Pittsburgh-Des Moines Steel Co.

880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pittsburgh-Des Moines Steel Company and Freight, Construction, General Drivers, Warehousemen and Helpers Union, Local No. 287, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 20-CA-7194 April 4, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 9, 1973, Administrative Law Judge Maurice M. Miller issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 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 Administrative Law Judge and hereby orders that Respondent, Pittsburgh-Des Moines Steel Company, Santa Clara, California, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. In the next-to-last sentence of par 2 of sec iII(B)(6) of the Administrative Law Judge's Decision, "Barrett" should be changed to "Black " z The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dr) Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE MAURICE M. MILLER, Administrative Law Judge: Upon a charge filed December 29, 1971, and duly served, the General Counsel of the National Labor Relations Board caused a Complaint and Notice of Hearing, dated March 29, 1972, to be issued and served on Pittsburgh-Des Moines Steel Company, designated as Respondent within this Decision. Therein, Respondent was charged with the commission of unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. 61 Stat. 136, 73 Stat. 519. Subsequently, through its answer duly filed, Respondent conceded certain factual allegations within General Counsel's complaint, but denied the commission of any unfair labor practice. Pursuant to notice, a hearing with respect to the issues was held at San Jose, California, on June 21, 1972, before me. The General Counsel and Respondent were represent- ed by counsel; Complainant Union herein was represented by two business representatives. Each party was afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. Following the hearing's close, General Counsel's represent- ative and Respondent's counsel filed helpful briefs. These have been duly considered. FINDINGS OF FACT Upon the entire testimonial record, documentary evidence received, and my observation of the witnesses, I make the following findings of fact: I JURISDICTION Respondent raises no question herein with respect to General Counsel's jurisdictional claim. Upon the com- plaint's relevant factual declarations-specifically, those set forth in detail within the second paragraph thereof- which are conceded to be correct, and upon which I rely, I find that Respondent, Pittsburgh-Des Moines Steel Com- pany, was throughout the period with which this case is concerned, and remains, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the statute. Further, with due regard for presently applicable jurisdictional standards, I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate statutory objectives 11. COMPLAINANT UNION Freight, Construction, General Drivers, Warehousemen and Helpers Union, Local No. 287, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, designated as Complainant Union within this decision, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act, as amended. III THE UNFAIR LABOR PRACTICES A. Issue The questions presented herein derive, substantially, from certain 1970 contract negotiations between the parties; this Board has, already, considered a discrete portion of those negotiations, within a prior decision. Freight, Construction, General Drivers, Warehousemen and Helpers Union, Local No. 287, International Brotherhood of 202 NLRB No. 128 PITTSBURGH-DES MOINES STEEL CO 881 Teamsters, Chauffeurs, Warehousemen and Helpers of America (Pittsburgh-Des Moines Steel Company), 193 NLRB No 160. That case was concerned with the parties' negotiations for a contract covering so-called "warehouse" drivers, headquartered at Respondent's Santa Clara, California, facility, who make local or short-haul deliveries This case concerns their concurrent negotiations for a contract covering the firm's so-called "toolhouse" drivers, those who make over-the-road or long-haul deliveries General Counsel contends, herein, that-with respect to this last designated group of drivers-the Company's representatives have taken a position, mistakenly, that their 1970 negotiations with Complainant Union produced a contractual consensus; General Counsel seeks a determi- nation, therefore, that Respondent's present refusal to continue or renew those negotiations, looking toward a true contractual commitment with respect to the drivers in question, constitutes a statutorily proscribed refusal to bargain. Respondent would, however, have this Board find that-with respect to Santa Clara toolhouse drivers-con- tractual consensus was, indeed, reached during the parties' prior 1970 negotiations; company counsel, therefore, charges that Complainant Union really seeks this Board's help, herein, to circumvent its contractual commitments, trying to renegotiate wage rates, fringe benefits, and working conditions regarding which a consensus was previously reached Within his brief, General Counsel notes, cogently, that-with matters in this posture-the present case's disposition will turn upon this Board's determination with respect to a single question: Did Complainant Union's designated bargaining representative and Respondent's principal negotiator-during their several 1970 bargaining sessions-really reach "mutual assent" with regard to those specific terms and conditions of employment which were to be embodied within a proposed 1970-73 collective- bargaining contract for Respondent's Santa Clara tool- house drivers? General Counsel's representative-contend- ing that a review of the facts, with respect to those negotiations, will support a conclusion contrary to that promulgated within this Board's prior decision dealing with Respondent's short-haul warehouse drivers-seeks a present determination that no viable contractual consen- sus, with respect to toolhouse drivers, was then reached. B Facts 1. Background a. Respondent's Santa Clara facility Respondent herein fabricates and distributes steel products . It maintains and operates several California plants. These include the fabrication and warehouse facility, located in Santa Clara, California , with which this case is directly concerned. At Santa Clara , Respondent's work force compasses, inter aka, two general truckdriver classifications. As previously noted , these drivers function as two separate work forces , so-called "toolhouse" drivers who make over- the-road or long-haul deliveries , and so-called "ware- house" drivers who make local or short-haul deliveries within Santa Clara County and certain nearby counties. During the period with which this case is concerned, Respondent employed three toolhouse drivers, and three or four warehouse drivers. The drivers serve separate corporate divisions. The warehouse drivers work for the Santa Clara District of Respondent's Western Warehouse Division. The designat- ed District's local head bears the title of district manager; he serves under the firm's Western Warehouse division manager. Throughout the period with which this case is concerned, James D. Dickey functioned as Respondent's Western Warehouse division manager Mr. Bird T. Lewis was-and remains-the firm's Santa Clara district manag- er; he directly supervises the firm's local warehouse facility. Respondent's toolhouse drivers serve in connec- tion with the firm's construction activity; in that capacity, they function subject to a completely separate chain of command within Respondent's management. b. Respondent's relationship with Complainant Union For some 15 years, minimally, Respondent has recog- nized and dealt with Complainant Union as collective- bargaining representative for the firm's Santa Clara drivers. The warehouse and toolhouse groups have, however, been represented separately. Historically, their contracts have, likewise, been negotiated separately, though "approximately" concurrently-that is, during the same general period of time. With respect to both groups, Respondent has regularly negotiated with Complainant Union, directly, for so-called "single-employer" contracts; Respondent belongs to no multiple-employer bargaining group, nor has it ever designated any trade association to bargain on its behalf. c. Recent collective-bargaining history During negotiations which began late in calendar year 1964, Complainant Union initially requested Respondent's concurrence with a proposal that toolhouse drivers would be employed subject to terms and conditions of work which were then set forth within a newly signed National Master Freight Agreement and Western States area over- the-road supplement negotiated, for a 3-year term, by Complainant Union's parent organization and various trucking industry representatives. However, Robert Bar- rett, Respondent's Western Division personnel manager, reminded Business Representative Black, Complainant Union's chief spokesman, that Respondent held no membership with a trade association bound by these designated contracts. He declared that: ... there was much in the [National Master Freight Agreement] that was not applicable to [Respondent's] operations, and that [Respondent] wanted to negotiate [its own] agreement covering these operations. .. . Following a series of meetings, with the last held in June 1965, Respondent and Complainant Union finally reached a consensus-so I find-whereby Respondent agreed to "observe" all the terms and conditions set