Keystone Valve Corp.

64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Keystone Valve Corp. and Millwrights Local Union 2232 of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 23-CA-3416 October 26, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On May 20, 1970, Trial Examiner James M. Fitzpatrick issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of such allegations. Thereafter, the Respon- dent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. amended (the Act), was tried before me in Houston , Texas, on November 17, 18, and 19, 1969 upon a complaint alleging, and an answer denying that Keystone Valve Corp. (herein Respondent or Company) had committed unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. The complaint was founded on charges filed August 21, 1969 by Millwrights Local Union 2232 of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (the Union) Upon the entire record ,' my observation of the witness, and consideration of the briefs filed by the General Counsel and the Respondent , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Respondent, the employer involved herein, is a Texas corporation engaged at Houston, Texas in the manufacture and sale of butterfly valves. During the 12-month period preceding the issuance of the complaint on October 2, 1969, it shipped from its plant in Houston to points outside Texas products valued at over $50,000 ii. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization which at times material to this proceeding has admitted to membership employees of Respondent. On June 26, 1968, in a Board-conducted election a majority of the production and maintenance employees at Respondent's Houston plant selected the Union as their representative for the purposes of collective bargaining with Respondent. On August 27, 1968, in Case 23-RC-3150 the Board's Regional Director for Region 23, on behalf of the Board, certified the Union as such exclusive collective-bargaining representative.2 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 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 Respondent, Keystone Valve Corp., Houston, Texas, its officers agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that those allegations of the complaint as to which no violations have been found are hereby dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK, Trial Examiner. This proceeding under Section 10(b) of the National Labor Relations Act, as The complaint alleges that since August 19, 1969, Respondent has unlawfully refused to recognize or bargain with the Union or to sign a written contract agreed upon between them. According to the General Counsel the unlawfulness of Respondent's conduct stems in part from the fact that its refusal to recognize or bargain commenced 8 days before the end of the Union's certification year as bargaining representative, and in part from the fact that a complete agreement was negotiated between them. Respon- dent denies that a complete agreement was negotiated. It admits that commencing August 19, 1969, it refused to recognize or bargain with the Union and that that date was I In its brief Respondent moved to correct the transcript at page 505, line 3, to read, "Was the number of the strikers brought up and discussed" There being no opposition, the motion is granted and the transcript corrected accordingly 2 The unit found appropriate for such collective bargaining consisted of all production and maintenance employees employed by Respondent at its Houston, Texas plant, excluding office clerical employees, guards, watchmen, professional employees, and supervisors as defined in the Act 186 NLRB No. 9 KEYSTONE VALVE CORP. 65 technically within the certification year, but claims that the 8 days left in the year were of no practical or legal consequence and that in any case unusual circumstances justified its refusal on August 19. The General Counsel does not contend that Respondent's refusal to recognize or bargain antedated August 19, 1969, or that Respondent bargained in bad faith or engaged in surface bargaining. B. The Bargaining Sessions Following the certification of the Union the parties met on 25 occasions, the first such meeting being on September 26, 1968, and the last on August 19, 1969.3 The Company's chief negotiator at all bargaining sessions was Clifford G. Shawd, a management consultant, assisted by Bruce C. Pettit, the Company's secretary-treasurer, and Don De- Ville, production manager. The Union was represented by a negotiating committee, the chief spokesman of which varied from time to time but on every occasion was one or another of the union officials. Thus at the initial sessions the chief union spokesman was A. C. Shirley, a representa- tive of the Carpenters International President. He was generally assisted by Kenneth E. Banks, until December 1968, business representative of the Union and thereafter representative of the Carpenters District Council, or by Jack O. Fountain, executive secretary of the Carpenters District Council. In December, Shirley was reassigned and left the negotiations. Fountain, who was hospitalized in December, left the negotiations at that time, returning again in late January for a short time. He was thereafter reassigned. During his absence and after he left the negotiations Banks was the chief union spokesman sometimes assisted by an attorney, William B. Gates. Banks continued as chief union spokesman through the 24th meeting on May 20. At the final meeting on August 19, Fountain was the chief union spokesman assisted by Banks. Thus the union representation had little of the continuity which characterized that of the Company. C. Topics of Tentative Agreement At the initial session on September 26, 1968, the Union presented a substantially complete contract proposal, omitting certain items such as wages or proposed dates for its commencement and duration. About October 17, 1968, the Company responded with a package of counterpropo- sals on most items proposed by the Union plus a few additional, but not including proposals on wages nor dates 3 During 1968 , in addition to the first meeting in September, the parties met on four occasions in October, three in November, and five in December. During 1969 they met on three occasions in January, three in March, three in April, and two in May in addition to the last meeting on August 19. During February and between May 20 and August 19 there were no meetings. 