T. M. Cobb Co.

694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD T M. Cobb Company and Lumber and Sawmill Workers, Local 2288, United Brotherhood of Car- pentei s, and Joiners of America, AFL-CIO. Case 21-CA-13888 June 11, 1976 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER On March 8, 1976, Administrative Law Judge Earldean V S Robbins issued the attached Decision in this proceeding Thereafter, the General Counsel filed exceptions and a supporting brief, and the Re- spondent filed a brief in support of the Administra- tive Law Judge's Decision 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 Re- lations 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 in its entirety DECISION STATEMENT OF THE CASE EARLDEAN V S ROBBINS, Administrative Law Judge This case was heard before me in Los Angeles, California, on December 18, 1975, and January 20, 1976 The charge was filed by Lumber and Sawmill Workers, Local 2288, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, and served on Respon- dent on August 11, 1975 The complaint, which issued on October 3, 1975, alleges that Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended Posthearing briefs were filed by the parties on February 27, 1976 The basic issue herein is whether Respondent and the Union agreed that Respondent's final contract proposal would cover probationary employees Upon the entire record, including my observation of the witnesses and after due consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT I JURISDICTION Respondent is engaged in the manufacture of windows, doors, and related materials at its plant located in Los An- geles, California Respondent, in the normal course and conduct of its business operations, annually purchases and receives materials and supplies valued in excess of $50,000 directly from suppliers located outside the State of Califor- nia The complaint alleges, Respondent admits, and I find that Respondent is, and has been at all times material here- in, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act II LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Facts Prior to April 1975 ' Respondent was a member of a multiemployer bargaining association, the Lumber Em- ployers Council As such, it was bound by a multiemployer collective-bargaining agreement between the Union and the Lumber Employers Council which expired June 30, 1975 Respondent timely withdrew from the multiemployer bargaining unit and commenced bargaining with the Union in a single-employer unit During May and June, the Respondent and the Union had about nine negotiating sessions During the early part of June, Respondent submitted a contract proposal which provided, inter aka Section 2 RECOGNITION The Company recognized the Union as sole collec- tive bargaining agent for the employees covered under this Agreement, which includes production, mainte- nance, and part time employees only Excluded are probation employees, supervisory employees, clerical, office clerical, salesmen, guards, and all exempt employees as defined by the National Labor Relations Act as Amended Section 3 UNION SECURITY As a condition of employment, all employees com- ing under the terms of this Agreement shall within the ninety (90) days of the date of hire be on a probation period, after which they shall become and remain members in good standing of the Union On June 25, the final negotiation session before the ' All dates hereinafter will be in 1975 unless otherwise indicated 224 NLRB No 104 T M COBB COMPANY 695 Union's ratification meeting, the Respondent and the Union were still far apart on health and welfare, pension, wages, union security and the inclusion of probationary employees in the unit The Union wanted the Respondent to continue to participate in the health and welfare and pension plan which covered employees in the multiemploy- er unit Respondent wanted its own plans The multiem- ployer agreement had no grievance and arbitration clause and there were some language difficulties as to the griev- ance and arbitration provision proposed by the Respon- dent During this session Respondent did agree to a 31-day union-security clause but continued to insist upon a 90-day probationary period with probationary employees exclud- ed from the unit These proposals were rejected by the Union on the grounds that Respondent's proposals would be illegal, that the Union could not legally require employ- ees to become members of the Union within 31 days when they were excluded from the unit for 90 days as probation- ary employees Respondent reiterated its position that there was nothing illegal in its proposalI and that the Union should support its position with a legal opinion It is undisputed that the Union never submitted a legal opinion 3 By the conclusion of the June 25 negotiation session, the Respondent and the Union had been unable to reach agreements as to the terms of a collective-bargaining agree- ment, however, they had reached an understanding on what the Union would submit to its membership for ratifi- cation as the Respondent's final proposal This case arises out of their differing positions as to whether Respondent's final proposal included probationary employees