Williamhouse-Regency Of Delaware, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1989

297 N.L.R.B. 199 (N.L.R.B. 1989)

WILLIAMHOUSE-REGENCY OF DELAWARE

199
Williamhouse-Regency of Delaware, Inc. and Alumi-
num, Brick and Glass Workers International
Union, Local 198, AFL-CIO-CLC. Cases 6-
CA-21052 and 6-CA-21245
October 31, 1989
DECISION AND ORDER .
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On Apnl 26, 1989, Administrative Law Judge
Richard H Beddow Jr issued the attached deci-
sion The Respondent filed exceptions and a sup-
porting brief, and the Charging Party filed an an-
swering brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions as explained below and to adopt the
recommended Order as modified 1
The judge found, and we agree, that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
by failing and refusing to remit dues to the Union
that were withheld from employees' pay The
judge also found that the Respondent violated Sec-
tion 8(a)(5) and (1) by failing and refusing to enter
into and execute a contract embodying the terms of
the agreement reached with the Union We agree
with the judge's finding of a violation, but only for
the following reasons
We find that the Respondent's final offer re-
mained open and available for acceptance on June
8, 1988 2 It is well settled that an offer, once made,
remains on the table unless explicitly withdrawn by
the offeror or unless circumstances arise that would
reasonably lead the parties to believe that the offer
had been withdrawn Pepsi-Cola Bottling Co v
NLRB, 659 F 2d 87, 90 (8th Cir 1981) Here, the
Respondent never explicitly withdrew its offer or
told the Union that it had expired Even assuming,
as the Respondent argues, that its negotiators said
upon making the final offer on April 29 that the
offer would be gone if the Union did not accept it
at the May 1 vote, 3 the Respondent's subsequent
i We shall modify the judge s remedy and recommended Order to re-
quire the Respondent to execute and give retroactive effect to the agree-
ment reached with the Union as of May 1, 1988, as stated in the April 29
final offer
2 All dates hereafter are 1988, unless specified otherwise
3 Although we recognize that the judge did not resolve the credibility
conflict concerning whether the Respondent s negotiators made these
statements, this unresolved credibility Issue does not affect our decision in
this case
conduct makes clear that the offer was nonetheless
available for acceptance June 8 In this regard, the
Union's Regional Director Albert had several con-
versations during the course of the strike in May
with the Respondent's Chairman Lewis and
Spokesman Ladov These conversations focused on
the terms of the final offer, but neither Lewis nor
Ladov ever indicated that the offer was no longer
available Further, Plant Manager McSwiney sent a
letter dated May 25 to the striking employees, in-
forming them that the Respondent intended to im-
plement the economic terms of its final offer effec-
tive May 31 The letter, accompanied by a com-
plete copy of the Respondent's final offer, encour-
aged the employees to consider the fairness of the
total offer Furthermore, McSwiney's use of the
present tense in the letter when referring to the
final offer indicated that the Respondent consid-
ered the offer to be viable The letter stated, "The
Company believes that its proposal is fair to all
concerned " (Emphasis added ) The Re-
spondent also sent McSwiney's letter to the Union,
further indicating to the Union that the offer was
viable Therefore, when the parties met on June 8,
and Logsdon accepted the April 29 final offer,
agreement was reached 4 Accordingly, by failing
and refusing thereafter to execute a contract em-
bodying the terms of that agreement, the Respond-
ent violated Section 8(a)(5) and (1) of the Act 5
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Wilhamhouse-Regency of Delaware,
Inc , Scottdale, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order as modified
1 Substitute the following for paragraph 2(a)
"(a) Enter into, execute, and give retroactive
effect as of May 1, 1988, to the provisions of the
4 Contrary to the Respondent's exceptions, we find that the Union s
concomitant request for striker amnesty constituted neither a counteroffer
nor a conditional acceptance Rather, we find, based on uncontroverted
testimony that at the June 8 meeting Logsdon requested amnesty for
strikers and accepted the Respondent's April 29 final offer, that amnesty
was a matter separate and distinct from the contract negotiations Even
the Respondent considered the amnesty request to be separate from the
contract negotiations, as evidenced by its accepting the amnesty request
but rejecting the Union's acceptance of the final offer
5 We reject the Respondent s argument that ratification by the Union s
membership was a condition precedent to a binding contract It is undis-
puted in the instant case that the Union notified the Respondent in writ-
ing at the outset of negotiations and orally during negotiations that any
agreement would have to be ratified by the membership before it became
a binding contract When a union, as here, limits its own authority to
enter into a binding agreement with an employer by imposing on Itself
