Vallejo Retail Trade Bureau

National Labor Relations Board - Board Decisions

Jul 27, 1979

243 N.L.R.B. 762 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vallejo Retail Trade Bureau and its Employer-Mem-
bers and Local 373, United Food and Commercial
Workers International Union, AFL-CIO.' Case 20
CA 14003
July 27, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENEI.LO
AND TRUESDALE
On May 7, 1979, Administrative Law Judge Timo-
thy D. Nelson issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Charging Party filed exceptions and supporting briefs.
Respondent filed a brief in support of the Administra-
tive Law Judge's Decision.
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 2 and briefs
and has decided to affirm the rulings, findings,3 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
I The Charging Party's name, formerly Retail Store Employees Union,
Local 373, Retail Clerks International Association. AFL CIO, has been
changed in recognition of the June 7, 1979, merger between the Retail Clerks
International Union and the Amalgamated Meatcutters and Butcher Work-
men of North America.
2 Respondent's motion that the Board disregard the exceptions filed by the
General Counsel and the Charging Party is hereby denied as being without
merit.
I We hereby correct the following inadvertent error in the Administrative
Law Judge's Decision which in no way affects his Decision or our adoption
thereof: In fn. 3, the years 1975, 1976, and 1977 should be replaced with the
years 1978, 1979, and 1980, respectively.
The General Counsel and the Charging Party have inferentially 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. Stan-
dard Drt Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing his findings.
DECISION
STAE1MENI OF lli CASE
TIMOIHY D. NEI.SON Administrative Law Judge: This
case was heard on December 7 and 8, 1978,' in Vallejo,
California. It was based on a charge filed on August 7 by
Retail Store Employees Union, Local 373, Retail Clerks
International Association, AFL-CIO. hereafter called the
Union, against Vallejo Retail Trade Bureau and its Em-
ployer-Members, hereafter called Respondent, and a com-
plaint issued on September 29 by the Regional Director for
Region 20 of the National Labor Relations Board. The
complaint alleged, in substance, that Respondent violated
Section 8(a)(5) and (I) of the National Labor Relations Act,
as amended, by refusing to sign a collective-bargaining
agreement allegedly reached verbally by the Union and Re-
spondent on May 22. and made the subject of a mutually
signed letter of understanding dated May 24.
The Issues
As narrowed by hearing developments, the basic ques-
tion is whether, on or about May 22, the Union and Re-
spondent reached agreement on all terms for a new collec-
tive-bargaining agreement: and, specifically, whether that
agreement included Respondent's commitment to give all
employees in the bargaining unit, without regard to their
length of service, wage increases of 30 cents in the first year
of a new contract and increases of 31 and 33 cents, respec-
tively, in the second and third years of the new contract.
Upon the entire record herein, including consideration of
briefs timely filed by all parties, and upon my observation
of the witnesses' demeanor, I make the following:
FINDIN(iS OF FACT
I. JURISI)I('IION
"Respondent," as used herein, is a multiemployer bar-
gaining association consisting most recently of approxi-
mately 112 retail merchants doing business in Vallejo, Cali-
fornia, and which exists, in part, for the purpose of
representing those merchants in collective bargaining with
the Union for successive contracts covering their employees
in a multiemployer bargaining unit. Based on admitted
complaint allegations, Respondent's employer-members
realize aggregate annual gross business volumes in excess of
$500,000 and, in the aggregate, annually purchase and re-
ceive in excess of $5,000 worth of goods and services di-
rectly from points outside California, which latter amount
is found to reflect more than a de minimis impact on inter-
state commerce. At the hearing, there was a credibility con-
flict as to whether or not Respondent's representative had
told the Union at the first face-to-face session of negotia-
Unless otherwise indicated. all dates are in 1978.
