Machinists Automotive Trades District Lodge No. 190

486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Machinists Automotive Trades District Lodge No. 190 of Northern California, International Association of Machinists and Aerospace Workers; Auto and Ship Painters Union Local No. 1176, Painters and Allied Trades; Sheet Metal Production Workers Local No. 355, Sheet Metal Workers International Asso- ciation; and Teamsters Automotive Employees Local No. 78, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and Peterbilt Motors Company, Division of Paccar, Inc. Case 20-CB-3612 December 21, 1976 DECISION AND ORDER BY MEMBERS JENKINS , PENELLO, AND WALTHER On September 15, 1976, Administrative Law Judge Maurice M. Miller issued the attached Decision in this proceeding. Thereafter, the Respondents filed exceptions and a supporting brief, and the Charging Party filed a brief answering the Respondents' exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 Respondent Unions, Newark, California, their officers, agents, and representatives, shall take the action set forth in the said recommend-' ed Order. DECISION STATEMENT OF THE CASE MAURICE M. MILLER, Administrative Law Judge: Upon a charge filed August 29, 1975, and duly served , the General Counsel of the National Labor Relations Board caused a complaint and notice of hearing dated October 31, 1975, to be issued and served on the four labor organizations involved in the case, designated collectively as Respondent Unions within this decision. Therein, Respondent Unions were charged with the commission of an unfair labor practice within the meaning of Section 8(b)(3) of the 227 NLRB No. 76 National Labor Relations Act. (61 Stat. 136, 73 Stat. 519.) Respondent Unions, within their answer duly filed, conced- ed certain factual allegations within General Counsel's complaint, but denied the commission of any unfair labor practice. Pursuant to notice, a hearing with respect to this matter was held on January 20, 1976, in San Francisco, California, before me. The General Counsel, Respondent Unions, and complainant herein - Peterbilt Motors Company, Division of Paccar, Inc. - were represented by counsel. Each party was afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence with respect to pertinent matters. Since the hearing's close, briefs have been received from General Counsel's representative, and from Respondent Unions' counsel; these beefs have been duly considered. Upon the entire testimonial record, documentary evi- dence received, and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent raises no question herein with respect to General Counsel's jurisdictional claims. Upon the com- plaint's relevant factual declarations - specifically, those set forth in detail within the second paragraph thereof - which are conceded to be correct, and upon which I rely, I find that complainant herein was, throughout the period with which this case is concerned, and remains, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business operations which affect commerce within the meaning of Section 2(6) and (7) of the Act. Further, with due regard for presently applicable jurisdictional standards, I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate statutory objectives. II. RESPONDENT UNIONS Respondent Unions herein - various District Lodges and locals of the International Association of Machinists and Aerospace Workers, Painters and Allied Trades, Sheet Metal Workers International Association, and the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, respectively - are labor organizations within the meaning of Section 2(5) of the Act, as amended, which admit certain of complainant's employ- ees to membership. Throughout the period with which this case is concerned, C. L. McMonagle, Respondent Machin- ists area director, Leslie K. Moore, Respondent Painters business agent, Alfred Teixeira, Respondent Sheet Metal Workers' business representative, and William York, Re- spondent Teamsters business representative, have func- tioned as statutory agents for their respective labor organi- zations, within the meaning of Section 2(13) of the Act. MACHINISTS AUTOMOTIVE TRADES DISTRICT LODGE NO. 190 487 III. THE UNFAIR LABOR PRACTICE CHARGED A. Issue This proceeding derives from Respondent Unions con- ceded refusal to sign a proffered draft contract, which, so complainant contends, correctly reflects a complete con- tractual consensus which their respective negotiators had reached, following comprehensive negotiations . Respon- dent Unions claim, however, that Peterbilt's draft docu- ment, when finally presented for their signature, contained a holdover provision from their previous contract, which complainant's negotiators had'previously agreed to delete. These conflicting contentions, therefore, present a single question, the answer to' which will control this case's disposition : Did the parties, during their contract negotia- tions, reach any consensual "understanding" that the provision in question would be deleted? To resolve this question, we must review the general course of the parties' negotiations, with particular reference to the circumstances under which their final consensual commitments were purportedly reached. B. Facts 1. Background Complainant, Peterbilt Motors Company, manufactures and sells trucks and tractor -trailers at various facilities located throughout the United States. Inter alia, the firm maintains a Newark, California, manufacturing facility, with which we are herein concerned. Respondent Unions have jointly represented complain- ant's Newark, California, plant workers - within a unit composed of production and maintenance employees, warehousemen and drivers - for at least 12 years: Within that period, collective-bargaining contracts have been successfully negotiated for successive 3-year terms, during 1963, 1966, 1969, and 1972, respectively. The contract last mentioned , with a designated March 1, 1972, effective date, and February 28, 1975, anniversary date,-contained a provision, (art. 24), pursuant to which Peterbilt was committed to provide life insurance, plus certain designated family "health and welfare" benefits for complainant's' contractually covered workers . For this purpose, complainant was committed to contribute $37.50 per month, per `employee, to the Automotive Industries Welfare Fund, through August 1972; thereafter, throughout the 3-year contract term noted, Peterbilt was committed to continue Monty contributions determined to be neces- sary, by the designated Fund's'board of trustees , to provide and maintain certain specific family benefits , listed within a supplemental "Health and Welfare" contract. With respect to complainant's further ' dental plan commitments, the firm's 1972-75 contract (art. 26), provided: Section 1 . The Employer agrees to pay for the term