the requirement that its membership ratify the agreement, that require-
ment does not constitute a condition precedent Sacramento Union, 296
NLRB 477 (1989)
297 NLRB No 26
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
collective-bargaining agreement reached with the
Union, as reflected in the provisions set forth in its
final offer dated Apnl 29, 1988"
2 Substitute the attached notice for that of the
administrative law judge
CHAIRMAN STEPHENS, concurring
I concur in the result and with most of my col-
leagues' reasoning, including their reliance on the
majority decision in Sacramento Union,' inasmuch
as it reflects the Board's most recent position on
employee ratification Likewise, I believe that
under my separate analysis of the authorities in
Sacramento Unzon, 2 the Board would be justified in
finding an enforceable contract here First, al-
though the parties originally may have understood
employee ratification as an act of acceptance that
must occur before a binding contract was created
(the Employer's position), the Union's eventual
communication of a final acceptance on June 8, at
a time when the contract proposal was still on the
table, 3 served to complete the mutual assent neces-
sary for creation of a binding contract and for
quickening the Employer's obligation to execute
the agreement Second, in briefing the issue, the
Employer has not argued that there was the sort of
"express" written agreement between the parties
that, according to some authonties, 4 might pre-
clude the Union from dispensing with employee
ratification
I note, however, that this case confirms my con-
tention in Sacramento Union that employers and
unions could benefit from a reconciliation of some
of the Board precedents that seem to be in tension
with one another 5 Until that clarification effort is
undertaken, along with a more precise utilization of
such legally significant terms as "condition prece-
' 296 NLRB 477 (1989)
2 Id at 479 fn 5 (concurring opinion)
3 See NLRB v Buriart Foam Inc , 848 F 2d 825 (7th Cu . 1988), and
cases cited therein
4 See, e g , Martm J Barry Co , 241 NLRB 1011, 1013 (1979)
a Compare Sunderland's Inc , 194 NLRB 118 fn 1 (1971), with North
Country Motors, 146 NLRB 671 (1964) North Country is the seminal deci-
sion that subordinates employee ratification to a union's statutory author-
ity to conclude binding bargaining contracts with an employer Under
this view, as long as the union manifests at some point final and timely
assent to the contract, an employer can rarely object to the fact that em-
ployee ratification did not occur as expected Sunderland s, on the other
hand, may posit by implication that a union s statutory bargaining author-
ity can be so circumscribed by its members that it could not exercise the
power to accept a contract proposal so as to create a binding agreement
See also Houchens Market of Ehzabethtown Inc v NLRB, 375 F 2d 208,
212 (6th Cif 1967) (dictum) ('Members of a Union have the right to de-
termine the extent of authority delegated to their bargaining unit It is
within their province to determine whether or not their bargaining unit
may enter into a binding contract with or without membership ratifica-
tion ")
Although the Employer does cite Sunderland's, It does not do so to de-
velop the above proposition, and thus I do not regard the Employer s ar-
guments as squarely presenting this Issue to us for resolution
dent,"6 cases such as this one will continue to
come before us
6 Compare fn 5 of majority opinion, supra, with Sacramento Union
concurring opinion, 479 fn 4
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these nghts
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT fail and refuse to enter into, sign,
and abide by the agreement contained in our final
offer of April 29, 1988
WE WILL NOT fail and refuse to remit to Alumin-
ium, Brick and Glass Workers International Union,
Local 198, AFL-CIO-CLC dues withheld from
employees
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL enter into, execute, and give retroac-
tive effect as of May 1, 1988, to the provisions of
the collective-bargaining agreement reached with
the Union, as reflected in the provisions set forth in
our final offer dated April 29, 1988
WE WILL remit, with interest as provided in the
remedy section of the administrative law judge's
decision, all union dues withheld from employees'
pay and otherwise not timely forwarded to the
Union
WILLIAMHOUSE-REGENCY OF DELA-
WARE, INC
Sandra Beck Levine, Esq , for the General Counsel
James F Smith, Esq and Lynn Pollan, Esq , of New
York, New York, for the Respondent
Michael LaBelle, Esq , of Washington, D C, for the
Charging Party
WILLIAMHOUSE-REGENCY OF DELAWARE 201
DECISION
STATEMENT OF THE CASE $
RICHARD H BEDDOW JR , Administrative Law Judge
This matter was heard in Pittsburgh, Pennsylvania, on
December 14 and 15, 1988 Briefs subsequently were
filed by each party 1 The proceeding is based upon
charges filed June 10 and September 12, 1988 2 by Alu-
minum, Brick and Glass Workers International Union,
Local 198, AFL-CIO-CLC The Regional Director's
consolidated complaint dated October 26 alleges that Re-
spondent Williamhouse-Regency of Delaware, Inc vio-
lated Sections 8(a)(1) and (5) and 8(d) of the National
Labor Relations Act by failing and refusing to execute a
