National Fresh Fruit & Vegetable Co.

NATIONAL FRESH FRUIT & VEGETABLE CO. National Fresh Fruit & Vegetable Company and Quality Banana Co., Inc. and General Drivers, Warehousemen & Helpers Local Union No. 968, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 23-CA-6274 September 28, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On May 12, 1977, Administrative Law Judge Robert G. Romano issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. z The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE ROBERT G. ROMANO, Administrative Law Judge: This matter came on for hearing on January 10 and 11, 1977, pursuant to a charge filed the preceding October 29 and a complaint issued December 3.1 The complaint alleges that Respondent Employer and the Charging Party Union on or about October 5 negotiated and agreed to a full and complete collective-bargaining agreement; but that on or about October 13 Respondent Employer withdrew certain terms of the agreement relating to the effective date of the contract. The complaint alleges the aforesaid conduct was in violation of Section 8(aX5) and (1) of the National Labor Relations Act, as amended, 29 U.S.C. §151, el seq. Respondent Employer filed a timely answer on December 13 denying the commission of any unfair labor practices. At the close of the hearing the parties waived oral argument, but have submitted timely briefs on their respective positions which have been received on or about February 15, 1977. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the briefs and arguments advanced by the parties, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Texas corporation with its principal office in Houston, Texas, where it is engaged in the business of wholesaling fresh fruits and vegetables. During the 12 months preceding the issuance of the complaint, which period is representative, Respondent purchased and received goods valued in excess of $50,000 directly from points outside the State of Texas. Respondent admits and I find that it is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED General Drivers, Warehousemen & Helpers Local Union No. 968, a/w International Brotherhood of Teamsters. Chauffeurs, Warehousemen & Helpers of America, is admitted by Respondent to be, and I find is, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. Prior history of collective bargaining National Fresh Fruit & Vegetable Company and Quality Banana Co., Inc. (herein Respondent, the Company, or National), is a subsidiary of Grocers Supply Company. National has enjoyed a collective-bargaining relationship under successive contracts from 1967 with General Drivers, Warehousemen & Helpers Local Union No. 968, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (herein Teamsters Local 968, Local 968, or the Union). The most recent negotiated contract was effective from May 1, 1973, through April 30, 1975, with a wage reopener successfully negotiated and executed on September 17, 1974, but effective retroactively to May 1, 1974. Respondent's parent, Grocers Supply Company, has enjoyed a collective- bargaining relationship with the Teamsters for over 20 years, including a current agreement with Teamsters Local 968. More recently Grocers Supply Company has acquired All dates herein refer to the year 1976 except where otherwise stated. 232 NLRB No. 91 543 DECISIONS OF NATIONAL LABOR RELATIONS BOARD another corporation, Standard Institutional Foods, as a subsidiary corporation. Teamsters Local 968 successfully negotiated a collective-bargaining agreement on December 20 which agreement was executed in early January 1977. However, continued bargaining looking towards an agree- ment for National, as described by the parties, has been in a state of turmoil and confusion for several years. Mr. Max Levitt is an officer and one of the owners of Grocers Supply Company and its subsidiary National. Mr. Clarence Chadwick is director of personnel for both Grocers Supply Company and its subsidiary National. As director of personnel, Chadwick's present responsibilities extend to labor relations, employee training and develop- ment, and maintenance of personnel records. A. W. Parker, presently an International representative, was for years a business manager of Teamsters Local 968 and had successfully negotiated contracts during that period with Mr. Levitt since 1965 and more recently with Mr. Chadwick since approximately 1970. More specifically, Parker and Chadwick had negotiated the May 1, 1973, National agreement and its 1974 wage reopener. On April 15, 1975, Parker on behalf of Teamsters Local 968 opened up for negotiation the existing contract with National which was then due to expire on April 30, 1975. However, prior to commencement of actual negotiations, Mr. Parker received an appointment within the Teamsters International organization apparently, initially, as an organizer for the Southern Conference of Teamsters and sometime subsequently as an International representative. Parker was succeeded by Willard Manuel who then served as president and business manager of Local 968. Manuel served as principal negotiator for Local 968 and conducted negotiations with Chadwick that the parties hoped would lead to a new contract with National. According to credited testimony of Chadwick as of April 28, 1975, each party had made its final offer without a contract being agreed upon and the parties had recessed for the day. That evening Manuel called Chadwick advising that he would not be able to sell the Company's last offer but with some additional money he felt he would be able to convince the membership to accept the new contract. On the morning of April 29, Chadwick notified Manuel that the Company would be willing to increase its offer but that first Mr. Levitt wanted to meet personally with Manuel to discuss the matter. On the morning of April 30, 1975, prior to the scheduled resumption of negotiations that day, Levitt told Manuel that the Company would increase its offer but that he wanted it clearly understood there was to be no recurrence as this money offer would be the Company's final offer. Manuel then assured Levitt that with the increased money offer they would have a contract; and Manuel told Levitt that though he had only recently taken over he had the power to sign the contract and the people would have to learn that. In subsequent negotia- tions the Company increased its offer to 35 cents for the first year and a 30-cent increase for each of 2 succeeding years during the life of the proposed 3-year contract. 2 The complaint as amended at the instant hearing alleges that an appropriate unit is "all truckdrivers, shipping clerks, receiving clerks, warehousemen, forklift operators, packers. craters and separators, excluding all other employees, office clerical employees, guards, watchmen and supervisors as defined by the Act, as amended." All parties were in About 3 p.m. that day Manuel notified Chadwick the contract had been ratified. Chadwick immediately in turn notified Levitt. However, over the weekend Chadwick learned that something might be amiss when an employee reported to him that employees at the union hall did not think the outcome of the vote was as it was reported and that they were going to take up the matter with Parker. According to Chadwick, on the following Monday Manuel reported the members had gone to Parker and that Manuel was forced to take another vote. Chadwick told Manuel that he was not particular with the number of votes and it was the Company's position that they had a contract. However, when Chadwick subsequently tendered a con- tract to Manuel for signature, the latter refused to sign it. When Manuel subsequently attempted to resume negotia- tions, Chadwick informed Manuel that they had a contract and further negotiations were unnecessary. Parker testified credibly and without contradiction that it did become necessary for him at that time to issue a directive to Manuel on this matter. The question brought to him was whether the membership had ratified and approved the contract at National as reported by Manuel. After an investigation, Parker found the vote taken was nine against ratification and six for ratification. Manuel had interpreted the constitution of the International organization to the voting members in such a way that they had not rejected the contract in sufficient number. Manuel consequently concluded he was therefore free to sign the contract. As a consequence of Parker's investigation he determined that the vote in fact had not been for ratification and consequently he directed Manuel to notify the Company immediately that the contract had not been ratified and that further negotiations would be necessary. Later that week Parker spoke to Levitt and Chadwick personally on the matter. Levitt was upset as he felt he had an agreement. Parker informed Levitt that the contract was not ratified and explained the circumstances. Parker further reminded Levitt that he was aware that all contracts since 1950 had required ratification of the membership. Levitt, however, did not accept Parker's conclusion. Manuel was sometime later removed from office. The Company thereafter filed an appropriate 8(b)(3) charge with this Agency on June 9, 1975, which upon investigation was dismissed August 22, 1975. Respondent pursued the matter with a timely appeal which was denied by the General Counsel on November 10, 1975. The parties resumed negotiations on November 18 and 19, 1975. Representing Local 968 at that time were its chief negotiator, John Daigle, and representative "Red" Ferarra. Representing the Company was Mr. Chadwick. The Company presented its proposals which at that time included a position taken to eliminate shipping and receiving clerks from the unit.2 On the morning of November 23, 1975, Local 968 commenced a strike. National thereafter replaced strikers with permanent replacements. Additional meetings between the parties took place in December 1975, but nothing was resolved. agreement at the hearing that the foregoing unit constituted a unit appropriate herein for the purpose of collective bargaining within the meaning of Sec 9(b) of the Act and stipulated it as the unit in the prior contract. I so find. 544 NATIONAL FRESH FRUIT & VEGETABLE CO. On December 30, 1975, Teamsters Local 968 filed charges alleging violations of Section 8(a)(1) and (5) in Case 23-CA-5896; and it subsequently filed amended charges adding allegations of violation of Section 8(aX3) on February 25, 1976. On February 4 Local 968 had presented to the Company an unconditional offer for the return of all strikers. On February 26 the Company offered to return all strikers and commenced doing so February 29, at which time it also instituted its first increase of 35 cents under its prior offer. 