Valley Central Emergency Veterinary Hospital

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 349 NLRB No. 107 1126 Valley Central Emergency Veterinary Hospital and American Federation of State, County and Mu- nicipal Employees, Local 488, AFL–CIO. Cases 4–CA–33631, 4–CA–33660, and 4–CA–33932 May 23, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH On December 14, 2005, Administrative Law Judge Richard A. Scully issued the attached decision. The Re- spondent filed exceptions, a supporting brief, and a reply brief responding to the General Counsel’s and Charging Party’s answering briefs. The General Counsel filed exceptions, a supporting brief, and an answering brief in opposition to the Respondent’s exceptions. The Union filed an answering brief in opposition to the Respon- dent’s exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions2 as modified below and to adopt the recommended Order as modified.3 As explained below, we agree with the judge’s finding that the Respondent violated Section 8(a)(5) of the Act when it failed to abide by the tentative agreement negoti- ated on January 6, 2005, including the agreement’s strike settlement terms. We reject the dissent’s view that the Respondent’s board of directors’ refusal to ratify the agreement, which was based on an impermissible reason, excused the Respondent from complying with the tenta- tive agreement. We further conclude that, in any event, 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 We agree with the judge, for the reasons stated in his decision, that the Respondent: (1) violated Sec. 8(a)(1) when its administrator told employees Jennifer Powell, Jody Smith, and Ronita Lawrence that they could not discuss the Union in the workplace and that they would be terminated if they participated in another strike; (2) violated Sec. 8(a)(5) and (1) by failing to timely provide relevant information re- quested by the Union; and (3) violated Sec. 8(a)(5), (3), and (1) by locking out its striking employees discriminatorily and in support of an unlawful bargaining position, see Allen Storage & Moving Co., 342 NLRB 501 (2004). 3 We shall modify the judge’s recommended Order to conform to the violations found. We shall also substitute a new notice in conformity with the Order as modified. the strike settlement provision was not contingent on ratification by the Respondent’s board of directors. Background The Respondent operates an after-hours emergency veterinary hospital in Whitehall, Pennsylvania. Follow- ing an April 28, 2004 representation election, the Union was certified as the bargaining representative of the Re- spondent’s approximately 31 full-time and regular part- time veterinary technicians, receptionists, and kennel employees. The parties began contract negotiations in November 2004. Near the end of December, the Respondent, at the Union’s request, presented its best offer. The Union then met with approximately 17 employees to discuss the final proposal and whether to authorize a strike. Fifteen em- ployees voted to authorize a strike. Twelve employees participated in the subsequent strike, which began on December 31, 2004. On January 6, 2005,4 the parties met with a Federal mediator and reached a tentative agreement, which con- tained terms and conditions of employment. The tenta- tive agreement also provided that the striking employees were to return to work on their former shifts commenc- ing on January 7.5 During the mediation sessions that led to the tentative agreement, the Union told the mediator that if the Respondent agreed to a union-security clause (which it later did), the Union would recommend that the employees ratify the agreement. This echoed an earlier statement during the parties’ first bargaining session, that each side would bring any agreement back to its princi- pal for ratification. The judge found, and we agree, that employee ratification was not a condition precedent to a contract. However, the tentative agreement expressly stated: “Any resolution at the bargaining table to a com- plete agreement is contingent on approval of the com- plete agreement by the Respondent’s Board of Direc- tors.” As described by the judge, the Union secured em- ployee ratification of the tentative agreement on January 6. The Respondent, however, believed that the Union’s ratification process was ineffective and/or illegal. For that reason, Respondent’s administrator, Ueberroth, on January 7, telephoned employees who were scheduled to work that evening and told them not to come to work. When the Union’s business agent, Evon Sutton, heard about this from the employees, she called Ueberroth, who put the Respondent’s attorney, David Spitko, on the 4 All dates hereafter are in 2005, unless otherwise stated. 5 Although the tentative agreement states that the striking workers were to return to their former shifts beginning January 6, no party takes exception to the judge’s finding that the parties intended the return-to- work date to be January 7. VALLEY CENTRAL EMERGENCY VETERINARY HOSPITAL 1127 telephone. Spitko read a letter stating that the Respon- dent withdrew the offer that led to the tentative agree- ment. Spitko also sent the Union a letter to that effect on January 13. The letter detailed the Respondent’s com- plaints regarding the Union’s ratification procedure, as- serted that the Respondent was privileged to withdraw the offer because its board of directors had not ratified the agreement, and that because the agreement had not been ratified, the strike continued and the striking em- ployees who had expected to return to work on January 7 were “returning to the status quo prior to the tentative agreement.” On January 19, the Respondent’s Board of Directors voted to reject the Tentative Agreement based on Ueber- roth’s description of the Union’s ratification procedure and his recommendation against ratification. Ueber- roth’s recommendation against ratification was thus caused by the same dissatisfaction with the Union’s rati- fication process that had motivated the Respondent’s earlier withdrawal from the agreement and was a con- tinuation of the same course of conduct. Discussion 1. Violations “Federal labor policy encourages the formation of col- lective-bargaining agreements,” and “[i]t is the Board’s obligation to ‘protect the process by which employers and unions may reach agreements with respect to terms and conditions of employment.’” American Protective Services, 319 NLRB 902, 904 (1995) (footnote omitted). Like the judge, we find that the