written contract embodying provisions of the collective-
bargaining agreement previously reached and by refusing
to remit to the union membership dues deducted from
employees' pay
Upon a review of the entire record in this case and
from my observation of the witnesses and their demean-
or, I make the following
•FINDINGS OF FACT
I JURISDICTION
Respondent is engaged in the manufacture, distribu-
tion, and sale of printed paper products and operates a
facility, among others, in Scottdale, Pennsylvania It has
annual inflow and outflow from and to points outside
Pennsylvania in excess of $50,000 and it admits that at all
times material it has been an employer engaged in oper-
ations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act It also admits that the Union
is a labor organization within the meaning of Section
2(5) of the Act
II PROCEDURAL MOTIONS
On February 28, 1989, the Respondent filed a motion
to strike portions of the General Counsel's and Union's
briefs and an accompanying memorandum in support On
March 10 and 15, 1989, respectively, the Umon and the
General Counsel filed corresponding motions to strike,
and accompanying memorandum in support, to the Re-
spondent's pleadings Respondent asserts that the Union
and General Counsel have made numerous factual asser-
tions which are unsupported and m some cases expressly
contradicted by record evidence These parties, howev-
er, contend that Respondent's memorandum purport to
show new evidence unsupported by the record offered in
the Union's and the General Counsel's briefs, but quarrel
with the arguments and inferences drawn from the testi-
mony already in the record and appropriately cited in
the briefs of the General Counsel and the Union They
also point out that Respondent quotes testimony, argues
theories, and cites legal authority in support of its own
positions and its own reading of the record, rather than
I The General Counsel's motion to correct the transcript dated Febru-
ary 17, 1989, as supplemented by the Respondent's letter of March 6,
1989, is granted and received into evidence as G C Exh 13
2 All following dates will be in 1988 unless otherwise indicated
pointing to areas in the General Counsel's and Union's
briefs which are allegedly unsupported by the evidence
Here, I find that the justification behind Respondent's
motion essentially appears to be in the nature of an unau-
thorized reply brief directed at factual conclusions and
inferences argued by the Union and the General Counsel,
rather than argument directed at possible factual missta-
tements I find that at this stage of the proceeding it is
unnecessary and undesirable to consider tlie contents of
Respondent's additional arguments and I find that good
cause has not been shown by the Respondent for a grant-
ing of the relief it request Accordingly, I deny Respond-
ent's motion to strike Correspondingly, I reject Re-
spondent's proffered memorandum in support and, as the
pleading is not a part of the record herein, the argument
made therein has not been considered in my evaluation
of the testimony, exhibits, and briefs Accordingly, I
grant the General Counsel's and Union's motions to
strike
_ III THE ALLEGED UNFAIR LABOR PRACTICES
Collective-bargaining negotiations for approximately
260 union employees at the Scottdale plant began in
early April 1988, prior to the expiration of the most
recent contracts on April 30 The Union and the Re-
spondent have had a history of successful negotiations
and harmonious relationships, since the early 1960s,
shortly after the Scottdale plant first started operations
and there has been no record of unfair labor practices
during that extended period Respondent's final offer is
summarized (G C Exh 6) and fully set forth in (G C
Exh 7), two handwritten documents that were presented
to the Union during negotiations on April 29 Each of
these documents is headed with the two line phrases
"Wilhamhouse Final Offer/Conditioned Upon Ratifica-
tion" International Representative Patrick "Kenny"
Logsdon and Local Union President John Haney testi-
fied that there was no discussion concerning what "con-
ditioned upon ratification" meant in either document and
neither witness recalled any statement by Company At-
torney and Negotiator Donald Ladov that "if the offer is
not ratified it is gone" Company Board Chairman
Martin Lewis and General Manager Ben McSwiney and
Ladov each testified that Ladov made this statement
These same company witnesses also testified that Lewis
then said "that if the offer was not ratified by the mem-
bership at the Sunday meeting, it is revoked by its
terms
Mark Stasko and Perry Whittaker were members of
the union wage committee and were present at the April
29 negotiations Whittaker testified that he recalled
Ladov's comment that the offer would be "gone" and
both Stasko and Whittaker testified that Chairman Lewis
asked Logsdon if he was going to take the final offer to
the membership, Logsdon said yes and Lewis asked to
have it explained to the members what conditioned upon
ratification meant and that if it was not ratified it would
be revoked by its terms Logsdon interrupted with an
unusual display of irritation and said, "Don't tell me how
to run our meetings" Haney testified that he was frus-