2. Prior proceedings before the Board A complaint on the above charges (as amended) in Case 23-CA-5896 issued on February 27 and alleged that Respondent refused to bargain with Local 968 by demand- ing that shipping and receiving clerks be removed from the appropriate bargaining unit in violation of Section 8(aX)(5) and also alleged that Respondent's employees who went on strike as a result of this unfair labor practice had not been reinstated upon request in violation of Section 8(aX3) and (1) of the Act. This matter came up for hearing before Administrative Law Judge James L. Rose on May 17 and 18, 1976. The Administrative Law Judge concluded in his deci- sion, issued on July 27, that the General Counsel had failed to prove by a preponderance of evidence that during negotiations beginning on or about November 18, 1975, Respondent failed or refused to bargain in good faith with the Union on mandatory subjects as alleged in violation of Section 8(a)(5) of the Act. He found that the General Counsel failed to prove by a preponderance of the evidence that the strike was caused, in whole or in part, or prolonged by Respondent's unfair labor practices. However, the Administrative Law Judge did conclude that on February 4 each striker had made an unconditional request for immediate reinstatement and further concluded that Respondent did not offer any of the strikers immediate reinstatement pursuant to that request and that Respon- dent thereby had violated Section 8(a)(1) and (3) of the Act. Subsequent to the close of the hearing on the matter presented before me, the Board issued its decision in the above-related matter on January 31, 1977, National Fresh Fruit & Vegetable Company and Quality Banana Co., Inc., 227 NLRB 2014. Therein the Board related that there is undisputed testimony that the shipping and receiving clerk issue was one reason for the employees voting in favor of a strike which commenced on November 23, 1975; and that after the strike began Respondent never came forward with any different position on the unit placement of the shipping and receiving clerks. On February 4 Local 968 ended the strike by submitting a letter requesting reinstatement of all strikers and they were offered reinstatement on February 26, 1976. The Board found merit in the exceptions taken to the Administrative Law Judge's failure to find that Respon- dent violated Section 8(a)5) of the Act and that the strike i Respondent advises in its brief that a request for review in that case has been filed with the Court of Appeals for the Fifth Circuit. was in fact an unfair labor practice strike. While accepting the Administrative Law Judge's credibility resolutions and factual findings, the Board disagreed with his conclusions. The Board rather concluded that Respondent's position as to the shipping and receiving clerk categories during the period of negotiations was one adamantly held and that Respondent thereby insisted to impasse upon a nonmanda- tory bargaining subject in violation of Section 8(aX5) and (I). The Board further found that the insistence on the modification of the unit was one of the reasons why the employees struck. Accordingly the Board found the strike which began on November 23, 1975, was an unfair labor practice strike from its inception since Respondent's insistence to impasse on excluding the clerks was at the very least a "contributing cause" of the strike.3 3. Interim negotiations of June 7, 1976 Prior to the issuance of the aforesaid Administrative Law Judge's Decision on July 27, the parties met again in an attempt to resolve their differences. Thus on June 7, 1976, James E. Jackson, then business manager and secretary- treasurer, Eric Nelson, Local 968's attorney, and represen- tative John Close met with Mr. Chadwick in the offices of the Federal Mediation and Conciliation Service. At that time the Union made an offer to settle on the contract which included a demand for a retroactivity of the contract to April 1975. According to the uncontradicted and credited testimony of Mr. Chadwick, who presented the Company's offer at that time, it included the same raises; namely, the 35 cents already in effect and 30 cents for each succeeding year. However, Chadwick proposed also that the contract be for 3 years effective from that date, thus effective from June 1976 to June 1979. As explained at the hearing herein the Company's position was that with the advancement of time the effective date of the contract was advancing also. The Company made it clear it withdrew its demand for elimination of shipping and receiving clerks from the unit. At this time the parties were also able to determine that the appropriate authority would not require retroactivity on health and welfare benefits. However, the parties failed to reach agreement. The Union thereafter filed new charges on June 7 in Case 23-CA-6091 which were thereafter withdrawn on June 1. On approximately July 6 Teamsters Local 968 was placed into receivership or trusteeship by its parent International Sergio Ponce, employed by the Southern Conference of Teamsters, was assigned to act as business manager and secretary-treasurer of Local 968. In keeping with his responsibility as an International representative which included special assignment in receivership situa- tions and in view of his prior successful negotiation of contracts for Local 968 particularly with National, Parker was assigned to assist Ponce in such negotiations. At that time Ponce began running the Union's affairs which involved some 77 companies. Chadwick testified that he was advised of the change in union officers in late August or early September. About 545 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this time there was a meeting among Mr. Ponce, Mr. A. W. Parker, Mr. Levitt, and Mr. Chadwick. The meeting actually related to the relationship in contracts between Grocers Supply Company and its new acquisition Standard Institutional Food which was a concern of Joel Parker who was another representative of Local 968 with responsibili- ties for that company. During the course of the meeting according to credited testimony of Chadwick, Mr. A. W. Parker brought up with Mr. Levitt the matter of National. Levitt's response was that he did not want to talk about National, that Chadwick was the negotiator for that Company and whatever he said is it. Some time later in September, Chadwick called Ponce and reminded him that there was still no contract with regard to National. Finally a negotiation meeting was arranged for October 5. Contrary to the position of the General Counsel, Respondent contended that the background of the devel- opment of strained relations with regard to National was essential in evaluating the positions of the parties when they met and negotiated on the cntical negotiations of October 5 and 13. Inasmuch as I have agreed with Respondent in this respect, I have set forth the essential elements of that background such as they had developed. 4. The negotiation meeting of October 5, 1976 This meeting was held in the office of Mr. Chadwick at Grocers Supply Company. Representing Local 968 were A. W. Parker and Sergio Ponce. Representing Respondent were Mr. Chadwick and his assistant, Mrs. Virginia Lessman, assistant director of personnel. Chadwick and Parker were the principal spokesmen for their respective parties while Ponce and Lessman kept notes. Parker utilized a copy of an expired contract with an addendum wage reopener on which from time to time he made insertions. This was done in the event the Union were to type a completed agreement. However at the completion of the negotiations the parties did not review the insertions Mr. Parker made on his work copy of the contract. It may only be additionally appropriately noted that in setting up the meeting Ponce had requested Chadwick to be thinking of a little more money. At the commencement of the negotiations Parker took the initiative.4 He recounted that there had been a lot of turmoil and that the several attempts to reach agreement by several different negotiators had previously failed. He did not want any more fighting; he was there to settle on a contract; the matter had been lingering on too long. Parker stated that when the Union made an unconditional offer to return and stopped its picketing it was a form of surrender. That was the posture in which he was there. Parker stated that the contract would be basically on the basis of what the Company had offered. The Union's demands (new) previously brought up that had not been settled were to be considered withdrawn. Agreements already reached should be incorporated in the expired agreement. However, Parker stated he was at a disadvantage since he did not know what I The following is essentially a composite of compatible and credited testimony of the above