Midvalley Steel Fabricators, Inc.

I)F.(IlSIONS OF NAIIONAI. IABOR REL.AlIONS BOARI) Midvalley Steel Fabricators, Inc. and Shopmen's Lo- cal Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Case 3 CA-8252 July 18, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPIHY, AND TRriSI)AII! On October 5, 1978, Administrative Law Judge Robert E. Mullin issued the attached Decision in this proceeding. Thereafter, both Respondent and Gen- eral Counsel filed exceptions and supporting briefs. Pursuant to the pr& visions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative aw Judge as modified below. The pertinent facts are as follows: Respondent ex- tended recognition to the Union on October 21, 1977.' Thereafter, its president, Joseph Charla, Jr., and union representative William Colavito met dur- ing a number of bargaining sessions which culmi- nated in the parties agreeing to write up a formal document reflecting their oral agreement. At a meet- ing on November 12, 1977, Colavito gave Charla a draft contract2 which included all of the terms and conditions specifically raised, discussed, and agreed to at the various bargaining sessions and which also incorporated by reference the nion's standard in- dependent contract (herein called SIC), except to the extent modified by the specific terms agreed upon. Charla stated that the draft seemed satisfactory, but he added that he wished to take it with him to see if there was anything missing or any mistakes. On No- vember 17 he telephoned Colavito and insisted that four changes be made in the draft agreement. These changes did not, however, relate to "anything missing or any mistakes" in the draft but were changes in matters agreed to in the previous bargaining sessions. The Union subsequently acquiesced to two of the changes, but when Respondent continued to insist upon changes in the previously agreed-upon wages I All dates hereinafter are 1977 unless otherwise specified. 2 The handwritten draft was a formal agreement in form. incorporating all necessary terms for a final agreemet it was not just a memorandum of points agreed upon. The agreement specified that it would be effective from November 1, 1977. to June 30. 1980 dates which, according to Colavito's uncontradicted testimony, had been agreed upon by the parties. and the elimination of the pension provision the Union filed the charges in this proceeding. The Administrative Law Judge fund, and we agree, that by its shift in position on previously agreed-upon matters and by its overall course of con- duct subsequent to November 17 Respondent vio- lated Section 8(a)(5) and (1) of the Act. He con- cluded, however, that Respondent's failure to execute the draft contract did not violate the Act as con- tended by the General Counsel because, in his view, the incorporation of SIC into the contract on Novem- ber 12 was a substantial new addition to the agree- ment, and thus Respondent was entitled to have counsel "study the substantial addition to the pro- posed contract which adoption of the standard in- dependent would mean." We disagree. It is obvious that from the beginning negotiations were concerned with modifying certain provisions of SIC, which was primarily used by the Union in the greater New York City area' to adapt that contract to Respondent's particular situation in Highland, New York. Thus, at the very start, on October 31, Charla expressed his inability to pay the standard metropolitan rates, and Colavito was amenable to working out differentials. Similarly, subsequent nego- tiations were concerned, as the record shows, with modifications of an existing agreement which neces- sarily was the SIC. Consequently, the draft contract in adopting SIC as the parties' basic agreement sub- ject to the modifications specified did not, as the Ad- ministrative Law Judge held, inject a "substantial new addition to the agreement" but simply stated ex- plicitly what had been the situation in the negotia- tions from the beginning. Furthermore, Charla ac- cepted SIC as part of the agreement when he stated on November 12 that the draft seemed satisfactory to him but needed to be checked for mistakes and omis- sions. Indeed, at no time did Respondent raise any objection to the draft contract's adopting SIC, as modified, as the parties' basic agreement. Rather, the only changes in the draft insisted upon by Respon- dent were those unlawfully raised on November 17, and none of these was concerned with the draft's in- clusion of SIC. To the contrary, Respondent's pro- posed changes were addressed wholly to the specifi- cally negotiated modifications to SIC. Consequently, we find in view of the foregoing considerations that prior to November 12 Respondent had implicitly With respect to a company not involved in this proceeding. Charla had negotiated with Colavito and adopted the 1975 SIC. Therefore, even prior to negotiations, Charla was fully aware of the contents of SIC. Thus. he was hardly faced with a "substantial addition" with which he was unfamiliar. To be sure. it was the 1977 SIC, not the earlier one, that was included in the draft agreement in this case. However, Colavito testified without contradic- tion- Charla did not testify in this case that the 1975 and 1977 SIC's were essentially identical except for changes in the rates. 