Intl Union of Operating Engineers, Local 525

INTL UNION OF OPERATING ENGINEERS, LOCAL 525 609 International Union of Operating Engineers, Local jurisdictions, collective-bargaining negotiations were 525, AFL-CIO and Clark Oil & Refining Corpora- conducted primarily on a joint basis.' In 1950, howev- tion. Case 14-CB-1899 er, petitions were filed by each of nine unions then August 27, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND BROWN On April 30, 1970, Trial Examiner Benjamin K. Blackburn issued his Decision in the above-entitled proceeding finding that Respondent had not engaged in a certain unfair labor practice alleged in the com- plaint and recommending dismissal of the complaint in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs, Respond- ent filed cross-exceptions and a brief in support there- of, and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross-exceptions, briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent consist- ent herewith. As set forth more fully in the Trial Examiner's Decision, the Charging Party, Clark Oil & Refining Corporation, is a Wisconsin corporation engaged in the oil industry in several States. It purchased the Hartford oil refinery, located in Hartford, Illinois, from the Sinclair Refining Company in October 1967, which in turn had acquired the refinery from the Wood River Oil and Refining Company in July 1950. The present proceeding involves only the Hartford refinery. Since 1941 the employees at the Hartford refinery have been represented on a joint basis by various labor organizations. The composition of this joint representative had changed over the years with various unions leaving and joining. Although before 1951 there were periods of time during which the National Labor Relations Board recognized the separate craft composing the joint representative, including Respondent, in an effort to protect their representation rights from an attempt by an intervenor, Oil Workers International Union, CIO, which had representative rights in other plants of Sinclair, to absorb the Hart- ford refinery into its companywide contract with Sin- clair. Each of the petitioning unions sought a separate craft unit confined to its jurisdiction at the refinery; each, however, requested, in the alternative, a single- plant overall unit with all of the unions appearing on the ballot jointly. The Board found on the basis of bargaining history, and particularly because of the joint negotiations and the petitioners' acceptance of uniform contract terms, that separate craft units limited to the single plant would not be appropriate, but that a single-plant unit represented by the nine petitioners jointly or a companywide unit would be appropriate. The Board directed an election, following which the Board in 1951 certified the petitioning unions jointly as the representative of all the employees in the Hartford plant. When Clark Oil acquired the Hartford plant, it recognized the unions, then 10 in number, as the representative, acting jointly, of all its employees. Negotiations from then were conducted as previously between management and a negotiating committee consisting of one representative from each craft. Agreement on the terms of a contract was determined by procedures adopted originally by the unions when joint negotiations first began and amended in 1959 after Respondent had manifested some dissatisfaction with such procedures and had sought, through a petition with the Board, to withdraw the operating engineers from the joint bargaining arrangement. There is evidence as the Trial Examiner found, that not all contracts agreed on met with the approval of all the constituent unions; that on one such occasion, the negotiating committee and the Company agreed by memorandum to allow Respondent and the Compa- ny to continue to negotiate over an issue involving barge loading employees after multiunion negotiations had been completed, and if agreement on that issue was reached, to include such agreement in the new contract. No agreement was ever reached and all 10 unions signed a new contract which contained the same provisions as the old concerning barge load- ers. Despite disagreements, at no time prior to the 1968-69 negotiations did any of the 10 unions, includ- ing Respondent, refuse to execute the new contract. ' Sinclair Refining Company, 92 NLRB 643 185 NLRB No. 72 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bargaining between the Company and the negotiat- ing committee for a new contract to replace the one due to expire on Janaury 31, 1969, began on December 17, 1968, in accordance with the parties' previous practice. After a lapse, the negotiations resumed in 1969, with the final bargaining session taking place on January 28, 1969, at which time the Company presented to the negotiating committee for acceptance or rejection a memorandum of agree- ment incorporating its understanding of agreements reached and its offer on items which were still open. During the negotiating committee's caucus Respond- ent's representative, Harold Rice, objected to accept- ance of the Company's offer because he wanted further negotiations on several issues relating to the loading rack and to a special rate increase in the wages of laboratory testers. The negotiating committee agreed that Respondent's loading rack demands could be pursued, but refused to permit further negotiations on the laboratory tester issue.' A vote was then taken on the Company's proposal, with the result being eight unions in favor of submitting the Company's offer to their members for ratification and two opposed, Respondent and the Laborers. The negotiat- ing committee then resumed its meeting with the Company. The chairman of the negotiating committee, Arvel Pickering, informed the Company that a majori- ty of the unions had agreed to accept the memorandum of agreement and to recommend it to their members for ratification. Rice said he disagreed because there were no provisions concerning the loading rack and laboratory tester issues. The Company's chief negotia- tor, George H. Phillips, said that the omission concern- ing loading rack proposals was an oversight and offered to add to the memorandum a provision for additional talks with Respondent on these issues and inclusion of any agreement reached in the new con- tract. However, Phillips said that Rice had raised the laboratory tester issue too late and that the Compa- ny would not bargain over the matter. Pickering accepted Phillips' offer to add a loading rack bargain- ing provision to the memorandum of agreement, but agreed with the Company that Rice had brought up the laboratory tester issue too late. Pickering then informed the Company that a sufficient number of the unions had agreed to the Company's proposal.' Rice stated that he did not care what Phillips did with respect to putting something about the loading ' During the caucus the Laborers' representative also refused to accept the Company's offer because he wanted an across-the-board wage increase instead of the negotiated percentage raise His position was rejected by the Committee ' According to the amended voting procedure adopted in 1959, decisions in all negotiations were based not on a majority vote as previously, but only on approval of the Respondent and four other unions or, alternatively, approval of any seven unions rack in writing and left the meeting. Thereafter, the following sentence was added to the memorandum of agreement: "The loading rack changes discussed between the Company and Union, if agreed upon, will be included in this Agreement." The memoran- dum of agreement was then signed by Refinery Manag- er G. E. Burkhart on behalf of the Company and Pickering on behalf of the Accredited International Unions, acting jointly, subject to ratification of employees in the bargaining unit. Presumably the negotiators for each of the