Beatrice/Hunt-Wesson

National Labor Relations Board - Board Decisions

Mar 28, 1991

302 N.L.R.B. 224 (N.L.R.B. 1991)

224
302 NLRB No. 30
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We agree with the judge’s finding that the parties agreed that the ratifica-
tion by the bargaining unit was a condition precedent to a binding contract.
We particularly rely on the parties’ agreement during their November 17, 1987
negotiations sessions, as reflected in the memorandum of agreement executed
November 18, 1987, to submit their ‘‘tentative agreement’’ containing a con-
troversial wage proposal for ratification by the bargaining unit members. Thus,
rather than the Union imposing the limitation of ratification on itself, both par-
ties in the instant case agreed to require ratification by the bargaining unit
members to make their ‘‘tentative agreement’’ binding. We do not, however,
rely on the Union’s organizational campaign literature stating that employees
could vote on contracts or on the fact that the Union submitted the contract
to ratification votes.
The General Counsel, relying on Childers Products Co., 276 NLRB 709
(1985), affd. mem. 791 F.2d 915 (3d Cir. 1986), asserts that the Respondent
does not have standing to challenge the Union’s method of ratification because
it is an internal procedure within the Union’s exclusive domain and control.
In Childers, after the parties reached agreement on all terms, the union nego-
tiator wrote down all the terms on the union’s standard form and added the
union’s stock line, ‘‘THIS AGREEMENT SUBJECT TO RATIFICATION.’’
Unlike here, the employer and union in Childers never established during ne-
gotiations what the union meant by ‘‘ratification,’’ nor did they even discuss
ratification during their negotiations. Therefore, the method of ratification was
left for the union to determine. In contrast, the Respondent and Union here
agreed that ratification by bargaining unit members was a precondition to the
contract and discussed the ratification process. Thus, ratification was clearly
defined and not left to the Union’s internal procedures.
1 The issue has arisen with some frequency. See, e.g., Williamhouse-Regency
of Delaware, 297 NLRB 199 (1989) (and cases cited therein), enfd. 915 F.2d
631 (11th Cir. 1990); Sacramento Union, 296 NLRB 477 (1989) (and cases
cited therein); Hickory Farms of Ohio, 222 NLRB 418 (1976), enfd. 558 F.2d
526 (9th Cir. 1977). See also Teamsters Local 251 (McLaughlin & Moran),
299 NLRB 30 (1990) (union refuses to execute contract on ground that ratifi-
cation procedure not properly followed; violation found).
2 Newtown Corp., 280 NLRB 350, 351 (1986), enfd. 819 F.2d 677 (6th Cir.
1987); Childers Products Co., 276 NLRB 709, 711 (1985); Seneca Environ-
mental Products, 243 NLRB 624 (1979); Consumat Systems, 273 NLRB 410,
413 (1984); Martin J. Barry Co., 241 NLRB 1011 (1979); Mt. Airy Psy-
chiatric Center, 230 NLRB 668, 678–679 (1977); C & W Lektra Bat Co., 209
NLRB 1038 (1974); 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).
3 See J. I. Case Co. v. NLRB, 321 U.S. 332 (1944).
Beatrice/Hunt-Wesson, Inc., Peter Pan Plant and
International Brotherhood of Firemen and Oil-
ers, AFL–CIO. Case 10–CA–23294
March 28, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On September 30, 1988, Administrative Law Judge
Howard I. Grossman issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
CHAIRMAN STEPHENS, concurring.
I join my colleagues in ordering a dismissal of the
complaint but write separately to underscore the sig-
nificance of this decision, and to offer a fuller expli-
cation of why the result here is defensible notwith-
standing the contrary indications of some of the
Board’s precedents. Although the factual pattern is a
familiar one,1 this case appears to be the first instance
in which the Board has excused an employer’s refusal
to execute a bargaining agreement on the ground that
the agreement was not properly ratified by the affected
employees.
I.
Facts were brought to the Respondent’s attention
suggesting that the Union had dispensed with ratifica-
tion by unit employees after the employees, in three
successive votes over several months, rejected the con-
tract. Instead, the Union obtained what it considered to
be adequate ratification from a vote of the union mem-
bers, which actually consisted of just one individual.
The judge found merit in the Employer’s defense that
the Union had not abided by a written memorandum
initialed between the parties’ bargaining representatives
that called for the contract to be ratified by the unit
employees (not just the union members).
On appeal, the General Counsel insists that the
judge’s recommended decision cannot be squared with
a long line of cases in which the Board barred the em-
ployer from objecting to the manner in which a pur-
ported ratification vote was obtained. These cases gen-
erally stand for the principle that the employer cannot
refuse to execute the agreement, once the union com-
municates its unqualified acceptance of the contract re-
gardless of the outcome of the ratification vote.2 This
rule appears to emanate from several policies of the
Act. First, the Act, in bestowing exclusive representa-
tional status to the union, empowers it to enter into
binding labor agreements with an employer. Once
union representatives manifest final assent to a particu-
lar agreement, a binding contract is created and the
parties’ obligation to execute under Section 8(d) arises
without further ado. Because the union is the exclusive
representative, the employer is foreclosed from dealing
directly with employees on an individual basis.3 How-
ever, the issue in turn arises whether the union’s col-
lective power of contractual assent is exercisable by
the union leadership (in conjunction with the nego-
tiators acting as agents), without the formal participa-
tion of the rank-and-file members. In other words, how
democratic must a union be in its decision making?
The Act does not directly answer this question, but set-
tled judicial interpretation of the LMRDA holds that a
union institutionally has the discretion to grant or with-
225BEATRICE/HUNT-WESSON
4 Central States Southeast & Southwest Areas Pension Fund v. Sealtest
Foods, 799 F.2d 1098, 1111 (6th Cir. 1986). Where a union does afford mem-
bers a right to vote for ratification, it must do so in a nondiscriminatory man-
ner. American Postal Workers v. American Postal Workers, 665 F.2d 1096,
1101 (D.C. Cir. 1981).
5 NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958). The frequently cited
circuit authority for this proposition is Houchens Market of Elizabethtown v.
NLRB, 375 F.2d 208, 212 (6th Cir. 1967).
6 M & M Oldsmobile, 156 NLRB 903, 905 (1966), enfd. on other grounds
377 F.2d 712.
7 In the seminal case of North Country Motors, supra, 146 NLRB at 673,
the Board refused to permit the employer to question the manner in which the
union obtained employee ratification of the contract. However, the Board, by
implication, left open the possibility of a different result had there been ‘‘pro-
bative evidence’’ that the union ‘‘had agreed that the [employer] could condi-
tion execution of the contract upon ratification of any sort, [such as] by a ma-
jority or even a representative employee group.’’ The same implication is
found in Houchens Market of Elizabethtown, supra, 155 NLRB 729, 730, enfd.
375 F.2d 208; Newtown Corp., supra, 280 NLRB at 350 (‘‘no evidence . . .
that the proposed contract’s express terms required ratification or that the par-
ties had ever agreed to a ratification requirement’’); C & W Lektra Bat Co.,
supra, 209 NLRB at 1039 (‘‘We require more specific proof . . . of an agree-
ment to make ratification a condition precedent to a collective-bargaining
agreement [citation omitted]. There is no evidence that the parties agreed in
express words to such a condition.’’).
8 See Teamsters Local 100 (Duro Paper Bag), 216 NLRB 1070 (1975),
enfd. 532 F.2d 569, 571 (6th Cir. 1976); Elevator Constructors Local 8 (Na-
tional Elevator), 185 NLRB 769, 773–774 (1970), enfd. 465 F.2d 974 (9th
Cir. 1972). In these cases, the employers found it in their interest to ignore
the fact that ratification was not obtained and successfully obtained enforce-
ment of the contract.