trated and had stopped paying attention and that after
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lewis made his statement, he made a remark about "get-
ting out of here" Lewis (corroborated by others) said
Haney had slammed a book shut, and said "Let's get the
fuck out of here"
Logsdon and the committee members took the final
offer to the member on Sunday, May 1 However, the
membership rejected the offer and a strike began the
next day The Company maintained limited operations
during the strike On May 25 it sent a letter to the em-
ployees and the Union stating that it was implementing
the economic terms of its final offer (it attached a copy
of the complete offer), and said that it intended to hire
strike replacements if sufficient employees did not return
to work Further details of the company letter and the
employees' decision to return to work on May 31 are set
forth below
During the strike, there were numerous conversations
between Roy Albert, Regional Director of the Interna-
tional and chief International union spokesmen, company
Spokesman Ladov, and Chairman Lewis Albert testified
that there was no indication by the Company that their
offer was not available for consideration When Albert
asked for some more money to get the strike settled,
Ladov told him that Lewis was upset by the strike be-
cause he had a place in his heart for the Scottdale facili-
ty and had been planning on expanding it (The record
also indicates that company representatives were upset
by the observance of allegedly drinking on the picket
line by Local Union Leader Haney ) Ladov did not indi-
cate to Albert that the offer was gone, off the table, or
revoked by its terms but referred Albert to Lewis
Albert spoke with Lewis by telephone, and asked for "a
few more pennies" to the company wage offer Lewis
said that the Company would consider "moving money
around" but would not pay any more total dollars
During this penod the Company sought State court in-
junctive relief and the Union entered into a consent
order Thereafter, the Company mailed a letter to all em-
ployees dated May 25, along with a copy of the final,
long version of the Company's April 29 contract propos-
al (G C Exh 7) In the letter the Company referred to
the fact that the Union had rejected "the Company's
'final offer' for a new three (3) year agreement
The letter said the Company planned to hire permanent
replacements, and concluded by stating, "We hope you
and your fellow employees realize the fairness of our
final offer and decide to return to work next week"
Haney, after first calling Logsdon about the letter, called
a membership meeting for May 26 and unsuccessfully
tried to contact Plant Manager McSwiney Logsdon told
him the Company could hire replacements and that it
would present a major problem At the meeting, Haney
told the members that "we had to go back to work,"
Stasko successfully got McSwiney on the phone, and re-
ported back that McSwiney told him they would come
back under the economic part of the last proposal, and
wanted them back the next day, Friday No vote was
taken, but the employees agreed to return Tuesday, May
31, after Memorial Day Stasko said that when
McSwiney told him about the economic terms he asked
about the rest of the contract and McSwiney said they
were always willing to negotiate and could set up a
latter date to do that and that he relayed this latter infor-
mation to the membership Logsdon was told of the em-
ployees' agreement to return to work and called Ladov
and told him the picket lines were down and they were
ready to go back to work Logsdon also said the Union's
only request was for general amnesty and proposed a
meeting time to finalize an agreement
On May 31 all employees returned to work
McSwiney testified that he then told Haney and others
on his shift that they were back on the economic pack-
age only, and did not have a contract or a grievance pro-
cedure and that if there were any problems to see a su-
pervisor or him (subsequently, however, Haney partici-
pate in the processing of at least two formal written
gnevances and maintained an ongoing relationship in the
area of grievance procedures)
A union management meeting was held on June 8
After some nonbusiness formalities including a story by
Ladov about an accident, Logsdon noted his request for
amnesty for strikers and stated that they were there to
accept the Company's final offer, sign the agreement,
and get underway under a new contract
The Company accepted the provision of general am-
nesty to the strikers but Ladov then said that the real
purpose of his earlier story was to make an analogy of
some sort that once an accident takes place you cannot
always put the pieces back together again the way they
were before and that was what happened during the
strike, that the Company no longer had the good rapport
and relationship with the Union, and that because of that
they were modifying their proposal to delete article 3,
sections 1, 2, and 3 (the union-security clause and the
union-dues payroll deduction clause), and that they were
resubmitting their original proposal on Appendixes 1 and
2, which dealt with the grievance procedure, the arbitra-
tion procedure, and the discharge and discipline proce-
dure of the existing contract