eight unions who voted to accept the Company's offer thereafter recommended acceptance to their members and their members rati- fied the agreement. In February 1969, the eight unions which had voted to accept the Company's offer, and the Laborers, although the latter had expressed some dissatisfaction with the wage provision, signed a contract which incorporated all the changes in the old contract provid- ed for in the memorandum of agreement. The final contract did not contain the aforementioned provision concerning further bargaining over the loading rack issues. Since the joint negotiations ended on January 28, 1969, Respondent and the Company have had numer- ous meetings. At these meetings the loading rack issues were discussed, but Respondent continued to refuse to execute the contract unless a satisfactory resolution was made on the laboratory tester issue. The Company refused to bargain on this issue on the ground that the subject was barred by the decision of the negotiating committee on January 28. At one point the Company agreed to discuss the issue if the other unions would give their consent, but they refused to do so. At the last meeting on February 10, 1970, Respondent finally agreed to accept the Company's proposal, to sign the contract, and to drop the laboratory tester issue, if the Company would make any wage adjustment for laboratory testers nego- tiated in the next contract retroactive to February 1, 1969, and if the Company would insist that all the unions agree to a contract before it is effective or that the unions provide the Company with a written voting procedure that is acceptable to all the unions. The Company refused to accept the retro- activity portion of Rice's offer. On these facts, the Trial Examiner concluded that Respondent did not violate Section 8(b)(3) of the Act by refusing to sign the new contract executed in February 1969 by the Company and the other nine unions. While agreeing that, under Board preced- ent, parties which have consented to multiparty negoti- ations are bound by the results of these negotiations, the Trial Examiner nevertheless considered that rule inapplicable to the present situation since, in his INTL. UNION OF OPERATING ENGINEERS, LOCAL 525 view, Respondent cannot be considered as having voluntarily consented to multiparty negotiations as the multiunion bargaining situation exists as the result of a Board certification. He therefore concluded, that, in these circumstances, Respondent cannot be bound to a contract to which it has not individually assented despite a history of bargaining which strongly supports a contrary conclusion. As an additional rationale for dismissing the complaint, the Trial Examiner also concluded that Respondent did not violate the Act by refusing to sign the contract as the contract does not contain all the terms of the agreement reached- namely, the provision for additional discussions with Respondent on the loading rack issues and inclusion on any agreement reached thereon in the new contract. We disagree on both grounds. We do not agree with the Trial Examiner that because Respondent has participated in multiunion bargaining since 1951 as the result of a Board certifica- tion it necessarily follows that multiunion bargaining was imposed upon Respondent without its consent. We do not know what prompted the decision of the nine petitioning unions in 1950 to seek representa- tive status on a joint basis. However, the fact that they decided on their own to proceed in this manner, albeit on an alternative basis, is proof to us that their decision was a voluntary and uncoerced one. Moreover, Respondent's actions in 1959 in withdraw- ing its petition for separate representation and its continued participation in joint bargaining thereafter until the instant dispute are persuasive evidence of its continued consent to such procedures. It may or may not be to Respondent's advantage to continue to join with the other unions in joint negotiations, but until it chooses another course and makes a timely withdrawal from the multiunion bargaining group, we think that the dictates of the statute require Respondent to conform to the established procedures of the joint bargaining representative and to sign the contract agreed on.4 To conclude otherwise after so long a period of a workable arrangement can only lead to complete instability in bargaining rela- tions. Nor do we find any merit in the Trial Examiner's additional finding that in any event Respondent did not violate the Act because the contract submitted for Respondent's signature was an incomplete agree- ment since the issues involving the loading rack employees were left for further negotiations and the final contract does not contain a clause reserving ' While it is true that a number of unions acting jointly as a bargaining representative constitutes a labor organization within the meaning of the Act, the Board's mere taking cognizance of the procedures under which the labor organization acts does not constitute an interference in the internal affairs of that organization 611 to Respondent the right to bargain thereon. However, it is clear that Respondent's refusal to sign the contract was not based on the absence of this clause in the contract. It indicated quite clearly that it would not sign a contract unless the Company agreed to bargain on the laboratory tester issue, notwithstanding the fact that the negotiating committee had rejected Respondent's demand that the Company bargain on the tester issue. Moreover, the procedures which had been in effect for nearly 30 years contemplated that the agreement reached between the Company and the negotiating committee would be the agreement of all the parties and, upon ratification by their mem- bers, all 10 members of the negotiating committee would be obligated to sign the contract. That obliga- tion, as their past bargaining history shows, was not conditional on agreement being reached on any issue reserved for further bargaining. If agreement resulted, the matter agreed on would be incorporated into the final contract, but if otherwise, the obligation to sign the contract still remained. Here the Company honored its obligation to bargain over the loading rack issues, but no agreement was reached because of Respondent's insistence on bargaining over the laboratory testers. In these circumstances, Respondent was obligated to sign the contract. We find, on the record as a whole, that, by refusing to sign the contract which had been ratified according to the voting arrangement agreed upon by the 10- member joint union group and signed by the other nine unions, Respondent violated Section 8(b)(3) of the Act. THE REMEDY We have found, contrary to the Trial Examiner, that Respondent engaged in a certain unfair labor practice in violation of Section 8(b)(3) of the Act, by refusing to execute the collective-bargaining agree- ment between the Charging Party and the joint bar- gaining agent, composed of 10 unions, including Respondent. Accordingly, we shall order Respondent to cease and desist therefrom and take the following affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and upon the record as a whole, we shall: 1. Substitute the following conclusion for the Trial Examiner's third Conclusion of Law: "By failing and refusing to execute the written agreement between the Charging Party and the joint bargaining agent, as agreed upon January 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 28, 1969, and subsequently ratified, Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(b)(3) of the Act." 2. Add the following paragraph as the fourth Con- clusion of Law: "All employees at the Company's plant at Hartford, Illinois excluding office and clerical employees, guards, professional employees, and supervisors, constitute an appropriate bargaining unit within the meaning of Section 9(b) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, Interna- tional Union of Operating Engineers, Local 525, AFL- CIO, Hartford, Illinois, its officers, agents, and repre- sentatives, shall take the following action: 1. Cease and desist from refusing to bargain collec- tively in good faith with Clark Oil & Refining Corpora- tion, as to wages, hours, and other terms and conditions of employment covering employees in the appropriate unit, by refusing to sign the collective- bargaining contract on which the Charging Party and the joint bargaining representative, of which Respondent is a part, have agreed, or from engaging in any like or related conduct in derogation of the statutory duty to bargain. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request by Clark Oil & Refining Corpora- tion, forthwith execute the contract tendered to it by the Company, on which agreement was reached between the Company and the joint bargaining repre- sentative of which Respondent is a part. (b) Post at its business offices and meeting halls, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by a representative of Respondent, shall be posted by Respondent immediately upon receipt there- of, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including such places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ' In the event this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 14, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply therewith. APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify you that: WE WILL NOT refuse to bargain collectively in good faith with Clark Oil & Refining Corpora- tion, as a member of the joint representative of the said Employer's employees by refusing to sign the written collective-bargaining agree- ment to which the point representative agreed, and we will not engage in any like or related conduct in derogation of our statutory duty to bargain. WE WILL, if requested by Clark Oil & Refining Corporation, execute the contract on which the point bargaining representative of which we are a part reached agreement with the said Employer on January 28, 1969. WE WILL NOT, in any other manner, refuse to bargain collectively with Clark Oil & Refining Corporation, with respect to terms and conditions of employment of the employees of the Company which we jointly represent. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 525, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1040 Boatmen's Bank Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 314- 622-4167. INTL UNION OF OPERATING ENGINEERS, LOCAL 525 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN K BLACKBURN, Trial Examiner: This case arose on September 4, 1969, when Clark Oil & Refining Corporation, referred to herein as the Charging Party or the Company, filed a charge against International Union of Operating Engineers, Local 525, AFL-CIO, referred to herein as Respondent The General Counsel of the Nation- al Labor Relations Board, by the Regional Director for Region 14 (St. Louis, Missouri), issued complaint on January 14, 1970. Respondent's answer, duly filed, admitted certain allegations of the complaint and denied others, including the allegation that it had committed unfair labor practices. Hearing was held before me, pursuant to due notice, in St Louis, Missouri, on February 24 and 25, 1970 The issue litigated was whether Respondent has violated Section 8(b)(3) of the Act by refusing to sign a contract with the Charging Party which was negotiated jointly by Respondent and nine other labor organizations. The other nine have signed it All parties appeared at the hearing and were given full opportunity to participate, to adduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs Respondent's motion to dismiss on the ground that it is not the exclusive bargain- ing agent of the unit alleged in the complaint and the other nine labor organizations which, jointly with it, com- prise the exclusive representative, are not named as parties, and on the ground that the General Counsel is attempting to interfere in the internal affairs of a labor organization which I took under advisement at the close of the hearing, is disposed of herein. Upon the entire record,' including briefs filed by the General Counsel and the Charging Party, and from my observation of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company is a Wisconsin corporation involved in the oil business in various States including Illinois, where the refinery involved in this proceeding is located. During 1969 its direct inflow of raw materials and other goods as well as its direct outflow of finished products across State lines to and from that refinery exceeded $50,000. On the basis of these admitted facts, I find that the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. 613 III. THE UNFAIR LABOR PRACTICE A. Facts I Background There are nine labor organizations involved in this case in addition to Respondent They are- 1. Local No 553, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO 2 Local No 649, International Brotherhood of Electrical Workers, AFL-CIO. 3. Local No. 525, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. 4. Local No 483, International Brotherhood of Boiler- makers, Iron Ship Builders, Blacksmiths, Forgers and Help- ers, AFL-CIO. 5. Local No. 338, Laborers' International Union of North America, AFL-CIO. 6. Local No. 917, Brotherhood of Painters, Decorators and Paper Hangers of America, AFL-CIO. 7. Local No 1808, District Council of Madison County, Illinois and Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. 8. District 9, International Association of Machinists and Aerospace Workers, AFL-CIO. 9. Local No. 56, International Association of Heat and Frost Insulators and Asbestos Workers, AFL-CIO. They are referred to, respectively, herein as the Fitters, the Electricians, the Teamsters, the Boilermakers, the Labor- ers, the Painters, the Carpenters, the Machinists, and the Insulators. The Charging Party purchased its Hartford, Illinois, refin- ery from Sinclair Refining Company on October 1, 1967. Sinclair had acquired the refinery from Wood River Oil & Refining Corporation on July 1, 1950. Employees at the refinery have been represented by vari- ous of the 10 labor organizations involved herein on a joint basis since 1941. At that time Wood River Oil & Refining Company entered into the initial bargaining agree- ment with Respondent, the Fitters, the Electricians, the Teamsters, the Boilermakers, the Laborers, the Carpenters, and the Machinists. The Painters were added in 1943. At some time between 1941 and 1950 the Machinists dropped out for a time. On January 15, 1951, at a time when Sinclair Refining Company was the Employer, the Board certified that Respondent, the Fitters, the Electricians, the Teamsters, the Boilermakers, the Laborers, the Painters, the Carpenters, and the Machinists "Jointly has [sic] been designated and selected by a majority of the employees" in an all-employees unit limited to the refinery at Hartford "as their representative for the purposes of collective bar- gaining, and that, pursuant to Section 9(a) of the Act as amended, the said organization [sic] is the exclusive representative of all the employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment."2 On January 27, 1955, by agreement of ' The General Counsel's motion to correct record is granted 2 Sinclair Refining Company, 92 N L R B 643 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sinclair, the Insulators, and the nine labor organizations certified jointly by the Board, the Insulators were added to the point bargaining "organization." When the Charging Party purchased the refinery from Sinclair in 1967, it volun- tarily recognized the 10 labor organizations as the joint bargaining representative of the employees and assumed the obligations of the existing agreement, with some