243 NLRB No. 83 516 MII)VAI.IEY SIEEl. FABRI('AIORS. IN('. agreed to a modified SIC as its contract with the Union, and that on and after November 12 that agreement was made explicit. Therefore, as SIC was not a "substantial addition" to the parties' agreement as found by the Administrative Law Judge. the par- ties had, as of November 12, reached agreement upon "all terms of new contract," and thus Respondent, by failing and refusing to execute the draft agreement after having been given ample time to check it for omissions and errors, violated Section 8(a)(5) and (I) of the Act. THE REMEDY Having found that Respondent has violated the Act by failing and refusing to sign, on and after No- vember 12, 1977, the written contract submitted by the Union incorporating the terms and conditions agreed upon between them4 and by its failing and refusing to bargain in good faith on and after Novem- ber 17, 1977,5 we will order that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. We shall order that upon request of the Union Respondent ex- ecute the written contract submitted by the Union on November 12, 1977, embodying the terms and condi- tions agreed upon and comply with its terms retroac- tively to the contract's effective date, November I, 1977. We shall also order that if the Union requests that said contract be signed Respondent reimburse all employees covered by the contract for the loss of any benefits which would have accrued to them under the contract if it had been signed on the effective date, with interest on sums due computed in accordance with Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Mid- valley Steel Fabricators, Inc., Highland, New York, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Failing or refusing, upon request, by Shop- 4The contract Respondent shall be ordered to sign is that draft agreement submitted on November 12, 1977. without those changes agreed to but re- suiting from Respondent's bad-faith bargaining after November 17, 1977. 5 In his recommended Order the Administrative Law Judge included a clause that Respondent cease and desist "withdrawing recognition from" the Union. Although the complaint alleges that Respondent unlawfully with- drew recognition, the Administrative Law Judge made no such finding: no exception was filed to his failure to so find, and also it appears that the record will not support such a finding. Consequently, we have not included in our Order a provision proscribing the withdrawal of recognition. men's Local Union No. 455. International Associ- ation of Bridge, Structural and Ornamental Iron Workers, AFL CIO, to sign the written contract sub- mitted by the Union on November 12, 1977, embody- ing terms and conditions agreed upon and comply with such terms and conditions retroactively to No- vember 1, 1977, the effective date of said agreement or, if no such request is made, refusing or failing, upon request, to bargain in good faith with the Union as the exclusive representative of all employees in the recognized appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate unit is: All production and maintenance employees including drivers employed at the Respondent's Highland, New York, plant, excluding all other employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request by the Union sign the written contract submitted by the Union on November 12, 1977, and comply with its terms and conditions retro- actively to November 1, 1977, and, if no request to sign is made, bargain in good faith with the Union upon its request concerning terms and conditions of employment of employees in the above-described ap- propriate unit and, if an understanding is reached, embody such understanding in a signed agreement. (b) If the Union requests that the November 12, 1977, contract be signed, reimburse all employees covered by that contract in the manner set forth in the section of the Board's decision entitled "the Rem- edy" for the loss of any benefits which would have accrued to them under the provisions of that contract on and after November 1, 1977, its effective date. (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 ac- crued contract benefits due and owing, if any, under the provisions of this Order. (d) Post at its place of business in Highland, New York, copies of the attached notice marked "Appen- dix." 6 Copies of said notice, on forms provided by the 6 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted b) 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." 