Logsdon said he was shocked and felt this indicated
that the Company was trying to bust the Union He cau-
cused with the committee members and then told the
Company that the Union was accepting their final offer
of April 29 and had no intentions of continuing negotia-
tions or making any kind of counterproposals
Subsequent to the employees return to work the Com-
pany continued to deduct union dues, however, it
stopped forwarding such moneys to the Union and, in-
stead, deposited the funds in an escrow account
Discussion
The parties to the involved dispute have enjoyed a
long history of success in reaching an agreement and
executing successive contracts During the latest negotia-
tions, however, the Company's final offer proposed a
wage increase of 20 cents an hour in each of 3 successive
years, whereas the Union's last proposal sought a 60-
cent-an-hour increase for each of 3 successive years
Except for certain minor proposals it appears that most
all noneconomic matters were to remain as set forth in
the old contract Significantly, no proposals or discus-
sions arose during negotiations that concerned any aspect
of the existing union-security or dues-checkoff clauses
L , WILLIAMHOUSE-REGENCY OF DELAWARE 203
The Local Union president, Haney, admits that he
"flew off the handle a little bit" when the Company dis-
cussed its final offer and, otherwise, the wage committee
did not accept the Company offer but agreed to present
it to the membership The company proposal was
headed
Wdhamhouse Final Offer
Conditional Upon Ratification
Here the Company asserts that inasmuch as its "offer"
was "conditioned upon ratification" the employees' non-
ratification automatically voided its offer
First, it is observed that in January 1985, dunng the
negotiations of the last contract, the Company gave the
Union a document entitled "Tentative Contract Agree-
ment" with "Conditioned Upon Ratification" written un-
derneath The Union voted but did not ratify that agree-
ment, however, the employees continued to work under
the old contract and negotiations continued on the same
document which resulted in the movement of a total of
$50 figure from the third year of the agreement to the
first year In March 31, 1985, the members then voted to
accept it and the contract became effective as of March
12 Accordingly, it appears that as a matter of past prac-
tice the failure of the Union to ratify upon submission for
a vote did not result in an automatic voiding of the Com-
pany's offer, regardless of the use of the language "con-
ditioned upon ratification"
My review of the record here leads to the conclusion
that the Company's final offer of April 29 remained open
and "on the table" until it was accepted by the Union
This conclusion is based upon a number of factors in-
cluding the past practices of the parties, the invalidity of
the Company's attempt to condition the offer upon ratifi-
cation, its reiteration of the offer in its letter of May 25
to the Union and the employees, and its failure to explic-
itly withdraw it offer or otherwise lead the Union to rea-
sonably believe that it had done so
Significantly, the Supreme Court in NLRB v Borg-
Warner Corp, 356 U S 342, 345 (1958), held that a ratifi-
cation clause is not a mandatory subject of bargaining
and a company's insistence on and refusal to sign a con-
tract unless it is ratified by the employees impermissibly
dictates internal union practices regarding acceptance of
an offer, see Zayre Department Stores, 289 NLRB 1183
(1988), and I conclude that for this reason (as reenforced
by the Company's past practices) the Respondent's use of
and reliance upon the term "conditioned upon ratifica-
tion" is immaterial to a resolution of the issue in this pro-
ceeding Inasmuch as the asserted conditional limitation
is improper and unenforceable in this context, it is equal-
ly true that a withdrawal of the Company's final offer
based upon the asserted self-executing nature of the con-
dition or upon any statement that the offer was "gone" if
it was not ratified is equally immaterial
Here, it is clear that with the exception of wages,
there was a meeting of the minds and all substantive mat-
ters, especially noneconomic matters which included
union-security and dues-checkoff provisions that were a
continuation from their previous contract Although the
employees did not ratify the offer and went on strike
(there was no contractual or other prohibition against
this action), the Company's offer and all of its contract
terms remanded on the table No date or timeframe was
established or proposed for withdrawal of the offer and
no explicit withdrawal of the offer was made during the
course of the strike, see Pepsi-Cola Bottling Co v NLRB,
659 F 2d 87 (1981), as cited in Magic Chef Inc , 288
NLRB 2 (1988) In fact, discussions occurred between
International Union Representative Albert and Company
Chairman Lewis and Negotiator Ladov, wherein the
Company held firm to the terms of its final offer despite
the Union's request that the Company "move a little
money around" as had been done during negotiations for
the previous contract and no explicit or implied with-
drawal of the offer was made
The Company's next affirmative action was to send a
letter to Union Negotiator Logsdon and to each employ-