in the rec- ognized unit Respondent's position is that they were ex- cluded The Union's position is that they were included It is undisputed that, although the Union agreed to sub- mit Respondent's final offer to the Union's membership for ratification, it was understood that the union negotiat- ing committee would recommend against ratification It was agreed that Respondent's president, Ray Cobb, and Thomas Preston, chief negotiator for the Union, would ini- tial the agreement reached as to what constituted Respondent's final offer There is some dispute as to the mechanics employed However, upon a consideration of the testimony of all the witnesses, I find that a composite of their testimony most accurately reflects what occurred Cobb and Preston began initialing separate copies of the proposals which constituted the working documents for the June 25 negotiation session At some point during this pro- cess, Preston discovered that all of the agreed-upon changes had not been noted on the copy he initialed Snow took all of the copies used by the various negotiators dur- ing that session and made the necessary changes on two copies It was then decided that Cobb and Preston should initial the same copy, which they did David Snow, labor consultant and Respondent's chief negotiator, retained the initialed copy for the purpose of photocopying it for the Union's ratification meeting Respondent posted a copy of 2 During this and earlier negotiation sessions the Union had also argued that the exclusion of probationary employees from the unit would be con- trary to union bylaws 3 Respondent had previously requested a legal opinion this final offer next to the timeclock and provided the Union with copies 4 According to Snow, he had two telephone conversations with Preston prior to the ratification meeting The first was on June 26 Preston telephoned him and said that Respondent's position as to excluding probationary em- ployees from the unit was presenting a problem for him as negotiator and inquired if Respondent would concede on that point Snow said he had no authority to make such a concession Preston's account of this conversation is some- what different According to him, after noticing that pro- bationary employees were still listed in the exclusion, he telephoned Snow and Snow said that he did not have his notes available and he would have to check his notes as to whether probationary employees remained in the exclu- sions Snow denies making any such statement On rebut- tal, for the first time, Preston testified that he told Snow he was going to present the contract to the membership with probationary employees deleted from the unit exclusions On June 26, according to Snow, during the late morning or early afternoon, he telephoned Preston and told him he was unhappy concerning the notices posted by the Union stating that employees who were members of the Union for less than 1 year would be ineligible to vote, that this was contrary to the commitment Preston made early in negotia- tions Preston replied that he was sorry, it was out of his hands, he was only following instructions and there was nothing he could do about it Preston said he felt the con- tract which Cobb had signed and submitted to Preston for his signature was different from the one he had agreed to submit for ratification Snow denied this Preston agrees that there was such a conversation prior to the ratification meeting and that he did tell Snow that the question of eligibility to vote on ratification was taken out of his hands Late in the afternoon of June 27, the union membership overwhelmingly voted to ratify Respondent's final offer That evening, after the ratification, according to Snow, Preston telephoned Snow and told him simply that the con- tract had been ratified According to Preston, he told Snow that the probationary employees should not have been in the exclusions, that they had agreed to delete that, and that the Union could not live with that provision Snow said he did not have his notes so he could not give Preston an answer On cross-examination, Preston testified that he also told Snow that he presented the contract to the mem- bership with the understanding that probationary employ- ees would not be listed in the unit exclusions and that Snow said nothing On July 1, Cobb, Preston, Plant Superintendent Bill Klarkowski, and Union Representative Joseph W Bennie A copy was posted on June 25 or 26 It is unclear whether the Union received copies on June 26 or 27 5 During the course of negotiations, Snow inquired as to eligibility re- quirements for voting on ratification Preston testified that he told Snow that there was a possibility that all paid-up members could vote but that there had been a contrary ruling from the district council Snow asked if a delinquent member who paid his dues before the ratification meeting would be permitted to vote Preston said the Union's constitution provided that members of less than 1 year are not eligible to vote on contract ratification but that to his knowledge this provision had never been invoked and if he had anything to say about it the provision would not be invoked 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD met to sign the collective-bargaining agreement It is undis- puted that at this time Cobb signed the contract but Pres- ton refused to sign According to Preston, when he no- ticed that probationary employees were still listed in the exclusions from the unit he informed Cobb that he would not sign the contract because probationary employees were excluded from the unit and because there was no letter covering the D D McCullum operation 6 Bennie and Cobb testified in essential agreement with Preston except that although Preston and Bennie admit making inquiries regarding the insurance plan, they both insist that the in- surance provision was never cited as a reason for refusing to sign the collective-bargaining agreement On the other hand, Cobb, though uncertain that Preston specifically stated his reasons for refusing to sign the contract, had the impression that it was because the insurance was not satis- factory, the absence of a letter on D D McCullum, and that probationary employees were excluded from the unit Both Cobb and Preston agree that Preston also accused Snow of switching contracts On July 7, 1975, Cobb sent Preston a letter, the body of which states I am writing you because I have been unable to reach you by phone today and I will be out of town tomorrow Tom, I was most disappointed and unhappy about our last meeting where we were to have signed the contract The union not wanting to sign the contract that was negotiated and agreed upon is your business I do not like doing business that way but I guess there is nothing I can do to force you to sign the contract which was initialed by you, ratified by the men, and which we have already implemented in many respects But I want you to know that I intend to honor my commitments to the employees of the T M Cobb Company and I do not intend to let them down for you or for anyone else Accordingly, in spite of your position in refusing to sign this agreement, we are going to go ahead and live up to the substantive terms of the contract which was negotiated-such as the wage increases, the new re- tirement fund contribution which is payable on July 15, the new group insurance, etc However, in view of the fact that you have refused to sign the contract and, indeed, want to renegotiate the terms already agreed upon, we will not put into effect or enforce Section 3 and the arbitration provi- sions contained in Section 21 of the contract In addi- tion, since you have second thoughts about matters 6 D D McCullum is a manufacturing company purchased by Respon- dent At the time of the purchase, D D McCullum was also signatory to a collective-bargaining agreement with the Union Apparently the new collec- tive-bargaining agreement was to cover the D D McCullum plant as well as the T M Cobb locations in Los Angeles and Riverside, California Be- cause T M Cobb is essentially a warehousing operation and D D Mc- Cullum is a manufacturing plant, Preston had requested a letter stating that any classifications not set forth in the T M Cobb agreement would be covered by the Lumber Employers Council contract Snow said there would be no problem obtaining such a letter, that Respondent planned to sell D D McCullum but would be willing to provide such a letter to cover D D McCullum in the interim which we agreed upon, there are a few matters which we too would like to renegotiate the next time we get together Within the next few days, Preston telephoned Snow and they scheduled a meeting for July 17 According to Pres- ton, Snow said he still had not reviewed his notes regard- ing the negotiations A meeting was held on July 17 as scheduled Present for the Company were Snow and Cobb, and for the Union, Preston and Union Representative Leonard L Carpenter There is little disagreement as to what occurred during this meeting, which lasted only 15 or 20 minutes Cobb stated that since the Union wanted to change the contract, Respondent also had a proposal to make, that Respondent wanted to withdraw the union-se- curity clause because some of the employees were upset regarding the Union threatening them with fines and deny- ing the right to vote on ratification to employees who had been union members for less than 1 year and that some employees felt they did not need the Union Cobb said he felt that he could not morally force them to continue their union membership in order to retain their jobs Preston said the Union could not live with a contract without a union-security clause Carpenter said they might as well file charges with the National Labor Relations Board Preston testified that Respondent also withdrew another provision but does not identify the provision Preston testified that on a later date Respondent and the Union met with a Federal mediator Respondent's repre- sentatives reiterated their July 17 statements as to the rea- son for the withdrawal of the union-security clause Re- spondent continued to insist upon the exclusion of probationary employees from the unit and also withdrew the arbitration clause Preston also testified that at this meeting he signed the contract he had initially refused to sign, but Respondent refused to sign it because it con- tained union-security and arbitration clauses