9 241 NLRB 1011, 1013 (1979). Accord: M & M Oldsmobile, supra, 156
NLRB at 905.
hold from members the right to ratify contracts.4 Our
Act does complement this rule to the extent that it gen-
erally does not permit employers to interfere with the
manner in which a union structures its relationship
with its members.5 Just as an employer cannot insist
to impasse on ratification as a term of any bargaining
agreement, the reasoning goes, neither should the em-
ployer be given standing to investigate or to object to
whether a ratification vote was properly conducted. To
hold otherwise, the Board has added, would create the
prospect of ‘‘protracted litigation regarding the union’s
compliance with its own procedures,’’ thereby encour-
aging industrial instability.6
The judge thought that what distinguished the in-
stant case was the fact that the parties had a written
memorandum containing an ‘‘express’’ term calling for
the unit employees—not just union members (which is
typically the voting class)—to ratify the contract be-
fore it became effective. Although the judge’s discus-
sion of the pertinent case law is sparse, the very prece-
dents in which the Board has consistently foreclosed
employers from objecting to the ratification procedure
do posit a distinction that seems to support his conclu-
sion. That distinction is between a ratification require-
ment that the union imposes on itself (typically
through its constitution or bylaws) and one that is in-
corporated in an ‘‘express’’ agreement between a
union and an employer.7
In the case of self-imposed ratification, which prob-
ably describes the prevailing practice, the union during
negotiations announces to the employer the fact that
the union’s internal procedures require the submission
of any eventual agreement to an employee vote. Al-
though an employer may signal its acquiescence to this
procedure, such a response is properly understood as
only a tacit acknowledgement of a precondition that
may have to be satisfied before the contract becomes
finally effective. In other words, the union’s purpose of
notifying the employer is not to secure its assent (or
‘‘express’’ agreement) in the sense of obtaining some
bargained-for consideration from the employer in ex-
change for a binding obligation to hold a ratification
vote in a particularly prescribed manner. Thus, the fact
that ultimately there may be deficiencies or irregular-
ities in the ratification violates no contractual commit-
ment owed to the employer. Indeed, in some cir-
cumstances, under the doctrine of apparent authority,
an employer may even be entitled to rely on the rep-
resentations of union officials that an enforceable con-
tract has been concluded.8 In contrast, an employer
does have a basis to object where there is evidence
that the union voluntarily submitted to negotiation, and
the parties reached ‘‘express’’ agreement on, any of
the details of ratification. Until such time as the union
conducts a ratification vote in accordance with the par-
ties’ agreement, an employer is not obligated under
Section 8(d) to execute the contract.
Although the notion of an ‘‘express’’ ratification
agreement is not hard to comprehend conceptually, I
do not believe that the Board’s opinions have been es-
pecially helpful as analytical tools. In the first place,
the Board has occasionally expressed itself in terms
that on the surface seem illogical. A case in point is
Martin J. Barry Co., in which the Board in explaining
North Country Motors, supra, said:
[A]lthough the union there involved undertook to
achieve ratification of the contract, no requirement
that this occur was ever incorporated into the
written contract. . . .
Furthermore, even if ratification were a pre-
condition, we find that Respondent [employer] has
no standing to question the validity of procedures
used by the Union in ratifying the agreement. It
is well settled that ratification is an internal union
matter which is not subject to question by an em-
ployer.9 [Emphasis added.]
The problem posed by this excerpt, as I see it, is that
the latter paragraph, that unequivocally says that em-
ployers have no standing to challenge a union’s inter-
nal affairs, renders irrelevant any consideration that the
initial paragraph gives to whether the parties have an
‘‘express’’ agreement on ratification. Perhaps it is be-
cause the Board has heretofore not found any ratifica-
tion agreement sufficiently ‘‘express’’ that the Board
has not had occasion to explain how an employer
226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 See Martin J. Barry Co., supra, 241 NLRB at 1012, 1013 and fn. 13;
C & W Lektra Bat Co., supra, 209 NLRB at 1039. The Board’s reasoning in
C & W Lektra Bat suggests that it was strongly influenced by the rule devel-
oped under the Board’s contract-bar doctrine, which governs the processing of
representation petitions. Among the many rules announced in Appalachian
Shale Products Co., 121 NLRB 1160 (1958), was the one pertaining to exe-
cuted contracts that are not yet ratified: Where the written contract does not
expressly include a ratification provision, the contract will nevertheless operate
as a bar; on the other hand, where the written contract does include an express
ratification provision, the contract will not be given bar status until ratification
is concluded. Expediting the election process was the reason for the Board’s
apparent indifference to any understandings that the parties had not incor-
porated in a written document. The Board wanted to avoid the protracted liti-
gation over what the parties had agreed to with respect to ratification. Id. at
1162–1163. However, former Chairman Miller, who dissented in Lektra Bat,
faulted the majority opinion on this point and would have upheld the judge’s
findings that based on the circumstances surrounding the negotiations the par-
ties did have an express, binding understanding regarding ratification.
11 Electrical Workers IBEW Local 1395 v. NLRB, 797 F.2d 1027, 1036
(D.C. Cir. 1986).
12 See Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983).
13 See Teamsters Local 175 v. NLRB, 788 F.2d 27, 31 (D.C. Cir. 1986).
14 That disputes over ratification agreements lend themselves to a waiver
analysis was implicitly demonstrated in Hickory Farms of Ohio, supra, whose
facts are somewhat similar to the instant one. An employer refused to execute
a contract on the ground that the union had not obtained proper ratification.
The employer relied on a clause that it had inserted in the contractual docu-
ment (on the mistaken belief that the union had agreed to it) and that the union
had apparently not noticed. Citing C & W Lektra Bat, supra, as authority for
the ‘‘express’’ agreement rule, the court observed that the requirement of
‘‘‘specific proof’ of ‘an agreement to make ratification a condition precedent
to a collective bargaining agreement’. . . is intended to make the evidentiary
burden of the party in [the respondent employer’s] position more onerous.’’
The court, after analyzing the history of the negotiations, upheld the trial
judge’s factual findings that the union had not really intended that final imple-
mentation of the agreement was conditioned on ratification.
See also Nichols Homeshield, Inc., Amsco Division, NLRB General Counsel
Advice Memo., Case 18–CA–8439, 11 NLRB Adv. Mem. Rptr. Par. 21014,
114 LRRM 1287 (1983), in which the General Counsel dismissed a union
charge against an employer for refusing to execute a contract. The employer
and the union had initially reached agreement on all terms and conditions of
employment, subject to ratification. However, the employer then proposed, and
the union acquiesced in, a revision that called for participation by both union
members and nonmembers in the ratification vote. The General Counsel noted
that because nothing at first was said as to who would participate in the vote,
the issue normally would be an internal matter that the union could resolve
unilaterally. But the General Counsel then concluded that the evidence of a
subsequent agreement on full employee participation was clear enough, and the
employer could refuse to execute as long as ratification was not conducted in
accordance with the parties’ agreement.
15 295 NLRB 626 (1989), petition on review granted sub nom. Toledo Typo-
graphical Union No. 63 v. NLRB, 907 F.2d 1220 (D.C. Cir. 1990).
could ever invoke such an ‘‘express’’ agreement in the
face of a rule that on policy grounds flatly denies
standing to challenge the adequacy of ratification.
Another difficulty posed by some of the cases is
their intimation that nothing short of a formal written
document will fulfill the requirement that a ratification
agreement be ‘‘express.’’10 Of course, in the instant
case, the judge did find that a hand written document,
executed by the bargainers and explicitly stating that
the unit employees must ratify the contract, satisfied
the standard. But as a general matter the notion that
only a written understanding should render employee
ratification a binding, unwaivable precondition to an
employer’s obligation to execute under Section 8(d)
seems at odds with the principles that call for labor
contracts to be interpreted not only by the written word
but also by the negotiations and established practices
that comprise the bargaining history.11 An oral under-
standing can be just as controlling as a written one.
