larple testified that usile replied
that ratification would not be a problem. The Comppan
takes the position that it as clear from the ver beginning.
and understood b all parties. that the Utnion would take
an, agreement reached hetween the parties back to the em-
ploees for ratification hb' means of checkoff cards. Present
during this recognition cnfterence were I usile, larple. and
Marion Smith. the shop superintendent. Another union rep-
: llI .i ri 1 7 I 1llcs, s thr l e Inlltdil
I) policies were aired. Accord-
ing to Fusile. the meeting "became quite disoriented fromn
the regular norm of the negotiations." 1 understand Fusile's
remark to mean that the criticism of compan, policies. pre-
sumably bN the rank-and-file emplosees in attendance. in-
terfered with further progress toward negotiating a con-
tract. Fusile did not mention any discussion at this meeting
concerning ratification. and neither Denecia nor Jawisiak
were present at the hearing. so did not testify. Charles Ber-
nard. however, called as a witness for Respondent, testified
as followks:
Q. During the time that you were on the negotiating
committee. did you hear any discussion of any kind
about when you came to a final agreement, that it had
to he ratified by the men?
A. Sure. All the agreements had to be ratified by the
men.
Q. I am not talking about anybody else's agreement
or all agreements. I am talking about was there dis-
I id
Fusile testified that this Adas the Compan's first proposal. the document
submitted on May 4 being more aptl 5 described as a collection ofcornpan
rules and policies
627
DI)'(ISIONS ()1: NATIONAl. I.AB()K RIL.. IONS BOARKI
cuss[ion] during the time of the negotiations that there
had to be ratification by the rank and file of this con-
tract before you had an agreement with the ('ompnpny'
A. A liscussion on it? No. There was ne ver anyI dis-
cussion. It was just point blankly said. "We'll take this
back to the men and see if it is ratified.'"
No, we never discussed it at any of' the meetings how
we were going to do it.
Q. Was it discussed by anybod, by anyone on the
Compan 's side or the Union's side that ratification
would occur in the form of the men signing the dues
checkoff' cards?
A. Well, that was that last meeting we had upstairs
that that ewas more or less understood that signing this
card was going to mean ratification
Thus, it would appear from Bernard's testimony that
nothing was specifically agreed to at the third meeting con-
cerning ratification although Bernard like Harple and
Smith. at earlier meetings, assumed that the employees
would have a chance to ratify' any contract agreed upon by
the Company and Union. Bernard's testimony also effec-
tively undercut Smith's testimony concerning the third ne-
gotiating session having included a discussion of ratification
taking the form of the men signing dues checkoil cards.
Bernard's statement that this discussion did not take place
until the last meeting is credited over Smith's testimony to
the contrary. I reach this conclusion on the basis of Ber-
nard's very credible demeanor, the fact that Iarple did not
support Smith with regard to his account of the content of
the third bargaining session, and the fact that Harple's dis-
cussion of the third bargaining session as reflected in his
affidavit made no mention of ratification or checkoff cards.
I find therefore that no specific agreement was reached at
the third bargaining session whereby ratification was made
a precondition to contract execution. (' & W' l.etra Bur
Co., supra.
The fourth bargaining session was held on May 24 and
was attended by approximately the same individuals who
attended the previous session.9 At the fourth session most of
the contract was agreed upon except for wages and a sim-
plified grievance procedure. Similarly, the fifth session,
which occurred on June 1, was attended by the same group
that attended the previous two meetings. Additional mat-
ters were resolved including increased holiday pay. addi-
tional fringe benefits, and wages. Overtime remained an
outstanding issue. There is no indication in the record that
ratification was discussed at these meetings.
On June 2 the parties met for their sixth and last bargain-
ing session. Agreement was reached at this meeting on
wages and other conditions of employment. Though basic
agreement was reached. there remained, however, a few
things yet to be accomplished. First, according to Harple.
the language had to be cleaned up throughout the contract.