517 I)I('ISIONS OF NATIONAI. IABOR RELATIONS BOARI) Regional Director for Region 3, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fail or refuse to sign, when agreement is reached, any contract with the Shopmen's Local Union No. 455, International Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO, covering your terms and conditions of employment, or fail or refuse to bargain in good faith with the Union as long as it remains your lawful exclusive bargain- ing representative. WE WILL NOT in any like or related other man- ner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form labor organizations; to join or assist the above-named or any other labor organizations; to bargain collectively through representatives of their own choosing; to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection; and to refrain from any and all such activities. WE WILL, if requested by the Union, sign the written contract submitted to us by it on Novem- ber 12, 1977, but, if no request to sign is made, we will negotiate in good faith with the Union upon its request concerning terms and conditions of employment of employees in the appropriate unit, and, if an understanding is reached, em- body such understanding in a signed agreement. The appropriate unit is: All production and maintenance employees including drivers employed at our Highland, New York, plant, excluding all other employ- ees, guards and supervisors as defined in the Act. WE WILL, if the Union requests that we sign the November 12, 1977, contract, reimburse with interest all employees in the appropriate unit covered by that contract for any loss of benefits which would have accrued to them under the provisions of that contract on and after Novem- ber 1, 1977, its effective date. WE wi.L. bargain in good faith with that Union concerning your terms and conditions of employment as required by the Act. MIDVALLEY SIEEL FABRI(CATORS, INC. DECISION SIAIILMENI OF IE CASE ROBERI E. MULLIN, Administrative Law Judge: This case was heard on June 26, 1978, in Poughkeepsie, New York, pursuant to charges duly filed and served,' and a complaint issued on January 26, 1978. The complaint pres- ents questions as to whether Respondent. Midvalley Steel Fabricators, Inc.. violated Section 8(a)(1) and (5) of the Na- tional Labor Relations Act, as amended. In its answer, duly filed, Respondent conceded certain facts with respect to its business operations, but it denied all allegations that it had committed any unfair labor practices. At the hearing, all parties were represented. All were given full opportunity to examine and cross-examine wit- nesses and to file briefs. The parties waived oral argument. On August 18, 1978, briefs were submitted by the General Counsel and Respondent.2 Upon the entire record in the case, including the briefs of counsel and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a New York corporation, has maintained, at all times material herein, an office and place of business in Highland, New York, where it has been engaged in the manufacture, sale, and distribution of structural steel and related products. During the 12 months preceding issuance of the complaint, Respondent purchased structural steel and other materials valued in excess of $50,000, of which amount materials valued in excess of $50,000 were trans- ported to the Highland plant directly from outside the State of New York. During the same period Respondent pur- chased and had delivered to the Highland plant steel and other materials valued in excess of $50,000, of which amount materials valued in excess of $50,000 were trans- ported to said plant from other enterprises located in the State of New York which enterprises, in turn, had received said goods and materials directly from States other than the State of New York. Upon the foregoing facts Respondent concedes and it is now found that Midvalley Steel Fabrica- tors, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I The charge was filed on December 2, 1977. 2 Errors in the transcript have been noted and corrected. 