Magic Chef, Inc.

2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Magic Chef, Inc. and International Molders & Allied Workers Union, AFL-CIO-CLC. Case 10-CA-22141 March 2, 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On September 23, 1937, Administrative Law Judge Frank H. Itkin issued the attached decision. The Charging Party (the Union) filed exceptions and a supporting brief, and the Respondent filed cross-exceptions, a supporting brief, and an answer- ing brief. The National Labor Relations Board has delegat- ed 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,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and the consolidated complaint is dismissed in its entirety. 1 The Union and the Respondent have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.24:1 362 (3d dr. 1951). We have carefully examined the record and find no basis for reversing the findings. In affirming the judge's finding that the parties never resolved critical pending contract issues, which precluded their reaching agreement on a collective-bargaining contract, we do not rely on his findings that the parties' failure to specify the recipients of, and the effective dates of, the pay inequity adjustments negated the existence of a contract. See Timber Products Co., 277 NLRB 769 (1985). Rather, we find there was no meet- ing of the minds on a contract for two other reasons, also relied on by the judge: (I) the parties failed to agree on an effective date for the al- leged contract and (2) the Union sought to accept the Respondent's pro- posals on mandatory subjects while contemporaneously rejecting the Re- spondent's proposals on certain nonmandatory subjects, all of which were integral to the Respondent's contract offer. The Respondent asserts that the judge erred in failing to find that its September 4 offer lapsed by virtue of the Union's tender of a counterpro- posal and the passage of time before the Union's purported acceptance of it on October 15, 1986. We note that the judge implicitly rejects this as- sertion in that part of his decision which cites Pepsi-Cola Bottling Co. v. NLRB, 659 F.2d 87, 89-90 (8th Cir. 1981). For the reasons stated in that case, we find no merit in this exception. Mary L Bulls, Esq., for the General Counsel. Carl H. Treishmann, Esq., for the Employer. David M. Cook, Esq., for the Union. DECISION STATEMENT OF THE CASE FRANK H. ITKIN, Administrative Law Judge. The Union filed unfair labor practice charges in Cases 10- CA-2l939(3) and 10-CA-21939(5) on August 8, 1986. The Union also filed unfair labor practice charges in Case 10-CA-22141 on November 6, 1986. A consolidat- ed complaint issued on February 23, 1987. The consoli- dated complaint alleged, inter alia, that Respondent Em- ployer, commencing about June 1, 1986, had failed and refused to bargain in good faith with the Union as the certified bargaining agent of an appropriate unit of its employees, in violation of Section 8(a)(5) and (1) of the National Labor Relations Act. See paragraphs 11-20 of the consolidated complaint, General Counsel's Exhibit 1(g). Respondent Employer denied, inter alia, that it had violated the Act as alleged. Hearings were held on the issues raised in Cleveland, Tennessee, on March 16 and 17, 1987. Thereafter, on May 14, 1987, the General Counsel moved to sever from the consolidated complaint Cases 10-CA-21939(3) and 10-CA-21939(5) because the issues involved had been resolved as part of a compre- hensive settlement affecting both the instant case and earlier litigation. The motion was granted by Order dated May 27, 1987. The issues remaining for resolution are set forth in paragraphs 15 through 20 of the consolidated complaint. Thus, General Counsel alleges that on September 3, 1986, the Employer and the Union commenced negotia- tions for a new collective-bargaining agreement; on Sep- tember 4 the Employer offered the Union a complete contract proposal; on October 15 the Union accepted the proposal; and the Employer thereafter withdrew its offer and refused to give effect to and be bound by the collec- tive-bargaining agreement between the parties. The Gen- eral Counsel further alleges that the Employer, since about September 4, 1986, has refused to bargain in good faith with the Union. The General Counsel explains this latter allegation, as follows (Br. 17): . . . Respondent's insistence that the Union bargain about nonmandatory subjects, when the Union un- equivocally expressed its refusal to bargain, consti- tuted bad faith bargaining. The Employer denies these remaining alleged violations. The Employer asserts (Br. 36-57) that it "was not obli- gated to execute an agreement because there was no meeting of the minds as to substantive terms . . ."; the Employer's "September 4 proposal lapsed before the Union's purported acceptance of this proposal on Octo- ber 15"; the Union's "failure to object to nonmandatory subjects of bargaining exonerates the Company from its obligation to execute an agreement which does not in- clude these nonmandatory subjects"; and, under the cir- cumstances, the Employer did not engage in bad-faith bargaining as alleged. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by counsel, I make the following 288 NLRB No. 3 MAGIC CHEF, INC. 3 FINDINGS OF FACT A. Introduction; Background Respondent Company is engaged in the manufacture of household appliances at its facility located in Cleve- land, Tennessee. The Company is admittedly engaged in commerce as alleged. The Charging Party Union is ad- mittedly a labor organization as alleged. On June 5, 1979, the Board certified the Union as bargaining agent of an appropriate unit of "all production and maintenance em- ployees employed by the Respondent at its Cleveland, Tennessee facility and employees of the repair parts sec- tion of the Cleveland service department." The parties thereafter entered into successive collective-bargaining agreements, the most recent agreement being effective from September 4, 1983, to September 8, 1986 (G.C. Exh. 2). We are principally concerned in this case with the ef- forts by the parties to negotiate a new agreement in 1986. However, I note, solely for background purposes, that on March 31, 1986, Administrative Law Judge Irwin Socoloff had issued his Decision in Cases 10-CA- 18978, 10-CA-19989, and 10-CA-19863 involving the parties herein and their conduct during their earlier 1982-1983 contract negotiations. The administrative law judge had concluded in that proceeding (G.C. Exh. 12, JD-77-86, pp. 28-29): CONCLUSIONS OF LAW 1. Respondent, Magic Chef, Inc., is an employer engaged in commerce, and in operations affecting commerce, within the meaning of Section 2(2), (6) and (7) of the Act. 2. International Molders and Allied Workers, AFL-CIO-CLC, and its Local Union No. 48, are labor organizations within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by Respondent at its Cleveland, Tennes- see, facility, and employees of the repair parts sec- tion of the Cleveland Service Department, exclud- ing all office clerical employees, technical employ- ees, professional employees, truckdrivers, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. At all times material herein the Union has been, and is now, the exclusive representative of all employees in the aforesaid bargaining unit for the purposes of collective bargaining within the mean- ing of Section 9(a) of the Act. 5. By refusing to bargain in good faith with the Union, as exclusive representative of the bargaining unit employees, concerning rates of pay, wages, hours, and other terms and conditions of employ- ment, Respondent has engaged in unfair labor prac- tice conduct within the meaning of Section 8(aX5) of the Act. 6. The strike that commenced on 23 January 1983, was an unfair labor practice strike from its in- ception. 