Rogers Walla Walla, Inc.

ROGERS WALLA WALLA, INC. 25 Rogers Walla Walla, Inc. and Fruit and Vegetable Packers and Warehousemen Local No. 760 , Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind. Case 19-CA-4048 October 21, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 9, 1970, Trial Examiner Martin S. Bennett issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent 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 at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. 1 N.L.R.B. v. Stepp's Friendly Food, Inc., 338 F.2d 883 (C.A. 9), cited by the Trial Examiner in support of his conclusions, does not appear apposite, and we do not rely on it. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Trial Examiner: This matter was heard at Seattle, Washington on January 27, 28, and 29, 1 The record discloses that the time lag between the filing of the charges and issuance of the complaint stems from the refusal of the Regional Office to issue a complaint and the subsequent reversal of that decision by the General Counsel. 1970. The complaint, issued August 22, 1969, and based upon charges filed June 6 and August 5, 1968,1 by Fruit and Vegetable Packers and Warehousemen Local No. 760, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., herein called the Union, alleges that Respondent, Rogers Walla Walla, Inc., had engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. Able briefs have been submitted by the parties and a joint motion to correct the transcript has merit and is hereby granted. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Rogers Walla Walla, Inc. is an Oregon corporation engaged in the operation of food processing plants in the States of Oregon and Washington one of which, at Warden, Washington, was directly involved herein . Respondent enjoys annual sales of goods and services in excess of $500,000 and purchases and causes goods and materials valued in excess of $50,000 to be transported directly across state lines. I find that the operations of Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Fruit and Vegetable Packers and Warehousemen Local No. 760, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Independ- ent, is a labor organization within the meaning of Section 2(5) of the Act.2 III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction; The Issue Prior to the time material herein, the potato processing plant in Warden, Washington, was owned and operated by another employer, Country Gardens, Inc. The employees were covered by a contract with a sister local of the Union, Local 148. Whereas the Union primarily represented employees in the food processing industry, representation was turned over to it by means of a secret ballot conducted among the membership of both locals. Country Gardens was notified thereof on December 1, 1966. This was accepted by Country Gardens and Local 760 thereafter administered the contract. This was a 3-year contract with an expiration date of May 1, 1967, with year- to-year renewal absent 60 days written notice that it be "amended or terminated prior to May 1, 1967...." Prior to this, in November of 1966, Respondent had acquired a 35 percent interest in Country Gardens, Inc., with an option to purchase a majority interest. On April 4, 1967, an agreement to merge Country Gardens and Respondent was executed, this to become effective after 2 As was Local 148 of the same parent organization which represented the employees involved herein and, after a secret ballot, ceded said status to the Union in November of 1966. This presents no issue herein. 186 NLRB No. 6 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain events took place. This, coincidentally, did become effective on May 1, 1967. It provided that the separate existence of Country Gardens should cease and that shares of Country Gardens stock should be exchanged for newly augmented common stock of Respondent as provided therein. The document is silent as to any successor obligation or contract continuation clauses. There is no evidence of any oral understanding in this area between the two companies and it may be noted that the terminated contract contains no successor clauses. The Union first learned of the merger by letter from Respondent dated May 4, 1967. Therein, Respondent asked the Union to contact it about the status of any pending labor negotiations. I find that it was the intent of Respondent to recognize the existing collective-bargaining agent as such and the record amply so demonstrates. Turning back to the pending labor negotiations, the record demonstrates the following. As provided in the contract, the Union advised Country Gardens by letter received February 28, 1967, of its desire to open the contract and stated that proposals would be forthcoming. Thereafter Country Gardens orally advised the Union that it was drawing up a proposal of its own. No negotiations were held, however, presumably due to the pending merger. As stated, the sale became effective May I and the Union was advised thereof on May 4. The instant case stems from the fact that the terminated contract with Country Gardens contains a clause that ".. . when this contract is opened, [by 60 days timely notice] any change in the wage scale shall be retroactive to the opening date." The General Counsel