modifi- cations to which the unions agreed. Since 1941 collective-bargaining agreements at the Hart- ford refinery have taken the format of a single contract containing the usual provisions with respect to recognition, union security, grievance procedure, arbitration, hours, wag- es, vacations, and the like, as well as addenda captioned "Special Craft Rules for Operators," "Special Craft Rules for Teamsters," and the like There are no special craft rules in the contract for Fitters, Electricians, or Machinists. The recognition article of the contract, while stating that the 10 labor organizations are "joint representatives for all employees of the Company within the unit afore- said," recognizes Respondent as the representative for all operating department employees and each of the other nine unions as the representative for employees working in that union's traditional jurisdiction Article VI of the contract provides for a standing Union Plant Committee consisting of one employee member from each of the 10 unions. Its primary function is to deal with day-to-day administration of the contract Bargaining for changes in the contract has been conducted in this manner over the years: At the appropriate time the unions jointly sent to management the requisite notice to prevent the contract's automatically renewing itself Rep- resentatives of each of the 10 unions, members of the Union Plant Committee and/or nonemployee business repre- sentatives, met to prepare their demands This group, referred to as the negotiating committee, elected a chairman. Each union brought up what it wanted Some of these demands were dropped as a result of persuasion by other members of the committee. The rest were adopted or modi- fied and made part of a total list of demands which were served on management. Management, in turn, put its propos- als on the table. Discussions with management relating to those parts of the contract, including wages, which applied to all employees regardless of their craft were conducted by the entire negotiating committee jointly Any proposal which concerned a change in "Special Craft Rules" was discussed separately with management by the union recognized as the representative for that craft. When final agreement was reached, subject to ratification by the employ- ees, agreed changes in the existing contract were incorporat- ed in a memorandum of agreement The chairman of the negotiating committee signed the memorandum on behalf of all 10 unions. When the agreement had been ratified, the agreed changes were incorporated into a new, complete contract which a representative of each of the 10 unions signed on behalf of his union as a party to the contract. Prior to 1959 decisions within the negotiating committee were made on the basis of a simple majority with each of the 8, 9, or 10 unions, as the case may have been at any particular time, having one vote. This was a constant source of irritation to Respondent, for the number of employ- ees in the operating department, the craft which it represents, was greater than the number of employees in the crafts represented by the other nine unions. 2. The 1959 voting procedure In 1959 Respondent sought to do something about the situation On July 15, 1959, it filed a petition in Sinclair Refining Company, Case 14-RC-3645, for an election in a unit limited to the operating department. Representatives of some but not all of the other nine unions showed up for the hearing. A deal was worked out to modify the majority vote rule to give Respondent a larger voice at the refinery in exchange for withdrawal of the petition. On October 1, 1959, the Regional Director for Region 14 approved withdrawal of Respondent's petition. The negotiating committee got together shortly after the deal was made at the Board's regional office to begin preparing the unions' demands for upcoming negotiations. Representatives were present from each union, employee plant committeemen and/or nonemployee business repre- sentatives. A proposal that from then on the unions would base their decisions in all negotiations not on a majority vote but only on approval by Respondent and four other unions or, alternatively, approval of any seven unions' was put to a vote It carried, 6-4. Respondent voted against it. On various occasions thereafter, at meetings of the negotiating committee, Respondent's representative pro- posed giving each union one vote for each 10 employees in its craft. It was never able to get such a plan to a vote 3. Prior contract negotiations It has not been unusual for one or more of the 10 unions to be unhappy at the outcome of negotiations with respect to some provision or other of the contract. Discus- sions of wage increases have traditionally been couched in percentage terms. The Laborers, as the lowest paid craft in the refinery, have regularly objected on the ground ' Whether, as it is referred to in the transcript, the "Operators and four crafts or any seven crafts" rule exists was one of the most hotly contested issues at the hearing The record is extremely vague on details of its coming into existence, especially who was present at the 1959 meeting and their authority to "bind" the unions they represented My findings of fact are based primarily on a document in evidence which reads, in its typed part, "Proposed Method of Voting To ratify a new Agreement or Modify any terms of the existing Agreement the method of voting shall be 1 Operators and four Crafts 2 or any combination of Seven Crafts Plant Committee" and, in its handwritten part, "Carried by 6 to 4 votes this is for Contract Negotiation only " Lonzo V Smith, Jr, a Teamsters business representative in 1970 and secretary of the negotiating committee in 1959, testified that he typed the paper following the meeting at which the vote was taken so that each union would have a record of the change James A Cochran, plant committeeman for the Insulators, testified that he wrote the handwritten words on the paper when it was given to him in 1959 I credit both There is nothing in the record on which I can base a finding that the new procedure had to be ratified by the employees before it could come into effect Therefore, I attach no significance to Smith's use of the word "proposed " INTL. UNION OF OPERATING ENGINEERS, LOCAL 525 that only an across-the-board raise in terms of dollars and cents per hour is equitable. The negotiating committee has regularly agreed to percentage raises. On one occasion the Insulators objected to a change which lumped their craft in with others for purposes of assigning vacations. The change was agreed to by the negoti- ating committee and remained in the contract until the next negotiations a couple of years later. When negotiations held in 1961 reached the memorandum of agreement stage, a provision was included that Respond- ent and the Company would continue to negotiate over an issue involving barge loading employees and that, if agreement was reached, it would be included in the new contract. No agreement was ever reached. All 10 unions signed a new contract which contained the same provisions as the old with respect to barge loaders Negotiations were held in late 1965 and early 1966 for the contract which was in effect from February 1, 1966, to January 31, 1969. In June 1957 the Teamsters had won an arbitration award which limited the dnving of motorized equipment in the refinery to their craft Sinclair wanted other employees to be able to use motor scooters in their work. In the 1965-66 negotiations the Teamsters objected to negotiating a change with Sinclair but was overruled by the other unions Consequently, the Teamsters and Sinclair worked out a deal in which Sinclair made wage and seniority adjustments in the warehouse in exchange for abrogation of the 1957 arbitration award. A letter setting forth Sinclair's right to use motor scooters was signed by Sinclair's director of industrial relations and the chairman of the unions' negotiating committee on Febru- ary 11, 1966.