International Union of Operating Engineers Local No. 324 and 324-A, AFL-CIO (Michigan Conveyor Manuf

National Labor Relations Board - Administrative Judge Opinions

Sep 23, 2014

07-CB-109303 (N.L.R.B. Sep. 23, 2014)

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Bingham Farms, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
INTERNATIONAL UNION OF
OPERATING ENGINEERS LOCAL
NO. 324 AND 324-A, AFL-CIO
and
Case No. 07-CB-109303
MICHIGAN CONVEYOR
MANUFACTURERS ASSOCIATION
Donna M. Nixon, Esq.
for the General Counsel.
Amy Bachelder, Esq., (Sachs Waldman, P.C.),
for the Respondent.
Gary S. Fealk, Esq., Ronald E. Reynolds, Esq.,
(Vercruysse Murray, P.C.),
for the Charging Party.
DECISION
Statement of the Case
KENNETH W. CHU, Administrative Law Judge. This case was tried in Detroit, Michigan
on June 2, 3, and 4, 2014. The Michigan Conveyor Manufacturers Association (MCMA) filed
the charge on July 15, 20131 and the General Counsel issued the complaint on November 7.
The Respondent, International Union of Operating Engineers, Local 324 and 324-A
(Respondent) filed a timely answer denying all material allegations in the complaint.
MCMA is an organization comprised of various employers primarily engaged in the
construction, installation and maintenance of conveyor systems for the automotive and other
industries. One organizational purpose of MCMA is to negotiate and administer collective-
bargaining agreements with various labor organizations, including the Respondent.
The complaint alleges that MCMA and Respondent reached complete agreement on the
terms and conditions of employment on July 1 to be incorporated in a collective-bargaining
agreement and since on or about July 9, the Respondent has failed and refused to execute the
agreement and has failed and refused to bargain collectively with MCMA in violation of Section
8(b)(3) of the National Labor Relations Board Act (NLRA/Act) (GC Exh. 1 [A-P]).2 The General

1 All dates are 2013 unless otherwise indicated.
2 The General Counsel exhibits are identified as “GC Exh.” The Respondent exhibits are identified
as “R Exh.” and exhibits of the MCMA Employer-members are identified as “E Exh.” The closing briefs for
the GC, Employer and Respondent are identified as “GC Br.,” “E Br.,” and “R Br.” The Transcript
testimony is noted as “Tr.”
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Counsel argues that the parties reached a complete signed agreement on July 1 and the
Respondent never informed MCMA that the agreement was conditioned on a ratification vote.
The Respondent argues that MCMA was informed it always had a general practice to have
agreements and modifications ratified.
The counsel for the General Counsel moved to amend the remedy portion of the
complaint (GC Exh. 1 [P]) at the hearing. That portion of the complaint states
(a) Upon the Charging Party’s request, execute the July 1, 2013 agreement described
above in paragraph 9(b) and apply it retroactively to July 1, 2013. If the Charging Party
does not request execution of the July 1, 2013 agreement, upon request, Respondent
must reinstate the terms of the 2010-2013 collective-bargaining agreement and bargain
with the Charging Party until an agreement or lawful impasse is reached.
The counsel for the General Counsel moved to amend the above paragraph as follows
(a) Upon the Charging Party’s request, execute the July 1, 2013 agreement described
above in paragraph 9(b) and apply it retroactively to July 1, 2013. If the Charging Party
does not request execution of the July 1, 2013 agreement, upon request, Respondent
must reinstate the terms of the 2010-2013 collective-bargaining agreement.
The amendment would add the following
2(c) Rescind any agreements made between Respondent and any employer-member
including but not limited to the March 27, 2013 through May 31, 2018 agreement
between Respondent and the Great Lakes Fabricators and Erectors Association
(GFLEA), as it applies to the employer-members of the Charging Party, and make whole
all employer-members for any expenditures pursuant to said agreements which they
would not have been obligated to make under the July 1, 2013 agreement.
The counsel for the Respondent argued she should be permitted to litigate the
appropriateness of the rescission as a remedy at trial.3 The General Counsel argued that the
amendment rescinding any agreements made between the Respondent and any employer-
member associations would affect the remedy in the complaint and therefore, is appropriate for
in compliance proceeding. During this discussion, an attorney4 for GLFEA sought to intervene
as a third party and argued that the motion to amend the remedy to rescind any agreements
made between the Respondent and other employer-member associations would affect the
collective-bargaining relationship between GLFEA and the Respondent.