7. By its announcement on 4 February 1983, that it had hired permanent replacements for the unfair labor practice strikers, Respondent has engaged in unfair labor practice conduct within the meaning of Section 8(a)(1) of the Act and caused a prolonga- tion of the strike. 8. By constructively discharging Dorothy Wil- liamson on 30 April 1983, Respondent has engaged in unfair labor practice conduct within the meaning of Section 8(a)(3) of the Act. 9. By hiring employees beginning 26 July 1983, to 2 September 1983, in order to discriminate against its striking employees, Respondent has en- gaged in unfair labor practice conduct within the meaning of Section 8(a)(3) of the Act and caused a further prolongation of the strike. 10. By refusing to reinstate unfair labor practice strikers on their unconditional application for rein- statement on 3 September 1983, Respondent has en- gaged in unfair labor practice conduct within the meaning of Section 8(a)(3) of the Act. 11. By threatening employees with loss of jobs because they participated in a strike, Respondent has engaged in unfair labor practice conduct within the meaning of Section 8(a)(1) of the Act. 12. By threatening employees with reprisals if they speak to other employees about the Union, Re- spondent has engaged in unfair labor practice con- duct within the meaning of Section 8(a)(1) of the Act. 13. By imposing restrictions on employees be- cause of their Union activities, Respondent has en- gaged in unfair labor practice conduct within the meaning of Section 8(a)(1) of the Act. 14. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. The above-quoted decision (issued on March 31, 1986) Was pending review during the current 1986 contract ne- gotiations. And as the General Counsel (Br. 2-3) and the Employer explain (Br. 2 and 4), there were also pending at the time decertification petitions in Cases 10-RD-813 (filed on November 15, 1982), 10-RD-823 (filed on Feb- ruary 4, 1983), and 10-RD-964 (filed on June 27, 1986), as well as unfair labor practice charges filed in Cases 10- CA-21939 (1-5), and 10-CA-21140. The parties have since settled in large part the issues involved in the pend- ing administrative law judge's decision and various unfair labor practice charges. Nevertheless, the administrative law judge's decision, the earlier charges, and the decerti- fication petitions are significant background evidence against which to assess and understand the 1986 bargain- ing conduct now in issue. B. The 1986 Bargaining Sessions On July 7, 1986, Larry Brand, the Employer's director of human resources, notified William Cubitt, the Union's 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD staff representative, "of the Company's intention to ter- minate the" 1983-1986 contract (G.C. Exh. 7). On July 9 Cubitt notified Brand "of the Union's desire to alter, modify and/or terminate the" current contract "if agree- ment is not reached by 12:01 a.m. Monday, September 8, 1986." Cubitt added that the Union "will be prepared to meet with you at a mutually agreed date to start negotia- tions" (G.C. Exh. 8). On July 29, Brand and William Foust, the Employer's vice president, apprised Cubitt that the Employer has "decided that the proper thing for us to do at this time is to defer entering into formal con- tract negotiations." Brand and Foust cited, inter alia, the pending decertification petitions, the pending administra- tive law judge's decision quoted above, the pending unfair labor practice charges, and statements "by a ma- jority of our employees that they do not desire" to be represented by the Union. Brand and Foust also noted that "it is our intention to implement a pay increase amounting to 4 percent effective September 9. . . unless you can give us some valid reason why such an increase should not be implemented." On August 8 Cubitt replied and accused the Employer, inter alia, of "compounding its unfair labor practices by its present conduct" (G.C. Exh. 10). And, as noted, on August 8, charges were filed in Cases 10-CA-21939(3) and (5).1 As acknowledged by the General Counsel (Br. 2), "notwithstanding Respondent's initial refusal to bargain, the parties commenced negotiations on September 3, 1986." Additional bargaining sessions were held on Sep- tember 4 and 5 and on October 15, 1986. The evidence pertaining to these four bargaining sessions and related dealings between the parties is summarized below. 1. The September 3 session Union Representative William Cubitt testified that he was the chief spokesman for the Union at the four bar- gaining sessions. William Foust was the Employer's chief spokesman. As Cubitt recalled, present for the Union at the initial September 3 session were himself, Lottie Miller, David Cook, Tom Phalin, Edgar Swafford, Bill Webb, and Mattie Webb. Cook and Phalin were the Union's counsel. Present for the Employer were Foust, Brand, Bill McClure, Carl Trieshmann, and Bill Gibson. Trieshmann was the Employer's counsel. Cubitt also re- called that, during the preliminary discussion of the "guide rules we'd go by," the Union's counsel, Phalin, announced that, if the negotiations "went beyond" the "contract negotiations" and dealt with the outstanding pending charges and litigation, Phalin "would be the chief spokesman" on those subjects. 1 The consolidated complaint in the instant case alleged, and the Em- ployer admitted in its amended answer (G C. Exh. 1(g) pars. 12, 13, and 14, and G.C. Exh. 1(m)), that about July 29, 1986, Company President J. Hoyle Rymer, unilaterally and without notice to or consultation with the Union, announced to the employees that the Employer would grant to unit employees a wage increase and also announced that the Employer would not bargain with the Union for a new collective-bargaining agree- ment, and that the Employer in fact then refused to meet and bargain over a new contract. The General Counsel, in her posthearing brief (p. 2), cites the above admissions and related correspondence. These allega- tions are apparently cited for background purposes in view of the sever- ance of Cases 10-CA-21939(3) and 10-CA-21939(5) and the comprehen- sive settlement of the parties. General Counsel's Exhibit 11 is the Union's first pro- posal that was presented to the Employer on September 3. Cubitt told Foust "that any Article that we did not ad- dress. . . we did not propose any changes in," referring to General Counsel's Exhibit 2, the current 1983-1986 contract. General Counsel's Exhibit 11 in fact proposes changes and deletions with respect to articles IX (Senior- ity), X (Union Representation), XI (Grievance and Arbi- tration), XIX (Benefits), and