4 Just what the negotiators contemplated by tentative agreement is a matter of dispute. Early in the negotiations certain ground rules were established including one relating to tentative agreements. Union negotiators Shirley, Fountain, and Banks testified that the understanding was that all agreements were contingent upon reaching agreement on a whole contract. Chief company negotiator Shawd testified that all agreements were contingent upon the parties signing the final agreement. I credit the union version as being the more logical and because it squares better with normal bargaining conditions. In addition Bruce Pettit who assisted Shawd in negotiations at first testified in a manner corroborating Shawd's version, but when asked directly by the Trial Examiner, he for duration. Thereafter they negotiated and agreed tentatively4 on a substantial number of contract clauses dealing with a wide variety of topics.5 The General Counsel contends that by the end of the next to last meeting on May 20 the parties had tentatively agreed on all subjects under negotiation except wages, insurance, and seniority, and that at the final meeting on August 19, the Union accepted the Company's terms on these three outstanding items, thereby achieving agreement to a complete contract. Respondent disputes the extent to which tentative agreement was reached prior to the last session. At the last session on August 19, Respondent refused to negotiate at all, and it contends, therefore, that no agreements resulted from that encounter. Since on his theory of the case the General Counsel has the burden of proving agreement by the parties on all essential aspects of an agreement, and since he would fail to sustain that burden if agreement were not reached on any essential aspect of the contract, I deem it appropriate to scrutinize those topics on which Respondent asserts no agreement was reached. D. Topics on Which Respondent Contends No Agreement Was Reached 1. Wages and duration of the contract There is no dispute that prior to the last session on August 19 the Union and Respondent had not come to agreement about wages or contract duration. These matters were still open. There is a question, however, whether the General Counsel has sustained his burden of adequately identifying in the record outstanding company proposals of these topics which on August 19 were susceptible of acceptance by the Union. One confusing aspect is that during negotiations discussion of contract duration seems to have been intertwined with discussion regarding wages, presumably because the significance of wage provisions depended in part upon time factors. Contract duration was not treated separately or in relation to other topics discussed. The initial proposals presented by the Union at the first negotiating session on September 26, although substantially complete, did not contain a wage proposal. However, at some point in the early negotiations, the record does not indicate exactly when, the Union made a wage proposal covering various classifications of work. But the Union's package of proposals, even when supplemented by its wage testified the negotiators could have said that everything would be tentative until agreed upon. 5 At the hearing the parties stipulated that tentative agreement was reached on the following topics: recognition ; scope of agreement ; business agents and union officials; strike and lockouts; probationary employees; holidays; vacations; funeral leaves; jury service; safety; bulletin boards; change in address, telephone number and personal status; rest periods; payment for time lost for medical attention related to injury arising out of employment ; equipment and clothing; nondiscrimination because of union activity; nondiscrimination because of race, religion , etc.; profit sharing plan; and separability. In addition a preponderance of the evidence shows that during the first 24 sessions the negotiators also arrived at tentative agreement regarding the following topics; shop stewards ; hours of work; overtime and premium pay; leave of absence; grievance procedure; production standards; installation of new machinery, etc.; and, orally, regarding management rights including provisions for checkoff. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proposal, contained no term for the duration of the proposed agreement nor did it indicate whether the proposed effective date of the agreement would be immediate, in the future, or retroactive .6 Moreover, in making the initial proposal, the union negotiators said nothing orally about contract duration. A. C. Shirley, negotiator for the Union, testified that in oral discussions regarding the Union's wage proposals he offered it as a 1- year proposition, but that the Company never specifically accepted the proposition. In a similar fashion, the Company counterproposals offered about October 17, did not include a wage proposal and carried no dates regarding duration. Later, about October 29, the Company separately offered as its counterproposal on wages a 15-cent maximum increase in the wage rate range. In making this counterproposal on wages Shawd indicated orally that it embodied what the Company was willing to do at that time and that if a longer term contract were involved the Company might be willing to do something else in the way of wages. Whether this amounted to a 1-year wage proposal, or reasonably construed could be understood to be a 1-year wage proposal, is not entirely clear from the record. Shawd testified that he did not designate it as such. According to the testimony of Banks, Shawd said that presently this is what they were willing to give. Shirley then asked if it was for a 1-, 2-, or 3-year term and Shawd replied that naturally if it goes into another year it could have more added to it. This indicates that the Company's counterproposal on wages was a 1-year proposal susceptible to adjustment for longer periods of time. The union negotiators Shirley and