To me, these difficulties that are posed by some of
the precedents may be avoided by recasting the issue
as one involving the voluntary waiver of a union’s
statutory rights—the evidence of which be clear and
unmistakable.12 As noted above, employee ratification
marginally diminishes the statutory rights that Con-
gress has bestowed on unions as exclusive bargaining
representatives both in the negotiation of labor con-
tracts and in the governance of its internal affairs. As
much as employee ratification can promote the virtue
of union democracy and, in particular, can assist a
union in garnering support among rank-and-file mem-
bers for a proposed contract,13 it can operate as a re-
straint on the ability of a union to negotiate terms. A
union may be willing to enter into an agreement that
it believes is in the best, long-term collective interests
of union members but that may not enjoy their imme-
diate, widespread support. For this reason, it is entirely
fitting that the Board insist on clear evidence that a
union has agreed as a contractual matter to surrender
a degree of its prerogatives.
Thus, where a union is not under any preexisting
obligation to its employees to secure ratification, the
inquiry probably is fairly straightforward, because the
parties would not likely bring up the matter unless they
intended to make it a part of the bargain. However,
where a union’s constitution or bylaws impose such an
obligation, the Board’s task is more complicated. For
as noted, any reference to ratification during negotia-
tions may have a more ambiguous import: The union
may be simply informing the employer of the need to
follow the internal procedure as a final step before im-
plementation of the contract; in such a situation it is
normally of no consequence to the employer whether
the procedure is correctly concluded. Or, the parties
may intend that employee ratification is a condition to
be fulfilled in a manner not prescribed by, or at vari-
ance with, the union’s constitution or bylaws. Given
the Board’s extensive experience in adjudicating waiv-
ers of statutory rights, it is certainly not a daunting
task for the Board to determine from the relevant doc-
uments and circumstances attending the negotiations
the extent to which employee ratification became part
of the contractual bargain.14
Waivers of statutory rights, including those involv-
ing the union’s relationship with its members, do not
occur in a vacuum, but can be part and parcel of a
union’s efforts to enhance the well-being of its mem-
bers, financial and otherwise. And the Act grants the
union considerable latitude in ordering its agenda as
well as managing its affairs. Illustrative of this point
is the factual background of Toledo Blade Co.,15 in
which the union had found it advantageous during the
227BEATRICE/HUNT-WESSON
16 296 NLRB 477 (1989).
1 R. Exh. 5. Testimonies of International Representative Eugene E. Heinz
and Union Bargaining Committee Member Myron L. Brown.
period of several contracts to allow the employer to
engage in direct negotiation with unit members over
retirement benefits. Similarly, in Sacramento Union,16
the union and the employer found it mutually advan-
tageous to negotiate an agreement both as to the date
by which employee ratification must take place and as
to the favorable recommendation which the bargaining
committee was to make to the voting employees.
Against this backdrop, if indeed the parties have made
employee ratification a part of the bargain, it is alto-
gether appropriate that the Board give a measure of
protection to the expectancy interests of the parties.
The upshot of today’s decision is that it can no longer
be unqualifiedly said as it was in Martin J. Barry,
supra, that an employer ‘‘has no standing to question’’
the manner in which a union obtains ratification of a
labor agreement.
II.
Application of the foregoing principles to the facts
here warrants dismissal of the complaint, much as the
facts supported dismissal of the charge by the General
Counsel in Nichols Homeshield, supra. The issue of
employee ratification was not just mentioned in pass-
ing by the Union. Because of concerns that the unit
employees might not react favorably to an aspect of
the Union’s wage proposal, the Employer and the
Union discussed the advisability of submitting the con-
tract to a ratification vote of all the unit employees,
not just union members. They agreed to such a proce-
dure, and reviewed the specifics of time and location.
The parties’ negotiating team then drew up and signed
a written agreement memorializing the fact that they
had reached a tentative labor contract that they ‘‘rec-
ommended to . . . members of the bargaining unit for
ratification . . . .’’ Thereafter, the Union made three
unsuccessful efforts to obtain the necessary approval
from the unit employees, before it resorted to a vote
of the sole union member at the plant. Clearly, the par-
ties entered into the type of express agreement under
which the Union had voluntarily waived its right to de-
fine the terms of ratification and adequate compliance
with them. Until such time as the Union fulfilled the
conditions provided in the parties’ written memoran-
dum, the Respondent was not under an obligation to
execute the bargaining contract.
Frank F. Rox Jr., Esq., for the General Counsel.
Thomas A. Sarnecki, Esq., of Fullerton, California, for the
Respondent.
Eugene E. Heinz, of Tampa, Florida, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
original charge was filed on March 15, 1988, by International
Brotherhood of Firemen and Oilers, AFL–CIO (the Union),
and an amended charge on April 15, 1988. Complaint issued
on April 25, 1988, and, as amended at the hearing, alleges
that Beatrice/Hunt-Wesson, Inc. Peter Pan Plant (Respondent
or the Company) violated Section 8(a)(5) of the National
Labor Relations Act (the Act) by refusing to execute a col-
lective-bargaining agreement on which the parties had
agreed, and Section 8(a)(1) of the Act by polling its employ-
ees concerning said agreement and asserted ratification there-
of.
A hearing was held before me on these matters on June
16, 1988, in Albany, Georgia. Thereafter, the General Coun-
sel and the Respondent submitted briefs. On the entire
record, and on my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation with an office and
place of business located at Sylvester, Georgia, where it is
engaged in the production of peanut butter. During the cal-
endar year preceding issuance of the complaint, a representa-
tive period, Respondent sold and shipped from its Sylvester,
Georgia facility finished products valued in excess of
$50,000 directly to customers located outside the State of
Georgia. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The amended pleadings establish that International Broth-
erhood of Firemen and Oilers, AFL–CIO, Local 284, was
certified by the Board on May 18, 1987, as the collective-
bargaining representative of Respondent’s employees in an
appropriate unit. I conclude that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Factual Summary
1. The campaign, the certification, bargaining history,
and tentative agreement
During the Union’s campaign which led to a Board elec-
tion and the Union’s certification, the Union distributed lit-
erature to employees stating that the employees would have
a right to vote on a contract and to decide the contract pro-
posals.1 In the Board election, 49 voters voted in favor of
representation by the Union, and 44 voted against such rep-
resentation. Thereafter, as indicated, the Union was certified
on May 18, 1987.
Contract negotiations began in August with each party rep-
resented by a committee. The principal spokesperson for the
Company was Richard McCall. International President James
228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 R. Exh. 3; G.C. Exh. 5—Appendix A.
3 The memorandum of agreement is dated November 18, 1987, and reads
as follows:
The undersigned committee members unanimously agree to each and
every provision signed by the parties as agreed to during the negotiating
sessions resulting in a completed tentative agreement on November 18,
1987. This agreement is recommended to the management of the Com-
pany and the members of the bargaining unit for ratification as soon as
possible.
The undersigned committee members believe this agreement to be the
best available for each party based upon our proposals, counter-proposals
and compromises as reached through the collective bargaining process.
Signed this 18th day of November 1987 at Albany, GA. [G.C. Exh.
8.]
The word ‘‘unit’’ in the memorandum is written over another word. Ques-
tioned about this, McCall testified that he inadvertently first began to write
the word ‘‘committee’’ (which appears later in the memorandum), and then
corrected this with the word ‘‘unit.’’ McCall’s explanation was not contested,
and I accept it.
4 R. Exh. 2.
5 R. Exh. 1.
Walker was the spokesperson for the Union during the first
two sessions and was later replaced by International Rep-
resentative Eugene E. Heinz.
