OCAW, Local 7-507

98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Oil, Chemical and Atomic Workers International Union and its Local 7-507 and Capital Packaging Company. Case 13-CB-4828 June 27, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On February 25, 1974, Administrative Law Judge Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and a supporting brief, and the Respondent Local 7-507 filed an an- swering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to'a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed. DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Administrative Law Judge: Upon a charge and an amended charge filed, respectively, on May 9 and 23, 1973, by Capitol Packaging Company, referred to herein as the Charging Party or the Company, the General Counsel, by the Acting Regional Director for Region 13 (Chicago, Illinois), issued a complaint on July 9 and an amendment to complaint on July 19, 1973. The complaint alleges in substance that Oil , Chemical and Atomic Workers International Union and its Local 7-507, referred to herein respectively as the Respondent International and the Re- spondent Local andjointly as the Respondent Unions,' the exclusive collective-bargaining representative of the Company's employees, after reaching full agreement with the Company on the terms of a new collectivg-bargaining contract, refused to execute the contract, and thereby en- 1 In the complaint as amended, they are collectively called the Respondent Union gaged in conduct violative of Section 8(b)(3) and 8 (d) of the Act. In their separate answers, duly filed , the Respondent Unions admit certain allegations of the complaint , but deny the allegations that they engaged in conduct violative of the Act. Pursuant to notice, a hearing was held before the Admin- istrative Law Judge at Chicago , Illinois, on August 28, 29, and 30, October 16 and 17, November 1 and 2, 1973. All parties appeared at the hearing and were afforded full op- portunity to be heard, to examine and cross-examine wit- nesses, and to introduce relevant evidence .2 Subsequent to the hearing, the General Counsel, the Charging Party, and the Respondent Local filed briefs on or about January 7, 1974, which have been duly considered.3 Upon the entire record in this case and from my observa- tion of the witnesses , I make the following: FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER Capitol Packaging Company is, and at all times material herein has been, a corporation duly organized under and existing by virtue of the laws of the State of Illinois, with a place of business located at Melrose Park, Illinois, where it is engaged in the manufacture of aerosol products. During the past calendar year the Company, in the course and conduct of its business, sold and delivered goods valued at more than $50,000 from its Illinois location directly to enter- prises located outside the State of Illinois. The complaint alleges, the Respondent Unions in their answers admit, and I find that the Company is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the Respondent Unions in their answers admit, and I find that Oil, Chemical and Atomic Workers International Union and its Local?-507 are labor 2 Sulley, one of the Company's attorneys, Schellentrager, an official of the Company's parent corporation, and others who participated in the collective- bargaining negotiations on behalf of the Company furnished to the General Counsel an unsigned consolidated statement, prepared under Sulley's super- vision, describing the negotiations in accord with their recollection, docu- ments, and notes This statement was referred to by the General Counsel at the hearing in examining witnesses Neither Sulley nor Schellentrager had furnished pretrial affidavits The General Counsel, albeit reluctantly , permit- ted counsel for the Respondent Local, at the close of Sulley's lengthy direct testimony, to examine this statement thoroughly, but thereafter refused to permit further examination or use of the statement by opposing counsel The General Counsel also refused, at the request of counsel for the Respondent Local, to place the statement in the file in order to make it available to the Administrative Law Judge and the Board Counsel for the Respondent Local and for the Respondent International moved at the hearing to dismiss the complaint on the ground that cross-examination of the principal witnesses for the General Counsel and the Charging Party was restricted by the lack of pretrial affidavits The General Counsel responded at the hearing that, while he is required to furnish affidavits to opposing counsel for use in cross-examination, there is no requirement that he take affidavits of witnesses or furnish to counsel documents that are not affidavits The motion to dismiss the complaint on this ground, denied at the hearing and renewed in the Respondent Local's brief, is, in all the relevant circumstances, hereby denied J A motion to correct transcript, filed by the Charging Party and unop- posed by the other parties, is hereby granted 212 NLRB No. 6 OCAW, LOCAL 7-507 99 organizations within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint alleges that the Respondent Unions, as the exclusive 'collective-bargaining representative of the Company's employees, are represented in negotiations with the Company by Hall, an International representative, and Taylor, president of the Respondent Local; that on March 22, 1973, after collective-bargaining negotiations, Hall and Taylor reached full agreement with the Company on the terms of a new collective-bargaining contract, but, since that date, have refused to sign such contract; and that the Respondent Unions, by such conduct, bargained in bad faith with the Company and thereby engaged in unfair labor practices within the meaning of Section 8(b)(3) and 8(d) of the Act. The Respondent Unions maintain that the Respondent International organized the employees of the Company and was certified by the Board as their representative, but, since 1963, has assigned this unit for representation purposes to the Respondent Local, which represents a number of other employee units in the area; for collective-bargaining pur- poses, each Union is a participant in the negotiations, acting jointly, with Hall in the present case representing the Inter- national and Taylor representing the Local; each Union as well as the Workmen's Committee 4 must concur in the final agreement reached; each Union executes the written agree- ments with the Company, and the Local, in accord with longstanding union policy, signing before the International does; Hall cannot bind the Local nor Taylor the Interna- tional to a collective-bargaining contract, and, therefore, while the International is willing to execute the agreement here in issue, it cannot compel the Local to do so; and the Local did not reach full agreement with the Company on the terms of a new contract and has refused to execute the contract that was reduced to writing by the Company, and submitted for signature in April, because it did not corres- pond to the agreement which the Local believed it reached with the Company, The issues, therefore, are whether an agreement was reached by the contracting parties, whether the contract which the Company reduced to writing is in accord with such agreement, and whether the refusal by the Respondent Unions to execute this contract is violative of the Act. B. The Bargaining Relationships The Company is a wholly owned subsidiary of Alberto- Culver. Masury Columbia, another subsidiary with a con- siderably smaller complement of employees than the Com- The 19,72 contract provided that. "The employees covered under the terms of this contract shall elect members to represent them in negotiations with the company management Those representatives shall be the group herein referred to as the Workmen's Committee The members of the com- mittee meeting with management . . . shall be limited to three (3) members at one time, except during contract negotiations, which will be attended by the full membership of the Workmen's Committee consisting of four (4) members." The unsigned contract here in issue raised this last number to five. party, was negotiating a new agreement about the same time as the Company. Some of the same company and union representatives were involved in both negotiations. The Company was represented in negotiations principally by Sulley, a member of the law firm