individuals. Areas of conflict and some inconsistency in all individual testimony do exist. Where such conflicts on significant matters are found to exist, the witnesses' versions are specifically identified and appropnate resolution of the conflict made with reasons explicated. In had been previously agreed to and that he was going to have to depend on the Company. He asked that they begin anew. Parker said basically the body of the contract would remain the same: He suggested that they get the hardest points over first, for example, expiration date, the issue of retroactivity, dates of wage increases, dates of increases to health and welfare, and holidays; in other words, resolve all monetary items first. The rest of the contract would then readily come. Parker asserts that Chadwick agreed. Chadwick's version was essentially the same. However, he relates that the only items that he regarded left to negotiate were the expiration date and possibly health and welfare. Parker additionally wanted some language clarifi- cations in certain areas and the Company simply went along with him. According to Chadwick, Parker at the outset inquired if there was anything that was important to the Company. Chadwick replied that they were asking for a very unusual thing; the Company wanted a 3-year contract from the signing of the agreement. Chadwick also noted the Company had already put one of their previously offered raises, namely 35 cents, in effect in February of that year. Chadwick then told Parker their position was that at that time (February) they had wanted the 3-year contract and they still wanted a 3-year contract. Chadwick further explained their position which was that the Union had been slow in not settling this matter; that production at the Company had suffered accordingly; that there had been some mischief; and that the Company should not be expected to have to suffer all of this burden alone. In one of several digressions that occurred during negotiations on the National contract, Chadwick told Parker that Grocers Supply Company which had just put into effect a large raise under its contract was in serious economic difficulty due to an economic downturn and might have to ask the Union for its help. Chadwick informed Parker that he did not want National in that posture. The Company was asking for a 3-year agreement from this date, but with credit for the 35 cents already given in February 1976. Parker then inquired when the contract would expire. Chadwick replied he had no way of knowing when the dates would be. Chadwick, corroborated by Mrs. Lessman, went on to explain it would depend on when the contract was finished and ready to be signed. Much of Parker's testimony is suggestive of an under- standing on his part that Chadwick's initial proposal was in its essence one simply of an expressed intention to protect the wage increase already given; to preclude an additional wage increase for the first year; and to obtain a 3-year contract with Chadwick unknowing how to accomplish that arrangement. However, I find to the contrary that it was clearly understood by all, at least initially, that the Company had broached a proposal for a full 3-year contract that was to extend from the time negotiated. In his testimony to that effect Chadwick was corroborated by Mrs. Lessman. Further Chadwick testified without contra- diction that he overheard Ponce remark to Parker in subdued conversation at the negotiation table: "Do you addition to the demeanor of the witnesses I have given considerable weight to available documentary evidence to determine the resolution of conflict. Where I have found one individual's testimony in a particular area generally less reliable, I have so indicated. 546 NATIONAL FRESH FRUIT & VEGETABLE CO. know what he is talking about. There won't be any raises for a long time there"; and, as well, Parker's reply: "Yea, we'll get back to it." This major finding is further supported by the testimony of Parker himself that during the negotiation he told Chadwick the Union was opposed to a 3-year contract wherein only 60 cents was granted in a 36-month period, since that was below what they were accustomed to negotiate. Still other support is found in Ponce's recollection that Parker explained the problem was not with a 3-year contract of October to October, but that the Company was going to be given credit for a February raise. Parker proposed the date of the initial increase made in February 1976 be the beginning of the new agreement and that the contract run to February 1979, thus for 3 years. He also related that Chadwick appeared befuddled by this and also questioned its legality. Chadwick's version is that he noted to Parker that that was not 3 years from the signing of an agreement and that Parker only smiled and kept going. Mrs. Lessman's testimony was corroborative of Chadwick's in that she testified Chadwick shook his head and said that would not be 3 years from now. We want a 3- year contract and we do not want to be in the same mess we are now with Grocers Supply. Mrs. Lessman also confirmed that Chadwick related that they were afraid that they were going to have to forfeit one of the raises on the Grocers Supply contract; and a discussion thereon ensued on the economic predicament of Grocers Supply. According to Parker he next described the method by which the raises would be put into effect on a 3-year contract beginning in February. Parker, making appropri- ate entries on the appendix to the expired contract which contained the prior wage schedule as he went along, proposed that the first raise for 35 cents would be effective February - 1976 (the exact date to be supplied by the Company) and showed it as "administered." He then showed the next 30-cent increase would be effective the nearest Sunday, January 30, 1977, and the next raise effective February 5, 1978. Ponce corroborated to the extent that (at some point) Parker had explained to Chadwick how giving credit for the first raise in February and subsequent yearly raises would work; and that Chadwick replied it was okay, that all he was concerned with was just getting credit for money given in February. Parker testified that he also wrote in the words "expires 2- 1-79." Chadwick testified he told Parker that that was not 3 years from the signing of the agreement and that Parker smiled and kept reading. Significantly, Parker himself conceded in his version that at this point the matter was not settled. Mrs. Lessman added that during the discussion by Parker and Chadwick concerning the economic predica- ment of Grocers Supply Company, Parker had remarked that National should have had a contract when the people came back on an unconditional surrender; that it got no help from the Union; and that the Union should not thereafter have come back with more demands. At this point, Mrs. Lessman testified and her notes support her testimony that Chadwick noted to Parker that in June Jackson had asked for the old contract but with retroactive health and welfare; and that Chadwick specifically told Parker that Jackson had subsequently, after the filing of charges with the NLRB, told him that he would withdraw if Chadwick would give him retroactive pay to February 29, plus certain other items. The parties then went on to a discussion of health and welfare. Parker asked what the agreement was on that item and Chadwick replied that there was not a new agreement. Parker stated the Union would want to maintain the level of existing benefits which had been at a rate of $13.50 a week but might be $16.50 now. The parties discussed the requirement of retroactivity. Parker proposed a 3-year contract expiring February 1979 with benefits starting as of the date of the agreement. The parties discussed and entered changes on vacations (a matter of previous agreement) and Chadwick then announced National's agreement to whatever plan was appropriate on health and welfare. Parker announced that the Union could live with the old contract with a few changes. There was discussion and agreement on certain changes in grievance procedure and rearrangements of provisions respecting discharge, suspen- sion, and warning notices. There was an agreement reached on a change in language relating to cost of lodging and transportation (an item with which National was not then concerned); agreement reached on funeral leave language (a matter basically previously agreed to); and agreement that National would have the same holidays as Grocers Supply Company (which apparently did not effect an immediate change in the number of holidays). The parties also agreed on jury duty (a matter previously agreed upon); and thereupon that health and welfare would be effective from the signing of the agreement. Parker then corrected the contract to read: "Effective upon the signing of this agreement the Employer shall provide Plan A of the Central States Southeast & Southwest Areas Health and Welfare fund throughout the life of this agreement." Parker's testimony is that it was at this point that Chadwick agreed to the schedule of raises earlier an- nounced. Parker relates that he requested the parties turn to page 20 to the termination clause and change it as follows to read February 1976 to February 1979. He suggested that they delete the wage reopener language and delete the date 5-1-73 (old contract) and insert February -, 1976, with the Company to supply the firm date; and then delete 4-30-75 and enter February -, 1979. Chadwick categorically denied apart from agreement on wage increase scheduling that he had ever agreed that the contract was to run from February 1976 to February 1979; and testified that any time Parker mentioned an expiration date of February 1979, he would remark, in substance, that that is not 3 years. According to Parker, he