During the first session, Company Representative McCall
commented on the closeness of the vote, discussed ratifica-
tion of any agreement, and asked International President
Walker whether the Union intended to represent all the em-
ployees in the bargaining unit, including those who had
voted against the Union. Walker assured him that this was
the Union’s intention. He told McCall that the Union would
charter a new local solely for the benefit of Peter Pan em-
ployees, a statement later repeated by Union Representative
Heinz. This position was later abandoned by the Union.
During subsequent meetings, the parties reached agreement
on many terms of an agreement and ‘‘signed off’’ on them.
Discussion of wages centered on the Company’s existing
length-of-service pay premiums. The Company gave employ-
ees a wage increase of 10 cents hourly, which it called a pre-
mium, for every year of employment up to a maximum of
5 years. Company Representative McCall credibly testified
that Union Representative Heinz wanted an increase in the
overall rate structure and that Heinz told McCall that ‘‘the
people’’ would give up length-of-service premiums in return
for an overall wage increase of 3 percent. McCall testified
that he expressed surprise at this proposal because of his be-
lief that, although some employees would receive immediate
wage increases, others would receive less pay because of loss
of their length-of-service premiums. Subsequent to the nego-
tiations, McCall calculated that 2 years after the effective
date of a contract only 8 employees out of 85 would be at
a higher hourly rate than they would have been under the
length-of-service plan. McCall averred that the Company fa-
vored the length-of-service plan because it tended to retain
employees and that he explained his reservations about the
new wage program to Heinz.
McCall testified that final agreement was reached by the
parties after extensive negotiations on November 17. As later
printed, the contract provided for wage increases effective
February 29, 1988, a wage opener 2 years after the effective
date of the contract, elimination of length-of-service pre-
miums, and further provided that no employee’s rate would
exceed that set forth in the contract.2
McCall testified that Union Representative Heinz agreed
that this wage structure would be ‘‘subject to ratification.’’
According to McCall, Heinz also expressed concern about
some of his committee members ‘‘backing water on their
support between that time [November 17] and the ratification
vote.’’ In his testimony, Heinz denied that ratification had
been ‘‘extensively’’ discussed during the November 17 bar-
gaining session but admitted that the Union agreed that the
contract ‘‘would be voted on in the plant conference room,’’
and that the ‘‘ratification vote’’ would take place over a span
of 5 or 6 hours.
Heinz requested that McCall draft a memorandum. Ac-
cording to McCall, it was to reduce to writing ‘‘our agree-
ment to recommend ratification.’’ According to Heinz, it was
to set forth what the parties had done and that this was the
best they could obtain. Further, according to Heinz, the
memorandum ‘‘was to be used as a tool, a selling point to
the employees.’’
At a bargaining session the next day, November 18,
McCall presented to Heinz a memorandum of agreement
which he had written and asked him to review it. Heinz did
so, and all the representatives of the parties signed a docu-
ment which ‘‘recommended to the management of the com-
pany and members of the bargaining unit . . . ratification as
soon as possible.’’3 Although he signed this document, Heinz
denied that he ever agreed to ratification by unit employees
as a condition precedent to a binding contract. In a pretrial
affidavit, Heinz stated that Union Committee Members
Myron Brown and Jimmy Mathis told employees that all em-
ployees who voted in the election could vote on ratification
of a contract. At the hearing, Heinz contended that Brown
and Mathis ‘‘misunderstood’’ eligibility for voting.
On November 25, McCall mailed Heinz a copy of the col-
lective-bargaining agreement in final form. The signature
page of the agreement began as follows: ‘‘This agreement,
having been duly ratified by the bargaining unit, is signed
this lllll day of lllll 1987 by the authorized
representatives of the parties.’’ The document indicates that
its effective date was December 1, 1987, and that it extended
through November 30, 1990. McCall’s cover letter states that
in the event of ‘‘typographical errors obviously the language
agreed upon and signed at the bargaining table will pre-
vail.’’4 McCall mailed copies to the plant for execution, ‘‘as-
suming ratification.’’ Union Representative Heinz testified
that he received the copy from McCall in November, re-
viewed it, and took issue with the phrase on the signature
page, ‘‘having been duly ratified by the bargaining unit.’’
However, Heinz did not bring the matter to McCall’s atten-
tion because, he asserted, McCall’s letter provided for the
correction of ‘‘typographical errors.’’
2. The first ratification vote, November 30
On November 23, Union Representative Heinz mailed a
notice of a vote on the contract to be conducted November
30 in the Company’s conference room between 11 a.m. and
5 p.m. The heading on the notice stated that it was directed
to ‘‘Beatrice/Hunt Wesson, Inc. Employees,’’ while the salu-
tation was addressed to ‘‘Dear Brothers and Sisters.’’5 After
summarizing the provisions of the contract, the notice contin-
ued: ‘‘Now it is up to you, the members, to determine if you
want to accept this tentative contract.’’ Attached to the notice
were union membership and dues application forms; the no-
tice requested employees to sign and return them to Union
229BEATRICE/HUNT-WESSON
6 Id. 7 McCall’s uncontradicted testimony.
Committee Member Myron Brown or to either of two other
union representatives.6 Brown testified that the Union had no
members as of the date of the memorandum of agreement,
12 days before the ratification vote.
Heinz affirmed that he composed and ‘‘submitted the no-
tice through the U.S. mail.’’ He also contended that he could
not recall whether he ‘‘mailed it from Tampa [the Union’s
headquarters] to the employees that had applied for member-
ship or [whether] it was distributed by the bargaining team
members,’’ and did not know who received the notice. In
any event, Heinz asserted, it was his intention that it be dis-
tributed only to applicants for union membership and pointed
to the ‘‘Dear Brothers and Sisters’’ salutation in the notice.
However, Heinz admitted that the union membership and
dues authorization forms attached to the notice were blank
and that the notice was thus directed to employees who had
not signed an application form. Heinz also agreed that none
of the Union’s literature specifies that voting was limited to
union members or member applicants and that he did not so
inform the Company. Union Committee Member Brown tes-
tified that the notice was ‘‘what was presented to the em-
ployees at the Company via the mail.’’ Based on this testi-
mony and Heinz’ admission that it was he who mailed the
notices, I conclude that Heinz mailed copies to all company
employees. Although it is theoretically possible that he
mailed the notices in bulk to the bargaining committee which
in turn distributed them individually, there is no record evi-
dence of this and no indication of it in the testimony of com-
mittee member Brown.
Brown testified that he ‘‘assumed’’ that all employees
could vote on the contract, stated this to employees in the
plant, and so advised Heinz.
Heinz testified that all employees were permitted to vote
on November 30, although the voting was not ‘‘designed’’
that way. He maintained that he and Union Business Agent
Ernest Webb instructed union committee members that only
individuals who had signed union application forms would
be permitted to vote. Heinz contended that he had about 63
union membership applications at that time. However, about
3 months later, on February 28, 1988, the Union assertedly
ratified the contract with only one voter voting on it—the
only one ‘‘permitted’’ to vote according to Heinz. Union
Committee Member Brown asked Business Agent Webb in
February whether the Union could ratify the contract ‘‘with-
out any membership,’’ and Webb replied that it was ‘‘per-
fectly legal.’’ Brown also testified that the Union had no
members at the time of the November 30 vote.
Because of the short time span between the Union’s No-
vember 23 mailing of union application forms and the voting
7 days later, Brown’s testimony that the Union had no mem-
bers on November 30, and the fact that only one voter (union
member or member applicant) was eligible to vote about 3
months later on February 28, I do not credit Heinz’ testi-
mony that he had about 63 member applicants on November
30.
During the polling process on November 30, according to
Heinz, an employee who was opposed to the Union and the
contract demanded the right to vote. In order to avoid ‘‘ani-
mosity,’’ Heinz averred, employees who had not signed
union application forms were allowed to vote. According to
Union Committee Member Brown and Heinz, five or six
copies of the draft agreement prepared by the Company were
on a large table. Heinz testified that he did not advise the
voters about his disagreement with McCall’s language on the
signature page that the contract was subject to ratification by
the bargaining unit.
The result of the voting was 50 votes against the contract
and 24 in favor of it. Union Agents Heinz and Webb walked
into Plant Manager Daniel P. Nolan’s office shortly after 5
p.m. ‘‘Do we have a contract?’’ Nolan asked. ‘‘No, we do
not,’’ Heinz replied. ‘‘I’m very disappointed.’’ He and Webb
then left.
3. The bargaining session on January 6, 1988
Union Representative Heinz and Company Representative
McCall had a telephone conversation after the November 30
vote and decided that another bargaining session would be
advisable with the assistance of a Federal mediator. The
meeting was held on January 6, 1988, and resulted in some
change in the agreement. As noted, the draft presented by the
Company had as its effective date December 1, 1987. Ac-
cording to McCall, the parties agreed on January 6, that the
effective date would be the date of ratification, although
McCall contended that this was not really a change. The con-
tract provided for a wage opener 2 years into the agreement,
and the parties concurred that this would take place 2 years
from date of ratification and suspension of the length-of-serv-
ice premiums. In the event the contract was not ratified by
February 29, 1988, wage adjustments would take place the
first Monday following ratification. McCall pointed out the
advisability of early ratification, because additional employ-
ees were reaching the anniversary dates of their length-of-
service pay increases, and delayed ratification would result in
more of them being subject to a reduction in pay. There was
no discussion of ratification procedure.
McCall again offered the Company’s conference room for
the voting. Heinz declined the offer and left the meeting say-
ing, ‘‘We’ll vote it again, and we’ll do it right this time.’’7
4. The second ratification vote, January 23, 1988
Union Committee Member Brown testified that in early
January 1988, Union Representative Heinz stated that only
employees who had applied for union membership would be
allowed to vote on the contract. Brown received verbal no-
tice of a vote to be conducted in a church in Sylvester on
January 15. Asked who was eligible to vote, Heinz replied
that ‘‘the meeting was scheduled for members only.’’
Brown arrived at the church, but no vote was conducted.
According to Brown, ‘‘a lot of employees were irate [be-
cause] they thought that . . . all hourly employees was [sic]
to be able to vote.’’ Some employees brought circulars dis-
tributed by the Union prior to certification stating that em-
ployees would be allowed to vote on a contract. ‘‘So the
meeting was called off and rescheduled for a later date be-
cause of all the uproar . . .’’ Brown testified.
Brown again received verbal notice of a meeting to be
held at the same church on January 23. He wrote a notice
announcing the location and date, and placed it on the bul-
letin board. Brown testified that ‘‘anyone’’ was allowed to
230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 R. Exh. 4.
9 R. Exh. 6, a cassette.
10 G.C. Exh. 2.
11 Brown testified that he was ‘‘frustrated’’ by the Union’s contention that
ratification had taken place, and believed that he ‘‘was being called a liar.’’
12 Union Committee Member Brown agreed with Nolan’s account, except
that he asserted the third member at the meeting was Company Personnel
Manager Martha McGee. I consider it unnecessary to resolve this difference
between Nolan’s and Brown’s testimonies.
13 G.C. Exh. 3.
14 G.C. Exh. 4.
vote. According to Union Representative Heinz, the vote was
24 to 19 against ratification of the contract.
5. The televised meeting at Knights Inn on February
3, 1988
On January 26, Heinz prepared a notice with the heading
‘‘Attention: Beatrice Hunt/Wesson Union Members’’ and the
salutation, ‘‘Dear Brothers and Sisters.’’ It outlines the con-
tract’s provisions and tells the employees ‘‘who are Dues
Paying Members, to determine if [they] want this contract.’’
The notice describes two meetings to be held on the after-
noon of February 3, at the Knights Inn, a local motel, and
states that ‘‘only dues paying members of the Union will be
permitted to attend.’’8 Heinz asserted that this notice was
mailed to employees who had applied for union membership.
A local television station made a news report on February
3, about events which occurred at the Knights Inn. The re-
port stated that about 30 company employees protested the
meeting, claiming that it was a secret union meeting to vote
on a contract which the employees had twice voted down.
One employee appeared on camera and stated that she was
not allowed in the door unless she paid $13.50. Union Rep-
resentative Heinz was televised and denied that any vote was
being conducted.9 Heinz testified to the same effect at the
hearing and asserted that the purpose of the meeting was to
solicit union membership applications and ‘‘discuss the ten-
tative agreement.’’
6. The Union’s acceptance of the contract
Union Representative Heinz testified that a vote on the
contract was held on February 28, and that it was approved.
As previously indicated, only one vote was recorded because,
according to Heinz, ‘‘Those were the only members we had
that were permitted to vote.’’ There were 96 employees in
the bargaining unit according to Heinz.
Union Committee Member Brown did not vote. Heinz tes-
tified that Brown told him that ‘‘he wanted to vote for the
contract [and] wanted it signed, and wanted to be a union
member.’’ Brown testified that he was not asked whether he
wanted to accept the contract—Business Agent Webb told
him that the Union had already accepted it. Asked whether
he had any objections, Brown replied to Webb that he had
none. As noted, he asked whether the Union could accept the
contract ‘‘without any membership.’’ ‘‘Sure,’’ Webb replied,
‘‘We can do that without any membership. That’s no prob-
lem. We’re perfectly legal and within our rights to do that.’’
On the following day, February 29, Union Representative
Heinz sent Company Representative McCall the following
telegram:
THIS IS TO ADVISE YOU THE TENTATIVE COLLECTIVE
BARGAINING AGREEMENT AGREED UPON ON JANUARY 6,
1988 COVERING EMPLOYEES EMPLOYED IN YOUR SYL-
VESTER, GEORGIA OPERATION IS ACCEPTED AND AP-
PROVED. KINDLY SEND ALONG TO ME THE FINAL DRAFT
FOR SIGNATURE AS SOON AS POSSIBLE.10
Company Representative McCall had seen on February 22
a copy of the Knights Inn televised newscast. He testified
that it ‘‘concerned’’ him, because it was ‘‘the first concrete
evidence [of] an attempt at something other than ratification
by members of the bargaining unit at large.’’ He placed a
call to Heinz on February 26, and received a return call on
February 29. McCall started discussing the effect of not hav-
ing an agreement by February 29. Heinz replied that they
had ‘‘a deal,’’ and read the telegram which McCall had not
received. He replied that he was ‘‘anxiously’’ awaiting its ar-
rival. When the telegram was delivered, according to McCall,
he was surprised at the absence of any reference to ratifica-
tion.
McCall then placed a call to Plant Manager Nolan and
asked whether he was aware of any ratification of the con-
tract. On receipt of Nolan’s advice that he had no such
knowledge, McCall instructed Nolan to ‘‘verify’’ with mem-
bers of the bargaining committee whether ratification had
taken place. Nolan called three individuals into his office,
read Heinz’ telegram to them, and asked whether a ratifica-
tion vote had taken place. Union Representative Myron
Brown said that none had taken place as far as he knew,11
while Wendell Henderson said nothing. The third union rep-
resentative, according to Nolan, was Jimmy Mathis, who
contended that there was no legal requirement that the Union
conduct a vote.12
Nolan called McCall and notified him that no ratification
had taken place as far as he could determine. On March 1,
1988, McCall sent the following telegram to Heinz:
YOUR TELEGRAM OF FEBRUARY 29, 1988 MAKES NO REF-
ERENCE TO RATIFICATION. THE TENTATIVE AGREEMENT
IS CONTINGENT UPON RATIFICATION BY MEMBERS OF
THE BARGAINING UNIT (SEE MEMORANDUM OF AGREE-
MENT DATED NOVEMBER 18, 1987). THE AGREEMENT
FOLLOWING THE JANUARY 6, 1988 MEETING WAS TO BE
EFFECTIVE ‘‘FROM THE DATE OF RATIFICATION FOR A
THREE YEAR PERIOD.’’ ANY APPLICABLE WAGE IN-
CREASE WAS TO BE EFFECTIVE THE MONDAY AFTER
RATIFICATION IF THE RATIFICATION WAS ON OR AFTER
FEBRUARY 29, 1988. BASED UPON LOCAL MEDIA COV-
ERAGE ETC., THE COMPANY DOUBTS RATIFICATION HAS
BEEN COMPLETED. PLEASE ADVISE THE DATE OF RATIFI-
CATION AND NUMBER OF VOTES FOR AND AGAINST.13
7. Respondent’s polling of its employees
On March 8, 1988, Heinz mailed McCall a letter with two
copies of the Union’s version of the final agreement signed
by the Union’s representatives. The letter asserted that Feb-
ruary 28, 1988, was the effective date of the agreement since
it was ‘‘the date of ratification and approval.’’14 Heinz made
several changes in the agreement—numbering of the sec-
tions, language changes which did not alter meaning, and
dates predicated on a February 28 effective date of the con-
231BEATRICE/HUNT-WESSON
15 G.C. Exh. 1(c).
16 G.C. Exh. 6.
17 G.C. Br. 4.
tract. The signature page is different from that in the draft
submitted by McCall, and omits any reference to ratification
by the bargaining unit. According to Heinz, neither party
submitted a draft of a signature page and he ‘‘took the lib-
erty’’ of inserting this page. Heinz stated that he had author-
ity to make this change because McCall’s cover letter with
his draft permitted correction of ‘‘typographical errors.’’
McCall noted the omission on receipt of the letter and tes-
tified that he had ‘‘considerable doubt’’ that ratification had
taken place because of his viewing of the Knights Inn tele-
vision tape and the report from Plant Manager Nolan that no
ratification vote had been conducted. He believed the Com-
pany to have ‘‘three options,’’ all of which were ‘‘unten-
able.’’ If it executed the contract and no ratification had
taken place, McCall thought that the Company might be lia-
ble to the employees under various legal theories. If the
Company did not execute the contract and ratification had in-
deed taken place, then the Company might be committing an
unfair labor practice. Or, McCall continued, the Company
could do nothing ‘‘at its peril.’’
Considering this ‘‘potential exposure,’’ McCall decided to
poll the employees and secured the approval of his superior.
He prepared two forms for the polling. The first one was en-
titled ‘‘Verification of Ratification,’’ and asks two ques-
tions—whether the voter was notified of and participated in
a ratification vote on February 28, 1988. The second form
is entitled ‘‘Secret Ballot—Straw Poll on Ratification,’’ and
asks whether the voter ‘‘approve[s] of and want[s] to work
under the tentative agreeement recommended . . . by the
Union leadership.’’ Each question on both forms is followed
by ‘‘Yes’’ and ‘‘No’’ boxes.15 McCall testified that he se-
lected the language on the secret ballot because of employee
questions to supervisors concerning union membership and
the coverage of any union contract. McCall transmitted the
forms and instructions to Plant Manager Nolan.
Nolan directed supervisors to have the employees report to
the lunchroom on March 11. There were two meetings, the
first at 6 a.m. for the first and third shifts, and the second
at 4:30 p.m. for the second shift. Members of the Union’s
bargaining team were present. Nolan informed employees
that he would like to discuss the status of the Union and had
a question. He read to the employees the exchange of letters
and telegrams between the parties and the memorandum of
agreement and stated that the Company had some doubt as
to whether ratification had taken place. Nolan read the ver-
ification form aloud and passed out copies together with pen-
cils. He informed the employees that their cooperation was
‘‘strictly voluntary,’’ and asked them to indicate their name
and the date of the poll.
Nolan collected the forms with the assistance of Personnel
Manager McGee and placed them on a table. He then read
the secret-ballot form, said that there was a box in the front
of the room, stated that he did not want to ‘‘coerce or intimi-
date’’ anybody, and left the room while the employees filled
out the secret ballot. Nolan did not discuss union matters or
offer employees an opportunity to ask any questions. He did
not voluntarily disclose the poll results to the union commit-
tee members but did not refuse to supply any information.
Union Committee Member Myron Brown corroborated
Nolan’s testimony. Although Brown had signed the contract
draft submitted by Heinz to McCall, he did not complete a
ballot on the contract because of his ‘‘frustration’’ with the
Union’s report that ratification had taken place.
On the day of the poll, March 11, McCall called Heinz
and sent him the following telegram:
INDEPENDENT VERIFICATION REVEALS NO RATIFICATION
BY ‘‘THE MEMBERS OF THE BARGAINING UNIT.’’ OUR
AGREEMENT REMAINS TENTATIVE SUBJECT TO RATIFICA-
TION BY THE MEMBERS OF THE BARGAINING UNIT. A
STRAW POLL EFFORT TO VERIFY YOUR CLAIM OF RATI-
FICATION OF THE TENTATIVE AGREEMENT RESULTED IN
A VOTE OF 64 NO AND 6 YES.16
As indicated, 4 days later, the Union filed the initial charge
in this proceeding.
B. Legal Analysis and Conclusions
1. The alleged violation of Section 8(a)(5)
The complaint alleges that Respondent violated the Act by
refusing to execute a collective-bargaining agreement on
which the parties had agreed. The evidence shows that the
parties had agreed on a ‘‘tentative’’ contract. The principal
issue is whether they also agreed that ratification by the
members of the bargaining unit was a condition precedent to
a binding contract. It is well established that such a condition
is a nonmandatory subject of bargaining.
The first problem is interpretation of the memorandum of
understanding executed by the parties on November 18,
1987. To start with the language of the memorandum itself,
the representatives of the parties ‘‘recommended’’ a ‘‘com-
pleted tentative agreement’’ to the management of the Com-
pany ‘‘and the members of the bargaining unit for ratification
as soon as possible.’’ The General Counsel argues that this
does not constitute an agreement that such ratification was a
condition precedent to a binding contract. Although the
memorandum’s reference to ‘‘members of the bargaining
unit’’ seems clear, the General Counsel argues that the
memorandum was ‘‘essentially a side agreement outside the
four corners of the contract,’’ and that it merely ‘‘rec-
ommends’’ acceptance of the negotiated contract. Surely, the
General Counsel argues, the parties did not intend manage-
ment to vote in a union ratification process. Had the parties
intended to make the contract contingent on ratification by
unit employees, the contract would have so stated.17
The issue divides into two separate questions. Was ratifi-
cation or approval by anybody a condition precedent to a
binding agreement? If so, by whom? With respect to the first
question, the use of the word ‘‘tentative’’ to describe the
contract in the memorandum of agreement suggests that the
contract was not binding, although it was in ‘‘completed’’
form. Extrinsic evidence supports this inference. May such
evidence be relied on in order to interpret the contract? On
this question, the following language of the Court of Appeals
for the Fifth Circuit is relevant:
Admission of extrinsic evidence to resolve an ambigu-
ity is proper in interpreting any contract. Moreover, as
noted above, rules governing the interpretation of ordi-
232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Bronson Methodist Hospital, 223 NLRB 95, 98 (1976).
19 Laborers Local 304, 228 NLRB 247, 248 (1977).
20 Sunderland’s, Inc., 194 NLRB 118 (1971).
nary contracts are not strictly applicable to collective
bargaining agreements. Rigid restrictions on the admis-
sion of parol evidence in this context are inappropriate
[authorities cited]. [NLRB v. L. B. Priester & Son, Inc.,
669 F.2d 355, 365 (5th Cir. 1982), enfg. 252 NLRB
236 (1980).]