XXVI (Wages). I note that under the heading "Agreement," this proposal states: "change date." This proposal also states under the head- ing "Wages": "Substantial wage increase each year of agreement." And, this proposal further states: "Add New Reinstatement Plan for former striking employees who were on lay off." This proposal concludes: "Term Open." Cubitt, as he testified, "went through" the pro- posals and "explained" them. The Employer made no "response." General Counsel's Exhibit 13 is the Employer's first proposal that was presented to the Union on September 3. This proposal generally refers to all articles of the 1983-1986 agreement. Cubitt explained: "We went through the proposal Article by Article and any Article that we did not have proposals on, neither side, we marked them okay or we marked which one had propos- als in those areas." Cubitt also explained that the Em- ployer, like the Union, had not proposed a "duration of agreement" on September 3. As for "Wages," Foust "wanted to discuss a pay increase bonus effective 9/9/86." The Union's response was: "I understand you and I hear you." As shown in General Counsel's Exhibit 13, the Em- ployer's proposal for the "Agreement Clause" recites: "No change except for dates." Under "Duration of Agreement," the Employer's proposal states: "Discuss." Items marked, "open" include the "Recognition," "Check-Off," "Personnel Placement And Seniority," "Temporary Transfers," "Benefits," "Wages," and "Du- ration Of Agreement" articles. Under "Wages," the Em- ployer's proposal states: "Discuss pay increase bonus ef- fective 9/9/86." Cubitt acknowledged on direct examination that the pending decertification petitions were discussed on Sep- tember 3, as follows: . . . I recall decertification being discussed, [there] was a question between the attorneys over the inter- pretation of the law as to where a contract was a bar to a decertification. Everybody knew that pend- ing charges, or the way the discussion . . . was going, that the pending unfair labor practice charges were a bar in theirself. [There] were ques- tions over the decertification petitions. Mr. Phalin's opinion. . . was a contract and was a bar to a de- certification. Mr. Treishmann's opinion was it was not. They referred to a case called Dresser. . . and . . . this would settle itself down the road some- where in litigation.2 2 On cross-examination, Cubitt further recalled that the subject of a contract being a bar to decertification "came up several times during the Continued MAGIC CHEF, INC. 5 Finally, Cubitt recalled that "late in the afternoon" of September 3, I made an exploratory proposal to the Company. It simply says, in order to come to an agreement and get on with it, that we propose putting in a rein- statement plan . . . that all the Articles of the present contract remain the same, that [there] be a .32 an hour general increase granted to all the em- ployees effective the following Monday, 9/9/86, and that in the second and third year. . . we have reopeners on the contract . . . it was for a three year agreement [and] we would restrict the Articles to be discussed on the second and third years to wages and benefits, insurance, pension, etc. The above was "a verbal proposal." The session ended.3 William Foust, chief spokesman for the Employer, tes- tified that about 1 week prior to September 3, union and company representatives held "preliminary meetings" where they "discussed the possibility of meeting to enter into negotiations for a new agreement, at the same time being able to resolve some pending unfair labor practice charges. And. . . we agreed to meet on September 3 for the purpose of accomplishing those two items." Foust further testified that on September 3, Union Counsel Phalin had stated that "our purpose would be. . . to ne- gotiate an agreement . . . and that we would not have any discussions about settlement of pending litigation." Foust, at the time, replied: I replied that we basically would agree with the ground rules about all litigation . . . except for the unfair labor practice charges that had been filed during the life of the contract. . . . Foust, as he testified, did not agree with Phalin's asser- tion on September 3 "that the contract would serve as a bar to any of those decertification petitions." Further, Union Negotiator Cubitt had stated on September 3 that "he would like the Company's best offer by" Friday, September 5.4 3rd, the 4th and the 5th." Cutatt, however, could not "recall" Foust tell- ing him about one week earlier, on August 29, at a "settlement discus- sion," that the Employer was willing to commence negotiations on Sep- tember 3 in order to resolve the "pending unfair labor practice charges." Cubitt explained: "I'm not saying it didn't happen. I don't remember it." 3 On cross-examination, Cubitt was asked if Phalin had stated at this session that "a contract had to be a bar to a decertification," and Foust had responded that, "on the contrary, any contract between the Union and the Company could not be a bar and that had to be understood be- tween the parties." Cubut responded, "I don't recall. He could have said it. I don't recall." As noted supra, this "same subject" concededly came up "several times" during the ensuing negotiations. Further, Cubitt ac- knowledged that he never stated as chief spokesman for the Union, "we're here to negotiate a contract . . . we're not going to talk to you about whether there's a contract bar or not." Cubitt also acknowledged that as early as September 3, the subject of whether the Union would withdraw unfair labor practice charges in Cases 10-CA-21939 and 10- CA-21140 "was talked about and proposed by the Company." The Union said, "no we would not." Cubitt could not "recall" stating at the bargaining table that the Union refused "to bargain over the subject of withdrawing unfair labor practice charges." 4 In addition, Foust recalled, with respect to article V (Check-Off, G.C. Exh. 2), that the Employer "did not make a proposal on Appendix C [the Dues Deduction And Assignment Of Authorization form] . . . the 2. The September 4 session Union Negotiator Cubitt testified that the same union and company representatives attended the September 4 session. Initially, the Employer rejected the Union's "proposals" made on September 3. The Employer then presented a written proposal (G.C. Exh. 14). This pro- posal (G.C. Exh. 14), deals with article I (Recognition), article V (Check-Off), article IX (Personnel Placement and Security), article XVI (Temporary Transfers), article XXVI (Wages), article XXVIII (Duration), and appendix A and B. The proposed change in article V states: . . . Such authorization may be revoked by an em- ployee in writing to the Union and Company at least five days prior to the effective week ending payroll. The proposed change to article XXVI states: "Lump sum payment to be discussed." The proposed change to article XXVII on "Duration" generally states: "One year agreement." Cubitt testified that "we went through them [the above proposals] Article by Article, section by section, and Foust explained what he was talking about" On the subject of "the lump sum payment," Foust told Cubitt that there "would be some