University of Bridgeport

National Labor Relations Board - Board Decisions

Jun 1, 1977

229 N.L.R.B. 1074 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
University of Bridgeport and University of Bridgeport
Chapter, American Association of University Pro-
fessors. Case 2-CA-14120
June 1, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On December 9, 1976, Administrative Law Judge
Robert M. Schwarzbart issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision and a brief in reply to the
Respondent'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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
In adopting the Administrative Law Judge's
finding that the Respondent violated Section 8(a)(l)
and (5) of the Act by the action of its board of
trustees in repudiating the collective-bargaining
I The Respondent contends that even if trustee ratification had not been
made a condition to the agreement it still did not violate Sec. 8(aX5) and (1)
of the Act by repudiating the contract on February 13, 1976, since
ratification by the AAUP membership, a condition to the agreement, was
not certain until a vote was taken by the AAUP membership on March 17,
1976. The Administrative Law Judge found no merit in this contention as in
his view "AAUP membership ratification had not been made an agreed
prerequisite to a contract." The General Counsel, in his brief in reply to the
Respondent's exceptions, contends that the memorandum of agreement was
dated and executed on January 31, 1976, subject only to union membership
ratification. (At the hearing held herein, the General Counsel took the
position that AAUP membership ratification was not a condition to the
agreement.) In rejecting the Respondent's contention, we find it unnecessary
to determine on this record whether or not such membership ratification
was actually made a condition to the agreement since it is clear, in any
event, that the AAUP membership ratified the agreement in a secret-ballot
vote on February 1, 1976, and that notice of such ratification was given to
the Respondent on the same date or on the following morning.
In the early morning of January 31, 1976, a conversation took place
between Goldstein, the AAUP's attorney, and Rowell, the Respondent's
vice president for business and finance. During the course of that
conversation, a suggestion was made by Goldstein that a University trustee
be placed on the impasse committee rather than the Respondent's president.
Neither Goldstein nor Rowell testified with regard to the circumstances
surrounding this suggestion, but the parties did stipulate as to what their
testimony would have been had they been called to testify. According to
Goldstein, whose version of the conversation was credited, Rowell stated
that he did "not want to get the trustees involved in the day-to-day
administration of the University as there had been 'a bad track record' with
the trustees' involvement and that it was not right to bypass the respondent's
president." According to Rowell, he told Goldstein that the board of
trustees would reject such an arrangement. On February 3 and 10, 1976,
conversations took place between representatives of the Respondent, Rowell
and Heneghan, and representatives of the AAUP, Daigle and Douglas.
While the above people did not testify with regard to these conversations,
229 NLRB No. 164
agreement executed on January 31, 1976, we recog-
nize that resolution of the issue as to whether the
parties had reached a final and binding agreement on
that date or whether they had reached only a
tentative agreement subject to the final approval of
the Respondent's board of trustees is not free from
doubt. However, the law is clear that when an agent
is appointed to negotiate a collective-bargaining
agreement that agent is deemed to have apparent
authority to bind his principal in the absence of clear
notice to the contrary.2 Applying this principle to the
instant case, we conclude, as did the Administrative
Law Judge, that the Respondent, by its words and
deeds, created an ambiguity with regard to the
authority of its negotiators. As pointed out by the
Administrative Law Judge, this ambiguity could
have easily been avoided if the Respondent had
simply stated in advance of negotiations that any
agreement reached was subject to the final approval
of its board of trustees. Having failed so to state in
advance, we can not say that the AAUP unjustifiably
relied on the representations of the Respondent's
representatives, and their exercise of full authority
during the time in question, in concluding that
trustee ratification was unnecessary. Indeed, the
Respondent waited nearly 2 weeks and had already
publicly announced and began implementing the
agreement before the union was advised the agree-
ment was not yet final. Accordingly, we affirm the
Decision of the Administrative Law Judge.
the parties did stipulate as to what each would have testified to had they
been called to testify. According to the Respondent, references were made
during each of the above conversations to the requirement of board of
trustees' approval. Specifically, on February 3, Rowell told Daigle that the
AAUP should limit its publicity with regard to the January 31 agreement as
that publicity was going to make it diflicult for the trustees to accept the
agreement. On February 10, Rowell told Daigle and Douglas that the
Respondent was going ahead with naming individuals to serve on various
committees provided for in the agreement because the administration
expected trustee ratification and desired to comply with the timetables
therein. In finding contrary to the Respondent's officials that approval by
the board of trustees was not mentioned during the course of the above
conversations, the Administrative Law Judge relied, in part, on an
inconsistent stipulation which he found had been entered into by the parties.
That stipulation, according to the Administrative Law Judge, stated that the
AAUP had not conducted a press campaign in February 1976. As conceded
by the General Counsel, no such stipulation was entered into by the parties.
The Respondent merely stipulated that Goldstein would have testified to
that had he been called to testify. While we recognize that the Administra-
tive Law Judge erred in finding that the above-mentioned stipulation had
been entered into, we, nevertheless, adopt his credibility findings with
regard to all of the above-mentioned conversations as we have determined
that they are consistent with the preponderance of the evidence, and also
consistent with the view shared by the parties, that a formal agreement had
been reached as of January 31, 1976.
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Adams Iron Works, Inc., 221 NLRB 71 (1975); Aptos Seascape
Corporation, 194 NLRB 540, 544 (1971).
1074
UNIVERSITY OF BRIDGEPORT
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 Administrative Law Judge and
hereby orders that the Respondent, University of
Bridgeport, Bridgeport, Connecticut, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law Judge:
This case was heard on July 12, 13, 14, and 15, 1976, in
New York, New York, pursuant to a charge and amended
charge,' filed by the University of Bridgeport Chapter,
American Association of University Professors, herein the
AAUP, and a complaint issued on March 30, 1976.
The complaint alleges that the University of Bridgeport,
herein the Respondent, has engaged in certain unfair labor
practices in violation of Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended, herein the Act.
The Respondent has filed an answer denying the allega-
tions of unlawful conduct set forth in the complaint.
Issues
1. Whether the Respondent and the AAUP reached a
final and binding agreement as to the terms of a second
collective-bargaining contract, or whether the parties only
reached a tentative agreement which the AAUP either
knew or should have known was to be subject to final
approval by the Respondent's board of trustees.
2. Whether the Respondent violated Section 8(a)(I)
and (5) of the Act when its trustees repudiated the above
fully negotiated collective-bargaining agreement previously
reached by its negotiating committee and that of the
AAUP and by its subsequent refusal, to date, to execute a
formal contract embodying its terms.
At the hearing, all parties were represented by counsel
and given full opportunity to appear, to introduce evi-
dence, to examine and cross-examine witnesses, and to file
briefs. Upon the entire record, the briefs filed by the
General Counsel and the Respondent, and upon my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent, chartered by the State of Connecticut,
at all times material herein, has operated a private,
nonprofit university, maintaining its principal offices and
campus in Bridgeport, Connecticut, where it is and has
been continuously engaged in providing educational and
related services.
I The original and amended charges were filed on February 17 and 20,
1976, respectivel).
During the past year, which period is generally represen-
tative of its annual operations, the Respondent, in the
course and conduct of its operations, derived gross
revenues therefrom in excess of $1 million. Also during the
past year, the Respondent, in the course and conduct of its
operations, purchased and caused to be transported and
delivered to it goods and materials valued in excess of
$50,000, of which goods and materials valued in excess of
$50,000, were transported and delivered to it in interstate
commerce directly from States of the United States other
than the State of Connecticut.