next turned to page I of the agreement and made similar entries. Mrs. Lessman's notes, about which more will be mentioned later, do reflect a notation with regard to the termination clause on page 20 as follows: "Page 20-change-February 76 to February 79." However, such appears without explanation. There is no reference thereafter to making such an entry on page 1 of the contract. To the contrary, Mrs. Lessman testified in regard to the above item that Mr. Parker just went on without a break discussing additional matters; and that 547 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Chadwick said that on that occasion Mr. Parker that is not 3 years from now. Lessman testified also that Mr. Chadwick never indicated to her that he had agreed to February 1976 to February 1979. Mrs. Lessman's notes show that a number of related items were discussed immediately thereafter including deletion of the wage reopener paragraph which is found in the termination clause section; and items on the wage schedule appendix A, to wit, the deletion of a line relating to retroactive pay that was applicable in the expired contract, and a reference that the parties show the first raise already administered, next raise closest Sunday to February 1. Parker related that at the end he thumbed through the entire agreement and they reagreed to all items. Chadwick, corroborated by Mrs. Lessman, denied that this was done at any time and that in fact Parker had continually skipped around and that Chadwick frequently asked him to slow down. I credit Lessman and Chadwick in this respect. However, both Chadwick and Mrs. Lessman have testified that the negotiations proceeded very calmly which they regarded as quite different from prior negotiations they had held with Mr. Parker as the negotiator for the Union. I do not find that Parker's mode of negotiations in moving from section to section was other than an effort in search of an agreement. Mrs. Lessman's testimony (and her notes support her) was to the effect that thereafter Parker discussed entry in appendix B of the appropriate vacation increases which were a subject matter of prior agreement. There then ensued a discussion of the wage reopener addendum which included a wage and hour amendment. This amendment had been renegotiated at the time of the wage reopener in 1974. It was a substitution for Article VI, Wages and Hours, and is so captioned. It is sufficient to note at this juncture that it contains in section 3(a) in regard to overtime provisions a reference to "effective May 1, 1974." The new contract provision in that respect also contains a reference to "effective October 11, 1976." The significance of this will be observed in the discussion, infra, in relation to the anticipated date of signature of the agreement, namely October 11, 1976; as well as its potential to contribute to misunderstanding of the parties. Both Mr. Chadwick and Mrs. Lessman testified that at this point Mr. Chadwick stated that the date would be effective on signing of the agreementfor 3years. However, Mrs. Lessman's notes in this respect show at that juncture only "SLC: Dates effective signing of the agreement." Mrs. Lessman testified and her notes support her that there was next a discussion concerning a request of Parker that a sentence be put in the contract to make it clear what increase was already paid and what increases were to be paid. The parties thereupon agreed on the statement "The wage increase called for as of February -, 1976, has already been put into effect. The wage increases of January 30, 1977, and February 5, 1978, will be paid out as outlined in the agreement." According to Mrs. Lessman, Parker then announced, "Well I guess we can agree on this." At that point Chadwick questioned him about the acquies- cence of the people in regard to the agreement, as they had heard that before. Parker told Chadwick the people have given Ponce a power of attorney and they do not need to ratify; there would be no problem. I have noted previously that Parker testified at the end of the meeting that he had thumbed through the entire agreement and the parties reagreed to all items. Chadwick, corroborated by Mrs. Lessman, denied that this was done. I have credited Chadwick and Lessman in this respect. Rather I credit that Parker only proposed that the parties initial the pages at that point, relating it would take the Union 2 to 3 weeks to type the contract unless Mrs. Lessman could do it earlier. As to subsequent arrange- ments that were made, I find that Parker's recollection thereon was also unreliable. Parker himself had other commitments that day. Several subsequent calls were made by Mr. Ponce, to which Parker did testify in summary form. Some of the latter were inconsistent with Ponce's testimony. As an example, Parker testified that he would never agree to having the Company type up minutes and that the arrangement rather was that Mrs. Lessman would type the contract up for them to sign on Thursday, October 7, 1976, but that she had later called Mr. Ponce to say it was delayed. Chadwick testified that it was agreed that Mrs. Lessman would type up minutes of the changes that were agreed upon which would then be put in contract form. According to Chadwick, Mr. Ponce wanted Mrs. Lessman to do it right then but Chadwick was of the view that Mrs. Lessman should first go to lunch and do it thereafter. Ponce was to return that afternoon and sign the minutes as Parker had another engagement. Ponce's testimony partially confirms Lessman and Chadwick in that it was his initial belief that she was to type up a synopsis of their agreements. However, his understanding was that he was to come back on October 7, 1976, a Thursday which was a regular scheduled grievance date. Although Ponce did not recall any discussion about his coming back that same day, he testified that it was possible there was a reference by Mr. Chadwick that Mrs. Lessman could not type the minutes up right then as she had to go to lunch. More significantly, Ponce testified that it was either he or his business agent who subsequently notified the Company that Ponce would not be able to make it over to the Company on Thursday, October 7, 1976. In this area, I find the Company's witnesses more reliable. I find that it was initially agreed that Ponce was to return on October 5 to sign a memorandum containing the agreements that were reached; and that he was not able to do so thereafter until October II, 1976. On the afternoon of October 5, 1976, Lessman typed up the minutes of the agreement. Before doing so she inquired of Chadwick whether she should include Grocers Supply information and additionally what effective date she should use. In her testimony she explained that the reason she made this inquiry was because she did not know what specific date in October to use since she did not know when the parties would actually sign the contract. Chadwick told her to type up only National agreement material; to use "Effective the signing of the agreement"; and that use of October 1, 1979, as a terminal date was fine. I find that 548 NATIONAL FRESH FRUIT & VEGETABLE CO. Mrs. Lessman typed such minutes on October 5, 1976. However, this finding is limited to the first two pages.5 Insofar as pertinent the memorandum pages I and 2 contain the following significant references: I. The Union and the Company have agreed to a three (3)-year contract effective upon the signing of the agreement to and including October 1, 1979. 2. ARTICLE XX-changed to ARTICLE XXI- TERMINATION CLAUSE This agreement shall be in full force and effect upon the signing of this agreement to and including October 1, 1979, and shall continue in full force and effect from year to year thereafter, unless written notice of the desire to change or modify the agreement is served by either party upon the other at least sixty (60) days prior to the date of expiration. 3. DATES TO BE USED--"Effective the signing of this Agreement." A-1 - Appendix "A" - Classification - Wage Schedule - DATES OF INCREASES: Feb. 29, 1976, $.35; Jan. 30, 1977, $.30; Feb. 5, 1978, S.30 The wage increase called for as of February 29, 1976, has already been put into effect. The wage increase of January 30, 1977, and February 5, 1978, will be paid out as outlined in the agreement. I have earlier noted that the testimony of Mr. Chadwick and Mrs. Lessman was to the effect that following the discussion and agreement by the parties to use the entire wage-and-hour amendment language that Mr. Chadwick stated that the dates to be used were effective upon the signing of the agreementfor 3years. This occurred towards the end of the meeting. The thrust of the testimony of Parker and Ponce is that Chadwick had agreed to a 3-year contract from February 1976 to February 1979. In short there is a major conflict. Suffice it at this juncture to note the conflict and that it is resolved infra, when all material considerations bearing thereon are exposed. However, I note even presently in that regard that Mrs. Lessman's collective-bargaining notes relate only: "Dates-effective the signing of the agreement." Mrs. Lessman explained that note as only being a highlight taken during the negotiations. However, when she prepared her minutes of the agreements that afternoon of October 5, it appears recorded as "Dates to be used-effective the signing of the agreement." Thus, again there is no mention of the phrase "for 3 years." If the statement were made without the phrase "for 3 years" and following the agreement on the use of the wage-and-hour amendment it could well have been received and understood by Parker and Ponce as no more than a clarification being made as applicable to the date to be used in relation to article VI, section 3(a). It does not necessarily follow that that meaning was so