Sacramento Union

SACRAMENTO UNION 477 Sierra Publishing Company d/b/a The Sacramento Union and Central Valley Typographical Union #46, International Typographical Union. Case 20-CA-18356 September 5, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On July 27, 1984, Administrative Law Judge William L. Schmidt issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in sup- port of the judge's decision.' 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 conclusions and to adopt the recommended Order.3 CHAIRMAN STEPHENS, concurring. I. This case focuses on the reoccurring issue of the legal implications of including unit employee ratifi- cation as a step in the negotiation of a collective- bargaining agreement . Representatives of Respond- ent Employer and Charging Party Union began bargaining for the renewal of a contract with the mutual but unwritten understanding that any final agreement would have to be submitted to the unit members for approval. A bargaining agreement covering all terms of employment was eventually hammered out, but before the union members rati- fied it Respondent Employer withdrew its assent to the proposed contract. Although employee ratifica- tion was eventually obtained, the Employer refused to execute the agreement, maintaining that the ne- gotiated agreement remained merely a standing offer subject to unilateral revocation until the union members manifested acceptance by ratifying it. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Sierra Pub- lishing Company, d/b/a The Sacramento Union, Sacramento, California, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order. ' The Respondent filed a motion to strike the General Counsel 's brief in support of the judge's decision, contending that the brief was untimely We grant the Respondent's motion. On August 27, 1984, the Board ex- tended the date for receipt of exceptions to the judge 's decision and sup- porting brief to September 19, 1984 The General Counsel's brief, howev- er, was not filed until September 24, 1984 Sec. 102.46 of the Board's Rules and Regulations states, in pertinent part, that a brief in support of a judge's decision must be filed within the same period that exceptions to the decision are to be filed. The filing of the General Counsel's brief on September 24, therefore, was untimely. Additionally, we cannot consider the brief as an answering brief to the Respondent's exceptions because the brief goes well beyond the issues raised in the Respondent's exceptions and supporting brief See Sec. 102.46(d)(2). Accordingly, we strike the General Counsel's brief. 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. In adopting the judge, we find it unnecessary to rely on his citation of Joe Carroll Orchestras, 254 NLRB 1158 (1981), at sec. III,D, par. 9 of his decision. Unlike our concurring colleague, however, we do not read the judge's decision to suggest "that the Board will never treat ratification as the equivalent of an acceptance that must occur before a binding contract is created " And, contrary to our concurring colleague 's implication, we note that the judge addressed a number of the cases relied on by the Re- spondent (see, e g , the discussion of sec III,D, pars. 9 and 13 , and fn. 10) in the course of finding the Respondent in violation of the Act. 8 We amend the judge's remedy to provide that the Respondent shall pay backpay as prescribed in We Protection Service, 183 NLRB 682 (1970), enfd 444 F.2d 502 (6th Cir 1971), with interest as prescribed in New Horizonsfor the Retarded, 283 NLRB 1173 (1987). A unique feature of this case is that in negotiat- ing the substantive terms and conditions of the con- tract, much of which embodied an offer submitted by the Respondent, the Employer's bargaining rep- resentatives obtained the union agents' commitment to do two things in submitting the agreement for ratification: First, the union bargaining committee had to recommend unreservedly to the union mem- bers that they ratify the contract. Second, ratifica- tion had to take place before a specified date, which the parties mutually agreed to extend to a later date. The union negotiators honored both commitments, and ratification took place within the specified time. II. The administrative law judge, weaving together both Board decisions and common law contract principles, recommended that the Board hold the Respondent in violation of Section 8(a)(5) for fail- ing to execute the contract. In the judge 's view, the bargaining contract became legally binding (even if not immediately enforceable) when the Re- spondent's and the Union's representatives complet- ed negotiations on the terms of the new contract. He reached this conclusion through a two-step analysis. First, he interpreted Board law as establishing the general principle that employee ratification is a "restriction on the authority of its negotiators to execute an agreement reached at the bargaining table absent the approval of its membership." (supra at 487) Thus, he reasoned, ratification is not "the functional equivalent of the act of acceptance 296 NLRB No. 65 478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD essential to the formation of a contract." In exam- ining the negotiations as well as the contractual documents, the judge also expressed the view that the parties had not reached an understanding to the contrary on this general view of ratification. Simi- larly, he found that the evidence did not show that the Respondent's representatives at any time during negotiations expressly reserved to the Respondent a right of revocation. Having disposed of ratification as being inessen- tial to the formation of the bargaining contract, the judge then resorted to common law contract prin- ciples to explain how the parties ' negotiations here did create the contract . Taking a cue from Profes- sor Corbin's treatise, the judge posited that if a contract offer embodies the condition that the agreement contemplates third-party approval, the offeree's unqualified assent to the offer results in a "meeting of the minds" and hence an immediate binding contract.' In such a situation, neither party is free unilaterally to retract its assent; however, performance under the contract does not become enforceable until the occurrence of the condition precedent, i.e., third-party approval. The judge concluded that the facts here fit within the foregoing rule. He found that the Em- ployer's own final offer contemplated approval by a third party, namely, the unit members. By accept- ing this offer, the union negotiators thus created a binding collective-bargaining contract whose per- formance obligations quickened only after ratifica- tion took place. It necessarily followed from this conclusion that the Respondent no longer had the power to revoke unilaterally its proposal prior to the time set for ratification. III. Like my colleagues, I believe that the Respond- ent newspaper violated Section 8(a)(5) in reneging on the bargaining agreement . However, I cannot short-form adopt the administrative judge's deci- sion because I do not think that his reasoning ade- quately comes to grips with how several Board rel- evant precedents, relied on by the Employer, might just as well warrant a dismissal of the complaint on the facts of this case. To sustain a violation here without resolving some of the ambiguities both in Board law and on this record requires, I submit, a different rationale, which the credited evidence does support. i A. Corbin, Treatise on Law of Contracts § 61 (1963) As a contrasting example , Corbin notes that an offeree who accepts a contract offer conditionally, in the sense of interposing a requirement that a third party (such as an attorney) must approve the offer, has not made an operative acceptance sufficient to create a binding contract Id. at 250. A. In partial agreement with the Employer, I think that the judge overgeneralized Board law in stating that a union member ratification requirement is simply a self-imposed limitation on the authority to "execute" a contractual document . It is true that there is authority to support this proposition, and under this view, the bargaining agents of the par- ties are deemed to have created a binding contract on the conclusion of negotiations ; but performance under the contract, beginning with execution of the agreement, is stayed until ratification occurs.2 However, it is incorrect to suggest, as the judge did, that the Board will never treat ratification as the equivalent of an acceptance that must occur before a binding contract is created. As the Re- spondent accurately asserts, a number of Board precedents have held that when a bargaining agent indicates to the other party that any agreement reached must be ratified by his or her principal, such an announcement may effectively limit the agent's authority to that of negotiating the substan- tive terms of a contract. Even though negotiations may be concluded by the bargaining representa- tives, the agreement legally remains only an offer that the ratifying party accepts on ratification. Until ratification occurs and is communicated to the other party, no binding contract exists and the other party may withdraw its assent to the contract proposal.3 Hence, the Employer insists that the 8 Martin J. Barry Co., 241 NLRB 1011, 1013 (1979), citing North Coun- try Motors, 146 NLRB 671 (1964) Accord- C & W Lekira Bat Co., 209 NLRB 1038 (1974) (by implication), citing North Country Motors, supra. The judge here also relied on Joe Carroll Orchestras. 