Secondly, it was agreed by the parties that the grievance
provision, though acceptable to all as to content, was too
cumbersome and should be shortened. It was therefore
agreed that the jobs of making the language changes and
shortening the grievance provisions would be placed in the
I Fusile testified that Denecia did not attend whereas Smith testified that
he did.
hands of the attorneys for both parties. thereafter the final
document to he returned to the parties for execution. No
changes in the intent of the document was contemplated hby
the parties: the attorneys were to perform merely the minis-
terial function of putting into more legally acceptable lan-
gutage the contract agreed upon on June 2.
Having reached basic agreement on all provisions of the
contract. Fusile suggested to Harple that the wages increase
and other fringe benefits included in the contract he made
effective retroactively to June . According to Harple, he
agreed to institute these benefits, retroactively to June I1
pending ratification and signing of the contract. usile de-
nied however, that ratification was mentioned. Smith testi-
tfied as follows:
Q. I)o Nou remember Mr. Fusile asking whether the
wages part of the agreement was going to be imple-
mented retroactive to June I at the meeting of June
2nd?
A. Yes.
Q. Do you remember what Mr. [larple said to that?
A. Yes. Hle asked if we was going to have ratifica-
tion and it was said that, why, definitely that there
wottuld be. So we said that we would take it back to
June I.
Once again, it would appear from the totality of testi-
mony on the subject that Ilarple and Smith may well have
believed that ratification was to be a precondition to execu-
tion of the contract, but the record does not indicate that
any specific agreement was reached on June 2 or prior
thereto that such was the case. Rather, while I find, con-
trary to Fusile's testimony, that ratification, approval, or
acceptance of the contract's provisions was in some means
or fashion discussed at the June 2 meeting and that Fusile
indicated his intention to try to obtain acceptance by the
employees of the contract reached on June 2, he by no
means bound the Union to an} agreement that without rati-
fication there would be no contract. Bernard testifies that
on June 2 Harple stated something to the effect: "You get
the checkoff cards signed by the men and we'll get together
and get this settled." and that Fusile replied, "Okay, then
we've got an agreement." Bernard also testified, however,
contrary to Respondent's witnesses, that he could not recall
Harple making such a statement during prior negotiation
sessions and did not believe that anything was ever said
before June 2 to the effect that before the contract would he
signed, checkoff cards would have to he presented. but that
this "was more or less the understanding in this last meet-
ing."
Thus, it would appear that on June 2. as was the case at
earlier sessions, management understood or believed that
any agreement reached would be taken hack to the employ-
ees for acceptance or ratification, and indeed this too was
the understanding of one or more of the employee partici-
pants. Moreover, it also appears, and I find, that Fusile
advised management that he would seek approval of the
employees of any contract provisions negotiated and. in
fact, did so as negotiations proceeded. This stated intention
by Fusile, however, as noted above. is not tantamount to an
agreement that ratification was to be a necessary precondi-
tion to execution of the contract otherwise agreed upon,
since ratification. to be a condition precedent to a collec-
628
SENFC(A I'NVIRONMNlNIAAI PRO())l ( IS
tive-bargaining agreement must be agreed upon in express
words and not merely implied. C & 1' I ektrra Bat (Co. 1-
pro. In short, no condition precedent existed prior to June 2
and none came into existence on that date.
In addition to agreeing that the provision for wage in-
creases would be retroactively instituted as of June I, the
parties, on June 2, similarly agreed to retroactively imple-
menting the provisions dealing with job posting."' safet
meetings (also referred to as labor-management meetings).
and the probationary period. I find that agreement to im-
plement these provisions retroactively is indicative of the
fact that the parties' understood that agreement had been
reached.
While basic agreement was reached as to the content ot
the labor agreement. there existed a certain lack of under-
standing between the employees in the unit and the Union
itself which still had to be straightened out. Thus, when
Bernard asked Fusile on June 2 what the union dues were
going to be and Fusile told him, 10 cents, Bernard replied
that this was something new and that they would have to
get back to the employees on that subject. Management
was aware of problems existing between the rank-and-file
unit employees and the Union, and Smith testified that he
had heard rumors that some employees would leave ift' the
Company signed a contract with the Union without those
employees getting a chance to look at it. The existence of
some friction between unit employees and the Union was
emphasized when during the June 2 session, one of the
union agents in attendance advised Bernard that the Union
wanted to select the representative from among the unit
employees, to which Bernard objected, stating, "You're not
coming in here and telling us who is going to represent us."
