Furniture Workers Local 36 (Telescope Furniture)

National Labor Relations Board - Board Decisions

Oct 15, 1986

281 N.L.R.B. 1263 (N.L.R.B. 1986)

FURNITURE WORKERS LOCAL 36 (TELESCOPE FURNITURE)
United Furniture Workers of America , AFL-CIO,
Local No . 36 and The Telescope Folding Furni-
ture Co ., Inc. Case 3-CB-4800
15 October 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 30 June 1986 Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the Charging Party filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 1 and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, United Furniture Workers of America,
AFL-CIO, Local No. 36, its officers, agents, and
representatives, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 1.
"1. Cease and desist from
"(a) Failing and refusing to bargain collectively
with the Telescope Folding Furniture Co., Inc., by
refusing to sign the collective -bargaining agreement
notified by its members on 15 September 1986.
"(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
administrative law judge.
' 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
P We shall modify the recommended Order and issue a new notice to
conform the injunctive language to that customarily used by the Board.
APPENDIX
1263
NOTICE To MEMBERS
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
the Telescope Folding Furniture Co., Inc ., by re-
fusing to sign the collective -bargaining agreement
ratified by our members on 15 September 1985.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request of the Telescope Folding
Furniture Co., Inc ., execute the contract ratified by
our members on 15 September 1985 and tendered
to us by the Company on 11 October 1985 and,
upon such execution , deliver a signed copy thereof
to the Company.
UNITED FURNITURE WORKERS OF
AMERICA, AFL-CIO, LOCAL No. 36
Robert A. Ellison, Esq., for the General Counsel.
William J. Dreyer, Esq. (Harvey, Harvey, Mumford and
Kingsley), for the Respondent.
Richard C. Heffern, Esq., (Bond, Schoeneck & King), for
the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLowrTz, Administrative Law Judge. This
case was tried before me in Queensbury and Albany,
New York , on 23 and 24 January and 13 and 14 Febru-
ary 1986 . The complaint herein , which issued on 26 No-
vember 19851 and was based on an unfair labor practice
charge filed on 11 October by the Telescope Folding
Furniture Co ., Inc. (the Company), alleges that United
Furniture Workers of America, AFL-CIO, Local No. 36
(Respondent), violated Section 8(b)(3) of the Act by fail-
ing and refusing to execute a written agreement embody-
ing the terms of a collective-bargaining agreement
agreed to by Respondent and the Company. On the
entire record , including my observation of the demeanor
of the witnesses, and after consideration of the briefs
filed by all the parties, I make the following
I Unless indicated otherwise , all dates referred to herein are for the
year 1985.
281 NLRB No. 166
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
There being no dispute, I find that the Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that Respondent is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE FACTS
A. Negotiations
The Company has recognized Respondent as the rep-
resentative of its production employees for approximate-
ly 40 years; during that period they have been parties to
successive collective-bargaining agreements , the most
recent of which was effective for the period 16 Septem-
ber 1982 through 15 September 1985. Article 38 of this
agreement provided:
ARTICLE 38.-TERMINATION AND
REOPENING
(a) This Agreement shall become effective the
16th day of September, 1982 and shall continue in
full force and effect until midnight September 15,
1985 except as herein-after provided.
(b) This Agreement may be reopened annually by
either party for the purpose of negotiating the cost
of living allowance (Article 13), Pension (Article
31), Insurance (Article 33), incentive base rates and
day work rates including the day work rates set
forth in Article 6.12, 14.1, 14.2(a), 14.3, 14.4(d), 14.8
and 15.16(a), provided either party shall notify the
other party in writing not more than ninety days or
less than sixty days prior to September 15, 1983 and
September 15, 1984. It is agreed that any disagree-
ment that arises during either of these reopenings
shall not be subject to arbitration.
(c) The remainder of this Agreement including
any agreement reached during each reopening shall
remain in full force and effect until September 15,
1985 and for successive yearly periods thereafter
(September 16 to September 15), unless either party
notifies the other in writing not more than ninety
days or less than sixty days prior to September 15
of any year of its desire to either terminate, change
or modify the terms of this Agreement. In the event
of such notice the parties agree to confer with each
other. The party giving the notice shall submit to
the other party its desired changes at least ten days
prior to the first conference. Questions arising upon
such termination or change shall not be subject to
arbitration.
(d) It is hereby agreed that the no-strike clause
set forth in this Agreement shall be waived and in-
operative during each reopening for those matters
referred to above in subparagraph (b) until a settle-
ment is reached between the parties. Thereafter the
no-strike clause shall become operative and contin-
ue in full force and effect.
The prior collective-bargaining agreement between the
parties was also of a 3-year duration, but contained no
reopener. Pursuant to this provision, the Company
timely notified Respondent of a request to reopen the
agreement, and after negotiations, on 12 October 1983,
the parties entered into the following "Memorandum of
Agreement ," which maintained wage levels at status quo,
maintained the cost-of-living allowance for the remaining
2 years, and provided:
The Telescope Folding Furniture Co., Inc. and
United Furniture Workers of America, AFL-CIO,
Local No. 36 having conducted negotiations pursu-
ant to Article 38(b) (Termination and Reopening) of
the 1982-1985 collective bargaining agreement have
reached agreement as follows:
All provisions of the 1982-1985 collective bar-
gaining agreement will remain the same except
Article 38 (Expiration Date) will be substituted
for Article 38 (Termination and Reopening):
"Article 38 (Expiration Date)
This contract shall become effective on the 16th
day of September, 1983 and shall continue in full
force and effect until midnight on September 15,
1985 and for successive yearly periods thereafter
(September 16th through September 15th) unless
either party notifies the other in writing on or
before the 15th day of July in the last year of
such term of its desire to either terminate or
change this Agreement. In the event of such
notice of change or termination by either of the
parties, the Agreement shall terminate as of the
following 15th day of September. In the event of
such a notice, the parties agree to confer with
each other, provided, however, that the party
giving the notice shall submit to the other party
its desired changes at least ten (10) days prior to
first conference. Questions arising upon such ter-
mination or change shall not be subject to arbi-
tration."