254 NLRB 1158 fn. 1 (1981 ). But as explained in fn. 3, infra, I believe that he misread that decision. s Sunderland's, Inc, 194 NLRB 118 fn 1 (1971) See State County Em- ployees AFSCME District Council 71 (Golden Crest), 275 NLRB 49 (1985) (8(b)(3) complaint against union for failure to execute contract dismissed because ratification by union members, which parties understood would have to take place before a "binding" agreement is reached , did not occur); Loggins Meat Co, 206 NLRB 303, 307-308 (1973); Crown Drug Co., 136 NLRB 865, 869-870 (1962). Accord: Carpenters Local 1476 (Lake Charles AGC), 270 NLRB 1432 ( 1984) ("both parties knew that they had negotiated only a tentative contract agreement which would mature into a final binding contract only upon ratification by the [union's] members"); Cablevision Industries, 283 NLRB 22, 28-29 (1987) (employer's "final offer, which was not withdrawn before the union membership subsequently ratified it, thereby result[ed] in a binding agree- ment") See also Good GMC. Inc, 267 NLRB 583 ( 1983) (8(a)(5) com- plaint against employer dismissed because tentative agreement reached by negotiators subject to ratification, and employer did not ratify), Bronson Methodist Hospital, 223 NLRB 95 (1976) (employer ratification case). Joe Carroll Orchestras, 254 NLRB 1158 in. 1 (1981), also falls within this grouping of cases Admittedly, there is one sentence in the Board's footnote opinion that, if taken out of context, as the ALJ apparently did here, seems to view ratification as merely a condition precedent to exe- cuting contractual documents, thus implying that a binding contract is al- ready in effect. However, it is clear from the entire discussion that, on the facts, a binding contract could only be created through the union members manifesting their acceptance through ratification . Because the unit employees refused to do so, the Board held no contract existed and Continued SACRAMENTO UNION 479 Board decisions embracing this latter view entitled it to withdraw its agreement to the contract prior to the employees' ratification of the contract. Considered as a whole, the varying Board prece- dents thus treat employee ratification as falling into one of two categories: (1) a condition tantamount to acceptance that must occur before a binding contract is created (the Employer's position here), or (2) a condition embodied in a binding contract that must occur before the performance obligations arise (the judge's view). This distinction has been explicitly recognized by the courts and other au- thorities in the area of commercial contracts4 and therefore that the employers violated Sec . 8(a)(5) for insisting on abiding by the negotiated agreement and for refusing to engage in further bar- gaining. Felbro, inc., 274 NLRB 1268 (1985), enfd. 795 F 2d 705 (9th Cir. 1986), may also be included among these cases . The administrative law judge had found that "there is no evidence that the parties had mutually agreed to make employee ratification a condition precedent to formation of an agreement between them." 274 NLRB at 1282 (emphasis added). In re- jecting this analysis of the facts , the Board found that the parties had un- derstood that the ground rules for negotiation included a provision that any agreement reached would not be "binding" unless ratified by the unit employees. But because the employees had ratified the agreement, the Board held that the employer was precluded from withdrawing its "con- tract offer " (For ease of reference, the foregoing decisions are referred to elsewhere in this opinion as the Sunderland's line of cases, because they agree, for the most part, with that early case's articulation of the principle stated in the accompanying text.) These decisions are in accord with the rule stated in § 88 of the Re- statement 2d, Agency ( 1958): To constitute ratification , the affirmance of a transaction must occur before the other party has manifested his withdrawal from it either to the purported principal or to the agent , and before the offer of agreement has otherwise been terminated or been discharged However, § 95 of the Restatement seems to digress from decisions such as Loggins in that the section indicates that "manifestation of a definitive election by the principal constitutes affirmance without communication to the agent, the other party, or other parties." (To defeat affirmance, the other party would have to show that in ignorance of the affirmance it changed position in such a way that it would be inequitable to hold the other party to the transaction . Id., comment b.) The recent case of Felbro, inc., supra, indicates that ratification can be effective without communi- cation to the third party, i.e., the employer. 4 See Erving Paper Mills v Hudson-Sharp Machine Co., 223 F.Supp 913 (E.D.Wis. 1963), revd on other grounds 332 F 2d 674 (7th Cir. 1964); Edmund J. Flynn Co. Y. Scholler, 265 A.2d 599, 600-601 (D C. Ct. App. 1970) See also 5 Williston, Treatise on the Law of Contracts § 666 at 135- 141 (3d ed. 1965); J . Calamari & J Perillo, Law of Contracts § 11-15 at 440 (3d ed. 1987); Restatement 2d Contracts §§ 36(2) & 224 (comment c) (1979) (distinction made between a "condition" that qualifies a duty under an existing contract and a "condition of acceptance" that must occur in order to create a binding contract) As the court observed in Edmund J. Flynn Co., supra, the above dis- tinction is often blurred , with authonties sometimes describing both situa- tions in terms of a "condition precedent". Much of the confusion in this area of the law can be attributed to the somewhat unfortunate use of the term "condition precedent" when addressing the issue of the formation of a contract . The issue is not whether a "condition" must occur before a contract comes into ex- istence but whether the parties have mutually assented or agreed to make a binding contract . If there is such mutual assent, agreed-on conditions clearly affect only the duty to perform . If no mutual assent is ever reached, there is no contract The "condition prece- dent" to the formation or existence of a contract is thus the mutual assent or agreement of the parties. 265 A.2d at 601 Some Board decisions, as well as the judge's discussion here (supra at 487-488), can be faulted for this imprecision . See, e.g., Mt. Airy Psychiat- ric Center, 230 NLRB 668, 678 ( 1977); Bronson Methodist Hospital, 223 therefore should eliminate any argument that the differing lines of Board authorities on employee ratification are inherently irreconcilable as a con- ceptual matter.5 They merely represent similar but legally different ways parties may structure the for- mation and implementation of a contract between them. Still, if there is any shortcoming in these sep- arate strands of reported cases, it is the fact they do not set forth a uniform standard by which the Board will assess the facts of a given case to deter- mine into which category an employee ratification requirement will fit. The risk is that a case can yield disparate results, as the Board imparts vary- ing significance to particular facts and adopts dif- fering presumptions, depending on which line of authority is embraced.6 The instant case well illustrates the problem. Under the North Country Motors line of cases,7 principally relied on by the judge, his finding of a violation is a tenable one. However, under the Sun- derland's, Inc. line of cases,8 relied on by the Re- NLRB 95, 98 (1976), C & W Lektra Bat Co, 209 NLRB 1038, 1039, 1041 (1974). See also Appalachian Shale Products, 121 NLRB 1160, 1162 (1958). s Perhaps the reason why the Board has not precisely articulated this distinction is that the Board has resolved many cases simply by finding either (1) that the union had in fact obtained ratification and that the de- tails of the manner in which it was obtained were internal union affairs about which an employer could not inquire , or (2) that there was no "ex- press" agreement about union ratification-only a unilateral statement by the union representatives that they intended to seek ratification Thus, under these cases, the bargaining representative may forgo ratification and exercise itself the power to accept or approve the agreement, so as either to create a binding contract or to require execution of the contract document by the parties And, the employer cannot be heard to object to the fact that ratification did not occur at all or in a manner not originally contemplated by the parties or their agents Nor can the employer with- draw its assent once the union finally affirms the contract proposal. See Newtown Corp., 280 NLRB 350, 351 (1986), Childers Products Co., 276 NLRB 709, 711 (1985); Consumat Systems, 273 NLRB 410, 413 (1984), Seneca Sheet Metal Products, 243 NLRB 624 (1979), Martin J. Barry Co., 241 NLRB 1011 (1979); Mt. Airy Psychiatric Center, 230 NLRB 668, 678- 679 (1977); Hickory Farms of Ohio, 222 NLRB 418 (1976), enfd. 558 F.2d 526 (9th Cir 1977), Utility Tree Service, 218 NLRB 784 (1975); C & W Lektra Bat Co., 209 NLRB 1038 (1974), enfd. mem. 513 F 2d 200 (6th Cir. 1975); Raybestos-Manhattan. Inc., 183 NLRB 213, 217-218 (1970), M & M Oldsmobile, 156 NLRB 903, 905 (1966), enfd on other grounds 377 F.2d 712 (2d Cir. 1967); North Country Motors, 146 NLRB 671, 673 (1964). The instant case differs from most of the foregoing decisions factually in that the Employer here has not questioned the manner in which the Union effectuated ratification, but rather has disputed the timeliness of ratification, coming as it did after the Employer's attempted revocation of its assent to the agreement. Nevertheless, as discussed in the text, the litigants here have extrapolated from these decisions certain pronounce- ments and principles that they contend support their respective positions 9 The administrative law judge in Joe Carroll Orchestras, supra, 254 NLRB at 1165, hinted at this problem when , after wrestling to apply the various precedents and considering all the circumstances surrounding the bargaining negotiations in that case , he recommended that the Board adopt a rule that requires that parties ' understandings as to ratification be set forth in "express written agreements." In his view, "it would obvious- ly be easier for everyone." 9 See fn. 2, supra. 9 See fn 3 , supra. 480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent, it would be also tenable to hold that the evidence justifies the Employer's withdrawal of its assent to the agreement before ratification occurs. Two examples from the record should suffice to demonstrate the point. First, there is the evidence that the parties' pro- vision for employee ratification was not incorporat- ed in a written document. The judge tacitly accept- ed the General Counsel's argument, based on C & W Lektra Bat Co.,9 that the absence of such a written clause demonstrated that ratification was not a "condition precedent to a collective bargain- ing agreement" (supra at 485 , 487); hence, a bind- ing agreement existed from which the Employer could not back away before ratification. In contrast, Sunderland's and its progeny allow for the Board to deduce that the union representa- tives did not have authority to enter into a binding contract from evidence of the parties' awareness during negotiations that any contract proposal must be ratified.' ° As the judge himself found, but ap- parently did not think dispositive , at the initial bar- gaining meeting, the Union's bargaining representa- tives informed the Employer's representatives that any agreement had to be ratified by the union members. In addition, a union witness testified at the hearing that the Union's constitution required this action. Thus, until ratification occurs, the Em- ployer arguably could unilaterally withdraw assent. The second example centers around an incident noted by the judge in his decision . Approximately 2 weeks after the negotiators had reached a final understanding as to contract terms on July 20, but before the scheduled ratification vote, the Employ- er's corporate counsel directed one of its bargain- ing representatives, James