intended I The minutes of Mrs. Lessman in evidence concerning the changes the parties had agreed upon are contained in two pages of a four-page exhibit. The third and fourth pages constitute Article VI. Wage and Hour (formerly part of the wage reopener) for insertion in the contract. This document contains the reference to sec. 3(a) "effective October 11, 1976 .... " Since such provisions relate to the anticipated signature date which was determined sometime after October 5 (discussed infra). I reject the testimony of Mrs. Lessman to the extent it would include preparation of that matenal by Chadwick. Quite to the contrary Mrs. Lessman in preparation of the minutes of October 5 separated such from reference to the wage-and-hour amendment, but left it immediately preceding the notes relating to Appendix A-Classification-Wage Schedule. In summation I find at this point this much, that Mr. Chadwick on that occasion did state that the dates to be used would be effective upon the signing of this agreement. I further note that the statement found to have been made is equally compatible with the position Mr. Chadwick had taken at the outset of negotiations and on several occasions during the negotia- tions; namely, that the term of 3 years would be effective on the completion of the negotiations. I additionally find at this juncture that it was so understood by Mrs. Lessman. In my view this matter has no small significance bearing on the area of potential misunderstanding by the parties. If Parker and Ponce had understood in the utterance of Mr. Chadwick no more than a reference to correction of the date in the wage-and-hour amended section to show an effective date upon signing, and Mr. Chadwick to the contrary was in fact continuing and maintaining in that utterance his initial proposal that he still wanted the 3-year contract effective in the manner he had urged up to that point, the grounds for potential misunderstanding of the parties had already occurred. In that connection, although Chadwick credibly testified on several occasions that Jackson's bargaining position earlier in June was for retroactivity in the contract to April 1975, 1 nonetheless also note at this juncture that Mrs. Lessman's notes had Mr. Chadwick reporting to Parker on October 5, 1976, that Jackson had said to him in June "I will withdraw if you give me retroactive pay to February 29, plus dispatcher job and something else." Such inadvertencies are frequently catalysts of misunderstandings in themselves. The more so, if the inadvertency is one such as may be inopportunely received as a bargaining signal. As will be seen infra, there are still other considerations bearing on possible misunder- standing of the parties. 5. Subsequent events prior to the meeting of October 13, 1976 Mrs. Lessman testified credibly that on the afternoon of October 5 Chadwick informed her Ponce would not be back that day. Commencing on October 6 or 7 and by October 8 on her own she had typed and completed the entire contract with certain exceptions. There was some testimony, much of it conflicting, about the delivery of the contract to the Union prior to October 11, which in large measure I find unconvincing. The essential findings that I do make are on the basis of credited testimony of Ponce that at the time Ponce presented the contract terms to the membership on October 9 for their approval he worked from Parker's contract notations and his notes. I credit his positive testimony that he had not received the company- in that form on October 5. In this connection I note that Parker testified he had seen the first two pages of the minutes sometime after the dispute had arisen. He had not seen the third and fourth pages which constituted the wage addendum. Ponce testified that he had never seen the first two pages which constituted the memorandum of the changes though he had seen the matenal contained in the third and fourth pages of the wage and hour section. 549 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prepared contract at that time. However, I also credit the testimony of Mr. Chadwick that an offer was made to Business Agent Daigle, who appeared at Grocers Supply premises on October 7 for a grievance meeting, to take back to the Union a copy of the minutes that were prepared by Mrs. Lessman. This offer was refused by Daigle on the basis that it was a matter in which he was not involved and that he was not sure he was going back to the hall. Mrs. Lessman testified credibly that Mr. Ponce called her on Friday, October 8, about 4:30 and said that he would like the Company to send the minutes over to the union hall with one of the union stewards. She informed Ponce that she would relay the request to Mr. Chadwick, which she did. She did not give the steward any document before she left. Mrs. Lessman also testified that she had not prepared the first page of the agreement or the termination clause, article XXI, as reconstituted from article XX by virtue of other agreements. She did not do so because she understood the contract was going to be effective from the date of signing and she did not know what that date was going to be. While Mrs. Lessman did not so testify, Mr. Chadwick reported that on that occasion Mrs. Lessman informed him that Ponce had called about the minutes and that she had told Ponce she had the contract typed. Ponce had requested that it be sent over by one of the stewards. Chadwick testified that on being informed by Mrs. Lessman as to what had not been typed in the contract he instructed his secretary to type in the dates using the following Monday which was October 11. He selected that date because he was sure that Mr. Ponce would be out on Monday after he had received the agreement to sign it. The dates used on the front piece of the contract show effective October 11, 1976, and expires October 2, 1979.6 Article XXI, Termination Clause, as typed by Mrs. Martin provides "This agreement shall be in full force and effect from the signing of this agreement, to and including October 2, 1979 .. ." Mr. Chadwick testified that he gave a copy of the contract to a steward of Grocers Supply Company to take back to Local 968. However, Elmer Ray Punch on being called by the General Counsel testified that in October Mr. Chadwick did not give him a contract to take to Mr. Ponce. Punch recalled that during the month of June he had taken a memorandum extending the agreement between Local 968 and Grocers Supply Compa- ny to the union hall. In this respect I credit Punch and find the testimony of Mr. Chadwick unreliable in that regard. On October 9, a Saturday, Ponce met with assembled employees of National who were responding to a publi- cized meeting to discuss the contract. Ponce read the changes using Parker's work copy of the contract. Essen- tially he explained it was a 3-year contract and because the Company did not want to give two raises in I year, the contract had been negotiated from February 1976 to February 1979. Ponce explained that if it had been a 3-year contract from October to October the Company would have had to give another 30 cents to the men. He also told 6 This typing was completed by Mrs. Enez Martin who is Mr. Chadwick's secretary. Martin did not testify at this proceeding and the change from October I to October 2 is unexplained of record. As previously noted, the completed contract also contained in the body of the contract. "Article VI. Wage and Hours" with the reference date under sec. 3(a) them that the Union had agreed to give credit for the initial 35-cent raise but that nothing else would go back. In essence he explained the men would be just agreeing to a contract for 26 to 28 months with raises totaling 60 cents. According to the testimony of Ponce, which I credit, he also told the men that if they had something like a 3-year contract for 60 cents he would not even recommend it. The men ratified the agreement presented. On October 11, Ponce went out to the premises of National and secured from Mr. Chadwick a copy of the contract. He immediately noticed the effective dates used were not as he understood had been agreed to, and as had been presented to the membership. Although he was the individual who signed contracts for Local 968, he declined to sign the agreement at that time and returned with it immediately to Mr. Parker. When he presented the contract to Parker, Parker's reaction was that was not what they had agreed to and Ponce concurred. 6. The meeting of October 13, 1976 On the morning of October 13, Ponce called Chadwick to notify him that they would be out to sign the contract. Ponce requested that Chadwick have Max Levitt present. However, Chadwick informed Ponce that Levitt could not be there as he had another engagement but that Chadwick would arrange that Levitt sign the contract before he left. Ponce did not at that time raise any issue concerning the contract. Chadwick had Levitt sign the agreement before he left. Parker and Ponce met with Mr. Chadwick later that day. Parker announced he had several minor matters to take up and one big one. After several inadvertent errors of typing and omission were discussed and quickly resolved, Parker stated that the big item he wanted to discuss related to the term of the agreement. Parker's testimony was that he told Chadwick that they had agreed the contract would be from February 1976 to February 1979 and that Chadwick had typed up different dates; namely, October 1976 to October 1979. To this Chadwick replied he did not know how they could have a 3-year agreement negotiated in October unless they agreed to make October part of the contract. Parker inquired whether Chadwick was reneging on the agreement or whether when he typed the expiration date and the beginning date of the contract it was because he failed to understand the agreement. Chadwick stated that the Company was not seeking to put anything over on the Union, the Company just wanted a 3-year contract. Parker went over the credit that had been given for the February raise. Chadwick said he understood that. Parker said the Union was going to have to hold the Company to the agreement. Chadwick replied, according to Parker, "Well, I have talked to the little man" (Max Levitt) and this is what we want, we want October to October. Parker testified that with that statement he became angry and said the Union had negotiated in good faith, that he was going to hold the "effective October 11 1976...." It is readily apparent from the relationship of this date to the duration and termination clause date that it also could only have been entered following the determination of the use of that date. This was a matter which had been determined after Mrs. Lessman had left for the day on Friday. October 8. 