forth within the Teamsters Union 1964-67 National Master Freight Agree- ment and Western States area over-the-road supplement, save for certain specified provisions. The precise method 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by which Respondent manifested its commitment to observe the terms and conditions of these contracts has not been specified for the present record. The provisions consensually designated "not applicable" and "not a part of this agreement" between the parties -together with certain provisions negotiated in lieu thereof-were set forth within a so-called "rider" which Respondent and Complainant Union's negotiators signed on June 28, 1965; no other document, concerned with toolhouse drivers, was signed by the parties. Specifically, the present record warrants a determination-which I make-that Respondent's representatives never signed any copy of the National Master Freight Agreement; nor did they sign that contract's Western States area over-the-road supplement. The rider negotiated and signed by the parties provided that eight designated "noneconomic" provisions within the National Master Freight Agreement, plus the "Grievance Machinery and Union Liability" provision of the Western States area over-the-road supplement, would not be considered part of the contract between the parties; with respect to four of these deleted provisions further substitute "conditions" were negotiated. These contractual commitments-so Barrett testified-produced a situation in which the so-called "economic" terms which would govern Respondent's employment of toolhouse drivers, for 3 years, were identical with those which Respondent and Complainant Union had previously negotiated for the firm's warehouse drivers. During 1967, the contract negotiations with respect to Respondent's toolhouse drivers were, again, postponed pending the successful completion of negotiations which were being concurrently conducted with respect to the firm's warehouse drivers These negotiations were, finally, concluded following an October 1967 strike, which involved Respondent's warehouse drivers solely. With respect to relevant developments, thereafter, Personnel Manager Barrett testified, without contradiction, that: Several days after the warehouse strike had been settled and a warehouse agreement was reached, Jack Black and I met and agreed on a settlement for the toolhouse employees. This settlement was to renew the rider we had in effect, the 1965 rider and to apply the economic improvements the warehouse drivers had been given. We entered into a supplemental agreement to that effect. The testimony proffered by Respondent's personnel manager, which I credit in this connection, warrants a determination that the so-called "economic" terms thus negotiated for Respondent's toolhouse drivers, covering their 1967-70 contract term, did match, generally, those which had previously been negotiated for the firm's warehouse drivers. The document which the parties signed, however, did not set forth their consensus precisely in these terms. That document-which bore a November 22, 1967, date-read as follows. In respect to the trucking operations of the Company's Santa Clara Erection Toolhouse, the parties herewith agree to renew the agreement between the parties dated June 28, 1965, entitled "Rider to National Master Freight Agreement and Western States Over-the-Road Supplemental Agreement." However, the parties shall observe the economic conditions of the "National Master Freight Agreement and the Western States Over-the-Road Supplemental Agreement," dated April 1, 1967. The so-called "economic improvements" negotiated for Respondent's warehouse and toolhouse drivers-during these various 1967 discussions-were identical , save in one respect. Respondent's warehouse drivers were privileged to apply those "cost-of-living improvements" which might accrue during their contract's 1967-70 term, completely or partially, to welfare improvements, while the comparable "cost-of-living improvements" for Respondent's toolhouse drivers were to be paid in direct wages, solely. The record warrants a determination-which I make- that these two 1967 contractual commitments, which covered warehouse and toolhouse drivers separately, had simultaneous March 31, 1970, expiration dates. However, no bargaining sessions-looking toward the negotiation of successor contracts-were scheduled or held before their designated termination date. Respondent and Complain- ant Union met, for their first 1970 bargaining session, April 29 at Respondent's Santa Clara facility. Negotiations, looking toward a new contract for Respondent's ware- house drivers, then commenced. These negotiations, ultimately, led to 8(b)(3) charges filed by Respondent herein, which resulted in formal Board proceedings. This Board found-despite a contrary contention by Complain- ant Union herein-that Respondent and Complainant Union had reached a June 30, 1970, contractual consensus, with respect to the firm's warehouse drivers, which union representatives had, thereafter, refused to embody within a signed document. Freight, Construction, General Drivers, Warehousemen and Helpers Union, Local No. 287, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Pittsburgh-Des Moines Steel Compa- ny), 193 NLRB No. 160. The present record reveals, however, that-concurrently with these warehouse driver negotiations-discussions , looking toward a parallel con- tract for Respondent's toolhouse drivers, were being conducted. We are concerned herein with the substance and tenor of these latter discussions. 2. The negotiations When the parties met on April 29 to begin their contract negotiations, Robert Barrett. Respondent's Western Divi- sion personnel manager, was not present. Respondent was represented, solely, by Western Warehouse Division Manager Dickey and Santa Clara District Manager Lewis. Jack Black, Complainant Union's business representative, together with Jack Herrmann, then a Local 287 member and secretary-treasurer of Complainant Union's federal credit union, represented that organization. During their session, the discussion-so this Board's previous decision shows-was focused upon Complainant Union's various contract proposals for warehouse drivers. With regard to Respondent's toolhouse personnel, Black's testimony herein-which Herrmann generally corroborat- ed-was succinct. That testimony reads as follows: We opened the discussions with regard to the over-the- road agreement and I stated-I asked the company if they would be willing to follow what came out of the PITTSBURGH-DES MOINES STEEL CO. 883 National Master Freight and Over-The-Road settle- ment as we had done in the past and the union would renew the rider that we had in existence with the company and Mr. Dickey replied that this was all right with him with one proviso, that there was no work stoppage and we accepted that . Then we went into negotiations on the warehouse. Black declared, further, that no discussions whatever were then held concerning a proposed contract termination date for toolhouse drivers, or possible changes in their health and welfare benefits, pension plan, holidays, or vacation rights. The discussion with respect to toolhouse drivers-so Black recalled-lasted no more than 5 minutes. However, Western Warehouse Division Manager Dick- ey, when questioned with regard to this April 29 meeting, testified categorically-with District Manager Lewis' corroboration-that toolhouse drivers were not men- tioned ; that no remarks were exchanged regarding a toolhouse contract; and that there was no discussion whatsoever regarding a so-called "over-the-road" agree- ment. Confronted with this direct testimonial conflict, I conclude that I need not resolve it, categorically, by accepting one or the other version . I am satisfied, rather, that-whether Business Representative Black did, or did not, summarize Complainant Union's position regarding a contractual settlement for Respondent's toolhouse drivers -no meaningful discussion took place with regard to their situation . Respondent's representatives present during this April 29 session-Dickey and Lewis-held no negotiating authority with respect to their firm's toolhouse drivers; they were concerned, solely, with the commencement of negotiations looking toward a warehouse driver contract. Thus-even assuming, arguendo, that Black may have, en passant, summarized Complainant Union's proposal re- garding a prospective toolhouse driver contract-this trier of fact is convinced that Division Manager Dickey could not have proffered a binding reply defining his firm's position with respect thereto. Since neither Dickey nor Lewis were directly concerned with Respondent's tool- house driver negotiations, the likelihood that they would have been mindful of Black's possibly proffered statement, regarding a prospective "over-the-road" settlement, seems remote. Their lack of direct concern, therefore, may explain their present failure to recall that such a subject was mentioned . Further, Complainant Union's representa- tive-during prior contractual negotiations concerned with toolhouse drivers-had, concededly, dealt with Respon- dent's personnel manager solely. Thus, he must have known that whatever brief statement he may have made, regarding toolhouse drivers, was not directed to negotiators authorized to signify Respondent's consent; Black could hardly have expected that his statement would be consid- ered a formal contract proposal. And Division Manager