It was about the time of this brief discussion, and perhaps
in part because of it, due to Respondent's concern with
maintaining its work force, that Harple brought up the fact
that there was still the dues checkoff to talk about, and
asked the union representatives present whether they had
yet obtained the signed checkoff authorization cards in or-
der to show that the employees had ratified what had taken
place to that point. According to Smith, Fusile replied that
he would have them, that he would "get what it takes." in
the way of authorization cards to show ratification or ap-
proval.
2. Ratification efforts after June 2
The morning of June 3 Fusile, in accordance with his
stated intention, visited the plant to discuss the contract
with the employees. There were still 7 employees employed
of the original 13 who were there at the time recognition
was granted. According to Fusile, he described to them the
money package which had been negotiated and discussed
with them the provisions of the contract." He advised them
that the contract would be retroactive to June 1. then asked
them if they had any objections to it, or to the way it was
negotiated. Six of the employees present were in favor of
O The job-posting provision ma) have been put into effect even before
June 2.
" One witness for Respondent denied that the contract was discussed I
credit Fusile
the contract and one wAas against it. usile a.sked them to
sign checkoff autihorization cards': hut seerad ojhlected.
claiming that the dues and initiation tees were Ioo hligh andi
that the Union w*as not doing anything lor them. iusile
replied. "Until I get the cards signed. eAC don't hace the
authority to come in here and make them do anything."
Although usile asked the emploxees to sign checkoff
cards, he did not pass anix out t this time hut merely in-
formed them that if the\ signed the cards. ;larple would
sign the contract.
Although Respondent may argue that the une 3 meeting
between 'usile and the employees is evidence of the condi-
tion precedent which it alleges A;as agreed upot. I indll. o
the contrary that Fusile was merel trying to obtain the
employees' agreement to sign checkot authorization cards
because he had been advised by iLarple that he `lould not
sign the contract without such an indication of their accept-
ance of the contract: because he had told Ilarple that he
intended to tr, to obtain checkoff alulihorilations: and be-
cause checkoff authorizations are, in an case. a valuable
asset to the strength of a labor organization. I am therefore
unwilling to imply a preconditional commitment a ured
by Respondent on the basis of Fusile's efforts to acquire
checkoff authorizations subsequent to the June 2 meeting at
which the parties agreed to the basic contract.
After Fusile's June 3 meeting Kwith the employees. he met
with them three or four times throughout the summer m
order to get them to sign checkoff cards. ach time he
would tell them that it was necessary in order tor him "to
get the ball rolling" and to "help the guys ut." and that
theN "didn't have an agreement until the dues chieckoff
cards were signed." " Once again. I find that Eustle. bh these
words. was advising the employ ees that H[arple would not
sign the agreement unless they signed checkoff authoriza-
tion cards. so that until they did so. there would be no
contract. I do not conclude that b these statements he was
admitting having entered into the alleged precondition
agreement.
Despite usile's urgings. however. the employees contin-
ued to refuse to sign the authorization cards. according to
Bernard. because they had gotten their raise and did not
want to pay dues and initiation fees which. in any event.
they considered too high. Though Fusile did manage at one
time to actually obtain some signatures on the cards he
never apparently was able to get majority support. In Au-
gust. he once again met with the employees in order to try
to get them to sign the checkoff cards and a secret vote was
taken. but *w`hen the ballots were counted it turned out that
they had once again rejected the checkoff authorization. On
September . he met with them for the last time. but once
again failed to obtain majority support."