contends that by word and deed thereafter, this Respondent agreed to be bound to the terminated contract between the Union and Country Gardens and, specifically, to the above-quoted language. He contends further that a subsequently negotiated wage increase was not applied retroactive to May 1, 1967. This is disputed on various grounds by Respondent. It is to be noted that after extensive negotiations the Union struck Respondent on March 25, 1968, and that in December of 1968 Respondent sold the business to another, and on this record unrelated, entity. The sole remedy sought herein by the General Counsel is the payment by Respondent of the allegedly negotiated wage increase for the period from May 1, 1967, through March 25, 1968. B. The Authority of the Union Representatives There were 23 negotiating sessions between the parties. James Farrington, then secretary-treasurer, attended only 13 of these and one of his six assistants, Business Agent Ray Dietz, attended and participated in all 23. Dietz is assigned to five plants in the area, including that of Respondent. The other business agents are assigned to the remainder of a total of 40-50 plants handled by Farrington at that time. At this hearing, Farrington testified that he was chief negotiator for the Union and that Dietz was not authorized to speak for Local 760 except "under certain circum- stances." He contended further that he had so advised William Lawr, assistant operations manager for Respon- dent and its negotiator. Lawr testified that no such representation had been made to him and, aside from Farrington's absence at 10 of the meetings, there is ample evidence that Dietz held himself out as endowed with authority to bargain. Indeed, in a communication to a board agent, Famngton referred to Dietz as one who "at my direction," met with this employer on occasion. A consideration of the testimony of Dietz amply discloses that he commented at meetings on the topic of retroactivity of wage rates, and that he adjusted grievances at the plant. He testified that in speaking of retroactivity he was "restating the position" of the Union, namely, "Mr. Farrington's position." He conceded that he never said this was Farrington's position. As for meetings when Farring- ton was not present, Farrington testified that these were merely "discussions" but not negotiations. He did not so advise Respondent. Dietz conceded that on one occasion he questioned the bargaining authority of Lawr. And, in his affidavit to the General Counsel, he deposed that "I have taken part in the negotiations" between Respondent and the Union. Farring- ton also admitted that he was not disavowing any statements made by Dietz at these meetings. Farrington has drawn attention to and relies upon a letter sent by him to Respondent on May 8, 1967, wherein he stated: In order to avoid any misunderstanding, you should also be advised, as I previously did with Country Gardens, Inc., that Local 760 does not authorize any other person or group to negotiate or speak for it and no other person or group has that authority unless you are specifically directed to another person by me at some future date. This was in response to a letter sent him on May 4 by Lawr asking that Farrington advise Respondent as to the status of all unsettled negotiations. The record demon- strates, however, as will appear below that the Union had previously, on November 1, 1966, ceded its bargaining rights to another Teamster organization, Western Potato Processing Industry Committee, herein the Committee; this envisaged bargaining on an area basis with the predecessor of Respondent, Country Gardens and other concerns. This rapidly came to the fore in the negotiations as Respondent became confronted with conflicting demands for bargaining from the Union and the Committee. Indeed, Farrington later admitted herein that when Local 760 was made aware of this activity, it took steps "to advise the Employer that there was improper activity . . . and Local 760 had not authorized such activity." I find that Farrington's letter of May 8 was directed to the intraunion recognition dispute and not to the status of Dietz in the negotiations. The evidence strongly preponderates that the acts of both Farrington and Dietz are binding upon the Union and, more specifically, I find that Farrington both authorized and ratified the participation of Dietz and his actions at these meetings. See Local 168 Teamsters (Mid-County Buick, Inc), 156 NLRB 67; Sheet Metal Workers Union Local No. 65, AFL-CIO (Inland Steel Products Co.), 120 NLRB 1678; and Operating Engineers Local 3, 123 NLRB 922, 929. ROGERS WALLA WALLA, INC. 27 C. Alleged Compliance with the Contract The General Counsel and the Union stress that despite the change of ownership and the termination of the contract on May 1, 1967,3 Respondent, by its acts and conduct in continuing certain of the prior contractual commitments, thereby assumed and agreed to be bound to the contract as such.4 The following factors are urged: (1) Respondent admittedly continued to deduct and remit dues to the Union under the union shop clause in the contract, pursuant to duly authorized cards. (2) Respondent continued to make health and welfare payments to the Washington Teamsters Welfare Trust as provided in the contract .5 (3) In 1967, a question arose as to when employees would receive vacation pay. Country Gardens, in the past, had issued the checks at the time the employee left on vacation. Respondent, in turn, had a company policy of doing so at the time it was due, namely, while the employee was on vacation. This was raised by the employees with the Union and on June 13, 1967, Respondent notified Business Agent Dietz that the former practice would be followed in 1967, but that Respondent's policy would be followed thereafter.6 (4) When vacations were given in 1968, the basis was the hours worked formula set forth in the expired contract. (5) In discussing grievances with Dietz and Farrington, Respondent would on occasion cite the former contract. (6) The expired contract provides for a 5-cent differential on the second and a 10-cent differential on the third shift. Respondent continued this policy after the merger. (7) On July 28, 1967, Lawr wrote to Farrington and complained that Farrington, Dietz, and another had entered the plant on June 26, created a disturbance, and interfered with the work of employees. He pointed out that Dietz had engaged in similar conduct on July 25. He reminded Farrington that the latter had previously assured him that employees at work would not be disturbed. Lawr then referred to Article IX, Section 7 "of our labor agreement," the latter providing that the union representa- tives were to be admitted if the company was contacted and a convenient time agreed upon. He then stated that all arrangements for entries to the plant were to be made between 8 a.m. and 4 p.m. Respondent, in turn, points to a number of factors. (1) The prior contract was duly terminated and there was no agreement that it be adopted or followed between Respondent and the Union or between Respondent and Country Gardens. (2) In many respects, the terms of the expired contract were not followed.? For example, the expired contract had eight different classifications and four different wage rates; the latter, as of May 1, 1967, were $1.54, $1.84, $1.99, and $2.09. In November of 1967, the Union asked Respondent for 3 Respondent contends that the contract was terminated on April 30. The Union at one point contended that it was March 2, 1967. On all dates, the conclusions hereinafter would be identical. 4 As previously noted, the record is entirely silent as to any express commitment, oral or written, to be bound. 5 It may be noted that Lawr uncontrovertedly testified he was advised by a named representative of the Board , after the merger, that it was not desirable to change existing conditions of employment. 6 However, as I read the former contract, the section on vacations is the existing classification and wage scales. This in itself reflects knowledge of departure from the previous scales. Respondent duly advised the Union, and this is undisputed, of its existing structure. There were more classifications and 12 rather than 4 different hourly rates, ranging from $1.54 to $2.59 per hour. (3) Similarly, Lawr uncontrovertedly testified that 25 to 30 percent of the employees received different wage rates than those provided in the expired contract. (4) In September or October of 1967, Respondent removed the foreladies from the company medical insurance program and advised them, if they so desired, to join the Union in order to obtain this coverage .8 (5) There is evidence that the Union disputed the application of the former contract, urging that past practice controlled. Thus, it disputed Respondent's right to assign work pursuant to the language of the contract. (6) The former contract provided that Respondent would be "the sole judge as to the competency of the employees." The Union in turn, and after the expiration of the former contract, contended that it had never allowed this. (7) The contract provided that grievances could be handled by the shop committee or the business agent. The Union, in turn, contended that it did not tolerate the existence of shop committees in any plant where it had achieved representation. To sum up, the former contract was duly terminated and there was no agreement express or implied to follow it thereafter. Respondent was advised by a named Board agent that it was unwise to disturb existing conditions of employment and followed many of them. Both parties, when it was to their interest, either advanced or rejected the language of the contract. This is not a situation of a successor employer refusing to recognize an established bargaining representative. It is rather an issue of whether a duly terminated contract, on this record, carries over in toto. I find that it did not .9 D. The Course of Bargaining and the Alleged Agreement on Retroactivity Shortly after the effective date of the merger, Secretary- Treasurer Farrington and Business Agent Dietz, together with other union representatives, met with Lawr. According to Farrington, the Union covered some of the areas in which it was desirous of making changes. Lawr at this time refused to commence negotiations because of Respondent's doubt as to who was the bargaining agent. This was a reference to a wire received by Respondent on the previous day from the Committee claiming bargaining rights under the previous transfer of authority from Local 760, described above. According to Lawr, he informed Farrington that he had discussed this with a named Board attorney who had silent as to when vacation pay is to be disbursed. 