Dickey's reply-assuming, arguendo, that it was made -could hardly be considered a meaningful "acceptance" definitively binding upon Respondent herein. On May 27, when the parties met for their second bargaining session, Personnel Manager Barrett was pres- ent, together with Dickey and Respondent's district manager. Business Representative Black was, however, Complainant Union's sole negotiator. The Union's con- tractual proposals, with respect to warehouse drivers, were reviewed and discussed . Following that discussion-so Barrett testified-the Complainant Union's business repre- sentative was requested to state his demands for Respon- dent's toolhouse drivers. Regarding Black's reply, Barrett's testimony shows, merely, that: He said they wanted the same economic improvements for the toolhouse drivers as for the warehouse drivers and that we would renew the 1967, 1965 supplement[s ] and rider[s ]. Respondent's personnel manager-so he recalled-replied merely that he may have said a contractual consensus would be "possible .. . probable" with such terms. When queried further, with regard to their conversation, Barrett testified, categorically, that Complainant Union's business representative had merely requested "economic improve- ments" matching those which were being negotiated for Respondent's warehouse drivers, but that no "national contract" had been mentioned in that connection. Summoned in rebuttal , Business Representative Black proffered his somewhat divergent recollection. He categori- cally denied saying, in haec verba, that Complainant Union would agree to apply the "economic terms" set forth, within a warehouse contract, to Respondent's toolhouse drivers. His testimony, generally, with regard to Complain- ant Union's stated position, reads as follows: Q. [Mr. Rendall] What did you say with regard to the toolhouse employees? A. That the toolhouse employees would follow whatever came out of the National Master Freight Agreement and the OTR [over -the-road supplement] I remember telling him that we would renew the rider, but that we were to follow whatever came out of the National Master and the OTR for the line drivers with the renewal of the rider. TRIAL EXAMINER: How did you put it exactly? I take it that is a statement of your position , but how did you put it to Mr. Barrett at the time? THE WITNESS: I don't recall, your honor. Our own negotiations, all our discussions, were involvingjust the warehouse and it was past practice we had always followed the monetary and contractual language of the OTR and the National Master with the exception of the rider. Counsel stipulated , thereafter, that Respondent's personnel manager-should he be summoned in surrebuttal-would deny Black's testimony that he (Barrett) was told, specifi- cally, that their toolhouse-driver contract would have to be "in accordance with" the National Master Freight Agree- ment and relevant OTR supplement. Despite his declaration, previously noted, that Com- plainant Union's representative-during their May 27 bargaining session-did not mention the National Master Freight Agreement, or related supplementary contracts, the present record reflects Barrett's several testimonial conces- sions: (1) That he had previously been reliably informed, some time during April 1970, that "national negotiations" between Teamsters union representatives and trucking industry spokesmen , looking toward such contracts, were being conducted; (2) that, by May 27, he knew-by virtue 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of specific information received from a number of different sources-that a new "national settlement" had been reached; (3) that he knew what "improvements" had been therein negotiated; and (4) that, when Complainant Union's business representative-according to Barrett's recollection-demanded the "same economic package" for both toolhouse and warehouse drivers, he (Barrett) had "reason to believe" that these various economic terms were those embodied within the newly negotiated national settlement. For a general chronology of these national negotiations, plus some indication regarding their sub- stance, see Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (California Trucking Association, Inc.), 194 NLRB No. 106, together with this Board's decision, previously noted herein, dealing with the Respondent's warehouse-driver contract negotia- tions With this testimony in mind, I conclude that Complainant Union's May 27 so-called "economic" demands, proffered on behalf of Respondent's toolhouse drivers, matched those which had been negotiated and ratified before that date nationally. Further, I am satisfied that they were so construed by Respondent's personnel manager. On Monday, June 22, while concluding a telephone conversation during which consensus had been reached with regard to their warehouse-drivers contract, Respon- dent's personnel manager-so he testified-queried Busi- ness Representative Black once more regarding a prospec- tive toolhouse agreement According to Barrett, Black merely restated his previously declared position that, "We will apply the same economic improvements and renew the riders." The personnel manager testified further that Complainant Union's business representative then de- clared that he "guessed" the parties had reached agree- ment, with respect to both driver groups, and that he would meet with Respondent's drivers, for the purpose of procuring their ratification. Save for his general testimony, previously noted, that he never mentioned the warehouse contract's "economic improvements" in so many words, when discussing a toolhouse-drivers agreement, Black has proffered no specific denial calculated to counter Barrett's testimony with regard to their June 22 conversation. During cross-examination, however, Barrett conceded he had merely "assumed" that Business Representative Black was referring to both driver groups, when he thus acknowledged their contractual consensus; Respondent's personnel manager declared, however, that he considered the correctness of that "assumption" confirmed by subsequent developments. On Friday, June 26, Black reported-so Barrett testi- fied-that he had previously "met with the men" and that the parties had "an" agreement. Barrett conceded, howev- er, that Black's purported ratification report had not been specific, Complainant Union's spokesman did not say whether he had met with Respondent's warehouse or toolhouse driver groups jointly or separately, nor did he report whether their contractual consent had been mani- fested through a joint vote, or separate votes. While a witness, Respondent's personnel manager, suggested, merely, that he was given no reason to believe a contractual consensus had not been reached with respect to both contracts. On June 30, the Union's business representative present- ed Barrett with a typewritten draft which set forth the contractual language changes they had negotiated for a warehouse drivers contract, and which Respondent's warehouse drivers had presumably ratified. The negotia- tors agreed that Black's prepared document-save with respect to one minor provision which was promptly changed-correctly set forth those changes which would be made within their prospective warehouse agreement. When Barrett reported-during their discussion-that his office was temporarily limited with respect to clerical help, Black volunteered to have the Union's staff prepare the new warehouse drivers contract for signature; he declared that he believed he could deliver the final document within a week or 10 days. My factual determinations thus far, with regard to this June 30 discussion, derive from those which this Board specifically "adopted" when it confirmed my Trial Examiner's Decision in the previously litigated case dealing, specifically, with the parties' warehouse-driver negotiations. Respondent's personnel manager, however, suggests-within his present testimony-that Business Representative Black's remarks conveyed, in haec verba or sub silentio, that various commitments were sought and/or given with respect to both warehouse and toolhouse drivers. Barrett's testimony, in this respect, must now be considered. While a witness, herein, Respondent's person- nel manager conceded that Business Representative Black did not-during their June 30 session-produce or proffer any document concerning Respondent's toolhouse drivers. He testified, however, that their status was "covered" verbally; specifically, he recalled that Complainant Un- ion's business representative had-when queried-repeat- ed his previously declared readiness to "renew the rider" regarding toolhouse personnel. Barrett's testimony, about the discussion which followed in regard to necessary document preparation, reads as follows. As a matter of fact, the rider we have in evidence, the 1965 rider and the 1967 supplement, were actually typed by myself and I undoubtedly would have done so on this particular occasion except Jack volunteered to prepare the documents . . His office was going to do the whole works, which was a very minor thing obviously for the toolhouse agreement, but quite an elaborate set of typing, some 40 pages or more, for the warehouse document. TRIAL EXAMINER: Was the subject of the actual preparation of the rider the subject of a conversation, the actual physical job of preparing it for signature? THE WITNESS: Other than it was implied in our June 30 conversation that he was going to prepare the rider as well as the full agreement