ee, with a copy of its total final offer, both economic and
noneconomic, attached The letter said that the Compa-
ny would implement the economic terms (20-cent-an-
hour increase effective May 31, 1988, 1989, and 1990,
along with incentive standards and medical life and acci-
dent insurance) and it went on to refer to the fairness of
this final offer and asked "you and your fellow employ-
ees to return to work next week"
Here, I find that the terminology of the Company's
letter to the employees and its attachment of the com-
plete offer clearly shows that the final offer was still on
the table Although not explicitly stated, it otherwise ap-
pears that the letter would lead the Union and the em-
ployees to reasonably believe that now the offer was sub-
ject to a time limit, specifically the condition that they
return to work by "next week"
The employees did return by this deadline and Ladov
was notified on May 26 by the principal union negotia-
tor, Logsdon, that "the picket lines were down and they
were ready to go back to work" and Ladov explained to
Logsdon he was aware that the employees that planned
to come back Tuesday of the next week, after the Me-
morial Day holiday During this conversation, Logsdon
did not use words that would explicitly show a formal
acceptance of the final offer In a similar vein, Ladov
made no specific or general statement regarding any
changes in noneconomic portions of the final offer
The only interviewing act prior to the employees
return to work was the apparent statement by Plant
Manager McSwiney to committee member Stasko to the
effect that the Company was willing to negotiate the rest
of the contract at a latter date A second action by
McSwiney occurred after the employees returned when
he told shift employees that they did not have a contract
or a grievance procedure but were back on the economic
package only Subsequently, however, it appears he con-
tinued to follow the grievance procedure
Here, I conclude that Logsdon's confirmation to
Ladov of the fact that the employees had decided to
return to work in response to the Company's letter and
his statement that the picket lines were down and they
were ready to go back to work, although not explicit,
would lead a company to reasonably believe that the
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union had accepted the offer attached to its letter to the
employees
Despite the apparent questions in the employees' minds
about the status of the noneconomic aspects of the final
offer and the plant manager's statements referring to
latter negotiations on these matters, there is no indication
that this question was raised between the principal re-
sponsible negotiators for either the Union or the Compa-
ny Moreover, under the circumstances of the Compa-
ny's outstanding offer as submitted in its letter to em-
ployees, neither the Company nor the plant manager was
free to pick and choose those contract proposals on non-
economic mandatory bargaining subjects which might
suit some new interest and demand renegotiation There
is no showing that any alteration of terms was made by
Chief Negotiator Ladov or Company Chairman Lewis
until after the formal statement acceptance by the
Union's chief negotiator at the start of the poststnke
meeting on June 8 In a similar vein, there is no showing
that McSwmey communicated his statements regarding
noneconomic terms directly to the Union or, specifically,
Negotiator Logsdon The Company, of course, is re-
quired to deal with the Union as the employees' bargain-
ing representative and it could not deal directly with the
employees generally Accordingly, I find that the mere
presence of the local union president, when the shift em-
ployees generally were addressed by McSwiney (or
when he spoke with employee Stasko on the phone) are
insufficient to constitute a valid withdrawal of the non-
economic proposals that otherwise were "on the table"
Under these circumstances, I find that the Company's
final offer was open on May 26, that it was accepted in
Logsdon's phone call to Ladov on the same day, and
that this acceptance was reasonably confirmed to the
Company when the employees met the condition of its
letter of May 24 and unconditionally returned to work
within the proscribed "next week"
In addition, I also find that if it were considered that
these discussed circumstances and the Union's failure to
explicitly accept the final offer, did not constitute a valid
acceptance, I further find for the reasons otherwise dis-
cussed above, that the Company's final offer remained on
the table until June 8 and I find that Logsdon explicitly
accepted that open offer at the start of the meeting on
June 8 At that point the Company refused to execute
the agreement and proposed changes in some noneco-
nomic provision that were basic, longstanding items car-
ried over from the previous contract, items that had not
been the subject of contention during the most current
negotiations 3 Specifically, these changes involved two
items of particular sensitivity to the status and standing
of the Union, the union-security and dues-checkoff provi-
sions
The Board, in Dold Foods, 289 NLRB 1323 (1988), re-
cently has held that a company's refusal to execute an
3 No counteroffer was made by the Union that could be considered to