Upon these admitted facts, I find the Respondent is, and
has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
1. THE LABOR ORGANIZATION INVOLVED
The AAUP is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
Il. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Pursuant to a representation election conducted on May
10, 1973, in which a majority of the employees in the unit
described below designated the AAUP as their collective-
bargaining representative, the Regional Director of Region
2 of the Board, on May 18, 1973, certified the AAUP as the
exclusive representative of the employees in the following
appropriate unit:
All full-time staff members who hold faculty and
professional rank, including teachers, librarians,
counselors, the director of audio-visual services, depart-
ment chairmen, and athletic coaches employed by the
Respondent at its University, excluding all part-time
staff members, office clerical employees, the president,
vice-president, deans, assistant deans, staff holding
professional or faculty rank in the offices of Admissions
and Registrar, vice-president of academic affairs,
evening division, management services, and continuing
education, watchmen, guards and all supervisors, as
defined in Section 2(11) of the Act.
B. The Earlier Negotiations
The violation alleged herein involved the Respondent's
repudiation of and refusal to sign a collective-bargaining
agreement which the General Counsel and the Charging
Party contend finally was negotiated on January 31, 1976.
As will be discussed below, certain steps were thereafter
taken by the Respondent to effectuate the terms of the
January 31 agreement. However, on February 13, 1976, the
AAUP was informed by the Respondent that the Universi-
ty's board of trustees had refused to ratify the previously
negotiated collective-bargaining agreement because of its
disagreement with a specific provision contained therein.
The General Counsel contends that the Respondent's
1075
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiating committee had been clothed with apparent
authority to so bind the Respondent without subsequent
approval by the Respondent's trustees and that the
Respondent's refusal to thereafter execute a formal
agreement embodying the parties' agreement constituted
an unlawful refusal to bargain within the meaning of
Section 8(a)(5) and (1) of the Act. The Respondent, in turn,
asserts that the AAUP has always understood that any
agreement negotiated would be subject to ratification by
the Respondent's board of trustees and, accordingly, the
complaint is without merit. To fully consider the parties'
contentions, it is relevant to review what has occurred in
the past.
David E. Reilly, the Respondent's director of personnel
services, 2 testified without contradiction that the AAUP,
after its May 1973 certification as bargaining representa-
tive, began to negotiate for a first contract with the
Respondent in October of that year. On October 12, the
AAUP submitted a series of proposed rules for the conduct
of negotiations, designating its negotiating team 3 and
requesting that it be furnished with a statement by the
Respondent's administration, indicating the scope of
authority of the administration negotiating committee to
bind the administration to contract provisions agreed upon
in negotiations, "subject to ratification by the Board of
Trustees." Almost concurrently, the AAUP also conveyed
to the Respondent a letter of authority, dated October I,
1973, signed by Winsor, to the effect that the AAUP
negotiations committee had full authority to negotiate with
no blockage from any of the AAUP's administrative or
executive committees, with the right to take part or all of
any agreement directly to the members of the bargaining
unit. The letter noted that any final agreement must be
ratified by the AAUP membership.
The Respondent's letter of authority, dated November
21, in response thereto, contained the following paragraph:
You requested also that we advise you regarding the
scope of the authority of the Administration Negotiat-
ing Committee to bind the Administration to contract
provisions agreed upon in negotiations subject to
ratification of the Board of Trustees. The University's
Negotiating Committee will have such authority with
reference to all matters legally subject to collective
bargaining.
Reilly explained that on or about October 1, 1973, the
Respondent's then incumbent president announced his
resignation to become effective in June 1974, accompanied
by a request that he be removed from administrative
responsibilities. Accordingly, the board of trustees desig-
nated three vice presidents as the administrative committee
to conduct the daily operations of the institution. Reilly
2 Reilly, charged with recruitment and administration of fringe benefit
and wage salary programs and labor relations matters for the Respondent,
has been a member of the negotiating committee assigned to work with the
AAUP from the start of their bargaining relationship.
3 The AAUP negotiating team was headed in 1973 by William T.
Winsor, then president of the AAUP University of Bridgeport Chapter.
4 Miles' memorandum also contained certain substantive bargaining
proposals.
- The narrative that follows is based principally upon the testimony of
Richard J. Daigle, associate professor and chairman-designate of the
testified that from October 1, 1973, until the arrival, in
August 1974, of the Respondent's current president, Dr.
Leland Miles, as the Respondent was then operating
without an effective president, the trustees had a closer
involvement than was customary in the day-to-day opera-
tions of the University.
When Miles became the Respondent's president in
August 1974, negotiations for the first collective-bargaining
agreement, still in progress, were stalled. At a negotiating
session on August 30, 1974, Miles distributed to the
members of both bargaining teams his memorandum of
that date entitled "Suggestions for a Fresh Start." This
memorandum contained the following passage:
The new administration should not be confused with
the former or current Board of Trustees. Under a
written agreement between the Board Chairman and
me, the Board reverted on 8/15/74 to its proper
function as the approver of long-range policy. Specifi-
cally, the Board henceforth will stay our [sic] of
"management." This means, in practice, that major
problems will henceforth be worked out between the
new administration and the other constituencies,
without improper interference from the outside. 4
At the time Miles distributed this memorandum he
stated to those then present that pursuant to the terms of
his contract with the Respondent's board of trustees, he
was authorized to run the day-to-day affairs of the
University without any interference from that body. 5
Miles' conciliatory memorandum of August 30, appar-
ently failed to sufficiently stimulate the slowly moving
negotiations and during the first week of September Dr.
Hommer Babbidge of Yale University, at the request of the
parties, became involved as mediator.
The parties, with Babbidge's assistance, reached an
agreement on the terms of their initial collective-bargaining
agreement on September 8, 1974, thereby averting a strike
that had been authorized for the next day. 6 The 1974
agreement was promptly effectuated and, in January 1975,
a formal collective-bargaining agreement was executed
embodying the terms of that accord. As had been specified,
on September 8, the new agreement was effective retroac-
tively from September 1, 1974, to August 31, 1975. Beyond
the initial correspondence of October 12 and November
1973, described above, the Respondent did not adduce
evidence that the AAUP was affirmatively notified by the
Respondent that its board of trustees, at any time had
ratified the 1974 collective-bargaining agreement. On the
other hand, the agreement had been signed at a time when
the Respondent was facing an imminent faculty strike at
the start of the academic year. As part of the September 8
agreement, the Respondent's negotiating committee agreed
Respondent's English Department. Daigle, also the current AAUP president
has been involved in negotiations with the Respondent since late May 1974,
when he first became an officer of the AAUP.
6 The parties' agreement of September 8, 1974, was encompassed in a
mediator's memorandum signed by Babbidge and representatives of the
principals. Provision was made for a collective-bargaining agreement,
effective retroactively from September 1, 1974, to August 31, 1975. In
addition, the parties agreed to submit any remaining contractual matters
still unresolved by October 15, 1974, to Babbidge for final or binding
arbitration.
1076
UNIVERSITY OF BRIDGEPORT
to submit any unresolved contract issues remaining after a
date certain to binding arbitration. 7
C. The Most Current Negotiations and the Events
That Followed
Faced with a contract expiration date of August 31, 1975,
negotiations for a second contract began on the preceding
May 14. Included among those on the Respondent's
negotiating team for the new negotiations were Frederick
L. Sullivan, the Respondent's attorney, who served as
principal spokesman, and Director of Personnel Services
Reilly. Harry Rowell, the Respondent's vice president for
business and finance, was also present at bargaining
sessions, but was not formally a member of the negotiating
team.
The AAUP five-member negotiating team was chaired
by Alfred Gerteiny and included Daigle and Norman
Douglas, a professor in the Economics Department. As at
the start of the earlier negotiations, the AAUP furnished
the Respondent with a letter dated May 12, 1975,
informing the parties of the authority of the negotiating
committee to negotiate without interference by the stand-
ing committees of the AAUP, to take parts or all of any
agreement reached directly to the members of the bargain-
ing unit, and that final agreement must be ratified by the
AAUP membership.
When the AAUP gave this letter to the University during
their May 14 meeting, it also requested that the Respon-
dent furnish a similar letter setting forth the authority of its
team to negotiate to a binding contract. Sullivan reluctant-
ly promised to comply.