of this agreement the sum of $12.00 per month per employee, except that should the Board of Trustees of the Automotive Industries Welfare Fund find it neces- sary ... to increase the premium in order to maintain the level of benefits, the Employer agrees to increase the premium payments upon notification . . . provided however, that the maximum amount of premium shall not exceed $13.20 per month per eligible employee. Within Peterbilt's- predecessor contract, for the 3-year 1969-72 term, the firm's comparable contribution require- ment for dental benefits had been $11 per month, per employee; the contribution -"cap" defined .within the provision's proviso had, however,, been fixed at $13.20 monthly, even then. 2. Contract negotiations a. Preliminary bargaining sessions Pursuant to proper-notice previously given, Respondent Unions' designated representatives and complainant's negotiators met January 7, 1975, for their first bargaining session. Respondent Unions' spokesmen=promptly present- ed their proposals. (Area Director C. L. McMonagle, of Respondent Machinists' District Lodge No. 190, had been designated Respondent Unions' chief spokesman; Charles R. Bechtol, vice president of labor relations for Peterbilt's parent company, headed complainant's negotiating com- mittee.) The proposals contained, inter alia, two dental plan references : Proposal 58 sought the removal of the monetary ceiling which had, theretofore, been contractually fixed-for Peterbilt's monthly contributions ; proposal 59 sought complainant's commitment to provide`orthodontic care for covered workers=and their dependents , which would require a further $2 .80-$3.40 monthly contribution. Ac- cording to Vice President Bechtol , Peterbilt's, principal negotiator, Business Representative Moore of Respondent Painters, declared, during this first session, that proposals 58 and 59 had been "tied together"'because their proposed orthodontic care benefits, when •confi med, would require the- contractually 'defined "ceiling" to be "raised' with respect to complainant's future dental plan contributions. On January 20, Peterbilt's contractual change proposals were presented. Though ' Respondent Unions' previously presented dental care proposals were not discussed , Bechtol queried Moore with respect to how much-`their - requested orthodontic care benefits would cost. Moore reported that such care would cost "somewhere around $3 .50 or $4.00 a month" for covered workmen, and their dependents. (While a witness, McMonagle testified that Respondent Unions' negotiators were "given an indication" that com- plainant would have "no problem" regarding contribution costs for dental care; with respect thereto, he testified that he had noted "no sweat" opposite proposal 58 , within his working copy of Respondent Unions ' contract demands. When queried further, however, he could not recall precisely when the suggested "indication" had been given. For -various reasons, which will be discussed hereinafter, the notation made by Respondent Unions' chief negotiator, within my view, cannot be considered probative with respect to -Peterbilt's reaction, in connection with Respon- dent Unions' contribution ceiling proposal.) When the negotiators met for their third bargaining session, February 19, Bechtol suggested -that Respondent Unions' proposal for orthodontic care should be "removed from the , bargaining table" since complainant was not interested in providing such care, within their new contract. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McMonagle, speaking for Respondent Unions, promptly declared that their orthodontic care proposal was being withdrawn. During their next session, February 26 , the parties discussed, inter alia, both health and welfare and dental plan costs. Respondent Painters' business representative, who was then serving as chairman of the concerned East Bay Automotive Health and Welfare Fund , reported that: . .. they had information from the Kaiser Foundation that the health and welfare costs were going to go up substantially September 1, which is the terminal date of that plan; but that the dental plan - it was not anticipated that the dental plan would be increased at all, that there had been no increase in the dental plan since 1971, some three years ago. The record warrants a determination, which I make, that there were no further discussions during this bargaining session with regard to Respondent Unions' dental plan proposals. When the parties next met, February 27, they agreed first to extend their collective-bargaining contract for complain- ant's Newark, California, plant, which would otherwise have terminated at month's end. Since the plant was, however, scheduled to close for 2 weeks , the negotiators agreed further that it would not be appropriate for them to continue negotiations during the plant 's shutdown period, and that their session should, therefore, be recessed. Respondent Unions' spokesmen notified Peterbilt 's negoti- ators, however, that they would be conducting a member- ship meeting during the plant's shutdown period; they requested a statement of complainant's position for presen- tation to their membership. Peterbilt's negotiators had previously "put together a proposal" which they thereupon presented. Therein, complainant's dual suggestions, with respect to health and welfare matters , were simply stated; they read, "Maintain present level of Health and Welfare benefits" and "Maintain present level of Dental benefits" respectively. These proposals , inter alia, were read. How- ever, they were not, so Bechtol's credible, undenied testimony shows, discussed; save on one occasion, which will be noted subsequently herein, the concept of "main- taining the level of benefits" was never canvassed. Peterbilt's February 27 proposals were presented to that firm's workers, thereafter, during a March 16 union membership meeting. They were rejected. Complainant's negotiators were notified, with respect to their rejection, sometime within the 3-day period which followed. b. Subcommittee discussions On March 18, so the record shows , the parties resumed their relevant bargaining contacts. Vice President Bechtol, together with Commissioner Leighton of the Federal Mediation and Conciliation Service, met with De Wayne "Bud" Williams, designated for the present record as McMonagle's superior. Credible testimony warrants a determination, which I make, that, with respect to their proposed contract's health and welfare provision, Williams reported Respondent Unions' desire to "maintain the level of benefits" currently being provided. He volunteered a clarification that "no new benefits" different in character, proportionally more remunerative , or broader in scope, were being sought . Williams' statement, so Bechtol credibly testified, was proffered, specifically , with respect