Banks took it as a ]-year wage proposal. According to Shirley, prior to the Company's counterproposal on wages the union negotiators had been talking in terms of a 1-year contract and it was against this background that they construed Shawd's remarks and the company proposal as a 1-year matter. Shirley testified that the Company's counterproposals on wages itself had no term in it. I find that the Company's initial counterproposal regarding wages was, in context, a proposal for 1 year. In any case the Union did not at that time accept it. In subsequent discussions regarding wages, 2- and 3-year terms for wage arrangements were considered. In January the Union hired Attorney Gates to assist it in negotiations. According to Banks, Gates (who did not testify) reported to him regarding negotiations on April 24 at which the parties discussed a company proposal for a wage package of three successive annual raises of 10 cents, totaling 30 cents over a 3-year term. This was the last company proposal on wages. The Union did not accept it. But discussions continued on wages as well as seniority and insurance at bargaining sessions on April 25, May 1, and May 20. Banks testified that at the April 25 session the company wage proposals were presented orally rather than in writing, and that on behalf of the Company Shawd discussed wage proposals not only for 1-year but also for 2-year and 3-year terms. On the other hand Pettit, who assisted Shawd in the 6 Although both the union-and company-written contract proposals contained separate articles dealing with termination, blanks were left in both versions for insertion of the beginning and ending dates for the proposed agreement negotiations, testified that what the Company was talking about was the 3-year wage proposal. I credit Pettit. At the end of the May 20 bargaining session, which was the 24th and next to the last meeting, the posture regarding negotiations on wages was as follows: the negotiators were stalled on wages, and also on insurance and seniority; neither the Union's initial written wage proposal nor the Company's counterproposal, also in writing, both made early in the negotiations, contained any written terms relating to duration, but the union proposal had been augmented by statements of the union negotiators indicat- ing they intended it as a 1-year proposal, and the company counterproposal had been offered in an oral framework which made the union negotiators' interpretation of it as a 1-year counterproposal not unreasonable; all this had been followed, however, in later sessions by considerable discussion including a proposal, made orally by the Company, for an entirely different wage package to extend over 3 years. In these circumstances it cannot be said that the Company's original written counterproposal on wages was its last offer on that subject. Moreover, none of the wage negotiations, nor for that matter in any of the discussions on any other portion of a proposed collective- bargaining agreement, did either party specifically propose a beginning or an ending date for the agreement. As of the end of the 24th session therefore, there was no pending proposal regarding the precise time of commencement or termination of wage provisions or of a collective-bargaining agreement as a whole. The situation was still the same when the parties went into the 25th session on August 19. 2. Seniority Of all topics discussed in negotiations, seniority caused the greatest problems. The Union's initial package proposal of September 26 included a number of provisions touching on the subject, including one entitled Seniority, one on shift preference in seniority, one on interdepartmental transfers, and one on disciplinary transfers. Similarly, the Company's package counterproposal presented about October 17 included provisions entitled Seniority, one on probationary employees, and one on transfers. When a Federal mediator entered the picture in early November he prepared an agenda listing topics for discussion, including the topic of seniority under which he included both the union and the company proposals above referred to. Thereafter this agenda was used as a general guideline for subjects to be discussed. In subsequent meetings there were many discussions about, and proposals and counterproposals regarding seniority, including a written proposal by the Company on December 10. By January 15 the talks had reached a crucial point, with the Union threatening to strike the next day if its terms were not met. In a marathon session on January 15 the negotiators made a number of changes in the then outstanding December 10 company proposals, including a number of concessions by the Company made in an effort to avert the strike.? The Union did not accept this revised proposal. Instead it came back with the word 7 The proposal then under consideration was in writing The company concessions were in the form of handwritten interlineations on this written proposal It was this written proposal with the interlined handwritten concessions which, according to Banks, the Union intended to accept at KEYSTONE VALVE CORP. that it would go on strike the next day. Thus the concessions made by the Company in an attempt to avert the strike did not succeed. Company negotiators Shawd and Pettit testified that they then withdrew the concessions and returned the company proposal to what it had been before the concessions were made, and, moreover, that this was communicated to the union negotiators. Banks who was then negotiating for the Union denies that such withdrawals were communicated to the Union. However, I credit the company negotiators because they corroborate each other and because their general recollection of the negotiations was more precise than Banks. It further seems unlikely that in the subsequent negotiations, which at times dealt with seniority, the Company's position with respect to these matters would not have been made clear to the union negotiator. It is not entirely clear on this record just what the Union contemplated as the Company' s last offer on seniority. Banks testified that he considered the Company's last offer to be the one in written form under consideration on January 15 