Wolf, to request a delay of the vote. When Wolf conveyed the request to the Union's representatives, he explained, without giving specifics, that there might be, in the words of the judge, "a change in the Respondent's offer." The union representatives consented to putting the vote back, ultimately rescheduling it for August 18. Although not noted by the judge, there is no evi- dence in the record that when informed of the prospect of a new offer, the union representatives registered a protest or attempted to argue that a binding agreement had already been reached be- tween the parties. The judge evidently felt that these facts were of no legal consequence, for he es- sentially ignored them in setting forth his legal analysis of the case. And indeed this evidence would be irrelevant if the parties, by their previous negotiations, are deemed to be under a binding contract; the Union would be safe in the knowl- edge that any subsequent offers would be of no effect. Under a Sunderland's line of analysis, however, the events surrounding the rescheduling of the rati- fication, being a part of the overall bargaining his- tory, may not be so easily dismissed." The Em- ployer's indication that it might be submitting a new offer, coupled with the Union's failure to pro- test in response, are arguably consistent with the parties having an understanding that the agreement just negotiated remained only a pending offer, needing acceptance through employee ratification before a party would be precluded from unilateral- ly revoking its assent. Until acceptance occurs, a new offer could be substituted for the pending one, as the Employer's officials intimated might happen. 9 209 NLRB 1038 (1974), enfd. mem. 513 F.2d 200 (6th Cir. 1975). See, e.g, Merico, Inc, 207 NLRB 101 (1973) (in presence of language in a writ- ten agreement signed by the union's negotiating committee reflecting their pledge to recommend approval by the union members, ratification must take place to create binding contact, held, until then there is no contract bar to processing rival petition ), Newtown Corp, 280 NLRB 350 (1986) (in absence of provision requiring ratification in the proposed con- tract's express terms and in absence of evidence that the parties ever "agreed" to a ratification requirement, employer required to execute con- tract and cannot object to fact that proposals were not ratified by a ma- jority vote of the unit membership). 10 See State County Employees AFSCME Council 71 (Golden Crest), 275 NLRB 49, 50 (1985) (employer representatives were aware that employee ratification was contemplated, as required by union constitution, thus "the authority of the bargaining negotiators was limited to negotiations and could not, in the absence of ratification , bind the Union to a con- tract") But cf Newtown Corp., fn. 9, supra. The judge attempted to distinguish Sunderland's, Inc. by stressing that it was a case in which the employer had insisted that the union negotia- tors come to the table with authority to enter into a binding contract and when the union officials attempted to secure such authority from its members, the latter voted not to vest their representatives with that au- thority. Yet, subsequent cases do not seem to have limited Sunderland's so narrowly to its facts As the analysis in State County Employees, supra, indicates, the Board has sometimes found that the bargaining representa- tive's own indication of its need to obtain employee ratification , coupled with a union constitutional requirement of ratification , is sufficient to pre- clude the union negotiators from entering into a binding contract B. Normally when faced with a case in which ambi- guities in the legal standard allow for conflicting inferences and conclusions to be drawn from the facts, it is appropriate to use that case as a vehicle to clarify the law and to reconsider the record, supplementing it if necessary . But the instant case should stand as an exception. Given its posture, further proceedings would not really effectuate the policies of the Act as they apply to the litigants here. Moreover, there is no need to resolve the di- lemma of whether a binding collective-bargaining agreement came into existence on the conclusion of negotiations between the parties' bargaining repre- sentatives. The central question is whether the Re- spondent had the power to withdraw its consent to ii Cherokee United Super, 250 NLRB 29, 32 (1980) ("The bargaining history and all other relevant circumstances surrounding the negotiations must be examined to determine if an enforceable agreement has been reached."). SACRAMENTO UNION 481 the negotiated agreement before the union mem- bers ratified it. Under other settled principles of law, not considered by the judge, it is not neces- sary to find that the collective -bargaining agree- ment itself came into legal existence as a predicate for holding that the Employer here could not with- draw its consent. From general contract law we can draw on two concepts to assist us in delineating the rights and duties of the parties to bargain in good faith under the Act: 12 First, parties may enter into an option contract incident to negotiating toward the conclu- sion of a final, underlying contract. The purpose of the option contract is to make irrevocable for a period of time the offer submitted in connection with the underlying contract . In absence of the option, the offer would otherwise be revocable until such time as the offeree communicates accept- ance of it. 13 Secondly, courts will sometimes infer from an entire fact pattern of a case a promise on the part of a party against whom enforcement on the promise is sought.14 If these principles are allowed to guide us here, then certain facts take on new legal significance. From the onset of negotiations, the Employer knew that any agreement reached with the union negotiators would have to be ratified by the union members. There is also evidence that the Employer 12 In invoking principles of contract law, I am of course not implying that all its baggage , developed in the mercantile world, is to be transport- ed into Board law. The polestar always remains the effectuation of the policies of the Act , and thus many rules and concepts will, if not reject- ed, be refashioned to suit the realities of the collective-bargaining process and to further the values of stability and fairness in that process . Still, in defining the rights and obligations of the parties with respect to the for- mation of a collective-bargaining agreement , the Board has traditionally adopted many of the general , if not highly technical , elements of the common law of contracts. See, e.g., Pittsburgh-Des Moines Steel Co., 202 NLRB 880, 888 (1973); Shreveport Garment Mfrs., 133 NLRB 117, 121 (1961). Accord NLRB v. Burkhart Foam, Inc, 848 F.2d 825, 829 (7th Cir. 1988) ("we may look to traditional rules of contract interpretation consistent with federal labor policies"); Lozano Enterprises v NLRB, 327 F.2d 814, 819 (9th Cir 1964). See also Cox, The Legal Nature of Collective Bargaining Agreements, 57 Mich. L. Rev. 1, 14-15 (1958) (discussing perti- nence of contract doctrines to collective-bargaining agreements because they "represent the accumulation of tested wisdom ... bottomed upon notions of fairness and sound public policy"). And the Board may even look to some of the more technical aspects to bolster its analysis of a dis- pute Ben Franklin National Bank, 278 NLRB 986 fn. 2 (1986) Relevant to the instant case is the principle, key to the formation of an enforceable contract, that a party must have made commitments in the context of a bargained-for exchange of consideration Without implying that it is ap- plicable across the board, it nevertheless is a useful one for deciding this caseis Calamarr, fn 4, supra, § 2-25 at 121-124 (3d ed. 1987); Restatement 2d of Contracts § 87 (1979). 14 See Sylvan Crest Sand & Gravel Ca v US, 150 F.2d 642 (2d Cir. 1945); Wood v Lucy, Lady Duff-Gordon, 222 N Y. 88, 90-91, 118 N.E. 214 (1917), in which Cardozo, J., observed. The law has outgrown its primitive stage of formalism when the pre- cise word was the sovereign talisman , and every slip was fatal. It takes a broader view today A promise may be lacking, yet the whole writing may be "instinct with an obligation," imperfectly ex- pressed [Citation omitted ] If that is so , there is a contract. See also Calaman, fn. 4, supra , § 4-12 at 229-230, 234-235; L. Simpson, Law of Contracts § 56 at 94 (2d ed. 1965) was frustrated over the prospect of repeating the historical pattern of protracted negotiations culmi- nating in a new contract with full retroactive wage and benefit increases. The Employer's final offer was a departure from the past in that it provided only limited retroactivity. The Respondent obvi- ously knew that the offer stood little chance of ap- proval by the rank-and-file, unless the union negoti- ating committee committed itself to actively urging the members to approve the contract. As the judge correctly discerned, this required the bargaining agents to "sell" an unpopular proposal , thereby putting them in a posture that they would normally not be expected to assume. In addition, because it was anxious to conclude a contract, the Employer wanted the union bargaining team to commit itself to expediting the ratification procedure. This too represented something of a restriction on the dis- cretion that the union negotiators might otherwise be expected to exercise under the circumstances. Thus, as of July 20, the Employer objectively manifested its intention to assent to a bargaining contract that contained the substantive terms (i.e., wages, hours, benefits, working conditions) em- bodied in its own offer to the Union. It is only rea- sonable to imply from these circumstances a com- mitment on the Employer's part to hold its con- tract offer open until the agreed-on time for ratifi- cation has run. To the extent that the Employer's implied promise needed to be supported by a com- mitment flowing from the union bargaining agents, this was clearly supplied by the latter's agreement to take extraordinary steps to secure quick ratifica- tion. Thus, even if the Respondent is technically correct that the Union could not effectuate accept- ance of the bargaining contract short of employee ratification,15 I do not believe the Board is pre- cluded from finding that the union agents in their own right could enter into a binding, option-type agreement with the Employer that the latter would not prematurely withdraw its offer.' 