12 Bernard estified It) this fact although Fusile denied ii I credit Bernard
because it seems more consistent with the pattern ot events that after being
asked bs Harple on June 2 to obtain checkoff cards. Fusile would follovwup
on his request since he had stated his intenlion to do so.
i Based upon Bernard's testimons In answer to Respondent counsel's
leading question
t Fusile testified that n September I he met ith Bernard and other
employees and named six individuals horm he slated signed heckoff aulho-
nzatmin cards on that date Onl, to of the six had been emploed on the
date oit recogniiion the cards were notl ofifred into eidence lthough
it sniniia,
629
I)lI.(ISI)NS ()1: NA (IONAI. ABOR R.A IONS BOAR[)
3. ('ontraict discussions after .lune 2
According to the agreement reached June 2. after attor-
nes for Respondent and the Inion worked out the new,
simplified grievance procedure language, the finished labor
agreement was to be forwarded to the Union" for execu-
tion, then returned to the Company. Pursuant to this under-
standing, Harple subsequently gave to his attorney, Arthur
Graham, the final agreement as worked ouu between him-
self' and Fusile on June 2, apparently with directions to
draw up a formal document, legally acceptable to the par-
ties and containing the revisions agreed upon.
On June 27. after making telephone contact with the
Union's attorney, William Gore, on two occasions, Graham
forwarded to him a copy of the amended labor agreement,
Respondent's Exhibit 3, with copies sent also to )enecia. A
cover letter instructed Gore to have I)enecia execute two
copies and thereafter forward them to Graham after which,
he advised Gore, he would have Respondent execute both,
returning one copy to Gore. In the same cover letter, he
advised Gore that he had no objection to an amendment
which would simplify and shorten the grievance procedure,
said amendment to be proposed by Gore's office. According
to Graham, who testified at the hearing, his intention in
sending the contract and cover letter was to give recipient a
completed agreement which Respondent was willing to sign
subject to any suggested amendment as to shortening the
grievance procedure. Graham advised Harple by telephone
concerning this matter. Though Graham, in his cover letter,
had asked Gore to have Denecia execute the document and
return it, it was never sent back to (iraham, nor did he
receive any response to it.
After giving Graham his copy of the June 2 labor agree-
ment, Harple did not see it again until some time later,
when in Graham's office, Graham showed him a copy of
the contract as apparently rewritten by Graham. Though
Harple looked at Graham's copy at the time, and asked
questions about it, he did not then, or later, compare this
copy with that which had been reduced to writing by Fusile
and himself earlier.
Neither Gore nor Denecia testified concerning receipt of
the contract from Graham. But Fusile stated that although
he was not present at the local district office when the con-
tract arrived there from Graham, he later picked up a copy
of the contract, date stamped: "June 30, 1977, Lake Erie
District Council of Carpenters." He compared this docu-
ment with a working copy of the contract agreed to by
Harple and himself which had been forwarded to him on
June 9 by Harple. After finding them similar, he took the
copy whch he had obtained from Denecia to Harple on
July 5 and showed it to him,'6 advising him that the copy
Fusile claimed a majority, the record does not support his claim. In an)
event, however, since I have found that ratification was not made a precon-
dition, whether or not a majority of employees signed checkoff authorization
cards, it is irrelevant to the decision rendered herein.
'~ Harple testified that the Union was to get signed authorization cards
from unit employees indicating ratification or the contract. I have found,
however, that ratification was never agreed to by the Union as a precondi-
tion to execution of the contract, and cannot therefore be relied upon by the
Company as a legitimate basis for refusing to execute an otherwise agreed
upon contract. Houchens Market of Elizabethtown, Inc., 155 NLRB 729
(1965).
IF G.C. Exh. 4, unsigned at the time.
had been received, but that the reVised grievalice procedure
had not yet been completed. At this point, according to
I:usile, Ilarple asked him for the first time it he had ob-
tained the dues checkoff authorization cards from the unit
employees to show ratification, I:usile replied that obtain-
ing authorization cards and ratification was not part ol the
deal, that they had agreed on a contract and had shaken
hands on it. Ilarple replied, "If you don't rati) it. I amn not
going to sign it." Fusile therelore went out to talk to the
employees about signing authorization cards. but was un-
successful.
Harple denied that he met with Fusile on July 5. IHe
maintained that he was out of town on that day. relying on
his appointment calendar for support. Moreover, he testi-
fied, he did not see Fusile in June or July afler the June 2
meeting. On the other hand. Harple testified that in mid-
July he received a telephone call fronl either Fusile or
[)enecia during which he was asked to sign the contract. In
response, larple asked whether the Union had obtained
ratification and the signed authorization cards. When the
reply turned out to he negative. H-arple stated, "Until you
do that, I don't feel that I should sign the contract."