° The new contract, containing the other provisions of the deal between Sinclair and the Teamsters, was executed on March 7, 1966 The Teamsters representa- tive signed, along with the representatives of the other nine unions At no time prior to the 1968-69 negotiations did any of the 10 unions, Respondent included, fail to execute the new contract The record does not indicate whether any of the disputes within the negotiating committee in negotiations prior to the 1968-69 negotiations were resolved by explicitly invoking the "Operators and four crafts or any seven crafts" rule. Apparently, in each of these instances, the unhappy union was persuaded by the others to go along for the sake of unity 5 4. The 1968-69 negotiations Negotiations in late 1968 and early 1969 for a new contract to replace the one due to expire January 31, 1969, followed the usual pattern The unions served the requisite notice, dated November 12, 1968, and signed by Paul Flowers, chairman of the Union Plant Committee, ' The same day the memorandum of agreement was executed in the 1965-66 negotiations ' Finding based on the credited testimony of Cochran that "this [i e, 1968-69 negotiations] is the first time it [i e , the voting procedure adopted in 1959] has ever been put to a test" and the credited testimony of Harold Rice, Respondent's president, that he was unaware of the "Operators and four crafts or any seven crafts" rule until after January 28, 1969 1 also credit Rice's description of his experience in working 615 on Respondent to begin the negotiations The negotiating committee met. It selected Arvel Pickering, International representative of the Boilermakers, as chairman for the negotiations over Harold Rice, Respondent's president, by a 5-4 vote. It prepared its initial demands. Included in the proposals served on the Charging Party were several relating to the loading rack Loading rack employees are among those in Respondent's craft These proposals were included in the unions' demands at Respondent's request. The document also provided that "the unions reserve the right to make additions, corrections or modifications in these proposals as they deem necessary during the course of these negotiations " The document contained no reference to an adjustment on equitable grounds in the wages of laboratory testers, another job classification in Respondent's craft. Negotiating meetings between the unions' committee and management began in December.' A week or two later, in January, the negotiators settled down to daily sessions Early in the negotiations it was agreed that Respondent and the Company would work out the loading rack situation between themselves Around the fourth meeting, apparently a day or two before January 28, 1969, Rice brought up a wage adjustment for laboratory testers.' The Company rejected it and the matter was dropped. At one point, the Fitters negotiator protested against a provision regarding shifts but was outvoted by his colleagues. By January 27, 1969, agreement on a new contract was near. That evening the Company's negotiators prepared a memorandum of agreement containing its understanding of agreements reached and its offer on items which were still open. The document contained no reference to either loading rack or laboratory testers. On January 28, the Company presented its memorandum of agreement to the unions' negotiating committee for acceptance or rejection. The committee caucused. Rice ref- used to agree to accept management's offer because he was not satisfied with respect to the loading rack and the laboratory testers issues. His colleagues agreed that his loading rack demands should be pressed further. They told him they would not agree to reject the Company's offer in order to press his demands for more money for laboratory testers. Erroll W. Fines, the Laborers business manager and negotiator, refused to agree because he was not satisfied with a percentage wage increase His colleagues rejected his position. Pickering polled the committee. The result was eight votes in favor of submitting the Company's offer to employees for ratification and two opposed Respondent and the Laborers were the two unions in the minority. out disagreements within the negotiating committee , " . generally my recollection is one of friendly get togetherness , and I mentioned this before, that there never had been an occasion to have a showdown on a voting procedure because we would say, `Why don't you get that out, it is ridiculous,' so they do " ' The record does not reveal exactly when or just how many meetings there were before January 28 ' I credit the testimony of Rice that he introduced the subject of laboratory testers prior to January 28 over the testimony of Cochran, Flowers, a negotiator for the Electricians, and George H Phillips, the Company's chief negotiator, that Rice first mentioned the subject on January 28 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The negotiating committee ended its caucus and resumed the meeting with the Company's representatives. Pickering announced that a majority of the unions had agreed to accept the memorandum of agreement as written and recom- mend it to their members for ratification. Rice said that he did not agree because the loading rack and laboratory testers issues raised by him were still unresolved George H Phillips, the Company's chief negotiator, said that the loading rack was an oversight. He offered to add to the memorandum a provision for additional talks with Respond- ent on that issue and inclusion of any agreement reached in the new contract. He said that Rice had raised the laboratory testers issue too late and that the Company would not accede to Rice's demands. Pickering agreed that Rice had brought up laboratory testers too late. He accepted Phillips' offer to add the loading rack provision to the memorandum of agreement. He said that the negotiat- ing committee was ready to accept the Company's offer as amended without any provision for a wage adjustment for laboratory testers. He said that his committee had enough of the unions signed up to reach an agreement Rice said he did not care what Phillips did with respect to putting something about the loading rack in writing and left the meeting. Phillips added two lines to the last page of the memorandum of agreement. They read, "The loading rack changes discussed between the Company and Union, if agreed upon, will be included in this Agreement." G. E. Burkhart, manager of the Hartford Refinery, signed on behalf of the Company. Pickering signed "For Local Unions" and as "Chairman, Negotiating Committee, Accredited International Unions,' acting jointly, subject to ratification of employees in the bargaining unit." The Company prepared a new contract which incorporat- ed all the changes in the old contract provided for in the memorandum of agreement, including a term beginning February 1, 1969, and ending January 31, 1971. The provi- sions in this new, complete document with respect to the loading rack are the same as the provisions in the old contract. There is no provision in the new, complete contract that "the loading rack changes discussed between the Com- pany and Union, if agreed upon, will be included in this Agreement," either in those or any other words. Rice did not take the memorandum of agreement back to his members for ratification All the other unions did. As of February 1, 1969, there were 129 employees in the operating department represented by Respondent. There were 97 other employees in the bargaining unit.' Fines did not recommend to the employees he represented that they ratify the agreement The Laborers voted to reject it. Presumably the negotiators for each of the other eight unions did recommend acceptance and their