When asked, "the only clause the Company discussed and told you they had withdrawn was the clause relating to union security, isn't that correct9" Preston testified, "In our presence, yes " The implication was that Respondent withdrew the arbitra- tion clause in a separate session with the mediator, howev- er, there was no specific testimony as to what occurred in this regard Preston again accused Snow of switching con- tracts Snow had the original in his possession Preston checked the original against his copy and conceded that they were the same At some point during this meeting, according to Preston, Snow said something to the effect that if Preston signed the contract without the union -secur- ity clause and the employees settled down and regained confidence in the Union, Respondent would reconsider its position on the union-security clause The critical area of dispute is whether Respondent's final offer listed probationary employees in the unit exclusions It is undisputed that Respondent and the Union agreed to initial the negotiated final offer in order to obviate any misunderstandings as to the contents of the final offer, and that they further agreed that the Union would submit the entire document, without exceptions, to the membership, and, if ratified by the union membership, the final offer would become the terms of the new collective-bargaining T M COBB COMPANY 697 agreement The controversy arises from the Union's con- tention that they in fact agreed to delete probationary em- ployees from the unit exclusions and that the failure to physically expunge those words from Respondent's final offer was a clerical oversight Respondent, on the other hand, claims that it never agreed to delete probationary employees from the unit exclusions In support of its contention, the Union relies on the testi- mony of Preston, Carpenter, and Bennie Unfortunately, their testimony is insufficient to refute the documentary evidence to the contrary The initialed copy of the final offer clearly lists probationary employees in the unit exclu- sions of section 2 That section contains a penned addition and one deletion in the exclusions, markings which would be expected to draw one's attention to the fact that certain changes had been made which should be checked for accu- racy Furthermore, immediately below in section 3 are penned changes which reflect Respondent's continued in- sistence on a 90-day probationary period and its agreement to change its proposal of a 90-day union-security grace pe- riod to a 31-day period Certainly it would seem that this would alert one to check to be sure that the document accurately reflected the agreement reached on this contro- versial item I find it difficult to believe that in these cir- cumstances the continued listing of probationary employ- ees among the unit employees would be overlooked This is particularly true in view of the nature of the testimony of the union witnesses On direct examination, Preston testified that early in the negotiations the union committee had assumed that proba- tionary employees were deleted from the unit exclusion Later it appeared that Snow had not deleted it, so Preston made the notation "back in" on his copy During the June 25 meeting Snow stated he would concede and there would be no problem in that matter By this, Preston understood him to mean that "probation employees" would be deleted from the unit exclusions, so he crossed out his "back in" notation On cross-examination, Preston testified JUDGE At the particular time, was it the company's position that probation employees were excluded or included9 THE WITNESS Excluded from the contract JUDGE And you put the notation "back in," because it was the company's position that it was excluded9 THE WITNESS Well, the paragraph is exclusions Earlier in the day we had agreed that it [probation employees] would come out because of clarification on the Union security clause Q (By Mr Slaight) What do you mean that you had agreed that it would come out? A By the company agreeing that every person working at the company for 31 days and then joining the Union, we would have to assume that they are also going to include them in the rest of the bargaining agreement Q So based upon the company's changed position with respect to Section 3, changing it from 90 days to 31 days, you assumed from that that they were agree- Ing to include the probationary employees in the bar- gaining unit, is that correct? A Right Q So that was your assumption It wasn't your agreement, right? A At that particular time, yes On redirect examination, in regard to the "back in" no- tation he made as to probationary employees, Preston testi- fied Q At what point did you cross out the words "back in"' A That was at the point where we had made an agreement regarding that portion of the contract as well as the portion of the union security clause on the 31 days issue Q Well, specifically what was said that led you to think that the parties are in agreement? A These two items are basically talking about the same people Q Yes, but what was said by the employer, by Mr Snow or by Mr Cobb, to lead you to believe that you had reached an agreement with them? A Mr Snow