518 MIDVALLEY STEEL FABRICATORS. INC. II. TE LABOR ORGANIZAION INVOI.VIID Shopmen's Local Union No. 455, International Associ- ation of Bridge, Structural and Ornamental Iron Workers. AFL-CIO. herein Local 455. or Union. is a labor organiza- tion within the meaning of the Act. Ill. THE ALLEGED UNFAIR LABOR PRA(CTICES A. Background and Sequence of Events Midvalley Steel Fabricators, Inc., herein Respondent or Midvalley, has a small structural steel fabrication plant in Highland. New York, which commenced business with a complement of less than 12 employees within a relatively short period before the events which figure in this case. The president is Joseph Charla. Jr. For many years Charla has also been president of an- other steel fabrication plant, the Joseph Charla Iron Works. Inc. (herein Charla Iron), located in New Rochelle. New York. Local 455 had collective-bargaining relations with the latter for about 20 years. During many of those years the union representative in all negotiations was Mr. Wil- liam Colavito. Throughout that period the employer repre- sentative who negotiated and signed the contracts was Pres- ident Charla. The last contract which the Union had with the latter employer expired June 30, 1975. There followed a protracted representation proceeding, and in July 1977 Lo- cal 455 was certified as the bargaining agent for the em- ployees of Charla Iron. In the fall of 1977. John Zito, finan- cial secretary and treasurer of I.ocal 455. engaged in an extended exchange of correspondence and telephone calls with attorney Sanford E. Pollack in an attempt to arrange a mutually agreeable time to begin negotiations as to the em- ployees in the appropriate unit of that employer. Early in October 1977' Local 455 began an organization- al campaign among the employees of Midvalley. Late in October, after the Union had secured signed authorization cards from a substantial number of the work force, Colavito arranged to meet with Mr. Charla. At that time, Colavito requested that Local 455 be recogiized as the bargaining agent for the employees of Midvalley and offered to prove that a majority of the employees had signed authorization cards through a third party. Charla. however, indicated that a card count was unnecessary and acquiesced to the Union's claim. During the ensuing weeks Colavito and Charla met in numerous bargaining sessions, and agreement was reached on many items in a proposed contract. Late in November. however, the negotiations broke down. At that point the Union asserted that a complete contract had been negoti- ated which the Respondent refused to sign. On December 2 it filed the charge out of which the present proceeding arose. The negotiations were conducted over a period of ap- proximately I month solely by Colavito and Charla with no one else present. In the very last stages of their meetings. Colavito had some telephone conversations with attorney Pollack, but Pollack did not participate in any of the joint meetings. 3 All dates hereinafter are in 1977 unless noted otherwise. In its brief Respondent suggests that there was some con- fusion on the part of Mr. Charla, which confusion the Union allegedly fostered, as to whether Colavito was bar- gaining for the employees of Midvalley or of Charla Iron or both. There is no substance to this argument, and it is com- pletely unsupported by the record. While Colavito repre- sented Local 455 in all contacts with President Charla, he spoke only on behalf of the Midvalley employees. During that same period Mr. Zito, as an official of Local 455. was attempting to arrange bargaining sessions as to the employ- ees of Charla Iron and had numerous contacts with attor- ney Pollack. On the other hand, there is no evidence what- soever that there was any confusion in the minds of an of the principals that these parallel efforts were interlwined or commingled.4 Colavito testified at length as the General Counsel's prin- cipal witness. Thereafter he was subjected to an extended cross-examination by able counsel for Respondent. At the close of the General Counsel's case counsel for Respondent presented only one witness. Mr. Charla. whom he called to the stand. After the witness had been sworn in counsel asked for his name. address, and position with Midvalley. Upon identifying himself as president of Midvalley. Charla was asked no further questions, and counsel for Respondent rested his case. Consequently, the testimony of Colavito as to all the issues here involved was never contradicted or denied. Since he was a frank and forthright witness throughout his appearance on the stand and withstood a searching cross-examination. I find that he was credible. and that his testimony represents a substantially accurate account of what transpired in his numerous meetings with ('harla. B. T7/I .A4proprtiate Ifit The General Counsel alleged and Respondent conceded that an appropriate collective-bargaining unit at the Mid- valley plant within the meaning of Section 9(b) of the Act is described below. All production and maintenance employees including plant clericals, but excluding all office clericals, drivers, professional employees, guards and supervisors as de- fined in the Act and all employees engaged in erection, installation or construction work. C. The Organizational Campaign the Request ior Recognition and the Bargaining ConfJrences On October 4 union representative Colavito met with Gary Brooks. Michael Gregory. Keith Jackson, and Charles Restko, four employees of Respondent. with whom he discussed the advantages