for the warehouse, no. According to Barrett, Black then asked when Respondent could get the negotiated wage increase, plus other improvements, effectuated. Having so testified, Respon- dent's personnel manager was asked, by Respondent's counsel, whether this request had been made "for both the warehouse and toolhouse" drivers. He responded affirma- tively. Though I sustained General Counsel's protest with respect to this last question's leading form, Barrett's final PITTSBURGH-DES MOINES STEEL CO 885 response, when the question was rephrased, reflected no change in his testimony's tenor. Black was told that the agreed-upon raises could be effectuated immediately. Later that day, by letter, Respon- dent's personnel manager did direct his firm's payroll accountants to make wage improvements effective for both the Santa Clara warehouse and toolhouse driver groups. With respect to both groups, new wage rates, calculated to reflect a negotiated raise effective July 1, were to be computed for time worked beginning Monday, July 6, retroactive raises-which the parties had negotiated with an April 1 effective date-were to be withheld pending Respondent's receipt of signed agreements. Respondent took no June 30 action, however, regarding the negotiated changes which would affect its fringe benefit contributions for pensions or health and welfare. Summoned in rebuttal, Business Representative Black proffered no contradictory testimony-with regard to these June 30 developments-save in one respect. He did not recall anything said regarding "the actual physical prepara- tion of the [toolhouse drivers] rider document" for necessary signatures. Since Barrett's testimony, previously noted, reflects his recollection, finally, that Black's willing- ness to have Complainant Union's staff prepare the toolhouse-drivers rider was merely "implied" during their June 30 conversation, I find-consistent with Black's recital-that no such proffer was explicitly volunteered. 3. Subsequent developments During the 2-month period which followed, a serious disagreement developed between Barrett and Complainant Union's representative, regarding the precise terms of their contractual consensus, with particular reference to Re- spondent's Santa Clara warehouse drivers. Several tele- phone conversations and conferences merely confirmed their different positions On September 2, 1970, the Company filed an 8(b)(3) charge with this Board's Regional Office; the Union's refusal to sign a prepared contract draft which correctly set forth their June 30 collective-bargaining consensus, with respect to warehouse drivers, was challenged. With respect to this charge, General Counsel's complaint subsequently issued on December 16, 1970. The circumstances which had generat- ed the company charge, and General Counsel's complaint, need not be recapitulated now. They are detailed within the Board Decision and Order wherein Union representa- tives were directed to sign a contract document, spelling out terms and conditions of employment for Respondent's Santa Clara warehouse drivers, consistent with the June 30, 1970, contractual consensus which Personnel Manager Barrett and Business Representative Black had reached Freight, Construction, General Drivers, Warehousemen and Helpers Union, Local No. 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Ameri- ca, 193 NLRB No. 160. For present purposes we need note, merely, that various developments-both national and local-which had concededly generated the cited case provide a relevant background herein, they are directly related, likewise, to this proceeding's genesis. The present record warrants a determination, which I make, that-while Barrett and Black were discovering and pursuing their disagreement with respect to Respondent's warehouse drivers-no toolhouse-driver contract docu- ments were being prepared or discussed. Though, presuma- bly, nothing more than a revised single-paragraph "rider" document would have been required; Black submitted none. So far as the record shows, Barrett never requested a revised rider's submission; nor did he prepare or proffer such a document-consistently with his past practice-in Respondent's behalf. 4. The toolhouse-driver dispute Sometime in January 1971, Complainant Union's busi- ness representative-so he testified-received a complaint that Respondent had not granted its Santa Clara County toolhouse drivers a wage increase which the renegotiated wage provisions of the National Master Freight Agree- ment, then in force, required. Black, according to his testimony, telephoned Barrett to question Respondent's reported failure to grant the designated raise. Respondent's personnel director, however, claimed that no raise for toolhouse drivers was then due or payable, consistent with their prior June 30 contractual consensus The present record-together with records made in both of the previously decided Board cases noted herein-warrants a determination, which I make, that the first "national settlement" negotiated by Complainant Union's parent organization-which had been ratified through a May 1970 national referendum, subject to possible reopening for further negotiations under certain designated circumstan- ces-had provided four periodic wage increases, pro- grammed to total $1.10 per hour, within a proposed 3-year contract term . Further, higher health and welfare and pension plan payments-totaling $2 per week, respectively, over the designated contract term-had been negotiated With respect to wage increases, particularly this original national settlement had provided for a 35-cent retroactive raise, effective April 1, 1970, plus a 15-cent raise payable July 1, 1970; the next raise, pursuant to this settlement, was to be due and payable after July 1, 1971, with a final wage increment payable 1 year later. According to Black, Respondent's personnel manager was contending-during their January 1971 telephone conversation-that this nationally negotiated wage increase pattern had been specifically adopted for Respondent's Santa Clara ware- house drivers, pursuant to their June 30, 1970, contractual consensus previously noted; with reference to Black's newly proffered complaint-so the latter's testimony shows-Barrett was contending further that Respondent considered their warehouse-driver settlement likewise applicable to Santa Clara toolhouse drivers Business Representative Black contended, however, that Respondent's wage increase commitment-with specific reference to Santa Clara toolhouse drivers-derived from the revised National Master Freight Agreement, renegoti- ated, ratified, and finally signed during early July 1970. The revised wage settlement provided for therein-so the record shows-called for seven periodic raises, totaling $1.85 per hour within a 39-month contract term. The raise increments set thereunder for April 1 and July 1, 1970, had matched those negotiated as part of the previously agreed- upon $1.10 package, the renegotiated contract, however, 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provided for a further 40-cent-per-hour raise effective January 1, 1971 This was the raise which-so Black contended-the Santa Clara toolhouse drivers should have been granted. Following Barrett's telephone rejection of Complainant Union's claim, Black dispatched a February 2 letter to Respondent's personnel director. The letter, sent by certified mail, was received February 5; in relevant part, it read as follows: Enclosed you will find copies of the newly negotiat- ed National Master Freight Agreement and the Western States Area Over-the-Road Supplemental Agreement. As you know, in the past, your line [toolhouse] drivers have been covered under these agreements with Riders replacing [certain designated provisions] of the National Master Freight Agreement and . . Western States Area Over-the-Road Supplemental Agreement. We are willing to renew these Riders as we have done in the past and make them part of the terms and conditions of the enclosed agreements. The documents forwarded, so Black testified, were the nationally renegotiated 1970-73 contracts designated, within his letter, by name. According to Black, Respon- dent's personnel director telephoned him shortly following his receipt of Complainant Union's letter ; with respect thereto, Barrett declared, by way of reply, that: You know our position. We feel that we have [a] $1.10 contract with the toolhouse drivers, the same as we have for the warehouse drivers. Of course we cannot recognize or sign these documents you sent us. With matters thus stalemated-so Complainant Union's business representative declared-their conversation termi- nated. This testimony by Complainant Union's business repre- sentative raises a credibility question . While a witness herein, Personnel Manager Barrett denied receiving any January 1971 telephone call from Black with regard to Respondent's purported failure to grant a contractually defined pay raise for toolhouse drivers. Further, Barrett denied making a February 1971 telephone call to Com- plainant Union's business representative, replying to his February 2 letter . However, with due regard for the record, considered in totality, I find Barrett's denials in this connection less than persuasive . Black's testimony regard- ing their purported January 1971 conversation-within my view-reflects a reasonable reaction on his part , following his receipt of complaints that a wage increase , presumably due, had not been granted; further, his testimony