The first extrinsic evidence in support of a finding that the
parties intended ratification or approval by somebody as a
condition precedent to a binding contract is the fact that the
Union submitted the contract to a ‘‘vote’’ on three occasions,
refrained from accepting the contract after two unfavorable
votes, and did not accept it until a favorable vote had been
obtained (one vote on February 28, 1988). If the Union had
not intended ratification or approval by somebody as a condi-
tion precedent to a binding agreement, then its repeated sub-
mission of the contract to a vote constituted meaningless ac-
tivity resulting in undue delay. Further extrinsic evidence that
this was the Union’s intention is its notice on November 23,
1987, announcing a vote on November 30—‘‘Now it is up
to you, the members, to determine if you want to accept this
tentative contract.’’ Again, on January 26, 1988, the Union
announced a meeting on February 3 ‘‘to determine if [union
members] want this contract.’’
The fact that the Company, the other party to the contract,
intended the same thing is shown by the signature page on
Respondent’s November 25 draft copy of the contract with
its inclusion of the phrase, ‘‘having been duly ratified by the
bargaining unit . . . .’’ Union agreement with this interpre-
tation is further shown by the fact that it did not dispute this
asserted requirement at the time of receipt of the Company’s
draft, made copies thereof available to employees who par-
ticipated in the November 30 vote without expressing dis-
agreement, and eliminated but did not expressly disavow the
clause in its late February acceptance of the contract. Union
Representative Heinz’ contention that the Company’s inclu-
sion of the phrase was a mere ‘‘typographical error’’ has no
merit.
As noted, the effective date of the contract in the Compa-
ny’s draft was December 1, 1987. After the rejection of the
contract in the November 30 vote, the parties on January 6,
1988, agreed to change the date of the wage reopener to read
2 years after the date of ratification, thus indicating the deter-
minative effect of ratification on one of the terms of the con-
tract. As indicated, the Union on March 8, 1988, eliminated
from its draft of the contract reference to its having been
‘‘ratified by the bargaining unit.’’ However, in the cover let-
ter accompanying the Union’s draft, it told the Company that
February 28, 1988, was the effective date of the contract
since it was ‘‘the date of ratification and approval.’’
With respect to the identity of those individuals the parties
intended to ratify the contract, the memorandum of agree-
ment’s language is clear—‘‘the members of the bargaining
unit.’’ That this language unambiguously expressed the
agreement of the parties is manifested by the fact that the
Union mailed notices of the November 30 vote to all bar-
gaining unit employees, and thereafter allowed them to vote.
Union Representative Heinz’ asserted ‘‘intention’’ to allow
only union members or member applicants to vote is insuffi-
cient to negate this inference—there were no union members
on November 30 and no credible evidence that there were
any applicants for membership.
It is apparent that Heinz became disenchanted with the
agreed-on electorate of bargaining unit members after the ad-
verse vote on November 30, and attempted to restrict voting
to union members on January 15, 1988. When this was can-
celed because of an ‘‘uproar,’’ the Union again permitted
voting by unit employees on January 23, and the vote was
still against ratification.
Finally, the Union’s intention to require ratification by bar-
gaining unit members is manifested by its distribution of
precertification literature to employees stating that they could
vote on a contract; by Heinz’ concern about lack of support
for his wage proposal and his statement, on signing the
memorandum of agreement that it would be used as ‘‘a tool,
a selling point to the employees;’’ and by the actions of
Union Representatives Brown and Mathis in telling employ-
ees that all those who voted in the election could vote on
ratification of a contract. The final asserted ratification on
February 28 by one ‘‘eligible’’ voter in a unit of 96 employ-
ees may appropriately be characterized as a distortion of the
manifested intention of the parties.
The Board has concluded that the parties intended to con-
dition final agreement on approval by other persons based on
evidence less substantial than that herein—where the em-
ployer’s representative stated at the outset of negotiations
that any negotiated agreement had to be approved by the em-
ployer’s board of trustees;18 where one party stated that
‘‘[t]hey would take the contract back for ratification and we
would do the same;’’19 and where the employer’s apparent
acceptance of a union offer was withdrawn prior to union
ratification of the contract, which was found from the bar-
gaining history to be a condition precedent to a final agree-
ment.20
The Board has had occasion to interpret contractual lan-
guage similar to that contained in the memorandum of agree-
ment. The final paragraph in that contract stated that the
members of the union committee were ‘‘pledged to rec-
ommend this agreement for ratification by the membership
. . . .’’ Thereafter, the Board found that ‘‘the employees
voted against ratification of the terms set forth in the instru-
ment.’’ Merico, Inc., 207 NLRB 101 (1973). In its analysis,
the Board stated as follows:
The use of this somewhat unusual legend raises the
question of whether the signatures of the Union Com-
mittee on this document reflect an intent by them to
bind the employees to the substantive terms in the in-
strument, irrespective of whether the employees subse-
quently ratified it. Our examination of the entire docu-
ment, particularly the above-quoted paragraphs and
apart from any parole evidence, clearly reveals that the
Union Committee’s action in signing the document was
qualified by the phrase that they were unanimous ‘‘for
acceptance’’ and each member is ‘‘pledged to rec-
ommend this agreement for ratification by the member-
ship.’’ The use of the phrase ‘‘for acceptance’’ in this
context indicates to us that although the terms were ac-
ceptable to the Union Committee, it was not purporting
to accept them unconditionally on behalf of the em-
ployees. While the condition of ratification could have
233BEATRICE/HUNT-WESSON
21 The fact that the Board’s interpretation of the contract in Merico was the
result of a contract-bar issue is irrelevant.
22 Restatement 2d Contracts Vol. 2, §§ 202, 226.
23 The Board in Newtown also rejected the employer’s arguments based on
the union’s constitution and bylaws—considerations which are not relevant in
this case.
24 G.C. Br. 6.
25 Alexander Linn Hospital Assn., 288 NLRB 103, 106 (1988).
been more artfully drawn, we conclude that, as a matter
of contract interpretation, the signatures of the Union
Committee reflected merely ‘‘a signed agreement to
pledge the Committee’s support for ratification of the
agreement,’’ and did not evidence a binding contract
absent employee ratification. [Id.]21
The only substantial difference between the contract lan-
guage in Merico and that in the memorandum of agreement
herein is that in Merico it was stated in the contract whereas
the memorandum of agreement was set forth in a separate
document. This is a meaningless distinction, however, since
the intention of the parties is equally manifested by the lan-
guage to which they affixed their signatures, and ‘‘all
writings that are part of the same transaction are interpreted
together.’’22
The General Counsel cites Newtown Corp., 280 NLRB
350 (1986), where the employer contended that, by the
union’s deciding to take the employer’s final proposal to a
bargaining unit membership vote, it had thereby made the
agreement’s effectiveness contingent upon the unit members’
ratification. The Board rejected this argument and noted that
‘‘[t]here is no evidence of allegations in the record that the
proposed contract’s express terms required ratification or that
the parties had ever agreed to a ratification requirement’’
(id.). This case is inapposite because the parties herein did
agree to a ratification requirement for the reasons set forth
above.23
I therefore conclude that the parties herein agreed that rati-
fication of the tentative agreement by the members of the
bargaining unit was a condition precedent to a final and
binding contract. Inasmuch as such ratification did not take
place, the agreement never came into existence. Accordingly,
Respondent did not violate the Act by refusing to execute it.
I shall therefore recommend that this allegation of the com-
plaint be dismissed.
2. The alleged unlawful polling of employees
The complaint alleges that Respondent, by polling its em-
ployees, thereby bypassed the Union and dealt directly with
its employees. As set forth above, on November 18, 1987,
the parties reached tentative agreement on a contract subject
to ratification by the employees in the bargaining unit.