to con- tractually provided "health and welfare" benefits, merely; he did not define Respondent Unions ' position with respect to their proposed "Dental Plan" contract language. The record, further, warrants a determination, which I make, that complainant's prospective contribution costs, with respect thereto, were neither mentioned nor discussed. c. Further negotiations On Wednesday, March 19, the full committees met. McMonagle reported that Respondent Unions ' members had "unanimously" rejected complainant's February 27 proposals; further, he reported that they had "authorized" possible strike actionby a secret ballot. The present record, though far from clear, suggests that Bechtol and McMonagle , thereupon, reviewed complain- ant's contract proposals which had not yet been "signed off' reflecting their consensus. Inter alia, Peterbilt's health and welfare proposal was, so I find , mentioned. Bechtol's limited notes with respect thereto read, "Health and welfare, language from Union, maintain benefits." How- ever, with respect to complainant's next proposal , No. 13, which referred to their contractual dental plan, Bechtol's notes merely reveal "ditto" marks; he could not, while a witness, specifically recall any discussion with regard to dental plan or contribution ceiling problems , during the parties' March 19 session . McMonagle testified, flatly, that they had not discussed a removal of complainant's dental plan contribution cap. When complainant's full committee met with Respon- dent Unions' spokesmen on Thursday afternoon, March 20, a Federal conciliator was present . Peterbilt's representa- tives had previously been notified that Respondent Unions were planning a strike, set for Monday , March 24, should no contractual settlement be reached before that date. Recognizing that possibility, Vice President Bechtol stated complainant's final position - with respect to various contractual matters which had not been settled previously - verbally ; McMonagle, so the record shows , took notes. Inter alia, complainant's principal negotiator proposed to maintain the level of benefits, both for his firm's conven- tional "health and welfare" program and Peterbilt's "dental plan" program. The Federal conciliator thereupon suggest- ed, so the record shows, that complainant's contract proposals could be submitted to Respondent Unions' Newark plant membership , for their consideration and possible concurrence, through the mails. With matters in this posture, Respondent Unions' com- mitteemen left, since their members were then scheduled to meet. Later that afternoon, they rejoined complainant's negotiators. McMonagle reported that Peterbilt's workers had been told they would receive mail notices with regard to negotiated contract changes, plus changes "proposed" by their employer with respect to which no negotiated consen- sus had been reached, and that they would be given an opportunity to manifest their concurrence or disapproval, through a mail ballot . Both committees agreed that they MACHINISTS AUTOMOTIVE TRADES DISTRICT LODGE NO. 190 489 would meet, the next day, to draft and prepare such a mail submission. On March 21, the negotiators met, early, within com- plainant's Newark plant. Working together, Bechtol and McMonagle went through their prior contract, article by article; they "signed off" and dated those articles with respect to which changes had been consensually negotiated. Reproduced copies of their prior contract's various provi- sions with such negotiated changes noted therein, which Bechtol and McMonagle had dated and signed, were then placed, for later reference, within a loose-leaf notebook; those copies would, eventually, become source materials for their proposed new contract. During their consultation, Peterbilt's spokesman and Respondent Unions' chief negotiator decided that some of their prior contract's provisions should be rearranged in sequence, and, whenever necessary, renumbered. Within that terminated contract, article 24 had dealt with health and welfare; article 25 with pensions; and article 26 had dealt with complainant's dental plan commitment. Inter alia, McMonagle suggested, so Bechtol testified, that article 25 should cover Peterbilt's complete health package. However, Bechtol and Respondent Unions' chief negotia- tor did not - when they were preparing their documentary submission, for transmittal to Respondent Unions' mem- bership, with regard to proposed' contract changes - draft a consolidated "health and welfare" provision. Item 19, within their jointly prepared submission draft, compassed certain proposed contractual language, with revised dates, designated as renumbered article 25 - Health and Welfare and Life Insurance Plan; item 20 set forth, their revised "Article 26 -- Pension" language; while item 21 dealt with their proposed article 28 - Prescription Drug Plan. No submission, drafted for insertion within article 25, or for separate contract placement, was prepared with respect to dental plan coverage, or with respect to complainant's prospective contribution commitments related thereto. The record herein warrants a determination, which I make, that, when Bechtol and McMonagle signed and dated the negotiated contractual provisions and proposed provisions which Respondent Unions would submit for their members' consideration, no "Dental Plan" provision was "signed off" for submission. Vice President Bechtol testified credibly, with McMonagle's corroboration, that the subject was not even discussed. Peterbilt's spokesman was specifically queried, then, with, respect to whether "anybody" had commented, when he, together with McMonagle, reached "Article 26 - Dental Plan" while reviewing their prior contract provisions that `"`something" would have to be drafted, with respect to that particular provision, for submission to Respondent Unions' members. His reply, which I credit, was negative; I find that no such comment was made. While complainant's principal negotiator and McMona- gle were, thus, going through their prior contract, article by article, the documentary package which Respondent Un- ions would submit for their Newark membership's consid- eration was being typed by Peterbilt's personnel staff. Their prepared materials, when completed, were comprehensively reviewed; they were, then, reproduced within complain- ant's plant, for mailing the following day. The documents reproduced, so the record shows, compassed those contrac- tual provisions which had been changed, by agreement, together with provisions with respect to-which "something new" had been negotiated, or proposed, so that new contractual language would be required. According to Bechtol, whose testimony, in this respect, stands without contradiction, contractual provisions found in the parties' prior contract, which were not mentioned, or set forth with