Graphic Communications Union, Local No. 583 (National Press, Inc.)

284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Graphic Communications Union, Local No. 583 (Na- tional Press, Inc.) and Victor F. Yacullo, Esq. Case 32—CB-2705 March 31, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On December 8, 1987, Administrative Law Judge Jerrold H. Shapiro issued the attached deci- sion. The Respondent filed exceptions and a sup- porting 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 brief 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 orders that the Respondent, Graphic Communications Union, Local No. 583, San Fran- cisco, California, its officers, agents, and represent- atives, assigns, shall take the action set forth in the Order. George Velastegui, Esq., for the General Counsel. Robert M. Hirsch, Esq. (Van Bourg, Weinberg, Roger & Rosenfeld), for the Respondent. Victor F. Yacullo, Esq. (Kindel & Anderson), for the Charging Party. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge. This proceeding in which a hearing was held on 19 Oc- tober 1987 is based on an unfair labor practice charge filed 11 June 1986 by Victor F. Yacullo (Yacullo) against Graphic Communications Union, Local No. 583 (Re- spondent) and on a complaint issued 23 July 1987 by the Regional Director of the National Labor Relations Board for Region 32, on behalf of the Board's General Counsel, alleging that Respondent and the Employer (National Press, Inc.) reached a full and fmal agreement for a collective-bargaining contract covering an appro- priate unit of the Employer's employees and that Re- spondent, in violation of Section 8(b)(3) of the National Labor Relations Act, refused to sign the collective-bar- gaining contract. Respondent filed an answer to the com- plaint, amended at the hearing, in which it denied the commission of the alleged unfair labor practices. On the entire record, from my observation of the de- meanor of the witnesses, and having considered the posthearing briefs of the General Counsel and Respond- ent, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER INVOLVED The employer involved, National Press, Inc., a wholly owned subsidiary of Colorgraphics, Inc. (the Employer), is a California corporation that operates a commercial printing shop in Palo Alto, California, its only facility in- volved in this case. The complaint alleges, the Respond- ent's amended answer admits, and I fmd that during the 12 months prior to the issuance of the complaint the Em- ployer, in the course and conduct of its commercial printing business, purchased and received goods and services valued in excess of $50,000 directly from suppli- ers located outside the State of California and is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the National Labor Relations Act. Under the circumstances, I find it will effectuate the pur- poses of the Act for the Board to assert its jurisdiction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent admits, and I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. A. The Facts' In April 1986 the Employer recognized Respondent as the exclusive collective-bargaining representative of the employees employed in the pressroom, bindery, and preparation department of the Employer's Palo Alto, California facility. 2 Thereafter, from 2 June 1986 through 3 March 1987, the Employer's and Respondent's negotiators met a total of approximately 15 times in an effort to negotiate a collective-bargaining contract to cover those employees. The last negotiation session took place 3 March 1987. 3 Respondent's chief negotiator was its president, Cornelius (Neil) Kelleher. The Employer's chief negotiator was its attorney, Victor F. Yacullo. They were accompanied by their respective negotiating committees. During the bargaining that preceded the 3 March ne- gotiation session, the Employer offered a complete con- tract proposal that provided for a contract of 1 year in duration. Respondent rejected several of the economic and noneconomic items contained in that offer and indi- cated that it felt a 1-year contract was not long enough. The 3 March 1987 negotiation session began when Ya- cullo, for the Employer, reoffered the Employer's previ- 1 The facts are based on Charging Party Yacullo's underned and on- contradicted testimony 2 The Employer recognized the Respondent as the exclusive collec- tive-bargaining representative of the employees in the following unit ap- propnate for the purpose of collective bargammg within the meaning of Sec 9(b) of the National Labor Relations Act . All full-time and regular part-time pressroom, bindery, and "prep department" production employ- ees, including leadpersons, employed by the Employer at its Palo Alto, California facility, excluding all other employees, guards, and supervisors as defined in the Act 'All dates unless otherwise specified, refer to the year 1987 288 NLRB No. 36 GRAPHIC COMMUNICATIONS LOCAL 583 (NATIONAL PRESS) 285 When Kelleher, with the rest of Respondent's negoti- ating committee, rejoined the Employer's negotiating committee, Kelleher stated: "You have a deal." He told Yacullo that Respondent's medical plan was viewed by Respondent and the employees as the most important item and that even though the contract was unusual for the industry in many respects and was certainly longer than the usual contract, that Kelleher and the rest of Re- spondent's negotiating committee felt there would be no problem in securing its ratification by the unit employ- ees, and that on Saturday, 7 March, the Respondent would hold an employee meeting to ratify the agree- ment. The employee members of Respondent's negotiat- ing committee also informed Yacullo that they were con- fident the agreement would be ratified by the employees because of the Employer's acceptance of Respondent's medical plan. Kelleher then asked Yacullo to consider in- corporating into the agreement certain new job classifi- cations that the Employer had indicated it intended to employ when it installed new equipment in the future. He also asked Yacullo to consider paying new trainees employed in the Employer's training program 50 cents an hour more than the program's current starting rate. Yacullo agreed to incorporate these two items into the Employer's contract offer that had been accepted by Re- spondent, and also agreed that before concluding the bargaining session that day, he and Kelleher would review the various items that had been agreed on and which had not been agreed upon, so there would be no misunderstanding about the terms of the parties' agree- ment. They in fact conducted such a review, which ended with Yacullo and Kelleher indicating they were in agreement about what was embodied in the agreement reached that day by the parties, and further agreed that portions of the agreement would be set forth in a side letter to the agreement, rather than in the body of the agreement, and that after the agreement was ratified by the employees, Yacullo would reduce it into writing and send the documents that constituted the agreement to Respondent for Xelleher's review and signature. On 5 March Kelleher telephoned Yacullo and told him he was preparing a written summary of the parties' agreement to present to the employees at the 7 March ratification meeting. Kelleher stated that in preparing the summary he realized that during the negotiations Re- spondent had withdrawn its union-security proposal in exchange for the Employer's withdrawal of its manage- ment-rights proposal, but Kelleher now felt that in doing this Respondent had made a mistake. He asked Yacullo to discuss with Arthur Bell, the Employer's general man- ager, whether the Employer would agree to include a union-security provision in the agreement in exchange for Respondent's acceptance of the Employer's manage- ment-rights proposal. Yacullo responded by stating he could not agree to that and would not recommend it, but would discuss the matter with Bell. Kelleher assured Ya- cullo he was not reneging on their agreement, but wanted Yacullo to simply ask Bell if the Employer would be willing to agree to his proposal. On 6 March Yacullo telephoned Kelleher and told him that he and Bell had discussed Kelleher's proposal to in- ous contract offer with the following modifications: He proposed a 3-year, rather than a 1-year, contract and proposed increases in the employees' minimum wage rates for the second and third years and also proposed that during the second and third years the Employer be allowed to make whatever wage adjustments were war- ranted by economic conditions. Kelleher, for Respond- ent, responded by stating that ev en though the Employer had not changed its position on any of the major disput- ed economic items, Kelleher believed progress could now be made in the negotiations because the Employer had demonstrated its good faith by extending the dura- tion of its proposed contract from 1 to 3 years. Kelleher and Respondent's negotiating committee, at this point, caucused to consider the Employer's new contract offer. When Kelleher, with the rest of Respondent's negoti- ating committee, rejoined the Employer's negotiating committee, Kelleher informed Yacullo that Respondent accepted the following provisions in the Employer's con- tract offer: shift differential, hours of work, vacations, training fund, length of agreement, and wages. Kelleher stated Respondent was withdrawing its request for a sev- erance pay provision and a wage cost-of-living allowance (COLA) provision, but wanted to discuss Respondent's proposals, previously rejected by the Employer, which called for the Employer to accept: (1) Respondent's mecti‘ ical plan; (2) Respondent's pension plan; (3) double time pay for hours worked on Saturday beyond 4; (4) be- reavement pay; (5) jury duty pay; and (6) a union dues- deduction provision. Kelleher explained he had listed the above-described items numbered (1) through (5) in the order of their priority to Respondent and stated that if the Employer accepted either Respondent's medical or pension plan "you will have an agreement as fast as can tell me which one you agree to." Regarding item (6), the dues-deduction proposal, Yacullo asked why it was on Respondent's list inasmuch as Kelleher had previously stated Respondent was not interested in a dues-checkoff provision. Kelleher responded by stating he had changed his mind and now wanted the Employer to consider a dues-checkoff provision. Yacullo stated the Employer was still opposed to that provision, but would consider it. Yacullo and the Employer's negotiating committee then caucused to consider Respondent's counterproposal. When Yacullo, with the rest of the Employer's negoti- ating committee, rejoined Respondent's negotiating com- mittee, Yacullo stated the Employer was now going to make its "last, best and fmal offer" in the form of a pack- age proposal, which would be withdrawn if rejected. He stated the Employer was changing the contract offer it had made to Respondent at the start of the 3 March ses- sion, as follows. The Employer would accept Respond- ent's medical plan in exchange for a 5-year contract, in- stead of the 3-year contract previously proposed by the Employer. Yacullo also proposed increases in the em- ployees' minimum wage rates for the 4th and 5th years of the contract and stated that, other than the aforesaid changes, the Employer's contract offer that had been made at the start of the 3 March bargaining session would remain as previously proposed. Kelleher and the rest of Respondent's negotiating committee caucused to consider the Employer's "last, best and fmal offer." 286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD elude union-security and management-rights provisions in the parties' agreement and that Bell felt the parties had already reached an agreement, which Bell did not want to change because he was satisfied with it. Yacullo stated that he and Bell would discuss the matter with the Employer's president sometime next week, but that nei- ther Yacullo nor Bell felt there would be a change in the Employer's position. Yacullo asked whether Kelleher in- tended to cancel the employee ratification meeting scheduled for 7 March. Kelleher answered, "No," and stated that, as he had told Yacullo the day before, "a deal's a deal" and stated he was sure the agreement would be ratified. On 9 March Kelleher wrote Bell that "terms and con- ditions of a first time contract were agreed to by the em- ployees in the bargaining unit at National Press in Palo Alto by secret ballot vote at a special meeting on Satur- day, March 7, 1987" and further stated, "[a]s it was our understanding during negotiations, your attorney Vic Ya- cullo will prepare drafts of the agreement for proofread- ing." On 20 March Kelleher telephoned Yacullo and, after informing him that he was retiring from his position as Respondent's president, stated that Respondent's lawyer, William A. Sokol, had advised him that the agreement between Respondent and the Employer should not be signed. Kelleher explained to Yacullo that Sokol stated that if Kelleher signed the agreement it would create precedent problems for Respondent in negotiating con- tracts with other employers in the printing industry and create serious political ramifications for Respondent's new regime. Kelleher asked Yacullo to speak to Bell and determine whether the Employer would change its mind and agree to include the union-security and management- rights provisions in the parties' agreement. Yacullo re- fused. Kelleher stated he was willing to sign the agree- ment if it included the union-security and management- rights provisions, but believed that, after he resigned as Respondent's president, Respondent's new regime would not sign the agreement, even if it contained a union-secu- rity provision, because of the several significant devi- ations in the agreement from Respondent's contracts with other employers in the printing industry. Kelleher further stated he felt that even with a union-security pro- vision the Respondent, under the circumstances, would rather walk away from the Employer than sign the agreement. Kelleher repeated he was still willing to sign the agreement before he retired, provided the Employer agreed to include the union-security and dues-checkoff provisions. Yacullo refused to agree to this and stated that the parties' had already arrived at a "deal." Kelleher answered by stating, "Yeah, we have a deal. I can't do that. I didn't expect to be retiring. And now that I'm re- tiring. I can't do that. I can't leave them [Respondent's new officers] with the problem." The conversation ended with Yacullo, in response to Kelleher's inquiry, stating that he had no objection to Kelleher contacting Bell and discussing the matter with him. On 24 April Yacullo wrote Respondent in pertinent part as follows: I am enclosing three copies of the recently nego- tiated and ratified agreement for National Press, along with three copies of the side letter confirming the agreement of the parties on other related issues. Additionally, you will receive an agreed upon non- discrimination letter directly from Joel Crockett, President of National Press. If the foregoing accurately reflects what was agreed upon and ratified by the employees, please execute and return all copies of the collective bar- gaining agreement to me for execution by the Com- pany, as well as an executed copy of the side letter. I will thereafter return to you two fully executed copies of the agreement. To expedite your review and execution of the agreements, I have sent copies to the two employ- ees that negotiated the agreement along with Neil Kelleher, as reflected below. Since the employee wage increases are being held in abeyance pending the execution of the various documents, I trust that you will give this your immediate attention. The documents enclosed in Yacullo's 24 April letter con- sisted of a 23-page document entitled, "Agreement" with an attached one paragraph "Letter of Intent" and at- tached exhibits "A" and "B" dealing with minimum hourly rates of pay and manning requirements; a "Side Letter Agreement" dated 23 April; and a one-paragraph letter stating that the Employer is "an equal opportunity, nondiscriminatory employer." Yacullo's undenied and uncontradicted testimony, which was not impugned by the record as a whole, is that the provisions contained in the above-described documents, in evidence as General Counsel's Exhibit 7, constitute all the terms of the agree- ment reached by the parties during the 3 March negotiat- ing session. On receipt of Yacullo's 24 April letter and the docu- ments enclosed in the letter, Respondent referred the matter to its attorney, William A. Sokol, who, in May, informed Yacullo that Respondent would not sign the documents enclosed in Yacullo's 24 April letter because it was Respondent's position that the parties' had not reached an agreement. Sokol, however, in a mid-May conversation with Yacullo, stated Respondent would be willing to sign the agreement submitted by Yacullo, pro- vided that the Employer include in that agreement the union-security provision proposed by Respondent during the negotiations. In this regard, Sokol told Yacullo that if the Employer "would agree to put the management rights clause and union security clause in the agreement, he would instruct the Union to sign it" and stated there were "no additional problems" with the agreement sub- mitted by Yacullo. B. Discussion Respondent represents an appropriate unit of the Em- ployer's Palo Alto, California employees and, on behalf of those employees, during 1986 and 1987 met with the Employer to negotiate a collective-bargaining contract. The last negotiation session took place 3 March, when the parties reached a full and final agreement for a col- GRAPHIC COMMUNICATIONS LOCAL 583 (NATIONAL PRESS) 287 lective-bargaining contract. 4 This agreement was subject to °illy one condition, employee ratification, which oc- curred 7 March when the employees ratified the agree- ment. Shortly thereafter, the Employer reduced the par- ties' 3 March agreement into writing and submitted the documents which embodied that agreement (G.C. Exh. 7) to Respondent, and requested that a representative of Respondent sign the agreement. Respondent has refused to sign the agreement. Having reached an agreement on behalf of the em- ployees whom it represents, Respondent's duty to bar- gain required it to execute, on request, "the written con- tract incorporating the agreement reached." This re- quirement accords with the longstanding recognition by the Board and courts that a signed agreement is an effec- tive force in stabilizing labor relations and preventing strikes and industrial strife. H. J. Heinz v. NLRB, 311 U.S. 514, 524 (1941). I therefore find and conclude that when, on 20 March and continuing thereafter, Respond- ent refused the Employer's requests that Respondent sign its agreement with the Employer, which had been re- duced into writing, that by refusing to sign the agree- ment Respondent violated Section 8(b)(3) of the National Labor Relations Act, as alleged in the complaint, and I shall recommend that Respondent take appropriate reme- dial action.8 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed7 ORDER The Respondent, Graphic Communications Union, Local No. 583, San Francisco, California, its officers, representatives, and agents, shall 1. Cease and desist from (a) Refusing to bargain in good faith with National Press, Inc., a wholly owned subsidiary of Colorgraphics, Inc., with respect to rates of pay, wages, hours, and other terms and conditions of employment in the appro- priate unit described below by refusing to execute the collective-bargaining agreement agreed to by the Re- spondent and the Employer on 3 March 1987 or from engaging in any like or related conduct in derogation of its statutory duty to bargain. The appropriate unit is: All full-time and regular part-time press room, bind- ery and "prep department" production employees, including lead persons, employed by the Employer 4 As described in detail supra, the testimony of the Employer's negoti- ator, Yacullo, overwhelmingly establishes that on 3 March the Respond- ent and the Employer reached agreement on all the terms of a collective- bargaining contract. Respondent presented no evidence to the contrary. 5 Sec. 8(d) of the National Labor Relations Act 6 Respondent's refusal to sign the agreement was not justified by the fact that subsequent to the employees' ratification of the agreement, Re- spondent's leadership apparently concluded that President Kelleher had erred by agreeing to a contract that did not include a umon-security pro- vision and/or other provisions that normally were included in the con- tracts Respondent negotiated with employers 7 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. at its Palo Alto, California, facility; excluding all other employees, guards, and supervisors as defined in the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Execute, on request by the Employer, the contract on which agreement was reached on 3 March 1987. (b) Post at its office and meeting hall copies of the at- tached notice marked "Appendix." 8 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent's authorized representative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to members 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. (c) Furnish to the Regional Director sufficient signed copies of the aforesaid notice for posting by the Employ- er, if it be willing, to be posted in all places where no- tices to the Employer's Palo Alto, California employees are customarily posted. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 8 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain in good faith with Na- tional Press, Inc., a wholly owned subsidiary of Color- graphics, Inc., with respect to rates of pay, wages, hours, and other terms and conditions of employment in the ap- propriate unit described below by refusing to execute the collective-bargaining agreement to which we agreed to on 3 March 1987 or from engaging in any like or related conduct in derogation of our statutory duty to bargain. The appropriate unit is: All full-time and regular part-time press room, bind- ery and "prep department" production employees, including leadpersons, employed by the Employer at is Palo Alto, California facility; excluding all other employees, guards, and supervisors as defined in the Act. WE WILL, if requested by the National Press, Inc., a wholly owned subsidiary of Colorgraphics, Inc., execute 288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the contract on which we reached agreement on 3 March 1987. GRAPHIC COMMUNICATIONS UNION, Lo- ' CAL No. 583