with respect to Barrett's rejoinder fairly states Respondent's position . I find-consistent with Black's testimony-that a January telephone conversation took place. Finally, I consider it hardly likely that Respondent's manager would have withheld a response when confronted with Complain- ant Union's February 2 letter sent by certified mail. Black's testimony that Respondent's personnel manager-during their February telephone conversation-rejected Com- plainant Union's proffered contracts, therefore, merits credence. Meanwhile, Respondent had received a letter, dated January 12, 1971, from the Western Teamsters Welfare Trust; the firm was notified that required monthly trust fund contributions for Respondent's toolhouse drivers had been "increased," from $46 76 to $51.09 effective January 1971, based upon their December 1970 employment records. Previously, Respondent had received a January 1971 statement which had shown $46.76 due for "health and welfare" contributions covering four named toolhouse drivers. The Welfare Trust Fund's February statement, however, showed $51.09 due, per driver, plus a so-called retroactive sum due, based on Respondent's January 1971 records, calculated to cover the $4.33 contribution rate increase. On February 10, 1971, Respondent notified the Western Teamsters Welfare Trust's accountant that Respondent's then current agreement with Complainant Union herein -covering toolhouse drivers-provided that the designat- ed $4.33 higher contribution rate would become effective April 1, 1972. Consistent with this position , Respondent unilaterally struck the higher figures on the Welfare Trust Fund's February 1971 statement , replacing them with the prior $46.76 monthly figures. Presumably, therefore, Respondent continued to make required monthly contrib- utions at this lower stated rate . The record, however, warrants a determination-which I make-that Respon- dent continued to receive statements showing the higher rate. These continued-so I find-until October 1971; the Western Teamsters Welfare Trust October statement, covering Respondent's September toolhouse driver payroll, listed the sums due using the prior $46.76 rate. Concurrently, with the developments narrated, Respon- dent had likewise been notified , within a letter received February 2, 1971, from the Western Conference of Teamsters Pension Trust , that the firm's pension trust fund contribution rate was being increased from $11 to $12 weekly, per toolhouse driver, effective January 1, 1971. Within two replies, dated February 5 and 10, 1971, respectively, Respondent notified the Pension Trust's supervisor that the firm 's agreement with Complainant Union provided for the stated increase effective April 1, 1972. Thereafter, consistent with Respondent's position, the Pension Trust statement submitted for 1971's first quarter was, likewise, revised-unilaterally-by company personnel, to show continued contributions due, for toolhouse drivers, limited to $11 weekly per driver Subsequently , so the record shows, the Pension Trust's statement for 1971's third quarter was revised downward, listing contributions computed at the prior $ 11 weekly rate. Meanwhile-on February 17, specifically-the formal hearing on General Counsel 's 8(b)(3) complaint , previously noted, was held. The Trial Examiner's Decision therein -finding that a contractual consensus covering Respon- dent's warehouse drivers had been reached June 30, 1970, which Union representatives had, thereafter, improperly refused to sign-issued June 17, 1971. Sometime in July, shortly thereafter, Black, together with another business representative, met with Personnel Man- ager Barrett . The parties , however, maintained their respective positions . Black's testimony with respect to their conference , which Respondent's personnel manager does not dispute, reads as follows: At that meeting, I stated to the company that we were PITTSBURGH-DES MOINES STEEL CO. 887 there to clear up the issue of the over-the-road drivers and we would like to have the new contract signed the company had agreed to. Mr Barrett's position was that ["] We feel we already have an agreement at the $1.10 rate of pay . . . On October 7, 1971, Barrett and Complainant Union's business representatives met once more. Each negotiator, however, merely restated his position; their session, again, terminated in stalemate. 5. Board proceedings On November 1, 1971, this Board's Decision and Order, previously noted-concerned with the parties' concurrent 1970 warehouse-driver contract negotiations-was pub- lished; therein, the Board confirmed its Trial Examiner's decision that Section 8(b)(3) of the statute had been violated when the Union refused to sign a draft contract which correctly reflected the parties' June 30, 1970, consensus regarding the designated driver group. Shortly thereafter, on December 29, 1971, Complainant Union's charge, herein, was filed. With respect thereto, General Counsel's complaint issued March 29, 1972. The nature of the continuing relationship between Respondent and Complainant Union, following the filing of Complain- ant Union's 8(a)(5) charge-so far as their relationship may "illuminate" matters currently in controversy-must now be considered. 6. The Winton grievance On January 31, 1972, Business Representative Black filed a formal grievance with Respondent, on behalf of Mike Winton, one of Respondent's toolhouse drivers, who-so Complainant Union contended-had been improperly deprived of work. Respondent was notified that the grievance was being filed pursuant to the relevant provision of the parties' rider agreement dealing with conciliation. Specifically, Complainant Union contended that Re- spondent's treatment of Winton compassed "violations" with respect to certain designated provisions within: (1) the National Master Freight Agreement; (2) the Western States area over-the-road supplemental Agreement; and (3) the Rider Agreement previously noted. Counsel have stipulated, herein, that-within Complainant Union's January 31 grievance letter-the listed contractual provi- sions, with respect to which Business Representative Black claimed violations, were designated, both numerically and by title, consistently with the format found within the previously noted 1964-1967 National Master Freight Agreement and Western States Over-the-Road Supplemen- tal Agreement. Counsel have stipulated, further, that these particular provisions are differently numbered within the comparable 1970 contract documents currently in force Pursuant to their consensually defined grievance proce- dure, Winton's grievance was considered and decided some 6 weeks before the June 21, 1972, hearing before me, herein. He had previously been restored to duty status; the question of Respondent's monetary liability for his supposedly, erroneous termination, however, had not yet been determined. With respect thereto, Black's testimony herein-which Respondent's personnel manager, while a witness, did not significantly controvert-reads as follows: We followed the steps of the grievance procedure, that is, the rider . . . to the Western States Area OTR Agreement [which] deletes the OTR grievance proce- dure and supplants it with the rider we have had in existence since 1964 . . . . The committee members deadlocked the case and recommended that we follow the next step of the grievance procedure, which was, then, to use the services of the state conciliation office .... We met in their office . . . and both sides presented their case and we got a two-way decision s * s * s When we met with the company on it, all the evidence presented by the union and rebutted by the company was done under the OTR agreement. When we first sat down, I made it very clear that rather than go into a long dissertation and create confusion as to what we were hearing the grievance under, whether it would be, as Mr. Barrett's stated position was [,] the 1964-1967 agreement [,] or the Teamsters' position [,] the 1970-1973 agreement, that the union would agree to hear the case under the 1964-1967, but were not saying we were agreeable . . . that that agreement in its entirety was applicable at that time. We were not waiving our right of saying we still believed the 1970-1973 agreement was applicable. First, the basic language of discharges . . . and remedy of money settlements was basically the same between the 1964 and the 1970. We proceeded on that basis and then [,] when we had the meeting in [the conciliator's] office, I took the same position that we had a problem as to what contract was applicable, that we did not have a 1970-71 or '73 agreement signed with the company, but the union was willing to process a grievance under the 1964-67 agreement because all the language used to support my case, 90 percent of it is still in the 1970-1973 agreement. The thing is . . . the language for my . . . position and language utilized by Mr. Barrett [in] his defense all came out of the NMF Agreement and Western Area OTR with the one proviso we did not use the grievance procedure under the OTR but used the grievance procedure set up in the rider as of 1964. When this grievance was settled, Respondent presented Winton with a backpay check, covering a February-March 1972 period. The present record warrants a determination, which I make, that Respondent's then current drivers' pay scale-bottomed upon the so-called original "$1.10" package settlement, rather than the subsequently negotiat- ed "$1.85" settlement-was used