At trial, I granted the motion to amend the remedy portion of the complaint and agreed
with the General Counsel that the parameters of the amended remedy was an issue best taken
at a compliance proceeding. I stated if there is an impact of this remedy (i.e., rescission of any
employer-member agreements) on GLFEA (as well as other multiemployer associations not

3 The counsel for the General Counsel gave notice to the Respondent of her intent to amend the
remedy at a pre-trial conference call on May 30. The counsel for the Respondent indicated that she was
prepared to litigate this issue at the hearing. No ruling was made on the motion to amend during the pre-
trial conference call.
4 Michael Asher from Sullivan, Ward, Asher and Patton, P.C. was the representative for GLFEA at the
hearing (Tr. 7, 8).
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present at the hearing) that the matter would be appropriately resolved in a compliance
proceeding if necessary (Tr. 1-16).
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, MCMA and the Respondent, I make
the following
Findings of Fact
I. Jurisdiction and Labor
Organization Status
At all material times, Central Conveyor Company, Central Processing Engineering, LLC,
Dearborn Mid-West Conveyor Company, Commercial Contracting Corporation, Aristeo, Duke &
Duke Services, Overhead Conveyor Company, Anchor Conveyor, Jervis B. Webb, Commercial
Contractors, Acco, Alberici Construction and J.S. Alberici have been employer-members of
MCMA and have authorized MCMA to represent them in negotiating and administering
collective-bargaining agreements with Respondent (Tr. 33).
During a representative 1-year period, the employer-members collectively in conducting
its operations purchased and received at their respective facilities within the State of Michigan,
good and materials valued in excess of $50,000 directly from points outside the State of
Michigan. At all material times, MCMA has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. The Respondent admits, and I find, is a labor
organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background Facts
1. Overview and Bargaining History
MCMA is an association of employers engaged in the design, manufacture, installation,
maintenance of conveyors and tooling equipment primarily in the automotive industry. The
employer-members of the association at the time of the complaint are Central Conveyor
Company (Central Conveyor), Central Processing Engineering, LLC (Central Processing),
Dearborn Mid-West Conveyor Company (Dearborn), Commercial Contracting Corporation
(Commercial Contracting), Aristeo, Duke & Duke Services (Duke), Overhead Conveyor
Company (Overhead Conveyor), Anchor Conveyor (Anchor), Jervis B. Webb (Webb),
Commercial Contractors, Alberici Construction (Alberici), J.S. Alberici and Acco. MCMA has
been in existence as a multiemployer association since the 1950s.
An organizational purpose of the association is to negotiate and administer
multiemployer collective-bargaining agreements with various unions, including Respondent
Local 324 of the Operating Engineers (Tr. 33, 126, 229-231). When companies join MCMA,
they consent to allow the association to bargain on their behalf with various unions (GC Exh.
39). The association’s bargaining representatives act as the spokesperson for all conveyor
companies that had joined MCMA. The goal is to negotiate a single collective-bargaining
agreement that will apply to each company and the union.
The Respondent Local 324 represents approximately 15,000 members throughout the
State of Michigan. The Respondent represents workers in two industries, construction and
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stationery. In construction, the unit employees operate various types of equipment to move,
excavate, and install material at construction work sites (Tr. 281, 282). This complaint covers
only the construction trade unit employees.
MCMA and the Respondent has enjoyed many years of a negotiated collective-
bargaining relationship. Prior to 2007, MCMA and GLFEA engaged in joint collective-bargaining
agreements with the Respondent and other labor organizations. In 2007, MCMA stopped joint
bargaining with GLFEA and negotiated a separate agreement with the Respondent. Larry Estes
(Estes), who is and has been the president of MCMA for the last 10 years5, testified that MCMA
negotiated a separate agreement with the Respondent because it seems that GLFEA was not
allowing MCMA to provide input during the joint negotiations with the Respondent.
MCMA and the Respondent entered into an agreement from June 1, 2007 to May 31,
2010. In reaching an agreement, MCMA and the Respondent negotiated the changes from the
prior contract and reflected those changes in an agreement signed by the parties (GC Exh. 29).
The agreement contained the negotiated changes, but not all the terms of the prior contract.
The changes would be incorporated into the existing terms of the prior contract, which would be
printed as a full master agreement. The parties do not sign the full agreement. No credible
evidence was proffered that the 2007 agreement required a ratification vote (Tr. 127-131; GC
Exh. 30).
