W. Pat Crow Forgings, Inc.

W. PAT CROW FORGINGS W. Pat Crow Forgings, Inc., a subsidiary of TIC In- vestment Corp. and International Brotherhood of Boilermakers, Iron Ship Builders, Black- smiths, Forgers & Helpers, Local 96, AFL- CIO. Case 16-CA-12321 June 17, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On March 17, 1987, Administrative Law Judge Robert A. Gritta issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge's decision.' 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,2 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, W. Pat Crow Forgings, Inc., a subsidiary of TIC Invest- ment Corp., Fort Worth, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' The Respondent has requested oral argument . The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 2 The Respondent has excepted to some of the judge 's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance 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. The Respondent contends in its exceptions that the effective date and duration of the agreement were open issues on August 28, 1985, and, ac- cordingly, that there was no meeting of the minds between the parties on a complete agreement . Union Representative Beauchamp's credited testi- mony, however, indicates that he began the August 28 meeting by re- viewing with the Respondent's representative , Hatley, the Company's outstanding proposals , including the comprehensive initial proposal con- taining the Company's position on the effective dates of the agreement. Hatley did not claim then or at any time during the August 28 meeting that the initial proposal on the effective dates had been withdrawn or modified. Moreover, Union Representative Bryant 's September 6, 1985 letter informing Halley of the agreement 's ratification by the union mem- bers cited the effective dates as August 18, 1984, through August 17, 1987. In his response, Hatley did not object to these dates. We also note that Hatley's testimony concerning open issues was discredited by the judge. Therefore, we agree with the judge 's finding that the Company's initial proposal regarding the effective date and duration of the contract was on the table and subject to acceptance by the Union on August 28, 1985. 213 J. O. Dodson, Esq., for the General Counsel. Robert G. Mebus, of Dallas, .Texas, for the Respondent. Michael J. Stapp, of Kansas City, Kansas, for the Charg- ing Party. DECISION STATEMENT OF THE CASE ROBERT A. GRITTA, Administrative Law Judge. This case was tried before me on 6 and 7 May 1986 in Ft. Worth, Texas, based on a charge filed by International Brotherhood of Boilermakers, Iron Ship Builders, Black- smiths, Forgers & Helpers, Local 96, AFL-CIO (the Union) on 18 September 1985 and a complaint issued by the Regional Director for Region 16 of the National Labor Relations Board on 7 January 1986.1 The com- plaint alleged that W. Pat Crow Forgings, Inc., a subsidi- ary of TIC Investment Corp. (Respondent) violated Sec- tion 8(a)(1) and '(5) of the Act by refusing to execute a written collective-bargaining contract embodying agree, ments previously reached in negotiating sessions. Re- spondent's timely answer denied the commission of any unfair labor practices. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evi- dence, and to argue orally. Briefs were submitted by the General Counsel, Respondent, and the Charging Party. All briefs were duly considered. On the entire record in this case and from my observa- tion of the witnesses' and their demeanor on the witness stand, and on substantive, reliable evidence considered along with the consistency and 'inherent probability of testimony, I make the following FINDINGS OF FACT I. JURISDICTION AND STATUS OF LABOR ORGANIZATION-PRELIMINARY CONCLUSIONS OF LAW The complaint alleges, Respondent admits, and I find that W. Pat Crow Forgings, Inc., a subsidiary of TIC Investment Corp. is a Delaware corporation engaged in the forging of commercial and military products in Ft. Worth, Texas. Jurisdiction is not in issue. W. Pat Crow Forgings, Inc., a subsidiary of TIC Investment Corp., in the past 12 months, in the course and conduct of its busi- ness operations, purchased and received at its Ft. Worth, Texas facility goods and materials valued in .excess of $50,000 directly from points'located outside the State of Texas. I conclude and find that W. Pat Crow Forgings, Inc., a subsidiary of TIC Investment Corp. is an employ- er engaged in commerce and in operations affecting com- merce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I con. clude and find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 1 All dates are in 1985 unless otherwise specified. 289 NLRB No. 32 214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD IL BACKGROUND Respondent and the Union have been parties to collec- tive-bargaining agreements in excess of 30 years. The latest collective-bargaining contract was extant from 18 August 1981 through 17 August 1984. Current negotia- tions began 28 June 1984. On 28 September 1984 the Union struck Respondent, remaining on strike until 26 April 1985. Of the 20 scheduled negotiating sessions be- tween the parties, the last 2 occurred 10 May and 28 August 1985. A decertification petition was filed 16 Sep- tember 1985 (16-RD-1088). Respondent's bargaining committee was composed of Harold Hatley, vice president in charge of personnel and industrial relations . Lee Chambers, vice president of fi- nance, and Karl Arceneaux, vice president of manufac- turing and engineering. The Union's bargaining committee included several rank-and-file employees and, during the 14 months of ne- gotiations, was chaired by Union Representative Lester Boykin for the initial meetings, Union Representative Buddy Bryant for the remainder of the meetings, except- ing the last two and union representative, Leonard Beau- champ, for the last two meetings.2 III. THE ALLEGED UNFAIR LABOR PRACTICES Bubby M. Bryant testified that he is business manager and financial secretary of the Boilermakers Lodge No. 96 in Ft. Worth, Texas. When the Company and the Union sat down to begin negotiations, Lester Boykin, an International representa- tive of the Union, was the spokesman for the Union. He assumed the responsibility as spokesman for two or three of the meetings. At all subsequent meetings Buddy Bryant was spokesman for the Union until Leonard Beauchamp became the representative and spokesman for the Union at the 10 May and 28 August meeting. During negotiations, there was no agreement between the parties for any procedure of adoption of tentative agreements or withdrawal of proposals. The procedure was left to the individual parties. Bryant recalled in the early negotiating sessions and specifically the meeting of 31 July 1984, the meeting at which the Union received the Company's lengthy pro- posal, that the Company's position on termination was that they needed a 3-year contract. Bryant said that there was quite a discussion on that proposal. On 21 Septem- ber 1984 the Company submitted an additional written proposal on safety and health. No additional written proposals were exchanged be- tween the parties until the 10 May meeting. At the meet- ing of 7 November 1984, Hatley made an oral proposal for a 3-year agreement, which included the Boilermakers pension plan with a 50-cent contribution per hour. The 2 Written contract proposals in the record, G C Exh 2, the expired collective-bargaining agreement, G.C Exh. 3, R. Exh. 5, the Union's ini- tial proposal for changes in the expired agreement, G.C Exh. 4, the Company's initial proposal for a complete contract ; G.C Exh 5, compa- ny proposal for safety and health ; GC Exh. 9, company proposal on production downtime; G C Exh 10 additional company proposal on ar- bitration, G C Exh 11, Exh. A, 2-page addendum to G C Exh 9 listing machines affected. 13th meeting between the parties was held on 7 Novem- ber. Bryant has no recall that the term of the agreement was to be anything other than 17 August 1984 through August 1987. The 10 May meeting began with Beauchamp asking Hatley what the company proposals were. Hatley re- ferred to General Counsel's Exhibits 4, 5, 9, and 10. Bryant recalled that the 28 August meeting was opened by Beauchamp displaying the company proposals in front of Hatley and asking Hatley if there were any other proposals or anything else that we have to negoti- ate in regards to. Hatley responded that what was on the table was what had to be negotiated between the parties. Bryant stated that during the course of the negotiating sessions the union proposals were withdrawn piece by piece and the only portion of the union proposal that was viable on 28 August was that concerning the pen- sion. The Union was still making an effort to have a pen- sion included in the contract. A seniority list, roster, and wage rates as of 28 August 1985, had been requested by the Union during the 28 August negotiating session at the end of the meeting. Bryant conducted the ratification vote on 5 September 1985. He took the agreements to the membership for rati- fication. The contract that was presented to the member- ship were the proposals on the table as of the 28 August meeting. It was put to the membership without a pen- sion. The membership accepted the contract proposals as presented and without a pension. On 6 September 1985 Bryant telephoned the Company and spoke to Lee Chambers at approximately 10:30 a.m. He told Chambers that members of Local 96 had accept- ed the contract as it was presented to them. Chambers only response was, "Okay." After talking with Cham- bers, he called for Hatley but had to leave word for him to return the call. At approximately 3 p.m. Bryant called Hatley again. He told Hatley that members of Local 96 had accepted the contract and that the Union and the Company had an agreement and he would like to set up a time when they could get together, finalize the con- tract, and put it in booklet form. Hatley asked Bryant about the pension information he had requested and Bryant told him that the information would be available within a week. Hatley did not question the existence of a contract. Bryant that same day confirmed the telephone conversation by registered letter. Approximately a week later Bryant called Hatley on 13 September. Hatley was not in and Bryant left word for him to return the call. Bryant did call Lee Chambers that same day and asked Chambers about an updated seniority list, classifications, and the wages that had been requested in the last meet- ing on 28 August. Chambers replied that he had made up the list and sent it to Hatley for his review and that he would contact Hatley and get it to Bryant as quickly as possible. Having not heard from Hatley, Bryant placed a call to him again on 18 September but Hatley was not available. The following morning he received a call from Hatley. Bryant told Hatley he was still working on the pension information and would get it to him as soon as he could get it. Bryant asked Hatley about the seniority list and the things he had spoken to Chambers about and W. PAT CROW FORGINGS Hatley responded he would get them to him . Hatley said he needed the pension information before he could do anything and Bryant told Hatley that they had an agree- ment whether he got the information on the pension or not and that the Union wanted to get the contract put into a booklet form so they could get it put to bed. During the telephone call Hatley informed Bryant that a decertification petition had been filed. Hatley also told Bryant that he had sent the Union a letter. After the tele- phone conversation Bryant sent a registered letter to Hatley. Later Bryant received Hatley's 16 September letter that was postmarked 17 September. Bryant testified that between 6 and 19 September Hatley had not stated that there was not an agreement between the Company and the Union. His first indication that the Company thought that no agreement existed be- tween the Company and the Union was during the tele- phone conversation on 19 September . In that conversa- tion Hatley stated that he had to have the pertinent in- formation about the pension before he could agree that the Union and the Company had an agreement. Bryant identified the written marks on General Coun- sel's Exhibit 3. The notation deleting the additional paid holiday on 7-31-84 is in his handwriting . Page 5, "per expired agreement," means to leave the proposal as it is in the expired agreement . The Union's original proposal for duration of the agreement was 18 August 1984 to 17 August 1985. There is no notation that it was ever dropped. The undated notations at the top of page 2 refer to the fact that the Company's proposal, page 42, will be accepted as the health and safety provision. The notation on schedule A indicates that at the second meet- ing the Union reduced their wage proposal from 12 to 8 percent. Leonard G. Beauchamp testified that he is a staff rep- resentative for the International and is in charge of re- search dealing with collective bargaining, arbitration, pension, and health insurance matters. Beauchamp became spokesman for the Union in the bargaining ses- sion of 10 May 1985. Hatley was a spokesman for the Company at that meeting . The meeting was scheduled to begin at 9 :30 a.m. and actually started about 10: 15 a.m. Beauchamp opened the meeting by asking Hatley what proposals were on the table at this point in time . Hatley stated that the Company's proposals were contained in the original proposal presented at the second meeting of 31 July 1984 and the Company's proposal on safety and health that was presented at the 21 September 1984 meeting and in addition a written proposal on the down- time. Beauchamp did not have a copy of that proposal and Hatley said it had been given to the Union in the April meeting . Hatley had a copy of it with him. He made copies for the Union and then everyone had a copy. The parties begin discussion with item 1 on Gener- al Counsel's Exhibit 9. The Union wanted a definition of machines and the Company wrote off a list of machines that would be defined under item 1. The parties then moved to item 2 dealing with half pay for certain types of downtime. The Company discussed the possibility of looking at some kind of bonus arrangement and incentive program but there was never a proposal to incorporate such an incentive plan in the contract. The 10 May dis- 215 cussion actually got started during the downtime propos- al because Hatley told the Union that the replacement workers were more productive than the strikers. Beau- champ asked him how he made that decision and Hatley said they had made studies . The Union requested the in- formation and ended up in a discussion on productivity. After discussion Beauchamp asked the Company if they were flexible on the proposal . Hatley stated the Compa- ny was flexible on that item provided that the Union made what they deemed to be sufficient or significant progress in certain noneconomic areas that the Company was concerned about. Beauchamp asked what areas. Hatley replied, Respondent's no-strike clause, the stew- ards clause, grievances procedures, and the downtime proposal. The parties moved to item 3, specifically, the inclusion of restrooms . The parties then moved to item 4 dealing with crewmembers being away from work for 5 to 30 minutes. The parties then discussed the no-strike clause and what the Company 's problem was with the clause as written in the expired collective-bargaining agreement . Hatley stated that reference to the Interna- tional in the no-strike clause was something he could not accept. Beauchamp said he could understand Hatley's concern and that he would look at it. The parties then discussed the Company's proposal on stewards and the grievance procedure on arbitration. Beauchamp asked for a union caucus to consider the Company's counterpro- posals on the no-strike clause , the stewards, and griev- ance and arbitration clause . After the caucus the Union told the Company that they would remove the reference to the International constitution in the no -strike clause and the Company agreed that the rest of the language was not a problem. The parties continued the meeting discussing the stewards and grievance and arbitration clauses in the Company's proposal . Before the meeting ended Beauchamp asked Hatley if the Company had im- plemented any of their proposals at this point. The Com- pany said they had not implemented any of the propos- als. The meeting adjourned at approximately 7 p.m. After the meeting ended Beauchamp began reviewing the past negotiations. In early August he contacted Buddy Bryant by telephone, Beauchamp told Bryant that it was his opinion that the Company was not interested in reaching an agreement . They were just delaying nego- tiations. Beauchamp outlined to Bryant what he thought the union strategy should be. He told Bryant that the strategy consisted of meeting, attempting to make changes, specifically in the downtime proposal , and espe- cially in the more aggressive areas, such as no pay for restroom breaks, that type of stuff. In any event, they would come out of the 28 August meeting with an agree- ment. They would agree to anything that was on the bargaining table at that meeting . Beauchamp told Bryant to do otherwise was to play into the Company's hands It was his belief that they were just waiting until the year was up so that the strikers could not vote in the de- certification election. Beauchamp told Bryant to talk to the committee about that, and if there was no major problem, to go ahead and set up a meeting in August with the Company . Bryant set a meeting for 28 August. Prior to the meeting Beauchamp reviewed his strategy 216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with the bargaining committee . He told the bargaining committee that the Union would agree to everything that was on the table and that would be our agreement. He wanted them not to blink an eye when he said that. He wanted them to know right up front that "that's what we're going to do." They understood this strategy and they agreed to it. The meeting was held as scheduled . Beauchamp again was spokesman for the Union, Bryant was present, and Hatley was spokesman for the Company. At the outset Beauchamp asked Hatley specifically what the Compa- ny's proposal for an agreement between W. Pat Crow and Lodge 96 were. Hatley replied that the company proposals were General Counsel's Exhibits 4, 5, and 9, including the changes made on 10 May concerning those clauses. Hatley made no objection nor did he point out any specifics in any of the written proposals that would not be considered the Company's position. Beauchamp then asked Hatley whether the Company had implement- ed any of their proposals since 10 May. Hatley replied they had not. Beauchamp then asked Hatley if the re- placement workers were working under the terms and conditions of the expired collective-bargaining agree- ment. Hatley said, "Yes." The parties then began discuss- ing the downtime proposals. Specifically the reference to restroom breaks in item 3 of the downtime proposals. After discussion the Company agreed to exclude rest- room breaks from the downtime proposal. The Union agreed. The parties then discussed item 4 which dealt with the half pay during downtime. Beauchamp alerted Hatley to the fact that with the wage rate under the ex- pired contract, several individuals, if paid half pay, they would be receiving less than the minimum wage. Beau- champ then requested that the Company modify item 4 to provide half pay rate or the Federal minimum wage, whichever was higher. Hatley agreed that it should read that way. With respect to General Counsel's Exhibit 9, the downtime proposal, all the Union was concerned with was that the terms used by the Company in their written downtime proposal was that which was normally understood in the industry. Such as waiting on a heat, setup, trail run. Once it was understood that both the Company and the Union defined the terms the same way, there was nothing more to discuss. The parties then discussed the pension proposal. Hatley asked for explana- tions of the pension trust that Beauchamp supplied. Some written materials Bryant had were used to help answer his questions. Hatley asked questions referring to another document, the trust agreement. For example, selection of trustees, how they are selected, and the areas it repre- sents. Those items are in the trust document. They are not reflected in the plan document. The names of the trustees are in the plan. He also asked about forfeiture and about breaks in service for strikers. He asked wheth- er the replacement employees or the strikers could get their pension contributions back. Beauchamp told Hatley that they could not. Beauchamp explained to Hatley that they could not get their money back because the only way they could receive consideration for those contribu- tions would be if in fact they remained under the plan and did not occur a break in service. Because its multi in nature the employees could conceivably, down the road, work for another contributing employer and not incur a permanent break. Beauchamp explained to Hatley that it was a multiemployer plan. If the people were not vested, they could incur a permanent break. But if, in the period of time they were not under covered employment they then became employed with a contractor who was a contributing employer, they would then be back under covered service and time and the amount of money that was contributed on behalf of those employees while they were employees of W. Pat Crow would be credited to them. If they remained out of covered employment for a sufficient amount of time, they would incur permanent break. And if they were not vested would forfeit all con- tributions, both from W. Pat Crow or any other employ- er. Beauchamp did at one point during the discussions make a guarantee that some of the strikers , as a result of being on strike, would not lose anything that was con- tributed with Pat Crow. The strikers were on a preferen- tial hiring list and would be recalled when openings oc- cuffed. Hatley wanted a listing of the employees who were participants and also the amounts of money that had been contributed on their behalf. He was told the Union could not supply that information because the pension trust would not release it. Hatley also expressed an inter- est in becoming a trustee in the pension plan. Beauchamp then reminded Hatley that the Company's proposal to eliminate the pension trust could possibly have a nega- tive effect on the replacement employees for whom the Company had been making contributions to the trust. Beauchamp explained the vesting procedures, and how the employees could lose those contributions that were credited on their behalf if the pension plan was eliminat- ed from the contract. In addition, Beauchamp stated that strikers could also lose some benefits if they were not vested and the requirements for maintaining those bene- fits were discussed. A number of employees still had not returned to work following the strike. After further dis- cussion Hatley said the company position was changed from a definite "no" to a "maybe" on the inclusion of a pension plan. The parties continued discussing the pen- sion trust proposal. There was a discussion about a joint- ly administered plan for pensions between Local 96 and the Company, that is setting up a separate trust. The Union's position was that a separate trust was an imprac- tical thing for such a small union. The Union had a good plan already in effect and did not see any reason to change it. The Union's position on pension was to main- tain the current pension plan. The Company's original position was to have no pension at all in the contract. Since further discussion was getting them nowhere and Beauchamp did not think that a trustee for about 40 em- ployees was worth any further discussion, he turned to Hatley and said, "Look, the Union while we haven't met since May 10, 1985, has reviewed the negotiations, re- viewed what progress we made on May 10, reviewed the Company's arguments for their proposals, and we are prepared at this time to agree to the Company's propos- als, written proposals, that are on the table." At that point Hatley looked sick, his demeanor changed, his face got pale, and he said, "What do you mean. We've got all W. PAT CROW FORGINGS these open issues. We can't have an agreement. We've got all these issues outstanding." Beauchamp asked what issues are you talking about. Hatley said, "The pension." Beauchamp said, "What about the pension." Hatley said, "We haven't finished the discussion of the pension." Beauchamp said, "I tried to give you all the information I can on the pension. Have you changed your position on the pension." Hatley said, "No." Beauchamp asked, "Don't you have a position on the table, in writing on the pension?" Hatley said, "Yes we do." Beauchamp said, "Isn't that, no pension." Hatley said, "Yes, that's correct." Beauchamp said, "Fine we'll agree to the con- tract with no pension." Hatley then stated, "Well, you know, we might at some point consider the pension." Beauchamp said , "We will agree to an agreement with no pension, but if for some reason the Company later on decides, based on review of what we said or whatever you want, to include a pension just give us a call and we'll put it in the new contract." Beauchamp told Hatley he was submitting the Company's proposals to the mem- bers without a pension plan. Beauchamp said he would tell the members they would be ratifying the contract without a pension. Hatley still expressed concern about what the members would be voting on and Beauchamp said, "Well, I can't understand what you're so concerned about. Can't you agree to your own proposal. These are your proposals are they not." Hatley replied, "Yes." Beauchamp asked, "You mean to tell me you have a problem agreeing to these proposals?" Hatley said, "Well, we don't really have a problem agreeing to any- thing we propose." Beauchamp said, "I hope you don't." Hatley ' expressed that his concern was that, he thought there was some open issues. Beauchamp told him, "As far as the Union I'm telling you right now. We will agree to the proposals on the table." At that point Harley took a recess and made a phone call to the presi- dent of the Company. Shortly thereafter he came back into the room and told Beauchamp and the union com- mittee that he had talked with the -president and the president wanted to convey his congratulations that they had finally come to an agreement. Some pleasantries were exchanged and Beauchamp told Hatley that the Union would be conducting a ratification vote and Bryant would be handling those arrangements. Bryant would notify him about the results of the vote. With that the negotiating team shook hands and the meeting ended after lasting all day. Beauchamp identified General Counsel's Exhibit 10 as a result of the discussion he had with the Company on the arbitration procedure. The Company had proposed changing the location of arbitration proceedings to some- where off the company property. The Union agreed to that reluctantly but did, in fact, agree to it. Beauchamp stated that General Counsel's Exhibits 9, 10, and 11 were on the table as company proposals at the time that the Union accepted whatever proposals the Company had on the table. Beauchamp identified General Counsel's Ex- hibits 12 and 13 as notes he took at the 10 May and 28 August meetings. On page 5 of the 28 August notes he wrote, "Agreed to Company's proposal except for items previously agreed to, tentative agreements, all items on the table, and previously agreed to understandings sub- 217 ject to membership ratification." Beauchamp read an- other note on the exhibit, "The Union will vote for the proposals without a pension. If the Company agrees to include then the Union has no objection." On cross Beauchamp restated that in the 10 May meet- ing the "no strike clause" was agreed on by the parties. Beauchamp stated that everything else in the company proposals remained open, unagreed at the conclusion of the 10 May meeting. Beauchamp stated that between the 10 May and 28 August meeting there were no modifica- tions of any proposals, formally or informally. At some time during the 28 August meeting Hatley did, during the discussion on productivity, make refer- ence to an employee performance recognition program. Beauchamp checked his notes and found that on page 3 of the 10 May notes there was a reference to a bonus reward type system that they had discussed. There was no specific proposal from the Company in regard to the bonus reward type system either oral or in writing. Beauchamp did not recall any discussion or statements by the Company at the meetings of 10 May or 28 August to the effect that any contract that is retroactive over a year the Company did not want. Beauchamp denies the duration of the contract was discussed with or raised by the Company at either the 10 May or 18 August meet- ings. Beauchamp did not recall any statement from Hatley to the effect "you can vote on what you want, but until we have agreed on all the contract we don't have any agreement between us." Beauchamp had no knowledge of any articles or any proposals having been signed off as agreed to by either party prior to the 10 May meeting. Beauchamp did not ask the Company to sign off on anything, nor did the Company ask him to sign off on anything. Harold Hatley testified that he is vice president of per- sonnel and industrial relations for chemical express com- pany and he was loaned to Pat Crow Forgings just for the purpose of negotiating the contract. Hatley was the spokesman for the Company in all the negotiating ses- sions, and had the authority to reach an agreement with the Union and enter into a contract. All company pro- posals were drafted by Hatley. There was no discussion between the parties with respect to any form the bar- gaining would take or what procedure would be fol- lowed when agreements were reached. The only negotia- tion rule agreed to between the parties was that the Company would not pay the bargaining unit people who were members of the committee while they were negoti- ating. Hatley had been told by the Union that they had been paid in the past. He had no reason to doubt it but he was not going to do it this time. Ground rules that were agreed on between Boykin and Hatley was, "We don't have an agreement until we agree upon all open issues and all agreements are tenta- tive pending ratification by the union membership." The Union introduced at the first meeting on 28 June 1984 their proposal for a new contract. The Company at the second meeting introduced their written proposal for a contract. The Company's bargaining committee was composed of Hatley, Lee Chambers, and Karl Arcen- eaux. Additional company proposals in writing that were 218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD made in the course of the negotiations was the produc- tion downtime proposal and the safety program propos- als. In addition to these written proposals there were several oral proposals made. One was the employee per- formance incentive program, another was a locally ad- ministered savings retirement plan between Local 96 and W. Pat Crow Forgings. During the course of negotiations, that is the 20 meet- ings, very few agreements were reached between the parties. After about seven or eight meetings Boykin final- ly agreed to a company proposal that anywhere in the contract where it refers to "he" that it should refer to both "he" and "she" or a statement that the masculine gender shall also mean the feminine gender. That agree- ment on gender was not recorded in any particular fash- ion that Hatley knows of. He did write on his notes the time and date it was agreed to. At the end of the 10 May meeting several issues were still unresolved and remained so at the conclusion of the 28 August meeting. They were: 1. Performance incentive program It was referred to throughout negotiations and was last proposed at the 10 May meeting. Hatley made the offer to the Union to join with the Company and have a mutual performance incentive program for all employees at W. Pat Crow. The Company would base this program on excellent attendance, productivity being above stand- ard, and zero accidents for whatever period they could agree on, whether it would be monthly or quarterly or what; and for such performance they would reward the employees either cash bonus or something material in nature and a color TV or bicycle were used as examples. In the proposal the Company would share half the cost and the Union would share half the cost. The Union did not accept the proposal. The incentive program is not in- corporated in any of the written proposals. It was a pro- gram that recognized employee performance and perfect attendance. Discussions never got to the point where any specifics were worked out in the program, however. The Company did not make any modification to its original proposal. They simply just raised it again. The last rejec- tion was the 10 May meeting. 2. Duration of labor agreement It was the company position that a 3-year labor agree- ment was to be effective at the time it was entered into and signed, without regard to the period covered in the Company's written proposal. The written proposal was modified in the third meeting when Lester Boykin was the spokesman for the Union. The Company has always maintained they wanted a 3-year contract. With regard to duration the Union had always wanted a 3-year con- tract going back to 17 August 1984. The letter Hatley re- ceived on 6 September from Buddy Bryant affirmed that. Hatley stated that the company proposal on 28 August, late in the meeting when the Union had said that they had a contract, was 3 years from the date they enter into a signed agreement going forward. 3. Employee handbook The handbook had always been a separate book and the Company was proposing that it become part of the contract and be included in one book where both the Union and the Company would share the cost. The Union did not want to do that. 4. Production standards Production standards, as far as piece-work output, from time and motion studies. The Union rejected that totally. The Company's offer was that standards will be established or increased pursuant to an industrial engi- neer actually doing time and motion studies to increase or improve productivity in the plant. 5. Work rules Work rules concerning penalties, infraction of work rules, cost of printing the work rule sheets, and acknowl- edgement sheets that employees were required to sign. The Union took the position that progressive discipline will apply to all work rule infractions regardless of the severity of the infraction. The Union disagreed with sharing the cost of the printing and was not agreeable to employees signing an acknowledgement sheet once they had been given the work rules. 6. Wages The Company's position is what was in the original proposal. The rates are listed with the classifications. The proposed reduction is approximately 18 percent. The Union's position was the rates of pay as outlined in the expired labor agreement. That is, the Union was pro- posing a freeze on wages. The Union's original written proposal asked for an increase but they did modify that position later in negotiations, although they did not do so in writing. In August 1985 the average hourly rate was $10.47. 7. Production downtime The parties discussed production downtime through- out the progress of negotiations. The Company made an offer to help monitor production downtime. The Compa- ny proposed using timeclocks or what is called vibration meters, but the Union refused the timeclock offer and the vibration meters. 8. Dues checkoff The Union wanted the Company to provide them with dues checkoff or what they referred to as a dues log to get their money. As of 10 May the Company proposed no checkoff. There was a checkoff in the expired con- tract. 9. Safety and health program The safety and health program that was proposed in writing. W. PAT CROW FORGINGS 10. Arbitration It was evidenced by a handwritten proposal written by Hatley that was offered to the Union on 10 May. (G.C. Exh. 10.) It was discussed and Hatley had made provi- sion for the proposal to be accepted and signed off that particular day. The Union would not accept the proposal and refused to sign. The proposal dealt with the location of grievance and arbitration proceedings and whether employees would be compensated for attending those meetings. The Company had proposed holding the meet- ings off company property and no longer hold them on company property. Job stewards required to be at the meetings would not be compensated. That proposal is the additional proposal on arbitration made by the Com- pany. All other arbitration is in the original company proposal. 11. Job classifications The old contract had 16 job classifications, the Com- pany was proposing only 6. 12. Overtime notification The Union's position was that they wanted the Com- pany to notify the employees 3 days prior to working overtime for the weekend. It was the Company's posi- tion that no notice was required. The Company would give employees a reasonable amount of time to help them out but the Company did not want to be tied down to restrictive language that would require the Company to give 3-day notice before there could be any overtime work. Hatley stated that in the expired agreement there was a provision for overtime notification. 13. Contract printing cost Hatley said the parties were apart on that. The Union's position was that the Company would have it printed and pay for like it did in the past and the Company's po- sition was it was time the Boilermakers took up the cost for it. Hatley only recalled one agreement on any proposal between the Union • and the Company that could have taken place in the 10 May meeting. That was the agree- mment to delete the reference to the union constitution in the "No strike clause." At the start of the 28 August meeting Beauchamp held up the Company's 70-page proposal, the safety and health proposal and the production downtime proposal, and asked if these are the only things opened. Hatley an- swered, "Yes." There was some discussion about Gener- al Counsel's Exhibit 11 with the Union saying they did not have it and he proceeded to give them a copy at that meeting . Although his thought was that he gave it at the 10 May meeting. There were three proposals on pension. One was to delete the pension plan entirely. Another was to guaran- tee the people would not lose any money in retirement due to their break in service during strike and giving the money back to the employees that they have paid into the plan. The third was the local plan between Local 96 and W. Pat Crow Forgings. 219 The locally administered plan between Local 96 and the Company for retirement and pension was first pro- posed at the 28 August meeting. The Company would be the trustee of the plan and would administer the fund. It was to be called the savings plan and keep the moneys local. There was to be no administration cost for the pro- gram. The Union did not accept the proposal. Hatley recalled asking questions about the pension plan, questions like who handles the funds, trust fund agreement, trustees of the plan, breaks in service, effects of the strike, and people being off work. "The way I interpreted the plan-all employees would lose their money. And we had conversation along that line." Beauchamp answered his questions but it did not help him to understand the program. Hatley did make a request for certain information about the plan-a letter from the Union or board of trustees guaranteeing that none of the employees would lose any money that they have in the plan as a result of the strike. Hatley also re- quested disbursements of funds from January 1984 to date for each employee based on their amounts in the plan. He also requested an accounting of funds distribu- tion preferably in the Dallas-Ft. Worth area. "So he can actually see or get an idea, does this plan really pay off? He didn't know, And if its-you know, the Company's opinion-if its all approved- I mean, it just didn't-the hand out I looked at just didn't seem like it was the same thing." There was discussion about the administration cost. He was concerned about one article in the plan that stated the trustees could borrow money from the plan. Beauchamp's answer as far as a lump-sum settlement or give the money back, "it's not possible." Local adminis- tered plan, "No." Hatley did recall Beauchamp saying the Union would take the contract with or without the plan. But Hatley said that does not take care of the $90,000 outstanding. Beauchamp did make some state- ments about there being a contract. Beauchamp's first statement was, "We will take it with or without a plan." His closing statement was, "Well, looks like we have a contract." Hatley responded, "No you don't. We don't have an agreement until we agree on all items and what you do at your Union Hall is fine, but we don't have an agreement." Following those statements Hatley took a caucus. When he returned from the caucus he told Beau- champ that the president of the Company would like for him to relay to the committee his appreciation for them trying to get a labor agreement together. Hatley said he requested an itemization of specific pension information before he could go any further on negotiations. The in- formation was disbursements of funds from January 1984 to the present date. How much money employees had in the fund as of 28 August and today. How much they would have in a plan assuming a plan on retirement was active. A letter from the board of trustees of the plan that would guarantee the Company in writing that. no employees would lose any money as a result of being out: on strike. He has not received any of that information. Hatley acknowledged that Beauchamp explained to him during the negotiations that the Boilermaker Black- smith Pension Trust had a billion dollars in assets and was the fifth largest pension trust in the country. Hatley 220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD still wanted an accounting of the pension trust to make sure the employees' money was safe . Beauchamp also told him that the individual employees get an accounting of the contributions and what they have in the trust fund although Beauchamp did not know how often they get it. When asked "What was the Union's offer on 28 August?" Hatley responded, "His opinion was, they just wanted the contract and you fill in the blanks. That was really my opinion." With regard to the Union's acceptance of the company proposals: Hatley recalled that Beauchamp announced, "We accept the Company's proposals and we have a con- tract." Hatley stated that various conversations began be- tween different people in the room and he simply ex- cused himself and left the room and called the president of the Company . Hatley acknowledged that late in the evening hours on 28 August Beauchamp did say, "The Union accepts all the Company's proposals and we have a contract." Hatley at that time indicated that there were open issues, although he did not enumerate those issues. To date, Hatley has had no contact with Bryant or Beau- champ to articulate the open issues or attempt to resolve them or set up further negotiations. Hatley stated he did outline the open issues in a letter dated 16 September to Bryant. Hatley acknowledged that during negotiations Beau- champ at one point in the discussion said , "What our po- sition is we shall take the Company proposals plus the Company's minutes regarding the proposal of 10 May with or without a pension." Immediately thereafter, Hatley caucused with this group for about 5 minutes and then he made a phone call. Hatley returned approximate- ly 20 minutes later. At that point Beauchamp said, "We tentatively agree on everything on the table with or without a pension." Hatley stated that he understood the agreement was tentative because it was pending ratifica- tion by the union membership. Hatley's immediate re- sponse to Beauchamp was, "No, we don't." Hatley's testimony on cross-examination: Q. Okay. And Mr. Beauchamp said, "We tenta- tively agree on everything that's on the table." Is that right? A. That's ... . Q. "With or without the pension. Which ever one you want." A. That's what he said, yes. Q. And you wouldn't accept that? A. That's correct. Q. Despite the fact he accepted all your propos- als? A. That's correct. Hatley testified that the meeting adjourned approxi- mately 5 p.m. and there was no attempt to set up any other meeting at that time. Hatley stated that when he left the meeting he did not believe he had a labor con- tract with Local 96. Shortly after 28 August he got a call from Bryant, and Buddy told him that the contracts had been ratified and the parties needed to get together to put some books to- gether. Hatley stated he told Bryant "No, we don't have a contract. As I told you before-we don't have a con- tract until all open issues are resolved ." Hatley added, "You're putting your cart above your horse in this matter and if you've got any problem, I want to have your boss call me." Although Hatley did receive corre- spondence from Bryant subsequent to the telephone call, he did not have any further telephone conversations with Bryant. Specifically, he did not have a telephone conver- sation with Bryant on 19 September. Lee Chambers testified he is vice president of finance for W. Pat Crow Forgings, Inc. and has been for the past 9 years. He attended all the negotiating sessions. Chambers' chief function during the course of the last three sets of negotiations in 1978, 1981, and 1984 has been the recording secretary, that is to keep the notes. Chambers said that the Company's proposal on no pen- sion plan was only viable for the first couple of meetings and it was changed sometime after that. At the 28 August meeting when Beauchamp said there was an agreement, Hatley said, "No, we don't." Hatley added we would only have an agreement when all the matters were agreed on. When Chambers left the meeting, he did not think there had been a contract reached between the Company and the Union. Chambers acknowledged that Beauchamp stated that the Union had a contract for the membership to ratify with or without the pension, and an additional comment that there is a contingency the Com- pany will study a pension plan or something along that line. Chambers said that at the close of the meeting on 28 August the issues that remained open were duration, pro- duction incentive program, and pension. Those were the three main issues. Chambers said the outstanding propos- al on duration of the contract is contained in the Compa- ny's original proposal, General Counsel's Exhibit 4. Also there was an outstanding proposal on an incentive plan, but it was verbal. Beauchamp, at the meeting, accepted all the Company's outstanding proposals. Chambers stated that as he recalled that was his statement. On 6 September Bryant called Chambers. Bryant called to inform Chambers that the committee and mem- bership had met and ratified the agreement. Chambers asked Bryant how many people were present. Chambers recalled Bryant said 40 and it was unanimous. Bryant then changed it and said no it was not unanimous, but the majority accepted it. Chambers states he informed Bryant that none of the company officers or superior management had informed him that there had been an agreement and he would have to check with Harold Hatley, the chief negotiator. The telephone conversation with Bryant lasted approximately 2 to 3 minutes. Cham- bers stated he did not, during the course of the conversa- tion, agree with Bryant that there was a contract be- tween the Company and Local 96. Chambers had another conversation with Bryant on 13 September. The Union had asked for some information from the Company at the 28 August meeting and Cham- bers told Bryant he had completed the list and turned it over to Hatley for his review. Bryant would have to check with Hatley. Chambers estimates the annual sav- ings to the Company on their wage proposal to be be- W. PAT CROW FORGINGS tween $150,000 and $160,000. Annual savings for the Company based on the downtime proposal would be $15,000 to $16,000. The annual savings for the Company with their no pension proposal is approximately $15,000. Chambers had made a survey of the competitors' wages in the area and a rounded estimate is approximately $2- an-hour difference. The Company had already experi- enced this with prior quotes because so many of the air- craft people were going out and demanding 3-year, firm, fixed contracts. That was how Pat Crow was getting beat up, because of the difference in the contract cost. Before the union contract expired, the Company had asked the Union for a wage freeze, but the Union turned it down. Oscar Tibbs testified that he was a member of the em- ployee negotiating committee and that he attended the bargaining session on 28 August 1985. Beauchamp asked Hatley if he still had his proposal and was it still on the table. Hatley said, "Yes it was." Beauchamp then said we accept it and Hatley said , "Okay." They went across the table and shook hands and that was the end of the meet- ing. Tibbs said that the meeting lasted for approximately 5 hours, and that the point in the meeting when the com- pany proposals were accepted by the Union was late in the meeting. Tibbs did not recall Hatley stating that there were any open issues after the Union had said they accepted the Company's proposals and he was in the meeting for the whole time. Analysis and Conclusions The General Counsel's complaint alleges that the par- ties reached agreement on all substantive terms of a con- tract on 28 August, but when requested to execute a written contract thereafter Respondent refused. Respondent contends that no agreement on contract terms was ever reached by the parties due to outstanding open issues and in the strictest sense the Company did not refuse to execute an agreement. As Respondent argues, the essential allegation of the complaint is that "Respondent and the union agreed on contract terms." If no agreement existed, there is no stat- utory mandate to reduce the agreement to writing and sign it. No witness could adequately recall the substance of negotiating sessions. Each witness attempted to recon- struct the meetings and in several cases offered written exhibits into the record . My determination is based on a composite of facts describing what took place between the parties and, particularly , at the last two meetings of 10 May and 28 August 1985. A review of the record testimony and the objective evidence leads me to the conclusion that an agreement was reached by the parties on 28 August, and Respond- ent's subsequent refusal to reduce the agreement to writ- ing and execute it as a contract constitutes a violation of the Act. Following is my reconstruction of the negotia- tions based on uncontroverted and credible record evi- dence, both subjective and objective. The parties negotiated for 14 months, during which time 20 meetings were scheduled and held. There were only two procedural ground rules agreed to: (1) there would be no final agreement until all outstanding issues 221 were agreed to, and (2) any agreement reached by the negotiating teams had to be ratified by the Union's mem- bership before it became binding on the parties. The meetings began 28 June 1984, with the Union sub- mitting their contract proposal in writing and referenced to the changes sought in the preceding contract. At the second meeting the Respondent countered with a com- plete written contract proposal of its own and with oral references to the preceding contract. Over the course of the next 15 meetings there was very little movement by either party from their original proposals. Hatley re- called only one agreement between the parties that oc- curred in the seventh or eighth meeting. The parties agreed that the masculine gender , when written, would include reference to the feminine gender , if applicable. Bryant could recall several agreements within the same time period, but only after reference to his copy of the Union's proposal that he used as a work tool during ne- gotiations: At the second meeting, 31 July 1984, the Union withdrew its proposal for a 10th holiday and ac- cepted the Company's proposal that holidays remain un- changed at 9; at a later meeting the Union withdrew their proposal for increased company premium contribu- tion and increased employee benefits and accepted the company proposal that employees health and life insur- ance remain the same as in the expired agreement; addi- tionally, the Union initially proposed lung and chest X- rays every 6 months for affected employees but, at some point, accepted the company proposal as originally writ- ten. The Union's proposal sought a 1-year agreement and the company proposal sought a 3-year agreement. Bry- ant's notes reflected that, at the 13th meeting on 7 No- vember 1984, Hatley renewed the Company's proposal for a 3-year agreement including the Union's pension plan with a 50-cent-per-hour contribution for each em- ployee. The Union at that time did not accept the pro- posal. Although the record contains several references to dis- cussions of items both within and without those clauses previously proposed, there is no substantive evidence that the parties original proposals of 28 June and 31 July were modified or withdrawn to the extent that the par- ties were negotiating with a new or different base. That is, from the 1st to the 17th meeting, the parties were ne- gotiating from their respective original proposals. The 18th meeting on 5 April 1985 included a discus- sion of "production downtime," which ended in a writ- ten company proposal that the Union did not accept. On 10 May 1985 the parties met for the 19th time but with Beauchamp as the union spokesman for the first time. It is undisputed that Beauchamp began the meeting by confirming that the company contract proposals were contained in the initial written proposal of 31 July 1984, the written safety and health committee program propos- al, and the written letter of understanding on production downtime originating in the April 5 meeting (G.C. Exhs. 4, 5, and 9). After discussing production downtime, in- cluding employee productivity and incentive, Hatley added a written list of machines to the Company's pro- duction downtime proposal. The Union's contract pro- posal sought no change in the grievance procedure or 222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the no-strike clause. The Company's proposal, however, included the no-strike clause within their proposed griev- ance-arbitrations clause that also recognized the func- tions of stewards. After discussion, the Company in writ- ing proposed arbitration meetings be held off company property but within the metro area of Dallas-Ft. Worth and that employees and stewards attend uncompensated. Further, discussion on steward functions , including num- bers to be appointed, followed based on the Company's original proposal on a stewards' clause. The parties could not agree on the grievance or the stewards' proposal. A discussion of the no-strike provision of the Union's origi- nal proposal produced agreement between the parties with deletion of the reference to the members voting in accord with the union constitution. Although further dis- cussion followed, no additional agreements were reached. The parties next met on 28 August 1985. The record shows that Beauchamp reviewed with Hatley what com- pany proposals were on the table. The outstanding pro- posals were: The Company's original proposal of 31 July 1984; the written proposal on the safety and health com- mittee; the letter of understanding on production down- time with schedule "A" attached; and the written com- pany proposal on arbitration offered at the 10 May meet- ing. Beauchamp restated the parties' agreement on the no-strike clause reached on 10 May. Discussion began on the production downtime propos- al centering on items 3 and 4. The Company's original proposal provided for a washup time, as did the expired contract, but the Company's letter of understanding pro- posed no paid washup time. The Company was con- cerned about prior abuses of paid break periods and pro- posed a progressive discipline for abusers. The parties agreed to two 10-minute unpaid breaks each day and an unpaid lunch period of 30 minutes. They also agreed that restroom breaks would be deleted from item 3 and any employee abusing the privilege would be disciplined pro- gressively-a verbal warning, suspension for 3 days, and then discharge. After reference to wage rates in the con- tract proposal, the parties agreed that item 4 could result in an employee being reduced in pay to a level below the Federal minimum wage. The parties agreed that the re- duced wage in item 4 would be either half pay or the Federal minimum wage to give the employee the higher of the two. Wages as proposed by the Company in Exhibits "A" and "B" of their original proposal on 31 July 1984 was discussed. The proposed wage for grade I of $10.50 an hour was to extend to 1987. Hire-in rates of new hires since August 1984 were reduced with progressive in- creases to the maximum after 6 months for each classifi- cation. The Company's proposal included only 6 labor grades with all 16 classifications of employees within the labor grades. The parties did not agree on wages. The parties referred to the pension plan brochure and discussed the effect of termination of participation proce- dures on the striking employees yet to return to work. The status of newly hired employees as of August 1984 was discussed with particular reference to continuous employment and the inactive status of employees on layoff. Discussion thus turned to the Company's original Exhibit "C" proposal on related monetary matters. Para- graph 2 of the Company's letter of understanding on pro- duction downtime proposed half the hourly rate for specified downtime, whereas Exhibit "C" proposed the Federal minimum wage . The discussion clarified that the Company's proposal for wages on specified downtime was as shown in paragraph 2 of the letter of understand- ing and replaced paragraph 1 of Exhibit "C" in the Com- pany's original proposal. The parties returned to discussion of the Union's pen- sion plan. Hatley expressed interest in the Union's plan and serving in a trustee capacity. Hatley sought informa- tion about administration of the Union's plan and sug- gested the Respondent may continue the plan. Beauchamp at this point, on behalf of the Union, ac- cepted all company proposals on the table, including the understandings previously agreed to. He stated that there was tentative agreement on all items on the table subject to a ratification vote by the union membership. Hatley questioned whether the parties indeed had an agreement on the pension issue . Beauchamp confirmed with Hatley that the Company's proposal on pension was as con- tained in the original proposal of 31 July 1984, i.e., no pension. Beauchamp accepted the Company's contract proposal with no pension. Hatley and his committee left the room for several minutes to caucus. When Hatley returned, he informed the union committee that the president of the Company expressed appreciation that an agreement had been reached. Hatley continued showing interest in the Union's pen- sion plan and several points of the plan were discussed. Hatley wanted: the amount of distribution in Texas since 1984, a copy of the trust agreement, the amount each employee had in the pension accounts, the lump-sum set- tlement provision rules for modification, and a guarantee that the striking employees would have no loss of funds or vesting rights due to their break in service. Hatley specifically requested a letter to the Company explaining the effect of the break-in-service rules on the employees out on strike. Beauchamp told Hatley that the union membership would vote on the Company's contract proposal of no pension; however, if the Company later agreed to include the pension plan for the employees, there would be no objection by the Union. Neither party requested the other to "sign off" the proposals to express the parties agreement to outstanding proposals. Before the meeting ended Bryant requested a current seniority list with wage rates as of 28 August 1985. Bryant conducted the ratification vote on 5 September. The members accepted the company proposals for a con- tract without a pension. Bryant telephoned the results of the vote to the Company. The next day Bryant sent a followup letter to the Company suggesting a meeting to formalize the contract. Bryant made several attempts to reach Hatley by phone but was unsuccessful until Sep- tember 19. That same day Bryant received Hatley's letter of September 16 denying that any agreement had been reached and referring to the outstanding pension issue. W. PAT CROW FORGINGS 223 Bryant countered with a letter reaffirming the ratification vote for a contract without a pension and requesting the Company to execute the contract as agreed on. Hatley, in his letter to the Union on 16 September, wrote that the pension issue remained outstanding and until it was resolved there was no complete offer for the Union to accept. In his testimony, however, Hatley enu- merated 13 proposals that he considered outstanding issues at the conclusion of the 28 August meeting: dura- tion of contract, pension, employee handbook, produc- tion standards, progressive discipline, wages, production downtime, dues checkoff, safety and health, arbitrations, job classifications, notification of overtime, and contract printing cost. Hatley, in the same testimony, also stated that several of these outstanding issues were included in the Company's initial written proposal to the Union. Thus, duration, pension, progressive discipline, wages, production downtime, dues checkoff, safety and health, job classifications, notification of overtime, and contract printing cost were on the table at the beginning of the 28 August meeting. There is no evidence to evince with- drawal by the Company of its initial proposal or any portion thereof. The evidence shows the opposite. The parties continued negotiating from the Company' s initial proposal. There is record evidence that the Company orally proposed alternative pension programs for the union negotiating team to consider. Contrary to Respondent's argument, the Union's ac- ceptance of the initial proposal of "no pension" is not made ambiguous by the further proposal that, on reflec- tion, Respondent may agree to continue the union pen- sion trust as before. Moreover, the additional proposal of some future acquiescence was presented after the Union accepted the "no pension" proposal. As Hatley testified, the Company offered the Union several proposals on a pension plan and, as with any optional offer, the subject party can elect that which suits them best. It is undis- puted that the Union rejected the option of paying back moneys to employees previously covered, particularly since the Union, as the employees representative, did not control the pension trust moneys, nor would it elect to pay out from its own treasury. It is equally undisputed that the Union rejected the company option of a local pension plan administered by the local union and the Re- spondent. Thus, the Union accepted one of the three op- tions proposed resolving the pension issue raised by the multiple proposals. Hatley's concern over the $90,000 previously paid into the union pension trust, whether un- derstandable or not, is not relevant to the current negoti- ations. The payment and use of that money was con- trolled by past agreements with the Union and cannot now be questioned by Respondent as a condition for reaching a new agreement. Especially where, as here, Respondent's multiple pension proposals did not include the Union's pension trust as before. The expired contract had a safety and health provision for an employee safety committee. Respondent's initial proposal deleted the safety committee and set forth a basic policy on safety and health. During negotiations, on 21 September 1984, Hatley submitted an additional written proposal on safety and health, which, in effect, made provision for the safety committee originally delet- ed in the Company's initial proposal. Thus, Respondent's complete proposal on safety and health was contained in two written proposals and both were viable on 28 August. The Union specifically accepted both proposals as the contract term on safety and health at the 28 August meeting, which effectuated a tentative agreement between the parties on safety and health. Therefore there was no "open issue" on safety and health at the close of the meeting. Hatley's contention, expressed in his testimony, that the parties had not reached agreement on the arbitration clause, is not supported by the record evidence. It is un- disputed that the Company made two written proposals on arbitration and nothing more. The initial proposal contains the grievance and arbitration procedure and Hatley's handwritten proposal of 10 May completes the Company's proposals making provision for arbitration meetings to be held off company property with no com- pensation for employees or stewards attending. Both pro- posals were on the table on 28 August and were specifi- cally accepted by Beauchamp, according to Hatley's later testimony. Absent additional proposals on arbitra- tion (and there are none) there can be no "open issue" on arbitration. Hatley's testimony of the "open issue, overtime notifi- cation" was in error. The expired contract did not con- tain a provision for notification of overtime, but the Union's initial contract proposal did submit adding a new section to article XIV of the expired contract. The Com- pany's initial proposal on "overtime and premium pay" did not include a provision for overtime notification nor does the record contain any evidence that Hatley made any such proposal to the Union. In the absence of a pro- posal by the Company on "overtime notification" there can be no outstanding issue based on the Union's propos- al. All union proposals lacking tentative agreement were effectively abandoned and/or withdrawn when Beau- champ accepted the open company proposals as the basis for a union contract. Hatley's reference to open issues on "the employee handbook" and "work rules" is unsupported by the record evidence. The expired contract contained a lengthy management-rights clause that made provision for the Company to supply each employee with a copy of the "employee handbook" and to furnish each em- ployee with a copy of "work rules" as well as posting on the bulletin board. The Company's initial proposal, how- ever, reduced the managements-rights clause to a single short paragraph vesting all rights in management not specifically limited by any arguments reached. There is no evidence of a specific proposal by the Company on "employee handbook" or "work rules" in this record, therefore no "open issues" exist involving "the employee handbook" or "work rules." Hatley's assertion that "open issues" on "production standards" and "the employee incentive program" exist- ed following both the 10 May and 28 August meeting is unfounded. The record evidence shows that discussion of the written proposal "production downtime" included references to "production standards" and an "employee incentive program" as a means of improving production 224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the striking employees, if and when they returned to work, and rewarding the replacement employees for their efforts. Beauchamp credibly testified that Hatley, during the discussions, praised the replacement employ- ees for their more efficient production including less downtime and more injury-free employment. Hatley tes- tified that discussions of "production standards" were geared for some future time because any establishment or increase standards would be based on time and motion studies yet to be made by an industrial engineer . Hatley also stated that discussions of "an employee incentive program" never got to the point where any specifics were worked out nor did the Company make any modifi- cation to its original proposal or incorporate such a sub- ject in a written proposal. As Hatley testified, "they [company] simply just raised it again." The last such rais- ing and discussion was 10 May. Discussions during nego- tiations do not make proposals . It is clear that neither the "employee incentive program" nor "production stand- ards" were discussed sufficiently to formulate either into a specific proposal or as an addition to the written pro- duction downtime proposal. Thus, neither "production standards" nor "an employee incentive program" were on the table or subject to acceptance as a term of the ne- gotiated contract. Contract printing cost cited by Hatley as an "open issue" between the parties is clearly "closed." The ex- pired agreement in article XXV made provision for the Company to absorb the cost of printing and distribution to all employees. Respondent's initial proposal of 31 July 1984, article 32, reversed the prior provision making the Union responsible for the printing and distribution cost of any agreement reached between the parties. There is no evidence in the record that Respondent's article 32 was withdrawn, abandoned, or replaced by any subse- quent proposal. It was, therefore, included in the compa- ny proposals accepted by Beauchamp on 28 August. Having been accepted by the Union as a proposed term for the contract, it cannot now remain an open issue. Although only referred to by Hatley, inferentially, as a change in Respondent's position I am treating his testi- mony of "dues checkoff" as his opinion of an "open issue." But for Hatley's bare statement, there is not one scintilla of substantive evidence that dues checkoff was negotiated and much less that Respondent's initial pro- posal "dues checkoff" was modified. Because Hatley ap- peared to be building his testimony rather than making a genuine attempt to recall what occurred at the critical meetings, I am discrediting him on his "open issues" tes- timony. In addition to being somewhat contradictory, Hatley's testimony was confused by injections of person- al opinions or mere assertions that certain facts were extant. Without more, his testimony cannot alter the se- quence of events evinced by credible testimony of other witnesses and the objective evidence in the record. Fur- ther, the union proposals, and the manner employed by the union to modify those proposals, are irrelevant. This is not a case of piecing together a contract from oppos- ing proposals. The contract here is contained entirely within the Company's proposals. My determination that an agreement was reached be- tween the parties on 28 August is supported by substan- tial record evidence and the current Board law. Whether parties have reached agreement on a collective-bargain- ing contract is not measured by the technical require- ments of contract law. As Respondent argues in brief, the Board does require that parties to collective -bargain- ing negotiations have a meeting of the minds on all sub- stantive terms for a final agreement to be constituted. If disagreement over the substance of certain contract terms exist, there is no meeting of the minds. Here, there is no doubt there was a meeting of the minds. Hatley had complete authority to negotiate a contract and to reach a final agreement . To implement that authority Hatley was the single author of all proposals made by Respondent whether oral or in writing. The proposals were in con- tract form, clause by clause. Beauchamp, in turn, had complete authority to negotiate a contract with final agreement of the Union exercised by the employee mem- bers of the Union. The parties were negotiating under the auspices of two ground rules: (1) There would be no final agreement until all outstanding issues were resolved, (2) all agreements on contract terms were tentative pend- ing a ratification vote of the membership. Neither party suggested a signoff procedure on tentative agreements. The failure to use a signoff procedure, however, did not produce disputes over tentative agreements during nego- tiations . The absence of disputes is partially due to the experience of the negotiators and partially due to the lack of any tentative agreements of substance during the first 17 meetings. Both parties were holding firm to their initial proposals. Hatley then modified, in writing, sever- al of the Company's proposed clauses with additional language. These additions were identified and recognized as proposals by Hatley and formed the basis for negotia- tions. In only one instance was an oral proposal made by Hatley. That instance was the alternative pension plans proposed by Hatley at the 28 August meeting. The collo- quy between the parties and the correspondence between the parties subsequent to the 28 August meeting suggest, only, that Hatley still had questions in his mind about the Union's pension plan. Albeit Hatley testified that several other items were raised orally at many meetings, it is a fact that any proposal representing a change from the ex- pired contract or a concession by the Union was reduced to writing by Hatley. Once the parties understood the meanings of terms used there was little room for dis- agreements over substance of contract terms. The record evidence shows that such disagreements did not exist. Clearly, therefore, when Beauchamp accepted all written company proposals on the table on 28 August there ex- isted a meeting of the minds . The Respondent's "mind" was memorialized in the written proposals and the Union's "mind" was superimposed on the written compa- ny proposals by Beauchamp's unequivocal acceptance. Accordingly, I conclude and find that the parties reached a meeting of the minds on 28 August for a com- plete and final agreement and that the Union by letters dated 6 and 19 September requested the Company to fi- nalize the agreement. Further, I conclude and find that Respondent's failure to acknowledge final agreement was ever reached is tantamount to a failure to execute the final agreement as requested by the Union. (Contrary to W. PAT CROW FORGINGS Respondent's argument in its brief that in the strictest sense, the Company did not, nor has it to this date, ever refused to execute an agreement.) By positioning itself to deny execution of the contract as requested, Respondent has violated Section 8(a)(5) and (1) of the Act. The hiatus of silence between 9 and 16 September, in conjunction with Hatley's single attempt to resurrect a "pension issue" subsequent to the 28 August meeting, serves to enforce my resolution that an agreement had been reached. Further, if Hatley had favored one pension plan over another, he simply would not have proposed the unfavorable or would have withdrawn it with dis- patch. Hatley choose to do neither. Further, Respond- ent's argument that it would be unreasonable to bind the parties to a 3-year contract with an effective date in 1984 because the Company sought wage concessions during the 14 months of negotiations is unavailing. The agree- ment reached on 28 August does not dictate any retroac- tivity of wages since the replacement employees are paid at or below the wage level of the agreement. CONCLUSIONS OF LAW 1. Respondent, by refusing to execute the collective- bargaining agreement reached on 28 August, as request- ed by the Union on 6 September, has violated Section 8(a)(5) and (1) of the Act. 2. Respondent has not engaged in any other unfair labor practices. 3. The aforementioned unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the poli- cies of the Act. The Respondent having violated Section 8(a)(5) and (1) of the Act by refusing to execute a collective-bar- gaining agreement, previously agreed on, shall be or- dered to forthwith execute the agreement reached on 28 August 1985. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent, W. Pat Crow Forgings, Inc., a Sub- sidiary of TIC Investment Corp., Ft. Worth, Texas, its officers, agents, successors, and assigns, shall4 9 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 4 The General Counsel, in brief, moved to include a visitatonal provi- sion in my Order Under the limited circumstances of this case and in view of the long history of bargaining I see no need for such an Order I therefore deny the General Counsel 's motion 225 1. Cease and desist from (a) Refusing to bargain in good faith with the Interna- tional Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 96, AFL-CIO, by refusing to execute an agreed-on contact. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request by International Brotherhood of Boiler- makers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 96, AFL-CIO, execute forthwith the contract on which agreement was reached with the Union on 28 August 1985, completed copies of which shall be furnished by the Union. (b) Post at its offices in Ft. Worth, Texas, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 6 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 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 violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain in good faith with the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 96, AFL-CIO by refusing to execute an agreed-on contract. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by the Act. WE WILL, on request by the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forg- ers & Helpers, Local 96, AFL-CIO, execute forthwith the contract on which agreement was reached with the 226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union on 28 August 1985, completed copies of which shall be furnished by the Union. W. PAT CROW FORGINGS, INC., A SUBSIDI- ARY OF TIC INVESTMENT CORP.