Respondent’s repudiation of the tentative agreement violated the Act.6 As stated above, employee ratification was not a condition prece- dent to the formation of a contract. Therefore, the Re- spondent was not free to seize on the Union’s ratification procedures as a reason not to ratify the contract itself. Moreover, even if such ratification were a condition precedent, Board law is clear that the Respondent does not have standing to challenge the Union’s ratification process. Childers Products Co., 276 NLRB 709, 711 (1985) (because “method of contract ratification was within Union’s exclusive domain and control,” em- 6 We conclude that the Respondent’s conduct at issue does not con- stitute withdrawal of an offer, as the Respondent contends, but is, in- stead, a repudiation of the tentative agreement. Once the Union had accepted the Respondent’s last offer, there was no longer an open offer for the Respondent to withdraw, whether lawfully or unlawfully. See Tri-Produce Co., 300 NLRB 974 fn. 2 (1990); cf. American Protective Services, supra, at 903 (“[B]ecause the [employee] ratification proce- dure had been substantially completed the Respondent was not privi- leged to withdraw its offer.”); Restatement (Second) of Contracts § 42, comment c (1981) (“Once the offeree has exercised his power to create a contract by accepting the offer, a purported revocation is ineffective as such”). See discussion below. ployer’s refusal to honor contract, based on objections to ratification process, was unlawful), review denied mem. 791 F.2d 915 (3d Cir. 1986). The Respondent’s repudia- tion of the tentative agreement, based on its invalid ob- jection to the Union’s ratification process, was therefore unlawful. Both Board and court precedent have estab- lished that “the withdrawal of a proposal by an employer without good cause is evidence of a lack of good faith bargaining by the employer in violation of Section 8(a)(5) of the Act where the proposal has been tentatively agreed on.” Suffield Academy, 336 NLRB 659 (2001). See also TNT Skypack, Inc., 328 NLRB 468 (1999), enfd. 208 F.3d 362 (2d Cir. 2000). We apply this rule to the complete tentative agreement just as we would apply it to a tentatively-agreed proposal. We also find that the Respondent’s bad faith was inde- pendently demonstrated by the totality of its conduct in response to the January 6 employee ratification. Spe- cifically, the Respondent illegitimately tried to intrude into the Union’s internal process of ratification; it seized upon the asserted flaws in the ratification process—some of which resulted from the Respondent’s own refusal to let employees who were working on January 6 attend the ratification meeting—as a justification for refusing to allow the striking employees to return to work as agreed; it failed to notify the Union of its dissatisfaction until the Union called the Respondent to ask why the employees had been told not to return to work; it unlawfully locked out the striking employees and mischaracterized the lockout as a continuation of the strike; and it unlawfully demanded that some striking employees promise to waive certain Section 7 protections before it permitted them to return to work. We further conclude that the tentative agreement would have gone into effect but for the Respondent’s board of directors’ improper challenge of the union rati- fication process. Certainly, the Board has held that par- ties negotiating a collective-bargaining agreement may make the final agreement contingent upon the ratification of their principals. See American Protective Services, supra at 905. However, the principals may not refuse to ratify for an improper reason. Here, the board of direc- tors lacked good cause to refuse to ratify the tentative agreement. Thus, there is ample evidence that the refusal was in bad faith and the culmination of an unlawful course of conduct. Consequently, we reject the Respon- dent’s contention that its board of directors’ refusal to ratify the contract privileged the Respondent’s refusal to implement the contract’s terms. See Teamsters Local 287 (Granite Rock Co.), 347 NLRB 339, 345 (2006) (finding unlawful delay in ratification and observing that DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1128 “a party to a contract cannot take advantage of his own act or omission to escape contract liability”). 2. Remedy In the recent Granite Rock Co. decision, supra, we concluded that the proper remedy for the respondent un- ion’s unlawful delay in submitting the parties’ contract for an employee ratification vote was retroactive applica- tion of the contract to the date on which, but for the un- ion’s unlawful conduct, it would have gone into effect. See also TNT Skypack, Inc., supra at 469–470 (applying contract retroactively as remedy for employer’s with- drawal from tentative agreements made in negotiations). As we stated in Granite Rock, the Board’s “remedy should restore the status that would have obtained if Re- spondent had committed no unfair labor practice . . . [and] any uncertainty and ambiguity regarding the status that would have obtained without the unlawful conduct must be resolved against the Respondent, the wrongdoer who is responsible for the existence of the uncertainty and ambiguity.” Id. at 339. Applying the Board’s “broad discretion to fashion ‘a just remedy’ to fit the circumstances of each case it con- fronts,” id., we find, as we did in Granite Rock, that the “just remedy” in this case is to “restore the status that would have obtained if Respondent had committed no unfair labor practice.” Id. Thus, we conclude that the Respondent is bound by the tentative agreement, as it would have been in the absence of Ueberroth’s unlawful repudiation and the board of directors’ refusal to ratify the tentative agreement, both of which were based on invalid objections to the Union’s ratification process.7 Furthermore, the strike settlement provision was not subject to the requirement that the board of directors rat- ify the agreement. By its terms (as corrected by agree- ment of the parties), this provision anticipated that strik- ing employees would return to work on their regular shifts on January 7—a full 12 days before the board of directors met to vote on ratification. Clearly, this dem- onstrates that the Respondent anticipated that striking employees would return to work without the board of directors having ratified the agreement, and indeed, the employees sought to do so. Nor does the strike settle- ment provision, expressly or by implication, indicate that a subsequent rejection of the agreement by the board of directors would, post hoc, alter the Respondent’s expec- tations or obligations regarding the employees’ prior 7 We distinguish H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970), where the Supreme Court rejected the Board’s remedy, which imposed on the employer a contract term that the employer had resisted. Here, in contrast, we require the Respondent to comply with only those con- tract terms to which it had agreed during negotiations and that were embodied in the tentative agreement. return to work. Because the strike settlement provision was not contingent on the board of directors’ ratification of the tentative agreement, the Board’s ultimate vote not to ratify the agreement does not negate the strike settle- ment provision. 3. Response to dissent We now respond to the two contentions of the dissent, regarding the Respondent’s violations. First, we reject the dissent’s argument that because the condition of rati- fication by the board of directors was not met, the tenta- tive agreement cannot bind the Respondent.8 The dis- sent’s view is inconsistent with the customary practice of collective bargaining and the Act. The tentative agreement reflected the parties’ complete understanding as to the substantive terms of a collective- bargaining agreement and the procedural steps by which a contract would be finalized, including ratification by the Respondent’s board of directors. The tentative agreement unquestionably reflects an exchange of prom- ises. For its part, the Union did all that it was required to do, and all that it could do, to finalize the tentative agreement. The Respondent, in contrast, did not—and its failure to do so violated its statutory duty to bargain in good faith, for reasons we have explained. Although no contract would have been formed had the board of directors refused to approve the Tentative Agreement for a permissible reason, the Board instead rejected the agreement for an impermissible reason under Section 8(a)(5) of the Act. Thus, the board of directors’ failure to approve the tentative agreement did not prevent the formation of a binding contract. Put somewhat dif- ferently, we interpret the tentative agreement, as a matter of law, to include both the Respondent’s promise that it would present the agreement to its board of directors and the promise that the Board would act lawfully in accept- ing or rejecting the agreement. In any event, we cannot accept the potential conse- quences of the dissent’s analysis, which would permit one bargaining party, acting unilaterally and in bad faith, to frustrate a contractual condition. The adoption of such a theory would severely undermine the Act’s goal of promoting labor peace and stability in bargaining rela- tionships. As the United States Court of Appeals for the District of Columbia Circuit has observed, “[i]t is very commonplace in the United States for bargaining parties to reach tentative agreements subject to ratification,” and “[o]ften, this tradition facilitates bargaining.” Teamsters Local No. 175 v. NLRB, 788 F.2d 27, 32 (D.C. Cir. 1986) (rejecting argument that tentative agreement subject to 8 This argument was not raised by the Respondent, but only by the dissent acting sua sponte. VALLEY CENTRAL EMERGENCY VETERINARY HOSPITAL 1129 ratification amounts to bargaining impasse, privileging employer’s unilateral change in employment terms). By treating the tentative agreement here as imposing no ob- ligations on the parties, the dissent errs. Second, the dissent also disagrees with our considera- tion of the totality of the Respondent’s conduct in finding bad faith. Nevertheless, the complaint alleges that the Respondent failed and refused to bargain with the Union in good faith by its withdrawal from the tentative agree- ment and its failure and refusal to execute or fully abide by the tentative agreement.9 Contrary to the dissent, in considering this allegation and finding that the violation occurred, we find it appropriate to consider the totality of the Respondent’s conduct after the employee ratification vote. CONCLUSION Accordingly, we agree with the judge that the Respon- dent violated Section 8(a)(5) and (1) by failing to abide by the January 6 tentative agreement, including its strike settlement terms, and we order the Respondent to abide by the terms of the tentative agreement. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Valley Central Emergency Veterinary Hospital, Whitehall, Pennsylvania, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraphs 2(a) and (b) reletter the following paragraphs accordingly. “(a) Upon request of the Union, sign and abide by the terms of the collective-bargaining agreement agreed upon by the Respondent and the Union on January 6, 2005. If no such request is made by the Union, bargain, upon request, with the Union as the exclusive collective- bargaining representative of employees in the appropriate bargaining unit and embody any understanding reached in a signed agreement. “(b) Make employees whole, with interest, for any losses suffered as a result of the Respondent’s failure to sign and abide by the collective-bargaining agreement agreed to on January 6, 2005, and as a result of the Re- spondent’s lockout of its employees in support of an unlawful bargaining position implemented in a discrimi- natory manner.” 2. Substitute the attached notice for that of the admin- istrative law judge. 9 The complaint also alleges that the Respondent’s failure to provide the Union with requested information (discussed in fn. 2, above) consti- tutes bad-faith bargaining. CHAIRMAN BATTISTA, dissenting in part. My colleagues conclude that the Respondent unlaw- fully repudiated a contract with the Union. They claim that a contract was formed when the Union agreed on January 6 to accept the Respondent’s last offer. I dis- agree. That acceptance created the tentative agreement. The tentative agreement was precisely what it was called—a tentative agreement. It expressly stated: “Any resolution at the bargaining table of a complete agree- ment is contingent on approval of the complete agree- ment by the Respondent’s Board of Directors.” Thus, since there never was an approval by the Respondent’s board of directors, there never was a contract.1 Concededly, the board of directors’ reason for nonap- proval was the belief that the employee ratification vote was flawed. In addition, I recognize Board law which teaches that, employee ratification is an internal em- ployee-union matter. Thus, where employee ratification is a condition precedent for a contract, the employer can- not challenge the contract on the basis that the vote was assertedly flawed. However, where, as here, the tentative agreement was subject to employer board of director ap- proval, there is no contract because this condition has not been met. My colleagues contend that “the Respondent’s bad faith was independently demonstrated by the totality of its conduct in response to the January 6 employee ratifi- cation.” However, apart from the alleged failure to sign the tentative agreement, the complaint does not allege bad-faith bargaining. Further, the Respondent’s basis for nonapproval, i.e., the asserted flaw in the employee rati- fication vote, was not itself alleged to be unlawful. As noted above, that asserted flaw could not be a reason to disavow a contract. However, that is not to say that the assertion of the flaw is itself unlawful. As noted above there was no contract because the condition of the board of directors’ approval was not met. Finally, my colleagues assert that there were other acts of bad-faith by the Respondent. However, as noted above, the complaint does not allege bad-faith bargain- ing.2 The majority also argues that the Respondent unlaw- fully locked out employees. However, the strike settle- ment was part of the tentative agreement; if there was no contract there was no settlement of the strike. Thus, the 1 The Respondent withdrew its offer. However, as my colleagues correctly note, the withdrawal of the offer is not attacked. The allega- tion is that a contract existed and was repudiated. 2 Where bad-faith bargaining is alleged and found, and that bad faith prevents the existence of a contract, the Board may declare that a con- tract exists. See Teamsters Local 287 (Granite Rock Co.), 347 NLRB 339 (2006). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1130 Respondent simply returned the parties to the position they were in prior to the tentative agreement. Further, even if the Respondent did lock out employees, this would not establish that the Respondent’s bargaining conduct was in bad faith. An employer is privileged to use lockout pressure in a bargaining dispute.3 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to sign a collective-bargaining agreement, the terms of which have been agreed to with American Federation of State, County and Municipal Employees, Local 488, AFL–CIO (the Union). WE WILL NOT refuse to implement and obey the terms of the collective-bargaining agreement reached with the Union. WE WILL NOT lock out our employees in support of an unlawful bargaining position or in a discriminatory man- ner. WE WILL NOT place unlawful conditions on the rein- statement of striking employees or threaten to fire em- ployees if they engage in a strike. WE WILL NOT fail to timely provide relevant informa- tion requested by the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, upon request of the Union, sign and abide by the terms of the collective-bargaining agreement agreed to on January 6, 2005. In the event that the Union does not request that we sign the agreement, WE WILL, upon request of the Union, bargain collectively with it in good faith and embody any understanding in a signed agree- ment. 3 American Ship Building Co. v. NLRB, 380 U.S. 300 (1965). WE WILL make our employees whole, with interest, for any losses suffered as a result of our refusal to sign and abide by the collective-bargaining agreement agreed to on January 6, 2005, and as a result of our lockout of our employees in support of an unlawful bargaining position implemented in a discriminatory manner. VALLEY CENTRAL EMERGENCY VETERINARY HOSPITAL Henry R. Protas, Esq., for the General Counsel. David M. Spitko, Esq. and Sean M. Hart, Esq., of Allentown, Pennsylvania, for the Respondent. Lance Geren, Esq., of Philadelphia, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD A. SCULLY, Administrative Law Judge. Upon charges filed by American Federation of State, County and Municipal Employees, Local 488, AFL–CIO (the Union), the acting Regional Director for Region 4, National Labor Rela- tions Board (the Board), issued a consolidated complaint on April 21, 2005, alleging that the Respondent, Valley Central Emergency Veterinary Hospital, had committed certain viola- tions of Section 8(a)(5), (3), and (1) of the National Labor Rela- tions Act (the Act).1 The Respondent filed a timely answer denying that it had committed any violations of the Act. A hearing was held in Philadelphia, Pennsylvania, on August 9, 2005, at which all parties were given a full opportunity to examine and cross-examine witnesses and to present other evi- dence and argument. Briefs submitted on behalf of the parties have been given due consideration. Upon the entire record, and from my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent is a Pennsylvania corporation with a facility in Whitehall, Pennsylvania, where it has been engaged in the operation of an emergency veterinary hospital. During the 12- month period preceeding April 21, 2005, the Respondent, in the conduct of its business operations received gross revenues in excess of $250,000 and purchased and received goods at its Whitehall facility valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania. The Re- spondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that after reaching complete agree- ment with the Union on the terms of a collective-bargaining agreement, the Respondent withdrew from that agreement and 1 The charges were filed on January 10 and 24, and June 8, 2005. A second consolidated complaint was issued on July 20, 2005. VALLEY CENTRAL EMERGENCY VETERINARY HOSPITAL 1131 refused to execute and abide by the terms of the agreement in violation of Section 8(a)(5) and (1) of the Act. It also alleges that after withdrawing from the agreement, which provided for striking employees to return to work on January 7, 2005, it locked out those employees in a discriminatory manner in vio- lation of Section 8(a)(3) and (1). During the hearing, counsel for the General Counsel amended the complaint to allege that the Respondent violated Section 8(a)(3) and (1) of the Act by telling striking employees that their reinstatement was condi- tioned on their refraining from engaging in activity protected by the Act A. Alleged Unlawful Withdrawal from Tentative Contract Agreement The Respondent operates a veterinary hospital offering emergency and critical care for animals on weeknights, week- ends, and holidays. Following an election conducted by the Board on April 28, 2004, the Union was certified by as the exclusive collective-bargaining representative of a unit consist- ing of All full time and regular part time veterinary technicians, re- ceptionists, and kennel employees employed at the facility, excluding all other employees, managers, guards, and super- visors as defined in the Act. The parties began contract negotiations on November 17, 2004, in a conference room at the Respondent’s facility. The Respondent was represented by Hospital Administrator Bart Ueberroth, Brenda Klatz, and attorney David Spitko. The Un- ion was represented by Business Agent Evon Sutton, Union Officers Linda Lee and Sandra Anderson, Attorney Neil Gold- stein, and employees Janna Tomecsek and Jody Smith. The parties exchanged and reviewed contract proposals. They agreed on a few minor matters but nothing significant. The next negotiating session was on December 8 with the same representatives at the same place. About eight employees were also in attendance. The Respondent presented its second contract proposal. No agreement was reached. On December 20, they met again at the facility and about 12 employees were in attendance. At this session, they discussed the third contract proposal submitted by the Respondent and, after the Union asked for the Respondent’s best offer, the par- ties agreed on a 3-year contract with a 3-percent wage increase in each year and the Respondent continuing to pay 100 percent of the cost of individual employee’s health insurance. Unre- solved were issues involving union security, merit raises, and seniority. When the session ended, the Union met with approximately 17 unit employees to discuss the final proposal and determine whether to accept it or to authorize a strike. The employees voted to authorize a strike by a margin of 15 to 2. Thereafter, the Union sent a letter to the Respondent’s board of directors outlining what it considered to be the remaining issues but no additional bargaining occurred before it called a strike com- mencing on December 31, 2004, in which only 12 employees participated. Another negotiating session was held on January 6, 2005,2 at the Ramada Inn in Whitehall, Pennsylvania, with a Federal mediator present. The negotiators did not meet face-to-face and the mediator went back and forth to their respective rooms. The Respondent presented a new proposal which offered noth- ing new in the areas about which the Union had expressed dis- satisfaction. This proposal also withdrew several concessions the Respondent had previously made in hopes of avoiding a strike. The new offer dropped a provision whereby seniority would apply in recalling employees from layoffs, it required employees to pay 10 percent of the health care premiums, and reduced the amount of the wage increases from 3 to 2 percent. That evening the parties eventually reached an agreement on a modified version of the Respondent’s proposal which was signed by Sutton and Ueberroth. Following execution of the agreement, the Union held a meeting with approximately nine unit members, some of whom had attended the bargaining session. Negotiating team mem- bers Tomecsek and Smith made telephone calls to employees who were not present and informed them about the meeting and what was going on. Several employees who were contacted were scheduled to work that night. At least one of them, Kim- berly Rohrbach, asked Ueberroth for permission to go to the meeting but he said that they were extremely busy and that she could not leave. At some point, Rohrbach agreed to ask other employees who were working for their votes on the contract and call them in but she later decided not to do so. Other em- ployees who were not working that night were notified of the meeting but did not attend. Union attorney Goldstein explained the terms of the agree- ment to those at the meeting and advised that he considered it in their best interests to accept this 1-year agreement and try to make improvements the next time. Sutton told them that she recommended acceptance because half of the work force had already returned to work and she did not believe the Employer would do anything more. The employees at the meeting dis- cussed their options and, while some expressed unhappiness with the contract, no one suggested that it be rejected. There was no formal vote or show of hands at the meeting, but no opposition was raised when Sutton proposed that it be accepted. She told those who were scheduled to work the following eve- ning to report for duty as provided in the agreement. During the following day, Ueberroth telephoned striking employees who were scheduled to work that evening and told them not to come to work. The employees contacted Sutton who in turn called Ueberroth. He put the Respondent’s attor- ney Spitko on the phone. Spitko read a letter stating that the Respondent was withdrawing the offer which led to the “tenta- tive agreement” reached on January 6, because it understood that the Union had conducted a ratification vote which it con- sidered “at least, improper, untruthful and disingenuous, and at most unlawful.” It also stated that striking employees were not to return to work until further notice. On January 13, Spitko sent Goldstein a letter confirming that the Respondent had withdrawn the offer which led to the “ten- tative agreement” reached on January 6. The letter stated that 2 Unless stated otherwise all dates are in 2005. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1132 the agreement was contingent upon ratification by unit employ- ees and the Respondent’s board of directors. It outlined a num- ber of complaints about the Union’s actions on the night of January 6, as reported to it by unit employees, and asserted that this made the ratification vote conducted by the Union “either ineffective or illegal.” It further stated that the Respondent was privileged to withdraw the underlying offer which led to the agreement because its board of directors had not ratified it. The letter stated that since the agreement had not been ratified, the strike continued, and the striking employees it had refused to allow to return to work were “returning to the status quo prior to the tentative agreement.” On January 19, at a meeting of the Respondent’s board of di- rectors, Ueberroth described the events of January 6, as they had been reported to him, and recommended that it not ratify the agreement. The board of directors refused to ratify by unanimous vote. Analysis and Conclusions It is not disputed that the parties reached an agreement on the evening of January 6 or that the Respondent withdrew from that agreement because it felt that the agreement had not been prop- erly ratified by unit employees. However, in order for it to have lawfully done so, it must be established that employee ratification was a condition precedent to a binding contract. Board law is clear that “employee ratification is an internal union procedure; unless the parties expressly make ratification a condition precedent to reaching a contract, it is not obliga- tory.” Personal Optics, 342 NLRB 958, 962 (2004); Mine Workers (Arch of West Virginia), 338 NLRB 406, 413 (2002). Here, the evidence fails to establish that employee ratification was an agreed-upon condition precedent. The Respondent contends that there was such an agreed- upon condition precedent. It points to the facts that at the first negotiating session on November 17 Union Attorney Goldstein stated that both sides would take any agreement back for ratifi- cation and that, during the January 6 negotiations, Goldstein told the mediator that, if the Respondent agreed to a mainte- nance of membership clause, the Union would recommend the agreement to the employees for ratification. Neither fact taken alone or together establishes a bilateral agreement that ratifica- tion by unit employees was a condition precedent to the con- tract taking effect. There is no evidence that the Respondent’s representatives responded to Goldstein’s statements or that there was any discussion about them during the negotiations. Apart from this, there is nothing in the record to establish that the parties had an express agreement concerning the need for ratification by unit employees. As the Board noted in Personal Optics, “even if the Union’s prior statements arguably may have led the Respondent to believe that the Union would con- duct a vote of the bargaining unit, there was never any such agreement between the parties.” 342 NLRB 958 at fn. 2. That is the case here. Moreover, the written agreement signed by the parties’ representatives on January 6 contains no provision requiring employee ratification.3 The Respondent also contends that the Union did not ratify the tentative agreement on the night of January 6 because its actions were unlawful and this precluded ratification. How- ever, in the absence of an agreement making ratification a con- dition precedent to a binding contract, the Respondent lacks standing to challenge what is within the internal domain of the Union. As the Board stated in Longshoremen ILA Local 1575 (Navieras, NPR), 332 NLRB 1336 (2000), “if a union does choose to seek employee ratification, it is for the union ‘to con- strue and apply its internal regulations relating to what would be sufficient to amount to ratification.’” In that case, union leaders declared an agreement had been ratified at a meeting of its membership notwithstanding that approximately 80 percent of the members in attendance demonstrated opposition to a new contractual provision. The Board held that “the decision as to whether ratification occurred was within the Union’s exclusive domain and control, and therefore the ratification process was purely advisory.” Id. Next, the Respondent contends that ratification by its board of directors was a condition precedent to the tentative agree- ment taking effect and that, since its board rejected the agree- ment, it never became a binding contract. Each of the Respon- dent’s written contract proposals contained the following lan- guage: During the negotiations, the Respondent reserves the right to add to, delete from, modify, alter, amend or withdraw any portion of this proposal. The resolution of a complete agree- ment shall be contingent upon an agreement on all open issues and not any one issue. Any issue, sentence, clause or Section previously proposed by the Union, which is not addressed in this or any previous proposal is to be considered rejected by the Respondent. Any resolution at the bargaining table of a complete agreement is contingent on approval of the complete agreement by the Respondent’s Board of Directors. However, the Respondent withdrew from the tentative agree- ment on January 7, well before its board of directors voted on ratification.4 Moreover, it did so not because of the content of the agreement, a significant portion of which was based on regressive proposals it had made as a result of its having suc- cessfully weathered the strike, but because of its objections to what it considered the Union’s improper conduct on January 6 in ratifying the agreement. Likewise, the Respondent’s board of directors rejected the agreement at a meeting on January 19 after Ueberroth described what he considered the Union’s mis- conduct in connection with its ratification on January 6 and recommended that the agreement be rejected. In Suffield Academy, 336 NLRB 659 (2001), the Board reit- erated its holding in Driftwood Convalescent Hospital, 312 NLRB 247, 252 (1993), enfd. sub nom. NLRB v. Valley West 3 Although the Respondent argues that the tentative agreement was drafted by the mediator, the fact is that both sides adopted it when they signed it. 4 On January 13, by letter from Spitko to Goldstein, the Respondent reaffirmed that it had withdrawn from the tentative agreement on Janu- ary 7 because it considered the Union’s ratification to be “either inef- fective or illegal.” VALLEY CENTRAL EMERGENCY VETERINARY HOSPITAL 1133 Health Care, 67 F.3d 307 (9th Cir. 1995), quoting Mead Corp. v. NLRB, 697 F.2d 1013 (11th Cir. 1983), that “the law is set- tled that ‘[t]he withdrawal of a proposal by an employer with- out good cause is evidence of a lack of good faith bargaining by the employer in violation of Section 8(a)(5) of the Act where the proposal has been tentatively agreed upon.’” Here, the employer did just that with respect to the entire agreement. I have found that employee ratification was not a condition precedent to a binding contract. As a matter of law, the Re- spondent had no standing to question the validity of the Un- ion’s ratification of the agreement. Under these circumstances, the Respondent’s reliance on its conclusion that the Union’s ratification of the agreement was ineffective or improper does not constitute good cause for withdrawing its tentative agree- ment. Accordingly, I find that the Respondent’s withdrawal from the agreement on January 7 constituted a refusal to bar- gain in good faith and violated Section 8(a)(5) and (1) of the Act. See Crestline Memorial Hospital Assn., 250 NLRB 1439, 1448 (1980). B. Alleged Failure to Abide by Contract Provision Concerning Reinstatement The agreement reached by the parties on January 6 contained a strike settlement provision that striking employees would return to work on their former shifts commencing on the fol- lowing day at 5 p.m.5 After the agreement was signed at the Ramada Inn, Sutton informed the employees that if they were scheduled to work that day they should report as scheduled. After the Respondent decided to withdraw from the agreement, Ueberroth called striking employees and informed them that they should not return to work until further notice. By refusing to permit striking employees to return to work as scheduled, the Respondent failed to implement and abide by the strike settle- ment term of the agreement in violation of Section 8(a)(5) and (1). Tri-County Produce Co., 300 NLRB 974, 987 (1990). C. Alleged Lockout of Striking Employees The complaint alleges that when the Respondent refused to permit striking employees to return to work on January 7 and thereafter, it engaged in an unlawful lockout. On the night of January 6, the Union informed striking employees that the strike was over and they should return to work on their next scheduled shift. The next day, Ueberroth called and informed striking employees that they should not return to work until further notice. Nonstriking employees continued to work. At various times after January 7, the Respondent reinstated a num- ber of striking employees who were required to make uncondi- tional offers to return to work. The Respondent asserts that it did not lockout the striking employees, but simply returned them to the status quo prior to the tentative agreement. “A lockout occurs when an employer, ‘for tactical reasons . . . refuses to utilize [its] employees for the performance of available work.’” Union Terminal Warehouse, 286 NLRB 851, 859 (1987). That is what the Respondent did on January 7 5 Although the handwritten agreement states that employees will re- turn to work on January 6, there is no dispute that the parties intended the date to be Friday, January 7. when it refused to permit striking employees to return to work.6 Although the Respondent claims that it was returning to the status quo, the strike was over on January 6 when the parties signed the tentative agreement which provided for the employ- ees to return to work the following day. The employer’s asser- tion that the employees remained on strike does not make it so and there is no evidence that the Union or any employees in- tended to resume the strike once the tentative agreement was signed. To be lawful, a lockout must be used solely to bring eco- nomic pressure in support of a “legitimate bargaining position,” American Shipbuilding Co. v. NLRB, 380 U.S. 300, 318 (1965), and must be conducted in a nondiscriminatory manner. Allen Storage & Moving Co., 342 NLRB 501 (2004). The Respon- dent’s lockout met neither criteria. It had already reached a complete agreement with the Union on January 6 which it unlawfully repudiated the following day. On January 7, it locked out only those employees who remained on strike through January 6, while permitting nonstriking employees to continue to work. Such disparate treatment is unlawful. Id; McGwier Co., 204 NLRB 492, 496 (1973). Moreover, the Respondent’s requiring employees who had been discriminato- rily locked out to make an unconditional offer to return to work was also unlawful. Shelly & Anderson Furniture Mfg. Co., 199 NLRB 250, 264–265 (1972). Finally, the tentative agreement called for all strikers to return to work beginning on January 7. Like other strikers, Jennifer Powell was called by Ueberroth that day and told not to report for work until further notice. After she learned that some strikers were back at work, Powell contacted Ueberroth to ask about returning. Ueberroth told her that she had been replaced and that he would keep her resume on file for a year in the event there were any openings. Locked out employees cannot lawfully be permanently replaced. Harter Equipment, Inc., 293 NLRB 647, 648 (1989). Based on the foregoing, I find that the Respondent unlawfully locked out striking employees on and after January 7 in violation of Sec- tion 8(a)(5), (3), and (1) of the Act.7 D. The 8(a)(1) Allegations At the hearing, counsel for the General Counsel amended the complaint to allege that the Respondent violated Section 8(a)(1) of the Act by placing unlawful conditions on the reinstatement of striking employees and by threatening to fire returning strik- ing employees if they engaged in a future work stoppage. Jody 6 Those employees are Tara Cromis, Chrissy Kacsur, Chastity Her- man, Janna Tomecsek, Christina Cawley, Nicole Andres, Ronita Law- rence, Sharon Reaves, Jennifer Powell, and Jody Smith. 7 Counsel for the General Counsel and the Charging Party contend in the alternative that, if the Respondent did not unlawfully lock out its employees on January 7, they were unfair labor practice strikers as of that date when what had been an economic strike was converted into an unfair labor practice strike. When an employer’s unfair labor practices prolong an economic strike, it is converted into an unfair labor practice strike. Sunol Valley Golf Club, 310 NLRB 357, 371 (1993). It follows that if the Respondent is correct and the employees who did not return to work on January 7 were still on strike, it could only have been be- cause of the Respondent’s unlawful withdrawal from the tentative agreement of January 6. Had it not withdrawn, the employees would have returned to work on January 7 in accordance with that agreement. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1134 Smith credibly testified that after she received a message from Ueberroth telling her not to return to work on January 7, she heard nothing from the Respondent until May 4. On that date, she called Ueberroth and asked why she had not been notified to return to work. Ueberroth told Smith that the Respondent considered her to still be on strike and that in order to come back she would have to cross the picket line and make an un- conditional offer to return. She asked what he meant and Ue- berroth said that she could come back “without firing people up” and that she “absolutely” could not strike. Smith re- sponded that there was no longer any reason to strike and that she could do what he asked. As discussed above, Jennifer Powell credibly testified that Ueberroth called her on January 7 and told her not to report for work until further notice. After calling Ueberroth she was eventually reinstated in early February. Either when they spoke on the phone or the day she returned to work, Ueberroth told Powell that if she went on strike she would be terminated and that employees were not to raise issues concerning the Union in the workplace. Employee Ronita Lawrence credibly testified that, when she spoke to Ueberroth about reinstatement in early February, he told her that she could not discuss the Union with employees who didn’t want to talk about it and that, if she were to strike, it would be grounds for immediate termination. I credit the detailed and consistent testimony of Smith, Pow- ell, and Lawrence about what they were told by Ueberroth over the latter’s generalized testimony that he had a “canned speech” that he gave to returning strikers. He said that he told them that they could not engage in an “intermittent strike” which would be an unprotected strike and would result in immediate termina- tion. Ueberroth’s testimony did not purport to describe the individual conversations he had with these employee witnesses and each of them denied that he said anything about an “inter- mittent strike.” I find that the Respondent violated Section 8(a)(1) by condi- tioning the reinstatement of striking employees on their agree- ing to abandon union activity and not to engage in a future strike. A.P. Painting & Improvements, Inc. 339 NLRB 1206, 1207 (2003); Parkview Gardens Care Center, 280 NLRB 47, 50 (1986). E. Alleged Failure to Provide Information Requested by the Union By letter dated March 29, 2005, the Union requested that the Respondent provide it with the following information: (1) A list of current employees, including their names, dates of hire, rates of pay, job classifications, last known address, and telephone numbers; and (2) Copies of all disciplinary notices, warnings, or records of disciplinary personnel actions since January 5, 2005. The Respondent did not respond to this request until August 9, the morning of the hearing, when it turned over to the Union all of the information it had requested. There does not appear to be any dispute that the requested in- formation is relevant to the Union’s duties as the collective- bargaining representative of the Respondent’s employees. Consequently, the Respondent was obligated to respond to this information request in a timely manner. The Respondent has provided no explanation as to why the information was not produced within a reasonable period. The Board has held that an unreasonable delay in providing such information is as much a violation of Section 8(a)(5) as a refusal to furnish it at all. Woodland Clinic, 331 NLRB 735, 736 (2000); Britt Metal Processing, 322 NLRB 421, 425 (1996). I find that the Re- spondent violated Section 8(a)(5) and (1) of the Act by failing to produce the information requested in the Union’s letter of March 29 in a timely manner. CONCLUSIONS OF LAW 1. The Respondent, Valley Central Emergency Veterinary Hospital, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(5) and (1) of the Act by repudiating and refusing to execute the agreement reached with the Union on January 6, 2005. 4. The Respondent violated Section 8(a)(5) and (1) of the Act by refusing, since January 7, 2005, to implement the terms of the agreement reached with the Union on January 6, 2005. 5. The Respondent violated Section 8(a)(5) and (1) of the Act by on January 7, 2005, locking out employees in support of an unlawful bargaining position. 6. The Respondent violated Section 8(a)(5) and (1) of the Act by failing to provide in a timely manner relevant informa- tion requested by the Union. 7. The Respondent violated Section 8(a)(3) and (1) of the Act on January 7, 2005, by locking out employees on a dis- criminatory basis and by requiring locked out employees to make an unconditional offer to return to work. 8. The Respondent violated Section 8(a)(1) of the Act by telling returning strikers that they could not engage in activities in support of the Union while at work and would be fired if they engaged in a strike. 9. The foregoing unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I shall recommend that it be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The recommended order will require that the Respondent make whole employees who suffered any loss of wages or benefits as a result of its refusal to sign and abide by the terms of the agreement reached with the Union on January 6, 2005, plus interest, as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended8 8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. VALLEY CENTRAL EMERGENCY VETERINARY HOSPITAL 1135 ORDER The Respondent, Valley Central Emergency Veterinary Hos- pital, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to execute the agreement reached with the Un- ion on January 6, 2005. (b) Refusing to implement and abide by the terms of the agreement reached with the Union on January 6, 2005. (c) Locking out employees in support of an unlawful bar- gaining position or in a discriminatory manner. (d) Placing unlawful conditions on the reinstatement of strik- ing employees and threatening to fire returning striking em- ployees if they engage in a strike. (e) Failing to timely provide relevant information requested by the Union. (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Upon request of the Union, sign and abide by the terms of the collective-bargaining agreement agreed upon by the Re- spondent and the Union on January 6, 2005, and make employ- ees whole, with interest, for any loss of wages or benefits suf- fered as a result of the Respondent’s failure to sign and abide by that agreement, and if no such request is made by the Union, bargain, upon request, with the Union as the exclusive bargain- ing representative of employees in the appropriate bargaining unit and embody any understanding reached in a signed agree- ment. (b) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (c) Within 14 days after service by the Region, post at its fa- cility in Whitehall, Pennsylvania, copies of the attached notice marked “Appendix.”9 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in con- spicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employ- ees employed by the Respondent at any time since January 7, 2005. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. 9 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”