550 NATIONAL FRESH FRUIT & VEGETABLE CO. Company to the contract; and that if Max Levitt wanted to change things he should have been present. Chadwick said this is what Max wanted.7 Parker then told Chadwick that both his notes and Ponce's notes showed agreement on February 1976 to February 1979. Parker recalled that at this point Chadwick had difficulty remembering some things and not others; for example, he remembered talking about February and even agreed to changing the dates on termination but would not say he would honor the contract. Chadwick had not kept notes. Parker asked if he could be advised what Mrs. Lessman's notes reflected. When Mrs. Lessman came in with her notes, Parker directed her attention to read the notes she might have as to page 20. Mrs. Lessman stated her notes showed a change, the date to February 1976 and another date to February 1979. According to Parker's recollection when Mrs. Lessman said that then almost at the same time Parker said that is exactly what we agreed to, to have a 3- year contract beginning in February 1976 to February 1979: and Chadwick said but we wanted a 3-year contract beginning in October. Mrs. Lessman said, "Well, I am sorry this is what my notes say but we did want a 3.year contract." Ponce essentially confirmed that Parker told Chadwick that they had agreed to a contract from February 1976 to February 1979. Chadwick said he did not remember this. Parker reviewed the contract. According to Ponce, Chad- wick agreed to all items except the beginning and termination dates. When Mrs. Lessman said her notes reflected February 1976 to February 1979, Chadwick said he was going to have to get back with Max Levitt on it but that Chadwick kept on his dates of October to October. Chadwick's version is essentially the same as to how the meeting began and the subjects initially discussed and corrected. He said Parker then stated we have a little problem of misunderstanding on the dates of the contract. that the Union was saying February to February and the Company was saying October to October. Chadwick stated it was his understanding that the expiration date would be 3 years from the signing of the agreement. Chadwick added that if Parker could get 3 years from now out of February to February he would buy his lunch. Parker asked what they were going to do. Chadwick told Parker that since back in June he had told the Union the Company wanted a 3-year contract every time they talked. He said the Company still wanted and intended to have a 3-year contract. To that Parker stated that it looked like they had a misunderstanding and he had February to February in his notes. Chadwick replied I have no problem with that, but I did not agree to that. Chadwick confirms that Mrs. Lessman was then called in at Mr. Parker's request and asked to bring her notes. Parker requested her to tell them what she had in her notes for page 20. Mrs. Lessman reported she had the dates as February to February. Chadwick testified that he replied there is no problem with February to February, I never said he did not say it, I am saying I did not agree to it. Chadwick testified, though not convincingly I find, that Mrs. Lessman at that point said ? The Company offers as a pnor inconsistent statement an affidavit of Parker given on November 2. 1976, in support of the charge. The only reference therein to Max Levitt is as follows: "Chadwick told me that he "but Mr. Parker you said February to February. He said 3 years from signing of the agreement." With that Parker said it looks like they had a misunderstanding somewhere. Parker informed Chadwick that he had another meeting to attend and would be back in touch. According to Chadwick there was no mention of Mr. Levitt in this meeting. Mrs. Lessman did not testify on the latter subject. Mrs. Lessman did testify as to Parker's inquiry on her notes. She confirmed that Parker asked her specifically about page 20. On reading her notes she said, "I am sorry to tell you this Mr. Chadwick but it does say February 1976 to February 1979." Lessman testified that she also said, "but, Mr. Parker, that is what you said. That is not what Mr. Chadwick said. Mr. Chadwick said 3 years from the signing of the agreement." However, in what I find must be concluded as both unusual and revealing in these circum- stances, Mrs. Lessman could recall nothing that was said by anyone after she made that statement; and she walked out. I do not find the testimony of either Chadwick or Mrs. Lessman persuasive in this matter of the statement being made at that time, by Mrs. Lessman, that it was Mr. Parker who had stated those dates. In contrast both Parker and Ponce were convincing in their denial that Mrs. Lessman had made that particular statement. In view of Lessman's nonrecollection of any details of the conversation after assertedly contributing such a statement to the problem, in circumstances where the corroboration of Chadwick was unconvincing, and in the face of firm denials of Ponce and Parker, I am persuaded to place no reliance on the fact that Parker and Ponce were so informed at that time. Addition- ally in this connection I note that Mrs. Lessman, in subsequent examination, explained when a question was raised as to certain markings found on her notes as to the very item of Parker's inquiry that the marking was a circle. She explained that she had a nervous habit. The habit was whenever a question was asked about her notes she would place a circle on the item so she could come back to it later. She had placed a mark there at the time of the inquiry. She also testified that the letters "A. W." which referred to Parker were not in her notes originally but were placed there sometime later though on the same day. I am also mindful that this meeting had been previewed as a contract-signing meeting and not a further negotiation meeting. I thus credit Ponce and Parker in their denials that Mrs. Lessman on that occasion made the statement to them for the reasons stated. However, having made that finding, I hasten to note that that finding in no way prevents a conclusion being reached such as was expressed in the statement under consideration if indeed the facts support it being drawn otherwise. I further find that at this meeting Parker related his view to Respondent that the Company had agreed to a contract from February 1976 to February 1979 and that he intended to hold them to it: and that Chadwick presented his view to Local 968 that his agreement was for a contract term from October 1976 to October 1979 though he recognized a problem. Thus, I further find that when Parker demonstrated what initially realized he had agreed to the agreement but he was sorry and would have to check with Max Levitt the owner. Chadwick promised to call me as soon as he talked to Levitt." 551 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appeared to be support for his position in the Company's own notes of that meeting Chadwick said he would have to talk to his superior, Max Levitt, about the matter though holding firm on his own dates at the same time.8 Ponce testified that Chadwick was supposed to call to let the Union know what Levitt said about the February dates. When Chadwick did not call the Union, Ponce contacted him on October 18. Ponce, relating in advance that he could not repeat Chadwick's words exactly, testified that what he understood Chadwick to say was that Chadwick understood what they had agreed to but Max did not want that, he wanted October to October and "that's more or less what I understood him to say." Chadwick confirms he had a conversation with Ponce on October 18. Chadwick told Ponce he had contacted Levitt9 and Levitt said that it was up to Chadwick. Chadwick told Ponce he was not agreeable to the February dates. According to Chadwick, at that point Ponce inquired whether he would be interested in a compromise in dates of from October to June. Chadwick replied, "Mr. Ponce, we told you before, we are telling you again, we wanted 3 years from the signing of the agreement." Ponce testified that he might have inquired about the acceptability of a compromise offer of October 1976 to February 1979 but did not recall October 1976 to June 1979. When asked why he would make such an offer not being the chief negotiator, Ponce testified that some of the people had been messed around for a year and a half. He said "now the Company has got to be crazy to try to get us to sign a contract for 3 years for 60 cents, sir. Now that is ridiculous." Parker's testimony was consistent therewith, he could not recall ever having negotiated a contract without a raise in a whole year. A few further notations on the evidence appear warrant- ed. Chadwick viewed Parker as a very skilled negotiator. In prior negotiations in this matter Chadwick testified credibly that the rule under which the negotiations had been conducted up to that time was, since they went article by article, that when an article was agreed upon it was closed and if a proposal was passed or abandoned by the party the article was assumed agreed. For this reason Chadwick was very careful in reasserting his position on the tenure of the contract. He did so particularly. in this matter because of the unexpected calmness of Parker in conducting the negotiations which he viewed as unusual. I credit Chadwick and Mrs. Lessman who corroborated him in that respect that Parker conducted the negotiations in an especially calm manner in an effort to arrive at an agreement. I note his own testimony was that the membership was without a contract and wanted any contract he could get for them. I It is appropriate to recall that not only had the meeting been previewed as a contract-signing meeting but Mr. Levitt had already signed the contract. 