inequity pay raises they [the Employer] wanted to put in certain classifications . . . . He [Foust] did not go into detail." As for "duration," Foust assertedly "referred to article XXVIII, duration, as a one year agreement." The Union's response was: "I hear you, I understand your proposal." The Union did not reject any of these proposals, as contained in General Counsel's Exhibit 14. Later that same day, the Union made a "counter-pro- posal," as contained in General Counsel's Exhibit 15, The Union proposed to agree to the Employer's "1st Proposal" on "Recognition"; "all present language and benefits remain as is"; there would be a ".32 per hour general wage increase for all employees"; a "reinstate- ment plan as proposed on 9/3/86"; and a "one year agreement." The "items" were "discussed." This coun- terproposal "was conditioned on reaching agreement"— "if it was not accepted it came off the table." The nego- tiations later "broke up." Cubitt further recalled that on September 4, we had talked about it a couple of times, that we wanted to have the Company's final position on the table so we could wrap up negotiations, so we could have a ratification meeting prior to the expi- ration of the contract [September 8, 1986], and Mr. Foust said he didn't see any problem with doing that. Cubitt further explained on cross-examination that Foust stated, in effect, that "he would get to [Cubitt] the Com- pany's final and best offer by 4 p.m. the next day, Friday September 5th." As shown below, the Employer in fact only thing I remember we had a brief discussion . . that they might want to get some new cards signed since those were first signed in 1980." 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "never got to make a final or best offer" by September 5. Cubitt testified: Q. So, isn't it fair to say that at the time Mr. Foust made his proposal on September 4 at 11:01 a.m., that it was within the parties, your, contempla- tion that the Company would be coming back and making a final offer, a fmal and best offer by 4 p.m. Friday September 5th? A. That was true until the events changed. - Company Negotiator Foust testified that at the Sep- tember 4 session, in addition to making the "proposal" contained in General Counsel's Exhibit 14, he told the Union "that we also wanted to propose making some wage inequity adjustment for certain trade and craft clas- sification employees." Foust did not "identify which spe- cific job classifications would be affected," or "suggest when any such pay inequity adjustments would become effective." Further, as Foust testified: After we went through this written proposal with them, we told them that one, with this proposal we were expecting them to withdraw some unfair labor practice charges and also this contract could not serve as a bar to the pending decertification elec- tions. Phalin, on this "latter point on the contract bar," took "the opposite position." In addition, Cubitt, re- ferring to pending unfair labor practice charges, stated: Those unfair labor practice charges, if we reached agreement, would be like icebergs moving into warm water. They would disappear like icebergs moving into warm water. In addition, as Foust also recalled, the parties "under- stood that both of us were going to have our best posi- tion by" Friday September 5—"we felt that each side ought to be able to know where they should be able to end up by that time." 3. The September 5 session Union Negotiator Cubitt testified that the same per- sons attended the September 5 session. "There was a short discussion about things and where they were and then. . . I believe there was a recess and then the Com- pany came in with an extension agreement proposal," that is, General Counsel's "Exhibit 16. The Employer's extension proposal states: 1. Extend Agreement in its present form until 12:01 a.m. 10/6/86 except for: A. A lump sum payment effective 9/8/86 to all active employees in the amount of .32 hour for hours worked from 7/1/85 through 6/30/86. 2. The Union agrees to withdraw Cases 10-CA- 21939-1 through 5 with prejudice. Discussion ensued which "centered . . . more around item number 2, the withdrawal, and we discussed this." The Union requested a "break" and presented a counter- proposal, that is, General Counsel's Exhibit 17. This counterproposal states: 1. Extend Agreement in its present form until 12:01 a.m. 10/6/86 except for: A. As a good faith gesture, the Union agrees that the Company may put into effect a .32 per hour pay bonus for all hours worked from 7/1/85 through 6/30/86 as of September 8, 1986. 2. The Union will request the NLRB to hold in abeyance charges pending in Cases 10-CA- 21939(1-5), until 10/6/86. 3. The parties will issue a joint press release and no further statements will be made by either side. Cubist recalled: "The extensions were for the purpose of discussing all the other things and coming to an overall agreement." Further "modifications" were proposed to the exten- sion agreement. The parties, by their representatives, signed General Counsel's Exhibit 18 on September 5, which states: 1. Extend Agreement in its present form until 12:01 a.m. 10/6/86 except for: A. As a good faith gesture, the Union agrees that the Company may put into effect a .32 per hour pay bonus payment . . . for all hours worked from 7/1/85 through 6/30/86 as of Sep- tember 8, 1986, for all active employees. 2. The Union will request the NLRB to hold in abeyance charges pending in Cases 10-CA- 21935(1-5), until 10/6/86. Cubitt testified: On this day, to the best of my knowledge and my recollection, there was no discussion whatsoever on anybody's proposals. It was just talked about the ex- tension agreements and pending things there. On cross-examination, Cubitt acknowledged that on September 5, "when the subject of charge withdrawal or holding charges in abeyance was discussed," "at no time did [he] as chief spokesman ever state at the bargaining table [that he] would refuse and thereafter would not dis- cuss unfair labor practice charges at the bargaining table." See also Respondent's Exhibit 3, the letter by Union Attorney Cook to the Regional Director, dated September 8, pertaining to pending charges. Cubitt further testified on cross-examination, in part as follows: Q. So if I can recapitulate the subject of the unfair labor practice charges, it's your testimony, is it, Mr. Cubitt, that as early as September 3rd the Company told you that they wanted to secure the withdrawal of unfair labor practice charges 21140 and 21939 in the course of negotiating a contract? MAGIC CHEF, INC. 7 A. Also some pending grievances, too. Q. As well as the pending grievances. And that position was expressed by Mi. Foust, as the Compa- ny spokesman, on September 3rd and September 4th and it appeared in written proposals on Septem- ber 5th? A. I believe—I'm not sure about the 4th. I think you're correct on the 3rd and the 5th. I'm not sure about the 4th. The 4th was a very short day. Q. Isn't it true—let me see if I can refresh your recollection. Isn't it true you made reference to ice cubes or icebergs melting in warm water and at an- other time talked about icebergs melting in hot water, when Mr. Foust was saying we want you to withdraw these charges as part of getting your con- tract on September 3rd, 4th and 5th? A. Yes, I think I did make reference to what you're talking about, hot and cold water. They was certain Articles we had agreed to, other things could move out of cold water into hot water. Yes, sir. Q. Those other things we're referring to in terms of icebergs and ice cubes that—these are your words—were referring to the unfair Libor practice charges in 21140 and 21939? A. I believe you're correct. Q. And I believe your testimony just now was that you were telling in response to Mr. Foust's po- sition that if the Company would agree on certain Articles that these unfair labor practice charges, la- beled by you as icebergs or ice cubes, would move from warm water or move from freezing water into warm water or hot water? A. I think this was in discussions when we were talking about overall settlement, not just contract, but overall. Yes. Q. Well, this was—these were discussions that were taking place in the presence of your Employee Committee, is it not? A. But they was two separate— Q. Were they or not in the presence of your Em- ployee Committee, bargaining committee? A. They—they were present during this time, yes. Q. Did anybody say we can't talk about that, that's overall settlement, let's excuse the Committee, and suspend collective bargaini negotiations? A. No. Q. In fact, collective bargaining negotiations pro- ceeded without interruption? A. I won't say without interruptions. Q. Well, no one called a halt to negotiations, did they, when the subject was raised by Mr. Foust on September 3rd, 4th and 5th that he wants you to withdraw charges 21140 and 21939 in return for a contract? A. They was quite a lot—when you say halt— they was quite a lot of halting negotiations while Mr. Foust, Mr. and vu, and Mr. Phalin went out in the hall and discussed things. Q. Did the subject of withdrawing unfair labor practice charges in consideration of the terms of a collective bargaining contract, were those matters discussed at the collective bargaining table between you and Mr. Foust in the presence of your Employ- ee Committee? A. The 3rd and the 5th, yes. The 4th I'm not sure of. Company Negotiator Foust testified that on September 5, "the Union came back with a counter-proposal, then we started talking about an extension of the present agreement rather than trying to negotiate either a one, two or three year agreement." One of the reasons for this so-called "30-day extension" was "both sides wanted to have an opportunity during that period of time to pursue the possibility of settlement of a lot of other pending matters between the two parties." 4. The October 15 session Union Negotiator Cubitt testified that the next bargain- ing session was on October 15, some 9 days after the ex- tension agreement had expired. Cubitt was asked: "Was there any contact between the parties from the period September 5 until your October 15 session?" Cubitt re- called, "Yes. There were meetings going on, not pertain- ing to contract negotiations, but overall settlements." Cubitt further recalled that he met early on the morn- ing of October 15 with the Union's negotiating commit- tee for the purpose of "reviewing where we were . . . where we stood on all the issues." The union representa- tives discussed, inter alia, that most of their members "had never been reinstated"; "there was all kinds of liti- gation pending in the courts"; "there were all kinds of cases pending before the Board"; and "we did not want to get into another labor dispute here in Cleveland." Ac- cording to Cubitt, the union representatives then agreed to accept the Employer's "last proposal," dated Septem- ber 4, 1986. (See G.C. Exhs. 19 and 14.) Later that day, October 15, the union representatives met with the company representatives. Cubitt, as he testi- fied, presented the Union's "acceptance," (G.C. Exh. 19). Cubitt noted that Treishmann, the Employer's attorney, and Phalin, the Union's attorney, were not present at this session. All other representatives from the previous ses- sions were present. According to Cubitt, Mr. Foust, to say the least, looked real surprised. After studying it for a minute [G.C. Exh. 19], he made several comments. One, he reminded us that he had notified us on the 4th that he wanted to give some inequity raises, and this we told him we un- derstood and we agreed to it, and accepting it gave him the right to put in anything he wanted to, any amounts or anything else. And then he -said [there] had been some changes made within the Company, and he needed a short break. . . . Later, as Cubitt next testified: Mr. Foust wanted to go through and make sure that we were talking about the same proposal [G.C. 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Exh. 14]. We went through. We had no disagree- ment whatsoever all the way through the proposal. When we got to wages, he [Foust] had Mr. Brand call out the department numbers and job titles that was going to get the inequity raise, and this was the first time he told us the amount of money which was .32. We had no objections because we had ac- cepted whatever he wanted to put on the table. . . . . When we got to the duration, he proposed that it be a six month agreement. I told him. . . when we came in this morning we accepted your 9/4/86 pro- posal in its entire form. It covered every Article and every section and that was for one year, and we had accepted it in total. Foust, according to Cubitt, also "brought up several points about charges pending litigation and one thing and another." Cubitt responded: "The contract ne- gotiations were over. . . we had accepted his proposal." Cubitt told Foust: "if he wanted to talk about all these other subjects, we'd be glad to stay there all day or set up other meetings." See General Counsel's Exhibit 20, presented to the Employer later on October 15, which recites: The Union has accepted the Company's written proposal dated 9/4/86 10 a.m., and the stated cor- rections of pay inequities made on 10/15/86. Outside of the context of contract negotiations, the Union is willing to discuss all pending matters in separate discussions. As a gesture of good faith, outside the context of the contract, the Union is willing to withdraw NLRB charges 10-CA-21939(1-5) at this time if the Company is willing to meet and discuss other pend- ing non-contract issues. In addition, Cubitt recalled with respect to "duration": And I think as a good faith gesture, right around here [at] some time, I told Mr. Foust, as a good faith gesture, verbally on our side, that we had no objection, it was up to him, I wasn't proposing it, it was up to him if he wanted to use the expiration date as one year [from] when he proposed it—this was before the extension when he proposed it—and in Article XXVIII it was one year from the expira- tion of that date, but if he wanted to go by the ex- tension date or that [contract] date, I had no objec- tions to either one. . . . Following another break, the Employer presented to the Union a "proposal." See General Counsel's Exhibit 21, which recites: 1. Union's last offer with contract to expire at 12:01 a.m. 4/20/87. 2. Union to include to withdraw 10-CA-21140 on the same basis as 10-CA-21939(1-5). 3. This labor agreement, in and of itself, shall not serve as a bar to any existing filed employee peti- tions concerning representation. 4. If the substantive case law in Dresser Industries is reversed, the labor agreement shall become null and void. Cubitt recalled "a lot of legal talk back and forth." The Union's position assertedly was, "the contract negotia- tions were over with" and "a lot of these subjects in here [were] not mandatory subjects of collective bargaining." The Employer then modified or changed its last pro- posal. (Cf. G.C. Exhs 22 and 21.) Foust wanted the Union to postpone the membership "ratification" meet- ing. The Union refused. The parties argued over whether General Counsel's Exhibit 20, quoted supra, was a union "proposal" or "position statement." See General Coun- sel's Exhibit 23, a "position paper" by the Union. Foust then claimed that the Union "just withdrew [its] last pro- posal" and there is no "contract for ratification." Cubitt next testified that on the following day, Octo- ber 16, the membership "ratified" the "new contract." See (G.C. Exh. 24), Cubitt's October 24 letter to Foust containing the "terms of the agreement reached between the parties on October 15." This "agreement" consists of basically the Employer's September 4 proposal (G.C. Exh. 14) and an additional page entitled "pay increases for specific classifications." Cubitt explained that "this in- formation" on the last page "was given to us at the table on the 15th by Mr. Brand and we typed it up and sent it in." The Employer's position and response was, in effect, "there was no meeting of the minds between the parties concerning the effective date of the contract or its dura- tion as well as understandings about other pertinent mat- ters." (See G.C. Exhs. 25 and 26.)5 Company Negotiator Foust testified that on October 15 he stated to the Union that his September 4 "offer had not been accepted"—the Union had made a "counter-proposal." In addition, Foust later reminded the union representatives on October 15 "that there were some other conditions that were tied to the September 4 proposal. . . withdrawal of unfair labor practice charges . . . [the] contract not serve as a bar. . . [and] wage in- equity of some trade craft employees." Further, Foust wanted to change the proposed 1-year duration to a 6- month duration. Foust then explained to the Union's rep- resentatives the "reason" for this change, namely, the Employer's establishment of a new parts and service company involving several appliance companies which would affect unit employees as well as the establishment of a task force to reorganize range operation facilities of various companies or entities. Cubitt "said that he would take it under consideration." And, we had a discussion [that the September 4] proposal . . . did not contain Appendix C and I think David Cook said that the Union would be willing to modify its position on Appendix C. 5 On cross-examination, Cubitt testified that "we agreed . . . they [the employees] could revoke their [dues deduction] card at will with five days notice," but there "was never agreement or discussion [over] the "Dues Deduction And Assignment Of Authorization" form set forth in appendix C of the 1983-1986 contract, G.0 Exh. 2, App. C. MAGIC CHEF, INC. 9 At this October 15 meeting, Foust verbally apprised the Union of the "job classifications that we wanted to give a wage adjustment of .32 an hour." The Union had not previously said "anything at the bargaining table on whether it was accepting or rejecting [the Employer's] proposal on pay inequity adjustments"; previously, the Employer had not given the Union "the job classifica- tions"; "prior to the Union's written proposal. . . of Oc- tober 15 [G.C. Exh. 20]," Cubitt had not said "anything" when the Employer had generally proposed pay inequity adjustments. Foust denied that Cubitt or any other union representative had previously said, in effect, "whatever you [the Employer] want to do on pay inequity adjust- ments was acceptable to the Union." Finally Foust denied that by October 15 there was any agreement reached concerning the date on which pay in- equity adjustments of .32 per hour for certain classifica- tions would be effective; concerning the contract bar question; concerning the withdrawal of charges; con- cerning Appendix C; concerning retroactivity of the con- tract either back to September 8 (when the prior con- tract expired) or October 6 (when the extension ex- pired)—this subject was not discussed; and concerning the actual effective date or termination date of the con- tract. Foust had expressed a willingness to meet and dis- cuss these and related bargaining subjects with the Union.° Much of the testimony recited above is not disputed in any material manner. There are, however, some conflicts and inconsistencies in the testimony by Company Negoti- ator Foust and Union Negotiator Cubitt, as well as Union Counsel Phalin. Thus, for example, Cubitt asserted that there were "no conditions or anything" stated when the Employer presented its September 4 proposal. "It was just placed down as a proposal." Elsewhere, Cubitt acknowledged that when he "made [the Union] proposal on September 4 . . . [he] said along with it, if agreed upon, five icebergs in freezing water would move to hot water"—these five icebergs refer to pending unfair labor practice charges. Moreover, Cubitt conceded that the parties had discussed before and during the September bargaining sessions their outstanding litigation—such dis- cussions admittedly took place at the bargaining table. The parties were clearly anxious to resolve both their outstanding litigation as well as negotiate a renewed con- tract. The outstanding litigation, as recited supra, includ- ed the Socoloff decision then pending review before the Board, outstanding unfair labor practice charges, and three pending decertification petitions. Cubitt asserted, as well as Union Counsel Phalin, that the parties, in effect, drew some line of demarcation be- tween their "overall settlement" discussions and their "collective bargaining negotiations." However, Cubitt at one point could "not honestly recall" whether Union Counsel Phalin had said: "If the parties wished to discuss overall settlement concerning matters in litigation and in the Courts and the Socoloff decision pending at that time before the Board . . . that would be done separate from the collective bargaining negotiations." Then, Cubitt 6 See also the rebuttal testimony of Cubitt and Union Representative William Lemmons (Tr. 353-361). agreed that if "overall settlement was discussed, the union bargaining committee would be dismissed and sep- arate discussions would take place in their absence." Nevertheless, as Cubitt elsewhere agreed, these so-called "overall settlement discussions" in fact took place at the bargaining table in the presence of the union bargaining committee. Significantly, the negotiations on September 5 for a 30-day contract extension and the interim agree- ment reached expressly referred to pending litigation. Cubitt attempted to characterize the discussions be- tween the parties, pertaining to a contract bar of the pending decertification petitions, as in effect a legal dis- cussion over "legal interpretations" between counsel. Cubitt was asked: "Didn't Mr. Phalin state that it was es- sential that any contract negotiated. . . be a bar to any decertification election?" Cubitt testified; "I don't recall him stating it that way." Elsewhere, Cubitt testified: Q. Isn't it true that Mr. Foust said in response to Mr. Phalin's assertion that a contract had to be a bar . . . that Mr. Foust told him on the contrary any contract. . . could not be a bar and that had to be understood between the parties? A. I don't recall. He could have said it. I don't recall. Union Counsel Phalin, in his limited testimony, acknowl- edged: "I believe I said I wanted whatever contract was negotiated to operate as a bar." Phalin also acknowl- edged that this issue of contract bar was discussed on September 4 "after going through that contract propos- al." As Phalin put it, "we were attempting . . . to strike a contract that would be a bar." In addition, Cubitt testified that the Employer, when it made its written proposal on September 4, verbally re- ferred to wage inequity adjustments for certain job clas- sifications. These adjustments and classifications, and re- lated detail, were concededly not discussed or made available at the time. When the Union later attempted to accept the Employer's September 4 proposal on October 15, the so-called acceptance (G.C. Exh. 19) admittedly "makes no mention of the pay inequity issue." Cubitt nevertheless asserted, "When we accepted their proposal, they had the right to do what they wanted to and when they wanted to and how they wanted to." According to Cubitt, "we accepted whatever they wanted to put on the table." Cubitt further asserted: "[Foust] reminded me at that time he didn't tell me what they were or how much. . . he had that issue still out. . . . I told him we had accepted his proposal and that was part of his pro- posal." 7 Company Negotiator Foust, on the other hand, credi- bly and reasonably testified that he told Union Counsel Phalin at the bargaining table: "we could not agree that the contract would serve as a bar to any of those decerti- fication petitions." Foust credibly and reasonably ex- plained that, after he had put forth and gone through the 7 Cubitt also asserted that the parties had "agreed not to change the [dues deduction] cards, to leave the cards as they were [in Appendix C, G.C. Exh 2)" even though there was a proposed change in art. V on revocation, affecting the card language. 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Employer's September 4 written proposal,"we told them that . . . with this proposal we were expecting them to withdraw some unfair labor practice charges and also that this contract could not serve as a bar to the pending decertification elections."Foust also credibly and rea- sonably denied that Cubitt, prior to presenting him with General Counsel's Exhibit 20 on October 15, had'"`ever [said] that whatever you [the Employer] want to do on pay inequity adjustments was acceptable to the Union, without ever having seen or been presented with any proposals specifically addressing pay inequity adjust- ments." On this record, insofar as the testimony of Foust con- flicts with the testimony of Cubitt and Phalin, as well as the limited rebuttal testimony of William Lemmons, I find the testimony of Foust to be more forthright, rea- sonable, complete, and reliable. Foust impressed me as a more credible and trustworthy witness. His testimony was substantiated in significant part by admissions by Cubitt and Phalin and by uncontroverted documentary evidence. On the other hand, on this record, I find the testimony of Cubitt, Phalin, and Lemmons, as illustrated above, to be at times vague, unclear, contradictory, in- complete, and unreliable. Discussion The General Counsel contends that Respondent Em- ployer violated Section 8(a)(5) and (1) of the Act "by withdrawing its contract offer after acceptance by the Union . . . [and] Respondent's insistence that the Union bargain about nonmandatory subjects, when the Union unequivocally expressed its refusal to bargain, constituted bad faith bargaining" (G.C. Br. 17). Respondent Employ- er argues that there was "no meeting of the minds as to substantive terms of the contract"; the Employer's Sep- tember 4 proposal had "lapsed" by October 15; the Union's "failure to object to nonmandatory subjects of bargaining exonerates the Company" from any obligation to execute a contract which omits these nonmandatory subjects; and the Employer, on the facts presented here, did not improperly insist that the Union bargain about nonmandatory subjects (Co. Br. 36-57). It is settled law that "when an oral agreement is reached as to the terms of a collective bargaining con- tract, each party is obligated, at the request of the other, to execute that contract when reduced to writing, and a failure or refusal to do so constitutes" a violation of Sec- tion 8(a)(5) and (1) of the Act. See Liberty Pavilion Nurs- ing Home, 259 NLRB 1249 (1982); Interprint Co., 273 NLRB 1863 (1985). Of course, as explained in Interprint Co., supra, there must be a "meeting of the minds" on the "contractual issues," including, for example, the com- mencement and termination dates of such a contract. Further, the Eighth Circuit, in agreement with the Board, also explained in Pepsi-Cola Bottling Co. v. NLRB, 659 F.2d 87, 89-90 (8th Cir. 1981): [A]n offer, once made, will remain on the table unless explicitly withdrawn by the offeror or unless circumstances arise which would lead the parties to reasonably believe that the offer had been with- drawn. It is also settled law that one negotiating party may not demand that the other agree, as a condition to sign- ing a collective-bargaining agreement, to nonmandatory subjects of bargaining, such as, for example, the with- drawal of pending unfair labor practice charges and the settlement of pending proceedings before the Board. See Laredo Packing Co., 254 NLRB 1, 18-19 (1981); Good GMC, 267 NLRB 583 (1983); and Amer-Cal Industries, 274 NLRB 1046, 1051-1052 (1985). Nevertheless, as the Board made clear in Amer-Cal Industries, supra at 1052: [T]o hold that Section 8(a)(5) of the Act required respondent to accept a contract embodying all of its contract proposals except for the nonmandatory proposal which was an integral part of respondent's contract package, even though the union never put the respondent on notice that it objected to this nonmandatory proposal, would lead to an inequita- ble result. In short, under such circumstances, the "union was not entitled to pick and choose those contract proposals [on mandatory bargaining subjects] which suited its needs and demand execution of a collective bargaining agree- ment limited to those proposals"; for, "nonmandatory subjects of bargaining could, as a function of cost, bear upon a party's mandatory subjects of bargaining." Good GMC, supra. Consequently, the "inclusion among re- spondent's other proposals" of nomnandatory subjects of bargaining "would have been illegal only 'if in the face of a clear and express refusal by the union to bargain about the [nonmandatory subjects]' . . respondent in- sisted upon [their] acceptance." See Amer-Cal Industries, supra, and cases cited. Applying the foregoing principles of law to the essen- tially undisputed and credited evidence of record, as de- tailed supra, I find and conclude that there was no meet- ing of the minds on the pending contractual issues at the time of the Union's purported acceptance on October 15. The parties, at the time of this acceptance, had not agreed on the essential terms of a contract. Thus, as shown above, there were pending during 1986 unfair labor practice charges, the Socoloff decision and three decertification petitions involving the parties. The Union and the Employer agreed to meet on September 3 in an attempt to negotiate a new agreement and "resolve some of the pending unfair labor practice charges." The par- ties thereafter met on September 3, 4, and 5. The earlier 1983-1986 contract was due to expire on September 8. The parties discussed at the bargaining table, not only proposed modifications of the existing contract, but also the pending unfair labor practice charges and decertifica- tion petitions. At no time during these meetings did the union representatives refuse to discuss and bargain over the pending proceedings. Indeed, when on September 5 it became clear that the parties could not reach agree- ment before the expiration of the existing contract, the parties negotiated and executed a 30-day extension agree- ment that explicitly referred to pending charges being held "in abeyance." At the September 4 meeting, the Employer presented a written proposal (G.C. EA. 14). This proposal stated, MAGIC CHEF, INC. 11 inter alia, with respect to wages: "Lump sum payment to be discussed." Under "duration," this proposal simply stated: "one year agreement." The Employer, as Foust credibly testified, had told the Union that the Employer "wanted to propose some wage inequity adjustments for certain trade and craft classification employees." No de- tails were then provided or discussed. The Employer, as Foust further credibly testified, told the Union that, "with this proposal, we were expecting them to with- draw some unfair labor practice charges, and also this contract could not serve as a bar to the pending decerti- fication elections." Moreover, the Union, referring to pending unfair labor practice charges, stated: Those unfair labor practice charges, if we reached agreement, would be like icebergs moving into warm water. And, it was within the contemplation of the parties "that the Company would be coming back and making a final, a final and best offer," by September 5. As shown, no such "final and best offer" was made on September 5. In- stead, an extension agreement was then negotiated, effec- tive until October 6. The parties, during the extension, attempted without success to resolve their outstanding litigation differences. They held no bargaining meetings until October 15, some 9 days after the extension had expired. The Union then announced that it was accepting the Employer's proposal of September 4. The Employer argued that "there were some other conditions that were tied to the September 4 proposal . . . withdrawal of unfair labor practice charges . . . [the] contract not serve as a bar . . . [and] wage inequity of some trade craft employees." It was not until after the Union's purported acceptance of the Employer's September 4 proposal on October 15 when the Employer first provided the Union with details on the proposed inequity pay adjustments. Further, there was a discussion that the September 4 proposal did not contain an appendix C to reflect the changed checkoff revocation form. The Union,. after its purported acceptance, agreed to the Employer's proposed pay inequity adjustments. See G.C. Exhs. 19 and 20. The Union then insisted that the "contract negotiations were over . . . we had accepted his proposal." Anything else, such as, for example, pend- ing unfair labor practice charges, would be discussed "outside of the context of contract negotiations." The Union, however, apprised the Employer that, as "a good faith gesture," the Employer could set the expiration date of this new agreement 1 year from the expiration of the old contract or 1 year from the extension agree- ment—the Union had "no objections to either one." This subject, as well as retroactivity and others, had not been discussed or agreed on. The Union, as a further "gesture of good faith," was also "willing to withdraw" certain pending charges "if the Company is willing to meet and discuss other pending non-contract issues." This record is clear that, at the time of the Union's purported acceptance on October 15, there was no agreement on the subject of pay inequity adjustments. It was also not agreed when such adjustments would be ef- fective. There was also no agreement on the commence- ment and expiration dates of a new contract. The Union's post hoc statement to the Employer that the Employer could choose the starting date of a new con- tract does not show a meeting of the minds on this term at the time of acceptance. On the contrary, this statement and the Union's related "good faith gesture" offers or proposals on October 15 only serve to bolster the finding that the parties had not in fact agreed on critical pending contract issues.° More significant, however, is the fact that the Union was willing to discuss nonmandatory bargaining subjects at the table on September 3, 4, and 5 and yet, on Octo- ber 15, first attempted to eliminate these pending subjects from its claimed contract. As demonstrated above, the Union, having not objected to a discussion of these vari- ous nonmandatory bargaining subjects, cannot then eliminate them and pick and choose remaining mandato- ry subjects for its alleged agreement. There is no quid pro quo or meeting of the minds. Indeed, it was not until after the Union's purported acceptance of the Employ- er's September 4 proposal on October 15 when the Union first refused to discuss at the bargaining table the pending nonmandatory subjects. The Employer, of course, insisted that it wanted these pending subjects in- cluded in any agreement. Under the circumstances, the Employer has not violat- ed Section 8(aX5) and (1) of the Act by refusing to exe- cute and abide by this alleged agreement of October 15. Nor has the Employer, on this record, improperly insist- ed that the Union also consider the pending nonmanda- tory topics which were an integral part of the Employ- er's contract proposals. The consolidated complaint is therefore dismissed. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce as alleged. 2. Charging Party is a labor organization as alleged. 3. Respondent has not violated Section 8(a)(5) and (1) of the Act and the consolidated complaint will be dis- missed. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 ORDER I recommend that the consolidated complaint be dis- missed in its entirety. 8 I note that the parties had not agreed on appendix C although Union's counsel had said "that the Union would be willing to modify its position on Appendix C." I would not, however, consider the required language changes to appendix C to be critical here. ° 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.