revisions, within Respondent Unions' prepared submission, were to be consensually "continued to be in effect" without change. The documentary materials prepared for submission, further, compassed a generally descriptive "cover" letter, with,;a March 21 date and "Dear Member" salutation, which Business Representative Moore of Respondent Painters had, principally, drafted; no member of Peterbilt's committee, so the record shows, had contributed to his letter's composition. In relevant part, Respondent Unions' members were notified that: - Enclosed you will find all of the negotiated changes in the Collective Bargaining Agreement that have been agreed to for submission to you in this secret ballot vote ... we request that you study [the changes] carefully and we believe them to also be improvements in the contract as per your request . . . [Emphasis supplied.] Respondent Unions' submission, further, -included a set of comments, most of which McMonagle had prepared, regarding the particular "contract changes" with respect to which their members would be required to vote. Therein, Respondent Unions' members were requested to note that a revised "Health and Welfare and Life Insurance Plan" provision committed -Peterbilt to provide additional life insurance; complainant would be, further, committed to larger monthly pension trust fund contributions throughout their proposed contract's term; and, finally, Peterbilt would be committed to provide the welfare fund's "prescription drug plan" for covered workers. No textual changes, with regard to complainant's' previously defined dental plan commitment, were described. - - Respondent Unions' detailed submission which set forth, in haec verba, the proposed contract language which would, when ratified, embody the parties' negotiated contract changes, compassed aproposed "Article 25 - Health and Welfare and Life Insurance Plan" provision with but three sections; none of them dealt with Peterbilt's contractual dental plan commitments, or specific premium contribu- tions which the firm would be required to provide for dental plan coverage. The complete package was committed to the mails, so the record shows, early during the following day, Saturday, March 22. According to Bechtol, complainant's representa- tives took no further part with respect to the conduct of Respondent Unions' mail poll;' Peterbilt's chief negotiator "thought" that his firm paid a share of the Unions' mailing costs, however. 3. Subsequent developments Shortly thereafter, within a March 31 letter, McMonagle notified complainant that their "proposed- collective bar- 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining agreement" had been ratified by Respondent Unions' membership. Respondent Machinists' area direc- tor solicited complainant's view, within his letter, with respect to which party would "prepare" their new agree- ment. Subsequently, presumably following a consensus reached with respect to McMonagle's query, Peterbilt's representatives undertook this task. On April 22, complainant's personnel manager forward- ed a draft contract copy for McMonagle's review. Article 25, therein, which contained five sections, dealt with Peterbilt's complete "Health and Welfare and Life Insur- ance" commitments; specifically, the provision dealt with complainant's proposed Automotive Industries welfare fund contribution rates - separately defined for periods before August 31, 1975, and thereafter - with respect to "family [health and welfare] benefits" defined within their supplementary contract, life insurance coverage which Peterbilt would provide, dental plan coverage, and pre- scription drug benefits. With particular reference to com- plainant's dental plan commitment, the draft contract contained the following provision: Section 4. DENTAL PLAN. The Employer agrees to pay for the term of this Agreement the sum of $12.00 per month per employee, except that should the Board of Trustees of the Automotive Industries Welfare Fund find it necessary from an experience factor to increase the premium in order to maintain the level of benefits, the Employer agrees to increase the premium payments upon notification by the Administrator of the Automo- tive Industries Welfare Fund, provided, however, that the maximum amount of premium shall not exceed $13.20 per month per eligible employee. By April 7 or 8, however, McMonagle had learned that the Automotive Industries welfare fund would - some 5 months thereafter - require employers, committed to provide dental benefits, to remit significantly higher premi- um contributions. Though Respondent Unions' spokesman did not personally communicate that information, which he had received, directly to Bechtol, the latter was told about the prospective premium raise, so he recalled, around May 1. And sometime thereafter, on May 21 presumably, McMonagle and Bechtol conferred, by telephone, with regard to Respondent Unions' contention that their con- tractual consensus, previously reached, required a deletion of Peterbilt's proposed contract language which purported to define a maximum premium limitation for dental benefits. Within a followup letter dated May 29, Bechtol replied. He provided McMonagle with a chronological history - calculated to set forth complainant's view-with respect to their negotiations pertaining to Respondent Unions' pro- posal on dental plan contribution ceilings. Bechtol's history read as follows: 1. On January 7, 1975 the Union presented the Company with its written pre-contract proposals. Item 58 was discussed by Les Moore. He indicated that in order to provide Item 59 - "Add Orthodontic Care," it would be necessary to eliminate the $13.20 ceiling. Your Committee had estimated the monthly cost of $2.80 to $3.40 for orthodontic coverage. 2. Our minutes of February 26 report Les Moore, Chairman of the Trustees of the Automotive Industries Welfare Fund, as saying "We do not anticipate an increase in dental. Have not had one in the last 3 years." 3. On February 27, we made a contract proposal to the Union in which we agreed to maintain the present level of dental benefits. This proposal was rejected by the Union and its membership on March 16. 4. We returned to negotiations on the afternoon of March 17 (sic) and our review indicated that the Union had withdrawn Item 59; and therefore, because Item 58 was never raised again, we presumed it was dropped. 5. Bud Williams and I did not discuss any aspect of the dental plan during the March 18, 19 and 20 Sub- Committee meetings. 6. On March 21, you and I prepared all the material agreed to for mailing to the members with the Federal Mediation and Conciliation cover letter and ballot. You told both the Union and the Company Committees that you had indicated to the membership on March 20 that they would have all contract language changes with the Federal Mediation ballot. The mailing did not include any reference to dental nor did you or your Committee make any reference to dental when you reviewed the written material prior to mailing it to the membership. 