The parties reached a successor agreement from June 1, 2010 to May 31, 2013 (GC
Exh. 2). The agreement was captioned “Tentative Agreement” between MCMA and the
Respondent and covered changes to the 2007-2010 contract. The September 9, 2010 tentative
agreement did not state that it was conditioned on ratification by the Respondent or that the
Respondent reserves the right to “add, to subtract from or modify” the tentative agreement. No
credible evidence or testimony was proffered that the September 9 agreement was conditioned
on a ratification vote or that MCMA was informed that the agreement was contingent on
ratification.
Estes testified that similar to the 2007 negotiation, the signed tentative agreement
reflects the changes to the prior contract which would be incorporated along with the remaining
unchanged terms into a new master agreement (Tr. 131, 132). The tentative agreement was
signed by the parties on September 9, 2010 (GC Exh. 31).
2. The Start of Bargaining in 2013
The 2010-2013 agreement contains a specific method for termination of the agreement
(GC Exh. 2 at 30) and provides
This Agreement shall remain in full force and effect until the first day of June, 2010 and
thereafter shall renew from year to year unless either parties hereto shall notify the other
party, in writing, at least ninety (90) days prior to any anniversary date of this agreement
of its desire to change the agreement in any way or to terminate the Agreement. Such
written notice shall be sent by Certified or Registered Mail to the other party. In the
event of notice by either party to change and/or terminate, and no agreement of such
changes and/or termination is reached prior to June 1, 2013, this Agreement shall be
deemed to have terminated Midnight, May 31, 2013.

5 Estes is the owner of Central Conveyor. He testified that his spouse is the owner of Central
Processing (Tr. 25, 126).
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It is not disputed that the Respondent failed to follow this procedure to open negotiations
for a new agreement. In February 2013, the Respondent hand delivered a proposal to MCMA.
Douglas W. Stockwell (Stockwell) testified that he is and has been the business manager for the
Respondent since September 2012 and admitted that the Respondent failed to send the
certified letter to begin negotiation for a new contract within the 90 day time frame (Tr. 332,
341). Nevertheless, Estes contacted Stockwell’s office to begin negotiation for a new contract
after receiving the February proposal (Tr. 133-135).
Richard Wells (Wells), president of Central and the recording secretary for MCMA,
testified that the Respondent proposal contained language for a hiring hall and a wage increase
of $2 dollar per hour in each year (Tr. 39; GC Exh. 14). Wells said that he contacted Stockwell
to set up a date and time to negotiate. Wells said there was no discussion about ratification in
his conversation with Stockwell (Tr. 91, 92, 112).
It is also not in dispute that there was urgency by the Respondent to extend the
agreement with MCMA by March because the State of Michigan had enacted right to work
legislation in December 2012 and due to take effect on March 28.6 The extension of the current
contract prior to March 28 would have delayed the application of the right to work statute (Tr. 39,
40, 332).
3. The March 12 Bargaining Meeting
Despite not having the contractually obligated notice, MCMA met with the Respondent
on March 12 to discuss the proposed contract (Tr. 40). Present at the meeting for MCMA
bargaining committee were various representatives of the employer-members. Estes, Wells,
Thomas Woodbeck (Woodbeck) from Overhead Conveyor, Jeff Brinker (Brinker) and Todd
Begerowski (Begerowski) from Dearborn, David Hurst (Hurst) from Aristeo, Jim Schultz
(Schultz) from Central, and William Altman, legal counsel.7 Present at the meeting for the
Respondent bargaining committee were Stockwell, vice president Dan Boone (Boone), assistant
to the business manager Ryan Dunn (Dunn), the financial secretary Ken Dombrow (Dombrow),
and union member Tom Scott (GC Exh. 4; Tr. 41, 42). Estes and Stockwell were the chief
spokespersons throughout bargaining (Tr. 42, 136).
The Respondent constitution requires that any collective-bargaining agreements or
modifications be ratified before they are executed except where the bargaining committee is
delegated the authority to approve such agreements and modifications without a vote of its
members (GC Exh. 4 at 105, 106). Stockwell testified that the Respondent bargaining
committee was delegated with the authority to enter into a collective-bargaining agreement with
MCMA without the need for membership ratification because of the Michigan right to work
statute. Stockwell said that the bargaining committee was given this authority in February in
order to quickly act in reaching an extension in light of the Michigan right to work statute.
Stockwell maintained that this authority did not extend beyond the effective date of the statute
(Tr. 308, 309). It is unclear that the MCMA bargaining committee was aware that the
Respondent bargaining committee had this authority at the March 12 meeting (Tr. 318).

6 Among other provisions, the Michigan right to work law states that an individual would not be
required as a condition of employment to become or remain a member of a labor organization and not
required to pay dues, fees, assessments or other charges of any kind or amount to a labor organization.
7 Woodbeck is the president of Overhead Conveyor; Brinker is vice-president of Dearborn; Hurst is
the general manager of Aristeo.
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Wells testified that the MCMA bargaining agents were not aware that any agreement or
modification required ratification by the Respondent. He said that ratification was not discussed
at the March 12 meeting (Tr. 47, 92, 111, 112). It is clear that ratification was not discussed at
the March 12 meeting. Wells’ testimony is consistent with testimony provided by Stockwell (Tr.
346), Boone (Tr. 380, 381), Estes (Tr. 139), Brinker (Tr. 196), and Hurst (Tr. 237). Wells
testified that MCMA had an initial proposal on March 12 and that he took notes during this
meeting. Wells’ handwritten notes did not mention that ratification was a condition precedent to
a final agreement (GC Exhs. 12, 15).8 Estes testified that the Respondent never previously
mentioned that the 2007 or 2010 agreements were conditioned on ratification (Tr. 155-157; E
Exh. 2). Brinker and Hurst testified they were involved in the 2010 negotiations and that
ratification of the agreement was never discussed or raised by the Respondent (Tr. 225, 268).
Stockwell testified that all agreements and modifications needed to be ratified except
when delegated with the authority that ratification was not required. Stockwell said that he was
not a union official during the time of the 2007 and 2010 agreements, but had attended the
meetings to vote for ratifying the agreements (Tr. 310-314). Stockwell admitted he does not
know if Respondent informed MCMA that agreements and modifications had to be ratified or if
MCMA had received a copy of the Respondent’s constitution at anytime during negotiations for
the prior agreements (Tr. 315-318). Wells testified that he never received a copy of the
Respondent’s constitution in his role as the recording secretary for MCMA during the past three
years (Tr. 90).
Wells testified that the major issues discussed at the March 12 meeting were wages,
length of the contract, guaranteed 40 hour work week, drug testing, inspection (grease) time,
and a hiring hall for referring union members. Wells testified that operators are required to
inspect and grease their equipment. Wells said that the inspection and grease work is done 30
minutes before the start of the eight hour work day. The operators are paid for their 30 minutes.
MCMA proposed that the inspection be conducted during the regular eight hour day. Wells also
explained about the guaranteed 40 hour work week. Wells testified that MCMA was proposing
that only the most senior worker for each trade would be paid a guaranteed 40 hour work week
(even if the job goes less than 40 hours), which is consistent with the national maintenance
agreement (GC Exhs. 12, 15). Under the current contract, each operator is guaranteed a 40
hour week (Tr. 45-47).
The Respondent opposed having the inspection done within the eight hour work day.
Stockwell contended that supervisors would pressure the operators to begin working right away
without allowing them the time to inspect the equipment. The Respondent also insisted on a
guaranteed 40 hour work week. Stockwell believed that the guaranteed 40 hours of work
prevents supervisors from working an operator extra hard for one or two days and then giving
him no work for the rest of the week (Tr. 282, 283).
Stockwell testified that the March 12 meeting started on the wrong foot due to a number
of outstanding issues. He corroborated the testimony of Wells on some of the outstanding
issues. Dombrow’s bargaining notes for this session reflected the Respondent’s opposition to
each of MCMA proposed items. There was no mention of ratification in his notes (GC Exh. 41).

8 Brinker also took notes during this bargaining session. His notes reflect the Respondent’s
opposition to the initial MCMA proposed items. There was no mention regarding ratification in his notes
(GC Exh. 35).
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At the end, Stockwell testified that the guaranteed 40 hours and inspection time were the
biggest hurdles in reaching an agreement (Tr. 282-284). Stockwell testified on direct
examination (Tr. 283)
Q. At the time you got towards the end of negotiations, what were the major issues?
A. The guaranteed 40, the inspection time, and I’m going to say those were the stickers.9
Unable to reach an agreement, the parties agreed to bargain again on May 21.
4. The May 21 Bargaining Meeting
The same individuals for the bargaining committees were present at the May 21 meeting
except that Gary Fealk (Fealk) replaced Altman as legal counsel for MCMA, Tom Scott was not
present and Respondent president, Scott Page (Page), attended the meeting (GC Exh. 32).
Wells testified that MCMA presented a second proposal that essentially reflected its first
proposal except that a wage increase, an extension for 5 years, and the referral system (hiring
hall) were added for discussion. Wells insisted that ratification was not mentioned during the
meeting (TR. 49-51; GC Exh. 20). Estes testified that the session lasted approximately 90
minutes and that the three outstanding issues for the Respondent were the guaranteed 40
hours, inspection (grease) time and the referral system. Estes insisted that there was no
mention or discussion about ratification (Tr. 139-141).
Stockwell confirmed that ratification was not discussed or mentioned at the May 21
meeting. Stockwell believed the Respondent made a proposal at this meeting, but no evidence
was proffered to reflect such testimony (Tr. 345-348). Boone, Dunn, and Scott testified they
could not recall that ratification was mentioned or discussed at the May 21 meeting (Tr. 381,
483, 508). Dombrow’s bargaining notes for this session reflected that the Respondent wanted a
three year contract and there were some discussions on the hiring hall. There was no mention
in the bargaining notes of Dombrow and Wells about ratification during the session (Tr. 446,
447; GC Exh. 41, 12 at 3).
The parties were unable to reach an agreement. Wells testified that the parties did
agree to extend the current contract since it was set to expire on May 31 (Tr. 51). The parties
signed an extension on May 29, agreeing to extend the contract through June 30 (GC Exh. 3; R
Exh. 3). On June 1, the Respondent sent a certified letter to MCMA to meet and confer to
negotiate a new contract with notification to the Federal Mediation and Conciliation Service
(FMCS) (GC Exh. 5). It is clear that the notice to bargain should have been sent by
Respondent in February when the initial request to bargain was made in order to be in
compliance with article 29 of the contract “Renewal and Change” (GC Exh. 2 at 30).
Nevertheless, MCMA continued to meet and bargain on June 14.
5. The June 14 Bargaining Meeting
The June 14 session was relatively short with the same individuals in attendance as in
the previous session. Both parties presented proposals (GC Exhs. 21, 33). The parties were in
agreement for a 5 year contract, but disagreed on mostly everything else. Wells testified that
Stockwell indicated that the parties were “not getting anywhere.” Wells, Estes, Brinker, and

9 Boone also testified that the guaranteed 40 hour and the safety inspection time were “sacred
cow(s)” with the membership (Tr. 373).
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Hurst testified that there was no discussion on ratification at the session (GC Exhs. 19 at 3, 21,
33; Tr. 56-58; 142, 198, 239). Stockwell testified that not much was being discussed at the
June 14 meeting. He said there was no reason to discuss ratification because a tentative
agreement was not reached by the parties (Tr. 318, 348, 349).
Estes suggested a mediator for their next session. Estes and Stockwell confirmed that
having a mediator at the next session would be helpful (TR. 142, 239). Prior to the meeting,
Fealk emailed Stockwell on June 14 that the mediator was not available before June 30. Since
the current contract was to expire on June 30 (after the Respondent granted the first extension),
Fealk requested a second 30 day extension (R Exh. 2). Stockwell declined to grant the
extension but informed Fealk that the Respondent was willing to continue bargaining with a
mediator (Tr. 284, 285).
6. The July 1 Bargaining Meeting
The parties met for the final time on July 1 at the FMCS office.10 Everyone presented at
the previous meeting were also at this session, except for Schultz and Begerowski. Page was
present but left before 1 p.m. Both sides met in one large conference room with the mediator
leading the discussion. According to Wells, the mediator explained his role at the meeting and
informed the parties that he would be separating the two bargaining committees and the
mediator would listen to the position of each side and shuttle between the two parties (Tr. 59,
60). Boone testified that the parties had a brief discussion before being separated (Tr. 371).
Stockwell testified that the parties first met in the large room and the mediator separated
them by leaving the MCMA bargaining committee in the large conference room and directing the
Respondent bargaining committee to another room. Stockwell said that the mediator went back
and forth between the two rooms, but no progress was being made (Tr. 289, 290). The
testimony of Hurst and Page essentially corroborated what had occurred at the meeting up to
this point (Tr. 239, 500). The parties disagreed to what occurred next. The mediator suggested
a sidebar session. MCMA said that there was one sidebar. The Respondent maintained there
were two sidebars. Both sides disagreed as to who attended the sidebar(s).
Dunn testified that the initial meeting in the large conference room was brief and
contentious (Tr. 424). Wells testified that the mediator suggested that a sidebar would be
helpful. Wells said that Fealk, Estes and Stockwell attended the sidebar. He did not recall if
anyone else attended (Tr. 60). Estes testified that he, Fealk and Stockwell attended (Tr. 144).
Wells said Estes reported back that negotiations were not going well (Tr. 61).