2Admitted to include at least the following merchants: McCann's Jewel-
ers, t.evee's Department Store, Breuner's Furniture Store, Meyer's Jewelers,
Gil Hart. Higgins Shoe Company, Ace Hardware. Stanley H. Lipschutz d/
b/a Arnold Lieb, and Stanley H. Lipschutz d/b/a James Sears
243 NLRB No. 123
762
VALLEJO RETAIL TRAI)E BUREAL7
tions in 1978 for a new contract that 2 of the I I employers
who had been parties to the predecessor multiemployer
contract were no longer being represented through the Re-
spondent association. These were Ed Pierce Appliance and
Staats and Bell. In view of mn ultimate recommended dis-
position. I do not find it necessary to resolve this conflict. It
is noted, however, that Ed Pierce Appliance. through coun-
sel appearing at the hearing, stipulated that it could he
treated as part of the multiemployer group tfor purposes of
my Decision and would be bound to any agreement which
I might find had been reached, subject to the condition that
it then employed employees in the bargaining unit covered
thereby (there being some indication that it did not emplov
such employees at the time of the hearing). It is further
noted that, apart from the disputed claim that the Union
was told that Ed Pierce Appliance and Staats and Bell were
not being represented by Respondent for purposes of 1978
negotiations (which took place. if at all, only after the
Union had mailed its opening proposals to Respondent).
there is no evidence that either employer ever revoked Re-
spondent's authority to bargain for it, or that they gave
timely notice to the Union of such an intention prior to the
commencement of negotiations. Cf. Retail 4ssociats, In(..
120 NLRB 388, 395 (1958).
II. LABOR ORGANIZATION
Based on admitted complaint allegations, the Union
meets the statutory criteria for a "labor organization." as
set forth in Section 2(5) of the Act.
A. General Background and Overview
Respondent has been continuously represented for col-
lective-bargaining purposes for at least 25 years by attorney
John Bradley. At least five successive written multiem-
ployer bargaining agreements have been reached with the
Union during the period of their relationship. The most
recent contract ran from March 1. 1975. to February 28,
1978.
Negotiations for a successor to the most recent contract
were triggered by an exchange of letters between the
Union's president, Boyce Smith, and attorney Bradley in
December 1977. Following additional correspondence, the
first bargaining session was held on March 9. Approxi-
mately seven additional sessions occurred thereafter. the
last one being on May 22. Bradley and the Union's attor-
ney, Thornton Bunch, Jr., were the chief negotiators for
their respective principals during all of the sessions except
the one on March 9, which Bunch did not attend. Union
President Smith and its business representative. Frank Col-
lard, participated in all negotiations in 1978, but neither
had been involved in prior negotiations with Respondent.
Bunch had represented the Union in 1975 in the negotia-
tions for the most recently expired contract.
The major outstanding issue between the parties as of the
final May 22 meeting had been wages. On May 22. Respon-
dent tendered a "final offer"' and, after further reaching an
I The pertinent portion of which involved an "across-the-board" offer of
30 cents, 31 cents, and 33 cents per hour effective, respectively, on March I.
1975, 1976, and 1977 (hereafter termed the "30-31 33" offer).
understanding on a March I retroactive application date.
the parties shook hands, believing they had reached tenta-
tive agreement. subject to ratification by the Union's and
Respondent's respective memberships.
As is discussed in greater detail below. however. it be-
came apparent thereafter that the Union interpreted the
"30 31 33" ofler as bing uniformly applicable to every unit
employees *ithout qualifications. B contrast, and consis-
tent with a past practice discussed below. Respondent
maintained that the 30 31 33 offer literally applied onl to
employees with greater than 1 year's service employees
with less than I ear's service being eligible onl flor a pro
rata portion of the amounts offered., geared roughly to their
length of service. It was this. and only this issue whether
Respondent's 30 31 33 offer was subject to "pro-rating"
which brought the parties into dispute and which presented
the conclusion of an agreement.
B. Backgro(nd ot rhe Prorating I lvue
As is exemplified in the most recent 1975 78 contract
between the parties. past contracts have always provided
for different wage rates for each enumerated job classifica-
tion. Each enumerated classification has further contained
within it different wage rates. known s "Step Progres-
sions," linked to length of service. Typically, there are four
step progressions within each classification, with the rate
for each level of progression bearing a fixed ratio to the
other progression levels. Thus, for example. employees in
the "General" classification who have worked ewer than
700 hours receive 75 percent of the rate paid to persons in
the same classification with greater than I year's experi-
ence. Employees in the "2nd 700 hours" progression level
receive 85 percent of the "After I year" rate. and employees
in the "3rd 680 hours" receive 90 percent of the "After I
year" rate.'