of collective action and the I In its brief Respondent also asserts that the series of meetings between Colavito and Charla were to be "off the record," with all offers made by the Union subject to discussion with and approval of counsel for Respondent These contentions are likewise without support in the record. Moreover. while on the stand Colavito specifically denied that he and Charla ever agreed that their meetings be "off the record." He also denied that at any time prior to the point when he contacted attorney Pollack in mid-November did Respondent assert that any offer made by Charla was subject to approval by Respondent's counsel. These denials were credible and uncontradicted by any testimony in the record 519 DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD desirability of a bargaining agreement on their behalf with the Midvalley plant. During the course of this meeting all of the above-named employees signed authorization cards for Local 455. At another meeting on October 18 two other employees, William J. Devine, Jr., and Frank Mazzacari. also signed cards. On October 21 Colavito and Charla met for the first time and discussed the rates he was paying the employees. Char- la immediately told the union representative that the rates being paid in the New York City area were out of the ques- tion. However, when Colavito suggested that there were several alternatives that the parties should consider, Charla promised to consider the union proposals at another meet- ing. On October 26 Colavito telephoned Charla to arrange their next conference. At that point Local 455 had filed a representation petition for the employees at the Midvalley shop. In their conversation on October 26 Charla acknowl- edged having received notice of the petition and then went on to express some irritation that the Union had already filed it. However, he agreed to meet with Colavito on Octo- ber 31. When the parties next met, on October 31 Colavito told Charla that if he had any doubt as to the Union's majority in the Midvalley shop the Union was ready to submit the authorization cards to a third party for examination and verification. Charla brushed aside the offer as unnecessary and said, "No, I know you have the men." Colavito and Charla, the only ones present, then proceeded to a discus- sion of the possible terms of a collective-bargaining agree- ment. Charla had come to the meeting with a sheet of statistical data on the amounts being paid by Midvalley to the em- ployees then in the unit.' Because of Charla's earlier objec- tion to the union scale in the New York City contract (here- inafter known as the standard independent contract). Colavito suggested differential rates for the Midvalley shop that would be from $1 to $1.25 below those applicable in the New York metropolitan area. Colavito also proposed that instead of requiring that Respondent make payments to the Local 455 trust fund that an arrangement might be agreed upon whereby the Company itself would administer vacations, sick leave, and severance pay. Charla thereupon asked if the Union would change the anniversary date and the termination date of the contract, but Colavito refused. Charla then promised that he would study and other pro- posals which had been advanced, and the parties agreed to meet again. On November 2 Colavito and Charlo met for another conference. This time Colavito renewed his offer to work out a wage differential satisfactory to Respondent, and this ' At the hearing the parties stipulated that during the week ending October 26 there were eight employees in the unit described, supra, which has been found appropriate. These employees were Gary Brooks (a mechanic). Wil- liam Devine (a helper). Michael Gregory (a helper), Keith Jackson (a helper), Frank Mazzacari (a helper), Larry Rehrey. Jr. (a layoutman). Charles Restko (a layoutman), and Paul Sullivan (a welder). Of this number Brooks, Gregory. Jackson, and Restko had signed authorization cards on October 4, and Devine and Mazzacari had signed cards on October 18. Thus. it is now found that during the week ending October 26. when the Union made its demand for recognition and filed its representation petition, it had a majority of six in the unit of eight employees. matter was discussed at some length. Charla told the union representative that he wanted a contract for more than I year. Colavito then proposed that whereas the standard agreement provided for 14 holidays a year, he would sug- gest that in a 2-year contract there could be provision for 10 holidays the first year and 12 holidays the second year, with a further provision for 14 holidays in the third year if they agreed upon a 3-year agreement. Thereafter Colavito asked that in the meantime Respondent sign a recognition agree- ment. Charla's immediate response, however, was that such a step was