7. On April 4, the Trustees of Automotive Industries Welfare Fund increased the dental contribution from $12.00 to $18.00 per month per eligible employee effective September 1, 1975. This action was taken subsequent to a dental study begun by the Administra- tor in mid-March. Basing his position on this chronological recapitulation, Bechtol contended that no consensual commitments had been made to remove the $13.20 ceiling, or to permit future contribution rate increases without limit, for complainant's dental plan coverage. He conceded Peterbilt's willingness to increase dental plan premium payments, provided, how- ever, that complainant's maximum premium contribution should not exceed $13.20 monthly, per eligible worker. On July 1, Peterbilt's personnel manager notified McMo- nagle that their draft contract, which had presumably been prepared in conformity with Vice President Bechtol's understanding regarding their disputed dental plan provi- sion, was ready for signature. However, within his July 14 reply, directed to Bechtol personally, McMonagle reported that Respondent Unions' negotiators desired a conference, with a Federal conciliation commissioner present. He reiterated their position, previously conveyed to complain- ant's representative, that Respondent Unions' spokesmen: ... would either arbitrate the matter or return to the bargaining table, at which time all items subject to collective bargaining would be open for that purpose. I MACHINISTS AUTOMOTIVE TRADES - DISTRICT LODGE; NO. 190 Peterbilt's_,principal negotiator was notified that Respon- dent Unions would not "under any circumstances" sign complainant's draft contract, unless it totallyand complete- ly reflected the contractual consensus which they consid- ered the parties had reached during their= negotiations, subject to ratification. - - - - 4. The current status_ of dental. benefits for - Peterbilt - workers When their calendar year 1975 contract negotiations with which we have been- concerned herein - began, complainant's dental plan contribution rate totaled $12 monthly per Newark plant-worker., Since September 1, 1975,. however, the Automotive Industries welfare fund has required contractually committed employers to proffer monthly contributions totaling $18 per worker,- for dental benefits identical with those whose Peterbilt had previously provided. Complainant has,, however, remitted dental plan premium contributions limited to $13.20 per covered worker, monthly. The welfare fund - so McMonagle's credible, undenied testimony shows - has not accepted Peterbilt's limited premium remittances . Dental benefit claims, presented by complainant's Newark plant workers, have been- "received" by their trust fund representatives; such claims have not, however,;been paid. C. Discussions and Conclusions 1. Issue The duty to bargain collectively with an employer, which Section 8(b)(3) 'of 'the statute imposes on labor organiza- tions and " their representatives, compasses the duty to execute a written contract incorporating any agreement reached, when requested. (Sec. `8(d); H. J. Heinz Company Y. N.L.R.B., 311 US. 514, 526.)_ This much, presumably, Respondent Unions concede. Confronted with such a recognized- statutory require- ment, however, Respondent Unions contend that, whatever putative consensus -their' negotiators and complainant's spokesmen may have reached, during their collective-bar- gaining contract negotiations, no "full and complete agreement" was achieved, sufficient to bring the statutory requirement into play . Substantially, Respondent Unions' counsel suggests that the seeming consensus which both groups of negotiators thought they had reached should be considered completely vitiated, now, since subsequent discussions and correspondence have revealed their failure to reach a determinative "meeting of the minds" with respect to Peterbilt's contractual dental plan contribution rate commitment. Alternatively, Respondent Unions con- tend that, during their March 20 session; proposals which necessarily signified Peterbilt's commitment to maintain certain "Dental Plan" benefits for Newark plant workers, regardless of cost, were proffered; that a,geniune ,consensus was reached with respect thereto ; that conceivable "am- biguities" regarding the precise scope of complainant's contribution rate commitment, which developed, thereaf- ter, because the parties' contractual document- package, prepared March 21 for. submission to Respondent Unions' membership, failed to mention their "agreement" that a 491 previously defined -contribution rate ceiling ' would -be removed, resulted "solely" from conduct properly_charge- able to complainant's principal-,negotiator ; and-that com- plainant's April 22 draft contract form, when proffered for signature, did not "properly" -reflect -the consensus which the parties had previously reached regarding the-removal of complainant's dental plan contribution ceiling during their negotiations. Relying on these defined "alternative" positions, Respon- dent Unions contend, herein, that their conceded refusal to sign Peterbilfs proffered April 22 contract draft should not be- considered -a. refusal to bargain, statutorily proscribed;, they seek the present complaint's dismissal. General Counsel's representative, however,,, contends, contrariwise, that Respondent Unions' spokesmen and complainant's negotiators , did, ' indeed, reach "full and complete agreement" with" respect' to the terms - of their collective-bargaining contract through their March -20 negotiations, Respondent Unions, - March 21 submission with respect to their previously negotiated and -proposed contract changes, ' and Respondent Unions' subsequent March 31 ratification procedures --but that their contrac- tual consensus compassed no "agreement" that Peterbilt's previously - de'fnied dental 'plan contribution rate' ceiling would be removed. Further,,-General Counsel challenges Respondent Unions' present contention that no determina- tive "meeting of the minds" can be found herein, because both parties currently hold contradictory "good faith" beliefs with respect to whether they had really reached a consensus with regard to the removal of contractual limitations on Peterbilt's dental plan contribution rate. Assuming, arguendo, that there could have been some "mistake" or "misunderstanding" with respect thereto, General Counsel's` representative suggests, further; that whatever"misunderstanding the record may reveal derived from McMonagle's mistaken belief regarding the nature and'"scope of Be`chtol's March 20 proposals, solely; that whatever "ambiguity" there may,have been , lurking within the mutual "manifestationsof assent" which-these negotia- tors exchanged, derived,- -not from Bechtol's, but from McMonagle's contemporaneous statements and course of conduct; and that Respondent -Unions should be consid- ered, therefore, bound by complainant's construction of their contractual consensus. 