On 3 July the Company submitted to Respondent a list
of changes it desired in numerous provisions of the exist-
ing collective-bargaining agreement between the parties.2
The first negotiating session occurred on 18 July. At this
meeting , ground rules and future dates, rather than sub-
stantive issues, were discussed. Attending this meeting,
and those that followed, were Richard Heffern, attorney
for the Company; Katherine Cosey, personnel manager
for the Company; Richard Vladyka, chief industrial engi-
neer for the Company; Kevin Glasier, an employee of
the Company, Respondent's chief spokesperson during
the negotiations, and a member of Respondent's negotiat-
ing committee since 1976 ; International Representatives
Keith Sweeney and Peter Manzo; and members of Re-
spondent's negotiating committee including Warren
2 The substance of the proposals, counterproposals , and meetings be-
tween the parties will be described and discussed below under the indi-
vidual articles
FURNITURE WORKERS LOCAL 36 (TELESCOPE FURNITURE)
Straw, Respondent's president. At the next meeting on
24 July, Respondent gave the Company its proposals.
The remainder of the meeting involved a reading of the
proposals. The parties met again on 15 August; at this
meeting Respondent gave the Company a list of modifi-
cations of its earlier proposals and the Company gave
Respondent a counterproposal on the grievance proce-
dure. There was some discussion of the issues. The next
meeting occurred on 16 August. Respondent gave the
Company a proposal regarding powder coat department
employees and there was discussion regarding this and
floor workers' bonus system. No agreements were
reached. The next meeting took place on 29 August; at
this meeting the Company gave Respondent a proposal
regarding the transfer of employees to the powder coat
department while Respondent gave the Company a sum-
mary of its proposals on all (or almost all) the contract's
terms . In addition to other discussions, Respondent re-
quested a memorandum that the Company would install
a ceiling fan in the Bogucki department; the Company
agreed to provide such a memorandum and that was the
only agreement reached that day. At this meeting Re-
spondent also requested the Company to provide it with
a memorandum that they would alter the shipping and
loading doors which, when open in the Winter, caused
drafts of cold air to enter the plant. The Company
agreed to investigate the situation and later provided Re-
spondent with this memorandum as well . The parties
next met on 4 September at which time they discussed,
without agreement, several items.
The next meeting occurred on 4 September where
there was an exchange of proposals and some discus-
sions . Subsequently, the parties met on 9 September; at
this meeting the Company provided Respondent with its
proposals for a number of the articles in question, none
of which were agreeable to Respondent. They decided
that they would meet again on 12 September; the compa-
ny representatives stated that, at that time, they would
submit a final offer; Manzo asked if it would be a "final"
offer and Heffern said that on 12 September they would
tell him whether it was final offer or whether there was
room for movement.
The parties met again on 12 September; at this time,
the Company gave Respondent an eight page "Final
Offer" which stated that if it was not accepted by 15
September the Company's offer of 9 September would
be considered its final offer. It also stated: "All issues, in-
cluding proposals submitted by the Union, that are not
referred to in this offer shall remain as in the present
contract." Respondent presented its position verbally on
a number of issues and told the company representatives
that because of the substantial reductions that it con-
tained the final offer was not acceptable, and at the pre-
viously scheduled membership meeting on 15 September,
they would recommend that the membership not accept
the offer and they felt that the membership would reject
the offer.
By letter dated 10 September, the Company wrote to
all its union employees explaining some of its bargaining
proposals and the underlying reason behind them. The
letter ended by stating : "We hope you will get involved
1265
and urge the union negotiating committee to accept the
Company's proposals."
By letter dated 12 September, the Company again
wrote to its union employees:
The Company and the Union have completed ne-
gotiations and the Union's negotiating committee
has been presented with the Company's final offer.
It is our understanding that it will be presented to
the employees at a membership meeting on Sunday,
September 15, 1985. We want all employees to be
aware of the Company's position prior to Sunday's
meeting.
Hopefully copies of our final offer will be avail-
able for review at the meeting but in case you do
not have a chance to review the final offer, we
would like to highlight changes that we have pro-
posed. Please consider the Company's final offer
carefully because under all of the circumstances, it
is a reasonable one. We hope that you will accept
the offer and give us the opportunity to increase
sales and hopefully start the Company back toward
the employment and success level that we enjoyed
in the late 1970's.
The Company then indicated three contractual areas
where their final offer would give them economic relief.
.Cosey testified that there was nothing in either of these
letters that was inconsistent with the Company's final
offer. The 12 September letter was prepared after the
final negotiating session that day, and mailed to the em-
ployees later that day. The Company stipulated that it
was their intent to get the letter to the union employees
prior to Respondent's meeting on 15 September.
The 15 September meeting was attended by approxi-
mately 200 union employees of the Company (either
working or on layoff status); as president, Straw, opened
the meeting; shortly thereafter Glasier, as chairman of
the negotiating committee, read the Company's final
offer verbatim and said that the committee would not
recommend the offer for acceptance. Questions were in-
vited; somebody asked Straw if they could do better and
he answered that he did not think that they could. There
was also a question of what would occur if they refused
to accept the offer and struck the Company. The mem-
bership then voted 112 in favor of ratification and 69
against. About 5:20 that day, Sweeney called Vladyka
and told him: "You have a contract."a Vladyka asked
what procedure to follow and Sweeney said: "Whatever
you've done in the past." Vladyka said that he would
prepare the contract on Heffern's word processing ma-
chine and would submit a draft to Respondent. Sweeney
then said that he hoped that "three years from now"
they would have peaceful negotiations.
On the morning of 16 September the members of Re-
spondent's negotiating committee asked Cosey and Via-
dyka to meet with them to answer "a few questions
3 The parties stipulated that under Respondent 's bylaws and the proce-
dure traditionally followed by Respondent and the Company any agree-
ment reached between the parties must be ratified by the membership
before it is effective
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about some provisions of our final proposal. They
wanted some clarification on it ." Cosey and Vladyka met
that day with the committee , but without Sweeney and
Manzo ; Glasier was the committee 's spokesperson. They
raised questions about the floorworker bonus (art. 6.13),
paid sick leave (art. 24), about a memorandum for
washup time in the powder coat department , and some
less important subjects . Cosey and Vladyka answered
these questions (as discussed , infra) and the meeting
ended.
On the following day, Straw and Richard Morgan,
Respondent 's financial secretary , went to Cosey 's office
and told her that they wanted to talk about two items in
the Company's final offer , floor worker bonus and paid
sick leave; Cosey said that she and Vladyka would con-
sider their objections . On the morning of 19 September
Vladyka gave Straw a copy of the new 3-year agreement
between the Company and Respondent , as prepared by
Heffem 's office from the prior agreement and the Com-
pany 's final offer . (This agreement will be referred to
herein as the first draft.)