unnecessary because Respondent and the Union would arrive at a contract shortly. He told Colavito, "we should wrap this up in a week."' The next meeting was held on November 4. Colavito complained that some of the men had been laid off the preceding night. Charla reassured him, however, that the layoff was caused solely by a shortage of steel and that as soon as the structural steel was secured all employees would be called back. Charla then went on to tell Colavito that his proposed wage rates were still too high. Colavito responded that the Union would offer a wage differential from the standard agreement of $2.50 for helpers with a proportion- ate spread for other classifications. He further told Respon- dent's president that if they could agree that the employees would reach the scale in the standard agreement by the third year, the Union would forgo any demands for a gen- eral wage increase. At the close of the meeting Charla asked that the Union modify its proposed seniority clause and that it also agree to take time-and-a-half for Saturday work instead of double time as provided in the standard agree- ment. As the meeting concluded Colavito promised that he would telephone Charla promptly with reference to his last requests. On November 7 the union representative telephoned Charla to tell him that the Union would accept his pro- posed modification of the seniority clause, hut that it could not agree to his request about Saturday work. Before con- cluding the conversation the parties agreed to meet the next day for another bargaining session. On November 8 the parties met once more. At the outset of the meeting Charla again complained that the proposed wage rates were too high. Colavito then suggested across- the-board wage increases over a period of 3 years and agreed to withdraw his request for introduction of a pen- sion system in the third year of the agreement. Charla agreed with this suggestion and then said, "Fine, let me get ahold of my attorney and we'll set up a meeting, you get ahold of your attorney and we'll clean it up." This was the first time that Charla proposed the inclusion of counsel in their deliberations. Before concluding their session Charla also asked that Colavito bring to his office two copies of the current standard independent contract so that he would have them for his attorney. Colavito assured him that he would do so, and the meeting ended. On November 10, in conformity with his promise, Cola- vito brought two copies of the standard agreement to Char- la's office in New Rochelle. Charla promised that he would be in touch with his attorney and would then contact Cola- vito. I The quotation is from the credible undenied testimony of Colavito. 520 MID)VA.LI.EY STEI. FABRICAORS. IN('. On November II ('olavito telephoned ('harla. The latter told him that his attorney was out of town and una a;ilable at the moment. Colavito then suggested that before their next meeting he would prepare a draft of the contractual provisions on which they had already agreed and therebh save time at their next session. Charla's response was. "Fine · ..if you can do it before the end of the das. give me a ring." Thereafter. ('olavito prepared his written draft and at the end of the day telephoned Charla. The latter was un- able to meet that evening hut suggested that the- could do so the following day. Colavito agreed. On November 12 the two representatives of the parties met again. Once more thes were alone and no other repre- sentatives were with them. ('olavito gave Charla a copy of the agreement which he had drawn up and asked Respon- dent's president to read it over to check tfr mistakes or omissions. Charla did so and acknowledged that it seemed satisfactory to him. lie then closed their meeting b telling ('olavito that he would take the copy which he had recei ed and promised. "If I find any mistakes or anything missing I'll give you a ring by Sunday night t sour house." With the lapse of 2 dass and not having heard front Charla. on November 14 ColaLito telephoned (Charla to in- quire as to whether the latter had contacted his attorne. Charla answered in the negative and explained that his counsel was still out of town. On November 15 attorney Pollack telephoned the union hall and requested that Colavito call hini. When the latter came back to his office he returned the call. At that time counsel for Respondent offered regrets at being absent from the area for several days but then assured (Cola ito that lie was making arrangements to see ('harla. At that point (Co- lavito expressed irritation at the delas and declared that since all the details of a contract had been agreed upon it should be possible to fin:lize an agreement within 15 min- utes. Mr. Pollack reassured ('olavito that "if everything is all right the two of you can get together and sign it." The attorney