representing the Company, who had previously advised the Company as general labor counsel but did not begin to negotiate on its behalf until February 9, 1973, after the negotiations here in issue began; by Schellentrager, vice president of industrial relations of Alberto-Culver; and also at times by Levinson and Kuklin- ski, personnel director and plant manager of the Company, respectively. The Respondent International was certified by the Board as the representative of the Company's employees in June 1963.5 The usual practice of the International, which was referred to by its counsel at the hearing as "a service organi- zation," is to turn over representation of employee units to new or established locals. Accordingly, it designated, as the representative of the unit here involved, the Respondent Local, which represents employees of a number of other employers in the area. International representatives are as- signed to certain areas in which they participate with local representatives in collective-bargaining negotiations. For some time Prorok was the International representative as- signed to negotiations with the Company, but he became ill after the negotiations here in issue began, and Hall was designated to fill in for Prorok. The Respondent Local was represented in negotiations with the Company by Taylor, president of the Local, who negotiates contracts with more than 30 employers in the area, and by the Workmen's Committee. Rose Kirk, chair- man of the Committee, had participated in negotiating pre- vious contracts with the Company. Negotiations with the Company were carried on by Hall and Taylor, each of whom at times served as spokesman in presenting the union positions, which were discussed in caucus with the Commit- tee .6 The written contracts were executed by the Interna- tional, the Local, with the entire Committee. The 1-year contract dated April 5, 1972, was executed "FOR THE EMPLOYER" by Atlas, president, and Hoff, vice president of industrial relations; and "FOR THE UNION" by Gor- don, Kirk, Nichols, and Wright, Committee members; by Taylor, president, and Fenn, secretary-treasurer of the Lo- cal; and by Prorok, International representative. C. The 1973 Negotiations The parties' last executed contract was for a 1-year period effective until January 31, 1973. Taylor on November 6, 1972, sent notices to the Company and the Mediation Ser- vice of a desire to renegotiate the contract. Negotiations began in December 19727 on the basis of a new 1-year 5 There are about 318 employees in the unit. New employees serve a 60-day probationary period. The number of probationary employees vanes and there is considerable turnover among them There were as many as 56 during the period of the 1973 negotiations but the average is about 40. 6 Hall testified that, in the event of a disagreement on the Committee, the ma7jority view was presented, and that he had no vote on such matters. By letter dated December 4, 1972, Taylor requested certain data for the forthcoming contract negotiations, including "The straight time weighted average hourly rate of the present wage schedule" and the "cents per hour Continued 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract, and were concerned only with noneconomic items until a session on February 20. Sulley was not present. Schellentrager, who was, suggested that the Respondent Unions present their wage proposal at that time. They re- quested an 8-percent-an-hour across-the-board increase and a 1-year agreement, which the parties discussed. Schel- lentrager testified there was also a discussion of the weight- ed average hourly rate that was initiated by the Respondent Unions, and that the company and union representatives differed as to what this rate was, the Unions claiming it was $2.79, the Company, as in its letter of February 9, that it was $2.77. At the next session on February 26, when both Sulley and Schellentrager were present, Schellentrager, as he testified, read from notes a proposal, for the first year of a 2-year contract, of a 5.5-percent across-the-board increase round- ed off to the nearest full cent for each wage grade and progression, weekly indemnity from $50 to $55 a week, with certain contract language changes; and, in the second year, 16 cents an hour across the board, weekly indemnity from $55 to $60 a week, and a contract term of February 1, 1973, to February I, 1975. Sulley on cross-examination referred to this proposal as including a 5.5-percent increase "Rounded off to the nearest cent to each step in the progression, each rate and grade, something like that." Asked to recall the exact words as best he could, Sulley testified: A. . . . the first year was 5-1/2 percent increase rounded off to the nearest cent across the board to each rate and grade or rate and progression grade, either one. I am not too sure. The second year: 16 cents flat across the board. Q. Did he use the words "across the board" in both proposals? A. I know he used it in the first one, but I believe he used the words "16 cents flat" in the second one. I am not too sure about the "across the board." I have it down in my notes, and he read it-across from the statement. I would defer to both of these. At a later point Sulley said he was not certain the language about rounding off to the nearest cent for each step was used. Taylor in his testimony agreed that the Company on Feb- ruary 26 proposed a 2-year contract with a percentage in- crease for each wage rate. After a caucus, Taylor rejected the Company's offer and asserted that the Unions did not want a contract for more than 1 year. Schellentrager repeat- ed the Company's reasons for the 2-year proposal but the Unions were not persuaded. The parties agreed to meet next at the Federal Mediation offices. The first meeting with Mazza, a mediator, was held on cost for each individual fringe benefit" The data was furnished by the Company in a letter dated February 9, 1973, which states , inner alia, that "The straight time weighted average hourly rate of the present wage scheduled is 2 77," and lists the cents-per-hour cost of vacation pay, holiday pay.jury duty pay, and funeral leave These letters were placed in evidence by the Charging Party Schellentrager testified that he was not sure of the meaning of some of the figures in the Company's reply March I. Mazza was informed of the negotiations to date. The issues now in dispute, according to Sulley, were raised only indirectly. Hall was absent or arrived very late, and in any event was not present when Taylor made a proposal which, according to testimony of Sulley and Schellentrager, was for a 1-year contract, and included a wage increase of 20 cents art hour, an improved vacation plan, and another holiday. Taylor claimed that this proposal "costed out" to 23.9 cents whereas the Company "costed out" this proposal at 24.5 cents. They also still disagreed on the weighted aver- age hourly rate in effect at the plant, Taylor again claiming it was $2.79 whereas the Company again calculated it as $2.77. The parties never resolved this difference. Sulley testified, on cross-examination, that, during both the morning and afternoon sessions of the all-day meeting on March 1, Taylor made reference to the "weighted aver- age hourly rate," and the parties discussed it. He testified further that: A. .. I didn't see the relationship at the 'time. I still don't. The way you calculate the cost of the fringes is using the weighted average hourly rate. Of course you use it. But you don't put it across the table. You use it in a dozen situations in the bargaining.. . . Q. The weighted average hourly rate figure- A. 