Thereafter, the employees twice rejected the contract and the
Union issued a notice of a meeting to be attended only by
dues-paying members of the Union ‘‘to determine if [they]
want this contract.’’ A televised newscast reported employee
protests at this meeting, the Union denied that a vote was
being conducted, and Respondent saw copies of the televised
newscast. The contract was accepted on February 28, by one
vote, cast by the only voter ‘‘permitted’’ to vote according
to the Union. There were about 96 employees in the bargain-
ing unit at that time. On receipt of advice from the Union
that the contract had been ‘‘accepted and approved,’’ Re-
spondent conducted the poll described above.
The General Counsel argues that the language of the polls
‘‘goes far beyond asking if ratification occurred.’’ By asking
the employees whether they wanted to work under the con-
tract, Respondent was impermissibly seeking to determine
employee sentiment regarding the contract.24
The General Counsel cites Obie Pacific, Inc., 196 NLRB
458 (1972). In that case, a successor employer assumed an
existing contract containing a provision requiring two em-
ployees in a particular job. Efforts by the predecessor to
eliminate this provision had been unsuccessful, and the suc-
cessor stated its intent to do ‘‘anything’’ to eliminate the pro-
vision. After the takeover, the successor discharged the union
president for asserted business reasons, and thereafter polled
the employees affected by the contractual provision. The pur-
pose of the poll was to obtain the opinion of the employees
as a basis for subsequent efforts to obtain modification of the
clause from the union. The Board held that the employer had
interfered with the ‘‘exclusivity of the Union’s agency,’’ stat-
ing as follows:
Respondent’s obligation to bargain with the employee’s
exclusive agent demands that he accept and respect the
exclusivity of that agency. While, under appropriate cir-
cumstances, an employer may communicate to employ-
ees the reasons for his actions and even for his bargain-
ing objective, he may not seek to determine for himself
the degree of support, or lack thereof, which exists for
the stated position of the employee’s bargaining agent.
If we were to sanction such efforts, we would impede
effective bargaining. [Id., 196 NLRB at 459.]
The Board applied the principles of Obie Pacific in a re-
cent case where a successor employer declined to respond to
union suggestions for a new agreement, and then polled its
employees on their views concerning certain employee bene-
fits which the union had previously attempted to obtain. In
concluding that this was unlawful, the Board relied on the
timing of the employer’s actions, noting that it attempted ‘‘to
ascertain employee opinion prior to the bargaining—a job
that belonged to the Union.’’25
However, the Board distinguished Obie Pacific in another
recent case where the employer had conducted a wage and
benefit survey among its employees. In holding to this to be
lawful, the Board stated as follows:
Obie Pacific, Inc. . . . and the other cases cited by the
judge in support of a finding of a violation here in-
volved surveys conducted during or immediately pre-
ceding negotiations in which employees were ques-
tioned about specific contract proposals to be raised
during negotiations. In those cases, the employers vio-
lated their obligation to bargain with their employees’
exclusive bargaining representative because they sought
to determine for themselves the extent of employee
support for positions espoused by the union. Here, the
evidence shows that the Respondent’s purpose in con-
ducting the survey was merely to determine whether its
personnel policies and benefit programs were being
234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 United Technologies Corp., 274 NLRB 1069, 1071 (1985).
27 Boaz Carpet Yarns, 280 NLRB 40, 45 (1986).
28 Leland Stanford Jr. University, 240 NLRB 1138 fn. 1 (1979).
29 Continental Oil Co., 194 NLRB 126, 131 (1971).
30 Boaz Carpet Yarns, supra at 45.
31 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 objec-
tions to them shall be deemed waived for all purposes.
properly communicated to its most recently hired em-
ployees.26
In another case, the employer assumed a bargaining obli-
gation which had been established with respect to a prede-
cessor. After the beginning of negotiations, a majority of the
employer’s employees presented it with a petition stating that
they did not wish to be represented by the union. Thereafter,
the employer filed an election petition, the union filed unfair
labor practice charges, and the Regional Director dismissed
the election petition subject to reinstatement. The employer
then posted two notices, the latter of which announced a se-
cret-ballot election. No notice was given to the union. There
were two blank ballots and 30 employees voted for the union
while 97 voted against continued representation. The General
Counsel contended that the poll violated the Act because the
employer did not notify the union. In denying this conten-
tion, the Board stated as follows:
The poll was conducted as a result of the presentation
of a petition disavowing the Union signed by an over-
whelming majority of employees. Thus, the Respondent
possessed an independent, objective basis for polling its
employees. Moreover, the record establishes that the
Respondent verified the Union’s continuing majority
status without infringing upon the employees’ Section
7 rights. The poll was conducted to ascertain the truth
of the employees’ own claim of loss of majority status,
i.e., their 4 June petition, and this purpose was commu-
nicated to them in the 25 July announcement. That an-
nouncement assured employees there would be no re-
prisal regardless of the outcome of the poll, and it was
conducted by secret ballot. . . . [U]nder the cir-
cumstances, we find that the failure to notify the Union
that the poll would be conducted had a de minimis im-
pact, if at all, on the conduct of the poll. The poll was
fairly conducted, and the employees’ dissatisfaction
with representation is not attributable to any unlawful
conduct of the Respondent. The processing of the Re-
spondent’s petition placed the Union on notice gen-
erally of the employees’ dissatisfaction at least a month
before the poll took place. For the foregoing reasons,
we conclude that the poll conducted by the Respondent
did not violate the Act.27
The Board has also declined to find polling unlawful when
its timing did not suggest that it was intended to undermine
the union,28 and where it was in furtherance of bargaining
rather than intended to bypass the union.29
In this case, there is no evidence that the Respondent at-
tempted to undermine the Union. It did not ask employees
their views on various positions prior to or during bargain-
ing. The bargaining had been completed, and all Respondent
was attempting to ascertain was whether the condition prece-
dent to the existence of an agreement had taken place. There
was nothing coercive about the poll. Although employees
were asked voluntarily to sign the form concerning ratifica-
tion and the employee’s participation therein, this was infor-
mation needed by Respondent because of the contractual re-
quirement that ratification be made by bargaining unit em-
ployees. When the second poll was being conducted on the
question of whether the employees wanted to work under the
tentative agreement, Respondent’s representative absented
himself and the employees’ ballots were placed in a ballot
box. The General Counsel’s argument that Respondent by the
second poll was unlawfully seeking to determine employee
sentiment regarding the contract has no merit. Respondent
was obligated to execute the tentative agreement if it was
ratified by the employees in the bargaining unit. How else
could it determine the answer to this question without asking
the employees? The Company had asked this information
from the Union and had received no meaningful reply.
The Union’s signing of the memorandum of agreement
provided it with notice of the necessity of employee ratifica-
tion, and it had already attempted to obtain this approval
without success. Respondent, after the failure of the Union
to provide the Company with adequate notice of ratification,
conducted its own secret poll in a noncoercive manner at a
meeting at which members of the bargaining unit were
present. The results of the poll were consistent with the re-
sults the Union had obtained in its own polls. Since a major-
ity of employees still opposed the contract, it did not come
into existence. In these circumstances, Respondent’s failure
to give formal notice of the poll to the Union had, at most,
a ‘‘de minimis impact . . . on the conduct of the poll.’’30
I conclude that Respondent was entitled to determine its
legal obligations with respect to the tentative agreement, that
its polling subsequent to bargaining about the ratification
issue did not undermine or bypass the Union, and that it did
not thereby interfere with its employees’ Section 7 rights.
Accordingly, I shall recommend that this allegation of the
complaint be dismissed.
In accordance with my findings above, and on the entire
record, I make the following
CONCLUSIONS OF LAW
1. The Respondent, Beatrice/Hunt-Wesson, Inc., Peter Pan
Plant is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. International Brotherhood of Firemen and Oilers, AFL–
CIO is a labor organization within the meaning of Section
2(5) of the Act.
3. The Respondent has not violated the Act as alleged by
the complaint herein.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended31
ORDER
The complaint is dismissed in its entirety.