to compute Winton's backpay entitlement. Personnel Manager Barrett testified herein that this had been "agreed to" by the parties. Summoned in rebuttal, however, Barrett testified that -with regard to the particular rate of pay used to compute Winton's backpay settlement-nothing had been said. He declared that Winton had then been "out of work" some 6 months; that no question had been raised regarding the rate which Respondent would use in computing his 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD backpay check; and that Complainant Union merely wanted to get Winton's case off the books. With due regard for the record, considered in totality, I consider it rather less than likely that Complainant Union's business representative-who had previously charged Respondent herein with an 8(a)(5) violation, with respect to which General Counsel's Complaint had been issued less than 2 months previously-would have conceded, specifi- cally or by silence, that the renegotiated 1970-73 national settlement, with its redefined $1.85 wage increase package, had no current application to Respondent's Santa Clara toolhouse drivers. The business representative's testimony, previously noted, that Complainant Union's position regarding that question was then specifically reserved-to facilitate a prompt disposition with respect to Winton's grievance-merits credence I so find. C. Discussion and Conclusions 1. General principles With matters in this posture, we are confronted herein, primarily, with a question of contract law; following that question's resolution, Respondent's rights and responsibili- ties, pursuant to Federal labor law, will be readily determinable. Within General Counsel's brief, the contract law question presented for disposition has been set forth as follows: Did the parties at any time achieve a mutual assent as to what were the terms and conditions of employment to be embodied in a collective-bargaining agreement covering the unit of toolhouse drivers. Should a determination be found warranted that Respon- dent's and Complainant Union's negotiators did, indeed, reach a genuine contractual consensus during their June 30, 1970, collective-bargaining session , General Counsel's contention herein-that Respondent's management subse- quently flouted its statutory duty by refusing to bargain -would merit rejection. However, should a contrary determination be found warranted-that no genuine "meeting of the minds" took place, between Respondent's personnel manager and Complainant Union's business representative-the firm's conceded refusal to negotiate, with respect to Complainant Union's presently proffered contract proposals, would clearly merit statutory sanctions. Though technical rules of contract law do not necessarily control decisions in labor-management cases, normal "offer and acceptance" rules are generally considered determinative with respect to the existence of collective- bargaining contracts. F W. Means & Company v. N.L.R.B, 377 F.2d 683, 686 (C.A. 7); Cf. Lozano Enterprises v. N L R B, 327 F.2d 814, 817-820 (C A 9). When such rules are being applied, determinations with regard to whether agreements have really been reached-together with determinations, when required, regarding their substance -must derive from what the parties said and did during their negotiations. If words and conduct chargeable to one or any party have but one reasonable meaning, with respect to which the other party has noted concurrence, a contract will be deemed concluded on that basis. See Clark on Contracts, Fourth Edition, sec 3, p. 4. Therein, we note that. The law . . . judges of an agreement between two persons exclusively from those expressions of their intentions which are communicated between them. Thus, should a party's words and conduct, judged by a reasonable standard, manifest his intention to agree, his real or unexpressed intention will be considered immateri- al. 17 C J S., Contracts, sec. 32, p. 361; 12 Am. Juris., Contracts, sec. 19, p. 515. Conversely, however, when one party's words or conduct, judged by a reasonable standard, lack specificity , or mask a latent ambiguity, which a reference to relevant, mutually comprehended , extrinsic circumstances cannot resolve,manifestationsof concurrence -though proffered by the putative "other" party-can hardly be considered a determinative sign that contractual consensus was achieved . Compare Butchers' Union Local 120, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO (United Employers, Inc.), 154 NLRB 16, 24-29, in this connection. 2. Discussion Mindful of these considerations, I conclude, consistently with General Counsel's contention herein, that-with respect to Respondent's Santa Clara toolhouse drivers particularly-no "full and final" contractual consensus, bottomed upon mutual consent, was reached. Preliminarily, I note my concurrence with General Counsel's comment herein that Personnel Manager Barrett and Business Representative Black conducted their nego- tiations-with particular reference to Respondent's tool- house drivers-through a most "casual and informal" series of communications. Conceivably, they may have presumed-based upon their past practice-that a binding "agreement" covering toolhouse drivers could and would be reached, pro forma, following their negotiated ware- house-driver settlement. There can be no doubt, however, that-regardless of their presumptions no contractual consensus regarding toolhouse drivers could have been thus offhandedly generated. The special circumstances which attended their 1970 negotiations were patent. Both Barrett and Black, so the record shows, knew-throughout the period during which their negotiations were being conducted-that, with respect to both warehouse and toolhouse drivers, certain definitive "economic" terms, which they were tacitly committed to follow, might still be renegotiated nationally. Both must be charged with contemporaneous knowledge, therefore, that-so far as wages were concerned-those terms might ultimately prove higher than, or lower than, those compassed within the so-called "$1 10" package which Teamsters union representatives and various trucking industry spokesmen had previously negotiated. Negotiators functioning con- sciously within a fluid situation-charged with knowledge that their prospective contract's quintessential economic terms could not be considered, yet, definitely settled- should reasonably have known, consequentially, that their respective positions, with regard to monetary matters, would have to be formulated with care. With respect to Respondent's toolhouse drivers, however, this was not done. Within this Board's previous Decision, dealing with the parties' warehouse-driver negotiations, particular stress PITTSBURGH-DES MOINES STEEL CO. 889 was laid upon clear-cut record testimony and documentary proof that Barrett and Black had discussed their prospec- tive warehouse contract's monetary provisions in concrete "dollars-and-cents" terms This Board found that those provisions had, finally, been spelled out within a document which set forth the contractual changes both men had previously discussed Further, Respondent's personnel manager and Complainant Union's representative-so this Board's Decision shows-had reviewed that document, before their June 30 contractual consensus covering Santa Clara warehouse drivers was reached. With respect to Respondent's toolhouse drivers, howev- er, no comparably detailed negotiations took place Those which did take place-within my view-lacked specificity; they cannot be considered manifestations that any "meet- ing of the minds" resulted. Complainant Union's spokesman concededly suggested that the parties should "renew" their previously negotiated June 28, 1965, rider, whereby certain National Master Freight Agreement and Western States area over-the-road supplemental agreement provisions had been declared "not a part" of their 1964-67 contractual consensus, and certain substitute provisions had been agreed upon. It should be noted, however, that Black's rather "offhand" proffer, in this connection, failed to specify whether the contract documents thus tangentially designated-which the parties presumably would thereupon "adopt" tacitly, or possibly by reference, save for their several negotiated modifica- tions-were to be (a) the previously negotiated 1964-67 contracts, no longer in force nationally, which their June 28, 1965, rider had presumably been drafted to modify, or (b) the newly negotiated 1970-73 contracts, similarly designated, which had shortly before been ratified, subject to partial renegotiation, pursuant to a nationwide referen- dum This latent ambiguity in Black's bald "renew the rider" proposal can hardly be considered minor; divergent views held by the parties with regard to their rider's proper construction, in this respect, have recently generated controversy. The June 28, 1965, rider had not identified, by reference to their term, those national and/or regional contracts with respect to which modifications were being negotiated. Presumably, Respondent and Complainant Union had really "intended" several modifications of the designated 1964-67 contracts, which were then in force, their rider document, however, had not so stated. And when that rider document was subsequently renewed- through the November 22,1967, so-called "Supplementary Agreement" previously noted-the latter document, like- wise, contained no specification, in haec verba, that Respondent and Complainant