'Yes. Q. --would be relevant if one was trying to calculate a 5.5 percent wage increase across the board when you wanted the same amount of money to be paid to each employee? A. Sure, it would. Q. Would the weighted average hourly rate be an important figure to know if you were going to calculate 5.5 percent on each individual salary for each individu- al employee? A. Not unless you are talking about figures, no. After several caucuses and restatements of position, as Sul- ley described the meeting, Taylor closed the discussion by stating the Company's offer was completely unacceptable. The parties agreed to meet again at the Federal Mediation office on March 3, a Saturday. Sulley testified that during the session on that date, which was attended by both Hall and Taylor, Hall asserted that the Unions were entitled to 6.2 percent under the Pay Board regulations, and Taylor demanded, as he had previously, a 24-cent increase , whereas Sulley stated during the discus- sion that the door was not closed on a I-year deal although he preferred a 2-year contract, with a flat-cents raise in I year and a percentage raise in the other, in order to give more to the skilled employees; that he was willing to switch the first- and second-year increases ; and, finally, that, if the parties could not get any closer than they were then, the Unions might as well strike, and any strike would last at least 2 weeks. Hall responded that if there was a strike, Mazza would not call another meeting for 2 weeks. After caucusing, Taylor declared that 24 cents was the minimum the Committee would recommend to the membership. Sul- ley refused to increase the company offer and said the Com- OCAW, LOCAL 7-507 101 mittee had bought itself a strike . The union representatives indicated that they would present the Company 's February 26 offer to the membership but would not recommend its approval. No arrangement was made for another bargain- ing session. The various proposals were presented to a membership meeting on Sunday, March 4, including the company offer of a 5 .5-percent increase . When questions were asked by the members as to how this would operate, they were told, by Taylor or Hall, that the company offer of 5.5 percent on each wage rate would result in increases ranging from 11 to 26 cents. Hall testified, regarding presentation of the union proposal. "Well, the Union had taken a position throughout the negotiations that 5.5 percent would be on the weighted hourly average wage, and the 5.5 percent would be the same wage increase for all people , or in other words, it would amount to a cents across the board wage increase after it had been computed." Taylor testified that he explained, in response to questions, that the Unions would take the straight time hourly rate, multiply it by 5.5 percent, and get about 17 cents depending on the progression rates at the time. The Committee recommended rejection of the compa- ny offer. It was rejected by a vote of more than 100 to 0. A strike began Monday, March 5. At this time negotiations were proceeding for a Masury Columbia contract. Sulley and Schellentrager, representing that employer, and Hall and Taylor, representing the em- ployees, were meeting with Mediator Carr. Sulley testified that at the Masury Columbia negotiations on March 8, 1973, the union representatives proposed an increase of 20 cents across the board, and the Company proposed 14 cents across the board. Sulley also testified that during the Masu- ry Columbia meeting on March 12, attended by both Hall and Taylor, he had a "side-bar" talk with Hall;' that he asked Hall's reaction to the idea of the Company giving no wage increase to employees during their 60-day probation- ary status; that he explained there was considerable turn- over among the probationary employees, not giving them any wage increase would leave more money for the other employees, and probationary employees were not union members so did not vote on contract ratification ; and that, when Hall commented that it sounded practical , he said he would check it with his clients. Hall testified that he recalled having an off-the-record discussion with Sulley on March 12 and, after being shown his pretrial affidavit to refresh his recollection, that Sulley made these remarks, and that he told Sulleyy the idea would be considered. Sulley called Hall the next day and said the clients had cleared it but he did not have a figure yet. Hall suggested another meeting which Sulley arranged with Mazza for the next day. Hall testified that he did not tell Taylor about this at the time but, after Sulley said it was cleared, discussed it with Taylor and the Committee. A very lengthy meeting was held at the Federal Media- tion offices on March 16, a Friday, with all the negotiators of the company contract present. Sulley testified as to this meeting that "The first time that the three issues surfaced was when I read a three-year contract proposal to the 8 Hall described "side-bar" talks as "Off-the-record, privileged discus- sions." Union"; that this proposal provided that the current base rates would become minimum probationary rates, these rates to be unaffected by his first-year wage offer but not to preclude the Company from hiring above those rates; for the other employees, in the first year, raises of 16 cents for grades 1-3, 17 cents for grades 4-6, and 18 cents for grades 7-9, the 16 to 18 cents "per hour flat across the board"; a $5 increase in sickness and accident benefits; and a new holiday for each employee on his anniversary date provided he met certain attendance requirements; in the second year, "5.5 percent increase across the board to each and all rates, plus $5.00 more in S and A"; and in the third year "17 cents flat across the board, plus four weeks vacation for 20 years." Sulley also testified that Taylor at one point proposed a later contract expiration date but he rejected it; that Taylor maintained the Unions wanted a 1-year contract only; and that he rejected this on the ground he needed at least 2 years to be able to give a percentage increase to the higher rated employees. Sulley also testified that at this meeting the Company for the first time made a formal offer of a probationary rate the same as the current pay rate, that he had previously dis- cussed this with Hall informally and had given Hall the reasons for it, but that he did not explain to the Committee and had never previously told Taylor these reasons. He also testified that in a conversation with Hall alone he empha- sized the importance to the Company of a percentage in- crease in 1 year of the contract; that he thought it was on March 16 that he told Hall how strongly Lavin, an official of the parent corporation, felt about a percentage increase but it might have been before that date; and that he did not tell Taylor of the Lavin position. Sulley testified further that, during a meeting between Mazza and the union repre- sentatives, he wrote out a 2-year offer; that this was the last one he made to the Unions; that- I read all of this probably. I said, "This is as far as the Company will go and it is on the table, if the committee unanimously recommends: The items agreed upon plus the following: A two-year agreement expiring on 1-3 1- 1975. In the first year, establishment of a new minimum probationary rate to cover employees during the first 60 days of employment with a 17-cent-per-hour in- crease for all employees who have completed their pro- bationary period, which is the first 60 days of employment, retroactive to 2-1-73; an increase of $10.00 in S and A payments; four weeks vacation after twenty years; an additional holiday based on atten- dance. Second year, a 5.5 percent increase in all wage rates across the board including those for probationary employees and effective on 2-1-74. That was my offer as I read it." Sulley testified also that after he read this to Hall and Tay- lor, and after they met with the Committee, they reported that they would recommend this offer to the membership; and that he thought Taylor suggested he read the offer to the Committee but this was not done. Schellentrager testified with regard to the March 16 meet- ing that there was a discussion again of the weighted aver- age hourly rate; that the parties still arrived at different 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD figures, the Union $2.79 and the Company $2.77; that his notes indicated that "We were using a $2.79 in case that argument ever did come to issue and we were faced with the Union prevailing in the argument "; and that he calculated the cost of various wage increases , including "5.5 percent across the board increase on $2.79 AHR ," AHR meaning average hourly rate . Schellentrager also testified that the Company met several times that day with Hall, Taylor, and Mazza, but not with the Committee ; and that, after Hall and Taylor agreed to recommend the proposal to the mem- bership, the company negotiators shook hands with the Committee members, and this was the first time that day the negotiators saw the Committee. Levinson , who was at the March 16 negotiations , testified that his notes showed the proposal read by Schellentrager was for a 2-year agreement expiring January 31, 1975, and included provision in the first year for "the establishment of