2: Conclusion The record herein, considered in totality, persuades - me that complainant's, proffered April 22--contract draft - containing a ceiling limitation with respect to Peterbilt's dental plan premium - correctly reflects - a consensual "agreement" by which Respondent Unions should be considered bound. Various considerations, which, have led me to this conclusion, should be noted. I - First: I- note that complainant's dental plan contribution commitment, within the parties' prior contract, contained a $13.20 ceiling limitation. When their negotiations - directed toward a new contractual consensus - began, Respondent Unions' spokesmen proposed the ceiling limitation's removal. Their proposal, however, was conced- edly paired with a further proposal for broadened dental care benefits. Specifically, Respondent Unions proposed a 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD removal of complainant's dental plan contribution ceiling, coupled with new "orthodontic care" coverage which would presumably cost Peterbilt between $3.50 and $4 more, monthly. Bechtol's testimony, proffered without contradiction, clearly warrants a determination - which I have made - that Respondent Painters' business represen- tative, Les Moore, described Respondent Unions' proposal for the removal of complainant's contribution ceiling as realistically "tied in" with their new "orthodontic care" proposal. (Since Peterbilt was, then, contributing $12 monthly, per covered worker, for dental benefits, further monthly charges for orthodontic care within a $3.50-$4 range, would clearly break the firm's previously defined $13.20 contribution rate limitation.) Respondent Unions, however, withdrew their "orthodon- tic care" request, during the February 19 session previously noted. Further, Business Representative Moore told Peter- bilt's principal negotiator, so the record shows, that, with respect to complainant's dental plan coverage currently in force, no contribution rate increase was then foreseen. Thus, when the parties met for their February 27 bargaining session, they were clearly cognizant of the fact that Respondent Unions' spokesmen had originally requested new "orthodontic care" benefits, plus a concurrent removal of the ceiling limitation previously placed on complainant's contribution rate liability, but that Respondent Unions had withdrawn their orthodontic care proposal, coupling that withdrawal with a declaration that no dental care premium "increase" would be required. Necessarily, Bechtol's February 27 contract proposals - pursuant to which, inter alra, complainant would be committed to "maintain [the] present level of [dental] benefits" provided for Newark plant workers - must have been made within this context, even though he neglected to specify, in haec verba, Peterbilt's willingness to continue $12 monthly contributions, per covered worker, coupled with a commitment to pay larger premiums required to maintain their "present" dental benefit level, which would be subject, nevertheless, to a maximum $13.20 monthly contribution limit. McMonagle never reminded Peterbilt's negotiator, how- ever, that his proposal to maintain whatever level of dental care benefits complainant was then providing might subse- quently require premium payments which would pierce their prior contract's defined contribution rate ceiling. Under the circumstances, Bechtol could reasonably con- clude, within my view, that Respondent Unions' proposal calking for the removal of Peterbilt's contribution rate ceiling - though never specifically withdrawn - had been, sub silentio, relinquished or permitted to lapse, because they considered it no longer necessary. Previously, within this decision, reference has been made to McMonagle's notation - within his working copy of Respondent Unions' contract proposals - that there would be "no sweat" with regard to proposal 58, "Remove ceiling on Employer contributions on dental."Respondent Unions' principal negotiator could not, however, recall precise- ly when this notation was made; he speculated merely that it had probably been made when Bechtol presented Peterbilt's February 27 proposals. If so, McMonagle's notation, within my view, reflected nothing more than his personal, purely subjective interpretation regarding the nature, and necessarily "implied" scope, of Bechtol's verbally proffered proposal; nothing within the present record would warrant a determination that complainant's principal negotiator had specifically conceded Peterbilt's willingness to concur with Respondent Unions' demand. Mindful of McMonagle's lack of certainty, however, with regard to when his "no sweat" notation was made, I find, further, that it could possibly have been made on February 26, when Business Representative Moore reported that no dental plan contribution rate increase was, then, antici- pated. If so, McMonagle's comment, reasonably construed, could have been written merely to memorialize his person- al, unstated belief that Respondent Unions' proposal 58 would no longer require a collectively bargained disposi- tion. Since the area director's working paper notation then could, conceivably, support either one of two divergent constructions, Respondent Unions' present contention, that it really memorialized Bechtol's express or necessarily implied concurrence with their ceiling removal proposal, must be rejected. Clearly, when Peterbilt's principal negotiator stated his company's February 27 position, he never specifically conceded complainant's willingness to remove the contrac- tual contribution rate ceiling for dental plan coverage, which had, theretofore, limited complainant's potential premium liability. And McMonagle's belief, professed while a witness herein, that Bechtol had done so, reflects nothing more than his purely subjective conclusion that complainant's willingness to "maintain the present level of dental plan benefits" necessarily conveyed a commitment that such benefits would be maintained regardless of cost. When Bechtol restated verbally complainant's position with regard to dental plan coverage, during the parties' March 20 session, he merely recapitulated the firm's willingness to "maintain" the level of benefits" which Newark plant workers enjoyed; he said nothing, pro or con, with respect to Respondent Unions' 'ceiling removal pro- posal. While a witness, McMonagle testified that Bechtol's slightly deviant March 20 phraseology conveyed complain- ant's willingness to remove their prior contract's $13.20 maximum contribution limit. However, his