On 1 October , Respondent 's negotiating committee, to-
gether with Sweeney and Manzo , met with Cosey and
Vladyka to discuss the first draft and Respondent's ob-
jections to it . On 27 September , Respondent had given
the Company a list of proposed changes to portions of
the first draft , based on its proofreading of it ; on 1 Octo-
ber, Respondent gave the Company a list of the remain-
ing proposed changes. (As will be discussed , infra, these
proposed changes are substantial .) At this meeting the
parties discussed , inter alia, paid sick leave , whether the
agreement contained a reopener provision, and a memo-
randum regarding washup time in the powder coat de-
partment . Vladyka told Respondent 's representatives that
their final offer, and its acceptance by the membership,
concluded negotiations , but Respondent was attempting
to continue negotiations . Respondent 's representatives
said that they were disturbed at the number of mistakes
in the first draft, and they were not attempting to reopen
negotiations, they were having discussions on clarifica-
tion of intent.
On 4 October the Company gave Respondent a second
draft incorporating corrections of mistakes Respondent
had located in the first draft ; a large majority of the al-
leged mistakes Respondent discovered were denied by
the Company ; on 8 October Respondent gave the Com-
pany an additional list of proposed corrections of the
Company 's second draft and there were brief and incon-
clusive discussions between the parties.
By letter dated 11 October, the Company, by Cosey,
wrote to Respondent and Sweeney:
Enclosed for your signature is the collective bar-
gaining agreement between Telescope and Local 36,
United Furniture Workers for the period of Septem-
ber 16 , 1985 through September 15, 1988. This
agreement is consistent with the Company's final
offer submitted on September 12, 1985 and ap-
proved by the membership on September 15, 1985.
We understand that you will not sign the agreement
charges with the National Labor Relations Board
because of your failure to sign the agreement.
Cosey testified that the enclosed agreement "varied dras-
tically from what they requested in these changes but
was consistent with our final offer ." The Company con-
sidered the enclosed agreement to be the "final draft of
the agreement."
On 10 October, Respondent held an emergency mem-
bership meeting at which 160 members voted unanimous-
ly to obtain legal counsel and not to meet with the Com-
pany without counsel present or to sign anything with-
out approval of the membership . Earlier that day, Vla-
dyka had asked Glasier if he and Cosey could meet with
the negotiating committee that afternoon to give them
the final draft; Glasier said that he would give him an
answer later in the day . Later that day, Glasier informed
Vladyka of the decision arrived at during the member-
ship meeting . Respondent has not signed the Company's
final proposed agreement.
B. Disputed Issues
As stated, supra , a number of the items in the Compa-
ny's draft agreements (or missing from them) are in dis-
pute. The principle items to be discussed are articles 38,
24, 6.13, and the washup memorandum for the powder
coat department. The less important items will be dis-
cussed as well.
1. Article 38
Admittedly, there were no discussions or references to
a reopener during the eight meetings of the parties be-
tween 18 July and 12 September . During this period,
each of the Company's proposals , including the final
offer of 12 September, stated as follows:
Article 38-Termination and Reopening
A. The contract shall be effective from the 16th day
of September 1985 until midnight September 15,
1988.
B. Delete paragraph (b).
Prior to the fifth meeting , Respondent submitted a
proposal for a 3-1/2-year collective-bargaining agree-
ment to expire 15 March 1989 .4 On 12 September, when
the Company presented its final offer , Respondent 's posi-
tion on article 38 was that they were agreeable to status
quo on wages for a 3-year contract with no reopener.
The first draft, submitted by the Company on 19 Septem-
ber to Respondent, provided, in article 38:
Article 38-Termination
38.1. This contract shall become effective on the
16th of September 1985 and shall continue in full
force and effect until midnight of September 15,
1988 and for successive yearly periods thereafter.
and accordingly we are filing unfair labor practice 4 The Company 's busy period runs from December through June
FURNITURE WORKERS LOCAL 36 (TELESCOPE FURNITURE)
There was no reopener , nor were there any subsections
to article 38. Respondent 's comments to the Company's
first draft states for article 38:
(a) As final Co. proposal
(b) deleted
(c) P.C.
(d) P.C.5
At the 1 October meeting Glasier stated that as all the
Company's proposals stated that only subparagraph B,
not C and D as well, were to be deleted , subparagraphs
C and D were still part of the agreement and that pursu-
ant to the Company's final offer , there was a reopener;
this was the first time a reopener was mentioned since
negotiations began . This made the Company aware that,
in their proposals and final offer, they had incorrectly
listed the caption and language from the 1982-1985
agreement rather than the 1983 memorandum of agree-
ment .6 Thereafter, on 4 October, the Company gave Re-
spondent a revised agreement ; because the 1983 memo-
randum of agreement was entitled "Expiration Date,"
they changed the title of article 38 to that from "termina-
tion"; the remainder of the article remained unchanged.
On 8 October Respondent gave the Company another
list of changes it desired ; on this proposal and at the
meeting, Respondent, while agreeing that the contract
was for a 3-year period , alleged that because subpara-
graphs C and D were not specifically deleted , and the
title of article 38 in the final offer was "Termination and
Reopening" the contract had a reopener.
Glasier testified that his reason for believing that there
was a reopener in the 1985-1988 contract was:
Well, the contract before said "termination and Re-
opening," and it was also a three year contract, and
this one here , "Delete B," just takes out the limiting
parts of it, so we could open the whole thing.
He testified that in late September , while he and the
other committee members were proofreading the pro-
posed contract against the final offer:
Well, when we got to Article 38 in our proofread-
ing, you know , all of a sudden it just doesn't read
the same, it 's a totally different document.
In this regard , Glasier testified ; "You told us that you
needed cuts because of your economic position." When
asked by counsel for the Company:
Q. We didn 't say we wanted a three year con-
tract, is that what you're saying?
A. I didn't understand it that way.
Counsel for the Company then asked Glasier, at the
membership meeting on 15 September,
Presumably, "P.C." stands for per contract.
6 Heffern testified that when he met with Cosey and Vladyka to pre-
pare their proposals for changes in the agreement they went over each
article of the 1982-1985 agreement . His copy of this agreement did not
have the 1983 memorandum stapled in so he used the provisions of art.
38 of that agreement as the basis for his requested changes . As the Com-
pany wanted a 3-year contract with no reopener, he provided that only B
need be deleted.
1267
did you tell the membership that, hey, it's only a
one year contract , in 1986 you can reopen this
whole thing... ?