members rati- fied. In any event, on February 19, 1969, Flowers notified the Company that " . . eight of the ten unions represented in Clark's Wood River Refinery, Hartford, Illinois, acting jointly, have ratified the above agreement, and in accordance with the voting procedure of the bargaining unit, this ° This phrase has apparently been used over the years as a shorthand collective reference to the 10 unions ' There were 33 Fitters, 10 Electricians, 8 Teamsters, 13 Boilermakers, 11 Laborers, 3 Painters, 4 Carpenters, 11 Machinists, and 4 Insulators now constitutes a valid agreement, and you should proceed to put this agreement into effect." In February a representa- tive or representatives of each of the 10 unions except Respondent executed the new contract 10 The Company has placed its wages and other benefits in effect for all employees, including those represented by Respondent. The Company and all 10 unions, Respondent included, have conducted their labor relations, including the processing of grievances, in conformity with its provisons. Rice has consistently maintained the position that Respondent is not bound by the new contract because it did not concur in the agreement reached on January 28, 1969 He has insisted on further negotiations on a wage adjustment for laboratory testers as a prerequisite to agreement by Respond- ent 5. Negotiations since January 28, 1969 On the afternoon of January 28 the Company made an offer to Respondent to resolve the loading rack issue. Rice rejected it a day or two later. Thereafter, on numerous occasions in 1969 and early 1970, the Company tried to get Rice to sign the new contract and discussed the loading rack issue with him The Company consistently made agree- ment on the loading rack contingent on Rice's signing the new contract. Rice insisted that a wage adjustment for laboratory testers be made part of any agreement. The Company refused to bargain with him about laboratory testers on the ground that the subject was barred by the decision of the negotiating committee on January 28. The Company's representative told Rice that Respondent was bound by the decision of a majority of the unions at that time not to press the issue. This impasse over laboratory testers prevented a quick agreement on the loading rack issue throughout 1969. At one point the Company offered to negotiate with Rice about laboratory testers if the other unions would give their consent. The other unions refused. At another point Rice offered to sign the contract as well as settle the loading rack issue if the Company would agree to a wage reopener on the laboratory testers as of February 1, 1970. On January 13, 1970, the Company sent Rice, at his request, a copy of a written proposal on the loading rack. On February 10, 1970, representatives of the Company met with Rice and three operating depart- ment employees to discuss it. Rice agreed to accept the Company's offer, to sign the new contract, and to drop the laboratory testers issue until negotiations for a new contract, effective February 1, 1971, provided that the Company would make any wage adjustment for laboratory testers negotiated at that time retroactive to February 1, 1969, and provided, further, that the Company insist either that all 10 unions agree before a new contract comes into existence or that the unions adopt a voting procedure acceptable to all 10 The Company refused to accept the 1° Whether Fines signed on behalf of the Laborers because his members changed their minds and held a second vote, as he claims, or because his International union told him to sign on the ground that he was bound to the results of joint bargaining, as the Charging Party claims, is immaterial 1, therefore, find it unnecessary to resolve that conflict in the record INTL UNION OF OPERATING ENGINEERS, LOCAL 525 617 retroactivity part of Rice's offer There the matter stood 2 weeks later when the hearing opened in this case. B Analysis and Conclusions This case presents squarely the issue of whether a union involved in multiunion negotiations may withdraw once negotiations have begun. That issue arose, apparently for the first time, in Local Union No. 525, United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, AFL-CIO (Rey- nolds Electrical & Engineering Co., Inc.), 171 NLRB No. 176. There the Trial Examiner found, on the basis of the facts before him, that the respondent union could not. The Board reversed, finding that the union had not 11. . . engaged in multiunion bargaining [nor] was [it] bound by any agreements reached by such bargaining during that period." However, the Board affirmed the Trial Examin- er's additional finding that the union had violated Section 8(b)(3) or the Act by engaging in bad-faith bargaining." It would be difficult to imagine a stronger case than this for applying the Trial Examiner's conclusion in Reynolds Electrical, supra, that a union's efforts to withdraw from multiunion negotiations without the consent of the other participants once negotiations have begun is untimely and thus violative of the Act. Respondent, whether in the person of Rice or his predecessors, has bargained jointly with the other unions for nearly 30 years. Even though it has been unhappy with the minority voice it has had despite its representation of a majority of the employees in the bargaining unit, Respondent has never before questioned the results of this joint bargaining to the point where it has failed to acknowledge and live up to the agreements reached. Even if it did not agree at the time to the change from a simple majority rule to the "Operators and four crafts of any seven crafts" rule adopted in 1959, as its negative vote shows, it acquiesced in application of that rule thereafter This is proved by several examples in the record of negotiations where the representatives of other unions were outvoted by their colleagues, including the representatives of Respondent. Even if I were to find, as Respondent urged, that no new voting procedure was adopted in 1959, the result would be the same, since the record is clear that Respondent participated from 1941 until 1969 in multiunion negotiations in which all have abided by decisions made by less than all, whether the decisive vote was that of a mere majority of the unions 11 Both the General Counsel and the Charging Party argue in their briefs that Respondent engaged in bad-faith bargaining by holding out for a wage adjustment for laboratory testers despite the existence of the "Operators and four crafts or any seven crafts" voting procedure However, the complaint does not allege that Respondent violated the Act by engaging in bad-faith bargaining, and the issue was not raised in the hearing in a manner which would now permit a finding that it was fully litigated Lee Deane Products, Inc, 181 NLRB No 168 Moreover, while I do not think the point has any controlling weight in deciding whether Respondent is bound by the procedure, I have credited Rice's testimony that he had no knowledge of the procedure on January 28, 1969 This, I think, bars a finding that he was acting in bad faith when he took the position then and thereafter that he could only be forced to sign the new contract if he had agreed to the settlement reached that day or some other part of the whole. The fact that the record contains no example of Respondent being outvoted by the others prior to 1969 makes no difference By participat- ing for so many years in negotiations in which I or more of the 10 unions were dissatisfied with some aspect of the result and yet the result was accepted by all, Respondent committed itself to that outcome when the rule , whatever it may have been , was invoked against it However , whether Respondent's failure to keep its commitment on January 28, 1969, and thereafter constitutes a violation of the Act turns on factors other than those which make this