6 In sum, because, in my view of the facts, the Employer was obligated not to withdraw its offer, coupled with the fact that the union members did timely ratify the offer, the Employer was required to execute a written contract reflecting the terms 15 The Respondent accuses the judge of going astray with a "novel" theory, in the second step of his analysis (slip op . pp. 3-4, supra), that treats the Union as an entity separate and apart from the members. The Respondent insists that the Union's status as the exclusive representative of the employees precludes it from having a distinct legal identity. 16 Cf. Retail Clerks v. Lion Dry Goods, 369 U.S. 17, 28 (1962), which held that the term "contracts," as used in Sec. 301(a), 29 U S C. § 185(c), is not limited to formal collective-bargaining agreements, citing J. I. Case Co v. NLRB, 321 U.S. 332, 334 (1944) ("Contract in labor law is a term the implications of which must be determined from the connection in which it appears "). 482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of their substantive agreement. Its failure to do so violated Section 8(a)(5), as defined by Section 8(d). Jane Lawhon and Lucile L. Rosen, Esqs., for the General Counsel. Mark H. Van Brussel, Esq. (Wilke, Fleury, Hoffelt, Gould & Birney), of Sacramento, California, and Joseph G. Armstrong, III, Esq. (Reed, Smith, Shaw & McClay), of Pittsburgh, Pennsylvania, for the Respondent. DECISION STATEMENT OF THE CASE WILLIAM L. SCHMIDT, Administrative Law Judge. This matter was heard on March 13, 1984, at Sacramen- to, California. The proceeding is based on a charge filed by the Central Valley Typographical Union #46, Inter- national Typographical Union (the Union) against The Sacramento Union on September 12, 1983.11 Pursuant to that charge, the Regional Director for Region 20 of the National Labor Relations Board (the Board or NLRB) issued a complaint and notice of hearing on behalf of the General Counsel of the Board alleging that Sierra Pub- lishing Company d/b/a The Sacramento Union (Re- spondent) violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). In a document dated Oc- tober 27, the Respondent timely answered the allegations of the complaint, admitting some but denying others, in- cluding the specific unfair labor practice alleged in the General Counsel's complaint. On the entire record, my observation of the witnesses as they testified at the hearing and my careful consider- ation of the posthearing briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT I. JURISDICTION It is admitted that Respondent, a Pennsylvania corpo- ration with an office and place of business in Sacramen- to, California, has been engaged at all material times in the publication, circulation, and distribution of The Sac- ramento Union, a daily newspaper. It is further admitted that in the 12 months preceding the issuance of the com- plaint, the Respondent derived gross revenues in excess of $200,000 from the above-described business operation, and that it held membership in or subscribed to various interstate news services, published various nationally syn- dicated features and carried advertisements for nationally sold products. It is also admitted that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. On the basis of the foregoing, I find that it would effectuate the purposes of the Act for the Board to exercise its jurisdiction over the labor dispute described below. II. THE LABOR ORGANIZATION INVOLVED It is admitted that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A. The Pleadings The complaint alleges that on or about July 19, the Union and Respondent reached full and complete agree- ment on the terms of a new collective-bargaining agree- ment applicable to Respondent's employees represented by the Union. The complaint further alleges that Re- spondent violated Section 8(a)(1) and (5) of the Act by repudiating the July 19 agreement on August 11 and by refusing at all times since August 22 to execute the writ- ten contract embodying terms of the agreement reached. B. The Evidence Respondent is headquartered in Pittsburgh , Pennsylva- nia, and is solely owned by Richard Scaife . It is the parent company of The Sacramento Union , the only entity involved in this proceeding , and two other news- papers in Pennsylvania. The Union has represented certain of The Sacramento Union's employees for a number of years. The most recent collective-bargaining agreement between Re- spondent and the Union expired December 31, 1981. In January 1982, Respondent and the Union commenced ne- gotiations for a new collective-bargaining agreement. Throughout these negotiations, management was repre- sented at the bargaining table by James S. Wolf Jr., the Respondent's director of industrial relations . From time to time, Wolf was accompanied by approximately four of the newspaper's management officials and, in the course of negotiations, Wolf was advised by Respondent's Pitts- burgh, Pennsylvania labor counsel , Joseph G. Armstrong II. The Union was represented by an entity known as the scale committee, described as a group of appointed or elected union members whose function is to negotiate collective agreements with employers . The members of the scale committee for this period were: Joe O'Brian, an employee of Respondent who has held several union of- fices in the past; Pat Barker, the Union's chapel chair; and Rex T. Rice Sr., president of the Union. At the initial bargaining session between the Respond- ent and the Union , several ground rules were established for the conduct of negotiations. In particular, Wolf in- quired about and was informed of the Union's member- ship ratification requirement . Wolfs contemporaneous bargaining notes reflect the following on the subject of membership ratification: In response to Wolfs question O'Brien stated that the union negotiators had the authority from the I.T.U. to negotiate a contract, subject to final agree- ment by their members. ' When not specified otherwise , all dates refer to the 1983 calendar year. Joe O'Brien testified that the Union's bylaws require that any collective-bargaining agreement concluded in negoti- ations must be approved by the Union's International SACRAMENTO UNION 483 president and ratified by the membership.2 There is no dispute about the ultimate approval of the International president. Between January 1982 and March 1983, the Respond- ent and the Union held 22 bargaining sessions . During that time considerable portions of a new agreement were resolved but no agreement had been reached on the pri- mary economic items. Respondent's brief characterized the negotiaitons as essentially stalemated by March. At- torney Armstrong testified that the Respondent was taking an adamant stand against retroactive economic ad- justments because it did not want to reward the Union for a historical pattern of protracted negotiations. In an effort to break the stalemate, Wolf arranged to meet with Kenneth Prairie, an ITU International repre- sentative, responsible for overseeing its affairs in Califor- nia, at a San Francisco hotel on July 14. Armstrong ac- companied Wolf to assist at this meeting and to lend em- phasis to Respondent's adamacy about the size of its eco- nomic offer, its position on retroactivity , and its proposal on the contract term. After preliminary discussions, Re- spondent's representatives outlined an economic offer to Prairie designed to conclude an agreement at The Sacra- mento Union. This proposal included a contract term running through 1987 which provided for 5-percent wage increase effective in January and July 1983, and a similar increase effective January 1984 and 1985. The proposal also provided for a wage reopener in January 1986 and 1987. In addition, Wolf proposed the same ad- justment in the Union's health and welfare plan as had been made in the Respondent's own plan. Prairie said that both Wolf and Armstrong specifically conditioned Respondent's proposal on an understanding that the scale committee would recommend ratification to the member- ship and that ratification must be completed no later than July 31. Before presenting this proposal, Wolf and Arm- strong cleared it with Barry Hopwood, the president of The Sacramento Union . Prairie became convinced over the course of the 4-hour meeting that the Respondent's offer-which he regarded as very disappointing-was the best the Union could hope to obtain and, at the con- clusion of the meeting, he agreed to report the offer back to the scale committee with his recommendation that they accept it.s Wolf agreed that the ratification recommendation and time limit conditions were imposed by the Respondent. Wolf explained that the purpose of the Respondent's in- sistance on speedy ratification: We had been negotiating for a long time, and we wanted a labor contract, and we wanted some kind of signal to the Union that, hey, this offer was there, but not forever. And if they wanted it they'd better grab it. And Wolf testified that there was no question in his mind that the membership would ratify the terms of an agree- ment if the scale committee recommended it. Although Armstrong said that it was Respondent's "prime concern" that the proposal be ratified by the membership, he attributed the condition for having the scale committee recommendation to Prairie. I do not credit Armstrong's recollection as to the source of the July 14 ratification conditions as it conflicts with the Wolf and Prairie versions , and as it is improbable that Prairie would gratuitously offer to further restrict the Union's latitude. At the conclusion of the July 14 San Francisco meet- ing, it appears that the participants understood that Prai- rie would first report and recommend the economic package to the scale committee and, if the scale commit- tee was willing to go along , it would then meet with Wolf to iron out all remaining details of an agreement. On July 16 prairie met with O' Brien and Barker, and explained the proposal made at the San Francisco meet- ing. On July 20, all three scale committee members met with Wolf at Wolfs office.4 Both O'Brien and Wolf tes- tified that a wide range of subjects were discussed at this meeting. In particular, O'Brien said that a specific figure was determined for the health and welfare contribution based on the San Francisco proposal; that there was agreement to add names to a roster which was to be in- cluded in the final agreement; that there was also agree- ment to implement the wage increases effective on the first full pay period instead of the first day of the month when they were due; and that the prior agreement on sick leave negotiated over the course of the year and a half of bargaining was scrapped in favor of following the old sick leave provision. O'Brien's testimony then contin- ues: And then we went over a couple of other areas, making sure that we had included all tentative agreements in a document to be presented to our members. We also discussed with Mr . Wolf the company's insistence on immediate ratification, and we suggested to him that we meet on the 7th of August rather than on the July 31st date, which would have been a Sunday, which was our normal date for Union meetings of any kind. And one of the reasons that I asked for that delay, that I was on-that I would be on vacation, I wouldn't be there. I felt that if we were going to recommend an agreement and get it approved by the membership, my absence wouldn't help that effort any at all, so, I also told Mr . Wolf to prepare the document, and by the time we had it prepared in the hands of our members for a July 31st meet- ing, that could look to some of our members who weren't happy with the agreement, that could look 2 The specific bylaw provision alluded to by O'Brien was never of- fered in evidence. 