A. We read it word for word.
Q. Did you hear my question?
A. Yes.
Q. Why didn't you say that to the membership if
that's what you thought was true?
A. Because nobody asked the question.
Glasier further testified that when he first read the
Company's initial proposal on 3 July he determined in
his own mind that it contained a provision allowing
either side to reopen in 1986 or 1987 ; however, he never
informed Sweeney or any member of the negotiating
committee of this belief.' Further along in cross-exami-
nation , Glasier testified that on reading the Company's
initial proposal in early June he was aware that the head-
ing of article 38 of the 1982-1985 agreement was "Ter-
mination and Reopening ." As to whether he was aware
at that time that the parties had negotiated a memoran-
dum of agreement in 1983 (which he participated in), he
testified : "I had forgotten about that until it surfaced in
draft number two," which he received about 4 October.
Counsel for the Company then showed Glasier Respond-
ent's proposal dated 29 August where the relevant pro-
posal is entitled "38 Expiration Date" and asked if that
heading was identical to the heading in the 1983 memo-
randum of agreement ; at first Glasier testified : "Well, it's
a little different ." He then agreed that the headings were
identical , but then testified that the heading for the 29
August proposal was taken from the 1979-1982 agree-
ment. However, the Expiration Date provision in the
1979-1982 agreement is article 37.
Glasier testified further that all the negotiating com-
mittee members , including Straw , believed that the Com-
pany's final proposal provided for a 3-year contract with
reopeners . Straw testified that he understood the Compa-
ny's proposal to be for 3 years, with no reopener and,
prior to 15 September , e he never heard any of Respond-
ent's representatives say that there was a reopener in the
proposal . Sweeney also testified that his belief was that
the Company's offer did not provide for a reopener and
prior to 15 September no member of the negotiating
committee told him that they felt the Company's propos-
al contained a reopener . However, during the proofread-
ing of the first draft with the committee in late Septem-
ber, "I believe I stated that it could be interpreted the
way that the negotiating committee had interpreted it.
That there was a reopener ." Morgan testified that when
he received the Company 's final offer he "assumed" that
it included a yearly reopener; however, between July
and late September (until the proofreading of the first
draft) he never spoke to his fellow committee members
or employees about his belief that the Company's pro-
7 Counsel for the Company had to ask this question numerous times
before Glasser was responsive
8 Straw and Sweeney were asked if they heard such a statement made
poor to 15 September; however, Glasier's testimony was that he first dis-
cussed this with his fellow committee members during proofreading, at
the end of September
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posals included a reopener . Between July and September,
the negotiating committee discussed the term of agree-
ment; first it was decided to ask for 3-1/2 years, then, 3
years. During these discussions, a reopener was never
discussed.
2. Article 24
Article 24 is entitled : "Sick Days-Leave of Absence-
Personal Days ." Section 24 .1 of the 1982-1985 agree-
ment states:9
24.1. Each Employee shall be entitled to five (5)
days of sick leave. Such leave can be taken in multi-
ples of four (4) hours.
(a) A sixth day of sick leave will be available ef-
fective September 16, 1984.
(b) In the event an Employee does not take this
sick leave during the contract year, he or she shall
nevertheless be paid this sick leave at the end of
each contract year except that any Employee who
is laid off in excess of one (1) contract year shall
not be entitled to this sick leave or pay in lieu
thereof. Sick leave pay shall be computed at four
(4) or eight (8) times the plant average hourly rate.
The Company's initial proposal for article 24. 1 stated:
A. Revise Section 24.1 as follows:
(a) Sick leave is designed for the express purpose
of aiding Employees through periods of sickness
and should not be used for any other purpose. The
COMPANY may require a medical statement veri-
fying such sickness.
(b) Employees shall be credited with four (4)
hours of sick leave per month for a total of six (6)
days of sick leave per year. Such leave can be taken
in multiples of four (4) hours.
(c) Sick leave benefits or payments will not be
made to Employees on lay-off.
The Company's final offer for this article is precisely
the same, except that (a), (b), and (c) were renumbered 1,
2, and 3.
At the meeting on the morning of 16 Septembert0
Glasier asked if the employees would continue to be paid
at the end of the year for unused sick leave. Cosey and
Vladyka told them that since that had been changed by
the Company's proposals and final offer the employees
would no longer be paid at year end for unused sick
leave. On the following day Straw and Morgan spoke to
Cosey about the, Company's final offer; "Mr. Straw
wanted to talk about us considering paying for unused
sicktime because he felt that we were encouraging
people to do something dishonest by saying that they
9 The agreement also contains arts 24 2, 24 3, and 24 4 regarding
leaves of absence , bereavement pay, and leaves without pay
10 There is no testimony of any discussion regarding art 24 1 prior to
the Company's final offer, except for Vladyka' s general testimony that
Respondent was told during negotiations that unused sick leave would
not be paid at the end of the year and Glasier 's testimony that he was
told that the Company desired to pay sick leave only to employees who
were actually sick
were sick when they weren't." Cosey testified that she
told Straw that "We would look at it, give it some
thought."
The Company's first draft, given to Respondent on 19
September, and the subsequent drafts, including the final
one sent to Respondent on 11 October, states:
ARTICLE 24.-SICK DAYS-LEAVES OF
ABSENCE-PERSONAL DAYS
24.1 (a) Sick leave is designed for the express
purpose of aiding Employees through periods of
sickness and should not be used for any other pur-
pose. The COMPANY may require a medical state-
ment verifying such sickness.
(b) Employees shall be credited with four (4)
hours of sick leave per month for a total of six (6)
days of sick leave per year. Such leave can be taken
in multiples of four (4) hours. In order to receive
sick leave credit an employee must work at least ten
(10) days in a month. For purposes of this section a
month shall mean a calendar month.
(c) Sick leave shall be computed at four (4) or
eight (8) times the plant average hourly rate.
(d) Sick leave benefits or payments will not be
made to Employees on lay-off.
At the 1 October meeting where the Company's first
draft and Respondent's proposed modifications were dis-
cussed, Respondent's position was that since the Compa-
ny said "Revise 24.1," that did not include revising sub-
paragraphs (a) and (b) as well, and they were still in ex-
istence; the company representatives disagreed.
The following is Glasier's testimony on cross-examina-
tion in answer to questions from the General Counsel:
Q. With regard to the Company's proposal under
Article 24.1, do you recall the Company giving a
reason for its proposal?
A. Yes, I do.
Q. What did they say?
A. The Company explained that they didn't like
somebody who has been laid off for 10 months,
comes in , works a month and then is laid off, get-
ting paid for six full days of sick leave.
Q. Do you recall any other reasons given by the
Company in support of its proposal?
A. They did not like to pay sick pay to individ-
uals while they were on layoff.
Q. Do you recall any other statements in support
of the Company proposal?
A. No, I don't.
Q. Do you recall the Company stating that it de-
sired to pay sick leave only to employees for peri-
ods they were actually sick?
A. Correct, yes, that was discussed.
Glasier also testified that he never questioned the Com-
pany's representatives during negotiations about the
changes they proposed in article 24.1.
FURNITURE WORKERS LOCAL 36 (TELESCOPE FURNITURE) 1269
3. Article 6.13
The Company employs 13 floor workers who bring
the raw materials to, and take the finished products from,
the pieceworkers, thus enabling them to continue their
production without interruption . Article 6.13 of the
1982-1985 agreement , provided , inter alia : "Floor work-
ers on bonus and any other employee assigned to floor
work as provided herein shall be guaranteed combined
earnings (hourly rate and floor work bonus ) of not less
than Plant Average." The floor worker bonus was not
defined in the agreement . At the 16 August negotiating
session, the Company proposed eliminating the floor
workers' guarantee of plant average and having their
salary determined by the bonus incentive system; Re-
spondent said that this was not acceptable . The Compa-
ny's initial proposal in July , its 9 September offer, its 12
September final offer and the drafts each stated that this
sentence (the final sentence of art . 6.13) was to be delet-
ed. During the negotiations , Glasier never asked for
written assurances or a guarantee regarding the effects of
the deletion of this sentence.
During the latter part of the negotiations , a mediator
attempted to assist the parties . During the final negotiat-
ing session on 12 September, while the parties were in
separate rooms, Respondent 's negotiating committee
asked the mediator , Ira Lobel, to ask the company repre-
sentatives what the bonus was going to be . Glasier testi-
fied then when Lobel returned he told the committee
that Vladyka said that the floor worker bonus would be
at least $1 . 39 an hour."" This was never put in writing,
nor was any such demand ever made . Morgan also testi-
fied that the committee asked Lobel to ask the company
representatives what they proposed for the bonus and
Lobel returned and said that they said that it would be at
least $1 . 39. Vladyka testified that Lobel told them that
Respondent 's negotiating committee believed that there
would not be any bonus for the floor workers under the
Company 's final offer . Vladyka had recently computed a
figure of $1.35 as a bonus for the floor workers "project-
ing what we felt the level of floor workers that we
needed . . . and . . . assuming that we work at that
same level ." Cosey testified that Lobel asked them
"based on our calculations from a period of time, from
the past year, what we thought the bonus would
achieve." She later testified: "It was possible to achieve
it." Vladyka gave Lobel a dollar figure based on the 13-
week period the Company had used in formulating their
proposals.
The bonus (which is determined periodically by Vla-
dyka) is a complicated determination taking into consid-
eration, among other things , the base rate of the floor
workers, the number of hours worked by the piece
workers, and the number of floor workers required. This
bonus plan has been in existence for 20 years , and was
established unilaterally by the Company. Its components
have never been the subject of negotiation with Re-
spondent, although the factors and components have
changed over the years . Since September, the bonus has
11 Glasier is a floor worker ; the elimination of the guarantee and the
change in the bonus , caused his wages to be reduced by approximately 40
percent.
been substantially less than the $1.35 figure; by different
accounts ranging from zero to 47 cents an hour. Cosey
testified that the drop in the bonus was caused by the
fact that the floor workers "efforts slacked off, and more
floor workers were on, and doing more floor work for
less people."
At the meeting on 16 September between Cosey and
Vladyka and the negotiating committee , Glasier and
Morgan asked how the bonus system was going to work.
Vladyka showed Morgan his calculations for the prior
13-week period that resulted in his $1.35 projection for
the bonus.
4. Powder coat washup memorandum
The 1982- 1985 agreement provides numerous exhibits,
letters, and memoranda of agreements regarding the
Company's employees' terms and conditions of employ-
ment. The powder coat department at the Company usu-
ally utilizes six employees ; these employees spray a
powder that is applied electrostatically onto the alumi-
num furniture . The employees alternate, with two spray-
ing per day . Those spraying get a powder on them that
must be cleaned . One of Respondent's proposals given to
the Company on 15 August , provided, inter alia, "All
employees referred to [the powder coat department] re-
turning to their original department shall be paid an al-
lowance of 30 minutes at the rate of the plantwide
hourly rate ." Cosey testified that they told the negotiat-
ing committee that the existing practice was to allow the
spraying employees time to wash up before leaving the
department . "We already do it , not necessarily thirty
minutes at plantwide average hourly rate . However long
it takes them to wash up , they are allowed ." In Respond-
ent's proposal the following day they altered the propos-
al from 30 to 20 minutes at the plantwide average hourly
rate. The Company 's response was that they gave these
employees a reasonable amount of time to wash after
spraying, "but it wasn 't necessary to say a certain
number of minutes." Next to Respondent 's proposal, in
Glasier's handwriting, is the word "No." Cosey testified
that at the 29 August meeting, Respondent 's negotiating
committee stated it was agreeable to certain language
proposed by the Company regarding the powder coat
department if the Company gave them a memorandum
confirming the present practice of allowing powder coat
employees a reasonable washup time. She testified: "He
said that 6.6 A would be okay with the wash-up memo,
but he didn't ask us for it. . . . I don 't believe we made
a response at that meeting." Vladyka testified that it was
either at the 9 September or 12 September meeting that
the negotiating committee first requested.a memorandum
from the Company setting forth its practice regarding
washup time for powder coat employees . Although he
did not specifically testify that this demand was rejected
at that time, he testified that it was not agreed to by the
Company. The Company's final offer did not provide for
such a memorandum.
Glasier testified that it was at the 29 August meeting
that the Company agreed to provide this washup memo.
He could not be specific about who said what in this
regard , but his notes regarding this proposal say: "Okay
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with added memo." In addition, he testified: "I under-
stood Heffern to say okay." On questioning by counsel
for the Company, Glasier testified that during the three
meetings after 29 August, the Company did not produce
such a memorandum and the negotiating committee did
not ask them to come forward with the memorandum
they had allegedly promised.
At the 16 September meeting Glasser asked about the
washup memorandum; either Vladyka or Cosey told him
that they had not agreed to such a memorandum and
they would not give one, although they would continue
to provide employees in that department a reasonable
time to wash up. At the 1 October meeting Sweeney
(who attended all the negotiating sessions) said that he
thought they would be receiving a memorandum on
washup time or asked if they were going to receive such
a memorandum. Vladyka said that the employees were
being given the required washup time, so such a memo-
randum was unnecessary and would not be given.
Sweeney said that he thought that such a memo was to
be forthcoming. Respondent's requested modification to
the Company's first and second draft do not mention the
washup memorandum.
At the 29 August meeting, the negotiating committee
asked for relief and accompanying memoranda in two
other areas: one was in the Bogucki department where
Respondent requested the installation of ceiling fans to
circulate the air. The other was the shipping and receiv-
ing department where the opening of the loading doors
in the wintertime made the department uncomfortable;
Respondent requested the Company to make the doors
smaller to minimize the draft. The Company agreed to
both of these requests, and supplied the memoranda
which were included in its final offer. Cosey testified
that the bargaining practice between the parties was that
when the parties reached agreement on a new memoran-
dum or letter of understanding, Glasier always asked that
the memorandum or letter be put in writing for the com-
mittee's approval before the agreement was submitted to
the membership for ratification and this procedure was
followed for the Bogucki and shipping department
memoranda. Morgan testified that Glasier is very thor-
ough, and when he has reached agreement with the
Company on a negotiated item, he attempts to get it in
writing, as he did with the Bogucki fans and the shipping
department door memoranda.
In answer to questions from counsel for the Company,
Glasier testified (although quite reluctantly) that during
the 1982 and 1985 negotiations (aside from the washup
memorandum) after the parties agreed on letters or
memoranda, the Company gave them in writing to Re-
spondent for their approval prior to Respondent submit-
ting the agreements to the membership for ratification.
Glasser was also asked:
Q. Now, isn't it your practice , hasn't it been your
practice, Mr. Glasier, when you think you have an
agreement with the Company on an additional doc-
ument, an additional memo , an additional letter, that
you specifically ask for us to bring it forward at the
table and you don't end negotiations until you get
it, hasn't that been your practice?
A. Normally I would imagine that is what hap-
pens.
Q. Why would you imagine , I'm asking you what
you've done, how you've behaved; hasn't that been
what you have done in the past?
A. I'd have to say that that's probably true.
5. Other disputed issues
The above are the principal reasons Respondent's rep-
resentatives did not execute the agreement. However,
there are additional disputed items as testified to by Gla-
sier. Initially, Glasier testified: "One reason is that the
Company misled the people in the letters s 2 that were
sent out and the people did not realize what they were
voting on." Without getting into the contents of these
letters, it is sufficient to note that Glasier had the entire
membership before him at the 15 September meeting; he
could have answered this letter point by point if he
wished to. Instead, he chose to read the Company's final
offer, verbatim, and without comment. Having failed to
object to, or answer, the Company's letter at that time,
before the proper tribunal for determining whether the
Company was misleading the employees, the employees
themselves, I find that Respondent cannot now object to
the contents of this letter.
Respondent's next objection is stated as follows in Gla-
sier's testimony in answer to questions from counsel for
the Company:
Q. We proposed the elimination of Article 14.4,
Paragraphs A, B, and C; correct?
A. Correct.
Q. We proposed to retain Subparagraphs D, E
and F; correct?
A. That is correct.
Q. And we maintained that position through our
final offer; correct?
A. That is correct.
Q. Then when we sent you the draft, and actual-
ly it was all the drafts, the first, second and third
draft, we relettered D, E, and F to be A, B, and C;
is that correct?
A. That's correct.
Q. And you're saying that's one of the reasons
that you feel you shouldn't sign the contract?
A. Correct.
The next issue referred to by Glasier was article 29.1:
Q. Okay, fine. Now specifically about Article 29,
what is it about Article 29 that you believe presents
a deviation between the Company's final offer and
the draft as presented to the Union, could you ex-
plain to us?
A. Well, in the previous contract it's required,
for one thing, that employees must work 30 days
either prior to or after a holiday to get paid for it,
and those qualifying limitations had been removed
by the Company.
12 He later testified that they were not objecting to the 10 September
letter
FURNITURE WORKERS LOCAL 36 (TELESCOPE FURNITURE) 1271
Shortly thereafter, Glasier testified that the provisions
of article 29.1 in the Company's final draft are the same
as in the Company's final offer, but: "What I'm saying is
that the people when they voted on this contract were
misled."
Glasier next complained about article 29.2; however,
he agreed that the language in the Company's drafts was
identical with that in its final offer. When asked whether
it was really a question of interpretation of the provision,
he testified: "Either that or people were misled."
The next items of dispute were articles 31 (pension)
and 33 (insurance). Respondent is not alleging that there
was a deviation from the final offer to the final draft sub-
mitted by the Company. Rather, both of these articles in
the 1982-1985 agreement provide that they are "subject
to the re-opener provision of Article 38"; the Company's
final offer indicates no changes in these articles; these
provisos are not present in the final draft. Respondent's
objection to articles 31 and 33 relates to its objection of
article 38, that there is a reopener in the new agreement
which is not reflected in the wording of the final draft of
articles 31 and 33, as well as article 38.
Finally, Respondent's brief states:
As to incentive rates contained in Article 14.4 and
15.5, the union claims that the impact of the elimi-
nation or reduction of the guarantees was not
spelled out sufficiently in the letter of September 12,
1985 to the membership.
As Respondent does not allege any discrepancy between
the final offer ratified by the membership and the final
draft it received from the Company , its sole objection to
these articles is that the Company 's 12 September letter
misled the members . As stated , supra, Glasier had the 12
September letter at the 15 September meeting and had
the opportunity to discuss the letter as it related to the
Company's final offer. He chose not to, and I find that
he is therefore estopped from alleging such a defense
here.
III. DISCUSSION AND ANALYSIS
The issue herein is easily stated : Did the Company and
the Respondent reach agreement on all the substantive
issues that were the subject of bargaining ? If they did,
the Board can order Respondent to execute the agree-
ment, as it is a violation of Section 8(a)(5) of the Act to
refuse to reduce to writing an agreed -upon contract. H
J. Heinz Co. v. NLRB, 311 U.S. 514 (1941); Trojan Steel
Corp., 222 NLRB 478 (1976); Liberty Pavilion Nursing
Home, 259 NLRB 1249 (1982). Conversely, if the parties
did not reach a "meeting of the minds" on all the sub-
stantive terms, Respondent could not be ordered to exe-
cute the agreement because the Board cannot compel
concessions or agreements by the parties . H K Porter
Co. v. NLRB, 397 U.S. 99 (1970).
Meat Cutters Local 120, 154 NLRB 16 at 26 (1965), set
forth the following principles:
Conventional contract law, however, does pro-
vide certain decisional principles , pursuant to which
determinations may be made as to when mistakes
due to misunderstandings with respect to the mean-
ing of words or other acts will make a presumptive
agreement void; that is, when the ordinary rules
which govern the formation of contracts will be
rendered inapplicable by mistake.
What circumstances, first, reveal the presence of
a mistake caused by some misunderstanding with re-
spect to the meaning of particular manifestations
given to confirm the formation of an agreement?
See Restatement , Contracts § 501 (1932), in this
connection:
Misunderstanding exists where the words or
other acts of the parties indicate assent, but one
or both of the parties in fact intend something
different from what the words or acts express.
When such misunderstandings are due to the fault
of one party, and the other party understands the
transaction according to the natural meaning of the
words or other acts, both parties are bound by that
natural meaning . When, however, misunderstand-
ings may be traced to ambiguity for which neither
party is to blame or for which both parties are
equally to blame, and the parties differ in their un-
derstanding , their seeming agreement will create no
contract.
As the Board stated in Operating Engineers Local 12, 168
NLRB 173 (1967): "It is well settled that the Board may
properly evaluate contractual provisions against the
background of bargaining negotiations in determining
contractual intent."
In Diplomat Envelope Corp., 263 NLRB 525, 535
(1982), as affirmed by the Board , in oft-quoted language,
the administrative law judge stated:
The expression "meeting of the minds" does not
require that both parties have identical subjective
understandings on the meaning of material terms of
the contract. . . . Rather, subjective understandings
or misunderstandings as to the meaning of terms
which have been assented to are irrelevant , provid-
ed that the terms themselves are unambiguous
judged by a reasonable standard.
Where the alleged agreement reached is ambigu-
ous, extrinsic or parol evidence has relevance in de-
termining whether agreement or a meeting of the
minds had been reached.
The bargaining history and all other relevant cir-
cumstances surrounding the negotiations must be
examined to determine if an enforceable agreement
has been reached . [Citations omitted.]
In Vallejo Retail Trade Bureau , 243 NLRB 762, 767
(1979), the administrative law judge, as affirmed by the
Board, stated:
It is therefore tempting to rely uncritically on the
hoary maxim of the law of contracts that, absent a
"meeting of the minds," there is no mutually bind-
ing agreement . The temptation is avoided , however,
because the expression , "meeting of the minds" in
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract law does not literally require that both par-
ties have identical subjective understandings on the
meaning of material terms in the contract. Rather,
subjective understanding (or misunderstanding) as
to the meaning of terms which have been assented
to are irrelevant, provided that the terms themselves
are unambiguous "judged by a reasonable stand-
ard."
See also Luther Manor Nursing Home, 270 NLRB 949
(1984).
In Electrical Workers IBEW Local 938 (Appalachian
Power Co.), 200 NLRB 850 (1972), the administrative law
judge, as affirmed by the Board, stated:
What the parties may in fact have agreed upon
must be determined from what they said and did
during their negotiations . If the words and acts of
one of the parties have but one reasonable meaning,
to which the other party has assented, a contract
will be deemed concluded on that basis, for as
stated in Clark on Contracts, 4th ed., Sect. 3, p. 4:
The law . . . judges an agreement between two
persons exclusively from those expressions of their
intentions which are communicated between them.
The General Counsel and the Charging Party allege
that there was complete agreement on all the substantive
terms of the contract on the ratification by Respondent's
members on 15 September and Respondent should there-
fore be ordered to sign the agreement . Respondent al-
leges that there is a genuine conflict regarding certain
terms of the proposed agreement and therefore no final
agreement exists . In determining which of these positions
is correct, it is necessary to decide whether Respondent's
interpretation of these provisions, in light of the bargain-
ing sessions from July through 15 September, and the
prior bargaining history of the parties is reasonable. If it
is, then the words and acts of the parties had more than
one reasonable meaning, and Respondent's refusal to exe-
cute the agreement is not violative of the Act. Appalach-
ian Power Co., supra. The only issues that will be dis-
cussed herein are articles 38, 24, 6.13, and the washup
memorandum for the powder coat department. The
other issues raised by Respondent either relate to con-
tract interpretation, to the Company's 12 September
letter (as discussed, supra) or are too absurd to discuss
further.
The most difficult question herein involves article 38;
each of the Company's proposals up to and including its
final offer was entitled: "Article 38-Termination and
Reopening," while in its first draft title was "Article
38-Termination" and its final draft was entitled "Article
38-Expiration Date." There is no evidence that these
conflicts were anything more than an innocent mistake
caused by the use of the 1982-1985 agreement, rather
than the 1983 memorandum of agreement, in drafting the
Company's proposals. The issue here (as it is with the
other disputed provisions) is whether Respondent's al-
leged belief that article 38 contained a reopener provi-
sion is a reasonable one, considering the background and
bargaining history herein.
Initially, I find Glasier's testimony incredulous; he tes-
tified that at the commencement of negotiations in July
he determined that the Company's proposals provided
for a reopener, but he did not mention this theory to
anyone until the end of September-not to the company
representatives , not to his fellow committee members,
and not to Respondent 's members at the ratification vote
on 15 September. In addition, the Company informed
Respondent that it needed major economic relief, which
was spelled out in its final offer ; it is unreasonable to be-
lieve that the Company insisted on these proposals for a
3-year contract, although at the same time, proposing a
reopener after each year of the agreement. Additionallly,
at the conclusion of negotiations, the Respondent
changed its proposal from 3-1/2 to 3 years. If there
really was a reopener, Respondent probably would not
have bothered to do so , as it could renegotiate its losses
in each of the next 2 years. These facts, together with
the fact that, admittedly, a reopener was never men-
tioned during any of the negotiating sessions, convince
me that Glasier , early on in negotiations , realized the
Company's error and said nothing, thinking it could
work to Respondent's benefit. Supporting this is his testi-
mony that until 4 October he had forgotten that Re-
spondent and the Company had negotiated a memoran-
dum of agreement in 1983 (which he had participated
in), yet his 29 August proposal regarding article 38 is
titled precisely as is the 1983 memorandum of agreement.
Making matters worse for himself, Glasier testified that
he took this title from the 1979-1982 agreement. My ob-
servation of Glasier, and a careful reading of the tran-
script, convinces me that he is a witness whose testimony
is not to be believed; in addition to the above-mentioned
contradictions and the unreasonable nature of much of
his testimony, he was hostile and extremely evasive to
the questioning of counsel for the Company and the
General Counsel. Glasier was a floor worker for the
Company who lost almost 40 percent of his wages due to
the Company's final offer and its acceptance by Re-
spondent's membership. He had a right to be angry, but
that does not excuse such obvious prevarication.
Looking at the instant facts, the only possible indica-
tion that the Company's final offer contained a reopener
was the fact that it was entitled: "Article 38-Termina-
tion and Reopening ." However, the remainder of that
final offer stated that the contract was for the period 16
September 1985 through 15 September 1988 and it said
that paragraph (b)-the only one referring to the reopen-
er and the subjects thereof-was to be deleted. In this
circumstance, no reasonable reading of this final offer,
together with the background, discussed supra, would
conclude that the contract contained a reopener.
As regards article 24.1, admittedly, the Company's ini-
tial proposal, final offer, and its drafts were identical.
What Respondent alleges in this regard is that since the
Company's initial proposal and final offer said: "Revise
24.1 as follows," and did not specifically say that this re-
vision included article 24.1 (a) and (b), then (a) and (b)
are still in existence. It is an understatement to refer to
this argument as strained . Under Respondent 's interpreta-
tion of this article, one paragraph would provide: "Sick
FURNITURE WORKERS LOCAL 36 (TELESCOPE FURNITURE)
leave is designed for the express purpose of aiding Em-
ployees through periods of sickness and should not be
used for any other purpose . The Company may require a
medical statement verifying such sickness " although an-
other paragraph would provide : "In the event an Em-
ployee does not take this sick leave during the contract
year, he or she shall nevertheless be paid this sick leave
at the end of each contract year except ." These two pro-
visions are clearly inconsistent . Additionally, the revision
stating : "Employees shall be credited with four (4) hours
of sick leave per month for a total of six (6) days of sick
leave per year" was clearly meant to replace (not supple-
ment) article 24 . 1(a) of the 1982-1985 agreement . Finally,
the evidence clearly establishes that both Glasier and
Straw realized prior to 15 September that the Company's
proposal would pay sick leave only to employees who
were actually sick . I therefore find no ambiguity in arti-
cle 24 . 1 of Respondent 's final offer ratified by Respond-
ent's membership and Respondent is bound by it.
Respondent, although admitting that the Company's
final offer and drafts on article 6.13 were identical,
argues that because the Company has not paid a $1.39
an-hour-bonus to the floor workers, as promised them by
the mediator on 12 September, they are not bound to
execute the agreement . However, the amount of the
bonus, or the method of computing the bonus , had never
been a part of the collective -bargaining agreement be-
tween the parties; it was established , maintained, and
changed unilaterally by the Company . More importantly,
it was not read to or ratified by Respondent 's member-
ship; what was read to and ratified by the membership
was that the final sentence of article 6.13 (the floor
workers' guarantee) was deleted . Whether the subse-
quent low bonus was due to the Company 's compila-
tions, or the lack of effort by the floor workers (as sug-
gested by the Company) is irrelevant to my determina-
tion . Respondent's final offer and drafts as ratified by the
membership were identical and Respondent is therefore
bound by it.
Resolution of the remaining issue-the washup-memo-
randum in the powder coat department is more difficult.
Cosey and Vladyka, each of whom was a very respon-
sive, open , and credible witness, testified that they never
agreed to this memorandum , although they did not testi-
fy that they specifically rejected this demand-their re-
sponse during negotiations was principally that they pro-
vided the employees with the required time and so a
memorandum was unnecessary . I do not credit Glasier's
testimony that at the 29 August meeting the Company
agreed to provide the memorandum ; his notation next to
the proposal is not dispositive nor is his testimony that
he "understood Heffern to say okay." In addition, if the
memorandum had been agreed to at that meeting, it is
reasonable to assume that Glasier would have asked for
it in writing during the three subsequent meetings, as he
did with the Bogucki and shipping room door memoran-
da, which he later received . Somewhat troubling in this
regard is the testimony that at the 1 October meeting
Sweeney told Vladyka that he thought Respondent
would be receiving such a memorandum . Although I
found Sweeney to be a very credible witness, the indefi-
nite nature of this statement , together with the above-de-
1273
scribed testimony , convinces me that the Company never
specifically agreed to give Respondent this memoran-
dum. This subject was therefore not a valid reason for
Respondent to refuse to execute the agreement.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By failing and refusing, since about 16 September,
to sign the collective-bargaining agreement proposed by
the Company and ratified by Respondent 's members on
15 September, Respondent has engaged in, and is engag-
ing in , unfair labor practices within the meaning of Sec-
tion 8(b)(3) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices prescribed by Section 8(b)(3) of the Act,
I shall recommend that it be required to cease and desist
therefrom and that it take certain affirmative action set
forth below designed and found necessary to effectuate
the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, United Furniture Workers of Amer-
ica, AFL-CIO, Local No. 36, its officers, agents, and
representatives, shall
1. Cease and desist from failing and refusing to bargain
collectively with the Telescope Folding Furniture Co.,
Inc., by refusing to sign the collective -bargaining agree-
ment ratified by its members on 15 September 1985; or
from engaging in any like or related conduct in deroga-
tion of their statutory duty to bargain.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request of the Telescope Folding Furniture Co.,
Inc., execute the contract ratified by its members on 15
September 1985 and tendered to it by the Company on
11 October 1985 and , on such execution, deliver a signed
copy thereof to the Company.
(b) Post on the bulletin boards at the Company 's prem-
ises (as it appears Respondent has no office or place of
business) copies of the attached notice, marked, "Aplfen-
dix."14 Copies of the notice on forms provided by the
1' 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.
14 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."
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director for Region 3, after being signed by
Respondent's authorized representative, shall be posted
by Respondent immediately upon receipt and be main-
tained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to members are custom-
arily posted. Reasonable steps shall be taken to ensure
that the notices are not altered, defaced, or covered by
any other material. Copies of the signed notice shall be
provided to the Company for posting, if willing.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.