stated that we had convinced him as to the legality of it Therefore, there would be no prob- lem regarding the issue Bennie testified Q Now, regarding the probationary employees, if you can recall, could you tell us what was said during the meeting by the parties about the probationary em- ployees? A Well, they had it in there that the probationary employees wouldn't have any representation until af- ter 90 days and our contract calls for anything after 31 days a man is in the Union and we have to represent him Q What was the resolution of the problem at the meeting? A Well, they made the statement Q Who made the statement9 A Mr Snow, that that would be no problem and I figured that that was what he was referring to, the probationary period On cross-examination, Bennie testified Q What happens, what was said regarding the pro- bationary employees during that meeting? A At that meeting the probationary employees, it came out and it was all discussed that we could not go along with that in the contract and before it was fin- ished, Mr Snow had stated that it would be no prob- lem Q What would be no problem? A That is what I figured He figured that the pro- bationary period wouldn't be any problem Q You said that you couldn't go along with the probationary clause and he says "That wouldn't be any problem," so what would take place with the pro- bationary clause? A I figured he would take it out of there That was my understanding 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q You mean take the probationary clause out alto- gether A Yes Q So that there would be no probationary employ- ee clause at ally A That is right Q That was your understanding? A Yes Q You know that the Union security clause was changed during the contract negotiations , don't you? A No, I don't Q Do you know that at the beginning of that meet- ing the company had proposed that the union security clause require employees to become members of the Union after 90 days? Were you aware of that9 A That was in there, yes Q And was that the way the clause remained at the end of that meeting? A No I understood that it was to be taken out along with the probationary period, that whole sec- tion Q That is the-you understood that was to be changed I thought you said that you didn't know that there was any change made in the union security clause9 A Well, it is all the same section That was in the probationary period section Q I see, and that clause was, in fact , changed, wasn't it? A Now, do you mean which way it was changed? Q Union security clause was changed, was it not? A It was supposed to have been changed from 90 days to 31 days Carpenter testified, on direct examination Q Who said what and what were the positions tak- en by the parties regarding the probationary employ- ees A Well, it was argued back and forth for quite awhile on Section 3 whether it would be 31 days pro- bationary or 90 days We stepped outside to give them time to talk and when we come back in, I took it for granted that Mr Snow said there would be no prob- lem- Q Well, tell us what was said A Well, when he come back in, why it was talked some more about which way and whether it was against the law or not Q What was against the law? A To have the 90-day probation instead of 31, the way our bylaws read Q And what was the resolution of it between the parties? Who said what9 A Well, Mr Preston made a statement that he thought it would be against the bylaws to have 90-day probation in there Q What did Mr Snow say? A Well, Mr Snow said that Mr Preston should get a hold of his lawyer and check it out to make sure if he is right Q Well, did the parties say anything else about the probationary employees? A Well, after all back and forth on arguments, af- ter they took a break and talked, I dust took it for granted when we come back in Mr Snow said there wouldn't be no problem Q Just tell us what Mr Snow said9 A Well, main thing I remember that when they was going back and forth , when it was all over that Mr Snow said it was no problem with the 30 days That is what I took for granted he meant JUDGE As nearly as you can recall, what did he say? THE WITNESS He said, "There would be no prob- lem " JUDGE Do you recall what was said immediately before he made that statement9 THE WITNESS No, ma'am Q (By Mr Litvak) What was the subject that you were discussing that led Mr Snow to that comment9 A We were discussing the probationary period On cross-examination, Carpenter testified Q Now you testified that one of the matters that was discussed at this meeting was the question of the probationary period Now, in what respect did you discuss that again? Was it in connection with the membership in the Union or just what? A Well, it was for the membership Q What do you mean9 A Well, if you have a 90-day probationary period and then in your bylaws it says that they have to be- come members in 31 days, - Q Your Union bylaws say that The company has proposed, though, had they not, that the Union mem- bers, the Union employees, strike that-that the em- ployees not become members until 90 days, isn't that correct A That is right Q And you discussed that at some length , didn't your A Yes Q And didn't you discuss that in connection with the question of the probationary period, too9 A I can't remember Q You can't remember, but isn't it a fact that both of these items are tied into somewhat the same para- graph A Yes Q In any event, ultimately did the company say that there would be no problem with respect to the employees becoming members of the Union within a 30-day period as requested by the Union? A Yes Q Is that what they were referring tog Is that what Mr Snow was referring to when he said there would be no problem? A That was my feeling Q That the company could go along with the company's or the Union' s proposal that the mem- bers-that the employees become members at the end T M COBB COMPANY 699 of 31 days rather than 90 days and that was the im- pression that you got from them, isn't that correct9 A Correct It is apparent that the above testimony fails to establish that Respondent agreed to delete "probation employees" from the unit exclusions and both Cobb and Snow deny that they so agreed In all the circumstances, I find that Respondent did not agree to delete "probation employees" from the unit exclusions Since it is undisputed that Respondent and the Union did not in negotiations reach agreement on a contract, I find it unnecessary to reach the question of whether there was a meeting of the minds as to whether probationary employees were to be excluded from the unit in Respondent's final offer What is critical is what was rat- ified The Union agreed to submit Respondent's final offer for ratification If the Union was successful in negotiating changes in the offer, the offer as changed was to be submit- ted If no change was negotiated, the offer as proposed by Respondent was to be submitted If ratified, the final offer would become the collective-bargaining agreement be- tween Respondent and the Union Upon all the evidence, I find that, in ratifying the final offer, the employees understood that Respondent's posi- tion was that probationary employees were to be excluded from the unit It is undisputed that Respondent posted a copy of its final offer next to the timeclock either on June 26 or on June 25 at the conclusion of negotiations Al- though, on direct examination, Preston testified that when he presented the initialed final offer to the membership he treated the words "probation employees" as if they were not there, his testimony on cross-examination was substan- tially different On cross-examination, he testified that he only read those provisions where changes had been negoti- ated because the employees had been kept abreast of de- velopments through Respondent's posting of the initialed final offer As to the recognition clause, he testified that he specifically read that clause because he wanted to point out to the membership that the words "probation employees" were still in dispute He told the membership that Respon- dent had agreed to delete those words but had them put them back Marshall Wooten, president and business manager of the Union, also testified as to the ratification meeting His testimony is contradictory At first he testified that the is- sue of the probationary employee exclusion had been dis- cussed with the membership at meetings prior to June 27 but that at the June 27 ratification meeting "it wasn't even in the meeting as such that night, because it was settled " Later he testified Q Did you point out to them any other deficiencies or what you had viewed as deficiencies in the Company's proposal9 A The ones that I was aware of was the ones that I went over, the pension, health and welfare and dental and/or if it was a factor, the 90-day probation We could not live with that We would be in violation of every law in the land, I felt, not the bylaws That is academic, but we didn't feel that we would be right in taking money from people 60 days before we could represent them Q In any event, you pointed all these things out to the employees9 A Yes, we did Then, on cross-examination, he testified that the proba- tionary employee exclusion was not a factor in the meeting, that he thinks it was never mentioned in the meeting "be- cause it was supposed to have been taken care of " Then he testified that the provision was presented to the member- ship with "probation employees" deleted According to him, "it was discussed and I said that was taken care of, that it would not be in there because the 90 days below here [the union-security clause] had been scratched through and 31 days put in there " In the circumstances, I find that by the ratification vote of its membership the Union accepted Respondent's final offer as initialed and that both Respondent and the Union were obligated to execute said agreement The crucial issue is whether, by Preston's refusal to execute such agreement and his insistence that probationary employees be included in the unit,' Respondent was relieved of its obligation to execute said agreement and was free to withdraw or mod- ify its prior proposals Although Respondent and the Union had reached agree- ment on the terms of a collective-bargaining agreement, they could, by mutual consent, reopen negotiations Re- spondent was therefore free to consider the Union's at- tempt to modify the recognition clause as an offer to re- open negotiations which Respondent could either accept or reject Once accepted, Respondent could make its own proposals and, in fact, could take any action it could have legally taken prior to reaching agreement on the terms of a contract on June 27 Respondent could withdraw or mod- ify proposals or make new proposals so long as such action was not taken with an intent to undermine the Union, or to avoid reaching any agreement, or for any other reason in- dicating a refusal to bargain in good faith The evidence fails to establish any such illegal intent on Respondent's part The withdrawal of a union-security clause is not, without more, violative of the Act, particularly where, as here, the Union has urged throughout negotiations that the union-security clause is inextricably intertwined with the clause which the Union wished to modify, and Respon- dent, at the time it withdrew the clause, asserted a not unreasonable rationale for its changed position which the Union made no attempt to refute 8 Furthermore, this is not a situation where an employer withdraws a previously agreed-upon proposal of prime importance to the union at a time when final agreement is imminent On the contrary, the agreement had been concluded not by negotiation but by the ratification vote Once the parties had agreed to 7 The D D McCullum letter agreement was not contained in Respondent s final offer Moreover, it appears that the D D McCullum letter never became a major issue Even on July 17, Respondent stated that it would give the Union the requested letter s Respondent explained the reason for its changed position as employee disenchantment with the Union due to union actions surrounding its unsuc- cessful attempts to persuade employees to reject Respondent's final propos- al 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reopen negotiations, they were in the same position as they were prior to the agreement to submit Respondent's offer for ratification-far from reaching agreement on many items Accordingly, I find that by its July 17 refusal to execute the collective-bargaining agreement reached on June 27, Respondent did not violate Section 8(a)(1) and (5) of the Act I further find that by withdrawing the previously agreed-upon union-security provision Respondent did not violate Section 8(a)(1) and (5) of the Act The complaint also alleges that Respondent has refused to bargain in good faith by bypassing the Union and deal- ing directly with unit employees concerning their terms and conditions of employment In support thereof, General Counsel argues that by posting on the employee bulletin board a letter from Cobb which, in effect, places the blame upon the Union for failing to execute the collective-bar- gaining agreement and for demanding changes in said agreement , Respondent attempted to deal directly with its employees in an effort to undermine the position of the Union as the collective-bargaining agent of Respondent's employees The notice, dated July 18 and signed by Cobb, states TO ALL EMPLOYEES SUBJECT Results Of The Latest Meeting With Local #2288 I again met with the union on Thursday afternoon, July 17, 1975 The union once again stated that they would not sign the Agreement which was negotiated, agreed to and ratified by you-they still insisted on changes I told them that in view of the many employees of the company who have told us how unhappy they were with the union because of their actions of 1 Threats of fines 2 Not allowing certain members to vote on the con- tract ratifications, etc 3 And because of their expressed feeling that they did not want a union shop clause in the contract, the company proposed to eliminate that clause which is (Section #3 Union Security) We further stated that if our employees wanted free choice as to whether they must join and remain union members in order to work at the T M Company, then I felt morally obligated to eliminate that clause from the contract My prime concern and interest is to make sure that each of you know and understand what has taken place and to keep you fully informed I further informed the union that in view of the facts and evidence, I, as the employer, did not want to be in the position of being forced, by the union, to discharge or fire any employee as a result of problems or dis- putes between T M Cobb Company employees and the union If you have any questions, please feel free to ask Thanks In all of the circumstances, particularly my findings that the Union's action relieved Respondent of its obligation to execute the collective-bargaining agreement reached on June 27 and that the evidence failed to establish that Respondent's conduct preceding the distribution of the July 18 letter was illegally motivated, I find that the July 18 letter is not violative of Section 8(a)(1) and (5) of the Act Upon the foregoing findings of fact and conclusions of law and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed ORDERS It is ordered that the complaint herein be, and the same hereby is, dismissed in its entirety 9 In the event that no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the find- ings 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