Whether the contract occurred, in person as Vlusile testi-
fied, or was by telephone' as larple testified. is of little
import. In either case, the Union was attempting to obtain
Respondent's agreement to the contract and Respondent
was refusing to execute the contract until ratification by
means of signatures on checkoff authorization cards was
accomplished. In either case, there is no indication from the
record that the Union agreed. in July. that ratification
would be a precondition to execution of the formerly
agreed upon contract. Ihis condition had been unilaterally
set by Respondent back on June 2, if not earlier.
Throughout the rest of July and early August there was
no contact between the parties." On August 15, Fusile. who
had been incapacitated because of an accident, visited the
plant and presented a signed contract" fr execution. He
stated, "Ernie (Denecia). signed this. All we are waiting for
is your signature." He then placed the document on
Harple's desk. HIarple, however, did not look at the docu-
ment, but instead asked Fusile if he had the checkoffautho-
rization cards signed. When Fusile said that he did not,
Harple stated: "Get the contract ratified and I will sign it."
Fusile replied, "We agreed on a contract on June the 2nd.
We shook on it on June the 2nd. As far as I am concerned.
we have an agreement."" Harple replied that until the
"floor" ratified the contract, he received the checkoff cards.
and he was assured of a work force, he would not sign the
contract.
Upon being advised that Harple would not sign the con-
tract without ratification by the employees in the unit,
l? Fusile also testified that he may have called Harple by telephone on July
18. but was not certain.
i$ Fusile testified that he telephoned Harple's office and home several
times, but his calls were not returned.
" G.(C Exh. 4.
20 Fusile's description of the meeting of August 15 is strikingly similar to
his description of the meeting of July 5, which Harple denies ever occurred
For this reason I am inclined to find that there was no Jul) 5 meeting, but
that the contents of the alleged July 5 meeting is a fictional composite of
what occurred during the meetings of June 2 and August 15 and the tele-
phone call of July 18.
6301
SENECA ENVIRONMENTAl PRODUCTS
Fusile, as noted earlier, requested permission to talk with
them once again. Harple granted permission, but Fusile's
attempt to obtain agreement from the employees to sign
checkoff authorization cards once again proved futile and
Fusile left the premises without satisfactory results after ad-
vising Harple that he still intended to get the signatures on
the cards.
In September. Fusile again called Harple but was re-
ferred to Graham. Arrangements were made for the three
to meet in Harple's office on September 20. On the ap-
pointed date. Fusile arrived before Graham and waited in
Harple's outer office until Graham arrived. When Graham
arrived, he and Fusile went to talk with Harple. According
to Fusile. he told Harple that he had gotten the checkoff
authorization cards signed, but that Harple replied that he
did not have enough cards, that he wanted "the thing rati-
fied." Again, according to Fusile. Harple then stated, "You
know what the situation is. I need personnel to run this
plant. You know all the guys will quit." Harple. however.
testified that he did not meet with Fusile alone on Septem-
ber 20, but that Graham was always present. He further
testified that at no time did Fusile offer to show authoriza-
tion cards or even indicate that he had them to show. Ac-
cording to Harple, Fusile stated that if he did not obtain
ratification, on September 20, he would "walk." Graham
supported Harple's testimony. On cross-examination,
Fusile appeared to waiver and indicated that it was on
some other occasion that he had advised Harple that he had
obtained signatures on the checkoff authorization cards.2' I
credit Harple and Graham's description of the events which
occurred on September 20. At the end of the meeting on
September 20, arrangements were made by Fusile and Gra-
ham to meet in a couple of days with the employees.
On September 22, in accordance with the arrangements
made 2 days earlier, Fusi!e met with the employees, later to
be joined by Graham. According to Harple. Fusile and
Graham met with him after the meeting, and Fusile an-
nounced that he had taken a poll and that he only had a
few people who would sign dues checkoff authorization
cards and who were in favor of ratifying the contract. He
also stated that Harple would lose his work force because
over half of the employees stated that they would leave his
employ if Harple signed the contract. Neither at this nor at
any time. before or after, did Fusile announce that he had
obtained the support of a majority of the rank-and-file em-
ployees for ratification.
4. Position of the parties
As noted above. Respondent takes the position that the
Union agreed from the beginning that ratification of the
contract by the employees. as evidenced by execution of
dues checkoff authorization cards by a majority of them.
was a precondition to execution of the contract by Respon-
dent. I have found the although the existence of such a
precondition may have been the understanding of Respon-
21 Though I do not consider the fact of whether or not usile obtained a
majority of signatures on the checkoff authorization cards at all controlling
in the instant case. I find nevertheless, that he failed to do so and at no time
obtained the majority he claimed
dent's officers. and the Union had announced its intention
to seek ratification. the alleged precondition was necer put
specifically into words and in the absence of the required
specificity, such a precondition will not he implied. I ind,
therefore, that ratification was not a precondition to execu-
tion of the contract and unless there is some other impedi-
ment to Respondent's executing the basic agreement agreed
upon on June 2. Respondent is in violation of the Act in
refusing to do so.
During the hearing Respondent noted that the document
presented by Fusile to Harple on August 15. General Coun-
sel's Exhibit 4. which purported to be a copy of the contract
agreed upon on June 2. as revised by the parties' respective
attorneys. was not in fact, the same as the one agreed upon.
Attorney Graham noted in a post-hearing letter that it dif-
fered from Respondent's Exhibit 3. which he personall
drew up on behalf of Respondent for execution bh the
Union. in that the International Union's name aas stricken
from the document whenever it appeared and the name of'
the Lake Erie District Council of Carpenters. substituted.
Respondent emphasizes that it considers this to be a funda-
mental change because it desires the International to be
bound to any agreement entered into by the parties.
Analysis and comparison of the two documents reeals
that the described change in the name of the U'nion did, in
fact, occur, twice in the grievance section (that section. inci-
dentally, never having been revised 2 as initially planned:
once in "Article XIII Union Responsibility') and finall?,
on the signature page. The documents are othervise identi-
cal.
With regard to the execution of either contract, Ilarple
testified at the hearing:
A. If I received the checkoff cards as agreed. I
would have gotten with my lawyer regardless of when
it was or what else I would have had to do :ind re-
viewed it with him and if he said that the legal terms
were proper and the intent was not changed. I would
have signed it. That is correct.
Respondent's attorney. Arthur Graham testified as fol-
lows:
Q. And is it your understanding that your client
would be willing to sign Respondent's Exhibit No. 3
today if he had proof that the employees had ratified
that contract? Is that our position?
A. Respondent's Exhibit No. 3?
Q. That is correct.
A. Being the contract that I prepared. that is cor-
rect. That has always been our position since opening
statement.
Q. Your understanding is that Mr. Harple would
place his signature on that document if he had proof
that the employees had ratified it?2'
22 The planned revision and shortening of the grievance procedure wais
included neither n Graham's copy of the contract. Resp Ekh 3. not In the
tinion's copy, G.C Exh 4. Although reslsed griesance procedure. C; (
Exh 5, was eventually prepared bh the union attorne), t .Ias notI rece,scd
by Fusile until a few dass belore the hearing and was never submitted
Respondent for consideration.
23 (raham agreed to execute the document as Is. een tllh the iong. cUr
bersome grievance provision which had been iniluded
6l1
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Yes. by the presentation of the dues checkoff
cards in the manner that he has related from the begin-
ning, was the agreement.
Clearly. by Respondent's own admission. but for the is-
sue of the precondition of ratification by means of execu-
tion of checkoff authorization cards by employees, which I
have already fund not be a precondition, and therefore not
an issue, it would be willing to execute Respondent's Ex-
hibit 3 as the contract agreed upon by the parties on June 2.
Having found that no precondition or other impediment
exists upon which Respondent may rely in refusing to ex-
ecute the labor agreement previously agreed upon, I find
Respondent's refusal to execute the document, Respon-
dent's Exhibit 3,24 in violation of Section 8(a)(5) of the Act.