at first glance such a strong case. As the Trial Examiner pointed out in Reynolds Electrical, supra, as he weighed the facts before him in light of the Board's rulings in The Evening News Association, Owner and Publisher of "The Detroit News, " 154 NLRB 1494, and Hearst Consolidated Publications, Inc, 156 NLRB 210, parties to multiparty negotiations are bound to the results of those negotiations, once they have begun , because they have consented to negotiate on that basis . There the Trial Examiner found, on the facts before him, that the union had consented to bargain jointly with other unions and was, therefore, bound The Board found that those facts did not add up to consent . Here the facts, quite different from the facts in Reynolds Electrical, also preclude a finding that Respondent is bound to the agreement reached between the unions' negotiating committee and the Company on January 28 , 1969, because it had consented. The key fact in this case is the Board's certification in 1951 . In Sinclair Refining Company, supra, the nine petitioners , Respondent included , sought "separate craft units . . coextensive with their respective jurisdictions " An intervenor , Oil Workers International Union , CIO, con- tended " . that the plant has become integrated in Sinclair's total operations as to which the only appropriate unit is company-wide in scope " The Board found that 11. all the production and maintenance employees had been represented since 1941 by the various petitioning craft unions herein While each of these unions retained its full craft autonomy , bargaining was conducted on a joint basis and a single master contract was executed by all of them except" the Machinists . It ruled: The primary contention of the Petitioners for an election in their respective craft units confined to the Wood River [i.e, Hartford] plant must be rejected in view of the new status of these employees under Sinclair, and the consequent necessity that any craft units, now to be found appropriate , be company-wide in scope. However, the effective bargaining history at the Wood River plant, including the joint negotia- tions on the part of the various Petitioners and their acceptance of uniform contract terms, supports the Petitioners' alternative contention for a plant -wide unit of the employees at the Wood River plant represented by the Petitioners jointly Under all these circumstances, and the entire record in the case, we find that a unit of all the employees at the Wood River plant may be appropriate, depending upon the results of the election hereinafter directed If a majority of the employees select the Petitioners as their joint representa- tive, they will be taken to have indicated their desire 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be represented in a separate plant unit; if a majority select the Intervenor, they will be taken to have indicat- ed their desire to become a part of the existing company- wide unit The election which followed resulted in the certification of a single," joint, multiunion bargaining representative as set forth above under Facts. Therefore, since 1951, negoti- ations at the Hartford refinery have been held on a multiun- ion basis not by consent of the Respondent and the nine other unions but by direction of the Board A multiunion negotiating situation which exists as the res•llt of the consent, freely given, of the participants, the situation found by the Trial Examiner in Reynolds Electrical, supra, and one which exists because the Board so orders are two entirely different things. Respondent finds itself in its present situation as a result of a second alternative position which it took in Sinclair Refining Com- pany. Its first two positions both contemplated its certifica- tion as the sole bargaining representative of those employees in the craft it represented. This is a far cry from a decision freely made to enter into a multiunion situation. Even if the fact that Respondent apparently freely consented in the 1941-51 period is stressed, that consent became lost in the overriding fact that the Board, by its certification, laid down the rules of the game for it thereafter. The Board's certification takes this case out of the consent rationale of Reynolds Electrical, supra, because the Board thereby has become the arbiter of the game, not the parties themselves The only course which Respondent can follow with certainty to extricate itself from the unacceptable position in which it finds itself is to abandon its rights as a joint representative of the Charging Party's employees Such a solution , of course, would be absurd. All other courses it might elect to try are fraught with uncertainty. It might, for example, file a new petition with the Board, again seeking, as it did in 1959, to carve out a unit limited to the craft it now represents But the Board has already found appropriate, relying on the long bargaining history which has placed Respondent in its present dilemma, a plantwide unit in which many unions act as one even though they retain their craft autonomy insofar as the practical give-and-take of representing employees is con- cerned. The only new factor which the Board apparently did not have before it in 1951 when it arrived at that conclusion is Respondent's representation of more than half of the employees in the unit That might be enough to outweigh the factors the Board relied on in 1951 and cause it to find a unit limited to operating department employees appropriate now. But Respondent cannot be sure Cf. United Metal Trades Association, 172 NLRB No 52, American Pipe and Construction Co., 169 NLRB No. 138. " The fact that the Board certified nine unions as a single labor organization is the core of Respondent 's motion to dismiss on procedural grounds. The gravamen of the violation set forth in the complaint is Respondent's failure to execute the new contract If such a violation were to be found, the only remedy would be a cease-and-desist order directed to Respondent and an affirmative order that Respondent sign Therefore, I deny Respondent's motion on the ground that the other nine unions are not necessary parties to the case as pleaded Or Respondent might file a petition seeking to become the sole representative of the plantwide unit already found appropriate by the Board, But that choice plots Respondent's course between Scylla and Charybdis. On the one hand, Respondent would be forced to try to organize employees in crafts in which it has no interest and no following. On the other hand, considering that a score of 129 to 97 is not an overwhelming lead with which to go into an organizing campaign, it would run a risk of losing the game completely. The law should not force it to such a perilous choice. Or Respondent might file a motion with the Board to clarify its decision in Sinclair Refining Company, supra Such as motion could well ask the Board to rule specifically that, although the 10 unions which now jointly represent the employees as a single bargaining representative have an equal voice in negotiations, they cannot thwart the basic precept of the Act that the majority rules when employees organize. Such a course might resolve the specific problem posed in this case by preserving a multiunion pattern of bargaining which has been successfully followed for many years while escaping from the undemocratic situa- tion which has grown up. However, it seems the least likely of all the courses open to Respondent to have any' real chance of success since it would clearly require the Board to take a hand in the internal affairs of the single "labor organization" its 1951 certification created.13 Or Respondent might try again to get the other nine unions to agree that it should have a voice in the negotiations commensurate with the percentage of the employees it represents or that they should follow an all-for- one and