7 As Respondent puts it, both parties followed the language of the contract when it was to their respective advantage. 8 This is based upon the uncontroverted testimony of Lawr. It is not clear just which language of the former contract, if any, was applicable. 9 Even in John Wiley and Sons, Inc. v. Livingston, 376 U.S. 543, it was held only that the arbitration clause of an existing contract survived a merger. A fortiori, if there is no existing contract, there is nothing to be bound to. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advised him not to enter into negotiations with a party when two parties were claiming recognition. That two labor organizations were claiming recognition at that moment is readily apparent. Lawr testified further that no union representative contended that Respondent was bound by the former contract. Farrington testified also that he protested the delay and Lawr replied that the employees had nothing to be concerned about because wage rates would be retroactive to May 1, 1967. Business Representative Dietz also testified that he recalled a meeting during May when Lawr stated that the Union had nothing to worry about because they were "guaranteed retroactivity under the old contract." Lawr flatly denied making this statement or anything like it and also testified that the subject of retroactivity was not raised until a meeting much later on February 15, 1968. Lawr was a precise and meticulous witness who attended all meetings and kept notes of all, as was not the case with Farrington. Dietz was a vague witness who manifestly was attempting to bolster his side of the case. In many areas, the recollection of Lawr impressed me as the superior and I credit him here as elsewhere. On May 26, Farrington advised Respondent, in effect, that the Committee was not duly authorized to act in this area. On May 29, Respondent advised its employees that it could not enter into negotiations until there was legal clarification of the bargaining agent. While the General Counsel has directed attention to Respondent's reference to "renewal of the labor agreement," I see nothing here to support his contention, treated above, that there had been an adoption by act and deed of the former contract. On June 28, 1967, the Union filed a representation petition covering the Warden plant, admittedly for the purpose of putting to rest the representation issue. A consent election was conducted, the Union won, and it was certified on October 19, 1967.10 Turning to the first negotiating session on November 1, 1967,11 the Union, according to Lawr, submitted its 13- page standard form contract as a basis for negotiations I note initially that this was substantially more than the eight-page contract with Country Gardens. This refutes the position of the General Counsel that the Country Gardens contract was utilized as a basis for bargaining According to Farrington, at this and subsequent meetings, the Union sought Respondent's position on wages, but Respondent sought to defer discussion of cost items pending resolution of noncost items. Farrington testified that this contract was presented as an "amendment . . . to the existing labor agreement." I do not accept this because, on this record, with the former contract having been terminated, this was manifestly a new and substantial- ly augmented contract proposal. Lawr testified, and he is fully supported by his notes, that the union proposal was reviewed including its provisions for union security, overtime, and seniority. There was no 10 A prior petition had been filed by it in January 1967 for two plants, the Warden plant and another then operated by Country Gardens at Pasco, Washington Late in January, Joint Council of Teamsters No 28 in Seattle directed Local 760 to cease interfering with the organizational activities of its sister local, Local 839 at Pasco On June 30, 1967, the Union withdrew this earlier petition covenng the two plants 11 Not all aspects of these meetings are treated fully, as those set forth discussion of retroactivity as such and there was no claim that Respondent was bound in any manner to the old contract. The only possible indication of retroactivity was the proposed effective date of May 1, 1967. Farrington testified only that Respondent's position at all times was that a wage increase was to be effective upon date of reaching a contract, contrary to the union claim that May 1, 1967, was established by "the existing" contract. The next meeting on November 15, 1967, was attended by both Farrington and Dietz. As Lawr uncontrovertedly testified, they discussed the composition of the bargaining unit, union security, and grievance procedure. Respondent came forward with a nine-page proposal and both this and the union proposal were discussed. Lawr orally proposed that the company proposal with its various economic features be effective on December 1, 1967. The topic of retroactivity was not discussed and no union representative contended that Respondent was committed thereto. Farrington and Dietz attended the November 29 meeting. According to Lawr, the Union sought a wage offer and he advised that Respondent would submit a wage proposal when agreement was reached on other general contract language. Respondent's proposed new grievance procedure was also discussed. There was no discussion of retroactivity and the Union did not claim that Respondent was bound by the former contract. The December 13, 1967, meeting was attended only by Dietz.12 Dietz, according to Lawr, was the chief negotiator on this occasion. He described a contract that the Union had recently reached with another employer and reviewed some of the features therein. There was no discussion of retroactivity and no claim was made that Respondent was bound by the former contract with Country Gardens. The January 11, 1968, meeting was attended by both Farrington and Dietz. They discussed the composition of the unit, union security and grievance procedure. Lawr listed the areas in which he believed there was agreement, but was advised otherwise by the union representatives. There was no discussion of retroactivity and no contention was made by the Union that Respondent was bound to the expired contract with Country Gardens. The next meeting was held on February 7, 1968, and this was the first of five successive meetings which Farrington did not attend. Dietz did not state that he could not bind the Union because of Farrington's absence at any of these meetings. The parties did discuss contract language agreed to by another employer, Dietz stating that the Union had modified its original proposal and now advocated that contract, except for wages and several other areas. Lawr agreed to make a new proposal to the Umon, except for wages. There was no discussion of retroactivity and there was no contention that Respondent was bound by the expired contract with Country Gardens. The parties met again on February 15. Dietz reviewed a new proposal brought to the meeting by Respondent. He below, in my view, dispose of the case Similarly, and for the same reason, I deem it unnecessary hereinafter to treat with all of Respondent's contentions 12 All meetings were attended by other union officials, although with rare exception later in the day, Farrington and Dietz were the only spokesmen ROGERS WALLA WALLA, INC. asked that Respondent submit a wage proposal and Lawr agreed to do so at the next meeting with specific effective dates. This was the first meeting at which retroactivity was discussed. Lawr said that he would do so, except that if Respondent did offer retroactivity, it might not include an increase effective upon arrival at agreement. Retroactivity was discussed at the next meeting on February 21, 1968. Lawr brought a three-step wage proposal with rates effective (1) on the date of agreement (2) December 1, 1968, and (3) December 1, 1969. Dietz reviewed this and made a counteroffer that the first step be effective May 1, 1967. Lawr told Dietz that it was Respondent's position that "retroactivity would be subject to discussion." Dietz adhered to the May 1, 1967, date and stated that Respondent would be in a better position if it submitted a firm offer on retroactivity. Lawr reviewed Respondent's offer and stated that Respondent realized that it had "an obligation on retroactivity." Lawr was of the belief that Respondent was bargaining on this topic. Dietz never stated that this topic was foreclosed because of the language in the prior contract. Lawr contended that when he referred to retroactivity he had in mind that the employees of Respondent at the Pasco plant were receiving higher wage rates than the employees at the plant at Warden and that increases had gone into effect at Pasco on June 1, 1967. Respondent had in mind that a retroactive settlement might serve to erase these differences. On February 29, the parties met again. Dietz introduced the topic of retroactivity. It may be noted that at all meetings where the topic was raised, according to Lawr, it was raised by the Union. Dietz asked for Respondent's position on retroactivity and Lawr responded that Respon- dent would leave the topic "open for discussion . . . [but that] we are opposed to retroactivity . . ." Lawr explained that his opposition was based upon his belief that settlement on a retroactive basis promoted delays in settlement and Dietz responded that the Union had never signed an agreement without a provision for retroactive pay.13 The parties did discuss other contract clauses. On March 7, the parties met under the auspices of a Federal mediator. As in the past, Dietz did not contend that he was not authorized to bind the Union in the absence of Farrington. The topic of retroactivity was not raised on this occasion. On March 21, the parties met again with the Federal mediator and Farrington reappeared on the scene. In addition, representatives of Local 839 at Pasco, where negotiations were also pending, attended. The mediator, after conferring with the Union, advised Lawr that the Union considered retroactivity as one of five critical issues; this was not predicated upon foreclosure because of language in the expired contract with Country Gardens and that claim was not made during the meeting. The mediator asked Lawr, according to the latter, what Respondent would offer in this area, namely, "how much and how far back." Lawr responded and outlined the general position of