further proposed that if there were ans problems Charla and he could meet with Colavito on Mondas. No- vember 21. On November 17 Colavito telephoned Charla. The latter to!d the union representative, "You're not going to like what I'm going to tell you. there are tour points that I'm going to have to change." Charla then stated that he wanted to: (I) exclude truckdrivers from the unit: (2) revise the wage rates downward: (3) eliminate the pension provi- sion from the contract: and 4) have a different termination date. Colavito complained vigorously about Charla's objec- tions and told him that as Respondent's principal official Charla himself was running the shop, and he did not have to get advice from a lawyer about monetary issues such as his new objections posed to their agreement. Charla con- cluded their conversation by proposing that they meet the following Saturday. In accord with Charla's suggestion, on November 19 ('o- lavito and Respondent's president met once more in a small restaurant where they had held many of their other confer- ences. Again they were the sole representatives present for the discussion. At this time Charla reiterated the four objec- tions which he had first voiced on November 17 during the telephone conversation with Colas ito. The latter com- plained again that all those matters in question dealt with issues connected with running the shop. and that there was no reason for ('harla's hasing relied on an attorrie, to raise them. (olavito then told Charla that, neertheless the Union would have no problem meeting his request about the elimination of the truckdrivers frontm the unit, and that he could also agree upon a revision of' the termination date. As or the other two objections. however. viz, the amount of the wage rates and the provision for pensions, olavito complained bitterly that Charla had agreed to those ers terms, that all the language then in question had been in the copy of the proposed contract submitted to (harla on No- xember 12. that the latter had uttered no objections then or later. and that ('harla had not called. as he had promised lie would do. in the event that he found an\ errors or mis- sions. 'olavito concluded bh telling ('harla that Respon- dent as raising what he characterized as ifalse issues. After ('Col;ito reiterated that (harla hald alreads\ expressed his accord with the provisions in queslion. ('harla's only re- sponse was. "I never shook our hand." (Cola ito acknowl- edged that then had not shaken hands but then reviewed how the! had discussed each item point h point and after having made mans changes during ie or six bargaining sessions. the! had reached an areement. ('har;l termilnalted their discussion with the suggestion that the, meet the next Mondas. ()n November 21, the follos ing lMondal. a representa- tion hearing as also scheduled for the Midvalle5 plant. When the parties met lir the hearing counsel or Respon- dent proposed that they discuss their diflerences then. Cola- vito declined. stating as he did so that because Respondent had raised nesw issues the prior week alfter having reached an agreement earlier. the nion ouLlld insist on proceeding with the representation hearing. he parties held no further bargaininig conlerences. O()n l)ecember 2 th le nion filed the charge out of swhichl th pCsenllt proceeding arose. 1). 1 -! /tm/f .8'taJ5 I ol,/ati.n: -,,ildoin, an (oic n vsion, If lh Rcl-ci 7ilhertt,, O()n the findings set arlh abo it ist s now concluded that tin October IX. when the [lnion had secured authorization cards from six of' the eight memb hers of the appropriate unit, it had a preponderant majority in the aforesaid unit. 1 here- after. the parties met for the first time on October 21 and for the second time on October 31. On the latter date, after union representative Colasito olunteered to suppl 5 proof of the Union's majorit) within the appropriate unit. Pres- ident C(harla conceded that the ('harging Parts had a ma- jority and told Colavito that it would he unnecessary for the Union to supple anx further proof. B such conduct Re- spondent extended recognition to the LUnion as the bargain- ing agent for its eminployees in the appropriate unit. I here- after Respondent was under a statutory obligation to meet and bargain with the Union. ('qvuga (rushed Slone. Inc.. 195 NLRB 543. 545 (1972). It is well settled that an employer violates Section 8(a)(5) and (I) of the Act b refusing to execute a rilltten contract incorporating the agreement reached with the emploee bargaining agent. II. J. ie: (omrpani v. N'.I..R.B.. 311 U.S. 514. 523 526(1941): N.L.R.B. v. Joseph T7 Sron,. 521 I)D('EISIONS OF NAIONAI()N I. A..BOR R.ATIONS BOARDI) dh/bla Strong Roofing & lnsulatling (o.. 393 U.S. 357. 