Accordingly, Respondent's president, Miles, sent the
following letter, dated May 27, 1975, to Daigle as local
AAUP president:
This is to advise the University of Bridgeport
Chapter of the AAUP that Frederick L. Sullivan, Esq.,
will be representing the University in negotiations
toward a new or amended Labor Agreement with the
University of Bridgeport Chapter of the AAUP. He will
be accompanied in negotiations by various members of
the administration, who together with Mr. Sullivan will
constitute the University's Negotiation Committee. The
University's committee, in accordance with the stan-
dard collective-bargaining procedure, will have authori-
ty to make tentative commitments subject to the final
approval of the Counselor [sic] of Deans and the
President of the University."
The second negotiating session took place on July 2,
1975. Unlike the preceding narrative, certain material facts
of this meeting were disputed. Gerteiny and Sullivan served
as spokesmen for their respective negotiating committees.
Gerteiny testified that, early during the July 2 meeting,
he told the administration negotiating team that the
authority attributed to them in Miles' letter on May 27 was
unacceptable because it meant that any agreement reached
7 It is undisputed that, at all times material herein, the AAUP had duly
advised the Respondent of the vanous ratification votes taken by its
membership.
R Miles' letter contained no reference to approval by the Respondent's
board of trustees.
by the Respondent's negotiating committee with the
AAUP would be subject to review by the Respondent's
council of deans and president. He then asked, "Are we to
realize also that the Board of Trustees would have to ratify
the agreement reached, and added, 'No, we don't feel you
have the proper authority to bargain in good faith with
us.' " When Sullivan asked Gerteiny to clarify his position,
he reiterated that he did not think that the Respondent's
negotiating team had proper authority. Gerteiny asked
Sullivan if he truly represented the University.
AAUP President Daigle, whose testimony corroborated
that of Gerteiny with respect to the July 2 meeting, testified
that after Sullivan had protested the need for exchanges of
such letters of authority as was sought by the Union, he, by
his own authority, withdrew Miles' May 27 letter and gave
the AAUP his own commitment that he and the Respon-
dent's negotiating committee had the power to make
binding agreement. Daigle, noting that Personnel Director
Reilly had been taking notes of the meeting on the
Respondent's behalf,9 responded by asking Sullivan wheth-
er the AAUP could have a statement such as he had just
made within the context of Reilly's notes and initialed by
Sullivan. Sullivan replied that he would be happy to
comply. Accordingly, on July 7, at the next negotiating
session, a typewritten copy of an excerpt from Reilly's
notes of the July 2 meeting, setting forth Sullivan's
representations as to the authority of the Respondent's
negotiating committee, was given to the AAUP. This
extract, initialed by Sullivan, was given in lieu of a letter of
authority.
Reilly, however, contrary to Gerteiny and Daigle,
testified that during the July 2 meeting, Gerteiny had
expressly stated his understanding that the trustees must
approve any agreement and that he had objected merely to
the interposition of additional ratification reviews by the
Respondent's president and council of deans. The Respon-
dent, to corroborate Reilly's version of what was stated at
the July 2 meeting, placed in evidence the notes taken by
Reilly at that session. It is not disputed that, although such
a copy of these notes had been in the AAUP's possession
since early July as evidence of the Respondent negotiators'
authority, the AAUP had never protested the accuracy of
the disputed segment. These notes provide, in relevant part,
as follows:
Gerteiny: We find your letter of authority inadequate
- because it shows the Council of Deans and the
President as steps which must review items you agree
to. They would have to review your agreements - we
realized the Board of Trustees must review or ratify an
agreement but don't feel that you have authority to
negotiate if the Council of Deans and President must
ratify.
Sullivan: Will you explain that?
Gerteiny: Do you represent the President?
Sullivan: Of course we do.
Gerteiny: I don't think you have authority for good
faith bargaining.
9 It has been specifically agreed by the parties that no single set of notes
would be taken for use by all parties.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sullivan: I have no reservations that our authority as
stated in the President's letter is more than is legally
required or proper. If you make any proposals we will
be in the position to give you the response of the
University - we will give you final commitments.
Gerteiny: You said these must be reviewed with the
Council of Deans and the President.
Sullivan: The Council of Deans and the President
will certainly have some participation in preparation of
positions - I will be the spokesman and I will present
commitments.
Gerteiny: I'm a historian and that in eight years at
UB I've learned that if something is not written down it
is not worth anything - you have our letter - we want
the same courtesy from you - look what happened to
our contract. I would like to quote from Morris' labor
law [sic] concerning interjection of additional bodies of
management - (Gerteiny read a section from Morris'
book concerning board [sic] decisions in cases where
management has refused to recognize agreements made
by bargaining at the table). We do not have to go to the
AAUP Executive Committee for approval - we only
turn to our members.
Sullivan: We have authority - our word will be it.
Gerleiny: Have the President tell us that in writing.
Sullivan: We will make commitments with the
Council of Deans and the President. The President
couldn't predict on May 27 what you will be asking for
and couldn't specifically authorize individual items in
advance.
Costello: 10 Why not reduce that to writing.
Sullivan: If the Council of Deans or the President
overruled the commitment made by the collecting-
bargaining team that would be contrary to board's [sic]
ruling and that what's Morris is talking about. Our
authority has been clearly communicated - no need
for further writing back and forth. My basic reluctance
is that it is absurd to engage in legalisms and reading
pages out of text books - we have more important
things to do - this is a straw issue - there is no merit
to this issue.
Douglas: 1 In light of our recent history of collective
bargaining when the administration bargaining team
had no authority, it was a protracted mess.
Sullivan: Speaking of history, you tell me about the
changes made when the new administration arrived in
July or August - were decisions made?
Gerteiny: I have high regard for you. I trust you, but
I want something substantive in writing.
Sullivan: All right, I'm withdrawing the President's
letter - and in its place you have what I said about my
authority.
Gerteiny: You mean we will receive a new letter from
the President?
Sullivan: No, we have withdrawn it - my authority
is what I have told you.
Daigle: Would you give us a copy of Reilly's minutes
referring to authority with your initials.
Sullivan: Okay.
'0 Peter Costello attended the July 2 meeting as a member of the AAUP
negotiating team.
Gerteiny: Agreement on issues depends on our
reading of the notes - it will supercede Miles' letter.
Sullivan: No, the letter is withdrawn - no longer
exists - Reilly's notes will be initialed and given to you
at the next meeting.
Although the General Counsel took the initiative in
introducing so much of Reilly's notes of the July 2 meeting
as related to Sullivan's reassuring assertions as to his
authority and that of the Respondent's negotiating com-
mittee to enter into a binding agreement without ratifica-
tion by outside authority, he disputes the accuracy of that
early portion of the notes attributing to Gerteiny a
statement that he realized that the Respondent's board of
trustees must review or ratify any agreement reached. The
General Counsel contends, as noted, that Gerteiny, in
rejecting Miles May 27 letter of authority on the ground
that any agreement reached would be subject to review by
the Respondent's Council of Deans and President, had
merely asked whether the AAUP was also to realize that
the board of trustees would have to ratify any agreement
reached. The General Counsel and the Charging Party
assert that, in this context, the reference to the board of
trustees by Gerteiny was no more than a rhetorical
question and not a stated realization by Gerteiny that
approval by the Respondent's trustees was mandatory. In
any event, the General Counsel noted that Miles' letter of
authority made no reference to ratification by the Respon-
dent's trustees. The General Counsel also contends that,
pursuant to the agreed practice, Reilly's notes did not, as to
the disputed segment, constitute an official record of the
meeting, that Reilly's notes were not necessarily accurate
as to all matters as he would record only those matters he
considered to be important and did not use shorthand.
Reilly also conceded to exercising a certain selectivity of to
which of his notes of bargaining sessions were prepared in
typescript. Accordingly, of the approximately 40 negotiat-
ing sessions Reilly recorded, only 6 or 8 were subsequently
typewritten. Such transcriptions usually occurred when one
of the members of the Respondent's negotiating team had
been absent and Reilly wanted to have a record superior to
his handwriting. Although Reilly could not recall all the
events of the July 2 meeting on a verbatim basis, he did
testify that he had an independent recollection that
Gerteiny had stated a realization that the Respondent's
trustees would have to ratify any agreement and that, in
this regard, his notes were accurate.
The Respondent argues that Reilly's testimony as to the
events of the July 2 meeting, corroborated by his notes,
should be credited as such notes were taken spontaneously
in the normal course of business at a time before the
existence of the present controversy. In addition, the
AAUP had requested and, since July 7, 1975, had retained
in its possession a copy of these notes without having
protested their accuracy.
Although the General Counsel and the Charging Party
raised material questions as to accuracy of Reilly's notes
during cross-examination, I credit Reilly's version of
Gerteiny's disputed remarks made during the July 2
1 As noted, Norman Douglas was also present at the July 2 meeting as a
member of the AAUP negotiating team.
1078
UNIVERSITY OF BRIDGEPORT
meeting, essentially for the above-noted reasons urged by
the Respondent. Reilly's notes were recorded in the normal
course of business before the existence of the present
controversy and the AAUP, although long in possession of
a copy thereof, had not protested their accuracy.' 2 Also,
the General Counsel and AAUP, to illustrate the scope of
authority claimed by the Respondent's negotiators, placed
a different section of the same excerpt into evidence. For
his part, Reilly appeared to be a forthright witness who
freely conceded the defects in his note-taking system, but
who, on this point, could testify from memory. I therefore
credit Reilly's version of what Gerteiny stated concerning
ratification by the Respondent's trustees.
Contract negotiations continued. Thereafter, on Septem-
ber 8, 1975, prompted by the fact that no agreement had
yet been negotiated, the members of the AAUP went out
on strike, which continued until September 10, 1975, when
a strike settlement agreement was executed. The strike
settlement agreement extended the terms of the 1974
collective-bargaining agreement to January 31, 1976,
provided certain economic and job security benefits, and
noted that the probationary period for the acquisition of
tenure would be 7 years.13 The previous probationary
period had been 5 years.
The AAUP membership approved the strike-settlement
agreement and returned to work on September 10.
Contract negotiations resumed on the remaining items in
October 1975. During that month the members of the
respective negotiating teams divided into subcommittees,
each taking up some of the outstanding issues. Daigle, who
had participated as AAUP chairman of one of the two
subcommittees, testified that it was agreed at that time by
the AAUP and the Respondent, by Sullivan, that the
subcommittees would have the power to make binding
agreements of the issues before them, subject only to
rewriting by the attorneys for legal purposes.
Negotiating sessions proceeded during the subsequent
months. On the evening of January 29, 1976, both
negotiating committees met at the Holiday Inn in Bridge-
12 Gerteiny explained that, although he had received a copy of the notes
in early July 1975. he had examined them only as to the accuracy of
Sullivan's statements of authority.
11 The reference in the strike-settlement agreement to an extension of the
probationary period for the acquisition of tenure to 7 years was, in effect. a
reference to the resolution of a dispute affecting faculty tenure which
previously had been resolved by the respective negotiating committees by a
stipulation. dated August 18, 1975. This problem had arisen on Apnl 16,
1975, when, in a memorandum to the Respondent's faculty and administra-
tion. President Miles, citing fiscal exigency, announced that the Respon-
dent's trustees had directed him, inter alia, to freeze the awarding of tenure.
Tenure was defined by Daigle as the reward of a permanent contract by the
Respondent to a faculty member based upon the member's record of
meritorious service as a teacher and scholar, and the recommendation of his
peers and superiors. In accordance with Miles' memorandum, nine
individuals who had been recommended for, but had not yet received,
tenure thereafter received letters notifying them that at the end of I year
they would be terminated. A grievance was filed and processed but, before
arbitration, the stipulation of agreement was reached by the parties. as
noted, on August 18. By the terms of this agreement, the AAUP withdrew
from arbitration its pending grievance regarding the imposition of the tenure
freeze. The Respondent, in turn, revoked its letters of terminal appointment
to the nine faculty members involved and agreed to issue them new letters of
appointment which provided, in effect, that each such faculty member at the
conclusion of 7 years of service with the Respondent shall receive tenure.
The General Counsel and AAUP cite this incident to indicate another
instance where the Respondent's negotiating team had exercised authority
port, and apparently remained continuously in session
until the evening of January 31.14 The principal spokesmen
for the respective negotiating teams during these negotiat-
ing sessions were their respective attorneys - Robert A.
Goldstein for the AAUP and Sullivan for the Respondent.
Harry Rowell, the Respondent's vice president for business
and finance, also participated in the sessions.
The record reveals another evidentiary conflict as to
what occurred during the discussions in the early morning
hours of January 31. Daigle testified that as the AAUP
team still suspected the measure of authority actually
invested in Sullivan, the AAUP vice chairman, Douglas,
asked Rowell about Sullivan's authority, telling Rowell
that the AAUP supported its attorney even to the point
where if he made a commitment in the AAUPs name
without having received prior agreement from his princi-
pals, the AAUP would support him. Rowell replied that
from that time on he would say the same for Sullivan.
The Respondent adduced evidence that during the early
morning hours of January 31, while certain members of the
respective committees were asleep or awake in the room,
AAUP Attorney Goldstein and Rowell were discussing
proposed solutions to the issue of the composition of the
impasse committee to be established under the proposed
contract provision on productivity.15 According to the
Respondent's evidence, Goldstein had suggested that a
university trustee rather than the Respondent's president
be placed on the impasse committee. Rowell had replied
that the board would not accept such a limitation on the
powers of the president, repeating several times that an
agreement could not be sold to the Respondent's board of
trustees with such a provision and that the board would
reject the agreement. Rowell also stated that the president,
himself, did not have authority to agree to Goldstein's
suggestion.16
Although Goldstein was present as counsel for the
AAUP at the hearing of this matter, he did not testify as a
witness. Instead, in like fashion, the parties stipulated as to
the content of what Goldstein's testimony would have been
independently of the board of trustees, even to the extent of modifying a
policy directive of the trustees. The AAUP denies knowledge as to whether
the Respondent's trustees played any behind the scene role in achieving
resolution of the tenure dispute, and the record does not show that the
AAUP ever had been informed that the accord in fact had been approved
by the trustees.
i" As noted, the strike-settlement agreement of September 10. 1975. had
extended the existing collective-bargaining agreement to Januarv 31. 1976.
Under the terms of the agreement. the AAUP was free to strike on or after
February 1, 1976, if agreement on a new contract had not been reached bh
that date.
is The Respondent's evidence in this area is predicated upon the
anticipated testimony of Rowell and Dean Henry Heneghan. Although
neither was actually called as a witness, Rowell having been taken ill durng
the hearing, the parties, without agreeing to accuracy. stipulated as to what
the content of their testimony would have been had they been called as
witnesses.
16 The parties stipulated that had Rowell been present he also would
have testified that all of the collective-bargaining memoranda entered into
between the parties prior to January 31, 1976, were submitted to the
Respondent's trustees for their approval. Accordingly, the trustees had
reviewed each document referred to herein, included the September 10.
1975. strike-settlement agreement and had specifically included the agency
shop provision contained in that document. Approval of that provision was
communicated to Daigle on February 3. 1976, during a meeting which took
place in Rowell's office.
1079
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had he been called as a witness. In accordance therewith,
on that occasion, Goldstein did suggest that a trustee be
placed on the impasse committee. However, Rowell had
not responded by saying that the board of trustees would
not accept such a limitation on the power of the president,
that such an agreement could not be sold to the board with
such a provision, or that the president lacked authority to
agree to Goldstein's suggestion, as was asserted by the
Respondent. Instead, Goldstein would have testified that
Rowell had replied that he did not want to get the trustees
involved in the day-to-day administration of the University
as the University had had a "bad track record" with the
trustees' involvement and that, as vice president of the
Respondent's University, he could not agree to bypass the
president. Goldstein had replied that the president was not
viewed by the AAUP as a neutral person to occupy the
position of the fifth member in an impasse panel when such
impasses arose between the Respondent's administration
and the faculty. However, in order to reach an agreement
Goldstein would be willing to accept a trustee who might
be objective even though he realized that in all likelihood
the trustee would side with the administrations.
An agreement was reached on all outstanding issues of a
written contract in the early evening of January 31, at
which time the partly handwritten, partially typed and
corrected document prepared by the parties was executed
by their representatives.'
Douglas, a member of the AAUP negotiating committee,
testified that immediately before the execution of the
January 31 agreement, with the Federal mediator and
members of both negotiating committees present, Gold-
stein asked Sullivan, "Fred, are you sure you have
authority to sign this? There aren't going to be anymore
negotiations are there?" Sullivan, in reply, waved his hand
at Goldstein and said, "Come on, come on, let's go." After
this exchange the agreement was signed.19
The membership of the AAUP voted to approve the
contract memorandum by secret ballot on February 1,
1976, thereby preventing a planned strike. Daigle notified
the Respondent of his vote on the morning of February 2.
Daigle testified, however, that the Respondent had not at
that time informed the AAUP committee of a requirement
that the board of trustees must ratify the January 31
agreement.
i" The above conflict will be discussed below in fn. 21.
18 Art. IX of the January 31 agreement, Productivity, had been much
discussed during negotiations. In that provision the parties agreed to
support measures, including joint financial analysis and planning to help
reestablish the Respondent's financial health while goals were to be
established by each of the Respondent's cost centers. The analysis for the
instructional cost center, specifically, was to be prepared by a University
Productivity Committee (UPC), established under the terms of art. IX. The
UPC was to consist of six members, three appointed by the Respondent's
president and three by the AAUP, and was to serve dunng the life of the
current collective-bargaining agreement. The UPC was vested with
considerable powers affecting the Respondent's productive and financial
management. Its responsibilities included preparation of a revised analysis
of productivity appropriate for the instructional segment of the University,
preparation of a revised plan of annual productivity goals and guidelines to
be followed by each college for 3 fiscal years, and periodic review of each
such annual college plan with authority either to approve or return it to the
appropriate college productivity committee with instructions for proposed
modifications. College plans approved by the UPC were to become the
D. The Events Following the Signing of the
January 31 Agreement
On February 3, the Respondent's president, Miles, issued
a bulletin to the university community expressing his
gratification that agreement had been reached and his
appreciation to those who had participated in making "a
fair settlement" possible. The bulletin provided, in relevant
part, as follows:
Through the dedicated efforts of faculty members,
administrators and students a strike has been avoided
this Spring. I commend both negotiating teams for their
patience and fairness at the bargaining table.
* *
With a three-year contract signed, we can now
devote all our energies to completing our plans for the
health sciences and development of long-range plans
that would prepare our students to meet the needs of
the community and the society of tomorrow.
It also is not disputed that on February 3 Henry J.
Heneghan, Jr., the Respondent's dean of administration,
addressed an interoffice memorandum to the Council of
Deans, entitled "Action Schedules Resulting from Collec-
tive-Bargaining Agreements." This memorandum dealt
with the effectuation of certain matters pursuant to the
recently signed agreement, including the establishment of
certain committees not later than March 1, 1976.
The agreement was further implemented during the first
week of February when the dean of the college of arts and
science called a faculty meeting where he discussed, among
other things, the need to make appointments to that
college's productivity committee as stipulated in the
productivity provision of the agreement, article IX. Also on
February 11, the dean of the college of business adminis-
tration, who also was a member of the Respondent's
negotiating committee, conducted a faculty meeting at
which appointments to committees established under the
terms of the memorandum of agreement were considered.
Daigle testified that, during the first week of February,
he met with Vice President Rowell in the latter's office to
discuss the naming of representatives from the Respondent
and the AAUP to serve on the University's Productivity
Committee as specified in article IX of the agreement.
budgets of those colleges, to be final and binding upon the colleges and the
parties to the collective-bargaining agreement. It was specified that the
Respondent should not implement any personnel decision affecting a
member of the bargaining unit which is made for financial reasons unless
the decision is pursuant to a college plan approved by the UPC. Art. IX also
contained other provisions governing the authority and administration of
the UPC and college productivity committees and specified that any
impasse among its members should ultimately be submitted for resolution to
the Productivity Impasse Committee. This group was to be composed of two
persons selected by the administration, two more by the AAUP and one
person to be selected by the other four who must also be taken from within
the university community. The discussion between Goldstein and Rowell on
the morning of January 31, described above, had been directed to a method
of appointing the fifth member of that committee.
19 Although the face of the agreement reflects the date of January 30,
1976, it was stipulated that the agreement was actually signed on January
31. The various portions of the agreement which had been negotiated in
subcommittee had been executed at various points as the parties continued
their negotiations leading up to the sessions which began on January 29.
1080
UNIVERSITY OF BRIDGEPORT
Effectuation of the agreement was further evidenced by a
memorandum from Rowell to Reilly, dated February 12,
1976, in which Rowell designated Reilly as the Respon-
dent's representative to a joint two-man committee estab-
lished during recent collective-bargaining negotiations to
study various insurance alternatives. A copy of this
memorandum, which also named the AAUP's representa-
tive of this committee, was sent to Daigle.20
On the afternoon of Friday, February 13, Daigle received
a telephone call from Rowell who told him that he had bad
news and invited Daigle to come to his office. Upon
Daigle's arrival, Rowell gave him a copy of a memorandum
of the same date from the Respondent's president ad-
dressed to Rowell and Daigle, with copies directed to the
respective attorneys, Sullivan and Goldstein. This memo-
randum was entitled "Board Directive on Collective-
Bargaining Contract." The memorandum noted that the
trustees' executive committee had that day reviewed the
memorandum of agreement completed by the administra-
tion and faculty on January 31, 1976, and, although it had
been recommended for approval by the Respondent's
president, it had resolved to withhold approval of the
proposed agreement, essentially because the import of
article IX, entitled "Productivity," would be to deprive the
board of trustees and the president, and to shift to the
newly created Productivity Committee, the ultimate re-
sponsibility for management of significant areas of the
financial affairs of the University. This would be contrary
to the terms of the Respondent's charter which requires
20 As part of the stipulation as to the content of the testimony of Rowell
and Heneghan had they been called as witnesses, the record reveals that
Rowell and Heneghan were present in the former's office during two
meetings with Daigle occumng on February 3 and 10. respectively. Douglas
was also present with Daigle at the February 10 meeting. During the
February 3 meeting. Rowell told Daigle that the AAUP should curtail its
press campaign concerning the January 31 agreement as that campaign was
going to make acceptance of the agreement by the trustees very difficult. In
addition, certain board members were still upset about the agency shop
provision in the previous strike-settlement agreement of September 10, 1975.
Accordingly, the publicity by the AAUP could have the effect of making it
impossible for the Respondent's administration to convince the trustees to
approve the January 31 accord. During the second meeting, on February 10,
implementation of the January agreement was discussed and certain
individuals were named to serve on various committees as provided in that
agreement. This was undertaken at that time, according to the Respondent's
witnesses, because of the timetable provided for in that agreement and
because the administration officials expected that the trustees would
approve the accord and that the parties could begin to move forward with
implementation of the committee's work as soon as possible.
Although Daigle and Douglas personally had testified during the General
Counsel's case, they were not called as witnesses during rebuttal. Instead, by
agreement of the parties, the content of their testimony as rebuttal witnesses
was stipulated as had been that of Rowell, Heneghan, and Goldstein. In this
fashion, the record shows that Daigle would have testified that he had been
present at the February 3 and 10 meeting in Rowell's office, but that he
denied that there was any mention made of the Respondent's trustees and,
corroborated by Douglas, also denied that the trustees were mentioned
during the February 10 meeting.
Inconsistently with the Respondent's own position as to what was said on
February 3, the Respondent joined the other parties in a stipulation that
there was no AAUP press campaign in February 1976.
21 As noted above, the parties stipulated as to what the testimony of
Rowell and Heneghan would have been had they been called to testify in
the Respondent's direct case. The parties made similar stipulations with
regard to the rebuttal testimony that Daigle. Douglas, and Goldstein would
have given on behalf of the General Counsel. The evidence thus adduced
conflicted materially, as noted, with regard to how Rowell, in the early
morning of January 31, was to have responded in opposing Goldstein's
suggestion that a trustee be appointed as the fifth member of the
that the management of the University's funds and affairs
shall be vested in a board of trustees. It further was
resolved that the Respondent's negotiating committee be
directed to seek to resume negotiations with the AAUP on
productivity in an effort to reach an agreement not
violative of the legislative charter.2 1
Upon receiving Miles' memorandum that the trustees
had repudiated the agreement, Daigle told Rowell that he
did not know what to do except to take this news to his
colleagues.
It was agreed by the Respondent and the AAUP when
the January 31 memorandum was executed, that the draft
then approved would be put into formal contract language
with no change as to substance, and that the formal
contract would thereafter be executed by the parties. The
intervention of the Respondent's trustees has precluded the
signing of a formal contract. However, it is not disputed
that the terms and conditions of the January 31 agreement,
except for the provision concerning productivity, in fact,
have been implemented. 22
E. Analysis and Concluding Findings
The General Counsel and the Charging Party contend
that Sullivan and his colleagues on the Respondent's
negotiating committee had either actual or apparent
authority to enter into a collective-bargaining agreement
immediately binding upon the Respondent, and that an
agreement had been reached between the two negotiating
Productivity Impasse Committee. Rowell and Heneghan would have
testified that Rowell had told Goldstein that the board of trustees would
reject such an arrangement, thus emphasizing the trustees' role as an
approving authority. Goldstein, on the other hand, would have denied that
Rowell had given such a reason and, instead, would have testified that
Rowell had stated that he did not want to get the trustees involved in the
day-to-day administration of the University as there had been "a bad track
record" with the trustees' involvement and that it was not right to bypass the
Respondent's president.
Another conflict noted arose in connection with the February 3, 1976.
meeting between Rowell and Daigle in the former's office. Rowell and
Heneghan would have testified, if called, that Rowell had requested at that
time that the AAUP curtail its press campaign concerning the recently
signed agreement because such a campaign would make more difficult
ratification of that agreement by the Respondent's trustees. Daigle, in turn,
would have denied that there had been any mention of the trustees during
the meetings of either February 3 or 10 or at any other time. The parties,
too, had stipulated that the AAUP had not conducted a press campaign in
February 1976.
From the overall evidence so adduced, it would appear that the record
with respect to the above incidents as developed by the General Counsel is
more consistent than that of the Respondent. Specifically, it is noted that,
although the Respondent has represented that Rowell and Heneghan. on
February 3, would have testified that Rowell had asked that the AAUP
curtail its press campaign with respect to the January 31 agreement, the
Respondent joined the other parties in a stipulation that there had been no
press campaign at the time in question. Also, as the members of the
Respondent's administration and the AAUP were all of the view on
February 3 that a collective-bargaining agreement had been reached, the
need for such a campaign would not appear to be clear. Therefore, the
record as developed by the General Counsel as to what was to have
occurred during the early morning hours of January 31 and during the
February 3 and 10 meetings is hereby credited.
22 The contract, as settled on January 31, was finally ratified by the
AAUP membership at a meeting conducted on March 17, 1976. According-
ly, the Respondent also argues that the trustees had not unlawfully
repudiated a binding accord because, in the absence of final AAUP
ratification on February 13, the memorandum of agreement of January 31
lacked mutuality and, in effect, no contract was in existence at the time in
question.
1081
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committees as to all the terms of such an accord on
January 31. Therefore, the subsequent repudiation of the
agreement by the Respondent's board of trustees violated
Section 8(a)(5) and (1) of the Act, as alleged in the
complaint. The Respondent contends that any agreement
reached by its negotiating team with that of the AAUP was
contingent upon ratification by both the Respondent's
trustees and by the AAUP membership, respectively. The
Respondent further argues that the AAUP, from its own
statements made in connection with the negotiation of
both collective-bargaining agreements, had evidenced its
awareness of the requirement that the Respondent's
trustees must ratify any collective-bargaining agreement
reached.
The applicable principles are set forth in Aptos Seascape
Corporation 23 as follows:
In N. L. R. B. v. Coletti Color Prints, Inc., 387 F.2d 298
(C.A. 2), the Court stated:
It does not necessarily follow that one hired by a
company "to negotiate" a collective bargaining
agreement with a union has authority to bind the
company to the terms he negotiates without
receiving subsequent approval of those terms by
the company. [Citations omitted.] Under our
present labor law, there certainly is no duty on
the part of an employer to be represented at the
bargaining table by a person with competent
authority to enter into a binding agreement with
the employees, although the bargainers' lack of
such authority is a factor to be considered in
evaluating the employer's good faith ...
Accord, Standard Oil Company (An Ohio Corporation),
137 NLRB 690. Thus an agent may lawfully be invested
with the limited authority to negotiate a collective-
bargaining contract which is subject to ratification by
the employer. Such limitation upon the agent's authori-
ty, however, must be disclosed to the Union before an
agreement is reached. In Brotherhood of Painters,
Decorators and Paperhangers of America, Local 850,
AFL-CIO (Morgantown Glass and Mirror, Inc.), 177
NLRB 155, the Board held, inter alia, that a local union
can lawfully defer signing a contract pending approval
by its International where "the necessity for such
approval is clearly understood by the parties." Al-
though that case involved the Union as principal, the
same rule applies to an employer. Conversely, if the
necessity for the employer's approval of an agreement
made by his agent is not clearly understood, the
employer's refusal to sign the agreement is unlawful.
Stated otherwise, an agent appointed to negotiate a
collective bargaining contract is deemed to have
apparent authority to bind his principle in the absence
of notice to the contrary. N.L.R.B. v. Ralph Printing and
Lithographing Co., (C.A. 8) [citations in footnote
omitted] . . . Clearly, the statutory policy would be
thwarted by permitting a principal, after his agent has
reached agreement, to state for the first time that the
23 194 NLRB 540,544(1971).
24 As noted, the Respondent's evidence as to other incidents where
latter's authority was limited and that the agreement
was subject to ratification.
Inherent in the concept of notice sufficient to rebut the
presumption, noted in Aptos Seascape Corporation, supra,
that an agent appointed to negotiate a collective-bargain-
ing contract is deemed to have apparent authority to bind
its principal is that such notice must be affirmative, clear,
and timely. It follows that if such an announcement is not
made, then the principal must bear the responsibility for
and the consequences of any misunderstandings that might
arise.
Applying the foregoing principles to the present case, 1
find that the Respondent's negotiating committee, headed
by Sullivan, should be deemed to have had apparent
authority to bind the Respondent with respect to the
memorandum of agreement reached on January 31, 1976.
It is true, as argued by the Respondent, that there were
certain incidents occurring at various stages of the parties'
bargaining relationship that indicated an awareness on the
part of and actual notice to the AAUP that the Respon-
dent's negotiators were limited in their authority by the
need to submit any agreement reached to their trustees for
approval. Thus, in connection with the negotiation of the
first contract, the procedural proposals submitted by the
AAUP on October 12, 1973, displayed a recognition by
that union that the Respondent's trustees would vote on
any understanding. The Respondent's letter, dated Novem-
ber 21, 1973, defining the authority of its negotiators,
reinforced this realization by making reference to such a
ratification requirement. More recently, in connection with
the negotiations for the second contract, from the credited
evidence, AAUP Chairperson Gerteiny, during the July 2,
1975, meeting expressed his recognition that the Respon-
dent's trustees would have to sanction the contract and had
protested that, upon this, there should not also be imposed
a requirement for further approval by the Respondent's
president and council of deans.2 4
Nonetheless, after the initial correspondence between the
AAUP and the Respondent in October and November
1973, the ratification roles of the Respondent's board of
trustees during a number of intervening events became less
than clear. Specifically, in President Miles' self-introducto-
ry memorandum, dated August 30, 1974, entitled "Sugges-
tions for a Fresh Start," issued during the first contract
negotiations, he asserted, in effect, that henceforth the
board of trustees "will stay out of management" and,
generally, would play a more limited role. Personnel
Director Reilly, too, explained that during the period from
October 1, 1973, when the former president had submitted
notice of his resignation, until August 1974, when Miles
took office, the trustees had exercised a larger than
customary role in the Respondent's affairs. In addition,
mediator Babbidge's memorandum, dated September 8,
1974, which essentially settled the terms of the first
collective-bargaining agreement, was signed by the Re-
spondent's negotiators with no apparent recourse to the
board of trustees. Any inevitability that such trustees might
have had a role in later approving all the terms of formal
notice of its trustees' involvement was to have been given to the AAUP has
not been credited.
1082
UNIVERSITY OF BRIDGEPORT
contract in a meaningful way was compromised by the
agreement of the parties in the mediator's memorandum
that all remaining matters as to which the parties were
unable to reach agreement by October 15, 1974, were to be
submitted to Babbidge for "final and binding arbitration."
With such an understanding, substantive first contract
terms binding upon the Respondent and its trustees could
have been decided exclusively by Babbidge, without review
by the Respondent's trustees. Whether, in fact, the
Respondent's trustees thereafter did vote on the mediator's
memorandum or the formal first contract that was
executed thereafter, news of such votes was not conveyed
to the AAUP.
Similarly, the stipulation of August 18, 1975, which
resolved the grievance filed by the AAUP on the instituted
tenure freeze, was also reached by the negotiating commit-
tees with no apparent ratification vote by the Respondent's
trustees, although the solution reached materially modified
a policy that these trustees had established.
The strike-settlement agreement signed on September 10,
1975, which inter alia, extended the 1974 collective-bar-
gaining agreement to January 31, 1976, and increased
certain economic benefits, was executed under the impetus
of an ongoing strike by the Respondent's faculty at the
start of a new academic year. Again, there was no showing
that the AAUP had received notice that the strike-
settlement agreement had been finalized by the approval of
the Respondent's trustees. Rather, the evidence is to the
contrary and it would appear that, faced with an actual
strike, the interim accord was solemnized immediately
upon its execution by the parties' negotiators.
With this background, the AAUP, in advance of
negotiations for a second contract, did not independently
indicate a realization that any understanding reached
would be subject to ratification by the Respondent's
trustees, as in 1973. Nor was the role of the trustees
enhanced in President Miles' letter of May 27, 1975,
wherein he noted any agreement reached would be
reviewed by the Respondent's president and council of
deans, but where he made no reference to its board of
trustees.
In the 1975-76 contract negotiations, Gerteiny's contro-
versial July 2 statement about his understanding that the
Respondent's trustees would review any accord stands in
opposition to the foregoing history, to Sullivan's repeated
assurances to the AAUP throughout negotiations that his
committee could make binding commitments, and, as
reflective of the intent of the parties at the time, to the fact
that the terms of the January 31 memorandum of
agreement were actively implemented during the 2-week
period that followed its signing.
In interpreting shades of meaning, it could be argued, in
construing the events of the July 2 meeting, that the
Respondent may have been justified in relying on Gertein-
y's expressed understanding of trustee ratification. There-
fore, the Respondent's negotiators, treating that point as a
25 The AAUP, on its part, was consistent in notifying the Respondent
that any agreement reached was subject to ratification by its membership.
26 There is nothing, of course, within this Decision that would preclude
the respective parties from serving appropriate notice on the other as to any
valid limitation on the authority of its agents in any future negotiations.
27 See C & W. Lektra But Co., 209 NLRB 1038 (1974). enfd. 513 F.2d
settled issue, may have been directing their subsequent
representations as to their authority during that session to
their right to make binding commitments for the adminis-
tration, as asserted, rather than for its trustees. However,
such an interpretation would be contrary to the weight of
the overall evidence and logic of this matter.
The record reveals that, in seeking to impress the AAUP
with the need for mandatory ratification of the second
contract by its trustees, the Respondent, instead of simply
serving clear, timely notice of such a limitation upon its
negotiating committee, at best, created an ambiguity. To
overcome this, the Respondent, in its case, has not
produced clear evidence of such notice, which could
merely have been a letter to the AAUP to that effect in
advance of negotiations. Instead, the Respondent has
sought to rely on a random statement by an AAUP
negotiator and disputed conversations which allegedly had
occurred at odd times, such as during early morning
negotiating sessions, or even after agreement supposedly
had been reached and while the parties' respective officials
were engaged in discussions as to its effectuation. Had the
Respondent given clear, simple notice of its intent to the
AAUP at the proper time, neither its involved argument
herein nor any possible misunderstanding by the AAUP
would have been necessary.25 As this ambiguity was the
responsibility of the Respondent, it is concluded that
notice sufficient to rebut the presumed authority of its
negotiating agents to enter into a binding accord was not
given.2 6
I also find no merit to the Respondent's further
contention that its trustees had not violated the Act by
repudiating the contract on February 13, 1976, as the
AAUP membership did not vote to ratify the agreement
until March 17. The essential issue in this matter is whether
the Respondent has met its bargaining obligation of duly
notifying the AAUP of any limitation on the presumed
authority of its bargaining agents to contractually bind
their principal. It is clear from the record that the AAUP
had merely informed the Respondent of its own internal
procedures and that AAUP membership ratification had
not been an agreed prerequisite to a contract. Moreover,
the Respondent's trustees were not concerned at the time
that the AAUP would seek to retreat from the January 31
memorandum of agreement.
It is clear that, where a bargaining relationship is
established, a party's obligation to negotiate through duly
authorized agents and to convey proper notice to the other
side of any limitation upon the authority of its agents to
make binding agreements exists independently of any
internal approval procedures adopted by the other party.
Accordingly, the Respondent's motion, contained in its
brief, that the hearing in this matter be reopened to further
explore whether a mutually binding agreement was in
effect when the Respondent's trustees voted to reject the
agreement, is hereby denied.27
200 (C.A. 6, 1975); North Country Motors, Ltd., 146 NLRB 671 (1964). No
merit is found to the Respondent's additional argument that the AAUP
should be charged with knowledge of a ratification requirement by the
Respondent's trustees, imposed by law in the Respondent's state-granted
charter, which, apparently, vests in the trustees control of the Respondent's
financial affairs. First, in agreeing to submit any unresolved issues of the
(Continued)
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examination of the January 31 memorandum of agree-
ment did not disclose the specific respective dates at which
time the contract was to become effective and expire. In
other circumstances, such omissions could be decisive.
However, it is clear from this record that the parties had
agreed to enter into a 3-year contract, effective February 1,
1976, the day after the prior collective-bargaining agree-
ment, as extended by the strike-settlement agreement, had
expired. Accordingly, the Respondent's president, Miles, in
his bulletin of February 3, 1976, referred to "the three-year
contract signed" and the parties themselves did not assert
at any time that, on January 31, there had been a failure to
agree to the effective date or duration of the accord or to
any of the other terms of that memorandum of agreement.
Only those matters discussed herein were litigated. It,
therefore, is concluded that on January 31 the parties, in
fact, had reached an agreement with respect to all the terms
and conditions of the contract, including its effective date
and duration, that the new agreement was to be effective
from February 1, 1976, through January 31, 1979, and that
the failure to include language to this effect in the
memorandum of agreement constituted inadvertent error
which, in all likelihood, subsequently would have been
corrected in the anticipated formal contract.