9 Chadwick recalled this contact with Levitt was made at a later request of Ponce to see if Levitt would accept the February dates. 1' One defense urged by National was that it had in fact negotiated a contract in April 1975. While conceding it previously had raised that very defense unsuccessfully in an earlier Board proceeding, Respondent now argues that it may do so again in this proceeding. Respondent cites as authority the pnor view of the Administrative Law Judge that a determina- tion by the General Counsel would not foreclose a finding that a contract had been reached. Respondent argues such issue was specifically noted by According to the credited testimony of Chadwick, the existence of that principle was also the specific reason for his asserting towards the end of the negotiation meeting of October 5 that the dates to be used were effective upon the signing of the agreement. Finally I note Mrs. Lessman's frank testimony that Parker had never said he specifically agreed to the October dates, but neither had he disagreed. She felt there was agreement because of the factors that indicated his acceptance; namely his nonreaction to the final position of Mr. Chadwick when stated, his remarkable overall calmness, his references to prior surrender, his statement that the Company should have had a contract a long time ago, and his present assurance that there would be no problem. She testified quite convincingly that the use of the February dates in the termination clause had never entered her mind in subsequently preparing the instrument. B. Analysis and Discussion Having made all of the necessary credibility resolutions required and determined the essential facts in conflict, it is now necessary to address the central issues presented herein. At the outset it is appropriate to note that the only theory on which hearing on the complaint proceeded was that National and Teamsters Local 968 had reached a full and complete agreement as to all terms and conditions of a contract at their meeting on October 5, 1976, and that National subsequently on October 13, 1976, withdrew certain items of the contract previously agreed upon, to wit those relating to the effective date of the contract for 3 years extending from February 1976 to February 1979. There is no allegation nor was the case litigated on a theory that National engaged in tactical maneuvers with an intention to avoid execution of a contract, whether because of intended retaliation, or otherwise. The sole issue before me is whether the parties had reached an agreement and if so has the Company withdrawn certain terms of that agreement and refused to execute the contract in violation of Section 8(aX5) and (1) of the Act.10 The evidence is convincing, the parties are in essential agreement and I find that they had reached a full agreement on all terms of a collective-bargaining contract including one with a duration of 3 years, reserving the one point on which they remain in dispute. The only question at issue is the tenure or commencement and expiration dates. By virtue of the posture of the case, that one factual issue bears directly upon the ultimate factual issue of whether or not the parties had come to a certain complete understanding on all terms of the contract. The determina- tion of that final fact issue has required resolution of much inconsistent evidence in the record but nothing more. The the Administrative Law Judge in that proceeding as one he felt he did not have to reach. Thus Respondent argues it may now raise that same contention. I note that parenthetically the Administrative Law Judge stated that if the Company really felt it had a new contract, from the evidence before him, it was in breach of it. The Board has since issued its decision on that matter in which it has referenced that the employees did not ratify the contract. I regard myself as bound by that factual recitement. However, even if I am in error in that view and am free to view the matter anew presently, I would not find such defense available to Respondent herein in view of the clear evidence of record herein that the employees had not ratified that contract. 552 NATIONAL FRESH FRUIT & VEGETABLE CO. applicable legal principle has been succinctly stated in Shreveport Garment Manufacturers, 133 NLRB 117, 121 (1961), as follows: While a labor contract is sui generis, like commercial or other contracts it comes in to being with binding effect only after there has been a meeting of the minds by the contracting parties on a complete agreement. Such meeting of the minds may occur by the accep- tance of an outstanding offer which looks to the creation of a binding contract upon acceptance. In the pleading of this case, if there was not a full meeting of the minds on an essential element of the contract, to wit its term, then the General Counsel's proof must be concluded to have failed and the complaint should be dismissed. In the determination of which of the terms of the contract as contended by the parties, if either, was agreed upon herein it is not the proper function of this Administrative Law Judge to pass upon the wisdom of the parties in regard to the terms they freely entered or lawfully advanced, nor directly or indirectly to compel concessions or otherwise sit in judgment upon the substantive terms of their collective-bargaining agreements. N.LRB. v. Ameri- can National Insurance Co., 343 U.S. 395 (1952). The General Counsel contends that on October 5 the parties had agreed upon a full and complete contract which included an agreement that the term of the contract be from the date the first raise was effective in February 1976 through expiration in February 1979. Respondent counter- contends that the parties had agreed upon a full and complete contract which included union acquiescence" that the term of the contract would extend from October 1976 to October 1979. Alternatively the Company contends there was no meeting of the minds between the parties on a contract term of February 1976 to February 1979 and at least a misunderstanding between them took place. Essentially Respondent contends it did not ever give its "assent" to the latter term. The General Counsel principally relied on the testimony of Parker which was that he had made a proposal covering what he understood were the essential interests of Chad- wick, namely, a 3-year contract (satisfied by one with duration from February 1976 to February 1979), with credit for an initial raise granted by Respondent on February 29, 1976, and with no retroactivity on additional cost items; and that Chadwick on October 5 had accepted that proposal and subsequently on October 13 refused to honor it. However, I have found to the contrary that it was clearly proposed by Respondent and understood by all that Respondent, through its chief negotiator, Chadwick, had initially broached a proposal for a full 3-year contract that would be effective upon the signing of the agreement. I have made further supportive findings that Respondent had taken a similar bargaining position in the negotiations conducted earlier in June 1976 and that it had expressly maintained its position in the negotiation meeting of " Respondent points to the practical approach of Parker "If I know that I have the bargaining unit behind me then I state a position to the Company and let them weigh it as it is, and if they understand that position they give it. If they don't they take us on. If I don't think I can get it, I let it go by the wayside." October 5 on at least several occasions. The General Counsel argues that to conclude that the tenure of the instant contract would be as Respondent contends begin- ning in October and not as the General Counsel contends beginning in February would make nonsensical a reference to an administered raise in February 1976. However, this argument based on result achieved can be of no help to prove the General Counsel's contention that the subse- quent negotiation led to a February 1976 to February 1979 agreement, since a credit for that very raise as well as a 3- year contract effective upon signature, admittedly an unusual demand, was precisely within Respondent's initial proposal. Further I can discern nothing illegal in that position fairly maintained. The General Counsel has also contended that if the contract had been intended to be effective from signature for 3 years, there would have been no need or occasion for the parties to be concerned with retroactivity and no need to eliminate retroactivity from the contract. But this contention must also fall in the realization that one of the parties, the Union, was bargaining from a position which would necessarily require a consideration of retroactivity. Further the contract provisions as finally negotiated and in particular those relating to health and welfare and wage and hours in containing references to effective dates may be readily