According to the uncontradicted and credited testimony
of Bradley. such a prorating arrangement has always been
included in the labor agreements negotiated between Re-
spondent and the Union. Further. according to Bradley,
past negotiations have always followed a pattern whereby
offers and counteroffers pertaining to wage increases have
been expressed in terms of "across-the-board" amounts re-
flecting the rates demanded or offered for persons in the
"After I year" progression level of each classification. Once
such an amount is agreed upon, it has been the parties'
practice to prorate the agreed-upon amount according to
the step progression ratios reflected in the above example.
Bradley further testified, and I find, that this prior pat-
tern of negotiations generally did not involve overt or ex-
press references by the parties to the prorating procedure.
Rather, before the 1975 negotiations. at least. it was simply
"understood" by the parties that when an employer offered,
for example, an across-the-board increase of 20 cents, this
meant that persons in the "After 1 year" progression level
in each classification would receive a 20-cent increase, but
' There were some other complicating matters most notably the Union's
failure to achieve full retroactivity on a separate agreement with a large
retail dealer in the area, Carilhers Department Store (see sec. B, infra). These
were not material to the instant case, however.
5 G.C Exh. 2.
763
DEC(ISIONS OF NATIONAL ABOR RELATIONS BOAR)
that persons in the more junior progression levels would
receive less than 20 cents, or their pro rata share, according
to the ratios in the above example.
Historically, after reaching agreement, the contract as re-
duced to writing has always contained prorating language
at the beginning of the wage appendix section. In the 1975
78 contract, the following pertinent language appears:
The rates listed herein shall be the minimum hourly
rates under the Agreement for all employees. All em-
ployees on the payroll as of March 1, 1975 shall be
granted a twenty-five cents (25¢) per hour increase pro-
rated according to Step Progressions. Effective March 1.
1976 an additional increase in like manner of twenty
cents (20c) per hour, and effective March 1. 1977 an
additional increase in like manner of twenty cents (20C)
per hour. [G.C. Exh. 2, emphasis supplied.]
As was mentioned earlier, the Union's officers involved in
the most recent negotiations had not been involved in the
previous negotiations so described by Bradley., and Bunch
had only been involved in the negotiations for the 1975 78
contract. While Bradley's testimony as to the "general" pat-
tern followed in earlier negotiations was not challenged.
Bunch testified that there had been some overt reference to
the prorating arrangement during the negotiations for the
1975 78 contract. Bradley did not contradict Bunch in this
regard. Crediting Bunch on the point, the matter emerged
as follows in 1975: employer offers had been couched in
terms of across-the-board proposals, but, at one or more
points, Bradley or one of the other employer representatives
had stated to the effect that "the increases proposed would
be prorated among the employees according to step pro-
gressions. And a statement was made on at least one occa-
sion during those negotiations by [Bradley] and others on
the committee that it should be assumed that when the em-
ployer tenders an offer for a cents per hour increase that
such an offer would include the proration aspect for em-
ployees who were employed in a classification for less than
one year." Bunch further recalled, responding to cross-ex-
amination by Bradley (hence the reference to "you" in what
follows):
[W]e did understand and were given to understand by
statements made by you and others on your committee
that the wage proposals you made to the Union were
to be prorated according to step progressions when we
reduced the agreement to writing and filled in the
blank spaces, if you will, on wages.
From the foregoing, consistent with Bradley's "back-
ground" testimony, I find that the pre-1978 negotiations
never involved debate on the question whether there should
be prorating of wage increase demands or offers. Rather,
prorating was "built into" the respective demands and of-
fers made by the parties. Consistent with that finding,
Bunch's testimony reveals that the matter was overtly re-
ferred to in 1975 only for the purpose of clarification of the
meaning of Respondent's across-the-board offers-not for
the purpose of interjecting a novel element into the histori-
cal bargaining pattern. Moreover, contrary to suggestions
in the General Counsel's and the Union's post-trial briefs,
the record does not show that the Union resisted this ap-
proach to bargaining during the 1975 negotiations. Rather,
the record reflects that. upon being advised that any across-
the-board offers made by Respondent should be interpreted
as being subject to prorating for employees in the "less-
than-one-year" category. the Union simply acquiesced in
this approach, and it was mutually adopted as a "short-
hand" technique for bargaining thereafter.