rationale, prof- fered to justify this conclusion, suggests a singularly esoteric semantic distinction between Bechtol's February 27 and March 20 formulations; I have not been persuaded. Within his brief, General Counsel's representative notes that: This is the point of departure: Between the objective words and conduct of the parties during negotiation[s ] and McMonagle's totally unsubstantiated, subjective impres- sions. McMonagle testified as to, in his mind, the clear and distinct difference between "maintaining the present level of benefits" and "maintaining the level of benefits." He stated that "maintaining the present level" means maintain- ing a dollarfigure, whereas "maintaining the level" means maintaining the proportion between the amount of the bill and the amount that the fund pays for the employee- patient. Nothing that had transpired between the parties up to that point lends any credence to McMonagle 's conten- tion that Bechtol had made a switch from "maintaining the present level" to "maintaining the level," according to MACHINISTS AUTOMOTIVE TRADES DISTRICT LODGE NO. 190 493 McMonagle's definition. McMonagle was unable to recall if anything was said to Bechtol about the difference in the two terms on March 19 and admitted that on March [20], there was no discussion about the difference between maintaining the present level and maintaining a level. There was no discussion on either March 19 or March [20] about removing the $13.20 ceiling . . . . McMonagle was unable to answer the question as to what Bechtol said or did on March 19 to indicate that he had accepted [Respondent Unions'] definition of maintenance of level of benefits. (Quotation marks and emphasis supplied.) With matters in this posture, I conclude, consistently with General Counsel's contention, that Peterbilt's final March 20 proposal, with respect to dental benefits, compassed no commitment sanctioning the removal of that firm's previ- ously negotiated contribution rate ceiling. Further, nothing within Bechtol's statements or course of conduct, within my view, could reasonably have given McMonagle cause to believe Peterbilt's principal negotiator had concurred, or would concur with a dental plan proposal compassing a fully "open-ended" contribution rate commitment. Second: The procedure which Bechtol and McMonagle followed, during their March 21 session, while preparing the documentary package which Respondent Unions would submit for their membership's ratification, further buttresses my conclusion, noted. Both negotiators, so the record shows, had, previously, considered numerous con- tractual provisions. Those with respect to which they reached consensus had been "signed off' with proper dates; they had been placed within a looseleaf binder which would, thereafter, become the source material for their prospective contract. On March 21, Bechtol and McMona- gle "signed off" further contractual provisions with respect to which consensus had been reached. Concurrently, so the record shows, they were preparing a documentary package for submission to Respondent Unions' membership. That package would compass : First, various "agreed-upon" contractual provisions which reflected changes from their counterpart provisions within the parties' prior contract; second, new provisions which had been consensually negotiated; third complainant's proposed contractual pro- visions, which Repondent Unions' negotiators had not sanctioned, drafted, and proffered, nevertheless, for their membership's consideration. Respondent Unions' documentary package, when com- pleted, compassed a cover letter which Respondent Paint- ers' business representative, Les Moore, had composed. Therein, recipients were notified that, enclosed, they would find "all of the negotiated changes" looking toward their prospective collective-bargaining contract which the parties had agreed to submit for their consideration. Further, McMonagle had prepared comments, with respect to each of the 25-draft contractual provisions submitted; his comments concededly dealt with "contract changes" solely. No provision, concerned with dental care benefits, was proffered for membership consideration. Respondent Unions contend, herein, that a change, with respect to their prior contract's dental plan provision, had been negotiated. Yet McMonagle, when queried with respect to why Respondent's documentary package had contained no reference thereto, declared that complainant's commitment to provide dental care coverage reflected no "new benefit" since Newark plant workers would get "the same old dental" benefits they previously received. The fact remains, however, that Respondent Unions had, initially, proposed a change; namely, the removal of Peterbilt's dental plan contribution rate limitation. That proposed change had not been consensually negotiated; contractual language which reflected the deletion of Peterbilt's contribution "cap" from the firm's dental plan commitment would not be presented for membership consideration. McMonagle's testimony, nevertheless, reflects a conces- sion that he never questioned this proposed change's omission from Respondent Unions' March 21 documentary package. I note, in this connection, McMonagle's testimony that, within his working copy of the parties' prior contract, he struck the contractual "Dental Plan" provision's proviso which contained the $13.20 premium limitation. Respon- dent Machinists' area director testified that he struck the provision dung the parties' March 21 session. Neverthe- less, though he testified that Bechtol and he were working together "in close proximity" during their March 21 session, McMonagle proffered no witness chair claim that he struck their prior contract's contribution "cap" language with Bechtol's knowledge or concurrence. The record herein, considered in totality, fully warrants a conclusion, within my view, that complainant's principal negotiator and Respondent Unions' chief spokesman never agreed to remove the $13.20 ceiling from their prospective contract's dental plan provision. Complainant's negotiators were, therefore, privileged to conclude that a dollar limitation, with respect to their firm's dental plan contribu- tion rate liability, had been preserved. If McMonagle believed, mistakenly, that some consensus with regard to the contribution ceiling's removal had been reached, his belief, so I find, derived from purely subjective consideration, for which Peterbilt's principal negotiator cannot be held responsible. We are not confronted, herein, with a misunderstanding traceable to some "ambiguity" generated during collective- bargaining negotiations, for which neither party can be considered blameworthy, or with respect to which both parties may reasonably be considered equally to blame. Compare Oil, Chemical and Atomic Workers International Union, 212 NLRB 