In these circumstances, I find and conclude that the
Respondent violated Section 8(a)(5) and (1) of the Act by
its conduct on February 13, 1976, in repudiating the fully
negotiated collective-bargaining agreement of January 31,
and by thereafter refusing to sign a formal contract
containing the terms of that accord. 28
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. University of Bridgeport is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. University of Bridgeport Chapter, American Associ-
ation of University Professors, is a labor organization
within the meaning of Section 2(5) of the Act.
initial contract to final and binding arbitration, the Respondent established
a precedent to the contrary. Second, the AAUP need not necessarily have
been charged with knowledge that the Respondent's trustees must in all
circumstances enter the picture only after full agreement apparently had
been reached, as subsequent ratification is only one option open to the
trustees. In the alternative, they could have elected to exercise any felt
responsibilities in advance of negotiations by authonzing the Respondent's
representatives to agree to terms within a prescribed range and have allowed
any contract so reached to become immediately finalized. In any event, as
the record herein discloses, the relevant review and approval function of the
3. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time staff members who hold faculty or
professional rank, including teachers, librarians,
counselors, the director of audio-visual services, depart-
ment chairmen, and athletic coaches employed by the
Respondent at its University, excluding all part-time
staff members, office clerical employees, the president,
vice-president, deans, assistant deans, staff holding
professional or faculty rank in the offices of Admissions
and Registrar, vice-president of academic affairs,
evening division, management services, and continuing
education, watchmen, guards and all supervisors, as
defined in Section 2(1 1) of the Act.
4. At all times material herein, the AAUP has been,
and is the exclusive representative of all employees in the
above-described appropriate unit for the purposes of
collective bargaining.
5. By repudiating on or about February 13, 1976, and,
since that date, refusing to execute the agreed-upon
collective-bargaining agreement and to give effect to all the
terms and provisions of that agreement between the
Respondent and the AAUP, the Respondent has refused to
bargain collectively with the AAUP and has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (5) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(l) and (5) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative action
to effectuate the policies of the Act.
Having found that the Respondent, on February 13,
1976, has repudiated and, since on or about that date, has
refused to execute the formal contract which was agreed
upon on January 31, 1976, by the Respondent and the
AAUP, I shall recommend that the Respondent be
required to execute that agreement forthwith and to give
effect to all terms and provisions of that agreement
retroactively to February 1, 1976. I shall further recom-
mend that the Respondent make whole its employees for
any loss of wages and other benefits, which are provided
for in that agreement, for the period on and after February
1, 1976, due to the Respondent's failure to give effect to the
terms of the said collective-bargaining agreement.2 9 The
loss of earnings under the Order recommended herein shall
Respondent's trustees, to the best information afforded to the AAUP, has
not been clearly established.
28 H. J. Heinz Company v. N.LR.B., 311 U.S. 514 (1941); Lozano
Enterprises v. N.LR.B., 327 F.2d 814 (C.A. 9, 1964); Aptos Seascape
Corporation, supra; Premier Fabrics of California, Inc., 224 NLRB 710 (1976).
29 N.LR.B. v. Huttig Sash and Door Company, 362 F.2d 217 (C.A. 4,
1966). Although the Respondent has refused to execute the new agreement,
the record reveals that except for art. IX, Productivity, the terms of that
agreement, including those relating to wages and benefits, were promptly
implemented and that, in actuality, the members of the unit may have
1084
UNIVERSITY OF BRIDGEPORT
be computed in the manner set forth in F. W. Woolworth
Company,3 0 and Isis Plumbing & Heating Co.31
Finally, I shall recommend that, upon request, the
Respondent bargain with the AAUP as the exclusive
representative of the employees in the above-described
unit.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER32
The Respondent, the University of Bridgeport, Bridge-
port, Connecticut, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively regarding rates of
pay, wages, hours, and other terms and conditions of
employment, with University of Bridgeport Chapter,
American Association of University Professors, as the
exclusive bargaining representative of the employees in the
following unit found to be appropriate for the purposes of
collective bargaining:
All full-time staff members who hold faculty or
professional rank, including teachers, librarians,
counselors, the director of audio-visual services, depart-
ment chairmen, and athletic coaches employed by the
Respondent at its University, excluding all part-time
staff members, office clerical employees, the president,
vice-president, deans, assistant deans, staff holding
professional or faculty rank in the offices of Admissions
and Registrar, vice-president of academic affairs,
evening division, management services, and continuing
education, watchmen, guards and all supervisors, as
defined in Section 2(1 1) of the Act.
(b) Refusing to execute the collective-bargaining agree-
ment with the AAUP which was agreed upon on January
31, 1976, and which the Respondent repudiated on or
about February 13, 1976.
(c) Failing and refusing to give effect to the terms and
provisions of the said fully negotiated collective-bargaining
agreement with AAUP.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action:
(a) Forthwith sign the agreement described above in
paragraph l(b).
(b) Upon execution of the aforesaid agreement, give
retroactive effect to the provisions thereof to February 1,
1976, and, in the manner set forth in the section herein
entitled "The Remedy," make whole the employees, with
interest, for any loss they may have suffered by reason of
the Respondent's failure to sign and effectuate all terms of
the agreement.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay or other
benefits due under the terms of this recommended Order.
(d) Post at its facility in Bridgeport, Connecticut, copies
of the attached notice marked "Appendix." 33 Copies of
said notice, on forms provided by the Regional Director for
Region 2, after being signed by the Respondent's represen-
tative, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
sustained no economic loss by virtue of the Respondent's conduct found
unlawful herein. However. the Board's traditional reimbursement remedy is
being included herein as a safeguard. As there is no evidence that the
employees in the unit herein individually signed dues-checkoff authoriza-
tions, it, in any event, would not be recommended that the remedy herein
provide that the AAUP receive reimbursement for any loss of dues resulting
from the Respondent's unlawful refusal to sign the collective-bargaining
agreement. Cheese Barn, Inc., dh/b a Hickory Farms of Ohio, 222 NLRB 418.
421 (1976); Southland Dodge. Inc., 205 NLRB 276. fn. I (1973).
3o 90 NLRB 289 (1950).
31 138 NLRB 716(1962).
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions. and recommended Order herein shall. as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
33 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides were represented by their
attorneys and presented evidence, it has been found that
we have violated the National Labor Relations Act in
certain respects. To correct and remedy these violations,
we have been directed to take certain actions and to post
this notice.
WE WILL forthwith sign the collective-bargaining
agreement with the University of Bridgeport Chapter,
American Association of University Professors, which
was agreed upon on January 31, 1976, and which we
have repudiated and refused to sign since February 13,
1976, and which covers our employees in the following
appropriate unit:
All full-time staff members who hold faculty or
professional rank, including teachers, librarians,
counselors, the director of audio-visual services,
department chairmen, and athletic coaches em-
ployed by the University of Bridgeport, excluding
1085
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all part-time staff members, office clerical em-
ployees, the president, vice-president, deans,
assistant deans, staff holding professional or
faculty rank in the office of Admissions and
Registrar, vice-president of academic affairs,
evening division, management services, and con-
tinuing education, watchmen, guards and all
supervisors, as defined in Section 2(11) of the Act.
WE WILL give effect to the terms and provisions of
the collective-bargaining agreement referred to above,
retroactively to February 1, 1976.
WE WILL make whole, with interest, our employees
in the bargaining unit described above for any loss of
wages and other benefits they may have suffered by
reason of our failure to sign and effectuate all terms of
the above-agreement.
WE WILL, upon request, bargain with the University
of Bridgeport Chapter, American Association of Uni-
versity Professors, as the exclusive representative of all
employees in the appropriate unit described above with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an understand-
ing is reached, embody such understanding in a signed
agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed by the National Labor Relations
Act.
UNIVERSITY OF BRIDGEPORT
1086