Grey Eagle Distributors, Inc.

GREY EAGLE DISTRIBUTORS Grey Eagle Distributors, Inc. and Brewery Drivers and Helpers, Local Union No. 133, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. Case 14-CA-19756 August 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On March 9, 1989, Administrative Law Judge Marvin Roth issued the attached decision. The Re- spondent filed exceptions and a supporting brief.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,2 and conclusions3 and to adopt the recommended Order. ' We deny the General Counsel 's motion to strike portions of the Re- spondent's exceptions and brief The Respondent also filed a motion to reopen the record to enter into evidence a copy of a newspaper article containing a statement by Local Union No 133 President Bonnie Orlando that the Union had "told [the Respondent] more or less we would not give them [two of the Respond- ent's competitors] a better contract." The Respondent further moved that the Board reopen the hearing to permit the Respondent to examine the writer of the article. The General Counsel filed an opposition to the Re- spondent's motion to reopen the record and to conduct a further hearing, and the Respondent filed a response to that opposition. We deny the Re- spondent's motion to reopen the record because , on the record before us, we find that the Union never did give a competitor of the Respondent a better contract and, therefore , admission of Orlando's statement would not change the result Given this, we find no reason to reopen the hear- ing to examine the writer of the article, and we deny that motion. The General Counsel moved to include in the record statements by the Respondent's president in the same newspaper article . We deny the Gen- eral Counsel's motion 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 also alleges that the judge "failed to sum- marize the facts in a fair and objective manner " After careful review of the record and the judge's decision, we are satisfied that this allegation is without merit. In sec III ,A, par. 7, the judge stated that the Respondent 's president contacted Teamsters Joint Council President Sansone and asked him to intervene in the Respondent 's negotiations with Local Union No 133. The record shows that it was Sansone who first contacted the Respond- ent. In sec. III,B, par 2, "Company" should be substituted for "Union" in the phrase "the Union could have pursued the matter further." We find it unnecessary to rely on the judge's statements in sec. 11I,A, par. 10, that the Company "procrastinated" in signing the agreement and that the Company did not assert that its delay in signing had anything to do with other negotiations s The Respondent contends that the instant case is indistinguishable from Checker Taxi Co., 228 NLRB 639 (1977), in which the Board dis- missed a complaint based on two employers' refusal to sign an agreement because the union induced the employers to agree to the proposed con- tract by misrepresentation. We disagree In Checker Taxi, a major issue in bargaining was the employers ' demand that they be allowed to lease their 361 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Grey Eagle Distributors, Inc., Maryland Heights, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in Order. cabs and the union's refusal to agree to any such leasing . During negotia- tions, the employers agreed to give their employees increased benefits in return for the union bargaining agent's promise that he would draft con- tract language allowing the employers to lease their cabs . After receiving this proposed language, the employers' representatives agreed to the entire contract. After the agreement was put in writing , the employers' counsel informed them that the language drafted by the union in fact for- bade the leasing of cabs, and the employers consequently refused to sign the agreement. In the instant case, the Union's statements that it had no intentions of giving another beer distributor a better contract were not a term or a condition of the parties' contractual agreement Also, we find that the Union never engaged in misrepresentation because, based on the record before us, it did not in fact negotiate a better contract with any other beer distributor. Therefore, we find the instant case distinguishable from Checker Taxi. The Respondent also contends that the complaint should be dismissed because the September 22 draft did not reflect the complete agreement of the parties because it did not include all the changes the Respondent had suggested to the Union We reject the Respondent's argument The record shows that only four changes proposed by the Respondent were not incorporated in the September 22 draft One of these changes was covered in a separate side agreement between the parties , and the other three were grammatical corrections whose omission did not justify the Respondent's refusal to execute the agreement Stephen D. Smith, Esq., for the General Counsel. Thomas O. McCarthy, Esq. and Alan I. Berger, Esq., of St. Louis, Missouri, for the Respondent. Bruce C. Cohen, Esq., of St. Louis, Missouri, for the Charging Party. DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge. This case was heard at St. Louis, Missouri, on December 21, 1988.' The charge was filed on October 11 by Brewery Drivers and Helpers, Local Union No. 133, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL- CIO (the Union). The complaint, which issued on No- vember 18, alleges that Grey Eagle Distributors, Inc. (the Company or Respondent), violated Section 8(a)(5) and (1) of the National Labor Relations Act. The grava- men of the complaint is that the Company allegedly failed and refused to execute a collective-bargaining con- tract, the terms of which were fully agreed upon by the Company and the Union . The Company's answer denies the commission of the alleged unfair labor practices. All parties were afforded full opportunity to participate, to present relevant evidence , to argue orally, and to file briefs. The General Counsel, the Union, and the Compa- ny each submitted a brief. i All dates are in 1989 unless otherwise indicated 296 NLRB No. 48 362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On the entire record in this case2 and from my obser- vation of the demeanor of the witnesses, and having con- sidered the arguments of counsel and the briefs of the parties, I make the following FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Company, a corporation with its principal office and place of business in Maryland Heights, Missouri, is engaged in the sale and distribution of wholesale beer and related products. In the operation of its business, the Company annually purchases and receives at its place of business goods and materials valued in excess of $50,000, which were shipped directly from points outside of Mis- souri, and annually ships products valued in excess of $50,000 to firms directly engaged in interstate commerce. I find, as the Company admits, that it is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION AND THE BARGAINING UNIT INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. Since about 1962, the Union has been and is the recognized and exclusive collective- bargaining representative of the Company's employees in the following appropriate unit: All employees classified as truckdrivers or chauf- feurs or warehousemen and the helpers to those classifications employed by the Company at its St. Louis facility, EXCLUDING all employees repre- sented by other certified and/or recognized collec- tive-bargaining representatives, guards, watchmen, office clerical employees, supervisors as defined in the Act, and all other employees of the Company working in job designations not described here. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The Company and the Union have been parties to suc- cessive collective-bargaining contracts, the most recent of which was effective by its terms for the period March 1, 1985, through February 29, 1988. The Company is the exclusive wholesale distributor of Anheuser Busch beer products in St. Louis County, and also distributes soft drink products. It is the largest beer distributor in the St. Louis metropolitan area . The Company has about 100 unit employees and accounts for over 70 percent of wholesale beer distribution in the area . Until 1985 the Company participated in association bargaining together with four other beer distributors in the St. Louis area: St. Louis Beer Sales, Best Beers, Lismark Distributing and Lohr Distributing (respectively, St. Louis Beer, Best, Lismark, and Lohr). St. Louis Beer, with about 85 unit employees, and Best, with about 37 unit employees, are multibrand distributors, and Lismark, with about 18 unit employees, distributes Miller beer. All three distribute in 2 Certain errors in the transcript are noted and corrected St. Louis County, and consequently compete with the Company . Lohr is the Anheuser Busch distributor in St. Louis City. In 1985 the association broke up and each of the five distributors negotiated separately with the Union. However they agreed to substantially identical contracts, including contract term (expiring on February 29, 1988). In April 1988 Best and the Union reached agreement on a new contract. St. Louis Beer and Lis- mark retained West Coast Labor Consultants (West Coast) to conduct their negotiations . West Coast has the reputation of a "union buster," and Company President Jerry Clinton was aware of this reputation. Clinton has long taken pride in his good relations with the Union, and made clear that he wished to reach agreement on a new contract (Company Vice President and General Manager Terry Long, the Company's only witness in this proceeding, testified that the Company wanted to begin negotiations in July 1987, but the parties did not begin negotiations until February 1988). The Union never reached agreement with St . Louis Beer and Lis- mark. St. Louis Beer maintained the terms of its 1985- 1988 contract until early July, when it unilaterally imple- mented its final offer. The Union engaged in a consumer boycott but did not strike St. Louis Beer. The Union struck Lismark for about 4 months, but abandoned the strike in November . Company Vice President Long testi- fied in sum that the labor costs under St. Louis Beer's final offer, if applied to the Company's operations, would be about $2.9 million less than that under the agreement negotiated between the Company and the Union in May 1988 (which will be discussed). The Company and the Union commenced their negoti- ations on February 4. The parties subsequently met in sessions on February 18 and 26 , March 4, 14, and 31, April 4, 6, 19, 21, and 26, and May 2, 10, and 17 and pos- sibly on other interim dates. They also held financial sub- committee sessions. Union Secretary-Treasurer Joseph Marti was the Union's