reopen bargaining Although the Respondent argues that the request for
amnesty reopened negotiations, I find that this subject is not a mandatory
subject of bargaining that would affect the substance of the contract
Moreover, the Company otherwise readily agreed to general amnesty
and this was not a matter of contention or a subject on which there was
no meeting of the minds
agreement is unlawful where it is based upon an unsub-
stantiated premise that changes in employee feelings
during a strike justified withdrawal of recognition Also,
in Trumbull Memorial Hospital, 288 NLRB 1429 (1988),
the Board recently found poststnke proposals to elimi-
nate or modify dues checkoff and union security was
violative of Section 8(a)(5) of the Act, see also Brannan
Sand & Gravel Go, 289 NLRB 1492 (1988), in which the
Board found a violation after employer withdrawal of a
union-security clause contained in an expired contract
after surprise union acceptance of its offer
Here, there is some evidence that the Company be-
lieved that during the strike some employee resigned
from the Union and that "large numbers" told manage-
ment of their desire to return to work and their displeas-
ure with the Union This "evidence" was presented as
the basis for the Company's new desire to modify its
offer in the areas of union security and dues checkoff
and it is analogous to reasons generally offered for with-
drawal of recognition Clearly, however, this belief is not
objective, reliable evidence that could support a good-
faith doubt that the Union continued to represent a ma-
jority of the employees and nothing is shown to have oc-
curred that could justify the Employer to withdraw rec-
ognition or withdraw from bargaining Accordingly, it
otherwise could not pick and choose and withdraw
union security and dues checkoff from the final offer that
was on the table after the employees met its condition by
returning to work and by otherwise accepted its last
offer
It is well-established Board policy that a contract offer
is not automatically terminated by the other party's re-
jection (or counterproposal), but may be accepted within
a reasonable time unless it was expressly withdrawn
prior to acceptance, was expressly made contingent upon
some condition subsequent, or was subject to intervening
circumstances which made it unfair to hold the offeror
to his bargain As previously noted, under this policy, an
offer, once made, will remain on the table unless explicit-
ly withdrawn by the offeror or unless circumstances
arise which would lead the parties to reasonably believe
that the offer had been withdrawn, see Ashe Brick Go,
280 NLRB 1383, 1390 (1986) As set forth in the discus-
sion above, it is clear that the Company's ratification
condition was invalid and that otherwise an open offer
was on the table after the Union's original rejection This
company offer was reasserted in its letter of May 24 and
it was accepted by the Union's May 26 unconditional
statement that the picket lines were down and they were
ready to go back to work, this acceptance was confirmed
by the employees' return to work on May 31, and ac-
ceptance was explicitly restated on June 8 prior to the
Company's attempt to modify portions of its noneconom-
ic package
The Union's acceptance of the Company's outstanding
offer otherwise is unencumbered by possibly unqualified
circumstances and, accordingly, an enforceable contract
was formed The Company improperly refused to meet
its resulting obligation to execute and abide by this con-
tract and I conclude that its failure to do so is shown to
WILLIAMHOUSE-REGENCY OF DELAWARE 205
be a violation of Sections 8(a)(1)(5) and 8(d) of the Act,
as alleged
It is undisputed that on and after May 31, when the
employees returned to work the Company continued to
deduct union dues as provided for in the expired con-
tract (and in the provisions of its so-called final offer)
and that the sums collected were placed in an escrow ac-
count rather than being remitted to the Union The Re-
spondent does not address this issue in its brief except to
renew its motion to dismiss, however, it did argue at the
hearing that its position was analogous to the situation
described by the Board's General Counsel in Memoran-
dum GC-88-14, released November 15, 1988, which deals
with the use of dues money by a labor organization for
political purposes and how upon objection, that dues
money would be escrowed and maintained in a separate
account That memo stated that "in all cases where an
employee disagrees with the Union's determination, the
Union is required to place the amount in dispute into an
interest baring escrow account while the matter is being
resolved"
Although the Respondent's approach may be viewed
as a good-faith attempt to preserve its asserted position
regarding the question of its continued participation in
dues checkoff, it has created a situation where it has half
complied (withholding) and half not complied (not for-
warding to the Union) Although it appears that placing
the funds in an escrow account might tend to preserve
specific funds for the Union, it otherwise appears to be
primarily advantageous to the Company to accrue inter-
est that would necessarily be due to the Union in the
event the Company failed to prevail in its position Here,
the moneys are rightfully the Union's whether withheld
through dues checkoff or otherwise collected In the
event this proceeding had resulted in a finding that no
agreement had been reached, the Company still would
have obligated to give the funds to the Union (baring
some, speculative, third-party action by an employee),
and therefore it does not appear that any justifiable spe-
cial circumstances are shown to exist that could some-
how validate Respondent's action
Section 8(a)(5) of the Act generally prohibits unilateral
changes in the terms and conditions of employment in an
expired collective-bargaining agreement until the parties
negotiate a new agreement or bargain in good faith to
impasse NLRB v Canlh, 648 F 2d 1206, 1214 (9th Cir
1981), and otherwise, following impasse, an employer
may only make unilateral changes that are reasonably
comprehended within its preimpasse proposals Taft
Broadcasting Co, 163 NLRB 475, 478 (1967), affd 395
F 2d 622 (D C Cir 1968) Here, the unilateral change of
refusing to remit dues (as obligated under the old con-
tract) is inconsistent with its previous final proposal to
the Union, and the Respondent cannot be considered to
be justified in discontinuing remission of withheld dues
to the Union, see Tampa Sheet Metal, 288 NLRB 322
(1988) Accordingly, I find that Respondent is shown to
have unlawfully ceased to remit funds withheld for union
dues and has thereby violated Section 8(a)(5) and (1) of
the Act in this respect, as alleged
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act, and at all times material
herein, the Union has been, and is now, the exclusive
representative of the employees at Respondent's Scott-
dale, Pennsylvania facility for the purpose of collective
bargaining within the meaning of Section 9(a) of the Act
3 By failing and refusing to enter into, execute, and
abide by a written contract embodying the terms and
conditions of the agreement reached with the Union, as
found herein, the Respondent has violated Section 8(a)(1)
and (5) and Section 8(d) of the Act
4 By failing and refusing to remit employees' dues to
the Union which It had withheld from employees' pay,
the Respondent violated Section 8(a)(1) and (5) of the
Act
THE REMEDY
Having found that the Company has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative actions
designed to effectuate the policies of the Act
As the Company violated its obligations under the Act
by refusing to enter into and execute a contract embody-
ing the terms of the agreement reached with the Union, I
shall recommend that it be ordered to enter into, exe-
cute, and give retroactive effect as of May 31, 1988 (the
date employees returned to work), to the provisions of
the agreement as set forth in its so-called final offer
dated April 29, 1988 With respect to the Company's fail-
ure to remit dues to the Union, I recommend that it be
ordered to remit all such dues to the Union with interest
as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987) 4
Otherwise, it is not considered to be necessary that a
broad order be issued
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 5
ORDER
The Respondent, Williamhouse-Regency of Delaware,
Inc , Scottdale, Pennysylvama, its officers, agents, suc-
cessors, and assigns, shall
1 Cease and desist from
(a) Failing and refusing to enter into, sign and abide by
the agreement contained in its final offer of April 29,
1988
(b) Failing and refusing to remit to the Union dues
withheld from employees
4 Under New Horizons, Interest is computed at the short-term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621
5 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings, conclusions, and recommended Order
shall, as provided in Sec 102 48 of the Rules, be adopted by the Board
and all objections to them shall be deemed waived for all purposes
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(c) In any like or related manner interfering with re
straining or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Enter into execute and give retroactive effect as of
May 31 1988 to the provisions of the collective bargain
mg agreement reached with the Union as reflected in
the provisions set forth in its final offer dated April 29
1988
(b) Remit, with interest as provided in the remedy
section of this decision all union dues withheld from em
ployees pay and otherwise not timely forwarded to the
Union
(c) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records, social security payment records timecards,
personnel records and reports, and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its Scottdale Pennsylvania facility copies of
the attached notice marked Appendix 6 Copies of the
notice on forms provided by the Regional Director for
Region 6 after being signed by the Respondent s author
ized representative shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu
tive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced or covered by
any other material
(e) Notify the Regional Director for Region 6 in writ
mg within 20 days from the date of this Order what
steps the Respondent has taken to comply
6 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
at 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