359 365 (1969): Jo.leph Altcllvo., lo .. d/l/, /I.clo 7rec. 231 NLRB 1168 (1977). The General Counsel contends that by the end of the negotiating session on November 8 the parties had reached agreement on all issues, and that there remained onl a need to refine the language which would appear in the col- lective-bargaining contract. Respondent denies that any such agreement was reached. However, it offered no ei- dence to support its own version of events during the bar- gaining sessions and chose to rely instead upon a record which did not contain any affirmative testimony hy wit- nesses fbr Respondent as to what transpired. Nevertheless, on the present record, it is not clear to me that there was, indeed, a meeting of the minds as to all terms of a com- pleted contract as alleged hby the General (Counsel. At the bargaining session on November 12 Colavito pre- sented President (harla with a written exposition o the provisions on which ('olavito felt that they had reached agreement in their bargaining up to that point. Respon- dent's official acknowledged that the document seemed ti be correct. but that hlie would stud it further and that i he fbund any mistakes or omissions he would telephone. he document in question consisted of one page in (Colavito's handwriting dealing with man items. It listed tle tems which the parties had discussed in their prior hargaining sessions and was keyed to the lnion's stalndard indepen- dent contract. (olavito, however, had onlv supplied Re- spondenit with a copy of this last document, a printed hook- let of 45 pages, on November I). At ('harla's request Colavito had brought copies of the standard onitr;act to Respondent so that its counsel could have them. l nder those circumstances the failure of (harla to respond b5 telephone within a short while after November 12 was not surprising. Ilts counsel was entitled to an opportunit to study the substantial addition to the proposed contract which adoption of the standard independent agreement would mean. Consequently, it is now Iound that at the time the parties broke off negotiations. they had not agreed upon the ternis of a new contract inl its entirety. Under these circumstances there can be no fliding of a violation predi- cated solely on I failure to reduce to writing and esecute an agrecd upon cntract. Sumnt, r lom c /or tic' gd. 226 NLRB 976. 977 (1976). On the other hand, on the findings set forth ahove it is apparent that as of November 8 C(harla had agreed with the Union's proposed wage rate, and on Novemhcr 12 vwhen Colavito presented to him a draft of those terms on hich the Union elt that Respondent had agreed, Charla did not object or make a request that any terms be changed or clarified. Accordingly, from that point forward the Union was entitled to assume that Respondent would adhere to such a commitment. On November 17. however. (Charla telephoned C(olavito to announce that the wage rates would have to be revised downward. and that the pension prosi- sions would have to be eliminated from the contract. This was a shift on Respondent's part which seriousl jeopar- dized any finalization of an agreement. That Charla would introduce this objection after a substantial series of meet- ings on which the parties had discussed the central issue of ,'ages at great length and finally agreed upon such provi- sions. meant that their earlier meetings had been futile in making progress toward the goal of a written collective- bargaining agreement. Accordingly. it is now found that by the shift in position which Charla announced on November 17 as to wages and pensions Respondent demonstrated bad Iaith and seriousl) undermined the likelihood that the par- ties would reach a binding agreement on wages. hours, and \sorking conditions fir employees in the appropriate unit. 13 such conduct Respondent violated Section 8(a)(5) and ( I ) of the Act. Moreover, it is now found that on the record as a , hole Respondent's overall conduct subsequent to No- vember 17. 1977. demionstrated the lack of the desire to reach final agreement, all in derogation of Respondent's obligation t bhargain in good Lilith. ( ahllet lltndiflturing (orprotlion, 14() Nl.RB 576 Ill. 2 (1963). ((I( It SI \s (11 [.A\ . Respondenit is engaged in commerce and the t Inion is a labor organilation. all within the meaning of the Act. 2. By its conduct set firth alid lfound in section III. u- pr., Respondent has cngaged in andi is continuing to engage ill unfair libor practices iolation of Section 8(a)(5) and (I) olt the Act. 3. Sid uit'air labor practices alleet, and unless perma- nentl\ restrained and enjoined will continue to affcct. com- merce witlin the meaninig of Section 2(6) and (7) of the Act. RI I I):1 Y IlaV ing fouLnd thalt Respondenlt violated Section 8a)(5) and ( 11) o the Act, Respondent should be ordered to cease and desist tronl engaging in. or continuing. such. or like. \ iolations. IRecoinmmnieided Order omitted rom publication. l 522