In summary, I have found that Respondent has insisted
since June 2 that the contract be ratified as a condition of
signing the agreement, in spite of the fact that ratification
had not been mutually agreed to as a precondition to or
term of the final agreement reached. Since ratification of a
contract, under these circumstances, is a nonmandatory
subject of bargaining, Respondent's insistance to impasse
on ratification is tantamount to an improper refusal to bar-
gain. Accordingly, Respondent's refusal to sign the agree-
ment presented is violative of Section 8(a)(5) and (I) of the
Act. C& W Lktra Bat Co., 209 NLRB 1038 (1974), South-
land Dodge, Inc., 205 NLRB 276 (1973): Southeastern
Michigan Gas Companv, 206 NLRB 60 (1973).
5. Discontinuance of safety meetings
The complaint alleges that in July,25 Respondent, without
prior notification to the Union. discontinued safety meet-
ings which had been established by, and had occurred, un-
der the terms of the negotiated, but unexecuted, collective-
bargaining agreement. The contract does, in fact, contain
"Article XVII Weekly Labor Management Meetings." and
provides for periodic meetings between the Company and
the Union for purposes of discussing mutual problems re-
garding production, quality control, and similar matters.
As noted earlier, once the basic agreement was arrived at
on June 2, the parties agreed that certain provisions thereof
would be implemented retroactively as of June 1. One of
the provisions so implemented was article XVII, and begin-
ning about a week after the last negotiating session, labor
management meetings were initiated. Initially, the meetings
were held on a weekly basis. Safety and production prob-
lems were discussed, just as provided for in the agreement,
at least at the beginning. Later, again according to Harple.
these meetings devolved into gripe sessions about the way
the Company was operated, then about the Union, but
throughout, employee problems were discussed. The Com-
pany was represented at these meetings by Harple and
Smith while Charles Bernard and William Allen, both unit
employees. participated on behalf of the Grievance Safety
Committee.
U The General Counsel. during his closing argument stated: "On behalf of
the General Counsel and . .on behalf of the Union, it would not disturb us
if you order the Employer to execute Respondent's Exhibit No. 3."
2" Harple testified that the last meeting was in August.
According to Harple, after the unfair labor practice
charge was filed, he consulted his attorney who advised him
to discontinue the meetings. At the same time. Harple testi-
fied, Allen stopped attending the meetings for personal rea-
sons and Bernard also quit coming to the meetings, stating
that not much was being accomplished. According to
Harple. he placed no notice on the bulletin board concern-
ing the cancelling of these meetings: they just died. Al-
though Harple testified that the Union never requested ad-
ditional safety/grievance meetings, their discontinuance
was the subject of an amended charge filed on November 3.
Despite being put on notice of the Union's displeasure with
the discontinuance of the safety meetings, Respondent did
not, so far as the record indicates, seek to reinstitute the
practice of holding safety meetings, nor did Harple or his
attorney contact the Union concerning the matter. Though
mostly implied rather than stated, from the general tenor of
Harple's testimony, it appears that the employees attending
the later meetings spent much time complaining about the
Union. particularly about dues requirements and their not
being permitted to have their own local after having been
told initially that they could. Rather than getting involved
in such discussions, which Harple felt were not his concern,
he refused to talk about such matters. Thereafter, following
the filing of the unfair labor practice charge, and upon ad-
vice of counsel, he simply ceased holding the meetings.
Although, as Harple testified, the practice of holding
these periodic grievance/safety meetings may simply have
fallen into desuetude through lack of interest on the part of
the employees, nevertheless, he also admitted that they
were discontinued unilaterally by the Company upon ad-
vice of counsel. Inasmuch as the meetings were provided
for by the labor agreement which the parties mutually
agreed to implement retroactively, and which, but for Re-
spondent's unlawful refusal to execute, should have been
effectuated in its entirety, Respondent was obligated to bar-
gain any change in its provisions with the Union, and its
unilateral discontinuance of these meetings without obtain-
ing the Union's agreement was clearly violative of Section
8(a)(5) of the Act. and I so find.