explained as following the form of the contract language in the expired agreement which also provided for similar effective dates. Nor does it take into account the basic consideration that there had been no contract in effect between the parties from April 1975 to October 1976, some 18 months. Neither am I disposed to find, on Parker's conclusionary testimony alone, that there was an accep- tance of that February term in the circumstances of this case' 2 in the face of equally forceful conclusionary denials of Mr. Chadwick supported by Mrs. Lessman, particularly where I have found the established and maintained position of Respondent theretofore was to the contrary. It thus appears that it may be now clearly stated that the General Counsel, if he is to predominate in the evidence, must rely principally on his equally basic contention that Parker's understanding as the correct one finds its controlling support in the form of Mrs. Lessman's testimony and notes of the bargaining session of October 5, which indicated an agreement to change dates in the termination clause on page 20 to February 1976 and February 1979; and that this was the only changed item so designated in which such was not effected. I have previously given considerable weight in resolving conflict to documentary evidence where such is available. I have also found as unreliable Mrs. Lessman's testimony that on October 13 she told Parker and Ponce that the notation indicated what Parker was proposing and that Mr. Chadwick had said effective on the signing of the agreement for 3 years in the face of credible denial by Parker and Ponce that she had said that on that occasion. However reserved was independent conclusion that that was the case if the evidence otherwise warrants such 12 In addition to the certain areas of unreliability noted above in Parker's testimony for example on references to Max Levitt, the record reveals Parker testified on two occasions additionally that Chadwick said he had "goofed" only to later recount that the word "goofed" had not been used bh Chadwick. 553 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclusion. I have previously noted that there was no explanation of the (change-February 1976 to February 1979) statement in Mrs. Lessman's notes as well as no subsequent reference to entry of similar dates on the first page of the contract as described by Parker. Careful analysis of all of Mrs. Lessmen's notes of this bargaining session otherwise also convinces me that the development of the Union's position pertaining to the February raises and term of February 1976 to 1979 was not accomplished as Parker himself related. The total circumstances of additional definitive notes in this area following the above- referenced note under discussion much weakens the contention that it represented a full agreement reached at that point as contended by Parker. Additionally I have noted previously Mrs. Lessman's revealing testimony that at some time later that day she placed the initials A. W. on her notes, thus indicating that she in fact did at some point of time recall that the statement should be attributed to Parker. I have found also that Mrs. Lessman testified convincingly that in drafting the contract subsequently the use of February termination dates never entered her mind. The very same notes in fact contained later language that is supportive of her October agreement understanding, to wit the appearance "dates-effective signing of this agree- ment." The General Counsel argues what would appear to be his most telling point when he contends that in all instances in which the word change appears in her notes such changes were subsequently effected in the contract except this one. However this argument has its own weaknesses. In addition to those considerations immediately noted above, there is no clearly discernible pattern in her notes in the use of the word "change" as being used as a word of art to denote agreed changes. This is so since many changes had other instructive language and some had none. Nor was her testimony to that effect. To the contrary, Mrs. Lessman consistently and convincingly testified that in the prepara- tion of the memorandum (minutes) and the contract she was also guided by what she knew she had heard the parties agree to. What is to be searched for in cases such as the instant case under consideration, and which is then to be given controlling weight, is the discernment of the parties' assent. "Assent in the sense of the law is a matter of overt acts and expressions not of unanimity in motives, design, or the interpretation of words." 13 The position of the Company for a 3-year contract effective upon the signing of the agreement was first expressly proposed in June 1976. The position was again clearly and expressly stated at the commencement of the critical negotiation meeting of October 5, 1976, with reasons therefor set forth for the Union's consideration. The position was clearly and expressly maintained in contrast to the Union's proposals for a February 1979 '1' See 17 Am. Jr. 2d 354-356. ' A similar conclusion is warranted that the Union did not assent to the October 1976 to October 1979 dates. Thus, the record revealed Parker told Chadwick that the Union was opposed to a 3-year contract in which only 60 cents would be granted, since it was below what it was accustomed to negotiate. The October 1976 to October 1979 contract in providing for a last raise on February 5, 1978, would provide no raise for approximately 20 months. Parker could not recall ever having negotiated a contract before expiration date on at least several occasions during that meeting. While the possibility has been observed to exist for a misunderstanding by the Union, the Company's maintenance of its position is seen to be clearly compatible with the last stated position thereon by the Company in the form of Chadwick's statement of "dates-effective signing of the agreement." Circumstances otherwise existed to support Respondent's contention that the unanswered last statement of Mr. Chadwick had a special significance. Thus there had been a long period of turmoil and confusion, costly to the Company and to employees. Although several different prior negotiations had been held with different sets of negotiators, they had failed. In contrast the Union at the commencement of this particular negotiation meeting indicated it appeared in a posture of belated surrender; expressed a willingness to settle and unwillingness to fight any longer; in fact negotiated in an unusually calm manner; and presented an appearance of acquiescence in the Company's final maintained position. There was not a mutual transfer of notes; nor were agreed contract terms finally reviewed or initialed. However memorandum of agreed changes (minutes) was promptly prepared by Respondent that same day and in a form that is supportive of its understanding that the tenure as agreed was to be October 1976 to October 1979. Efforts were made to provide the Union with the minutes and timely opportunity to review the contract it appears may also have existed. Additionally the detailed notes of Mrs. Lessman, which I find more reliable, do not support the development of the agreed February wage schedule and tenure dates as testified to by Parker. I have noted that Parker's notes from which he testified were made in the contract in a form suitable for future use in the typing of a contract if that became the Union's responsibility. Finally, a premeeting signature was accomplished by Mr. Levitt before a dispute was raised to the attention of the Company. In the face of the above and all the circumstances of the case, I conclude and find that the General Counsel's evidence has failed to predominate. Shreveport Garment Manufacturers, supra; Mayes Bros., Incorporated, 153 NLRB 18 (1965); affd. N.L R.B. v. Mayes Bros., Incorporated, 383 F.2d 242 (C.A. 5, 1967). In short I find that there is not shown herein present the necessary "assent" of the parties to the term of the contract as being February 1976 to February 1979. Rather there appears to have been an unfortunate misunderstanding thereon.14 Having concluded that the evidence presented by the General Counsel has failed to prove by a preponderance of the evidence that Respondent had agreed to a full and complete contract with a term extending from February 29, 1976, to February 1, 1979, and finding consequently that Respondent did not with- draw its consent thereto in violation of Seetion 8(a)(5) and (1), I shall recommend that the complaint herein be dismissed. that did not have an increase in a year. Ponce viewed that result as "ridiculous." Parker had taken the initiative and actively pursued February term dates in circumstances noted heretofore which were fertile for misunderstanding that his proposal was acceptable. The Union never specifically agreed to those dates. Ponce also specifically advised the employees prior to their ratification that if it had been a 36-month contract for 60 cents it would not have been recommended to them. 554 NATIONAL FRESH FRUIT & VEGETABLE CO. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW i. Respondent is, 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. 2. The General Counsel has failed to prove by a preponderance of the evidence the allegations in the complaint that Respondent violated Section 8(aX5) and (1) '5 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. by withdrawing prior agreement to the effective date of a contract and thereafter refusing to sign a full and complete collective-bargaining contract that it had negotiated. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 15 The complaint should be, and is hereby, dismissed in its entirety. 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. 555