a new probationary rate to cover employees during the first 60 days of employment." Taylor testified that Sulley suggested during the March 16 meeting that more money would be available if the begin- ning rates were frozen ; that, when this was presented to the Committee members, they asked if the freeze would apply to those then employed , that Sulley said it was only for people hired after agreement was reached ; that the position of the Unions was that there was no objection to this; and that it was never discussed again. At a membership meeting on March 17 , Taylor stated, as he testified , that the 5.5-percent offer was based on the weighted average hourly rate and would come to 16 or 17 cents. The membership voted to reject the company propos- al. The Company was so notified. On Monday, March 19, as Sulley testified, he telephoned Hall and stated that he could not "bargain with the commit- tee that can't sell what we agreed upon to the membership . .. the only way I am going to start inching my offer up, if I ever do, you have simply got to get advance authoriza- tion to settle at the table . Otherwise we will be bled to death a penny at a time." There was a Masury Columbia negotiating meeting on Monday, March 21. Sulley testified that when he told Medi- ator Carr at this meeting he had an idea that might settle both the Company's and Masury Columbia problems, Carr suggested a side-bar talk with Hall and Mediator Mazza. Schellentrager was also present . No one suggested including Taylor. Sulley testified that in this discussion he pointed out that the Unions had a flat cents-per-hour proposal on the table, and that there "was a very strange situation at Masury because most of the employees are in the higher grades"; he suggested for Masury Columbia a 6-percent across-the- board increase each year of a 2-year contract, and for both Masury Columbia and the Company an employee anniver- sary holiday in the second year without attendance require- ments, he and Mazza urged Hall to get advance authority from the membership to settle the company contract issues at the table ; he said if Hall did so, he would renew his 2-year offer of the 16th with the new anniversary holiday; he did not mention money with regard to the company contract but for about 25 minutes Hall and Mazza "hammered" him for more money in his first-year offer ; he finally said if everything went right he might possibly come up with an- other penny and, when they continued to argue for 2 cents, said he would check with his client and try to get the 2 cents; after this side-bar meeting adjourned , Hall, as Carr suggest- ed, made the proposal, instead of Sulley, for a Masury Co- lumbia 2-year contract with a 6-percent increase each year, but with the anniversary holiday in the first year; Sulley said the money terms were possible but the anniversary holiday should come in the second year ; when it appeared that one of the members of the Masury Columbia committee had an anniversary in January , and would have to wait 3 years under Sulley's terms, it was agreed to make this provision effective the second year on a date that would enable this member to get a holiday in 1974; and Sulley said he would give his answer on March 23, a Friday, but the answer would depend on what happened with regard to the Compa- ny. On March 22, at a membership meeting at the picket-line trailer, Taylor reported on the bargaining situation, and a Spanish interpreter translated into Spanish what Hall re- ported to him It was a very windy day and the assembled strikers had considerable difficulty hearing what Taylor and Hall were saying, so Fenn , who had a louder voice, substi- tuted as the speaker . Taylor testified that the speakers told the membership that the Unions would accept, including 20 cents an hour in place of the 17 cents , an anniversary holi- day without attendance restrictions , and a 5.5-percent across-the-board increase the second year; and that, when members asked questions about how much 5.5 percent meant, they were told that, depending on the amount of the first-year increase, it would mean an increase of about 16 or 17 cents the second year. The membership finally voted to give Hall and Taylor authority to conclude an agreement on terms they considered equitable . Hall and Taylor there- upon went in Taylor's car to a location where there was a telephone . Hall, who had Sulley's telephone number, made the call After he reached Sulley, he held the telephone tilted so that Taylor could also hear what was being said . Hall told Sulley, as the latter testified, that he had been given authori- ty to settle the contract issues; that he would agree to the Company's March 16 proposal with two changes, which were 2 cents more on the first-year wage package and a holiday "like at Masury"; that Sulley said he could give an anniversary holiday the second year, and that he could not give 2 cents but could give one ; that Hall first responded, "No way," but, after talking to someone at the other end, came back on the line and said , "You got a deal"; that they then discussed getting the men back to work as soon as possible ; and that he was not told and did not ask who, if anyone, was with Hall. Hall testified that Sulley also pointed out in this conversa- tion that probationary employees did not get the first-year wage increase , and that 5 .5 percent referred to an increase on each employee's wage rate. Taylor testified that he was able to hear this conversation; Hall asked for 20 cents but Sulley said only 18 cents were available , they referred to other provisions including 5.5 percent across the board the second year and an anniver- sary holiday like the one at Masury; Sulley repeated some of the terms stated by Hall; at the close of the discussion he nodded to Hall; and Hall then said Sulley had a deal Hall and Taylor drove back to the strike trailer to report OCAW, LOCAL 7-507 103 on the conversation with Sulley. Again the interpreter trans- lated into Spanish what Hall told him. Again the-members had difficulty hearing Taylor and Hall, so Fenn reported what he was told of the conversation. Hall testified that, when he said Sulley had "a deal," the terms included an 18-cent raise the first year for all but the probationary em- ployees, 5.5 percent on each grade the second year, in- creased S and A, a second-year anniversary holiday, and other terms on which agreement was previously reached. He also testified that the employees were not happy when told what the agreement was; that they again asked questions about the amount of the second-year increase, and, he thought, were told it was somewhere between 16 and 18 cents; that they were not told higher paid employees would get more; and that he recalled no discussion about proba- tionary employees getting no raise. Hall testified further that he did not discuss with Taylor before the call to Sulley what 5.5 percent meant; that they had discussed it previous- ly in computing the cost of benefits and the weighted aver- age hourly rate; that Taylor said he understood 5.5 percent meant on the weighted average hourly rate; and that he said that he understood it differently, that he thought it meant an increase in each rate, and that the Company had so maintained throughout the negotiations. Kirk testified that Fenn reported the terms as 17 cents the first year, 5.5 percent across the board the second year, and a new holiday to become effective January 1. The strikers began returning to work on Friday, and all were back on Monday. D. The Written Contract Sulley informed Schellentrager, who was to prepare the written contract, of his telephone conversation with Hall. Schellentrager testified that he provided for the first year of the written contract, as the probationary rate, the former minimum base rates of the 1972 contract, and added 18 cents to the other rates; that, for the second year, he figured 5.5 percent by each rate times 1.055; and that he added the new anniversary-holiday provision. He also testified that he drafted the new contract on the basis of the former contract, of tentatively approved new language documents, and of his and Sulley's negotiating notes on the economics of the new agreement, including the three areas now in dispute. These notes were never shown to the other negotiators to check against their own notes. The economic provisions were pre- sented in writing for the first time in the contract prepared by Schellentrager. Sometime in