CONCUI.USONS ()F LAW
I. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and it will effectuate
the purposes of the Act to assert jurisdiction herein.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All regular and part-time production employees. but
excluding all office clerical employees, professional, engi-
neering, technical, school work programs, administrative
employees, including working supervisors and guards as de-
fined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act.
4. Since April 25. 1977, the Union has been the duly
designated exclusive representative of the employees in the
aforesaid appropriate unit.
5. By refusing to sign a collective-bargaining agreement.
the terms of which were otherwise agreed upon. unless and
until the contract was first ratified by a majority of the
632
SENECA f:NVIRONMNlNT'AI PR()tI)('IS
employees in the appropriate unit. Respondent has refused
to bargain with the Union in iolation of Section 8(a)15)
and (1) of the Act.
6. By unilaterally, and without prior notification to the
Union, discontinuing safety meetings which had been insti-
tuted, and had occurred, under the terms of the aforesaid
collective-bargaining agreement, Respondent has refused to
bargain in violation of Section 8a)(5) and (I) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Tii: RNMI:I)Y
Having found that Respondent has violated Section
8(a)(5) and (I) of the Act I will recommend that it be or-
dered to cease and desist therefrom and take certain affir-
mative action as set forth below designed to effectuate the
policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record herein considered as a whole.
and pursuant to Section 10(c) of the Act. I issue the fillow-
ing recommended:
ORDER 26
The Respondent, Seneca Environmental Products. Inc..
its officers, agents, successors, and assigns. shall:
I. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Lake Erie District Council of Carpenters, affiliated with the
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, and United Brotherhood of Carpenters and
Joiners of America," AFL-CIO. by refusing, upon request,
26 n 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. 1024R
of the Rules and Regulations, he adopted b) the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
27 The name of the district council appears on p. I and the International
appears on the signature page of the labor agreement identified as Resp
Exh. 3, which all parties have agreed is most acceptable under the circum-
stances.
to sign the collective-bargaining agreement designated in
the records and herein as Respondent's Exhibit 3, the terms
and conditions of which were agreed upon on June 2. 1977.
b) t nillaterall 5 , and without prior notification to the
I nion. discontinuing the holding of grie; ance safety meet-
ings Which were instituted, and which ere held. under the
terms of the ;tafresaid collecti, c-bargamlng agreement.
(c) In any like or related manner nter i tering ith, re-
straining, or coercing employees in the exercise of their
rights to seltf-organization, to form. join or assist labor or-
ganizations, to bargain collectivsel through representatives
of their own choosing. and to engage in other concerted
activities for the purposes of collectie h;argaininig or other
mutual aid or protection. or to refrain from anm, and all
such activities.
2. Take the following affirmative action necessars to ef-
fectuate the purposes and policies of' the Act.
(a) Upon request bh the LUnion sign the collective-bar-
gaining agreement designated herein as Respondent's Ex-
hibit 3, the terms and conditions of which sere agreed upon
on June 2. 1977.
(b) Upon request by the Union. reinstitute the holding of
griesance/safety meetings in accordance with the terms of
the aresaid collective-bargaining agreement.
(c) Post at its Tiffin, Ohio. place of business copies of the
attached notice marked "Appendix. " : Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 8. after being duly signed b its authorized representa-
tive, shall be posted by Respondent immediately upon
receipt thereof; and be maintained bN it for 60 consecutiv e
dass thereafter, in conspicuous places. including all places
where notices to employees are customarily posted. Reason-
able steps shall he taken bh Respondent to insure that said
notices are not altered, defaced, or covered hby an other
material.
(d) Notify the Regional D)irector for Region 8. in writ-
ing, within 2( days from the date of this D)ecision. what
steps have been taken to comply herewith.
2t In the eent that this Order s entforced bh a Judgement of ai lnited
States Courl of Appeals. the Words in the nontice reading "Posted hb Order of
the National Labor Relations Board" shall be read "Posted Pursuant to a
Judgment of thc I nited States (ourt 1o Appeal, tnforcing an Order of the
National Labir Relalhions Board"
633