C(. The 1978 Negolialionsv
It is undisputed that, throughout the series of meetings
culminating in the tentative agreement on May 22. all dis-
cussions of wage increase amounts had been couched in
terms of across-the-board increases. It is likewise acknowl-
edged that there was no discussion about abandoning the
traditional prorating language in the contract. On May 22.
upon resolving the retroactivity issue, the LUnion accepted
the "30 31 33" proposal and the parties shook hands. It
was recognized, however, that further steps were necessary
to perfect the apparent agreement, including ratification
votes by the parties' respective memberships, and the re-
duction to writing, mutual review and approval of an inte-
grated written draft.
To expedite those latter processes, union attorney Bunch
prepared and forwarded to Bradley a letter of understand-
ing dated May 24 which stated in pertinent part (G.C. Exh.
4):
Dear Mr. Bradley:
Please permit this letter to serve as a reflection of the
parties' understanding respecting a recommended set-
tlement of the captioned negotiations. The terms of the
settlement to be recommended to the parties' respec-
tive memberships are as follows:
I. Effective March 1, 1978, all employees will receive
an across-the-board wage increase of thirty (30)
cents per hour: effective March i, 1979. all employ-
ees will receive an across-the-board wage increase of
thirty-one (31) cents per hour: effective March 1,
1980, all employees will receive an across-the-board
wage increase of thirty-three (33) cents per hour.
4. The cashiers in the hardware department and/or
hardware stores subject to the agreement shall have
their contractual wage rate increased to $3.41 per
hour and in addition thereto said employees shall
receive the pay increases set forth in paragraph I
hereof on the dates referred to in said paragraph 1.6
6As the testimony disclosed, and as the General Counsel concedes on
brief, this is a technically inaccurate or incomplete recital of the parties'
agreement in this area. As a last minute item on May 22. the parties had
agreed on a basic rate of $3.41 per hour for "hardware cashiers," which
group had never before been covered by a separate pay classification. All
parties concede hat one of the employers, DeWolle. of Ace Hardware, spe-
cifically asked if the 3.41 rate would apply only to persons in the "more
than one year's experience" step progression. Bunch replied in the affirma-
tive. Thus. of necessity, as the General Counsel acknowledges it was in-
764
VAl.l.3O RETAIL TRAD)E BUREAIt
Except as to the provisions herein. all of the terms
and provisions of the collective bargaining agreement
in effect until March 31. [sic] 1978 shall continuer in fill
force and e[/a'ct wiithout chanl cg. [Emphasis supplied.]
The parties agree to memorialize the terms of this
recommended settlement, if ratified b their respective
[sic] memberships, into a comprehensive collective bar-
gaining agreement.
If this understanding contorms to ours. please sign
in the space indicated helow and return the original to
me. T he copy is for your files.
Upon receipt of Bunch's MaN 24 letter, BradleN called a
meeting of a "committee" of four of Respondent's em-
ployer-members. According to the credited testimon of
Bradley, corroborated by Wesley Meyer, of Me.er's Jewel-
ers, Bradley showed the employers the May 24 letter. ex-
plaining that the quoted wage increases would appl to
"journeymen" (i.e.. persons having more than I ear's expe-
rience), explaining that the letter contained a clause to the
effect that all other terms and provisions of the expired
agreement would remain in effect. Following this, the em-
ployers present authorized Bradley to sign the May 24 let-
ter. Bradley did so, and mailed the letter back to Bunch.
Sometime after that, Respondent's general membership met
and approved the agreement, as explained by Bradley.
There was no specific discussion at this latter meeting
whether or not the agreed-upon wage increases would be
subject to prorating. In the meantime, Bunch discovered
that his May 24 letter had failed to include another "new"
provision on which the parties had agreed pertaining to the
right of part-time employees to receive "written warnings."
On May 30, Bunch wrote to Bradley to this effect and Brad-
ley later called Bunch to acknowledge that this, too, had
been part of the understanding reached.
On May 31. the Union's general membership ratified the
agreement as reflected in the May 24 letter of understand-
ing and as further explained by Bunch. There was no spe-
cific discussion whether or not the agreed-upon wage in-
creases would be subject to prorating. Rather. Bunch told
the membership that "all employees" would receive the
agreed-upon increases. About 10 days later, Bunch was told
by Bradley that Respondent's membership had likewise
ratified the agreement.