Respondent concerning the provisions of the contract and added that "wages could be negotiated 29 back to the Country Gardens [contract expiration] date at a lesser rate than that proposed now.... " At a later stage of the meeting, Lawr flatly told the Union that "if we reached agreement on a basic wage schedule . . . we could work out agreement on retroactivity." It may be noted that the Pasco situation did not involve retroactivity because Local 839 at Pasco had abandoned retroactivity during the negotiations in favor of a larger wage increase, contrary to a prior position it had taken. The next meeting was a joint one on March 25 and attended by Farrington, Dietz, and Business Agent Sarver of Local 839. Respondent took the same position as before, contending that if an agreement could be reached on the other provisions of a contract agreement could be reached on retroactivity. Respondent was aware that a strike was imminent and hoped that a settlement might avoid it. The question of wage rates and other clauses was still open and unresolved on this date. Indeed, at this meeting, Dietz did ask what Respondent's position was on wages. At the close of the meeting, Farrington announced that the Union was reverting to its original proposal of November 1, 1967, and that the Union intended to force on Respondent "the most undesirable contract provisions of any within the industry." No contention was made at this meeting that the subject of retroactivity was foreclosed by the expired contract with Country Gardens. Both the Warden and Pasco plants were struck by the Union later that day and the strike was still current at Warden when Respondent sold the Warden plant in December of 1968. On April 8, 1968, the parties held a joint meeting for both plants, again under the auspices of a Federal mediator, and Farrington was absent on this occasion as well as at the following meeting on April 10. It is noteworthy that in making arrangements for meetings, Farrington advised the mediator that if he was not available the mediator should contact Dietz. At the meeting, Dietz reaffirmed that the Union was reverting to its original contract proposal. The mediator advised Respondent that the Union had raised the possibility of using the expired contract with Country Gardens as a basis for further talks, but Lawr declined. This was the first reference in the negotiations to that contract. The topic of retroactivity was not raised. Another joint meeting was held on April 10. Present with Dietz and representatives of Local 839 at Pasco was International Representative Bill Williams of the Teamsters International Union and both he and Dietz spoke in behalf of Local 760. Williams reviewed the status of Respondent's proposal as to both Warden and Pasco. The subject of retroactivity was not raised and no claim was made that the question of retroactivity was foreclosed by the expired contract with Country Gardens. The next meeting was held by a Federal mediator on April 12 with Farrington, Dietz, representatives of Local 839, and Williams present. There was much discussion of proposed contract language, but retroactivity as such was not discussed. On May 16, Respondent wrote to Farrington and advised that because of business needs, it was contemplating disposing of its raw potato stocks at Warden. This was 13 This I view as a contention predicated upon union practices rather than on the language in the expired contract with Country Gardens. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD predicated upon the fact that both plants at Warden and Pasco had been closed since the inception of the strike on March 25 and Respondent needed funds to protect its financial position. On May 31, Farrington, Dietz, and representatives of Local 839 met with Lawr in a cafe in Warden. Shortly thereafter, four local citizens including the mayor, the managing editor of the local newspaper, and the bank manager appeared on the scene. Lawr reviewed the company proposal of March 21, 1968. Farrington replied with a series of questions about Respondent's potato stocks and Lawr responded. There was discussion of the scheduling of previous meetings. There was no discussion of retroactivity or foreclosure of discussion thereon because of the expired contract with Country Gardens. The next meeting was held on June 5 and was attended by Farrington and Dietz for the Union; Sarver for Local 839; P. Andrade and B. Grams for the Western Conference of Teamsters; and International Organizer B. Williams of the International. This meeting, according to Lawr, was arranged by Grams who proceeded to review the differ- ences between the parties. Grami said that the Union was seeking retroactivity from the expiration of the Country Gardens contract to the date of the strike [March 25]. He said nothing about the problem being covered by the former contract. The meeting ended on the note that the Union would supply a copy of a contract arrived at with another employer. On June 13, the parties met again. Present were Farrington, Dietz, and representatives of Local 839. Respresentative Sarver of Local 839 asked if there would be retroactivity and Lawr replied in the negative. Dietz in behalf of the Union asked if this was truly Respondent's position and Lawr replied that Respondent had no intention of changing this position. Dietz asked if this was a final position and Lawr responded that Respondent believed that there was no possibility for a change, because the parties did not know "what the exact positions will be in the final agreement" Lawr added that Respondent was "no longer willing to consider retroactivity." The Union's representatives did not advance any obligation of Respon- dent predicated upon the expired Country Gardens contract. At this meeting, Respondent did submit a handwritten proposal to the Union which was silent as to retroactivity and proposed an effective date as of the date of agreement. This offer was contingent upon acceptance in toto by the Union. The parties met again on June 25 with Farrington, Dietz, and Sarver in behalf of Local 839. They discussed the qualification of employees for various benefits, but retroactivity was not discussed and no proposal was predicated upon the expired Country Gardens contract. On July 12, Lawr met with representatives of Local 839 and reached an agreement for the struck Pasco plant. It was agreed that Lawr would prepare the final document and present this to representatives of Local 839 on July 13. This 14 The contract with Local 839 at Pasco and the proposal to the Union bore an initial wage scale effective July 15, 1968 is No issue is raised herein as to the unit description 16 The Union took the position that the opening date of the contract differed considerably from the prior contract with Local 839 and required considerable rewriting. Later that afternoon, Lawr, as he testified, was telephoned by Dietz who asked if Respondent would present the same offer to the Union. Lawr agreed to do so. Dietz insisted that the offer be made to the Union at the same time it was offered to Local 839. On the afternoon of July 13, Lawr went to the office of Local 839. Present were Farrington, Dietz, and Sarver. The parties reviewed the proposal and Lawr announced that the proposals were identical except for unit description and the fact that July 15 was to be the effective date. Farrington reviewed the document, there was no discussion of retroactivity, and no mention was made of obligations under the expired Country Gardens contract. Later that afternoon, Sarver advised Lawr that Local 839 had voted in favor of the contract and they executed the document that day. Thereafter, on July 13 or 14, Lawr spoke with Dietz and advised him that the unit description at Warden was in error. Lawr did speak with Farrington about the unit description, but there was no discussion of retroactivity and the prior Country Gardens contract was not mentioned. On July 19, 1968, Farrington and Dietz met with Lawr. The Union had questioned certain of the proposals previously made by Respondent and Lawr, on this occasion, presented a revised contract including changes in the unit description and in the dental program. At the end of the meeting, Farrington asked what would be the effective date of the contract. Lawr proposed that it be effective upon agreement and in fact wrote "Effective Date of Execution" across the top of the document pursuant to Farrington's request.14 Lawr offered to sign the contract if Farrington would. Farrington demurred, explaining that he had to present it to the employees first. There was no discussion of retroactivity or of the expired contract with Country Gardens. Lawr did initial each page, but was unwilling to sign until such time as Farrington did. On July 21, Farrington wrote to Lawr, enclosing signed copies of the contract and stated that it had been approved by the employees. However, Farrington advised on this occasion that two changes had been made in the ostensible agreement of July 19: (1) A change in the description of the bargaining unit to comport with the certification of the Board on October 19, 1967,15 and (2) the effective date of the new wage scale "is shown as March 2, 1967, in accord with the provisions of our Agreement with you which had that opening date and which we opened by letter mailed February 27, 1967." 16 On July 23, Lawr replied and pointed out, quite accurately, that the agreement executed by Farrington was not the proposal made by Respondent and that it amounted to a counteroffer. I find that there was no contract and that there was not a meeting of the minds between the parties. On September 5, Lawr wrote to Farrington and requested further negotiations. Farrington responded on September 24 that a contract was in "full force and effect," referring to was at or about the time of the notice to modify, rather than the May 1, 1967, expiration date of the contract On either date, the conclusions herein would be identical ROGERS WALLA WALLA, INC. 31 the document he had executed as containing "the non- mandatory subjects of bargaining relating to the certified bargaining unit and the effective date of the wage change." As noted, it is readily apparent that there had never been agreement in the negotiations as to the effective date of the new wage scales. The matter remained in limbo for a number of months until February 3, 1969, when Lawr wrote to Farrington and advised that Respondent was considering the sale of its Warden facility and had commenced discussions with interested parties . Farrington replied on February 14 with a request to meet and discuss how this might affect conditions of employment of the employees. The parties met again on March 7 with no result. Present were Lawr and Teamster Officials Andrade, Grami, and Williams ; the meeting had been arranged at the request of Grami in behalf of the Western Conference of Teamsters. On November 21, 1969, Lawr advised the new Secretary- Treasurer of the Union, Bill Wallace, of further negotia- tions for the sale of the Warden facility and renewed Respondent's offer to discuss the effect of this upon the employees. On December 1, the parties met and discussed the sale of the facility and on December 3, Respondent advised the Union that a lease-purchase agreement had been executed with an unrelated employer on December 2. Lawr further testified that the Union never took the position that the subject of retroactivity was foreclosed and the topic arose only when the Union sought Respondent's position thereon. He denied conditioning his willingness to bargain on a flat agreement of no retroactivity, although freely admitting Respondent's opposition thereto, and Farrington admitted that Respondent at all times wanted any wage increase effective upon arrival at a contract. E. Analysis and Conclusions A consideration of the evidence impels the conclusion that both parties made proposals concerning and bargained on the subject of retroactivity of wages. As for Respondent, its proposals concerning retroactivity are in evidence and each time the topic was discussed it was raised by the Union. On February 15, 1968, the Union asked Respondent to put forth a wage proposal and, on February 21, Respondent did so, suggesting that the first step be effective on the date of agreement. Needless to say, the subject of retroactivity is perforce tied to the amount of a wage increase. The Union then sought a May 1, 1967, date and Respondent replied that this was subject to discussion and conceded that there was an obligation on retroactivity, relying on the fact that Pasco employees were receiving higher wages than those at Warden. At the next meeting on February 29, Lawr voiced no opposition to retroactivity, but left it open for discussion ; this was manifestly predicated upon the amount of the wage increase, because on March 21 Lawr agreed to make an offer on retroactivity if the negotiated wage scale was lower. Finally, in an effort to avoid a strike on March 25, Respondent offered to consider retroactivity for employees then on the payroll. It may also be noted that there were many unresolved issues at the time. Finally, when agreement was reached on a contract identical with that at Pasco which had no retroactivity and was effective July 15, Farrington inspected the proposal with its July 15 effective date and made no comments thereon . On July 19, the parties met and Respondent presented a revised proposal to clarify certain areas raised by Farrington which did not include retroactivity. At Farrington's request, Lawr stated that the effective date would be the date of execution and so indorsed the document . The union representatives were silent on retroactivity. However,,on July 21, the Union in effect reneged, changing the description of the bargaining unit and providing a wage scale retroactive to March 2, 1967. Respondent accurately termed this a counter -propos- al. As Respondent stresses, what is significant here is that Dietz in behalf of the Union sought the Pasco contract which was silent as to retroactivity and indeed was effective July 15, 1968. Respondent contends initially that it did not insist to the point of impasse on no retroactivity. The fact is that Respondent, although opposed to retroactivity, was flexible, this depending on the amount of a wage increase. Moreover, even if Respondent had insisted on no wage retroactivity to the point of impasse, the record warrants only a finding that Respondent bargained in good faith on the terms of the contract, confronted with the Union's claim that it never signed a contract without wage retroactivity. As previously noted, there was no successorship obliga- tion to the contract with Country Gardens and no agreement was made in the merger to take over the expired contract. To put this in perspective , the General Counsel is attempting to saddle Respondent with an expired contract entered into by a predecessor union and a predecessor employer. As the mediator was informed by the Union, a retroactive pay raise was a prime issue, clearly not a claim that the Country Gardens contract language was controlling. Stated otherwise, I see no violation of the Act here, whether the topic of retroactivity on this record be deemed a mandatory or nonmandatory subject of bargaining. In view of all the foregoing considerations , I shall recommend that the complaint be dismissed in its entirety. N.L.R.B. v. Stepp's Friendly Ford, Inc., 338 F.2d 883 (C.A. 9). CONCLUSIONS OF LAW 1. Rogers Walla Walla, Inc., is an employer whose operations affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. Fruit and Vegetable Packers and Warehousemen Local No. 760, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act. RECOMMENDED ORDER In view of the foregoing findings of fact and conclusions of law, it is recommended that the complaint be dismissed in its entirety.