Union were consensually committed to follow modified "noneconomic" terms and conditions of the nationally negotiated 1967-70 National Master Freight Agreement and Western States area over- the-road supplemental agreement, rather than their prede- cessor contracts. As noted, the November 22, 1967, supplementary agreement's lack of specificity, in this connection, has since become significant. The present record shows that, when Complainant Union's Winton grievance was being processed, Respondent's personnel manager contended that their November 22, 1967, supple- mentary agreement, renewing their previous rider, had effectively preserved-save for negotiated modifica- tions-the various noneconomic terms and conditions which had presumably governed the parties' relationship, with respect to toolhouse drivers, during their 1964-67 contract's term. This being so, the business representative's suggestion can hardly be considered a definite, clearly stated, contractual "offer" with respect to which Respondent's manifested "acceptance" would create a binding contract Cf. Shreveport Garment Manufacturers, 133 NLRB 117, 121. I find that it was not. Black's concurrent suggestion-with respect to their prospective toolhouse contract's so-called "economic" terms and conditions-contained, within my view, compa- rable latent ambiguities; these compel a conclusion that his purported proffer, with respect to monetary terms, was, likewise, deficient. On various occasions, between May 27 and June 30, 1970, Complainant Union's representative may have declared his desire to negotiate the same "economic improvements" for both warehouse and toolhouse drivers Previously, within this decision, I have noted Barrett's testimony that he [Black] so expressed himself, together with Black's denial. Upon due consideration, I conclude -now-that the business representative probably did, at one time or another during their several conversations, paraphrase his wage and fringe benefit demands with respect to Respondent's toolhouse drivers, describing them as coterminous with his organization's concurrent propos- als for warehouse drivers. The present record, however, fully warrants a determination-which I have previously made-that, when Complainant Union's business repre- sentative demanded the "same economic package" for both toolhouse and warehouse drivers, he was really proposing monetary terms synonymous with those com- passed within the so-called "national settlement" prior to that settlement's renegotiation And Respondent's person- nel manager, so the record shows, concededly had "reason to believe" that Black, regardless of the manner in which his request may have been phrased, really desired wage and fringe benefit terms, for toolhouse drivers, as well as their warehouse fellows, matching those which had already been negotiated and settled nationally. With due regard for the present record, however, I conclude and find further that Barrett and Black, so far as toolhouse drivers were concerned, shared a tacit under- standing that their contractual consensus, when reached, would be memorialized within a single-paragraph docu- ment similar to their "Supplementary Agreement" negoti- ated 3 years previously. More particularly, with respect to their consensus regarding monetary terms, I find that both Respondent's personnel manager and Complainant Un- ion's representative expected they would finally sign a document whereby their principals would be committed to "observe the economic conditions" set forth within some "National Master Freight Agreement and Western States over-the-road supplemental agreement" specifically desig- nated with a reference to their effective date. The record does warrant a determination, which I make, that-pre- sumably because of their mutual failure to communicate clearly-neither negotiator considered himself committed 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to prepare the required document. There can be no doubt, however, that they were looking toward their agreement's final integration within a single paragraph "supplementary agreement" comparable to their November 22, 1967, document; I so find. When their June 30, 1970, discussion took place, however, both men-so I have found-knew, or had reason to know, that the monetary terms set forth within the nationally negotiated 1970-73 contracts designated were still subject to renegotiation . Nevertheless , despite their knowledge that particular "economic conditions" specifically set forth within the named national and/or regional contracts-which they proposed to adopt, for the purpose of settling monetary terms covering toolhouse drivers, by reference merely-might finally prove to be higher than, or lower than, those which would be detailed within their proposed warehouse driver contract, neither sought a clarification . No change in their anticipated supplementary agreement's language, calculated to settle this crucial matter, was requested or proffered. With matters in this posture-so I find-no determination can be considered warranted that Barrett and Black reached a full and/or final contractual consensus regarding their prospective toolhouse contract's economic provisions. The Board , within its previous decision covering the parties' warehouse-driver negotiations , concluded that a specific "agreement" had therein been consciously reached, which provided for a so-called "$ 1.10" wage increment schedule, together with related fringe benefits. Respondent's personnel manager, so the present record suggests, may concurrently have believed, honestly, that Complainant Union was proposing similar "dollars-and- cents" terms for his firm's Santa Clara toolhouse drivers. Complainant Union's representative, contrariwise, may have believed, honestly, that Respondent herein-follow- ing the signing of their prospective "supplementary agreement" covering toolhouse drivers-would be bound by those "economic conditions " which renegotiated na- tional and/or regional contracts would contain, whatever they might finally prove to be. Their subjectively held beliefs, however, were never mutually propounded; if suggested, they were never clearly stated. Thus, any conclusion that, with matters in this posture, Barrett and Black had reached a conclusive "meeting of the minds" would be pure fiction. 3. Conclusion Since I have found that no collective -bargaining con- tract, with respect to toolhouse drivers, resulted from their June 30, 1970, discussion, I conclude that Respondent and Complainant Union remained, thereafter, statutorily bound to meet at reasonable times, on reasonable notice, and to "confer in good faith" with regard to bargainable matters, looking toward a contract's finalization. See Section 8(d) of the statute Further, I find that Complainant Union's representative -through his February 2, 1971, letter-properly sought a clearly stated contractual consensus. Personnel Manager Barrett, however, rejected this overture, since it necessarily would require reopened negotiations Complainant Union's contractual demands were, con- cededly, reiterated during two subsequent-July and October-conferences ; Respondent's personnel manager, however, specifically rejected both demands , contending that a viable contractual consensus , binding upon both parties, had previously been reached. Compare North Coast Counties District Council of Carpenters, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, et al. (Cotati Cabinet Shop, Inc.), 197 NLRB No. 149, in this connection . Respondent herein contends that, within the cited case, this Board was presented with a factually similar situation . However, I find Respondent's reliance upon the Board's Decision therein misplaced . The Board specifically found, within the cited case, that the parties had consciously reached a complete and separate collective-bargaining agreement, consisting of their own prior agreement with three specifically detailed changes . Herein, however, I have found-with particular reference to Respondent 's tool- house drivers-that Complainant Union's contractual suggestions, with due regard for the context within which Black proffered them, were so laced with ambiguity that Respondent's putative "acceptance" or "acquiescence" with respect thereto, cannot reasonably be found to have created a true contractual consensus . With matters in this posture, I conclude that Respondent presently remains statutorily bound to meet with Complainant Union, upon request, for collective-bargaining purposes ; that Complain- ant Union's representative has timely requested Respon- dent to meet and confer for such purposes ; and that Respondent's continued failure and refusal to consider Complainant Union's contract proposal cannot be defend- ed now on the ground that a collective-bargaining consensus was previously reached. Respondent has suggested that Complainant Union's course of conduct since June 30 , 1970, reflects its tacit concession that a viable contractual understanding was then reached. With respect to Respondent's toolhouse drivers, however, I have not been persuaded . When Barrett proceeded to make effective certain wage changes -promptly following their June 30 session-those changes, directed for both warehouse and toolhouse drivers, did match. In regard to Respondent's warehouse drivers, however, this Board has previously found that Barrett's directive was calculated to effectuate a clearly defined "agreement" consciously reached . With respect to Santa Clara