together with the handwritten concession thereon, referring to handwritten changes by Shawd on the first page. But there were also handwritten changes on page 2 of that draft which with one exception are unexplained. Nothing in the record indicates who made them, or whether Shawd authorized or adopted them. After the strike, which began January 16 and lasted about a week, the subject of seniority was considered by all concerned to be a matter which was up in the air. It was the subject of further discussions, particularly at meetings on April 24, and 25, and May 20, and although many other matters were agreed upon, seniority was not. The record does not reveal the details of what was discussed or proposed on seniority during these meetings. The Company contends it returned to its position prior to its prestrike concessions. It offered in evidence its typewritten Decem- ber 10 proposal as embodying that position, which it considered to be its last proposal. Considering the negotiations on seniority after the strike, the confusion surrounding alterations to the December 10 company proposal under consideration on January 15, and the obvious disparity between the union and company view of that last offer, I find the evidence insufficient to establish with adequate precision, what that last offer was. The Company had also included in its package of proposals on October 17 a provision dealing with transfers. Banks admitted that this topic was not agreed to prior to the last meeting but he considered that the Union accepted the Company's proposal at that time even though nothing specific was said about it. Under the general heading of Seniority the mediator had listed among other items the Company's proposal on seniority, its proposal on proba- tionary employees and its proposal on transfers. The December 10 proposal of the Company on seniority covered both seniority and probationary employees, but the language did not cover the same subjects as the Company's proposal on transfers. The question then is whether the topic of transfers was inferentially covered into the topic of seniority. In this connection the agenda did not redefine 67 the topics to be negotiated. It was merely a device of the mediator for the grouping of items to be considered. Such was the situation regarding seniority when the parties went into the 25th and last meeting. 3. Insurance The original package of provisions offered by the Union at the first negotiating session did not include any proposals on insurance. It did include, however, a bare topic heading entitled Health and Welfare. Company proposals offered later did include provisions on group insurance, covering life and hospitalization insurance plans already in effect with the Company. The parties stipulated that this was the last company proposal on insurance. 4. Other subjects on which the Company claims there was no agreement Contrary to the union position that by the end of the 24th meeting tentative agreement had been reached on all subjects of negotiation except wages, insurance, and seniority, the Company argues that a number of other topics under consideration were not in fact agreed to. For example the Company's initial package of proposals contained one entitled Installation of New Machinery, Changes in Production Methods and/or Devices, which provided that the Union should be notified if such changes were made which might reduce the number of jobs. Shawd testified that this clause was never agreed to. Shirley testified that the topic was discussed at the second and third sessions on October 1 and 17, but that no agreement was reached at that time. However, Banks, after referring to his notes on his copy of the mediator's agenda, testified that on April 23, when he was the chief union negotiator, he did accept the Company's proposal. I credit Banks and find that on April 23 the parties tentatively agreed on that clause. A somewhat similar situation existed with regard to the Company's proposals on production standards which it included in its first package and which the mediator had included on his agenda along with several other proposals under the general heading of Management and Union Rights. Shawd and Pettit both testified that the proposal was never discussed and that no agreement was reached on it. On the other hand Banks testified that he accepted the entire Company's proposal on April 23. I so find. At their eighth meeting on November 13 the Company and Union negotiated for 14 hours about grievances and arbitration. By the end of the meeting they believed they had orally agreed in principle on provisions for an article on grievance procedures as well as for a following and related article on arbitration. The chief union negotiator was Fountain, Shirley and Banks being absent. As always the Company was represented by Shawd, Pettit, and DeVille. Fountain thereafter reported to Shirley that tentative agreement had been reached on grievance and arbitration and, based on Fountain's notes made at the meeting, they prepared a typed draft of the proposals. At a subsequent meeting with the Company in December concessions which, according to Banks, the Union intended to accept at the last meeting on August 19. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shirley, who was again temporarily representing the Union because Fountain was hospitalized, presented to Shawd the typed draft on grievance procedure and arbitration as what Fountain had said they had agreed upon. Shawd received it and said he would check it for discrepancies and let them know. He never did and nothing further was said about those topics during later negotiations. Shawd never overtly approved of the union draft, but then he never told the union negotiators anything was wrong with it either. The union negotiators believed they had reached tentative agreement and that their draft embodied that agreement. At the hearing Shawd testified he did not agree to the union draft, that there were several discrepancies which were unacceptable. Pettit also testified that the Company never came back to the Union on the matter nor did it agree to the language. Section 1 of the article on grievance procedure in part appeared in the union