Matters lay dormant thereafter for some time. It is found
that, during this period, the Union assumed that the agree-
ment was for an unqualified series of wage increases and
that Respondent assumed that the "30-31-33 agreement"
was subject to the traditional prorating feature.
In the meantime, the Union turned its attentions to the
negotiation of a separate contract with Carithers Depart-
ment Store. On or about June I . Bunch called Bradley to
advise that the Union had been unsuccessful in obtaining
tended that there would be prorating of the S3.41 amount for persons with
"less than one year's experience" in that classification. Accordingly. the
quoted provision could only be treated as an accurate reflection of the par-
ties' agreement if it were "understood" that the quoted rate was subject to
prorating for hardware cashiers with less than I year's experience. Discus-
sion of the significance of this to the larger and more fundamental misunder-
standing on the prorating issue is contained in the "Analysis" section. infra.
March I retroactivity from Carithers.' This news was upset-
ting to Bradley because the Union had earlier indicated
that it would (at least) us its best efforts to obtain March I
retroactivity from Carithers (see tn. 7. supra). and Respon-
dent's employer-members would likeln feel that they had
been duped. In order to avoid bad feelings and without
abandoning its position that a full agreement had alread
been reached and was binding upon Respondent. Bunch
agreed to Bradley's suggestion that the parties meet to work
out some "compromise" to remo'e the sting from the recent
('arihers developments. Such a meeting was held on Jul,
13. but no compromise was reached. It is undisputed that
Bradle' then abandoned any further efforts to reach a com-
promise on the retroactivity question and conceded that
Respondent was bound to the March I retroactivitN date.
The parties then returned to a discussion about the need t'or
their original agreement to be reduced promptl\ to inte-
grated. written form. Bunch agreed to undertake this proj-
ect after being advised by Bradlex that the Union had tradi-
tionally assumed that obligation.
On July 14, Bunch and other representatives of the
Union hastily prepared a full written agreement and hand-
delivered it to Bradley's office. That document (G.C. Exh.
7) contained erroneous calculations as to the rates of pa in
each enumerated classification in the wage appendix sec-
lion.,
After review of the Union's draft by the four employers
constituting Respondent's committee, and after Bradley
had already pointed out to the Union that the wage rates in
the draft were plainly erroneous (see fn. 8. supra), BradleN
telephoned Bunch early in the week of July 18 to request a
meeting to discuss unspecified additional questions about
the wage appendix section of the draft. Bunch agreed. with
the proviso that the meeting was to be "off the record" and
that the Union did not abandon its position that it had no
further obligation to bargain any changes from the original
"agreement."
The parties met on or about Jul) 20 in Bradley's office.
'As was pre iousl, found. Resptondent's emplo)er-members had agreed to
full retroactivilv i.e., wage increases being effective retroactively to March 1I
rather than the date on which the agreement was reached). but only grudg-
ingli. and only after they had received what they took as an assurance on
Ma) 22 that the Union would obtain a comparable retroacivily feature in
an) agreement reached with Carithers It is unnecessary to resolve a disputed
point. namel): whether the Union unqualifiedly agreed on May 22 to obtain
such retroactivity from Carithers--or merely promised its "best efforts" to
obtain retroacti it). It s clear that. on July 13. Respondent abandoned ef-
forts to renegotiate retroactivity) due to the Carithers development. and the
parties agreed to have the Union reduce the earlier supposed agreement to
writing in anticipation of signing and implementation. The proraiing issue
surfaced after a writing was prepared Moreover, Respondent has not ad-
vanced the failure of the Union to obtain retroactivit) from Carithers as an
alternative defense to the charge herein Rather, on brief, it concedes that
"TJhe parties' sole disagreement is whether the wage increase that was nego-
tiated . is to be granted uniformly to all emplo2ees or prorated according
to step progressions as illustrated in the parties' immediate preceding agree-
ment.
I Bunch, In his haste, had mistakenly used the wrong "base period" rates
for purposes of adding the agreed-upon 30 31 33 increases. with the result
that employees would receive less than that which the) were alread) receis-
ing. This mistake was inconsequential and was promptly called to the
Union's attention by Bradley, While the rates set forth were erroneous, the
wage appendix did reflect the abandonment of the traditional prorating lan-
guage, however This was noticed somewhat later by one of the emploer-
members of Respondent and, as a result, the fundamental misunderstanding
of the parties as to the prorating issue finally surfaced see below)
765
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bunch and one of the Union's officers attended. After first
dealing with some other textual errors in the draft which
the Union acknowledged, Bradley stated that one of the
employer representatives had noted that there was no refer-
ence in the draft to prorating of the agreed-upon increases.
Bunch stated that this was because the parties had agreed
on across-the-board increases for "all employees." Bradley
countered that he had not intended to eliminate prorating,
pointing out that, in prior negotiations, negotiated increases
had only applied literally to persons with more than I
year's experience, with more junior employees receiving
their pro rata share of such amounts. Bradley also pointed
to that portion of the May 24 letter of understanding which
continued in effect all "terms and provisions" of the prior
contract not specifically modified by the 1978 negotiations.
Bunch argued that the unqualified agreement to grant "30
31-33" on an across-the-board basis necessarily required
elimination of the traditional prorating language in the
wage appendix. Bradley countered that "across-the-board"
had always been the formulation used in prior negotiations
between the parties, but that prorating language, neverthe-
less, always had been included in the agreement when re-
duced to writing and signed. Bunch protested that, in 1975.
there had been specific reference to prorating. but there had
been no such specific reference in the 1978 negotiations-
hence, prorating was not part of the 1978 bargain. At some
point, the Union's representative (Smith. according to
Bradley) stated that he had never included prorating lan-
guage in any of his food industry contracts, and that he did
not intend its inclusion in negotiations with Respondent.
either. Bradley expressed ignorance of the Union's practice
in the food industry and complained that the Union's desire
to eliminate prorating had never been made clear.9 The ar-
guments continued back and forth in similar vein for some
time.
It being evident to both parties that a fundamental mis-
understanding as to prorating had emerged, Bunch pro-
posed a "compromise." The terms thereof are not impor-
tant. In doing so, Bunch did not waive the Union's position
that it already had a binding agreement with Respondent.
Bunch stated that he made the offer of compromise to get
Bradley "off the hook" because of the past amicable rela-
tionship between the parties. Bradley agreed to propose the
compromise to Respondent's members and he did so in late
July or early August, but the employer-members were ada-
mant in their position that prorating of the 30-31-33 offer
must be part of the contract reached.
There were further developments, including a letter from
Bradley to Bunch offering, in substance, to sign a contract
consistent with Respondent's interpretation of the original
agreement, and a reply from Bunch reiterating the Union's
demand for unqualified 30-31-33 increases. These develop-
ments did not affect the merits of the instant case, however.
'The foregoing is based on a composite drawn from the credited versions
of Bradley and Bunch (Smith did not testify on the subject). Both witnesses
impressed me throughout the hearing with their candor and mutual willing-
nea to acknowledge matters of fact asserted by the other. There are few, if
any, credibility conflicts as to the meeting described, but neither witness gave
an account which matched the other's in all particulars.
It is clear that, since the issue dividing the parties was
joined in the meeting of July 20. Respondent has refused to
execute any contract which does not provide for traditional
prorating of the 30 31 33 increases. Accordingly. the
Union has not sought to prepare and present for Respon-
dent's signature an accurate draft of the agreement which
the Union believes was reached in late May.' °
Analysis and Conclusions
T'he positions of the Union and Respondent are inherent
in their respective exchanges during their meeting on or
about July 20. Endorsing the Union's view of things, the
General Counsel asserts that, after May 22. Respondent
became legally bound to a contract providing in material
part for unqualified implementation of the 30 31 33 wage
increases to all employees, without regard to their length of
service. According to the General Counsel, the plain, objec-
tive meaning of the May 24 letter, which Bradley signed,
admits of no other interpretation. Conceding that there was
a practice of making wage increase settlements subject to
prorating, the General Counsel points out that the Union's
negotiators in 1978 were essentially. strangers to that prac-
tice and were not bound thereby. Moreover, the General
Counsel urges that, to the extent that Bunch was expressly
advised in 1975 that all across-the-board offers were subject
to prorating, the failure to so advise the Union during the
1978 negotiations entitled the Union to assume that prorat-
ing had been abandoned. Thus, the General Counsel sub-
mits that, even assuming that Respondent. in good faith,'
was operating under a "subjective" misunderstanding as to
the significance of' its across-the-board wage agreement,
such a misunderstanding was due. at best, to a type of unin-
tended mistake which does not operate as a defense to its
obligation to execute the agreement reflected in the May 24
letter of' understanding.
I0 Because the July 14 draft contained admitted errors in the Union's com-
putation of wage increases due (even by its own view of the agreement), the
General Counsel has correctly acknowledged that Respondent has never
literally "refused to sign" a document tendered by the Union which reflects
the General Counsel's version of the agreement reached. Rather, in view of
the post-July 20 developments outlined above, the General Counsel contends
that preparation of a "correct" draft and tendering the same to Respondent
would be futile.
1 As to the question of Respondent's bona fides, the General Counsel
suggests somewhat inconclusively that Respondent knew all along that its
across-the-board offers were unqualified and that prorating had been aban-
doned. In support, the General Counsel points to certain letters sent by some
of Respondent's employer-members to their respective employees before
May 22 in which Respondent's then pending wage offers were announced
without qualification as being for fixed amounts. Since some of the employ-
ees to whom these letters were sent had less than I year's experience, the
General Counsel argues that the employers would have explained that the
then pending offers were subject to prorating if, in fact, they believed this to
be the case. While this evidence is subject to such an interpretation, I do not
adopt it. It is equally possible. if not likely, that Respondent's members were
simply adhering to "shorthand" characterizations consistent with the long-
standing practice described earlier. Moreover, since the letters in question
were drawn in the context of a campaign to "sell" the employees on the wage
package then under consideration by the Union (and at a time when Re-
spondent had not yet acceded to a more costly union proposal for revised
health and welfare coverage), the failure to specify that Respondent's wage
offers were subject to prorating may be explained in terms of an understand-
able desire on the employers' part to characterize Respondent's pending offer
in the most attractive terms possible.
766
VALLEJO RETAIL TRADE BUREAU
For its part. Respondent does not deny that a binding
agreement was reached; hut it asserts that the agreement
was, in its material provisions, for a 30 31 -33 wage increase
subject to prorating. In its defense, Respondent relies essen-
tially on two factors: First, that the expression "across-the-
board" has, in the parties' relationship over the years. be-
come a form of "trade usage" carrying with it the specific
implication that it applies to "journeyman" only. Thus, the
failure of the Union in the 1978 negotiations to specify that
it intended for that expression to apply literally to all em-
ployees, without regard to length of serivce, requires the
conclusion that the Union was bound to that "usage." Sec-
ond, Respondent argues that the reference in the Ma 24
letter of understanding to continuation of all prior terms
and provisions "except as to the [specifically identified] pro-
visions herein" had the necessary effect of guaranteeing re-
tention of the prorating language contained in the prior
contract's wage appendix. Accordingly. Respondent seeks a
finding that a 30 31-33 wage increase, subject to prorating.
was the agreement to which the Union became bound.
Preliminarily, it is concluded that, subjectively, the par-
ties were on entirely different wavelengths in all of the dis-
cussions leading to and including the signing of the May 24
letter of understanding. Thus, to the extent that "subjec-
tive" intentions are ever divinable e post facto. the record
as a whole shows that each party approached the 1978 ne-
gotiations with a wholly different notion of the meaning of
the expression "across-the-board."
It is therefore tempting to rely uncritically on the hoary
maxim of the law of contracts that, absent a "meeting of the
minds." there is no mutually binding agreement. The temp-
tation is avoided, however, because the expression. "meet-
ing of the minds" in contract law does not literally require
that both parties have identical subjective understandings
on the meaning of material terms in the contract. Rather,
subjective understanding (or misunderstandings) as to the
meaning of terms which have been assented to are irrele-
vant, provided that the terms themselves are unambiguous
"judged by a resonable standard." Pittsburgh-Des Moines
Steel Company. 202 NLRB 880. 888 (1973), and authorities
cited herein. See also, e.g., Rockwell Printing and Publishing
Co., Inc. d/b/a Monument Printing Co.. 231 NLRB 1215,
1220 (1977). and authorities cited therein.