principal spokesman . The union negotiating committee also included Union President Bonnie Orlando, Recording Secretary Gary Scott (who joined the negotiations on March 31), Vice President Mike Zorich, and Trustee Joe Lai . They were assisted by International Representatives Bruno Matkowski and Vince Murphy . Robert Sansone, president of Teamsters Joint Council 13, with which the Union is affiliated, en- tered the negotiations in mid-April, after the Union's membership voted to reject the Company's initial "final proposal." Company President Clinton and Vice Presi- dent Long were the Company's chief negotiators. They were assisted by Long's assistant , Neal Komadoski, fi- nance officer Steve Nolan, and Clinton's son, Jeff Clin- ton (Unless otherwise indicated, "Clinton" refers to President Jerry Clinton). From the outset of negotiations the Company ex- pressed concern that the Union, confronted with West Coast's tough bargaining posture, might give a more fa- vorable contract to another distributor or distributors, and thereby place the Company at an economic disad- vantage. The Company stated that it wanted some pro- tection against this contingency , and to this end pro- posed that its contract contain a most-favored-nations GREY EAGLE DISTRIBUTORS 363 clause (MFN clause). On February 26 the Company sub- mitted a comprehensive counterproposal to the Union's initial proposals. Item 27 of the counterproposal stated that "A Most Favored Nations Clause will be Furnished by Employer at a later date." In fact, the Company never furnished language for a most-favored-nations clause, or any other language concerning negotiations with other employers , until September 8, nearly 4 months after the Union's membership voted to ratify an agreed-upon contract with the Company. It is undisputed that at least until mid-March, whenever the Company raised the subject of an MFN clause, the Union invari- ably answered that there was no way they would agree to or consider such a clause. In fact, the parties argued their respective positions. As indicated, the Company ex- plained why it wanted an MFN clause. Union Chief Ne- gotiator Marti testified that he "went into detail" con- cerning the Union's position . He described how an MFN clause, executed by a Retail Clerks' union in California, had an adverse effect on negotiations in other bargaining units. Marti also asserted that no other distributor in the St. Louis area had an MFN clause, and the Company did not challenge this assertion . Company Vice President Long testified that Marti told him that Teamsters' Inter- national policy precluded an MFN clause in a contract. It is also undisputed that at least until mid-March, when- ever the Union expressed its opposition to an MFN clause, the Company dropped the subject and the parties moved on to other matters.3 Company Vice President Long testified that following the March 14 bargaining session, Company President Clinton said he would try to get Joint Council President Sansone to help move the negotiations. Long testified that he was present while Clinton spoke to Sansone on the telephone . He further testified that when Clinton got off the phone he told Long that they could "forget about the most favored nations clause" because he had just re- ceived Sansone's "word of honor that no wholesaler in the St . Louis area would receive a better deal than what Local 133 gives to Grey Eagle Distributing." As indicat- ed, Clinton was not called as a witness in this proceed- ing. Sansone testified that he did not get involved in the negotiations until mid-April . Therefore Long's testimony is hearsay . Also in light of subsequent developments it is unlikely that such a conversation took place . By letter dated March 18 to Marti, Clinton expressed concern about the lack of progress in their negotiations , and set forth the "highlights" of the Company's proposals. Item 8 of these proposals stated : "Since other beer distributors have made various proposals to Local 133 , we have 3 The Company proffered evidence that in 1985 Krey Distributing Company, a beer distributor in St Charles County , which adjoins St Louis County, negotiated a contract with the Union which contained an MFN clause. The Company argues (Br. fn. 2) that this fact demonstrates lack of credibility by Marti and bad-faith bargaining by the Union I do not agree. The Company was aware of the Krey clause Long testified that he understood an MFN clause to mean that the signatory employer would automatically be entitled to more favorable terms negotiated by the Union with another distributor , i e , the type of clause negotiated with Krey (The clause submitted by the Company on September 8 pro- vided for renegotiation rather than automatic entitlement .) Nevertheless the Company chose not to challenge Marti's assertion, and thereby open another avenue for discussion , but instead backed away from its proposal asked that Local 133 enable us to partake in any more favorable contract provisions than the contract we even- tually sign." By letter dated March 30, Marti responded to Clinton's letter, addressing the highlighted proposals. With respect to Item 8, Marti stated : "While it is Local 133's position in maintaining that all our members earn the same rate of pay, it is also our understanding that Grey Eagle wants to negotiate only for Grey Eagle and its employees." Item 8 of the March 18 letter plainly was a proposal for an MFN clause or agreement . Therefore the letter was inconsistent with Long 's testimony that Clinton told him they no longer needed an MFN clause. Moreover, if Sansone had given Clinton assurances as testified by Long, then it is unlikely that the Union would have responded as it did on March 30, in a manner inconsistent with the professed assurances, and without even mentioning those assurances . I find that as of March 30, both parties were maintaining the same po- sitions with regard to MFN as they had earlier in the ne- gotiations. Long testified , with respect to the professed assurance by Sansone, that he did not know whether Sansone cleared that assurance with the Union. Therefore, at the March 31 bargaining session he again said the Company needed protection and again proposed an MFN clause. The Union again rejected the proposal. Long testified that he told the union committee : "I don't think you will give St. Louis Beer Sales or anybody else, a better deal than what you're going to give Grey Eagle Distribut- ing," and "if you'll give me your word on that , I'll go along on that." Long further testified that they gave their word, and were adamant that they would not give St. Louis Beer a better deal. Long testified that the Union, including Recording Secretary Scott , gave the same assurances at the April 4 and 6 sessions . Long testi- fied that on April 6 he again stated his concerns about the other negotiations, and the Union again restated his assurances. Long further testified that the Union did not couch their assurances in terms of intention or recom- mendation, and that in any event such wording would not have been acceptable to him . Scott, Marti, and Union President Orlando, the General Counsel witnesses who were present at negotiations prior to mid-April, tes- tified in sum that the parties restated their positions con- cerning an MFN clause, and that the Union gave no as- surances of any kind prior to Sansone's entry into the ne- gotiations. If the Union gave such emphatic assurance (as described by Long) on March 31 and again on April 4, there would have been no need for him to again restate the Company's concerns. There would also have been no need for Sansone to subsequently become involved in this issue . For these and other reasons which will be dis- cussed, I find that the Union did not give any assurances prior to Sansone's entry into the negotiations. By letter dated April 6, the Company submitted its ini- tial "final contract offer" to the Union. The offer includ- ed the Company's wage and benefit proposals, which would be retroactive if the contract was ratified by April 15. The proposal did not contain any MFN clause, or reference to such clause or to other negotiations , nor did President Clinton's covering letter refer to such matters. 364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Union's bargaining committee recommended against the Company's offer, and the Union's membership voted to reject the offer.4 Following rejection of the Company's offer, Clinton contacted Joint Council President Sansone and asked him to intervene in the negotiations in order to get the parties moving toward agreement . On April 18 or 19 the parties, including Sansone, met informally at a Howard Johnson's. Subsequently they met in a negotiating session on May 10 at the Sheraton in Westport , at which San- sone was also present. Sansone testified in sum as follows concerning these meetings : At the April meeting, Clinton expressed his anger . The Company had submitted two al- ternative contract proposals, and the Union had rejected both. Clinton felt that the union negotiating committee should have recommended one of the proposals . He pro- ceeded to compare the proposals. The discussion focused on substantive contract proposals . The parties may have talked about other employers' negotiations and an MFN clause, but only briefly. However at the May 10 session the parties did focus on this matter . The Union men- tioned that they reached agreement with Best. Clinton asked whether that agreement would be ratified. One of the union negotiators answered that they were there to negotiate a contract with the Company. Clinton asked about the remaining distributors, and again mentioned an MFN clause . Sansone answered that he did not know of any Teamsters' union with an MFN clause . However, Sansone proceeded to ask each union committee member individually, whether he intended to negotiate a lesser contract with any other distributor. Each responded that he did not. Clinton replied that "your word is good enough for us," and there was no further discussion of the matter. Clinton did not request any written commit- ment. Union President Orlando, in his testimony, sub- stantially corroborated that of Sansone . Recording Secre- tary Scott, who was present at the May meeting but not the April meeting, also corroborated Sansone's testimony concerning the May meeting . Secretary-Treasurer Marti, in his testimony, indicated that the matter of negotiations with other distributors was a focus of discussion at both the April and May meetings. Marti testified that Clinton expressed concern that the Teamsters International might compel the Union to accept a lesser contract from West Coast. Sansone and Murphy (both International repre- sentatives) answered that the International would not tell the Union what to accept. However Marti corroborated Sansone's testimony concerning the May meeting and in particular the nature and manner of the Union's promise. Marti testified that he told Clinton that the Union did not intend to give or recommend a more favorable con- tract which would put the Company at a disadvantage. Company Vice President Long testified in sum that at the April Howard Johnson's meeting and the May 10 Westport meeting, and at another meeting on May 2, the 4 Company Vice President Long testified in sum that the principal ne- gotiators met secretly at the Company's premises on the night of April 6 and reached a tentative agreement However, Marti called Clinton the next morning to tell him that the deal was off because they had been ob- served by an employee. At this point, the Company decided to submit its final offer Long's testimony is in part hearsay . Whatever the reason, the parties were still apart as of April 7. Union pledged that it would not give St. Louis Beer or Lismark "a better deal" than the Union gave Best or the Company. Long testified that as before the Union did not talk in terms of intention or recommendation. Long further testified that at the Howard Johnson's meeting the Company raised the matter because the Company was unable to get assurance that the Union would not give a better deal to St. Louis Beer or Lismark. Again, such assertions make no sense in the overall context of Long's testimony. If, as testified by Long, the Union had already given such firm assurances on prior occasions, then it would make no sense for the Company to keep asking for the same assurances for the same reasons, as if the matter had not even been discussed before. If, as sug- gested by Long's testimony , the Company repeatedly raised the same issue because it lacked assurance that the Union would keep its pledge, then it is probable that the Company would have requested something in writing. However, it did not do so. The Company did not even take notes at the Howard Johnson 's meeting. As indicat- ed, Long was the Company's only witness, although Clinton and Komadoski were present at both the Howard Johnson's and Westport meetings and finance officer Nolan was also present at the Westport meeting. In contrast Sansone's testimony concerning the Union's statements was corroborated by three other witnesses. For these and other reasons , which will be discussed, I credit Sansone, and I find that his testimony reflects the understanding reached by the parties on May 10. For reasons which will also be discussed , I find that the Company understood at all times that the Union's state- ments of position were not a part of their contractual commitments. On May 17 the Company presented its second "final" proposed contract. As before, the proposal was silent on MFN or other negotiations. The Union proposed some modifications, and after further discussion the parties reached agreement on all outstanding issues . Marti, Or- lando, and Scott testified in sum concerning the follow- ing incident: As the parties were getting up to leave, Long asked them in a joking manner not to forget the MFN clause. Scott made an obscene gesture, saying "I've got your most favored nations clause right here." Trustee Joe Lai laughed, adding "and don't you forget our pension either." (Pension rights had been a major issue in the negotiations. The Union always sought parity with Anheuser Busch plant employees . However, in the current negotiations the Union settled for about one-half of its demand , by accepting only a first-year increase in pension contributions without any increase in the second and third years of the contract .) Long testified that he did not refer to an MFN clause at the May 17 meeting. He testified that he did not recall, but did not deny, Scott making an obscene gesture or Lai referring to pen- sions. I find it unlikely that Long would have forgotten such an exchange if it occurred . I also find it unlikely that the three witnesses would have made up such an in- cident. I credit the union witnesses. I further find that the incident reflects the parties' understanding that the Company had abandoned its demand for parity with other negotiations. GREY EAGLE DISTRIBUTORS By hand-delivered letter dated May 18, Company President Clinton enclosed "a complete revised copy of our contract modification [which] includes all items agreed to by all parties." Clinton stated his understand- ing that the Union would conduct a ratification vote with a favorable recommendation from its executive board. The enclosure contained a list of all agreed-upon changes and modifications from the expired contract, and two side letters of agreement dealing respectively with deliveries to a particular customer (Sam's) and employ- ment of "A" men. The May 18 letter and its enclosures said nothing about MFN or other negotiations . In light of the Company's own assertion in the letter , I find that the terms of the expired contract , together with the listed changes and modifications and the enclosed side agreements, reflected the complete terms of the agreed- upon contract between the parties. The Union reviewed the Company 's submission and presented it to its membership with a favorable recom- mendation. At a meeting on May 21 the Union's mem- bership voted to ratify the agreed-upon contract. Within the next week Recording Secretary Scott incorporated the agreed-upon changes and modifications into a com- plete self-contained contract document , and the Union submitted the document to the Company for its signa- ture. In contrast to its prior expeditious course of con- tract in negotiating a contract, the Company now pro- crastinated. Marti and Orlando called Long on numerous occasions during June and the first half of July , asking about the contract. Long variously told them that he was reviewing the document, that Clinton was reviewing it, that the Company's attorney was reviewing it, or they were proofreading the document. At no time did the Company assert that the delay had anything to do with other negotiations. However by letter dated July 14, shortly after St. Louis Beer implemented its final offer, Long stated to Marti as follows: This refers to several discussions that we held during our negotiating sessions earlier this year. In those discussions, when we discussed our demand for a most favored nations clause , Local 133 repeat- edly said that it was not necessary to include one in our contract because Local 133 would not give a "better deal" to any other wholesaler in the metro- politan area than they gave to Grey Eagle. As you know, you recently allowed St. Louis Beer Sales to implement a contract that certainly is a "better deal" than what Grey Eagle has. Their cost per case for delivery is as low as 30¢ and they have higher load limits than Grey Eagle. You, I be- lieve, have been lulled into agreeing to this because St. Louis Beer Sales has agreed to let you deliver Schaefer Beer for the first time . However, you must remember that you are delivering Schaefer Beer at 300 a case, which has been their objective for some time. Although I am aware that Local 133 has an- nounced a boycott of St. Louis Beer Sales products, I am not concerned with the boycott. The net effect of your implicit agreement with St. Louis Beer Sales is that you are giving them an- 365 other economic advantage to sell and deliver beer in this market. We bargained with you in good faith and took your word for what it meant to us .. . and that is that you would not give a "better deal" to anyone . . . yet you have done so. Your action or inaction with another beer whole- saler is strictly your decision and we are not at- tempting to tell you what to do or not do in your negotiations with St. Louis Beer Sales. The question Local 133 now has to answer for Grey Eagle is whether you recognize an obligation to allow Grey Eagle to implement the same con- tract that has been implemented at St. Louis Beer Sales. It seems that obligation was implicit in our negotiations with Local 133. Please let me know your answer to this letter. The first paragraph of the letter was false . At no point in his narrative testimony concerning the negotiations did Long claim that the Union refused to agree to an MFN clause because "it was not necessary." Rather the testi- mony of all witnesses, including Long, was to the effect that the Union rejected an MFN clause because of its po- tential impact on the Union and the unit employees, and not because the Company did not need one. Upon being confronted by the July 14 letter, Long testified that the letter was true. However, as indicated, this assertion was contrary to his prior testimony. I further find that the last full paragraph of the letter impliedly admits that the parties had no express agreement, whether oral or writ- ten, concerning the effect of other negotiations. Long asked Marti whether the Union recognized an obligation to allow the Company to implement the same "contract" as at St. Louis Beer, adding that : "It seems that obliga- tion was implicit in our negotiations." If the alleged obli- gation was "implicit," then it was not express, either ver- bally or in writing . In fact, the Company and the Union never had an agreement concerning the impact of other negotiations on their own contract. It is evident that the Company intentionally delayed execution of its contract, awaiting the results of the Union's negotiations with St. Louis Beer and Lismark . By July 14 the Company learned that the negotiations were in a situation which the Company did not anticipate. The Union did not reach agreement with St . Louis Beer or Lismark , but did not strike St. Louis Beer. The two distributors imple- mented their final offers, but the Union struck only Lis- mark, choosing instead to call for an economic boycott of St. Louis Beer. This angered Clinton, who anticipated that the Union would strike both distributors unless or until it got a contract comparable to that agreed upon by Best and the Company. When Marti called Long about the July 14 letter, Long demanded to know why the Union was not on strike against St. Louis Beer. In Sep- tember or October Clinton took a similar position with Sansone, accusing the Union of lying to him. In fact, even if I were to credit Long, the Union never made a commitment, express or implied, to strike St. Louis Beer to the bitter end. The Union did not give St. Louis Beer or Lismark a "better deal" than the Company , because it never reached agreement with these firms. Rather, the firms unilaterally implemented their last offers. 366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD By letter dated September 8 to Marti , Long enclosed a revised version of the Union's contract draft, with cor- rections of "errors and omissions (highlighted)" which he requested the Union to sign . However the Company "added" in the draft a "Memorandum of Agreement" which Long asserted "Sets forth understanding reached in negotiations on this matter." The proposed memoran- dum of agreement stated as follows: MEMORANDUM OF AGREEMENT The Union further agrees it will not allow an- other beer wholesaler to operate in the Metropoli- tan St. Louis area with more favorable wages, bene- fits, pension, trip rate, package delivery compensa- tion, draught delivery compensation and/or load limits than provided to Grey Eagle in its 1988-1991 labor agreement with Local 133 without also pro- viding the same opportunity to Grey Eagle. Further it is agreed Grey Eagle shall be entitled to terminate its labor agreement , upon request, and to renegotiate with Local 133 with respect to any such more favorable terms provided by Local 133 to another wholesaler in the Metropolitan St. Louis area. This was the first time that the Company presented this or similar language to the Union . The Union informed Long that it would not sign the Company's revised draft because it included the "Memorandum of Agreement" to which the parties had not agreed . By letter dated Sep- tember 22, the Union submitted a further revised draft of the contract for the Company's signature. The revision contained some but not all the Company's corrections, and did not include the above-quoted "Memorandum of Agreement." By letter dated October 5, Company Presi- dent Clinton refused to sign the Union's submission be- cause it did not include the "Memorandum of Agree- ment." Clinton asserted that the Memorandum was "an essential part of our agreement" and "should be included in our contract." Clinton requested the Union to sign the Company's September 8 draft, but gave no other reason for refusing to sign the Union's September 22 draft. B. Analysis and Conclusions The Company does not dispute that on May 17 the parties reached full and complete agreement on the terms and conditions of a new collective-bargaining contract (referred to by the Company in its brief as a "tentative" agreement). However, the Company argues that it was privileged to refuse to sign the contract draft submitted by the Union on September 22 because (1) the Union re- fused to bargain in good faith over inclusion of an MFN clause, (2) the Union induced the Company to agree to the contract by falsely representing that no other distrib- utor would have a better deal than the Company, and (3) the September 22 draft was defective because it did not reflect the complete agreement between the parties. None of these arguments have merit. With regard to the first argument, Section 8(d) of the Act expressly provides that the obligation to bargain col- lectively "does not compel either party to agree to a proposal or require the making of a concession." "The fact that one party or another may state that it will not agree to a particular clause is not sufficient to support a finding that it thereby refused to bargain over that issue." Embossing Printers, 268 NLRB 710, 718 (1984), enfd. 742 F.2d 1456 (6th Cir. 1984); see also Toyota of San Francisco, 280 NLRB 784, 798 (1985). Here, the Company has proven nothing more than that the Union refused to agree to an MFN clause . On several occasions the Company explained why it wanted an MFN clause, and the Union explained why it would not agree to such a clause. On each occasion the Company dropped the subject, although the Union could have pursued the matter further, e.g., by questioning the Union's assertion that it had never agreed to an MFN clause . Instead the parties proceeded to deal with other issues . By April 6, when the Company presented its initial final offer, the Company had abandoned its suggestion of an MFN clause. On May 17 the parties reached full agreement, substantially on the basis of the Company 's own, second final offer. This fact alone tends to negate any basis for finding that the Company was coerced into agreeing to a contract because the Union refused to bargain in good faith. The Union's March 30 letter is significant with respect to both the Company's first and second arguments. It is the only written statement or record of the Union's posi- tion in negotiations concerning the Company 's request for an MFN clause. Shortly after receiving this letter the Company submitted its initial final contract offer, which was silent on the matter . If the Company still sought or obtained any stronger statement from the Union than the March 30 letter, then it is unlikely that the Company would fail to so indicate in writing , e.g., by reference in its cover letter of April 6. However it did not do so. I find that the Company regarded the March 30 letter as acceptable, and subsequently on May 10, accepted simi- lar statements of intention by the Union. I further find that the parties understood that the Union's statements were not either part of or a condition of their contrac- tual agreement. The parties so indicated by their joking exchange at the conclusion of the May 17 session, and by the Company's failure to make any written reference to the matter until its July 14 letter. Therefore the Compa- ny's second argument is without merit. The Union said simply that it did not intend to negotiate a more favor- able contract with another distributor. The Union did not act in a manner inconsistent with this statement. Moreover, the parties understood that the Union's state- ments were part of the context of their discussions, and not a condition or term of contract . As the Board has stated : "We are unwilling to distort words of intention into terms of agreement." C & W Lectra Bat Co., 209 NLRB 1038, 1039 (1974), enfd. 513 F.2d 200 (6th Cir. 1975). The Company's third argument fails principally be- cause the alleged "Memorandum of Agreement" was not part of the agreed upon contract. Therefore, the Union properly excluded that clause from its proffered draft. The Company further argues that the September 22 draft was also incomplete because it did not include all correc- GREY EAGLE DISTRIBUTORS 367 tions or other changes in the Company's September 8 draft. However, the Company did not refuse to sign the September 22 draft for this reason. The Company re- fused to sign only because the Union did not include the "Memorandum of Agreement." Therefore, it is evident that the Company accepted the Union's corrected ver- sion of the contract, with this exception. Moreover, the Company does not contend that the September 22 draft was incorrect in any other significant respect. It is undis- puted (except with respect to matter at issue in this case) that the Company's May 18 submission, upon which the September 22 draft was based, reflected the total agree- ment between the parties. Generally, "inadvertent errors .. . do not indicate lack of agreement between the par- ties and . . . do not excuse a complete refusal to execute an agreement previously reached." Fashion Furniture Mfg., 279 NLRB 705 (1986). I find that the September 22 document constituted the complete contract between the parties, and that the Company violated Section 8(a)(5) and (1) of the Act by failing and refusing to sign that document. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All employees classified as truckdrivers or chauf- feurs or warehousemen and the helpers to those classifi- cations employed by the Company at its St. Louis facili- ty, EXCLUDING all employees represented by other certified and/or recognized collective-bargaining repre- sentatives, guards, watchmen, office clerical employees, supervisors as defined in the Act, and all other employ- ees of the Company working in job designations not de- scribed here, constitute a unit appropriate for collective- bargaining within the meaning of Section 9(b) of the Act. 4. At all times material the Union has been and is the exclusive collective-bargaining representative of the em- ployees in the unit described above. 5. By failing and refusing to execute the written col- lective-bargaining agreement agreed on between it and the Union, the Company has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY the rights and obligations of the parties, I am recom- mending that the Company be ordered to comply with the terms of the contract retroactively to its effective date, and make whole the bargaining unit employees and the Union for losses, if any, which they may have suf- fered by the Company's refusal to sign the contract, in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), plus interest as prescribed in New Ho- rizons for the Retarded, 283 NLRB 1173 (1987). See also Fashion Furniture Mfg., supra, 279 NLRB 705 fns. 7 and 8. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eds ORDER The Respondent, Grey Eagle Distributors, Inc., Mary- land Heights, Missouri, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to execute the collective-bar- gaining contract agreed upon by Respondent and the Union. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Forthwith execute the agreed on contract as re- quested by the Union in its letter dated September 22, 1988. (b) Give retroactive effect to the terms and conditions of employment of the contract, and make whole its em- ployees and the Union for any losses they may have suf- fered by reason of Respondent's failure to execute the contract, as set forth in the section of this decision enti- tled "The Remedy." (c) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of reimburse- ment due. (d) Post at its Maryland Heights, Missouri, place of business, copies of the attached notice marked "Appen- dix."6 Copies of said notice on forms provided by the Regional Director for Region 14, after being signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily Having found that the Company has committed viola- tions of Section 8(a)(1) and (5) of the Act, I shall recom- mend that it be required to cease and desist therefrom, and to take certain affirmative action necessary to effec- tuate the policies of the Act. I shall recommend that the Company be ordered to execute the contract as request- ed by the Union in its September 22 letter. The evidence indicates that the Company implemented the terms and conditions of the agreed-upon contract. However in view of the Company's position, and in order to clarify 6 If no exceptions are filed as provided in Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclu- sions, and recommended Order herein shall, as provided in Sec . 102.48 of the Rules and Regulations, be adopted by the Board and become its find- ings, conclusions, and Order, and all objections to them shall be deemed waived for all purposes. 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 " 368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD posted. Reasonable steps shall be taken by the Respond- (e) Notify the Regional Director in writing within 20 ent to ensure that said notices are not altered, defaced , or days from the date of this Order, what steps Respondent covered by any other material. has taken to comply.