2 Because of Prairie's capacity as an ITU International representative, his reluctant agreement to recommend the Respondent's proposal to the local scale committee was treated internally by the Union as tantamount to the approval of the ITU president required under its bylaws 4 The results of this meeting are alleged in the complaint to have oc- curred on July 19. The finding here is predicated on Wolf's credited testi- mony-based on his records-that the meeting occurred on July 20 as well as the specific reference to that date in the Van Brussel letter quoted below 484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD like somewhat of a railroad job, and I didn't want to do that. So that basically is what we discussed. Q. Okay. Did Mr. Wolf agree to the August 7th date for ratification meeting? A. Yes, he did. Q. And at any point in that July [20] meeting, did you discuss whether the Scale Committe would rec- ommend the company's offer? A. Yes, we did. Q. And what was discussed about that? A. I think when we went into the meeting, there was some question in the minds of at least one member of the Scale Committee as to whether or not they wanted to recommend it. And after dis- cussing it with Mr. Wolf and going over the entire package, we told him, assured him, that we would unanimously recommend the agreement to the membership. Q. At the conclusion of the meeting with Mr. Wolf on July 20th, what was the status of negotia- tions from the perspective of the Union? A. We had an agreement. Wolf's testimony about the July 20 meeting closely parallels that of O'Brien. He testified that at the outset of the meeting O'Brien was so dissatisfied with the terms of the San Francisco proposal that the Union was consider- ing writing to the owner to complain of its unfairness. Wolf prevailed on the scale committee not to take that course because it would be "counterproductive, and that [he] was certain that this is all there was." Then Wolfs testimony continued: Mr. O'Brien also asked that the company . . . drop a couple of rather significant contract items which ... the Union had agreed to previously, and I said no, we would not renegotiate the contract. I told Mr. O'Brien and the other members of the Scale Committee that they were not to present this offer to the membership without their recommendations, and [that] they not . . . present it to the membership unless they were sure that the membership would ratify it. Q. Did the Scale Committee indicate at that meeting whether they would recommend the agree- ment? A. Yes. Q. And what was their indication on that? A. That they would recommend the agreement. Q. And did you discuss a date for the ratification vote? A. Yes, at the meeting in San Francisco, Mr. Armstrong and I had said to Mr. Prairie we want this vote to be no later than August 1st. Mr. O'Brien explained to me . . . at our meeting subse- quent to the San Francisco meeting that August 1st would be impossible for procedural reasons, having to do with their bylaws, and said that he could have a meeting on the subsequent Sunday . . . I think was the 7th, and I said okay. Q. Mr. Wolf, on July 14th, did you have any question in you mind that if the Scale Committee recommended the offer, the membership would ratify it? A. I had no question. Q. And again on July 20th, were you equally convinced that with a Scale Committee recommen- dation, the agreement would be ratified? A. Yes. [Emphasis added.] In Wolf's view a "final agreement" between the Re- spondent and the Union was reached at the conclusion of the July 20 meeting with the scale committee. Having se- cured the scale committee's promise to recommend ratifi- cation, Wolf viewed the ratification vote as "a pure for- mality, and just part of the mechanics." According to O'Brien, the Union' s usual ratification practice includes the distribution of the proposed agree- ment in the shops of the various chapels of the Union at least a week prior to the scheduled ratification vote so the membership will have an opportunity to read and digest the changes. In this instance, Wolf agreed to and did prepare the document containing the proposed changes to the prior agreement. Wolf testified that on August 3 he received a tele- phone call from Richard Slease, the Respondent's gener- al counsel in Pittsburgh, directing him to contact the Union and secure a delay in the ratification vote. Wolf was told that if the delay was not forthcoming, he was to withdraw the "offer." Although Wolf expressed reser- vations, he agreed to seek a delay.5 Following his con- versation with Slease, Wolf spoke with both Prairie and O'Brien about obtaining a 1-week delay in the ratifica- tion vote. Wolf did not tell O'Brien the reasons for the requested delay but Prairie testified that Wolf told him generally that there might be a change in the Respond- ent's offer. No specifics were discussed. It appears that Prairie agreed to the requested delay and intervened with the Union's officials to arrange it. The ratification meeting was initially rescheduled to August 14 but was later rescheduled to August 18 when it was learned that it would conflict with a social event often attended by many of the Union's members. On Thursday, August 11, Hopwood called Wolf to his office and ordered Wolf to withdraw the Respondent's offer. Wolf "demurred" and offered a 30-day notice of his resignation . Hopwood told Wolf he would not be given 30 days and to take a few minutes to think over his decision. After considering his decision briefly, Wolf re- turned to Hopwood and tendered his resignation effec- tive immediately. Wolf testified that it was his belief that the withdrawal of the offer at that point "was both un- ethical and illegal." O'Brien testified that when he reported for work at 5 p.m. on August 11, he was called to the office of Gener- al Manager Bob Badgley. At that time Atorney Van Brussel handed O'Brien a letter addressed to Union President Rice which stated: 5 According to Wolf, he told Slease at that time that if the offer was withdrawn, it was his belief that it would be a violation of the law and unethical . He predicted that in that event the Union would file an unfair labor practice charge. SACRAMENTO UNION 485 The Sacramento Union has authorized and in- structed me as its attorney to advise you that the Sacramento Union hereby withdraws the labor con- tract provisions previously offered to the Printers Local No. 46 on July 20, 1983. Please contact me at your earliest convenience to discuss the resumption of collective bargaining. O'Brien asked Badgley the reason for the revocation and Badgley told him he did not know. After this meeting O'Brien telephoned Prairie with news of the letter. Prairie promised to speak with the Union's legal counsel and Rice. Later, Prairie told O'Brien that the Union should proceed with the ratifica- tion meeting as soon as possible . When the membership ratification meeting was held on August 18, the July 20 agreement was ratified 27-10. By a letter dated August 22, the Union's counsel noti- fied the Respondent that the July 20 agreement had been ratified and requested that Respondent execute a new collective-bargaining agreement incorporating those changes. By a letter dated September 6, Respondent's counsel declined the execution request saying "the com- pany withdrew its July 14 offer before the offer was ac- cepted by the Union." The letter renewed the Respond- ent's offer to meet for further bargaining. There is no evidence that further bargaining sessions have been held. Hopwood testified that the action of August 11 was undertaken because the Respondent, on August 8, con- cluded a settlement with the Sacramento County district attorney of a civil case involving corporate misrepresen- tation of its circulation volume to advertisers which ex- posed the newspaper to a potential liability of $ 12 mil- lion.6 The circulation discrepency was first uncovered in March and, although news concerning it appears to have been reported in the newspaper, it was never discussed in negotiations with the Union. C. The Argument 1. By the General Counsel The General Counsel argues that membership ratifica- tion of the "final oral agreement" reached by the Re- spondent and Union on July 20 was not a condition precedent to the existence of a final agreement which Respondent is required to execute. In this regard, the General Counsel asserts that when the oral agreement was reduced to writing by Wolf following the July 20 meeting it contained no provision requiring ratification and the Respondent has failed otherwise to meet its burden of proving under the standard of C & W Lektra Bat Co., 209 NLRB 1038 (1974), that there was an agree- ment to make ratification a condition precedent to a col- lective-bargaining agreement. Accordingly , the General Counsel asserts that at the conclusion of the July 20 meeting there were no outstanding conditions to pre- clude a finding that there was a final and binding agree- ment which the Respondent is obliged to execute. 6 The civil complaint and settlement were filed in the Superior Court for Sacramento County simultaneously on August 12. In the alternative, the General Counsel asserts that a final agreement came into existence on August 18 when the union membership ratified the agreement because the Respondent's final proposal was irrevocable until the agreed-upon ratification date and, hence, Respondent's attempted revocation on August 11 was invalid because it occurred during the period in which the final proposal was irrevocable. In support the General Counsel argues that the Board and the courts do not always apply common-law contract rules in the collective -bargaining context and that the application of the common -law rule that an offer is revocable until accepted "collides with the requirements of good faith bargaining." This argu- ment continues: In the context of collective bargaining, an employer who agrees to allow acceptance of its final proposal by a certain date should be precluded from revok- ing during that period. Permitting an employer to revoke after agreeing to a date for the union's ac- ceptance would penalize the union for relying upon the employer's good faith. It would champion ab- stract contractual freedom at the expense of foster- ing a context in which agreements between the par- ties are encouraged . Revocation of a final offer by an employer prior to the date on which it has agreed that the union can accept its offer cannot be reconciled with an employer's obligation to bargain in good faith. Concluding this alternative argument, the General Coun- sel asserts that ratification would have occurred within the agreed-on period "but for" the Respondent's actions "which directly caused the postponing of the ratification vote." As a second alternative argument , the General Counsel asserts that the Respondent should be equitably estopped from refusing to execute an agreement embodying its final proposal. The General Counsel asserts that Re- spondent's request for a ratification delay was "decep- tive" because the Union was given no reason to suspect there was any risk in delaying ratification . Respondent's conduct, the General Counsel claims, is "inconsistent with the requirements of good faith bargaining." The General Counsel's basis for the claimed deception and lack of good faith is the evidence showing that Scaife ex- pressed reservations to Hopwood about the agreement as early as July 25, and the August 3 instruction to Wolf to withdraw Respondent's offer if the Union refused to agree to a postponement even though the extent of Re- spondent's exposure in the civil matter was unknown until the following day. In the General Counsel 's view, the Respondent's failure to notify the Union of the po- tential for revocation in early August is tantamount to bad faith. 2. By the Respondent The Respondent argues that it withdrew its July 20 offer on August 11 and that such action was timely to preclude the formation of a contract. This is so, the Re- spondent claims, even though in the collective-bargain- ing context the Board and the courts do not apply 486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD common-law rules of contract formation. The Respond- ent cites Presto Casting Co. v. NLRB, 708 F.2d 495 (9th Cir. 1983), and Pepsi-Cola Bottling Co. v. NLRB, 659 F.2d 87 (8th Cir. 1981), in support of the proposition that the express withdrawal of a collective-bargaining con- tract offer before acceptance precludes the formation of an agreement which must be executed. And, the Re- spondent asserts that its abrupt withdrawal of the July 20 offer was in good faith occasioned by a significant change in its financial commitments, namely, the settle- ment of the civil matter. The complaint, Respondent fur- ther notes, does not allege that its August 11 action is bad-faith bargaining. Additionally, the Respondent argues that the scale committee's agreement to recommend its offer to the membership "did not create a binding contract." Re- spondent believes that the scale committee's statement about ratification during the first negotiation session and the parties' post-July 20 conduct support the conclusion that membership ratification was a condition precedent to any new agreement. Furthermore, Respondent claims that nothing discloses that the scale committee had either actual or apparent authority to reach a final and binding agreement. As membership ratification was a condition precedent to any binding agreement, Respondent be- lieves that the evidence adduced by the General Counsel that membership ratification was a mere formality and always occurred when ratification was recommended by the scale committee is, in effect, not relevant. Finally, Respondent argues that Wolfs testimony that a final agreement was reached on July 20 should be dis- counted as his testimony on this point was contradictory, his own actions belie such a conclusion, his opinion in this regard lacks foundation and is an irrelevant legal conclusion, and his bias resulting from pending litigation over his resignation makes his assertion suspect. D. Further Findings and Conclusions It is well recognized that an employer's obligation to bargain collectively under the Act includes "the execu- tion of a written contract incorporating any agreement reached if requested by either party . . ." 29 U.S.C. Sec. 158(d). And see NLRB v. Strong Roofing, 393 U.S. 357 (1967); H. J. Heinz Co. v. NLRB, 311 U.S. 514 (1941). Here, the union is demanding, in effect, that the Re- spondent execute a written agreement embodying the terms and conditions of their prior agreement as modi- fied by changes thereto agreed on between Wolf and the scale committee on July 20 but the Respondent has de- clined to do so on the ground that it effectively with- drew its contract offer before it was accepted by the union. At the outset, I concur with the Respondent's observa- tion that the complaint is framed solely in terms of its re- fusal to execute a binding agreement and that the ques- tion of bad-faith bargaining is not present. In this pos- ture, both the General Counsel's argument that the Re- spondent was somehow deceptive and the Respondent's argument that its withdrawal of the July 20 proposal was justified by an abrupt change in its business condition are not arguments which address the issue posed by the complaint. Instead, the sole issue raised and litigated is whether there exists an agreement the Respondent is obliged to execute.' Although it may be true that common-law principles governing the formation of contracts cannot necessarily be transposed to the collective-bargaining setting, some courts have occasionally suggested by way of dicta that the usual common-law rules of offer and acceptance gen- erally determine the existence of a collective-bargaining agreement. F. W. Means Co. v. NLRB, 377 F.2d 683 (7th Cir. 1967); Lozano Enterprises v. NLRB, 327 F.2d 814 (9th Cir. 1964). Even though that view has not been en- tirely discarded, in more recent cases some courts have observed that strict adherence to common-law offer and acceptance rules can be overly simplistic in the complex give-and-take of collective-bargaining negotiations and they have avoided rigid adherence to ordinary common- law rules in order to accommodate a national policy fa- voring the formation of collective- bargaining agreements. Presto Casting Co. v. NLRB, supra; NLRB v. Donkins Inn, 532 F.2d 138 (9th Cir. 1976); Pepsi-Cola Bottling Co., supra. It is particularly noteworthy that in both Presto Casting and Pepsi-Cola the courts rejected defenses grounded on the typical common-law rule that a rejec- tion of an offer or a counterproposal served automatical- ly to terminate an outstanding offer. Nevertheless, these more recent cases suggest, at best, that the common-law rules must be tempered to achieve the policies of the Act. Under the common law it is uniformily recognized that a binding contract is formed when an offeror is properly notified by the offeree that an unconditional offer is unconditionally accepted. And, as a general prop- osition, an offer may be withdrawn or revoked at any- time prior to the communication of its acceptance. Corbin, Sec. 38-46; 17 Am.Jr.2d § 36. On the other hand, an offeror's power to withdraw or revoke an offer may be adversely affected either by an offeree's partial performance or an offeree's definite and substantial action in reliance on an offer, if the action in reliance is foreseeable by the offeror. Corbin, Secs. 49, 51. It is within the framework of these general principles that the Respondent acted and now defends against the General Counsel's complaint. Respondent forcefully argues that Presto Casting and Pepsi-Cola recognize that an express withdrawal such as the one delivered in writing on August 11 before ratification occurred was effective to preclude the formation of a binding agreement even in the collective-bargaining context. Although the right of an offeror to expressly withdraw an offer at anytime prior to the proper communication of an acceptance by the offeree even in the collective-bargaining context is recognized, the Respondent's underlying assumption that the power of acceptance of collective-bargaining terms is vested in the Union's membership through the ratifica- Indeed, no informed conclusion can be reached concerning Respond- ent's motives. Although it elicited tesimony that its August I I action re- sulted from its settlement of the civil action, any attempt to determine whether this event was such a compelling change of circumstance for Respondent is simply impossible where, as here, there is no evidence as to its actual liability nor evidence as to the Respondent's overall financial position However, that evidence does serve as the only explanation of the Respondent's course of conduct. SACRAMENTO UNION tion process rather than the Union as an institution re- quires careful consideration. The parties to a typical collective-bargaining agree- ment in any legal sense are an employer and a union as an institution. To be sure, the usual agreement provides for the terms and conditions of employment of the em- ployer's employees but it usually also provides terms beneficial to the union as an institution. See, e.g., Bay Area Sealers, 251 NLRB 89 (1950). Under the statute, an employer is obliged to deal with and tender offers to the union and is ordinarily prohibited from dealing directly with employees or the union's membership. Medo Photo Supply Corp. v. NLRB, 321 U.S. 678 (1944). Moreover, under the terms of a collective-bargaining agreement, a union, as the employee representative, may waive impor- tant employee rights and has a fiduciary -like responsibil- ity to fairly represent all unit employees. See, e.g., Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 280 (1956); Vaca v. Sipes, 386 U.S. 171 (1967). In short, in any ana- lytical sense it would be error to assume that a union and its membership are one and the same. And in any logical sense, it follows that it is the union as an institution which is empowered to accept or reject an employer's collective-bargaining proposals. The Union's central role in contract formation is also apparent from the cases which deal specifically with rati- fication. Under the Act, a labor organization has no obli- gation to submit an employer's proposal for a collective- bargaining agreement to the represented employees or even its membership for ratification . North Country Motors, 146 NLRB 671 (1964). However, a labor organi- zation may self-impose such an obligation . The form of such an obligation can be by means of a constitutional or bylaw provision, an ad hoc agreement with each repre- sented group, or a local policy decision. The Board has characterized self-imposed ratification requirements as es- sentially a restriction on the authority of its negotiators to execute an agreement reached at the bargaining table absent the approval of its membership . Joe Carroll Or- chestras, 254 NLRB 1158 (1981). An employer may impose a similar limitation on its negotiators . University of Bridgeport, 229 NLRB 1074 (1977). But a self-imposed membership ratification requirement is not treated by the Board as the functional equivalent of the act of accept- ance essential to the formation of a contract. Thus, nu- merous Board cases hold that an employer may not ques- tion a gratuitously imposed ratification requirement in defense of its refusal to execute an agreement. See, e.g., Martin J. Barry Co., 241 NLRB 1011 (1979) (employer ordered to sign agreement overwhelmingly rejected by first ratification vote but later accepted by a small minor- ity of members); C & W Lektra Bat Co., supra (employ- er ordered to sign agreement even though union dis- pensed with earlier stated intent to obtain ratification where ratification looked impossible ); M & M Oldsmo- bile, 156 NLRB 903 (1966) (employer ordered to sign agreement notwithstanding some evidence that a majori- ty of union's membership opposed ratification even though it was a condition precedent to final agreement); North Country Motors, supra (employer ordered to sign agreement even though initially rejected, and then ap- proved by a single employee at second vote). Moreover, 487 ratification procedures sometimes permit union members not employed in the unit to participate in ratification de- bates and even, occasionally , to vote on ratification. By contrast, unit employees who are not union members are typically precluded from attending or participating in ratification proceedings. With the foregoing in mind, it is pertinent to note that even the common law recognizes that an agreement con- tingent upon the assent of a third party who is outside of the control of the parties may, nevertheless, be binding. Corbin in particular articulates such a situation: Sec. 61. Acceptance "Subject to Approval" by a Third Party. It must also be borne in mind that an acceptance subject to the assent or `permit" of a third party is not a conditional acceptance if the offer was in identical terms subject to that very assent or `permit. "It is quite possible for the parties to make a valid contract in which the rights and duties of each are conditional on the happening of some event not within their control, such as the expression of opinion by a third party. For such a result it must be shown that the parties intend that negotiation between themselves is closed, leaving no power of revocation or with- drawal in either one. This being shown, the accept- ance is not a "conditional acceptance" varying from the offer; but the rights and duties created by such a contract are conditional rights and duties. [Empha- sis added; footnotes omitted.] And Sec. 17 Am.Jur.2d § 66. In any ultimate sense, the power of an employer or a union over employees with respect to ratification of a collective-bargaining agree- ment is limited to persuasion . Section 7 of the Act, with- out a doubt, guarantees employee freedom from disci- pline by either side for supporting or opposing contract ratification. Throughout negotiations, and especially on July 20, the evidence shows that both sides were represented at the bargaining table by individuals vested with full au- thority to conclude an agreement which the union side was obliged by its own bylaws to take to its members for ratification. More specifically, there is no doubt about Wolf's authority to conclude a final agreement . He gave no notice of any limitation on his authority and, indeed, when he had doubts about his own authority, he cleared proposals in advance with Hopwood and other corporate representatives. On the other side, it was shown the scale committee's primary purpose was to negotiate collective- bargaining agreements and, as its membership was com- prised of experienced union officers, it is fair to conclude that the sole limitation on its authority was the self-im- posed ratification requirement explained to Wolf in the initial bargaining session. As noted, the Respondent claims that the Union's rati- fication requirement was a condition precedent to any binding agreement which it is required to execute and, as it withdrew its proposal before that condition was met, no agreement exists. In C & W Lektra Bat Co., supra, 488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Board specifically declined to find that a notice of the union's intention to seek ratification (stated much more forcefully than here) constituted a condition prece- dent to a binding agreement . Here, Respondent did noth- ing more than obtain a clarification of the scale commit- tee's authority to act autonomously; the Union's self-im- posed ratification requirement was never proposed as an express term of the agreement. Even on July 20 when the agreement was concluded, ratification as such was not established as a condition . Instead, the conditions re- lated only to the scale committee 's position on ratifica- tion and the allowable time frame for ratification. Under these circumstances and the precedent cited above, the Union was always at liberty to change its position on ratification and conclude a signed agreement with the Respondent. Accordingly, I find that the notice given by the Union at the initial meeting was nothing more than a statement that the scale committee was without authority to sign an agreement totally independent of the member- ship's concurrance and that it was not a condition prece- dent to final agreement . Joe Carroll Orchestras, supra. This conclusion is not precluded by Good GMC, Inc., 267 NLRB 583 (1983), which Respondent cites. In that case, one of the ground rules of the negotiations agreed on by both sides was that any agreement reached be- tween the negotiators would be treated as a tentative agreement which would be subject to ratification by the employer and the union membership . The negotiators reached an understanding on all outstanding mandatory subjects of bargaining at issue but did not reach an un- derstanding as to one nonmandatory issue raised by the employer. The union submitted the employer's proposal for ratification to the membership which ratified only the understanding reached on the mandatory subjects. The employer negotiator appears not to have made any seri- ous attempt to secure ratification by his principals and declined the union's demand that the employer execute a new agreement. The Board held, contrary to the admin- istrative law judge, that the employer did not violate Section 8(a)(5) by refusing to execute a new agreement finding that "the parties never had an agreed -upon con- tract" because, inter alia, the employer never ratified the agreement as called for in the ground rules. Moreover, the Board observed that the union could not claim that an agreement had been reached when it had not accept- ed all of the employer's proposal even though the por- tion not accepted dealt with a nonmandatory subject es- pecially where the evidence failed to disclose that the employer had insisted to the point of impasse on the non- mandatory subject. Hence, the acceptance transmitted to the employer negotiator was conditional and he had no real agreement to be approved by his principal. Unquestionably, the Respondent sought to minimize ratification as a roadblock to a signed agreement with the Union by emphatically attaching two conditions to its final proposals . As a result, the agreement concluded between the Respondent and the Union on July 20 was not solely an agreement on the terms of a new contract. In addition to that aspect, the Respondent-still recog- nizing the Union's self-imposed ratification require- ment-insisted, and obtained from the scale committee- and hence the Union-a commitment to sell the agree- ment to its membership and to do so promptly. Those additional aspects of the July agreement were deemed so important by the Respondent that it specifically condi- tioned the existence of its final economic proposal on the scale committee's willingness to accept these added terms. There were good reasons for the Respondent's added conditions . Thus, as Armstrong's testimony makes clear, at the heart of its negotiating strategy was a deter- mination to make this round of bargaining a watershed by breaking the past cycle of protracted negotiations which concluded with an agreement to make wage and benefit increases retroactive to the expired agreement. Hence, it is fair to infer that Respondent was fully aware that its final economic package providing for only limit- ed retroactivity to January 1, 1983, would likely be very unpopular with the membership. Furthermore, Wolf's testimony makes clear that the Respondent's strategy was also grounded on the premise that if the scale com- mittee-in essence the heart and soul of the Union's lead- ership-undertook to recommend ratification the likeli- hood of ratification would be greatly enhanced. And by insisting on quick ratification , Respondent was minimiz- ing the potential for serious opposition developing within the Union's membership. From the perspective of the Union the collateral con- ditions the Respondent attached to its July 20 proposal cannot be regarded as insignificant. The Union undoubt- edly had an interest in concluding an agreement as the wage and benefit levels of its membership had effectively been frozen for over 1-1/2 years and the protracted stalemate between March and July undoubtedly made the prospects for a better proposal appear even gloomier absent some drastic economic action against the Re- spondent. O'Brien, in effect, testified the Respondent's economic package was perceived by the scale committee as so penurious that he wanted to protest directly to the owner, and, at the outset of the July 20 meeting, he was personally opposed to recommending ratification. For the Union's leadership to agree to recommend a proposal which everyone knew would be unpopular was obvious- ly no light undertaking; open support of unpopular con- tract settlement terms sows the seeds of leadership defeat in internal elections. At the very least, by extracting the scale committee's commitment to recommend ratification as a condition, the Respondent positioned the Union out on a limb vis-a-vis its membership , achieved a limitation on the Union's bargaining latitude, and obliged it to make a bona fide effort to sell an unpopular settlement to its membership. The scale committee was in the position of either agreeing to the Respondent's two conditions or having no proposal at all. I find, therefore, that the operative proposal ultimately propounded by Respondent on July 20 consisted of three interdependent and vital elements : (1) the terms of a new contract; (2) the scale committee 's unqualified committ- ment to recommend ratification; and (3) a committment to conduct ratification promptly but , in any event, no later than August 7. I further find that the scale commit- tee, on behalf of the Union, unconditionally accepted Re- spondent's proposal. Both Wolf and O'Brien thought they had concluded an agreement on July 20 and, SACRAMENTO UNION indeed, there is no evidence that, as between the Re- spondent and the Union, there was anything further to negotiate.8 Likewise, there is no evidence that the Re- spondent, as of July 20, intended to reserve a right to revoke its proposal. Indeed, Wolf's subsequent profes- sional martyrdom and the explicit condition for timely ratification suggest just the opposite. Because Respond- ent imposed the two conditions on the proposal finally propounded at the July 20 meeting and the Union uncon- ditionally accepted them, the agreement concluded that day was not merely a "tentative agreement" or a "pro- posed agreement." Instead, it was an agreement opera- tive immediately, requiring the Union to undertake a bona fide effort to secure ratification.9 In short, after the July 20 meeting, the time had arrived for the scale com- mittee to begin carrying out the Union' s bargain with the Respondent to sell the agreement to the membership. This appears to be the precise situation addressed in the above-quoted section from Corbin. The circumstances in Sunderland's, Inc., 194 NLRB 118 (1971)-cited by Respondent as controlling-are in stark contrast to those here. There the respondent was insistent that the union negotiator be authorized to con- clude a final agreement and when the negotiator re- turned to the membership for such authority she was re- buked. Instead she was given an even more restricted portfolio, i.e., she was to bring the employer's best offer to the membership for approval. Thus, the negotiator was in no position to accept or reject any offer. As a consequence, when the employer withdrew its best offer before the membership had an opportunity to consider it, the membership, in effect, was left with nothing to con- sider. 10 Because of the particular manner in which Respond- ent's proposal was formulated and accepted by the Union's scale committee, Respondent's assertion that no binding agreement was concluded on July 20 is-as noted above-not entirely tenable-if not simply wrong even under common-law principles. As the courts in Presto Casting and Pepsi-Cola rejected a well-founded ap- plication of common-law offer and acceptance rules in favor of the statutory policy promoting the formation of 8 Claiming that Wolf's testimony that he felt the parties reached final agreement on July 20 was without foundation and was an unwarranted legal conclusion , Respondent strongly objected to its receipt That objec- tion was overruled. Wolfs perception of what occurred is a plainly rele- vant fact and it was not received as a legal conclusion . Although it is recognized that Wolfs forced resignation and continuing litigation for unemployment benefits creates the potential for bias in his testimony on this subject, Wolf projected the demeanor of a straightforward and candid witness . Moreover, the circumstances of Wolf's resignation are consistent with his belief that he had negotiated a final and binding agree- ment. Wolf's perception that the scale committee's recommendation would likely assure ratification and O'Brien's suggestion that the ratification meeting be scheduled to avoid the appearance of a "railroad" job shows that the contemplated ratification effort by the Union was to be a sincere undertaking, not merely a wink and nod 10 The General Counsel , in my judgment, correctly argues that an- other similar case, Loggins Meat Co., 206 NLRB 303 (1973), is also distin- guishable. In that case the union's representative agreed to take an em- ployer's proposal to the membership for ratification but stated that he was going to recommend rejection When the employer withdrew ele- ments of its offer before being notified that the union's membership had ratified the offer, the Board concluded that the offer was effectively withdrawn and no agreement existed. 489 collective-bargaining agreements, it is difficult to per- ceive why Respondent's questionable or unfounded common-law position should be accommodated at the expense of the aforementioned statutory policy. Accord- ingly, I find that the Respondent was not at liberty to withdraw its July 20 proposal after the scale committee's effective and unconditional acceptance. I further find that the parties entered into a binding agreement on July 20.11 As on August 22 the Respondent was notified by the Union that the agreement had been ratified, the Re- spondent was obliged to execute a written agreement embodying the terms of the July 20 agreement. By refus- ing to do so since on or about September 6 the Respond- ent violated Section 8(a)(5) and (1) of the Act. NLRB v. Strong Roofing, supra; H. J. Heinz Co. v. NLRB, supra. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations described in section I, above, have a close , intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, it will be recommend- ed that it be ordered to cease and desist and take certain affirmative action which is necessary to effectuate the policies of the Act. As the Respondent unlawfully refused to sign the con- tract to which it and the Union had agreed on July 20, it will be recommended that Respondent be ordered, if the Union so requests, to sign and give effect to a written contract embodying the terms of the agreement reached that day and to make whole its employees for any losses suffered by reason of Respondent 's refusal to give effect to the agreement, backpay to be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with in- terest computed in accordance with Olympic Medical Corp., 250 NLRB 146 (1980), and Florida Steel Corp., 231 11 Respondent's reliance on Lear Siegler P. Auto Workers, 419 F.2d 534 (1969), merits comment. There the court affirmed a lower court dismissal of an employer's action on a contract under Sec . 301 holding that no "operative" contract existed because no formal contract instrument was executed . The facts showed that after the parties ' negotiators reached an agreement, the union conducted a bifurcated ratification vote among unit employees. The unskilled employees ratified; the skilled employees did not, the combined total showed a majority favored ratification . The em- ployer argued to no avail that there was a binding contract . The union refused to execute an agreement until the employer negotiated, in effect, a separate agreement for skilled employees. Regardless of the fact that it could be argued with considerable merit that the employer would likely have obtained a more favorable result under Sec. 8(b)(3), the case serves to illustrate the point made here that Respondent specifically obliged the Union to make a bona fide effort to obtain ratification of an agreement which was likely to, and did, generate significant opposition . To permit the Respondent to breach the July 20 agreement with the Union at the last minute would hardly promote the stability the Act is designed to achieve 490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD NLRB 651 (1977). See generally Isis Plumbing Co., 139 NLRB 716 (1962), enf. denied on different grounds 322 F.2d 913 (9th Cir. 1963). Any trust fund reimbursements shall be made in accord with Merryweather Optical Co., 240 NLRB 1213 (1979). CONCLUSIONS OF LAW 1. Sierra Publishing Company d/b/a the Sacramento Union is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Central Valley Typographical Union #46, Interna- tional Typographical Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All employees employed within the job classifica- tions covered by the collective bargaining agree- ment between Respondent and the Union which ex- pired on December 31, 1981. 4. At all material times, the above-named labor organi- zation has been and now is the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about September 6, 1983, and at all times thereafter, to execute the agreed-upon contract, Respondent has failed to bargain collectively with the above-named labor organization as the exclusive bargain- ing representative of all the employees of Respondent in the appropriate unit and has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfer- ing with, restraining, and coercing, employees in the ex- ercise of the rights guaranteed to them in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed'2 ORDER The Respondent, Sierra Publishing Company d/b/a The Sacramento Union, Sacramento, California, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of em- ployment by refusing to sign the written contract em- bodying the terms of the agreement it reached July 20, 12 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. 1983, with Central Valley Typographical Union #46, International Typographical Union, as the exclusive bar- gaining representative of its employees in the following appropriate unit: All employees employed within the job classifica- tions covered by the collective bargaining agree- ment between Respondent and the Union which ex- pired on December 31, 1981. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, sign and give effect to a written con- tract embodying the terms of the agreement reached be- tween Respondent and the Union on July 20, 1983. (b) Make whole its employees for any losses suffered by reason of Respondent's refusal to give effect to its agreement with the Union, in the manner set forth above in the remedy section of this decision. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Sacramento, California, copies of the attached notice marked "Appendix.""3 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 13 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively concern- ing rates of pay, wages, hours, and other terms and con- SACRAMENTO UNION ditions of employment by refusing to sign a written con- tract embodying the terms of the agreement reached on July 20, 1983, with Central Valley Typographical Union #46, International Typographical Union, the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, on request, sign and give effect to a written contract embodying the terms of the agreement reached with the above-named Union on July 20, 1983, as the ex- clusive representative of all employees in the bargaining unit described below. The bargaining unit is: 491 All employees employed within the job classifica- tions covered by the collective bargaining agree- ment between Respondent and the Union which ex- pired on December 31, 1981. WE WILL make whole all employees in the above-de- scribed bargaining unit for any losses suffered by reason of our refusal to give effect to our agreement with the above-named Union. SIERRA PUBLISHING COMPANY D/B/A THE SACRAMENTO UNION