April, Levinson brought to Kirk at her work- place several copies of the written contract prepared ,by Schellentrager, and she gave a copy to each member of the Workmen's Committee. She testified that, as soon as she and the Committee members went over the contract, she found it was not in accord with her understanding of what had been agreed upon in that it provided for an anniversary holiday after January 31 and they had agreed to January 1, and "the wages in the 2nd year was [sic] not like we thought we agreed to, they were broken up in pay raise." She tele- phoned Taylor and asked him to check the contract. They went over the contract at her home and concluded that the written contract vaned from their understanding of the agreement in two respects. Taylor called Schellentrager and reported this to him. Kathy Miller, the Company's payroll clerk, testified that the personnel office had certain wage information "gang- punched" by Alberto-Culver, and she was told by Levinson, personnel director, probably in late March, to add 18 cents to the timecards based on the Alberto-Culver list, which showed 18 cents for everyone; everyone who got the 18 cents got retroactive pay; some checks issued to regular employees had to be changed because of errors in making the wage adjustments to include the 18-cent raise, which was put into effect the week of April 7; she added 18 cents for all employees, including probationary employees, except those hired after the strike; checks issued to some proba- tionary employees had to be changed when Levinson told her these employees were not entitled to the 18-cent raise; the amount of the raise was deducted from the pay of the probationary employees; and this affected about 10 individ- uals, but she did not know if all the probationary employees were affected. Miller also testified that she had never before seen a printout like the one provided by Alberto-Culver, and that there was never before an increase like this one. Kirk testified that during the negotiations, on a date she she could not recall except that the negotiations had been going on for some time, Taylor raised the question whether the approximately 18 probationary employees then working would be included in the proposed wage increase, and Sul- ley responded, after a brief discussion, that there was "no problem." She also testified that she was informed, after the strike ended, that some probationary employees were given paychecks in amounts that included a wage increase, that these checks were taken back by the Company and new checks in a lower amount issued, and that with some em- ployees this occurred on 2 or 3 consecutive paydays. These employees complained to the Committee, and she and other Committee members took this matter up with the foremen and with the personnel officers, but they were given no explanation. Kirk reported this to Taylor, and they conclud- ed that the written contract varied from their understanding in a third respect in that it did not give any increase to the probationary employees who had been employed at the time of the strike. Taylor called Schellentrager and reported there were then three items in issue. Schellentrager testified that Taylor called and said the contract did not reflect the agreement reached in that it omitted the 18-cent increase in the first year to probationary employees employed during the strike, and that he could not recall Taylor mentioning other disagreements. Sulley testified that Schellentrager, on or about April 18, told him that "the Union, Mr. Taylor particularly, was now claiming that the agreement which we submitted was not the one which we agreed to." He also testified that he did not know the areas of disagreement except, second hand, the issue as to probationary employees. Schellentrager testified that Levinson asked questions about the application of the probationary rate provisions of the written contract, that Hall telephoned him on May 6 and questioned these provisions, that such questions had been previously raised in a telephone call from Taylor on April 17, and that he answered these questions in a letter dated May 7 that he sent to Taylor, with copies to Hall and 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sulley. This letter, placed in evidence by the Charging Party, states: I understand there is a question relating to the "Mini- mum Probationary Rate" column in the agreement sent to you for proofing and signing. I can understand your concern and trust that this ex- planation will eliminate the question. 1. The "Minimum Probationary Rate" applies only to persons in their first 60 days of employment with the Company 2. A "Minimum Probationary Rate" shows for each job grade because it is conceivable that we may hire from the outside into any of the nine (9) grades. In such cases we retain the right to use the " Minimum Probationary Rate" for the first 60 days of employ- ment with the Company. 3. In any cases where employees are promoted or changed in job grade after completing 60 days of employment with the Company, the "Minimum Pro- bationary Rate" will not apply or be used. Attached are copies of revised pages 17 and 18 with some wording change [sic] that should make the idea more clear. Please use these to replace the present pages 17 and 18. The revised pages 17 and 18 are appended to the letter. Schellentrager also testified that he made changes in the written contract he had prepared in accord with the letter he sent to Taylor. Schellentrager sent another letter dated May 7 to Taylor, with copies to Hall and Sulley, stating that, "During negoti- ations in March of 1973, the parties agreed to these proce- dures in scheduling overtime," and setting forth the procedures in five numbered paragraphs. Schellentrager tes- tified that this was a letter "relating to a side agreement pertaining to the scheduling of overtime," that this was a subject of considerable discussion during the negotiations, and that he did not know whether or not there was an overtime provision in the contract submitted to the Re- spondent Unions for signature. Sulley arranged for a meeting in Mazza's office that was held on May 8 with all the negotiators present. Taylor stated the three areas of disagreement which, as Sulley testified, were (1) probationary employees employed at the time of the strike were to get a first-year increase, whereas the Com- pany maintained that none of the probationary employees were to receive a wage increase in the first year, (2) the effective date of the employee anniversary holiday should have been January 1, 1974, whereas the Company main- tained that it was to be effective at the beginning of the contract's second year, February 1, 1974, and (3) the Company's proposed 5.5-percent across-the-board increase in the second year should have been based on taking the weighted average hourly rate of all the employees and ap- plying the resulting flat-cents-an-hour figure equally to all employees, whereas the Company maintained that it meant such employee would receive a 5.5-percent increase based on his grade and rate of progression.9 Sulley also testified The written contract in issue, like prior contracts between the parties, that Taylor stated that, if the proposal had been as present- ed in writing by the Company, the membership would not have ratified it. He testified further that Schellentrager ar- gued that the written contract correctly reflected the discus- sion and agreement of the parties in the three respects in issue ; that Schellentrager explained that the basis of the wage proposal was to give a larger increase to the regular employees by not including probationary employees in the wage increase ; that this explanation was previously given to Hall but never before given to Taylor, who was concerned on May 8 about the rate for probationary employees who were employed at the time of the strike; and that Schellen- trager also pointed out that the Company, on the basis of having concluded an agreement, made the retroactive pay- ments as fast as possible, counted the strike time as part of the probationary period, and put other changes into effect. The probationary rates in the 1972 contract, however, con- tinued in effect. Sulley testified further about the May 8 meeting as follows. I reminded them-and Tony Hall was there-I re- minded them on the probationary exclusion that this was the whole approach, because here we would save some money we would ordinarily give the probationary