98, 106-108 (1974). Though Respondent Unions and complainant currently profess different "un- derstandings" with respect to the nature and scope of their contractual consensus, particularly with reference to Com- plainant's dental plan commitments, the record warrants a determination, within my view, that they did, indeed, reach a legally binding consensus. Whatever misunderstanding there may have been, with respect thereto, that misunder- standing was McMonagle's; Bechtol's conception of their "agreement" was, I find, objectively justified. Consistently with conventional principles of contract law, therefore, I find both parties herein bound by Bechtol's construction. Since Peterbilt and Respondent Unions reached consen- sus, within my view, regarding the terms of their prospec- tive collective-bargaining contract, Respondent Unions were obligated to sign the draft contract, proffered by Peterbilt's personnel manager, which properly reflected 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their consensus. Their failure to do so constitutes an unfair labor practice, which'Section 8(b)(3) of the-statute pro- scribes. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE - Respondent Unions' course of conduct, set forth in section III, above, since it occurred in connection with the business operations of complainant herein, described in section I, above, has a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States; absent corrections, such conduct would lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY, Since I have found that Respondent Unions did engage in and continue to engage in an unfair labor practice, I will recommend that the designated labor organizations and their representatives cease and -desist therefrom, and take, certain affirmative action, including the posting of appro- priate notices, designed to effectuate the policies of the Act, as amended. Specifically, my determination has been that Respondent Unions improperly. refused to sign the document proffered on April 22nd in Complainant's behalf, reflective of the consensus which their negotiators had reached with Peter- bilt's spokesman, during their collective-bargaining negoti- ations. Accordingly, my recommendation will be that Respondent Unions sign, upon request, copies of the draft contract which Complainant's representative had submit- ted on April 22, 1975, for their review, consideration and signature. Upon these findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I issue the following recommended: - -ORDER' The Respondent Unions, Newark, California, their officers, agents, and representatives, shall: 1. Cease and desist from refusing to bargain collectively in good faith with Peterbilt Motors Company, Division 'of Paccar, Inc., on behalf of workers within the bargaining unit previously recognized by the parties as appropriate for collective-bargaining purposes, by refusing` to sign the contract draft submitted for signature by Peterbilt Motors Company's representative on April 22, 1975, or from engaging in any like or related conduct in derogation of its statutory duty to bargain. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act, as amended: (a) Upon request, bargain collectively with Peterbilt Motors Signed Company, Division of Paccar, Inc., as the exclusive representative of that Company's employees, within the bargaining unit previously recognized by the parties as appropriate for collective-bargaining purposes, and embody any understanding reached in a signed agreement. (b) - If requested by Peterbilt Motors Company, or its, designated representative, execute the draft contract sub- mitted on April 22, 1975, for signature by its representative. (c) Post at their business offices and meeting'halls, copies of the attached notice marked "Appendix."2 Copies of the notice, to be furnished by the Regional Director for Region 20,-shall, after being duly signed by official representatives, of Respondent Unions, be posted immediately upon receipt thereof, And be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted.` Reasonable steps shall be taken by Respondent Unions to ensure that said notices are not altered, defaced, or covered by any other material. (d) Furnish to the Regional, Director for Region 20 signed copies of the attached notice for posting, should Peterbilt Motors Company be willing, within its Newark plant, in places where notices to employees are customarily posted. The notice shall be maintained at such places for a period of 60,consecutive days thereafter. Copies of said notice shall,` after being duly signed. by Respondent Unions' official representatives as provided above, be forthwith returned to the Regional Director for such posting. (e) Notify the Regional Director `for -- Region 20, in writing, within 20 days from the date of this Order, what- steps the Respondent, Unions have taken to -comply herewith. i In the event no exceptions are filed -as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 2 In the event "that the Board's Order is enforced by a Judgment of a United States Court: of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." - APPENDIX NOTICE TO ALL MEMBERS AND ALL EMPLOYEES OF PETERBILT MOTORS COMPANY POSTED BY ORDER OF THE NATIONAL' LABOR RELATIONS BOARD An Agency of the United States Government After a hearing, during which all parties were given an opportunity to present evidence and argument, it has been determined that we violated the law by committing an unfair labor practice. In order to remedy such conduct, we are being required to post this notice.'We intend to comply with this requirement and to abide by the following commitments. WE WILL NOT refuse to bargain collectively in good faith with Peterbilt Motors Company as the exclusive representative of their Newark, California, plant work- ers, within a unit previously recognized as-appropriate for collective-bargaining -purposes, by refusing to sign the written collective-bargaining contract submitted to our representatives for signature on'April 22, 1975. MACHINISTS AUTOMOTIVE TRADES DISTRICT LODGE NO. 190 WE WILL NOT, further, engage in any like or related conduct, in derogation of our statutory duty to bargain, provided we remain the statutory representative of the employees within the bargaining unit designated. WE WILL, if required by Peterbilt Motors Company, execute the draft contract submitted for signature by our representatives on April 22, 1975. MACHINISTS AUTOMOTIVE TRADES DISTRICT LODGE No. 190 OF NORTHERN CALIFORNIA, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS 495 AUTO AND SHIP PAINTERS UNION LOCAL No. 1176, PAINTERS AND ALLIED TRADES SHEET METAL PRODUCTION WORKERS LOCAL No. 355, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION TEAMSTERS AUTOMOTIVE EMPLOYEES LOCAL No. 78, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA