Paperworkers (International Paper)

PAPERWORKERS (INTERNATIONAL PAPER) 995 United Paperworkers International Union and Inter- national Paper Company and International Brotherhood of Electrical Workers, Party to the Contract. Case 15-CB-3317 July 14, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFr AND DEVANEY On May 5, 1989, Administrative Law Judge Robert A. Gritta issued the attached decision. The General Counsel filed limited exceptions. 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 has decided to affirm the judge's rulings, findings,' and conclu- sions as modified and to adopt the recommended Order as modified.2 The General Counsel has filed limited exceptions to the failure of the administrative law judge to define the appropriate bargaining unit and to con- clude that the Respondent and the International Brotherhood of Electrical Workers (IBEW) were at all material times the jointly designated exclusive collective-bargaining representatives of that unit. We find that the modifications requested by the General Counsel are consistent with the judge's de- cision, are supported by the record, and are in ac- cordance with the complaint allegations as amend- ed by the General Counsel and admitted by the Respondent at the hearing. Accordingly, we make the following findings. 1. The following employees of International Paper Company constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees employed at the Respondent's Moss Point, Mississippi facility excluding: (A) Mill Manager and Assistant, Production Superintendent and Assistant, U.M. & E. Su- perintendent and Assistant, Technical Director and Assistant, Personnel Director and Assist- ant, Salaried Technical Assistants, General Woodyard and Woodroom Foreman and 1st and 2nd Assistants, Head Wood Scaler, Pulp Mill Superintendent & 1st and 2nd Assistants, , No exceptions were filed to the judge 's finding that the Respondent violated Sec. 8(b)(3) of the Act by failing and refusing to execute the written contract embodying the full and complete agreement by the par- ties with respect to terms and conditions of employment. 2 We shall modify the judge's recommended Order to include cease- and-desist language appropriate for a union respondent . We shall also issue a new notice to members. Pulp Mill Tour Foreman, Bleach Plant Super- intendent, Bleach Plant Tour Foreman, Paper Mill Superintendent & 1st and 2nd Assistants, Paper Mill Tour Foreman and Assistants, Beater Room Foreman (Salary), P.E. Superin- tendent and Assistant, P.E. Tour Foreman, Finishing Room Superintendent and 1st and 2nd Assistants, Finishing & Shipping Tour Foreman, Dock Foreman, Chief Chemist & 1st and 2nd Assistants, Research and Develop- ment Chemists and Engineers , Quality Control Chemist (Salary), Operating Chemist (Salary), Plant Engineer and Assistants, All Draftsmen on salary basis, Outside Engineers, Power Plant Superintendent & 1st and 2nd Assistants, Power Plant Shift Engineer, Chief Electrician & 1st and 2nd Assistants, Master Mechanic & 1st and 2nd Assistants, General Millwright Foreman, Pulp Mill Millwright Foreman, Paper Mill Millwright Foreman, Machine Shop Foreman, Pipefitter Foreman, Carpenter Foreman, Marine Way Foreman, Instrument Foreman, Power Plant Maintenance Foreman, General Labor Foreman and Assistant, Garage Foreman, Boilermaker Foreman, Brickmason Foreman, Safety Director and Assistant, Plant Nurses, Watchmen, Students working between school terms not to exceed approximately three (3) months, all Construction Employees and all other exempt salaried jobs not included in the above list. (B) All Main Office employees, including Order Clerks and Staff, Storekeepers, Time- keepers, Office Chauffeurs, Main Office Por- ters, the Porter attached to the Manager's Office where this office is separate from the Main Office, and all Clerks in offices through- out the plant who compile or have access to confidential information, all employees of the Woodlands Department wherever they are working, office clerical employees, Guards and Supervisors as defined in Section 2(11) of the Act. 2. On or before April 1, 1985, and at all material times, the Respondent and the International Broth- erhood of Electrical Workers (IBEW) have been the jointly designated exclusive collective-bargain- ing representatives of the unit described above. Since that date, the Respondent and the IBEW have been recognized as such representatives by International Paper Company. By virtue of Section 9(a) of the Act, the Respondent and the IBEW have been and are now the joint exclusive repre- sentatives of the employees in the unit described above for purposes of collective bargaining with 295 NLRB No. 109 996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD respect to rates of pay, wages, hours of employ- ment, and terms and conditions of employment. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, United Paperworkers International Union, its officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(b). "(b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Board on November 20, 1987.' The complaint alleged that the United Paperworkers International Union (Re- spondent or UPIU) violated Section 8(b)(3) of the Act by failing and refusing to execute a written contract em- bodying the previously agreed to terms and conditions of employment of Charging Party's employees in an appro- priate unit. Respondent's timely answer denied the com- mission of any unfair labor practices. The International Brotherhood of Electrical Workers did not make an appearance at trial nor was there any representation of the IBEW during trial. 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 record2 in this case and from my obser- vation of the witnesses and their demeanor on the wit- ness stand, and on substantive, reliable evidence consid- ered along with the consistency and inherent probability of testimony, I make the following FINDINGS OF FACT The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively in good faith with International Paper Company by failing and refusing to execute a contract embody- ing terms and conditions of employment for the Employer's employees which we agreed to on March 31, 1987. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request of International Paper Company, execute the above contract and WE WILL give effect to its terms until its expiration or the expiration of any extension thereof. UNITED PAPERWORKERS INTERNA- TIONAL UNION Clem Kennington, Esq., for the General Counsel. Lynn Agee, Esq. (Gerber, Gerber & Agee), of Nashville, Tennessee, for the Respondent. Roger H. Briton, Esq. (Seham, Klein & Zelman), of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT A. GRATA, Administrative Law Judge. This case was tried before me on February 10 and 11, 1988, in Pascagoula, Mississippi, based on a charge filed by Inter- national Paper Company (Charging Party or IP) on April 20, 1987, and a complaint issued by the Regional Director for Region 15 of the National Labor Relations I. JURISDICTION AND STATUS OF LABOR ORGANIZATIONS-PRELIMINARY CONCLUSIONS OF LAW The complaint alleges, Respondent admits, and I find that International Paper Company is a New York corpo- ration engaged in the manufacture, sale, and distribution bf paper-related products in Moss Point, Mississippi. Ju- risdiction is not in issue. International Paper Company, in the past 12 months, in the course and conduct of its busi- ness operations, purchased and received at its Moss Point facility goods and materials valued in excess of $50,000 directly from points located outside the State of Missis- sippi. During the same representative period, Internation- al Paper Company sold and shipped products valued in excess of $50,000 directly to points located outside the State of Mississippi. I conclude and find that Internation- al Paper Company is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I find, that Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. The complaint alleges, Respondent admits, and I con- clude and find that the International Brotherhood of Electrical Workers (IBEW) is a labor organization within the meaning of Section 2(5) of the Act. II. BACKGROUNDS Prior to 1953, the International Paperworkers and the International Electrical Workers were recognized as ' All dates are in 1987 unless otherwise specified. ' Page 80 of the transcript is missing from all copies The reporting service has advised that the page is not contained on the diskette and is therefore irretrievable. 8 These facts are based on the admitted pleadings and uncontroverted testimony of witnesses PAPERWORKERS (INTERNATIONAL PAPER) joint exclusive representatives of the Moss Point mill em- ployees. The Paperworkers had three local unions, Local 203, Local 384, and Local 1379, at the Moss Point mill. The Electrical Workers had one local union, Local 1816. Successive collective-bargaining agreements were execut- ed by the three parties on a multimill basis with the latest dated June 1, 1983, to May 31, 1986. Subsequent to the execution of the 1983 multimill contract, the parties agreed to bargain on an individual mill basis and execut- ed a collective-bargaining agreement for the Moss Point mill dated April 1, 1985, to March 31, 1987. The negotia- tions for a successive contract for the Moss Point mill alone raised the instant issues. The Company made its final offer on March 25, 1987, in writing. The offer included changes in language of the existing contract clauses and provided for ratification bo- nuses to be paid to employees according to their classifi- cations and conditioned on ratification by midnight of March 31. The bonuses were to be effective during both the first and second year of the contract. Each of the local unions ratified the contract offer with individual elections held for that purpose on March 31. The Com- pany's final offer was signed by the presidents of each of the three Paperworkers local unions, by the president of the Electrical Workers local union, and by the mill man- ager on varying dates before April 9. On April 9, the International Paperworkers Union filed an unfair labor practice charge against the Compa- ny and declared in a letter dated April 13 that the bar- gaining agreement would not be signed by the Interna- tional. Mill Manager Brabston responded to the Interna- tional denying the allegations of the charge and notifying the International that their refusal to sign the contract was unlawful since a binding labor agreement existed. The following month the Company filed a refusal-to-bar- gain charge against the International. In early June, the International filed an additional charge against the Com- pany. Both union charges and the company charge were investigated by the Board's Regional Office and were found to be nonmeritorious. The International Union ap- pealed the Region's decision on each charge but the ap- peals were denied on October 16. The Company also ap- pealed the Region's decision on its charge and the appeal was sustained on November 5. A complaint issued on November 20 resulting in the instant litigation. The International Brotherhood of Electrical Workers, although a joint representative of International Paper's employees and a joint negotiator with Respondent for collective-bargaining agreements, does not deny the ex- istence of an agreement as of the March 31 ratification vote by its local union members. III. ISSUES A. Whether a full and complete agreement with re- spect to terms and conditions of employment of the Moss Point mill employees was reached by the parties on March 31. B. Whether the International Paperworkers Union's failure and refusal to execute a written contract embody- ing the agreement of March 31 is an unlawful refusal to bargain. IV. THE ALLEGED UNFAIR LABOR PRACTICES 997 Delmar James testified he was employed at the Moss Point mill for 16 years and for the last 30 years has been an International representative with contract responsibil- ity for the Moss Point mill and other mills. He was spokesman for the International Paperworkers Union and the local unions during the current negotiations with the Company. John Coleman was the International repre- sentative and spokesman for the International Electrical Workers Union and the local union during the current negotiations with the Company. Dowey Lewis, president of Paperworkers Local Union No. 1379, was chairman of the local union's bargaining committee during negotia- tions with the Company . The International and Locals met previously to elect the spokesman and finalize the agenda to be presented to the Company . The spokesmen and agenda procedure was the same for all prior negotia- tions with the Company. James met with R. P. Schneider, company spokesman, prior to the first negotiation and established that they would be the only spokesman for the Papermakers and the Company respectively , unless other committee mem- bers were expressly asked to speak for a party. James testified that he does not have authority during negotia- tions to sign anything until he has counseled with his su- pervisors but his lack of authority to approve a negotiat- ed agreement was never discussed during negotiations. James stated that the union negotiating committee tenta- tively agrees to contract language . The final agreement rests with the membership of the various locals. The ne- gotiating committee gets the best contract they can, then they carry it back to the membership for approval or not. James did not tell the Company that no contract would exist unless or until the International officers ap- proved and executed it albeit the International constitu- tion contains a provision interpreted by the International as meaning just that. In past negotiations, an Internation- al vice president was usually present during negotiations but did not supervise, leaving the actual negotiations to the local officers and the International representative. The International vice president did communicate fre- quently with the International representative left in charge of the negotiations. On completion of negotiations and then ratification by the local unions the vice presi- dent would execute the negotiated contract or would tell James to sign the contract . Whether the International president actually considered the contract or not was un- known to James. In 1984, the parties ceased multiple mill bargaining and began single mill bargaining . Since that time James has been the only International representative attending negotiations for the Moss Point mill, excepting the nonparticipating 1-day appearance of International Vice President Cliff King on March 19. The parties met for the first negotiating session on March 13. After several sessions were held, the Compa- ny presented its final offer on March 25. At no time during negotiations did James recess the negotiations to receive input from the International officers. He and the other committee members considered each company pro- posal and accepted or rejected them as they were made. James was, however, in daily phone contact with the 998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International offices. At one point in negotiations, James expressed concern that the Company's negotiating team did not have authority to propose or accept agreements outside the basic written proposal presented to the Union as the Company's agenda. James highlighted his criticism of the Company's team by telling them that the union ne- gotiations were left up to him and the International presi- dent or vice president did not get involved unless he asked for their input. The Company's final offer included a bonus for bar- gaining unit employees if the contract was ratified by March 31. James had, prior to March 25, told Schneider that the Union thought the Company's offer should not contain a time limit . However, the Union's negotiating committee knew it was the Company 's intent to pay the bonuses immediately following ratification . A ratification bonus was common among the parties . All local unions joined in meetings on March 30 at 8 a.m. and 4 p.m. for presentation of the Company's final offer . The final offer was presented to each membership by their respective officers. James was present at both meetings and ad- dressed each meeting giving his opinion of the Compa- ny's offer. James and the other negotiating committee members recommended to the membership that they reject the Company's final offer . Neither James nor any committeeman told the membership that the Internation- al may not approve a contract in spite of a ratification by the membership. The following day all locals set up voting schedules for the ratification vote. Although James was present part of the day at the voting site, he did not take part in the voting . James did record the tally of ballots for each local as he was given the results. When all locals' votes were recorded, James, while sit- ting on the table with a leg hanging off the table, told the members assembled that the local unions had accept- ed the Company's offer . James denied that he told the assembled members they had a contract. James went home around 6 p.m. and his wife informed him that Schneider had phoned earlier asking to speak with him. Before acting on the message , James received a call from Dowey Lewis. Lewis told James that Schnei- der was asking for the results of the ratification vote. Lewis asked if he could give the vote results to Schnei- der. James told Lewis to give Schneider the overall re- sults without telling him how each local union voted. In the past, James and Schneider would converse after the ratification vote and James would tell him that the con- tract had been ratified. Albeit, James knew Schneider's purpose in calling Lewis, he denied knowing that Schneider's call to him was seeking official notice of the contracts' ratification . James also denied that he expected the bonuses to be paid shortly after ratification. James stated that in past years when relaying to Schneider the results of the ratification vote he would tell Schneider that the Company and the Union had a contract because he would have prior approval of the International. James testified, "In the past I notified Schneider, 'we have an agreement.' If he asked me what the vote was and if it has been accepted , I say, `the majority of the local or locals have accepted it. We do have agreement." How- ever, James explained that he did only asked Lewis for the outcome of the local unions ' vote. James did not tell anyone, at any time, that the Union's constitution re- quires the International to approve all agreements , ratifi- cation notwithstanding, before they become effective. With regard to Schneider's knowledge of the Interna- tional's approval before a contract is effective, James presumed Schneider was aware of the constitutional pro- vision. James, however, did not have any reason to be- lieve, nor did he believe that a contract did not exist after the local unions voted to ratify. James was in town April 1, 2, and 4. He was out of town April 3 and left for Jacksonville, Florida, on April 5. James learned from Vice President King on April 1, 2, or 3 that the International would not sign the contract until the interference allegations were investigated. James did not make any effort to contact Schneider with the International's position . James explained that he was leaving that up to Vice President King . James stated that he did not know the Company had paid the bonuses be- cause he was out of town and he did not have any con- cern that the bonuses might be paid when he knew that the International was not intending to sign the agree- ment. James' trip to Jacksonville on April 5 was in the com- pany of Vice President King . The trip was not a sched- uled trip for James and did not involve any of the locals that James serviced as an International representative. King simply made the trip available to James. He and James discussed the alleged interference at Moss Point while in Jacksonville . King told James on April 9 or 10 that he would send a letter to the Company explaining the International's position . King did post a letter to the Company on April 13. James first contact with Schneider after the March 25 negotiation was on April 11. Schneider called and asked James to come by the mill and sign the agreement. James demurred saying he had prior commitments. Schneider then suggested that he bring the contract to James' resi- dence for his signature. James said, "No," and for the first time told Schneider that the International had no in- tention of signing the agreement because of the alleged interference by the Company in the ratification process. James told Schneider that unfair labor practice charges had been filed against the Company. The alleged inter- ference by the Company was discussed during bargaining by the parties from March 19 through 25. King, James, and the local officers discussed the alleged interference with employees as late as the local union meetings of March 30. James stated that Vice President King usually told him orally to sign contracts for the International . This au- thority to sign for the International did not always pre- cede implementation of the contract . The Company and the Union had a practice of implementing the contracts as soon as the membership voted for ratification. This is the first contract between the International Pa- perworkers and International Paper Company that has not been executed following a ratification vote of the membership. Clarence Parker testified he has been employed at the Moss Point mill for 20 years. He is an instrument electri- cian and a 4-year member of IBEW, Local 1816. Previ- PAPERWORKERS (INTERNATIONAL PAPER) 999 ously he was a member of United Paperworkers Interna- tional Union, Local 1379 and past president, vice presi- dent, and executive board member. On March 31, he at- tended the ratification vote at the Craftsman 's Council Hall, the union hall for all Moss Point mill local unions. Parker voted at 3:35 p.m. following his day shift and stayed for the vote count at 6 p .m. After the count, Delmar James called all the members to order and told us, "We now have a ratified contract." Parker as president of Paperworkers Local Union 1379 knew the International was a party to the contract but he did not think the International controlled the exist- ence of a contract . The local unions make up the Inter- national Union and local union officers sign all contracts. Parker is not aware that once the members approve a contract by a ratification vote, the International can say, "Well, No you don't have a contract." James Rigby testified he is employed at the Moss Point mill as a maintenance mechanic. He has been a member of Local 384 for the 15 years he has worked at the mill. Rigby voted on the Company's final offer on March 31 at 8 a.m. He was not working that day and made several trips to the union hall during the day. He was present when the polls closed and the count was an- nounced . After the local officers tallied the votes, the members gathered around the table . Delmar James was seated astraddle the table. James said, "Gentlemen, you have a contract." Rigby heard one of the officers an- nounce the vote totals and he jotted the figures down on a piece of paper and left the hall. Richard P. (Mike) Schneider testified that he was human resources manager at the Moss Point mill for 4 years and 9 months starting in May 1983 . He has been in personnel with the Company since 1974. During negotia- tions with the Moss Point mill in the 1985 and 1987 ne- gotiations, he was spokesman for the Company. Prior to 1985, he attended the multiple mill negotiations as an ob- server for the Company. The 1985 negotiations were precipitated by a disillu- sion agreement executed to change the termination date of the prior collective-bargaining agreement from May 31, 1986, to March 31, 1985 . Negotiations for a new col- lective-bargaining agreement began on March 15, 1985. The Company gave its best and final offer to the Unions on March 22 and the membership voted to ratify the agreement on March 27, 1985 . On March 28, James called Schneider and told him, "You've got a ratified contract" and the two gave a joint press release for the March 29 papers. The contract by its terms implemented the new wage rates on June 1, 1985. The contract was not fully executed by all parties until September 1985. For the 1987 negotiations, Schneider and James estab- lished the ground rule that each would be the spokesman for their respective party. Dowey Lewis was selected as the chairman of the local unions involved in the negotia- tions. John Coleman was spokesman for the electrical workers. The parties met 10 separate days and on March 24 or 25; the Company and Union were in caucus when the Union called on the phone. Mike Jenkins, the usual phone person for the Union, asked when the Company intended to pay the ratification bonuses. Schneider re- plied if the contract were ratified , the bonuses would be paid within 3 or 4 days. Later in negotiations the Com- pany made it clear to the Union that ratification had to be before midnight March 31. The union people were upset by the deadline calling it an ultimatum. The Com- pany said it was nothing more than a tie to the end of the current contract. The Union claimed they did not have enough time to take it back to their membership for a vote. By the end of the session on March 25, the Com- pany gave the Union its final offer with the bonuses con- ditioned on ratification of the offer by midnight March 31. James told Schneider that he and the committee of local union chairmen were opposed to the offer and would recommend against ratification. In the following days, employees at the mill were asking when the bonuses would be paid. The Company's daily newspaper on March 30 and 31 carried a notice to employees that if the contract was ratified in time the bonuses would be paid Friday, April 3, as a separate check. The paper is posted and copies are available at the pay windows and in the departments within the mill. On March 31 at approximately 5:45 p.m., Schneider received a phone call from Dennis Kendrick, a local union chairman, and he said the contract had been rati- fied. Schneider asked if the call was official notification and Kendrick said, "No, the official word would have to come from James or Lewis." Schneider then called Jim Gilliland, director of employee relations , at the Mobile mill and told him the contract had been ratified . Gilli- land asked if Schneider had gotten official notification from Delmar James. When Schneider said he had not, Gilliland told him he had to have ratification confirmed by James. Schneider then placed a call to James' resi- dence but there was no answer . He then called Dowey Lewis and asked if the contract was ratified. Lewis said the contract was ratified but when asked if that was offi- cial notification, Lewis said, "No, he would have to get in touch with James." Schneider asked that Lewis get in touch with James and call him back . About a half hour later, Lewis called Schneider and said he had been in touch with James and this is official notification that the contract has been ratified. James did not at any time during the negotiations say that any conditions were im- posed on approval of a new contract by the International Union. The next day, April 1, the Company implemented the terms of the new contract and on April 2 began paying the bonuses. The remainder of the bonuses were paid April 3. The total outlay of bonuses were $850,000 and in separate checks. That week the regular paydays were April 1, 2, and 3. On April 8 or 9, Schneider directed his subordinate to secure the signatures of the local union chairman and the mill manager, so the signature page of the contract could be sent to James and Coleman for their signatures. On April 10, Schneider learned that his manager was unable to get in touch with James. Schneider took the signature pages for the contract electing to get in touch with James himself. On Saturday, April 11, Schneider called James and asked him to come by the mill and sign the contract signature pages the next week . James said he would be out of town and could not do it. Schneider 1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD then asked if he could bring them by James' house for his signature. James said, "Well, I guess I'd better tell you, that's, it's not my idea, but the International Union is going to file charges against the Company for foremen harassing employees during the ratification vote and I'm not going to sign the contract until those charges are re- solved." After several letters were exchanged between the par- ties' additional negotiating meetings were held on June 12 and 15 with a Federal mediator present . On June 12, Schneider reviewed with James the sequence of events beginning with the phone calls to Lewis and James. Schneider stated to James that the phone call from Lewis was official notification of contract ratification and the contract terms were implemented on April 1 with the bonuses paid April 2 and 3, all in good faith. Schneider made this statement at both meetings in June. At one meeting, James responded, "You never called me." At the other meeting, James made no response to Schneider. Schneider also told James that the Company paid the ratification bonuses in good faith . James re- sponded, "I know you paid the ratification bonuses in good faith." Schneider was asked when he first saw a copy of the International Union's constitution. He replied, "yester- day." Schneider admitted that the International Union never put in writing or told him that ratification by the local unions was equal to acceptance of the contract by the International. James W. Gilliland testified that he is director of em- ployee relations and is responsible for all labor relations in all facilities without regard to employee union organi- zation. He no longer gets involved in contract negotia- tions but is advised as to the progress of all negotiations. In past negotiations, all notification to the Company of a contract's ratification by the employees was given ver- bally by the person handling negotiations for the Union. Having received notification of ratification, the Company would implement the contract terms. On March 31 about 6 p.m., Gilliland received a phone call from Schneider. Schneider said the contract had been ratified . Gilliland asked if Delmar James made any comment. Schneider said he had not talked to James. Gilliland told Schneider to call James and get word from him that the contract had been ratified. Within 30 to 40 minutes, Schneider called again stating that he had re- ceived word from James through Dowey Lewis that the contract had been ratified and we had a contract. Gilli- land congratulated Schneider and ended the conversa- tion. In the past, whenever a collective-bargaining agree- ment was negotiated and taken back to the membership for a ratification vote, there was a contract if the mem- bership voted to accept it. Whether the bargaining com- mittee recommended approval or rejection was of no consequence. It was the membership vote that counted. The practice has been to implement new contracts as soon as they are approved. How long the process takes is determined by the substance of the changes or new provisions . Implementation has never waited for signa- tures to the contract . There are many signatures needed and several of those needed must await the persons get- ting back in town from other duties or responsibilities. There have been occasions when signatures were not ob- tained until several months after the ratification had oc- curred . Ratification bonuses have never been paid absent ratification of the contract, however, ratification bonuses have been paid several times before the contract signing took place. The first indication that the International was not going to sign the 1987 contract was in a phone call from Schneider roughly 10 days after the ratification. Schnei- der told Gilliland that the International had filed unfair labor practice charges alleging supervisory influence in the ratification vote. Schneider said James informed him the International would not sign the agreement. Prior to this situation, Gilliland was not aware that approval of collective-bargaining agreements was required by the International president . Gilliland also was not aware of any union constitutional provision that required the International president's approval of collective-bargain- ing agreements. Dowey Lewis testified that on March 31 Schneider called him about the results of the ratification vote. Lewis told Schneider that he had not had a chance to talk to James so he would call him back. Lewis called James and told him Schneider had called waiting to know how the vote turned out. Lewis asked James if it was all right for him to give the voting results to Schnei- der. James said, "yes, you can give him the total vote." Lewis called Schneider and told him the locals had voted to accept the Company's proposal by a unanimous vote. Schneider asked if that was official. Lewis told Schneider, "that's the official vote." Schneider asked whether the vote margin was large and Lewis told him to talk to James if he wanted to know the actual num- bers. Lewis was a new local president and did not know the procedure other than he needed to contact his Inter- national representative, James, for guidance. V. ANALYSIS AND CONCLUSIONS The General Counsel contends that the contracting parties reached full agreement on March 31, and Re- spondent's refusal to execute the agreement, once re- duced to writing, is a violation of Section 8(b)(3) of the Act. Respondent argues that failure of International Repre- sentative James to advise the Company that the collec- tive-bargaining agreement had been accepted relieves the International Union of any legal obligation to sign a rati- fied but not accepted contract. Respondent further argues that the International constitution clearly requires acceptance by the International president before collec- tive-bargaining agreements are effective . A subordinate contention is advanced on the lack of evidence to show that memberships of local unions can by vote bind the International Union to a collective-bargaining agreement. A resolution of the issues here requires a determination of the intent of the parties. Any determination of that intent must be established by declarations of the parties (written or oral), conduct of the parties and past prac- tices of the parties in similar circumstances, as evidenced by record testimony and objective exhibits . In a proper PAPERWORKERS (INTERNATIONAL PAPER) 1001 setting and circumstances, omissions of party declarations or party conduct may also be probative of a party's intent. A significant portion of the evidence adduced at the trial was undisputed. The most salient facts are : the ne- gotiating procedures used by the parties are the same as used in all prior negotiations; prior to the actual start of negotiations, Schneider and James agreed that each would be the only spokesman for their respective party; James stated to Schneider during negotiations that the UPIU president or vice president only get involved in negotiations if James invited either or both to attend. James was in constant contact with his International su- periors disclosing the progress of negotiations; negotia- tions between these parties were not conditioned on lan- guage of the International constitution , particularly arti- cle XV, section 2; as early as March 19, during negotia- tions, the parties discussed IP's continuous conduct of advising employees of the progress of negotiations and explaining the Company's position on certain individual items. This conduct prompted the unfair labor practice charges by the UPIU following the membership's ratifi- cation of the Company's final offer; the UPIU negotiat- ing team has authority to get the best contract it can and decides when to give the contract offer to the local union membership for a vote of ratification; IP's final offer of March 25 was contingent on ratification by the local unions' membership on or before March 31 for the proposed bonuses to be effective; the UPIU negotiating team knew , during negotiations, it was IP's intent to pay the bonuses almost immediately after ratification; the membership of the IBEW and UPIU local unions ratified IP's final offer on March 31; James announced to the as- sembled union members after the vote was tallied, "We have a ratified contract" or "We have a contract"; notice to IP of the local unions' memberships acceptance or re- jection of the negotiated contract is given by the Interna- tional representative on the negotiating team ; IP received notice of the official ratification vote on March 31 from International Representative James through the local union's chairman, Dowey Lewis; the semblable substance of past notices to IP following ratification acceptance has been as diverse as, you have a contract, the contract has been ratified, the employees have voted for the pro- posal; International Representative James on March 31 was of the opinion that the parties had negotiated a con- tract; following the ratification vote James made no at- tempt to contact Schneider; in the past IP has imple- mented contract terms, including payment of bonuses, following ratification and before official execution of the contract by all parties; although the stated parties to all contracts have been IP and UPIU, the president of each local union has been signatory to the written agreement; the instant contract was signed by all local union presi- dents on or before April 9; International Representative James was prepared to sign the contract until he was no- tified by International Vice President King "not to sign"; James' first contact with Schneider after March 31 was initiated bt Schneider on April 11 and during which James told Schneider the International would not sign the agreement until the unfair labor practice charge (April 9) was decided; April 13, International Vice Presi- dent King wrote IP that UPIU filed a charge alleging in- terference in the Union's internal affairs and therefore the International will not sign the collective-bargaining agreement until it has received a determination of the charge; the UPIU charge was dismissed by the Board's General Counsel and UPIU's appeal of the dismissal was denied by the Board's Appeal division on October 16; the UPIU has not refused to execute a collective-bar- gaining contract with IP after ratification by the local unions' membership except for the Mobile, Alabama plant. BagPak Division, 254 NLRB 1332 (1981), which re- sulted in an order requiring the UPIU to sign the agree- ment; UPIU's defense, based on the International's con- stitutional provision giving the International president authority to supervise negotiations, was first raised in a May 19 correspondence between the UPIU and IP. UPIU advances several arguments to support the re- fusal of the International to sign the written agreement. The arguments rest on the language of the International constitution and a contended lack of evidence that offi- cial notification was given to IP that the contract was accepted. UPIU would equate an unaccepted agreement with an agreement not totally negotiated or an agree- ment only ratified by its local union's membership. Albeit the various defenses and arguments of UPIU are substantially interrelated, I will discuss them sepa- rately for my personal clarity. A. Constitutional Defense UPIU argues a distinction between a ratified and ac- cepted agreement, defining an accepted agreement as one approved by the International president according to ar- ticle XV, section 2, of the International constitution. There is no evidence that the constitutional language of article XV was discussed between the parties before or during negotiations or that the parties established ulti- mate approval by the International president, without regard for a ratification vote of its local union's member- ships, as the controlling factor. UPIU suggest that IP is bound by the mere existence of the constitutional provi- sion. While it is not improper to reserve to an Interna- tional the right to approve a contract before it becomes effective, such a right could not be achieved without the Company's actual knowledge of such provision prior to negotiation of a contract . Moreover, right of approval must be based on clear and unmistakable language in the constitution if that is the reference . In my view, UPIU raises a sterile defense of constitutionally mandated ap- proval by its president at a time and in a circumstance completely unrelated to the contract negotiations be- tween the parties' representatives. Therefore, no right of approval vest in UPIU's president based on notification. Additionally, the defense is too narrowed in that section 1 of article XV is ignored. Article XV, sections 1 and 2 state: ARTICLE XV COLLECTIVE BARGAINING AGREEMENTS Section 1. A collective bargaining agreement must be ratified and approved by a majority of the 1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD members covered by said agreement present and voting on the question by secret ballot before the same shall be executed on behalf of the union; except in the case of multi-plant or multi-employer agreements, where the local union has authorized designated delegates to ratify a collective-bargaining agreement, in which case the agreement shall be ex- ecuted upon the ratification of the agreement by a majority of the delegates of all attending local unions present and voting by secret ballot. Should a vote for ratification of a contract fail to yield a ma- jority vote as required for acceptance by this Con- stitution and then fail to yield the two-thirds (2/3) majority vote necessary for strike sanction, the local or multiple so affected shall be considered to have accepted the labor agreement. Section 2. Negotiations for collective bargaining agreements shall be subject to supervision by, and their terms, conditions and termination shall be sub- ject to the approval of the International President. Clearly, section 1 gives ratification and approval au- thority of collective-bargaining agreements to the mem- bers covered by the agreement. It adds that following ratification and approval by the members, same shall be executed on behalf of the union . Also, in the case where designated delegates are authorized to ratify a collective- bargaining agreement in behalf of the members covered by such agreement, the agreement shall be executed. The section ends with a defined presumption that a failed ratification vote does not satisfy acceptance by the consti- tution, however, if the voting members fail also to vote a two-third majority for strike sanction the agreement be- comes accepted by the membership and the constitution. Approval or acceptance by the International president is not mentioned or implied. Section 2, in my view, is just as clear. The Internation- al president shall supervise negotiations for collective-bar- gaining agreements and the negotiated terms shall be sub- ject to his approval. Here, as in the past, an International presence was on the negotiating committee reporting daily the substance of negotiations to the UPIU office. This International presence obviously was to satisfy the statutory requirement that parties meet at reasonable times and confer . . . or negotiate an agreement . . . and the execution of a written contract incorporating any agreement reached . The negotiating committee has the authority to decide whether or not to take a company proposal back to the full membership for a ratification vote. The International president 's supervision of negoti- ations is accomplished by the daily contacts with the ne- gotiating committee and his approval or disapproval of negotiated terms, conditions, and termination is chan- neled through the sitting International representative on the committee . The president's determination is manifest- ed in the negotiating committee's recommendation to the full membership prior to the ratification vote. Were it otherwise, the committee's action would not conform to the NLRA or the UPIU constitution. UPIU's constitu- tional defense, if applied as argued, would limit Interna- tional Representative James' ability to negotiate a sub- stantive agreement with the Company and would result in little substance to be referred to the full membership for ratification. In these negotiations, James voiced the International's recommendation against ratification but the full member- ship voted to accept the Company's proposal. As James testified, he thought the parties had a contract when the votes were tallied. I consider it instructive, that notwith- standing UPIU's opposition to IP's final offer of March 25, the proposal was submitted to the local unions' mem- bership for acceptance or rejection. UPIU's initial objec- tion to IP's action vis-a-vis the local members before the ratification vote acknowledges the efficacy of the ratifi- cation process. Since logic would dictate that any authority of the International president to approve or disapprove negotia- tions or indeed the ultimate acceptance of a collective- bargaining agreement would have been exercised prior to any ratification vote of the membership required by the UPIU constitution, I can only conclude under the undis- puted facts of this case that such authority was exercised prior to March 31. Accordingly, I conclude and find that the language of article XV of the UPIU's constitution was not an explic- it, known, and necessary predicate to negotiating a col- lective-bargaining agreement with IP. Therefore, UPIU's constitution cannot relieve the International of its obliga- tion to execute a written contract embodying terms and conditions previously negotiated. Further, I conclude and find that the language of article XV of the UPIU constitution, if properly made a condition on negotiating a contract, does not vest ultimate approval of a negotiat- ed collective-bargaining agreement in the UPIU presi- dent for the negotiated agreement to become effective. Under the language of the article as a whole, the Inter- national's refusal to execute an agreement negotiated by a duly authorized committee and ratified by the members of the local unions covered by the agreement fails to conform. B. Notification of Contract UPIU contends that IP never received official notice that the International accepted the contract ratified by its local union's membership . A supporting contention is that the ratification of a contract by the local union's membership is not tantamount to acceptance of the con- tract by the International. Admittedly, and as past prac- tice shows, the final announcement of whether a negoti- ated contract is accepted or rejected is given by UPIU through the International representative designated as the spokesman. The spokesman (James) notifies the Com- pany shortly after the membership vote is tallied and, based on the vote tally, whether the contract has been accepted or rejected . The notice is not formalized and one phrase is no more magical than another. It is undis- puted that James, in the instance, did not personally give notice to the Company. The dispute lies in who gave notice and what notice was given . UPIU argues not the substance of the notice but, rather , who alone can give such notice and thereby bind the International to the contract. Although the source of a notice must be con- sidered the substance of the notice is just as important. PAPERWORKERS (INTERNATIONAL PAPER) 1003 Parties in a collective-bargaining posture frequently rely on notices from each other to formulate conduct and action to be taken. The past practices of these parties clearly show the controlling factor of a negotiated contract to be the membership's ratification. The parties have consistently negotiated subject to the membership ratification require- ment and notice of acceptance by the UPIU has always followed ratification . Whether or not UPIU must also in- dependently accept for a negotiated contract to become effective has never been made a requirement. IP has simply waited for the membership vote and the resultant notice of an accepted contract. In the instant case, IP so- licited the notice from the negotiating committee. When Schneider could not reach James, he called Lewis, the number two man on the Paperworkers committee. Al- though there is a factual dispute between Schneider, James, and Lewis, based on phraseology of the several telephone conversations, there is no dispute of what Schneider was seeking when he initiated the calls. IP's final offer, however limited in time, was conditioned on membership ratification no later than March 31. The Union vote was set for March 31. No logomachy be- tween attorneys can change the obvious, single, un- known factor between these parties on March 31. James' testimony that he did not know Schneider was seeking official notice of the ratification vote when he placed a call to James after the polls closed is not credited. Spokesman to spokesman in this setting is so patently ob- vious that any attempt to utter a denial is contrary to all reason, particularly from a representative with James' credentials. James' tongue in his cheek was clearly visi- ble as he testified. UPIU's supporting factual arguments that Lewis did not say it was official notice, or that no person with agency status gave the notice, or that James only had authority to sign the contract when specifically authorized by an International officer, in my view, do not need a resolution . The record evidence does not sup- port such a formalized or stilted procedure between these parties in the past . There is no evidence in the record that suggest the instant negotiations were to be different than those before. It could very well be true that James can only sign a contract when specifically au- thorized but that fact does not impact on the obligation of the International to execute any particular contract. Likewise, the UPIU's emphasis, in argument, that only James can bind the International to a contract by person- ally giving notice to IP that the contract is acceptable confuses practice with presumption . Additionally, such an argument leads to the absurd conclusion that absent a notice, and without regard for the local union's ratifica- tion, no contract would exist between the parties. More- over, James' own testimony supports the contrary argu- ment. James thought a contract existed following the ratification vote and told the assembled members as much. Although there is no logical reason (beyond fin- ishing his supper) for James to withhold giving notice to the Company when in his mind a contract existed, there is an inferential explanation. James was intent and satis- fied to have Lewis pass the message to Schneider that the contract was accepted by the membership over James' known personal recommendation against ratifica- tion. If James was of another mind or feared any misun- derstanding, he need only have limited the message through Lewis so the Company would understand that James himself would later say, "We have a contract." The record evidence clearly shows , and I conclude, that, however distasteful to him , James knew that IP was intent on implementing the bonus payments and other contract terms as soon after ratification as possible. James also knew that the several regular paydays oc- curred that same week and the bonus check would be in- corporated with the paydays . Any of James' testimony to the contrary I do not credit as it runs counter to plau- sibility and undisputed communications known to all local union members. Particularly, I discredit his testimo- ny of lack of concern whether bonuses were paid by the Company at a time when the International was not pre- pared to accept the contract . I do not believe that James, an experienced professional, would approach the latest bargaining with an attitude so contrasted to past years. Further, if the International thought the vote of the membership on the Company's proposal was insufficient to spark the bonus payments, James, as the International presence on the negotiating committee, was obligated to inform the Company when the final offer conditioned on early ratification was proposed. Accordingly, I conclude and find that the parties ex- changed the same communications in these negotiations as they had in the past and the notice given by Lewis to Schneider was sufficient to constitute acceptance of the negotiated contract by UPIU. Therefore, UPIU was bound to execute the contract defined by IP's final offer. C. Other Arguments UPIU argues in brief that no circumstances exist of a changed position by UPIU with regard to execution of the contract. The argument has no support in the record since it is undisputed that UPIU's initial objection to exe- cution of the contract was founded on an alleged inter- ference in the ratification process by IP's supervision in the plant. As stated above, UPIU's demurrer was not based on concealed conduct, for the parties discussed the Company's complained of actions as early as March 19. The complaints were congealed in the unfair labor prac- tice charged filed on April 9, and first communicated to the Company on April 11. A followup correspondence from the International to the Company on April 13 so- lidified the substance of the complaint . As clearly stated, UPIU would not execute the negotiated contract until the unfair labor practice charge was negotiated and a de- termination was made. UPIU's initial demurrer to execution of the contract based on an alleged unfair labor practice of company in- terference in the Union's internal function of ratification may be lawful. More particularly, since the negotiations were specifically conditioned on ratification by the local union's membership . However, I do not have the deter- mination of that interference before me and therefore I am not deciding the validity or efficacy of the UPIU's conduct based on that alleged interference . I highlight the proffered defense only because it is within the factual 1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD framework of the case and is instructive of subsequent UPIU defenses. The International's unfair labor practice defense to re- fusal to execute if viable at all was only viable until the Board made a determination of the charge. That Board determination was final on October 16 and was adverse to UPIU. With that finality UPIU could not longer refuse to execute the contract if a full and complete agreement with respect to terms and conditions of em- ployment had been reached by the parties. The record evidence clearly shows that the parties negotiated a full and complete agreement as of March 25. That full and complete agreement was ratified by the local union's membership and the written contract was executed by all local union presidents. As discussed above the UPIU was bound to execute the written contract embodying the prior agreement and refusal to do so violates Section 8(b)(3). The constitutional argument, discussed above, was in fact a changed position by the International . Until the defense was offered on May 19, the Union had not taken any position that was contrary to a fully negotiated con- tract as of March 25 . The belated attempt to augment its defenses is nothing more than substitution for its failed effort with the unfair labor practice charge. UPIU's additional argument based on premature im- plementation of the contract terms is not supported by record evidence. The record evinces conclusively that implementation of contract terms, especially economic items, did not await the formal execution of a written contract. Indeed, weeks and sometimes months have passed before the UPIU executed past contracts. Late executions were understandably never a problem since the bargaining unit was already enjoying any new bene- fits and working under whatever modifications had been negotiated. CONCLUSIONS OF LAW 1. The parties reached full and complete agreement with respect to terms and conditions of employment on March 25. 2. The local union's membership of the UPIU voted to accept the full and complete agreement on March 31. 3. The UPIU was obligated to execute the written contract embodying the full and complete agreement of the parties and its refusal to do so constitutes a violation of Section 8(b)(3) of the Act. 4. The above-described unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. The UPIU shall execute the written contract, and any extensions thereof, and abide by its terms for the life of said con- tract. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, United Paperworkers International Union, its officers, agents, successors, and assigns, shall: 1. Cease and desist from (a) Refusing to bargain collectively with the employer and failing and refusing to execute the written contract embodying the full and complete agreement with respect to terms and conditions of employment reached by the parties on March 25. (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 Acts (a) On request of the Employer, sign a contract em- bodying the terms and conditions of employment for the Employer's employees agreed to on March 31 by the employees' ratification vote. (b) Give full effect to and honor the terms of the con- tract until its expiration or the expiration of any exten- sion. (c) Post at its offices in Moss Point, Mississippi , copies of the attached notice marked "Appendix."e Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to members are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. * 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. 5 General Counsel's reference to posttrial discovery as a motion for a visitatorial clause in the Order is denied. The facts of the case simply do not warrant such an order. 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."