draft as follows, "If not settled within 2 working days and the complaint qualifies as a grievance as defined in this article, if the employee desires to present it for handling, he should do so as hereinafter provided in this article." Shawd testified that the word "should" was a discrepancy which should have read "shall." And he testified that in Section 2 of the grievance procedure draft the sentence "a grievance shall be limited to a written specific allegation by an employee, the Union or the Company, as the case may be, that a provision or provisions of this agreement have not been complied with" was unacceptable because the words "specific cited" should have appeared before the word "provision." Section 3 of the draft regarding arbitration in part read, "The arbitrator shall have no power in anyway to add to or subtract from, amend or modify, or project beyond its express meaning any of the expressed terms of this agreement, or any other agreement made supplementa- ry hereto, change wage rates established by this agreement or to establish any wage rates for a new job classification. In the report of his decision, the arbitrator shall state the basis of his findings" Shawd testified the union draft was not acceptable because "expressed" should have been "express" and it should have included after the words "job classification" the words, "nor to rule on any dispute regarding performance standards." He also expressed at the hearing a tangential objection to the draft arbitration provision based on his assertion that during the negotiations leading up to the so-called oral understanding in principle on grievance and arbitration, he had, at the suggestion of the mediator, agreed to the removal of language having to do with disciplinary action and arbitration in case of a violation of work rules on the understanding that the mediator would suggest a separate article on work rules containing similar language, but that such a separate article on work rules was never drawn nor again discussed in the negotiations. I find that Shawd's disagreement with the use of "should" instead of "shall" and "expressed" instead of "express" and his objection to the omission of the words "specific cited" are inconsequential variances. However, the omission of words from the Arbitration provision which would deny an arbitrator the authority "to rule on any disputes regarding performance standards" was a matter about which the parties were in serious dispute and it was a point which the Company never conceded. This was a variance of substance and since the Union's draft embodied what it considered to be the agreement between them, a preponder- ance of the evidence fails to establish that they tentatively agreed upon an arbitration provision. I find they did tentatively agree on grievance procedure. E The Last Meeting The 24th and next to last meeting was on May 20. The final meeting was on the following August 19. Between there were no negotiations. A meeting had been scheduled for June 5, but was cancelled because Banks was hospitalized. After he left the hospital he endeavored directly and through the mediator to arrange further meetings. In talking with Pettit he attempted to persuade the Company to negotiate without Shawd. Banks also wrote to Pettit on July 11 requesting meetings on July 21, 22, 28, or 29, requesting "that this meeting be for a package of the remaining three items, wages, seniority, and insurance. These three items are the remainder on the agenda as set up by the Federal Mediation and Conciliation Service." Pettit's secretary replied by letter of July 17 that company representatives were not available on the suggested dates because of vacations but could meet on July 23 or 24. Banks did not respond to this suggestion. However, a few days later with the help of the mediator arrangements were made for a meeting on August 19. On July 29, after these arrangements were made, a decertification petition signed by 51 employees of a total of 81 then in the unit was filed with the Board. On August 18 Shawd and Pettit discussed the position the Company should take at the August 19 meeting and concluded that in view of the decertification petition signed by a majority of the employees in the unit, the various union suggestions to the Company to replace Shawd as its representatives in negotiations, the relatively small number of employees that had participated in the January strike, and the substantial differences between the Company and the Union on still resolved issues, that the Company would terminate its bargaining with the Union and cease thereafter to recognize the Union. The Union also reviewed its situation in advance of the August 19 meeting. Banks and Fountain concluded that they would accept the Company's terms on what they understood were the only three outstanding items, insur- ance, wages, and seniority. Banks believed seniority included all company proposals listed on the mediator's agenda under the topic Seniority namely, seniority, probationary employees, and transfers. Thus each party approached the August 19 session with a predetermined plan of action; the Union intending to accept all outstanding company proposals as they under- stood them; the Company intending to break off negotia- tions and cease recognizing the Union. On August 19, the Union was present in the persons of Fountain and Banks and the Company in the persons of Shawd, Pettit, and DeVille. The mediator opened the meeting, noting that three topics remained open, wages, insurance, and seniority. Shawd then handed Fountain a letter addressed to Banks dated August 18 and signed by Pettit reading as follows: KEYSTONE VALVE CORP. 69 There is predominant evidence, known to both parties, that the Millwrights Local Union 2232 of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO does not represent the majority of our bargaining unit employees; therefore, we find it inappropriate to resume or continue negotiations and believe it to be contrary to the intent of the Act to do so. For these reasons, we respectfully withdraw from further negotiations. Fountain and Banks read the letter. Then Fountain stated that there were three items still open, wages, insurance, and