employees, and it would be a political solution for them because the Union security and the probationary peri- od were the exact same period and the strategy behind it was the probationers not being Union members yet would not vote, not being Union members yet. They wouldn't get to vote on the package. Mr. Taylor interrupted me at that time saying, "You are not going to tell us how to vote." And I reminded him fairly quickly that he had not voiced that objection when I made the same proposal at Masury Columbia, and that it was-among other things, I said, it was very common for a professional and an experienced bar- gainer to frame an offer with a very good under- standing as to what the practicality of that offer would be in the Union membership. And then I switched to the phone call and I reminded him that I had not had the phone call with h:m but I had talked to Tony Hall. And I told-I turned to Tony at the bargaining table on May 8 and I said, "Tony, I had the conversation with you. You have always been honest with me. You tell me what was said and whatev- er you say goes." And Tony Hall started to recite the conversation. He said, "I said I wanted a holiday like the Masury Colum- bia." ][ have to say at that time I cut Tony off because we had agreed in a caucus that if we could make a concession some place to get this whole thing, fine, we would do it in the area of the holiday. We also agreed if we gave it to Mr. Hall, maybe he could assume some makes no reference to the amount or basis of a wage increase, but lists the rates for the various categories, grades , and progression steps under the heading "Wage Schedule for Plant Employees Under Argo Local No 7-507 Wage Plan (Hourly Rare) " The same practice was followed in the Masury contracts OCAW,,LOCAL 7-507 105 leadership over the congregation and we could get the rest of the matters under settlement. So I cut Tony off on that. "If you say so on that, Tony, that is good enough for me. But if you remember that, you have also got to remember about the probationary employees and how our strategy went. It was a 60-day Union security and a 60-day probationary period, and the whole idea of coming up with more money was based on not giving these probationers an increase." He didn't reply, but he nodded his head affirma- tively. "If you remember that you have got to remem- ber all the other times I have told you why we need that percentage increase, why it is important to us." Tony said, "I remember your telling me how Mrs. Lavm"-Secretary-Treasurer of Alberto-Culver- "how strongly she felt about that." Tony went on and said, "I don't think we should be talking about credibil- ity," which I had injected earlier with regard to Mr. Taylor's presentation. At this point Mr. Hall said, "I don't think we should be talking about credibility. We should be talking about misunderstanding." I said, "No, too many things have happened to make a misunderstanding possible, We are talking about credibility." I went on for some time and suggested perhaps the only solution was to file some charges with the Labor Board. At this point Mr. Taylor invited me to file whatever I pleased and I did. The meeting then adjourned. According to Sulley, all the issues raised on May 8 first surfaced at a bargaining session on February 26, when agreement was reached on a number of other matters, and when, in response to the Union's demand made on Febru- ary 20 for an 8-percent increase, Schellentrager read from notes a counteroffer which included a 5.5-percent across- the-board increase for each rate the first year, 16 cents for each employee the second year, with the explanation that the Company wanted a 2-year contract so that it could in 1 year give a percentage increase which would provide pro- portionately more for the higher rated employees, and in the other give a flat amount in order to please the lower rated employees who, constituting a majority of the plant person- nel, could effectively vote to reject a proposed contract. Sulley admitted that this proposal was rejected by Taylor, who at the time was arguing for a 1-year contract, but maintains that it was reoffered on March 16 and formed the basis of the discussions that culminated in an agreement. Hall's recollection of the negotiations seemed vague as to proposals made and particularly as to the dates when they were made. When asked about Sulley's remarks regarding percentage and flat-cents-per-hour increases, Hall replied: "As I best recall, the Company was, to best phrase it, ada- mantly opposed to a cent-across-the-board wage increase at any time. But finally succumbed to it, yes." When asked if the Company said it wanted a percentage increase to give more to the higher rated employees, Hall replied, "At one time or another they might have, yes. Yes, I think they might have." Asked if the Company needed that to keep the higher rated people happy, he replied that he did not "recall that that language was used, but I would imagine inferentially it could be that, yes," and that words to that effect were used. He could not recall Sulley saying that, with a 2-year con- tract, the Company could give a percentage increase. Taylor maintained that the percentage wage proposal agreed to by the union representatives was to be based on the weighted average hourly rate with an equal amount for every employee. He agreed in his testimony that the Compa- ny on February 26 proposed a 2-year contract with a per- centage increase applicable to each wage step, but testified also that this percentage proposal was made only on Febru- ary 26, that on and after March 3 the proposals were to give a 5.5-percent across-the-board increase and that he under- stood this to mean everyone was given the same increase based on 5.5 times the average rate. Taylor testified further that, after the wage-puce freeze was imposed, it became a common practice to provide for a percentage increase across the board, which was at times weighted by including the average cost of benefits with the straight time average hourly rate. He also maintained that he has negotiated and executed contracts with employers, including the Company, that provided percentage increases for each classification, and that he has also negotiated percentage increases based on the weighted straight time average hourly rate with a number of named companies. Kirk admitted in her testimony that Sulley had indicated at some negotiating meetings that the Company, and partic- ularly Lavin, wanted to give a greater increase to the more skilled and higher paid employees, and that she could not recall that the company representatives ever expressly stat- ed that this proposal was withdrawn. She also admitted that her notes showed the Company at certain negotiating ses- sions proposed an 18-cent across-the-board increase and a 5.5-percent increase for each grade and step, but she testi- fied that this proposal was rejected by the membership each time it was made. She also testified that the position she and the other union representatives took throughout the negoti- ations was that they were seeking a wage increase in the same amount for all employees; that Taylor stated during the negotiations that 5.5 percent across the board meant the same increase for every employee whatever his classifica- tion; that they took the position with the company represen- tatives that "A.T.B., that's across the board, we told them that it meant for everybody. The same amount for ev- erybody"; but, she admitted, she could not recall that Sulley ever expressly agreed that this was the meaning of "across- the-board." As to the proposal to withhold the increase from proba- tionary employees, Taylor testified that it was discussed on March 16 and only on that date, that Sulley stated that this withholding applied only to people hired after agreement was reached, that the Unions agreed to it on this basis, and that he was never told by Hall or Massa that such withhold- ing from all probationary employees was the Company's intent, nor informed at any time during the negotiations about Sulley's sidebar discussion of this matter with Hall. Kirk testified in this regard that Taylor raised the question at one of the negotiating sessions whether the probationary employees then working would be included in the wage increase, and Sulley responded, after a brief discussion, that there was "no problem." Sulley, recalled by the Charging Party as a rebuttal wit- 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ness, testified that neither Taylor nor any other union repre- sentative raised a question on March 16 about the exclusion from the first-year wage increase of probationary employees then employed as well as those newly hired; that he was not authorized by the Company to include the currently em- ployed probationary employees in the first-year wage pro- posal; and that he had calculated the cost of the wage increase on about 15 different bases, but not on the basis of a raise for the probationary employees employed before the strike. The Masury agreement, reduced to writing by Schellen- trager, provided for a 6-percent increase in each rate each year. It was signed by Hall and Taylor, and no question as to the effect of any of its provisions has been raised by Hall or Taylor. Concluding Findings I am convinced, from my observation of the witnesses and on the basis of the record as a whole, that each of the witnesses herein testified candidly and truthfully. The Gen- eral Counsel and the Charging Party in their briefs attacked the credibility of Taylor, but he impressed mews an honest and forthright witness, and I credit his testimony. As shown by the evidence summarized above, there were variances in the testimony as to what occurred, not only among the witnesses for the different parties but also at times in the versions of the witnesses for the same party. It appeared to me, however, that these variances resulted from honest dif- ferences in recollection, long after the events, as to what was said by the participants in a number of meetings, some lasting many hours, over a period from December 1972 to May 1973. Each of the participants in the negotiations here in issue took some notes of the bargaining discussions. These notes do not establish, however, what occurred, nor that some individuals were testifying more credibly than others. The notes, referred to by various witnesses at the hearing, were generally cryptic and incomplete, did not pur- port to be minutes of meetings, and were at no time shown by one party to another to check their accuracy.10 I likewise am convinced that the parties bargained in good faith, that they thought an agreement had been con- cluded but differed in what they understood the terms of the agreement to be, and that their differences were, as Hall told Sulley at the May 8 conference, more a matter of misunder- standing than of credibility. These differences in under- standing are nevertheless significant as they pertain to provisions regarding wage rates, one of the most important elements in a collective-bargaining agreement 11 What the parties in fact agreed to in this matter, however, cannot, in my opinion, be determined from the record. The testimony as to the proposals and discussions was in a number of instances vague and uncertain. And, while the notes taken by various individuals give some indication of what was said by some representatives at some meetings, they do not es- tablish the terms of critical provisions as to which the parties purportedly reached agreement. Nor are there in evidence written proposals which might be found to indicate the particular terms and conditions on which the parties reached agreement. None of the economic proposals were submitted in writing. Some company proposals were read by Sulley or Schellentrager from notes, but these proposals were not presented to the other parties in writing, and the notes on which the proposals were based were not shown to the other participants. r, In addition, the participants in the instant negotiations used a number of technical terms which were never reduced to writing in a proposal or in a written contract, were never defined by the parties, and their meaning or applicability to the present bargaining relationship was never discussed. For example, the term "across-the-board" was used frequently by negotiators on both sides of the table. Sulley testified that he used it in accordance with the "dictionary explanation which is `without exception to the group named."' The Charging Party's brief sets forth a definition from Roberts Dictionary of Industrial Relations, BNA, of the phrase "Across-the-Board Increase."13 One of the definitions in Webster's Unabridged Third New International Dictionary is "embracing all classes or categories without exception." Taylor, who has negotiated contracts with many employers as well as with the Company, and Kirk, who has partici- pated in the negotiation of previous contracts with the Com- pany, maintain that the phrase "across-the-board" was used and understood in these negotiations to mean a wage in- crease in an amount equal to all employees. There was no discussion in the course of the negotiations of what was meant or understood by this term. Previous contracts be- tween the parties set forth wage schedules in flat cents fig- ures, do not indicate the amount or basis of wage increases, and contain no reference to "across-the-board." And the phrase was not used in written proposals or any other writ- ing available to all the negotiators, which might have given rise to a discussion of its meaning as it was being used by the parties. 14 12 Cf Operating Engineers Local Union No 3, AFL-CIO (California Asso- ciation of Employers), 123 NLRB,922, in which the respondent indicated acceptance of contract terms that had been reduced to writing and then sought to repudiate its acceptance , Lytron, Incorporated, 207 NLRB No 88, in which not only the proposal in question, but also its acceptance by the other party, had been reduced to writing 13 This definition is set forth as follows A wage adjustment given at one time to all or a significant group of the workeis in a plant, company, or industry The increase may be applied as a percentage or expressed as a fixed cents-per-hour Where a uniform percentage is given, higher rated employees will receive a greater absolute adjustment, thus a 10% across-the-board in- crease will give the employee with a $1 rate, 10 cents per hour, while the employee who receives $2 an hour will receive a 20-cent adjustment Generally speaking a fixed cents-per-hour adjustment favors the low- er-skilled employee whereas the percentage adjustment favors the more highly skilled workers During the Second World War "tapered" adjustments were made so the "internal wage structure" would not be seriously disturbed Though the adjustment was general the cents-per-hour figure differed from group to group, thus one group might receive 15 cents, another 12, a third 9. etc 10 See John Zink Company, 196 NLRB 942, 946 " See Oak Cliff-Golman Baking Company, 207 NLRB No 138, in which the Board referred to "wage rates" as "perhaps the most important element of the many in the employment relationship which Congress remitted to the mandatory process of collective bargaining under the Act," and to the Board's "obligation to protect the statutory process of collective bargaining" with regard to "the establishment and maintenance of a viable agreement on wages " I 14 Cf Lytron, Incorporated, supra, which finds that the parties were familiar OCAW, LOCAL 7-507 107 There was also frequent reference during the negotiations to such phrases, as "straight time average hourly 'wage," sometimes with "the addition of the word "weighted," which Taylor testified meant the average cost of benefits added to the average rate of pay. Taylor in his letter of December 4, 1972, to Schellentrager, requested data, "needed for purpos- es of administering the current Labor Agreement and for preparations for the forthcoming negotiations for a new Contract," about the "straight time weighted average hourly rate of the present wage schedule," and this information was furnished by the Company on February 9, 1973. There were admittedly references at different negotiating sessions to the straight-time average hourly wage. It was Taylor's view that these phrases had reference to an understanding that all employees would get a wage increase in the same amount. While he conceded that the company negotiators had pro- posed at times a percentage increase based on grade and rate of pay, and had explained the importance they attached to giving proportionately more money to the higher paid skilled employees, he pointed out that these proposals had been submitted to and rejected by the membership, and rejected accordingly by the negotiators for the Respondent Unions. Taylor also asserted that it was not made clear to him during the negotiations that this was the basis of the 5.5-percent increase proposal, and that, on the contrary, he understood this was no longer the basis in view of the rejec- tion of such proposals. Kirk testified to the same under- standing. There were in this case many different proposals ad- vanced during the lengthy negotiations, at different times for contracts of 1, 2, or 3 years' duration, with at times wage increases of different amounts and computed on different bases proposed for each year of a multiyear contract, and all this without the benefit of having any of the proposals or tentative agreements submitted in wasting for study by the parties. There were negotiations with a mediator, and there were, during the Masury Columbia negotiations, side- bar conferences at which Sulley and Hall discussed provi- sions of the company contract, and admittedly did not ap- prise Taylor of some of the proposals made or of the reasons given therefor at these side-bar talks. There was the further complication of the way proposals were presented to the membership during the strike, when the union negotiators were required by the Company to obtain advance authority to conclude an agreement without resubmitting it for ratifi- cation. The various proposals were reported to the group assembled at the picket line by Fenn and a Spanish transla- tor, based on what they were told by Hall and Taylor, whose voices could not be heard because of a strong wind. It was in these circumstances that the membership authorized Hall and Taylor to settle the strike and conclude an agreement on an equitable basis. The confusion in this situation was compounded in the Hall-Sulley telephone conversation, when apparent agreement was reached on the basis of such phrases as "a holiday like at Masury" and "other provisions already agreed to." Moreover, Taylor was present with Hall during this conversation, but no member of the Workmen's with a particular meaning of the word "option" as it had been used in the old contract and in the written drafts of a new contract Committee was present,15 and Sulley admitted he did not know who, if anyone, was with Hall during the telephone call. It is undisputed that, after the telephone discussion, Tay- lor nodded his agreement to Hall; Hall then told Sulley he had "a deal"; Hall and Taylor had been authorized by the membership to conclude an agreement that they deemed reasonable without again submitting it for ratification; Hall, representing the certified Respondent International, was of the opinion that a complete agreement had been reached; and the Company, also of this opinion, not only prepared a written contract but also put some of the contract terms into effect. It is also cleat that, whatever the problems atten- dant on the method of negotiation that was followed in the present situation, the same negotiating personnel using the same method have successfully concluded, executed, and effectuated other written contracts. There is an established pattern of bargaining among the parties, however, for the Respondent International and the Respondent Local to participate jointly in negotiating and executing contracts with the Company. I find, in view of the pattern of bargaining in this case, that it was essential that any final agreement with the Company as to contract terms be reached by both Respondent Unions. It is true that the membership of the Respondent Local authorized Hall and Taylor to conclude an agreement, that Hall reached agree- ment with Sulley, and that Taylor indicated his assent to the terms agreed to by Hall and Sulley. It is evident from the totality of the evidence, however, and I find, that Taylor's understanding of the terms agreed to differed in certain essential respects from that of Hall and Sulley. And Kirk, chairman of the Workmen's Committee, had the same un- derstanding as Taylor of the terms in question. It is held to be "well settled that the Board may properly evaluate contractual provisions against the background of bargaining negotiations in determining contractual in- tent." 16 And in Butchers' Union Local 120, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL- CIO, 154 NLRB 16, 26, the following basic principles were set forth: Conventional contract law, however, does provide certain decisional principles, pursuant to which deter- minations may be made as to when mistakes due to misunderstandings with respect to the meaning of words or other acts will make a presumptive agreement void; that is, when the ordinary rules which govern the formation of contracts will be rendered inapplicable by mistake. What circumstances, first, reveal the presence of mis- take caused by some misunderstanding with respect to the meaning of particular manifestations given to con- firm the formation of an agreement? See Restatement, Contracts § 501 (1932), in this connection: Misunderstanding exists where the words or other acts of the parties indicate assent, but one or both of the parties in fact intend something different from what the words or acts express. 15 See Merico, Inc, 207 NLRB No 22 16 International Union of Operating Engineers, Local Union No. 12 (Tn- County Association), 168 NLRB 173 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When such misunderstandings are due to the fault of one party, and the other party understands the trans- action according to the natural meaning of the words or other acts, both parties are bound by that natural mean- ing. When, however, misunderstandings may be traced to ambiguity for which neither party is to blame, or for which both parties are equally to blame, and the parties differ in their understanding, their seeming agreement will create no contract. It is also well-established law, as the Board and the courts have held in numerous cases, that, when an oral agreement is reached as to the terms of a collective-bargaining con- tract, each party is obligated , at the request of the other, to execute that contract when reduced to writing , and failure or refusal to do so constitutes an unfair labor practice." And there is evidence herein that an oral agreement was reached. Nevertheless, in all the relevant circumstances of this case, I am convinced, and find, that there was no "meeting of the minds" as to some of the essential terms of the agree- ment, that this "may be traced to ambiguity for which nei- ther party is to blame," and that, in view of the differences in the understanding of the parties, "their seeming agree- ment" has not created a contract . The Board has held that . . it must be shown by the General Counsel not only that an agreement was reached , but that the document which the Respondent refused to execute accurately reflected that contract," and, further, that "the Company's institution of changes in wages, etc. . . . serves only as evidence of the Company's understanding of the terms agreed upon , not the accuracy of its understanding." 18 I find, in the particular circumstances of this case , that the General Counsel has it See H J Heinz Company v N L R B, 311 U S 514. 523 (1941) is International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, Local 61 (Groveton Papers Company), 144 NLRB 939 failed to establish, by a preponderance of the evidence, that a full agreement was reached, that it was accurately reflect- ed in the document prepared by the Charging Party, and that the refusal of the Respondent Unions to execute that document was violative of Section 8(b)(3) and 8(d) of the Act. Accordingly, I shall recommend that the complaint be dismissed in its entirety.19 Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Capitol Packaging Company is an employer within the meaning of Section 2(2) of the Act, and is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Oil, Chemical and Atomic Workers International Union and its Local 7-507 are labor organizations within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to establish by a pre- ponderance of the evidence that the Respondent Unions reached a full agreement with the Company which they unlawfully refused to execute when reduced to writing, in violation of Section 8(b)(3) and 8(d), as alleged in the com- plaint. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER 20 It is ordered that the complaint herein be , and it hereby is, dismissed 19 International Brotherhood of Pulp, etc, Local 61 , supra, Eltra Corporation. Prestohte Division , 205 NLRB No 170 20 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