Here, all parties point to the same instrument by which
formal "assent" was manifested. i.e.. the May 24 letter of
understanding; and yet, each party urges. as previously de-
scribed, that the same terms have different meanings.
In partial agreement with Respondent's position. I find
that the instrument principally relied on as evidence of Re-
spondent's assent, i.e., the May 24 letter of understanding.
was itself fraught with ambiguity on the key question
whether or not the 30 31-33 proposal was subject to pro-
rating for persons with less than I year's experience. The
principal ambiguity lay in the clause providing for continu-
ation of all of the prior contract's "terms and provisions."
except as to the other "provisions" set forth in that letter.
As I view it, a genuine question objectively exists whether.
comparing the terms of that letter with the terms of the
prior contract, the parties intended to perpetuate the pro-
rating language which qualified the prior contract's wage
provisions. And. of course, resort to the bargaining history
in an eflbrt to clarify the ambiguity just noted does not
assist in resolving the question in the Union's and the G(en-
eral Counsel's favor. Rather, it discloses a previous course
of dealing in which the shorthand usage of "across-the-
hoard" terminology was understood to imply "pro-rating"
of agreed-upon amounts for persons with less than I ear's
experience.
Moreover. even if I were to view the "across-the-board"
language in the May 24 letter in isolation, there is still a
lurking ambiguity created by the Union's own inconsis-
tency of usage in the particular clause dealing with hard-
ware cashiers. Thus, as was previously indicated (see fn. 6,
supra). it is undisputed that the parties did. in fact, agree
that the identified rate tor hadware cashiers would apply
only to cashiers with more than I year's experience. Never-
theless. the May 24 letter drafted by the nion expressed
the parties' agreement as being applicable to "cashiers in
the hardware departments" without any qualification for
length of service. Inasmuch as the Union intended tor the
negotiated rate for hardware cashiers to be subject to pro-
rating for cashiers with less than I ear's experience. not-
withstanding the fact the no such qualification is expressed
in the May 24 letter. Respondent could reasonably have
assumed, consistent with the parties' historical practice.
that the other unqualified references to "across-the-board"
wage increases were likewise to be interpreted as being sub-
ject to "pro-rating."
Considering all of the foregoing. and especially the ambi-
guity created by the provision in the May 24 letter for con-
tinuation of the prior contract's provisions. except as specief-
ically modified by other provisions in that letter, I conclude
that the evidence fails to show that Respondent intended to.
or did, agree to give employees with less than I ear's expe-
rience the wage increases contemplated b the 30 31 33
proposal. Accordingly. it is concluded that the parties did
not reach full agreement on terms for a new contract and
therefore Respondent did not violate Section 8(a)(5) and (I)
of the Act hby notifying the Union that it would not execute
any agreement which scrapped the prorating aspect of the
agreed-upon increases.
It was previously noted that I was in "partial agreement"
with Respondent's position herein. Specifically, I am not
required to, and I therefore do not accept Respondent's
invitation to find that the Union is obligated to execute
Respondent's version of the agreement purportedly
reached. The complaint alleged only that Respondent vio-
lated the Act by refusing to execute the Union's ersion of
agreement. There was no parallel or alternative allegation
raising the question of the Union's duty to execute an al-
leged agreement. In any' case, much of the analysis set forth
earlier would appear to apply equally to an, charge under
Section 8(bh)13) of the Act that the Union was bound to
Respondent's interpretation of the May 24 letter.
(oN(AI tsioNS ()F A[.N
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
767
I)F('ISIONS OF NA'I()ONAL. LABOR RELATIONS BOARI)
2. The Ui'ion is a labor organization within the meaning
of the Act.
3. Respondent did not commit unfair labor practices as
alleged in the complaint.
!Upon the foregoing findings of fct. conclusions of law.
and upon the entire record. and pursuant to Section 10(c) of
the Act. I hereby issue the fllowing recommended:
ORI)ER2
The complaint is dismissed in its entiret.
I2 In the event that this Order is enforced h) a Judgment of a I niled
States Court of Appeals. the words in the notice reading "Posted hby Order of
the Nalional Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment oI the t.;nited States Court of Appeals nlorcing an Order of the Na-
tional l.abor Relations Board."
768