seniority, and that the "Union accepts the Company's last firm proposal on these three items for a period of a 1-year contract from this date as discussed previously." Shawd replied, "The letter shuts off need for further remarks." Fountain then asked if the company proposals were not firm, whether the Company denied that the proposals were made at the table. Again Shawd replied, that no answer was required, and the meeting broke up.8 F. Discussion The Union entered the August 19 meeting with the assumption that only three items, wages, insurance, and seniority, were outstanding. On the record before me, however, this assumption was not entirely warranted. Whether the union negotiators believed to the contrary or not, the facts were that during the first 24 meetings, tentative agreement had not been achieved on arbitration and the record does not establish that the Company waived its objections to the union version of that clause. Consequently, even if the parties agreed on everything else at the 25th meeting, the problems regarding arbitration still remained outstanding. With respect to the three items which in the Union's view were still outstanding prior to the 25th meeting, it is clear that one of these, insurance, was identifiable by an outstanding last offer of the Company which was susceptible of acceptance. However, the contrary was true with respect to seniority and wages and also with respect to the effective beginning date and duration of a proposed contract. As to these items on which agreement was essential to consummation of an operable contract, a preponderance of the evidence does not establish outstand- ing company last offers sufficiently specific to be amenable to acceptance in the manner attempted by the Union at the 25th meeting without the necessity of further bargaining. I find, therefore, that the events at the 25th meeting as well as during earlier of the contract. negotiations did not result in agreement on seniority, wages, or duration On this record it would be impossible to order the Company to execute a collective-bargaining agreement because it would be impossible to determine the precise terms agreed to on the subjects of arbitration, seniority, wages, and duration. In these important respects the 8 1 base these findings as to sequence on the credited testimony of Pettit which in the main was corroborated by the testimony of Shawd as well as Fountain and Banks . However, Fountain and Banks testified that Fountain accepted the company proposals before Shawd handed over the letter. On further examination, however, Banks was not positive of the sequence, and Pettit seemed to have the most precise recollection of all of the witnesses regarding the meeting. In any case it seems to me that in the field of labor agreement of the parties was incomplete, and there are omissions which the Board cannot supply. Ridge Citrus Concentrate, Inc., 133 NLRB 1178. In view of the foregoing I find that the Company has not violated Section 8(a)(5) of the Act by refusing to execute a collective-bargaining agreement upon which the parties have agreed. The General Counsel also contends that the Company violated Section 8(a)(5) of the Act when it ceased to recognize or bargain with the Union on August 19, 8 days before the end of the certification year. Absent unusual circumstances the majority status of a certified union is conclusively presumed for a year. Ray Brooks v. N.L.R.B., 348 U.S. 96. Respondent contends that unusual circum- stances justified its refusal to recognize or bargain near the end of the certification year and that in any case it factually and legally fulfilled its obligation by honoring the Union representative status through almost all of the certification year. The circumstances which Respondent urges as justifica- tion for shortening the certification year are, first, that at the opening sessions then chief Union Negotiator Shirley threatened to entrap chief Company Negotiator Shawd in that he warned Shawd that if he placed himself in a position which amounted to a trap, Shirley would not warn him of it but would spring the trap. The second so-called unusual circumstance was that in late January at a time when the Union felt negotiations were going badly, the then chief union negotiator, Fountain, urged Pettit to have Shawd replaced as company negotiator and threatened that there would be difficulties in the installation of the Company's products elsewhere if he were not replaced .9 The third circumstance was that the Union's economic strike in support of its bargaining demands, which began January 16 and lasted about a week, was supported by about only 30 to 35 of the approximately 107 employees then in the bargaining unit. Fourth, in June the Union again made efforts in the person of Banks to replace Shawd as the company negotiator by suggesting to Pettit that they meet without him. Fifth, the Company claims it was not sure if the Union seriously desired continued negotiations because Banks had failed to respond to the Company's suggestion of July 23 and 24 as meeting dates. Sixth, the Company urges that on July 29, 51 of the 81 employees then in the bargaining unit filed a decertification petition with the Board and that this indicates that a majority of the employees did not desire continued representation by the Union. Finally, the Company urges that by the last meeting it had bargained through 24 sessions without reaching agreement and that since at least May 20, the 24th session, the parties had been at impasse or almost impasse on 3 issues, wages, insurance, and seniority. Such circumstances are not comparable to the unusual circumstances referred to by the Supreme Court in Ray Brooks, supra, i.e., the certified union dissolved or became defunct, a schism resulting in substantially all the members relations an issue should not turn upon which negotiator happened to get in the first word, when in fact all of the events occurred substantially simultaneously. 9 Fountain's threat was the subject of Section 8(b)(1)(B) and (3) unfair labor practice charges filed by Shawd on February 6 against the Union, charges which were subsequently withdrawn. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and officers of the certified union transferring their affiliation to a new union , or the size of the bargaining unit fluctuating radically within a short time. By contrast, many of the circumstances in the present case are of little consequence. Shirley's comments at the opening of negotiations regarding entrapment of Shawd was an incident wholly without significance. Even if it were significant, it was followed by months of collective bargaining. Similarly Fountain's threats to the Company to get rid of Shawd was followed by many further meetings and much hard bargaining. In any case, the incident, which was the subject of a charge which the Company later saw fit to withdraw, can hardly now be said to have been so serious as to warrant alteration of the normal rule of law dictating the status of a certified representative for the full year. With respect to Banks' efforts in June to persuade Pettit to negotiate without Shawd, there is no suggestion in the record that this conduct was coercive or unlawful; no unfair labor practice charge was filed with respect to it, and the Company was amenable to meeting with the Union on subsequent occasions. In my view this circumstance was as insignificant as Shirley's opening remarks to Shawd. The week-long strike in January was a more significant event, but economic strikes in support of bargaining demands are hardly unusual in the history of collective bargaining. The real significance of the strike was that it was not well supported by the employees and that in effect the Company won it at a point midcourse in the series of bargaining sessions . At the time of the strike the certification year still had 7 months to run. Subsequently the parties met several times and reached tentative agreement on a number of issues . It strains logic to say that an unsuccessful strike in January was a sound basis for cropping short the certification year ending the following August. The alleged existence of impasse or near impasse on the three issues of wages, insurance, and seniority beginning at least as early as May 20 likewise does not hold water as a valid argument for cutting off negotiations. Assuming, without deciding, that at the 24th session on May 20 the negotiators had reached impasse, the story did not end there. No company decision was then made to withdraw from bargaining. A further negotiating session was scheduled for June 5 and cancelled only because Banks entered the hospital. When he got out considerable communication passed between the Union and Company regarding specific dates for further meetings, some of which were not feasible because vacationing company negotiators were unavailable. It is clear that the company decision to withdraw was not made until after the July 29 decertifica- tion petition was filed and probably not until Pettit's letter of August 18 was drafted. In the meantime the union negotiators had determined to accept what they believed to be outstanding company proposals on the three issues and they came to the final meeting intent upon agreeing with the Company on these matters. Thus on the Union's side the situation on the so-called impasse issues had changed. It was the Company that entered the last session with a fixed purpose of not agreeing, and its negotiators held fast to this purpose even though during the meeting it became apparent that the union attitude had changed. The asserted impasse, therefore, could not be a basis for then withdrawing from bargaining. At the time of the Compa- ny's refusal to bargain it was nonexistent. See Kit Manufacturing Company, Inc., 138 NLRB 1290, at 1294-1295. The Company makes much of Banks' failure to respond to the company letter of July 17 suggesting available meeting dates on July 23 and 24. Prior to this, however, Banks had sought to arrange meetings and while he did not respond specifically to the July 17 letter he subsequently did work out arrangements to meet on August 19. Perhaps the Union could have been more aggressive in seeking bargaining dates, particularly in view of the nearing end to the certification year, but its conduct was not so lethargic as to justify a conclusion that the Union was abandoning its representative status. The most serious point made by the Company is that on July 29, 51 of 81 employees in the unit signed a decertification petition filed with the Board. But the filing of a petition for decertification, even when signed by a majority of employees in the unit, is not dispostive of the question. It is a mere preliminary, procedural step, and its filing during the certification year does not vitiate the presumption of the bargaining status of a certified union, nor does it amount to an "unusual circumstance" under Ray Brooks. Ridge Citrus Concentrate, Inc., supra; Holly- General Co., 129 NLRB 1098, 1103, enfd. 305 F.2d 670 (C.A.9). The Company argues not only from each of the alleged unusual circumstances , but also relies upon the whole package. What this amounts to is that in view of the difficulties of past bargaining, the Union's none too aggressive efforts to arrange meetings with the anniversary of the certification fast approaching, and the employees decertification petition, the circumstances were so weighty as to justify a company decision to abandon negotiations 8 days in advance of the end of the certification year. I do not find these circumstances so weighty. The totality of circumstances in the case suggest instead that had the Company maintained a bargainable attitude it might have well achieved agreement with the Union during the remaining 8 days Respondent argues also that having bargained for almost a year, it had bargained for what was legally the equivalent of a full 365-day year. However, almost a year is not the factual equivalent of a year. The last 8 days might have been the most fruitful for bargaining purposes. And as pointed out by the Ninth Circuit in N.L.R.B. v. Holly- General Co., 305 F.2d 670, at 675, valid policy considera- tions support a definite 1-year rule. Nor is almost a year the legal equivalent of a year. Board law, with considerable court approval, holds contrary to Respondent's contention. Certain-Teed Products Corp., 161 NLRB 88, 100, enfd. 387 F.2d 639 (C.A. 5); Kit Manufacturing Company, Inc., supra, at 1292; N.L.R.B. v. Holly-General Company, supra, at 674-675. In Kit Manufacturing at 1294 the Trial Examiner, with Board approval, stated, The Respondent in effect argues that since the year was so close to its end, the Respondent was entitled to anticipate its right to question the majority of the Union. I do not believe it was entitled to do so. The KEYSTONE VALVE CORP. 71 majority status accorded a certified union is absolute for the definite period of 1 year and may not be truncated, absent a showing of unusual circumstances. Respondent cites N.L.R.B. v. Alva Allen Industries, Inc., 369 F.2d 310 (C.A. 8), and N.L.R.B. v. Satilla Electric Membership Corp., 322 F.2d 251 (C.A. 5), as supporting its position. One of the bases for the decision reached by the Eighth Circuit in Alva Allen was, "the lethargic approach of the Union during the preceding 8 months"(369 F.2d at 32 1). In the present matter Respondent takes the position that it was not sure whether the Union was interested in continuing to represent the employees because it was not sufficiently aggressive during the summer of 1969 in pressing for negotiations. The facts here, however, are quantitatively distinguishable from the 8 months lethargy alluded to in Alva Allen. There were reasons known to all why no meetings were held in June, namely, Banks' hospitalization and subsequent convalescence. In July considerable communication passed between the parties looking toward meetings in the latter part of that month. Respondent's only specific complaint is that Banks did not respond to a letter from a secretary in the company office that company negotiators were available for July 23 and 24. But later they were in communication, either directly or through the mediator, and did arrange for the final meeting on August 19. These facts simply do not justify a company felief that the Union was disinterested in representing the employees. In this regard Alva Allen is distinguishable on its facts. As for Satilla Electric,it was essentially a surface bargaining situation not apposite to the present case. If anything it supports the General Counsel's case in that it reiterates the rule in Ray Brooks. Based on the foregoing I conclude that in ceasing to recognize or bargain with the Union since August 19, 1969, Respondent has committed an unfair labor practice within the meaning of Section 8(a)(5) of the Act. many contract provisions , agreement is not established with respect to certain others . As pointed out in Ridge Citrus Concentrate, Inc., supra, the Board cannot supply the omissions, and, accordingly, an order directing Respondent to sign an agreement would not be appropriate. Stylecraft Furniture Company, 111 NLRB 930. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by Respondent at its Houston, Texas, plant excluding office clerical employees, guards, watchmen, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since August 27, 1968 the Union has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 5. By refusing since August 19, 1969 to recognize or bargain collectively with the Union as the exclusive representative of the employees in the aforesaid appropriate unit. Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. Such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record herein I hereby issue the following: RECOMMENDED ORDER IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several states, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in unfair labor practices, I recommend that it cease and desist therefrom, and take certain affirmative action to effectuate the policies of the Act. To remedy Respondent's unlawful refusal to fulfill its statutory bargaining obligation, I recommend that it bargain on request with the Union as the exclusive representative of its employees in the unit found appropri- ate herein and, if an understanding is reached, embody such understanding in a signed agreement. I also recom- mend that Respondent post at its plant the attached notice marked "Appendix." Although from this record it is apparent that the parties were tentatively in agreement on Keystone Valve Corp., its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with Millwrights Local Union 2232 of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive representative of all production and maintenance employees employed by Respondent at its Houston, Texas plant but excluding office clerical employees, guards, watchmen, professional employees, and supervisors as defined in the Act, concerning rates of pay, wages, hours of employment, and other terms and conditions of employ- ment. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named union or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action to effectuate the policies of the Act: 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Upon request, bargain collectively with the above- named Union as the exclusive representative of all the employees in the unit described above, concerning rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its plant at Houston, Texas, copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision and Recommended Order, what steps have been taken to comply herewith.ii IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 10 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 23, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively, upon request, with Millwrights Local Union 2232 of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described below, or in any like manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to form labor organizations, to join or assist the above-named union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL bargain collectively, upon request, with the above-named union, as exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees at our Houston, Texas, plant but excluding office clerical employees, guards, watchmen, profession- al employees, and supervisors as defined in the Act. Dated By KEYSTONE VALVE CORP. (Employer) (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, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002 Telephone 713-226-4296.