one-for-all policy. But the record indicates little likelihood of that coming to pass The only time a change was made, the minority unions carefully preserved their power to outvote Respondent over Respondent's protest. Respondent, despite continuing protests since 1959, has never been able to get them to the formality of a vote which might alter that situation Or Respondent, finally, might wait for the onset of negotiations due in late 1970 and early 1971, then announce before they begin that it will not be bound by any agreement reached by the Charging Party and the other unions contrary to its wishes In so doing it would be relying 4on the precedent of The Evening News Association, supra, as well as those cases in which the Board has held that an employer who is a member of a multiemployer association may withdraw in timely fashion, thus, in effect, creating a new unit with which the union or unions involved must bargain separately. This course would seem to have the best chance of solving Respondent's problem. But the analogy between a union or an employer who wants to get out of a multiemployer situation and a union which wants to get out of a multiunion situation is not so close that Respondent can be absolutely sure of an outcome in its favor. One " Similarly, a finding that Respondent cannot continue to press the laboratory testers issue must be based either on a finding of bad-faith bargaining or a finding that Respondent consented to be bound by the decision of the unions' negotiating committee Any other basis would substitute the Board 's judgment for Respondent's as to positions Respond- ent should take in bargaining and is barred by Sec 8(d) H K Porter Company, Inc, v NL R.B, 396 U S 998 INTL UNION OF OPERATING ENGINEERS, LOCAL 525 obvious distinction that brings this discussion full circle back to the concept with which it started is the element of consent. Most multiemployer bargaining situations arise because the employers and the union, or unions, involved consent initially to bargain together. Having consented, they are free to withdraw that consent, provided only that they do so in a timely manner. Here, Respondent is now part of a multiunion single labor organization not by choice but by operation of law. If it were permitted to withdraw in a timely manner, it would seem to follow from the Board's recognition of the craft autonomy of the 10 unions in Sinclair Refining Company, supra, that it would take the operating department employees with it as a new unit. Whether the Board would permit such a result in a new unfair labor practice case, just as whether it would permit it under the first option open to Respondent, is problematical. It furnishes Respondent with no sure guide to the course it should follow So much for uncertainties. There are, on the other hand, two bedrock principles of the Act which furnish guidelines for a just and equitable solution in this case. The first, already alluded to, is majority rule The whole concept, now so deeply ingrained as to be beyond cavil, that a labor organization which represents a majority of the employees in an appropriate unit has the right as well as the duty to bargain for all, is subverted in this case. The quick and easy answer to that statement is that all the unions which participate in a multiunion bargaining situation together represent the interests of each and every one of the employees in the unit, thus the Board's always couching its certification, just as it did in Sinclair Refining Company, supra, in terms of a single labor organization. Such a rationalization will not wash in this case, however, for the Board, in Sinclair Refining, also specifically recognized Respondent's and the other unions' preservation of their craft autonomy The second principle is the very purpose for which the Act was passed, the promotion of peaceful and stable labor relations Here, the relationship which has existed for nearly 30 years at the Hartford Refinery through three different employers and several changes in the composition of the multiunion bargaining representative has served that pur- pose. Even the dispute which gave rise to this case has not changed that situation, for the record is clear that the day-to-day work of labor relations at the Hartford Refinery, in areas other than those which Respondent claims and the Charging Party denies Respondent now has a right to bargain about, has continued to be handled smoothly and amicably. In the areas which are still not pinned down in the new contract to the satisfaction of both sides, loading rack employees and laboratory testers are working under the terms of the contract which Respondent has refused to sign without any hint that the situation might blow up To require Respondent to sign the new contract would only formalize that status. But it would do so at the cost of finding that Respondent, without its consent, is legally locked into a situation which it now finds intolera- ble. The potential for labor strife growing out of Respond- ent's efforts in such a situation to force the Company and the other unions to agree to a change in the rules of the game is great. Thus the purpose of the Act might 619 be subverted if Respondent is held to have violated the Act I conclude that a union which is part of a multiunion bargaining situation as the result of a Board certification cannot be bound to a contract to which it has not individual- ly assented. This is so even on the history of bargaining present in this case, a history of bargaining which strongly supports a contrary conclusion. Therefore, I find that Respondent has not violated the Act by refusing to sign the new contract executed in February 1969 by the Charging Party and the other nine unions There is a second reason why Respondent has not commit- ted an unfair labor practice Agreement was reached between the unions' negotiating committee and the Charging Party that negotiations would continue on the loading rack issue and any agreement reached would be incorporated into the contract. As the Charging Party points out so cogently in its brief, agreements to continue negotiations on some limited issue when all other issues on the bargaining table have been resolved are common. A contract which reflects such an agreement clearly falls within the provision of Section 8(d) that the duty to bargain includes the duty to execute a written contract incorporating an agreement reached. But that provision contemplates incorporation into the written contract of all the terms of the agreement reached, including the term that negotiations shall continue on the still open issue. Such a provision is missing from the written contract which Respondent has refused to sign. Therefore, it has not violated Section 8(b)(3) of the Act by its refusal because the contract does not contain all the terms of the agreement reached, even if Respondent is found to be bound by the negotiating committee's agree- ment to the memorandum of agreement of January 28, 1969. Rudnick Land & Cattle Co., 159 NLRB 477. Upon the foregoing findings of fact, and on the entire record in this case, I make the following- CONCLUSIONS OF LAW 1. Clark Oil & Refining Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 International Union of Operating Engineers, Local 525, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3. The allegation of the complaint that International Union of Operating Engineers, Local 525, AFL-CIO, has violated Section 8(b)(3) of the Act by ". . . refusing . . to sign a written agreement . after [the] agreement had been properly ratified ... and at a time when Respondent had neither filed a timely petition seeking a separate appropriate unit or [sic] once bargaining had began [sic] gained the consent of all parties to withdraw from joint bargaining" has not been sustained. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety