Associated Printers, Inc.

ASSOCIATED PRINTERS, INC 619 Associated Printers, Inc. and Local 18L, Graphic Arts International Union . Case 5-CA-7270 June 30, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On January 2, 1976, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief, and the Union filed exceptions and a supporting memorandum. 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 only to the extent consistent herewith. In finding that Respondent violated Section 8(a)(5) of the Act on May 2, 1975, by refusing to execute a collective-bargaining agreement including all previously agreed-upon terms, the Administrative Law Judge found that the parties had reached agree- ment regarding the contract duration. We do not agree. It is undisputed that on September 13, 1974, the parties reached a tentative verbal agreement that any collective-bargaining agreement reached would be in effect for 1 year from the date of execution. Subse- quently, on September 24, Respondent submitted a final proposal specifying the term as running from October 1, 1974, until September 30, 1975. This final offer was rejected by the Union on September 27, and the parties continued intermittent negotiations concerning disputed items. On May 2, 1975, follow- ing the resolution of other disputed contract terms, Respondent reintroduced the issue of the contract duration. The Administrative Law Judge concluded that, in spite of the Union's rejection of Respon- dent's September 24 proposal and subsequent events, the parties' previous tentative agreement as to con- tract duration was still in effect and Respondent re- mained bound thereby. Contrary to the Administrative Law Judge, we find that on May 2, 1975, there was no binding agreement as to the contract term. Between the time of the parties' September tentative agreement on the contract's duration and the resolution of all other outstanding issues on May 2, a number of crucial intervening events occurred which make it unreason- able to bind the parties to their tentative verbal agreement. On September 24, subsequent to the ten- tative agreement, Respondent submitted a proposed contract for a specific period from October 1, 1974, to September 30, 1976, which supplanted its previous 1-year offer. The union, however, through a vote of its membership, rejected this proposal. In addition, during these 7 months the employees went on strike; Respondent implemented many of the provisions contained in the rejected proposal; and Respondent received a petition suggesting a diminution of the Union's support among its employees. These occur- rences substantially altered the parties' relative posi- tions and clearly bear upon any decision relating to the contract's term. Furthermore, 7 months, a period of time slightly longer than one half of both the par- ties' 1-year agreement and the most recent term offer, had elapsed by May 2. Thus, to give effect to the previous tentative agreement would lengthen the du- ration of the contract benefits, many-of which Re- spondent implemented when the employees struck, to a period substantially longer than the parties had contemplated when they made the tentative agree- ment. In light of the numerous intervening events be- tween September 13, 1974, the date of the verbal agreement on a 1-year contract term and May 2, 1975, the date Respondent reintroduced the issue of the contract's duration, which significantly altered the relationship between Respondent and the Union herein, we find that Respondent's earlier offer of a 1-year contract term was no longer operative or binding. Accordingly, we find that Respondent's reintroduction of that issue at the May 2 meeting was neither a repudiation of a prior agreement nor evi- dence of bad-faith bargaining. Therefore, we con- clude that on May 2, 1975, there was no complete collective-bargaining agreement that Respondent was obligated to execute and, thus, Respondent's failure to do so did not violate Section 8(a)(5) of the Act.' Accordingly, we shall order that the complaint be dismissed in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint here- in be, and it hereby is, dismissed in its entirety. 1 In view of our disposition of this case, we do not reach the Union's exceptions to the Decision of the Administrative Law Judge 225 NLRB No. 80 620 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge- Pursuant to a charge filed on May 5, 1975, by Local 18L, Graphic Arts International Union, hereinafter called the Union, a complaint issued on August 22, 1975, alleging that Respon- dent refused to bargain in violation of Section 8 (a)(5) and (1) of the Act by refusing to execute a collective-bargaining contract agreed to on May 2, 1975, by withdrawing from an agreement previously reached as to duration of the con- tract, and by insisting on an agreement limited in duration to the remainder of the Union's certification year. The complaint also alleges that a strike of Respondent's em- ployees which commenced on September 30, 1974, was prolonged by Respondent's unfair labor practices. In its answer Respondent denies the commission of any unfair labor practices. A hearing in this case was held before me on October 21, 1975, in Baltimore, Maryland. At the conclusion of the hearing oral argument was waived. Briefs have been re- ceived from all parties. Upon the entire record in this case including my obser- vation of the witnesses and their demeanor I make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Maryland corporation, is engaged in the manufacture and sale of business forms and in commercial printing and lithography at its Baltimore, Maryland, facili- ty. During a representative 12-month period Respondent had gross revenues in excess of $500,000 and sold products valued in excess of $50,000 which it shipped to points out- side the State of Maryland. I find that Respondent is an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The Union was certified on June 14, 1974, following a June 6 representation election, as the bargaining represen- tative of Respondent's production and maintenance em- ployees. On July 19 negotiations commenced for an initial collective-bargaining agreement between the parties. From then until December 31, the union negotiating committee was headed by Local Union President Frank Jablonski. After December 31, 1974, William Panuska replaced Jab- lonski as president of the local and as head of the union committee. Principal spokesman for the Company was George Curtis Brown, Jr. On July 19, the Union presented the Company a total package proposal, and the parties proceeded to discuss that proposal article by article at a number of meetings. At a September 13 meeting the parties discussed duration of the proposed agreement. Respondent had initially sought a 6- month contract while the Union sought a contract to run 1 year from the date of its execution. At this meeting Jablon- ski persuaded the union committee that they should offer to abandon a union request for a wage escalator provision if Respondent in turn would agree to a 1-year contract term. The Company agreed with this proposal, and it ap- pears that the question of duration was not discussed again until May 2, 1975. Nothing was initialed to memoralize any agreement as to duration, although it appears that in all other instances in which the parties reached agreement on articles of the proposed contract before September 24, 1974, language embodying the agreement reached was ini- tialed. On September 24, 1974, Respondent submitted a com- plete package proposal to the Union as a final proposal. The proposed agreement, if accepted would have run for 1 year from October 1, 1974, through September 30, 1975. The Union agreed to submit this proposal to its member- ship for a vote, and on September 27 the membership vot- ed unanimously to reject the proposal and to strike on Sep- tember 30. Immediately after the ratification meeting Jablonski contacted Brown, informed him of the vote, and told him that if possible he would like to find a way to reach an agreement before September 30 and avoid a strike. Jablonski told Brown that the issues which separat- ed the parties were the company proposals as to vacations, wages, and the cost of dependents ' insurance coverage.' Also, Jablonski told Brown the Union desired union- secur- ity and checkoff provisions which the Company had not included in its proposal. The parties did not reach any further agreements by Sep- tember 30, and on the morning of October 1 the Union struck. From 12 to 14 employees crossed the Union's pick- et line and continued to work during the strike and approx- imately 32 employees remained on strike. Shortly after the strike began the Company hired permanent replacements for the strikers or abolished their fobs. By the beginning of March 1975, no further agreements had been reached and the issues which separated the par- ties remained the same as at the start of the strike. On March 14 the parties met and the Union accepted and initialed the Company's September 24 proposal with respect to vacations. The parties continued to meet through March and April and held a final meeting on May 2. Dur- ing these meetings they continued to discuss resolution of the outstanding contract issues and a possible agreement 1 The union negotiators had not initialed the portions of the proposal dealing with these items after receiving the company proposal Although they agreed to submit the proposal to the members, it is unclear whether the union neogitators agreed to these items as they had others which they had initialed subject to ratification, or had merely agreed to submit them to the membership as part of a final package ASSOCIATED PRINTERS, INC. for ending the strike and returning the strikers to their jobs. No new contract issues were raised. On May 2 the parties met with their attorneys and a Federal mediator present. At the outset of the meeting the union committee accepted the Company's September 24 proposal with respect to wages and the cost of dependents' insurance coverage and abandoned its union-security and checkoff proposals. The parties then negotiated over rein- statement rights for strikers and reached agreement that strikers with less than 3 months' seniority would be placed upon a preferential hiring list for 3 months and those with 3 months or more seniority would be placed upon a prefer- ential hiring list for 6 months. The parties also negotiated an agreement for repayment to the Company's pension fund of contributions which had been advanced by the employer on the strikers' behalf during the strike. The meeting had lasted 3 or 4 hours to this point. After these agreements were reached Union President Panuska told Brown it looked like they had an agreement.' At that point Brown stated that there was one additional matter to be discussed and that was duration of the con- tract. Brown said that a petition had been placed on his desk anonymously the previous week and that based on the number who signed it, he no longer felt that the Union was supported by a majority of the employees and would there- fore not agree to a 1-year contract. Brown said that until he checked further he would only agree to a contract to run until June 6 some 5 weeks hence.3 Panuska became upset and told Brown that he was the bargaining agent for the employees and not Brown. Panuska asserted that they had previously agreed to a 1-year contract, and protested that they had just agreed to a preferential hiring list which gave strikers recall rights for 6 months while the Company was proposing a contract to expire in 5 weeks. Panuska said that he wanted a 1-year contract to give the striking union members a chance to get back to their jobs and work under the contract.4 Panuska conceded that he knew that those who worked during the strike were not union members be- 2 Panuska and two other members of the union committee , Ferres and Rasnake, testified that Panuska made a statement to this effect Respondent's negotiator, Brown, and Attorney Frank testified that they did not recall Panuska making this statement Brown testified that at this point Panuska asked if there was anything else to discuss However , Frank testi- fied that Panuska began gathering up his papers at that point and Brown testified that Panuska later charged him with refusing to sign a contract I have concluded that Panuska made the statement as set forth above In the findings which follow I have relied principally on the testimony of Ferres who appeared to be most accurate and complete in her recollection 3 It appears from the testimony of Brown and Ferres that Panuska may have construed Brown's statement about checking further as indicating that Brown would go to the employees to check on their wishes before he would agree to any contract running beyond June 6 According to Brown, howev- er, he was referring to a further check by his attorney as to Respondent's legal position It is disputed whether Panuska said that the Union would only accept a contract of I years's duration Panuska denied making such a statement, and Ferres testified that she did hear him make such a statement However, Brown so testified and Rasnake testified that he heard Panuska say that he would not sign a contract for less than a year While Rasnake impressed me as generally imprecise in his recollection of what was said, and the circum- stances generally do not appear to have favored precise perception, whatev- er the words actually used by Panuska , I credit Brown that Panuska con- veyed that the Union would only accept a I-year contract in view of Brown's further uncontradicted testimony that Panuska also charged that Brown was refusing to sign a contract 621 cause they were crossing the picket line. He protested, however, that since the certification year had not expired the Company could not challenge the Union's representa- tive status and said that the Union would file a charge with the Board. Brown stated that the Company wanted to meet again the following week to discuss this issue further.5 Pa- nuska grew more excited and rose to leave while an argu- ment ensued in which voices were raised and several per- sons spoke simultaneously. At some point Company Attorney Frank indicated to Union Attorney Nutt that Brown's position was only an initial position and Frank raised the possibility that the Company might agree to a September 30 expiration date since the company package proposal bore that expiration date.' Panuska told Brown he would not meet further to negotiate because Brown no longer recognized the Union's representative status and he could not bargain in good faith. Panuska accused Brown of refusing to sign a contract and improperly challenging the Union's representative status. Panuska asserted that the Union would file charges, and the union committee left. The instant charge was filed 3 days later. No further meet- ing was held. According to Brown and Frank, after April 25 and be- fore the May 2 meeting Brown had found on his desk a copy of an employee petition purportedly signed by most of the employees then at work indicating that they no lon- ger wanted the Union to represent them.? Brown recog- nized the signatures of the more senior employees whose names appear on the petition and he recognized all the names as names of employees then working in the plant. Brown did not try to check the validity of the signatures on the petition until sometime after the charge in this case was filed. Brown had also heard previously from his brother, who worked as a production employee, that a petition was being circulated and he had heard inquiries about six em- ployees after the strike began about decertifying or getting rid of the Union. He had also heard negative comments about the Union from employees after picket line inci- dents. According to Brown and Frank before the May 2 meet- ing they had discussed the petition to some extent, but Frank had been unable to conclude whether or not based on the petition the Company could insist upon a June 6 contract expiration date. They testified that as a conse- quence Brown took the position at the meeting that as of that point, until his lawyers had an opportunity to do more research, he was not prepared to sign an agreement which ran beyond June 6, but wished to discuss the matter fur- ther. 5 Although Panuska conceded that Brown offered to meet the following week, he testified that Brown did not state any purpose for such a meeting However, Ferres testified that Brown said that he would need more time and would have to check before he could sign any contract which ran be- yond June 6 and offered to meet the following week to discuss the matter further I have credited Brown as corroborated by Ferres in this regard 6 Frank so testified Although Panuska and Ferres denied hearing Frank mention the September 30 date, Frank indicated that he was speaking to Nutt at the time and the circumstances in which the meeting broke up make it likely that not everything that was said was heard by all or correctly perceived I have credited Frank in this regard There were 31 names on the petition 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Concluding Findings The initial issue in this case is whether as of May 2 the parties had a complete collective-bargaining agreement for a 1-year period. The General Counsel and the Union con- tend that when the parties reached agreement with respect to preferential hiring of strikers and the pension contribu- tions to be made by strikers, all outstanding issues had been resolved including duration of the contract. Respon- dent contends, on the other hand, that there was never any agreement with respect to the duration of a contract, that its September 24 proposal was for a contract to become effective on October 1, and that the question of duration remained open when the Union rejected that proposal. There is substantial evidence that the parties had agreed upon a contract of 1 year's duration before the May 2 meeting. Even before the Company made its September 24 proposal, the parties had agreed that any contract they might reach would run for 1 year from the date of its exe- cution. That agreement was reached when other contract items remained open and no one knew when a contract might be executed. When the Company made its package proposal, it incorporated that agreement relating it to a proposed October 1 effective date. There can be no doubt that as of the end of September there was no issue as to contract duration, despite the fact that the parties had not initialed any proposal dealing with duration. When the Union rejected the company proposal, it in- formed the Company of the issues which separated the par- ties. Duration was not among them. In the negotiations that continued until May 2 those issues along with issues pertaining to strikers' rights to reinstatement were the only issues discussed. At no time before May 2 did the Compa- ny inform the Union that it wished to withdraw from the earlier agreement as to duration and to renegotiate that issue. All of the discussion and agreements reached be- tween September 30 and May 2 took place in the context of the oral agreement reached on September 13 and reflect- ed in the September 24 proposal that any contract reached would run for 1 year from its date of execution as well as the agreements previously reached as to all issues other than those specified by Jablonski in notifying Brown that the September 24 proposal was rejected. In sum, rejection of the September 24 proposal at most terminated the Company's offer in the areas specifically rejected by the Union but not in the areas as to which agreement had been separately reached before the September 24 proposal was made. As it turned out even in the areas rejected by the Union the Company did not withdraw its offer. Respondent contends that the Union could not have as- sumed that its proposal for a 1-year contract to commence with its date of execution continued after the strike began because its September 24 proposal was for a contract to run until September 30 of the following year and after the strike began the Company had implemented the terms of that proposal. Respondent contends that if its proposal for a contract for 1 year from date of execution still stood as the strike continued, the effect would be to continue the contract terms longer than the Company intended to the possible detriment of employees who worked during the strike. I cannot agree, however, that the terms of the September 24 proposal or its unilateral implementation by Respon- dent altered the oral understanding previously reached as to contract duration. The dates in the September 24 pro- posal embodied the prior oral understanding and did not change it. The terms negotiated following the beginning of the strike clearly implied an agreement going beyond both the June 6 date offered on May 2 and the September 30 date of the Company's September 24 package proposal. Thus, in March the parties agreed to a vacation proposal containing provisions applicable after June 6 and on May 2 before Respondent sought to raise the issue of duration, the parties entered into a preferential hiring agreement for strikers which gave them reinstatement rights running into November and waived longer reinstatement rights to which they otherwise would have been entitled.8 Contrary to the Company's contention, the negotiating context gave the Union every reason to assume that the Company's offer of a contract to run 1 year from execution still stood and if that offer was to be withdrawn, the burden was on the Company to do so. Respondent, however, took no initiative to reraise the issue of contract duration between September 30 and May 2 Indeed, when Brown received the copy of the employee petition following the April 25 meeting, he took no initia- tive before or even at the outset of the May 2 meeting to inform the Union of the petition or his intent to reraise the issue of duration because of it. To the contrary he negotiat- ed for several hours without mentioning it and only after the Union acquiesced to the Company's position with re- spect to all remaining contract issues and reached agree- ment as to all strike settlement issues did Brown make any mention of the issue of contract duration. I find that Brown's last-minute effort to reraise the issue of contract duration came too late. When the final areas of disagreement were resolved on May 2, the Union had be- fore it a proposal for a complete agreement and it had accepted it in its entirety. Only after the last issue was re- solved and Panuska commented that it appeared that the agreement was complete did Brown for the first time seek to rescind the offer of a 1-year contract. Once the Union had accepted all the terms of the Company's offer, the agreement was complete and it was too late for the Compa- ny to revoke any part of it. Accordingly, I find that a com- plete agreement had been reached when Brown for the first time attempted to revoke the Company's offer of a 1-year contract. In these circumstances it is immaterial that Respondent expressed willingness to meet further on the matter and that the Union refused. To be sure the Union could have agreed to negotiate further with respect to contract dura- tion, but it was not obligated to do so. The controlling consideration is that before Respondent sought to raise the issue of contract duration it had reached a complete agree- ment with the Union and at that point it became obligated to sign the agreement it had reached. Although there is no evidence that after the May 2 meet- 8 The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd 414 F 2d 99 (CA 7, 1969), American Machinery Corporation, 174 NLRB 130 (1969), enfd 424 F 2d 1321 (C A 5, 1970) ASSOCIATED PRINTERS, INC ing the Union tendered any document for Respondent to sign, Panuska made it clear at the May 2 meeting that he believed the parties had a contract, and Brown made it clear that he did not. It is clear that a specific demand upon Respondent to sign the contract would not have al- tered its position, and if Respondent had any doubt as to the Union's desires the charge and complaint made it clear that the Union sought a signed contract.' The fact that Respondent had received a copy of the employee petition before it repudiated the agreement did not relieve Respondent of its bargaining obligation. On May 2 the Union's certification year has 6 weeks to run, and the presumption that its majority continued was irre- buttable. Whether or not before it reached agreement with the Union Respondent could have insisted on a contract to expire with the certification year because of its awareness of the petition,1° its obligation to bargain continued and included the obligation to execute any agreement reached. Accordingly, I find, as alleged in the complaint, that since May 2, 1975, Respondent has refused to execute a written collective-bargaining agreement reached on that date and that Respondent withdrew from an arrangement as to con- tract duration after the parties had reached a complete agreement thereby violating Section 8(a)(5) and (1) of the Act.1 I I find further that but for Respondent's unlawful repudi- ation of the agreement reached by the parties, the strike which commenced on September 30, 1974, would have ter- minated in accordance with the strike settlement agree- ment negotiated on May 2. Therefore, I find that Respondent's unfair labor practices were the cause of the continuation and prolongation of the strike beyond that date and that since May 2, 1975, the strike has been an unfair labor practice strike IV. THE REMEDY Having found that Respondent violated Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. As I have found that Respondent violated its obligation 9 East Texas Steel Castings Co, Inc, 191 NLRB 113 (1971), enfd 457 F 2d 879 (C A 5, 1972) 10 See Star Expansion Industries Corporation, 164 NLRB 563, 587 (1967), affirmed 409 F 2d 150 (C A D C ), F Strauss and Son, Inc, 216 NLRB 95 (1975) 11 1 do not find that Respondent insisted on a contract term limited to the certification year since it appears that it was willing to negotiate further and had not taken a hard and fast position I do not view its attempt to negotiate further on duration as a violation separate and distinct from its repudiation of the agreement reached but rather view it simply as evidence of that repudiation 623 under the Act by refusing to execute the agreement reached on May 2, 1975, I shall also recommend that Re- spondent be ordered upon request to sign such an agree- ment, to comply retroactively to its effective date with its terms, and to make whole the employees for losses, if any, which they may have suffered by Respondent's refusal to sign such an agreement in accordance with the formulae set forth in F. W. Woolworth Company, 90 NLRB 289 (1950) and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Although I have found as alleged that the strike became an unfair labor practice strike on May 2, 1975, there is no indication that any striker has sought reinstatement and been denied reinstatement rights to which he is entitled, and there is evidence that the fobs of all those on strike as of May 2 had been filled by replacements or abolished before that date. I shall not recommend that the Order contain any provision relating to the reinstatement of the strikers, as it appears that in the event that any individual striker seeks reinstatement and a contention is made that his reinstatement rights have not been honored the deter- mination will depend upon the facts of his particular case. 12 CONCLUSIONS OF LAW 1. Associated Printers, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 18L, Graphic Arts International Union is a la- bor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees, including drivers, warehousemen, and stock handlers employed by Respondent at its Balti- more, Maryland, facility but excluding all office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since June 14, 1974, the Union has been and now is the exclusive representative of the employees in the said unit for the purposes of collective bargaining with- in the meaning of Section 9(a) of the Act. 5. By refusing on or about May 2, 1975, to execute a collective bargaining agreement including all the terms to which it has previously agreed during contract negotiations and by withdrawing from agreement on the duration of that contract Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 12 Cf Buffalo Arms, Inc, Division of Frontier Industries, Inc, 110 NLRB 816 (1954), set aside 224 F 2d 105 (C A 2)