toolhouse drivers, on the other hand , Barrett's course of conduct-so I have found herein-derived solely from his mere subjective "belief" or "presumption" that a requisite meeting of the minds, on terms acceptable to Respondent herein , had taken place . Since the wage scale increments which Respondent's management then granted did match those provided tentatively within the previously negotiated 1970-73 national settlement, Black's failure to question Barrett's course of conduct , or to note reserva- tions with respect thereto-so far as toolhouse drivers were concerned-cannot be considered a consciously reached concession that final "agreement" existed , consistent with Barrett's subjectively held belief. The record does show that-consistently with a recommendation which Com- plainant Union's representative made-various Teamster union trust funds have suspended their attempts to collect PITTSBURGH-DES MOINES STEEL CO 891 higher fund contributions from Respondent, bottomed upon their belief that the firm was committed to comply with the renegotiated 1970-73 settlement. I do not, however, consider Black's suggestion-that these funds should suspend their billings computed at higher rates -sufficient to constitute a waiver of Complainant Union's presently maintained contentions. When that suggestion was made, General Counsel's prior complaint-charging Complainant Union with an 8(b)(3) violation in connec- tion with the parties' warehouse driver negotiations-was pendente lite, and Complainant Union's business represent- ative knew that Respondent's personnel manager did not share his view regarding their supposed toolhouse-driver consensus. With due regard for these circumstances, I conclude-consistently with Black's present claim-that his suggestion, directed to the trust funds, merely reflected his desire to refrain from enlarging their conflict. In connection with Toolhouse Driver Winton's grievance, Complainant Union's position, with respect to matters now in controversy, was-so I have found-specifically re- served. Though Winton's backpay claim may have been settled pursuant to Respondent's currently maintained wage payment schedule, Complainant Union's conceded acquiescence with respect thereto-so I find-reflects no waiver. Further, Respondent has suggested, en passant, that General Counsel's complaint herein may be time-barred, since certain "operative" facts which clearly revealed Respondent's lack of willingness to resume their toolhouse driver negotiations, took place more than 6 months before Complainant Union's charge herein was filed. See Section 10(b) of the statute. This contention, however, must be rejected. Serv-All Company, Inc., 199 NLRB No. 159; Cf. N. L.R. B. v. Strong Roofing and Insulation Company, 386 F.2d 929, 932 (C.A. 9); McCready and Sons, Inc., 195 NLRB No. 18. Though Respondent's first refusal to consider Complainant Union's definitive contract proffers -set forth within Black's February 2, 1971, letter-did take place outside the statute's 10(b) penod, the present record fully warrants a determination, which I make, that Respondent's refusal to bargain was twice repeated, thereafter, well within the 6-month period which preceded Complainant Union's charge. These subsequent refus- als-which certainly cannot be considered time-barred -were unequivocal. With matters in this posture, and upon the entire record herein, I find that Respondent, by its refusal to resume or continue negotiations for a toolhouse-drivers contract, has transgressed Section 8(a)(5), and that such conduct derivatively contravenes Section 8(a)(1) of the statute. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's course of conduct set forth in section III, above-since it occurred in connection with Respondent's business operations described in General Counsel's com- plaint, and concededly described correctly therein-has had, and continues to have, a close, intimate, and substantial relation to trade, traffic, and commerce among the several States Absent correction, such conduct would tend to lead to labor disputes burdening and obstructing commerce, and the free flow of commerce. THE REMEDY Since I have found that Respondent did engage, and continues to engage, in certain unfair labor practices which affect commerce, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative action, including the posting of appropriate notices, designed to effectuate the policies of the Act, as amended CONCLUSIONS OF LAW In light of these findings of fact, and upon the entire record in this case, I make the following conclusions of law: 1. Respondent, Pittsburgh-Des Moines Steel Company, is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. 2. Freight, Construction, General Drivers, Warehouse- men and Helpers Union, Local No. 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits certain employees of Pittsburgh-Des Moines Steel Company to membership. 3 All toolhouse truckdrivers employed by Pittsburgh- Des Moines Steel Company at its Santa Clara facility, excluding all other employees, guards 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 material herein, Complainant Union has represented a majority of Respondent's employees within the bargaining unitjust described, by virtue of Section 9(a) of the Act, Complainant Union has been entitled to recognition as the exclusive representative of all employees within the said unit, for the purpose of collective bargaining with respect to their rates of pay, wages, hours of employment, and other terms and conditions of work. 5. By failing and refusing to bargain collectively since about October 7, 1971, with Complainant Union herein, regarding rates of pay, wages, hours of employment, and other terms, and conditions of employment for employees within the bargaining unit described above, Respondent has engaged in, and is engaging in, unfair labor practices affecting commerce, within the meaning of Section 8(a)(1) and (5), and Section 2(6) and (7) of the Act, as amended. Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, I hereby issue the following recommended: 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER1 Respondent, Pittsburgh-Des Moines Steel Company, its officers, agents, successors, and assigns , shall: 1. Cease and desist from refusing to bargain collective- ly in good faith with Freight, Construction, General Drivers, Warehousemen and Helpers Union, Local No. 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, on behalf of workers within the unit herein found appropriate for collective-bargaining purposes, or from engaging in any like or related conduct in derogation of its statutory duty to bargain. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act, as amended: (a) Upon request, bargain collectively in good faith with Freight, Construction, General Drivers, Warehousemen and Helpers Union, Local No. 287, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of Respondent's Santa Clara facility employees, within the unit found appropriate herein for collective-bargaining purposes, with respect to their rates of pay, wages, hours of employment, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its place of business in Santa Clara, California, copies of the notice attached to this report as an Appendix.2 Copies of the notice, to be furnished by the Regional Director for Region 20 as the Board's agent, shall be posted, immediately upon their receipt, after being duly signed by Respondent's representative. When posted, they shall remain posted, 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 these notices are not altered, defaced, or covered by any other material, (c) File with the Regional Director of 20, as the Board's agent, within 20 days from the date of service of this Decision, a written statement setting forth the manner and form in which it has complied with these recommenda- tions.3 i In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec 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 2 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " I In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing, during which all parties were given an opportunity to present evidence and argument, it has been determined that we violated the law by committing an unfair labor practice In order to remedy such conduct, we are being required to post this notice. We intend to comply with this requirement, and to abide by the following commitment: WE WILL NOT fail or refuse to bargain collectively in good faith with Freight, Construction, General Drivers, Warehousemen and Helpers Union, Local No. 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amenca, as the exclusive representative of our employees , within the appropriate bargaining unit described below, concern- ing their rates of pay, wages, hours of work, and other terms and conditions of employment. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees, with respect to their exercise of the right to bargain collectively through a representative chosen by them. WE WILL, upon request, bargain collectively in good faith with the Union as the exclusive collective-bargain- ing representative of all toolhouse truckdrivers em- ployed at our Santa Clara, California, facility, exclud- ing all other employees, guards, and supervisors as defined in the Act, as amended. PITTSBURGH-DES MOINES STEEL COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 13018 Federal Building, Box 36047, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 415-556-0335.