Stockwell testified that the mediator suggested the breakout session and that Boone and
Page attended the sidebar. He recalled that Estes was in attendance, but no one else from
MCMA. Stockwell testified there was no progress being made at the breakout session and a
second sidebar was convened by the mediator. Stockwell said that he attended the second
sidebar with Page. He recalled that Fealk and Estes were in the second sidebar. Stockwell
testified that the sidebar negotiation was not going well and told Estes and Fealk that “we’re
done here for today and got up and walked out the room” (Tr. 290). Boone testified to two
sidebar meetings. Boone testified that he and Page met with Fealk during the sidebar with no
progress being made. Boone also said that the mediator called a second sidebar with Fealk
and Page. Boone testified that the second sidebar proved no better results and the individuals
returned to their respective groups with the Respondent ready to walk out (Tr. 372-374).

10 The witnesses agreed there were two mediators, but only one was the lead (James Statham).
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Page testified that Fealk asked for the sidebar meeting after the shuttle diplomacy by the
mediator was unproductive. Page said that he, Boone, Fealk, and the two mediators attended
the sidebar. Page testified that the parties were in disagreement on two items, to wit: the
guaranteed 40 hours and the inspection (grease) time. Page said the parties were stuck with
these two outstanding issues and believed the discussions had “fizzled out” for the day and the
Respondent bargaining agents were ready to leave (Tr. 501-503).
Fealk testified that there was only one sidebar that he attended with Boone and Page.
Fealk also said the two mediators attended the sidebar. He agreed with Page that the
negotiations centered on the guaranteed 40 hours and inspection time. Fealk testified that
Boone said the Respondent would never agree to give up the inspection time and guaranteed
40 hour week. Fealk said he was not in a position to discuss the two issues and at some point
during the sidebar, Fealk went to get Estes and the Respondent went to get Stockwell. Fealk
said that Boone and Stockwell made it clear that the Respondent was not agreeing to the
elimination of the inspection time or to the guaranteed 40 hour work week. Fealk also said that
Estes was very clear that the employers needed some relief from the two items. Fealk said that
he and Estes left the room to talk with the mediator and while standing in the hallway, he
observed Stockwell, Page and Boone leaving the room and returning to their conference room
(Tr. 560-562). Fealk and Estes said the parties never discussed ratification during the sidebar
(Tr. 152, 153, 563).
The parties also disagreed as to what occurred next. Wells testified that when Estes
returned to the large conference room and informed MCMA employer-members that the
negotiations were not going well; Stockwell popped his head in the room and informed them that
the Respondent bargaining committee was leaving. Wells said that it was Hurst who asked
Stockwell to “hold on.” Wells said that Stockwell reiterated that the Respondent was not giving
up the guaranteed 40 hours and Hurst responded that it was not a fair provision when there are
holidays or blackout days and no work was being done. According to Wells, Stockwell replied
that if MCMA is only talking about no pay on holidays and blackout days, “we might be able to
agree on modifying the 40 hour work week.” Stockwell allegedly stated there was also the issue
with the inspection time. Wells testified Hurst replied that operators should be given time to
grease and inspect their equipment, but it should be done during the regular eight hour shift.
According to Wells, Stockwell’s response was “that will really cost you” (meaning that MCMA
would need to give up on other items). Wells testified that someone from MCMA said to give us
a proposal, which Stockwell agreed to discuss with his bargaining committee (Tr. 61-63).
Stockwell testified that the Respondent bargaining committee was in the process of
leaving the building when he stopped by the large conference room, knocked on the door and
went in to say goodbye to the MCMA bargaining committee. Stockwell said that he was
stopped by Woodbeck, who said “whoa, let’s talk about this.” Stockwell said that Hurst then got
involved in the discussion about the guaranteed 40 hours and inspection time. Stockwell
testified that there were two outstanding issues at this point, to wit: the inspection time and the
guaranteed 40 hours. Stockwell explained that inspection time was sacred to the union, but he
also said there was a distinction between a single operator responsible for his own equipment
and a crane operator responsible for an entire crew. Stockwell inferred that the Respondent
would be willing to consider having the single operator perform inspection time during the eight
hour shift.11

11 According to Stockwell, the use of the hiring hall for referring employees was no longer an issue
because the parties were bound by the national maintenance agreement (Tr. 295).
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Stockwell indicated that committee members of both group were coming in and out of
the conference room and eventually everyone sat down in the conference room. Stockwell said
that it was mostly quiet during his discussion with Hurst and Woodbeck. It was obvious that
there was some movement on the two issues because Stockwell said that the Respondent
bargaining agents decided to return to their conference room to write up a proposal (Tr. 291-
296).
After a brief caucus, the Respondent returned with a handwritten proposal. The
Respondent proposed 1) a five year contract extension; 2) giving up the guaranteed 40 hours
on seven different weeks where there is a holiday (considered as black out days), allowance for
inspection time by the operators of a certain type of equipment before operations begin, and a
wage increase of $2.00 in the first year, $1.10 in the second year, and 85 cents each year for
the reminder of the contract, with a total wage package of $5.65 dollars (GC Exh. 6).12
Upon receipt of the handwritten proposal, MCMA caucused and decided to accept the
Respondent proposal as is. Wells testified that the Respondent wage increase proposal was
higher than the MCMA last proposal and there was much debate because “it was a lot of
money” (TR. 63). Fealk testified that Hurst wanted to make a counter proposal on the wages,
but Estes advocated acceptance of the Respondent proposal because it gave almost everything
wanted by MCMA (Tr. 565, 566).
Upon return to the large conference room, MCMA bargaining agents informed the
Respondent of the acceptance of the hand written proposal. Wells said that he went with Fealk
and the mediator to type up the handwritten agreement. Fealk dictated to him the language to
type for the agreement13 (TR. 63-67).
Boone had reiterated that any modification of the inspection time and the guaranteed 40
hours would never get by the union membership during the sidebar discussion. Boone said that
the Respondent committee went in the large conference room to say goodbyes to the MCMA
bargaining committee after the unsuccessful sidebar meeting. He said that the Respondent
bargaining agents were ready to leave when the mediator caught Stockwell and asked him to go
back in the room. Boone said that after the parties all sat down in the conference room, they
reached a tentative agreement. Boone said that Fealk, Dunn and the mediator went elsewhere
to type of the agreement. Boone did not testify that the Respondent had drafted a handwritten
proposal (Tr. 373, 374, 383).
Dombrow testified that when Stockwell went into the conference room to say goodbye
and there was a discussion “with some management people.” The Respondent bargaining
committee then went in and sat down. Dombrow believed that after much discussion, the
parties reached some consensus and recalled a sidebar meeting. He said when the parties
returned to the conference room, there was a verbal agreement. He said nothing was written up
at this point. He said there was some back and forth regarding money and conditions and then

12 MCMA’s last proposal on June 14 offered a wage increase of $1.50 for the first year, $1.00 for the
second year and 75 cents for the reminder of a 5 year contract with a total wage package for $4.75 (GC
Exh. 21).
13 Wells was uncertain if Page was involved in the typing of the agreement. At one point, Wells said
that it could have been Dombrow when the agreement was typed because Page had left the meeting
early (Tr. 107, 115). On the other hand, Fealk testified that Dunn was present during the typing of the
agreement (Tr. 566).
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a round of handshakes in reaching a verbal agreement. He recalled that, Fealk, Dunn and the
mediator went to type up the verbal agreement (Tr. 426-429).
B. Was Ratification a Condition Precedent?
Wells testified that the typed tentative agreement was signed by Estes and Stockwell
and included everything that was in the Respondent’s handwritten proposal (GC Exh. 7). The
agreement was captioned as follows and stated
Tentative Agreement Between the Michigan Conveyor Manufacturers Association
and the IUOE Local 324
1. 5 year Agreement starting July 1, 2013 and expiring June 1, 2018
2. Year 1 wage increase - $3.00; Year 2-$1.10; Year 3-$.85, Year 4-$.85, Year 5-$0.85
3. Black out 7 holidays from 40 hour guarantee: 1) New Year’s Day; 2) Memorial Day; 3)
Independence Day; 4) Labor Day; 5) Thanksgiving Day; 6) Christmas Day; 7)
President’s Day/Floating Holiday, with exception of 1 foreman or general foreman. This
modifies Article VII, Section C
4. Inspection Time-replaces Article XI, Section B.-IC200 and under, the Operating
Engineer shall be provided adequate time to perform inspections prior to the operation of
the said equipment.
5. Pension Contribution-Negotiated wage increases will first be allocated to satisfy any
required Pension Fund contribution increase as a result of a Performance Improvement
Plan or a Rehabilitation Plan or any other mandatory funding requirement.
6. The above Year 1 wage increase shall be effective the Monday following notification
of the wage allocation by the Union or the Contractors.
Wells testified that the document was captioned “Tentative Agreement” because it did
not include all the terms of the 2010 agreement, so the changes in the tentative agreement
would then be incorporated into the 2010 agreement and published as a final agreement. Wells
said that the parties understood that they had a complete agreement (Tr. 70, 71).14
Wells and Estes testified that the parties agreed to item five regarding the pension
contribution (Tr. 65, 150). Wells testified that he suggested adding item six
The above Year 1 wage increase shall be effective the Monday following ratification of
the wage allocation by the Union to the Contractors.
Wells explained that item six was included because the employers needed to know from
the Respondent as to the allocated amount for the various funds based on the new wage
increase. Wells testified that the contractors needed to know the allocations as soon as
possible. He said that once notification of the allocation was provided, the payroll could reflect
the new amounts (Tr. 65, 66). Estes said that the employers would not know where to allocate

14 As noted above, this procedural of negotiating for the changes and then merging the changes with
the prior agreement had been used in the 2007 and 2010 contract negotiations.
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the increase since there was now a wage increase of $2.00 (Tr. 151). Wells, Hurst and Estes
testified that the allocation is determined on a year-by-year basis by the union. Estes testified
A. Is it 25 cents going to go into healthcare, or it can go into union dues, it can go
into pension plans. So they have to allocate the dollars before I can, you know, increase
the $2 raise.
Q. Okay, and who determines that?
A. The Union.
Wells testified that the mediator made copies of the typed agreement. Wells recalled
that the parties signed their copy of the agreement in separate rooms and came together in the
conference room to exchange signatures, shook hands and left. He said there was no
discussion regarding ratification of the tentative agreement at anytime on July 1. Wells said that
Stockwell informed MCMA that ratification of the wage allocation had to be taken to the
membership (Tr. 68, 69, 120). Estes, Fealk and Brinker all testified that there were never any
comments or discussion regarding ratification of the tentative agreement at the July 1 meeting
(Tr. 95, 167, 210, 211. 572). Hurst testified that “someone” from the Respondent’s team said
that the wage allocation needed to be ratified. Hurst testified that there has to be a ratification
vote on the wage allocation. He assumed that would accomplish at a membership meeting, but
was not certain as to the Respondent’s practice. Wells, Estes, Brinker, and Fealk had no
knowledge of the past practice of the Respondent if agreements are ratified or not. Hurst
insisted that no one said that the agreement needed to be ratified (Tr. 245, 246, 252, 276).
In contrast, the Respondent insisted that the tentative agreement required a ratification
vote. Stockwell explained his understanding with the wage allocation. He testified that the
union leadership on the executive board would meet and prepare the allocations based upon
the new wage increase and insert the allocations into the board’s minutes. The minutes, along
with the wage allocation, would be reviewed and ratified by the membership. The allocation is
ratified before they are provided to MCMA. Stockwell testified that this was standard practice
with the Respondent, but admitted that he does not know if MCMA was aware of this practice
(Tr. 286-288, 324-326). With regard to ratification of the agreement, Stockwell testified that he
stated to Woodbeck and Hurst that the tentative agreement had to be ratified by the
membership. Stockwell believed his conversation occurred while the agreement was being
typed by Wells and the parties were sitting around a large table and conversing on various
topics. Stockwell testified that Hurst turned to him and said
..well, you can just sign this as we have a contract. And I said no, I have to take it back
to my membership for ratification (Tr. 296).
According to Stockwell, Woodbeck then interjected
..well, you’re going to recommend this aren’t you? And I said, by all means, I’m going to
recommend it (Tr. 297).
Stockwell said that everyone was in the room when the he told Woodbeck and Hurst
about the need to ratify the entire agreement (other than the individuals that left the conference
room to type up the agreement) (Tr. 330-332).
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Boone testified that he heard the statement from Stockwell that the tentative agreement
had to be taken back to the membership for ratification, but believed that the statement was
made after the parties had signed the agreement (Tr. 375, 376).
Dunn testified that the parties were sitting around the table after the agreement was
typed and had an open discussion with Dombrow (who was sitting to the right of Dunn), who
turned to Dunn and said
…that some information was left off the tentative agreement…we do not have the
ratification language on the bottom of the agreement (Tr. 476, 477).
In response, Dunn said to Dombrow that
…the other side understands it’s upon ratification. And to my recollection, it was
acknowledged that there was an understanding that there had to be ratified.
Upon further examination, Dunn said there was no discussion about acknowledging that
the agreement needed ratification but he recalled that Fealk made a “general gesture” (by
nodding his head) of conceding that ratification was required (Tr. 477, 481, 482). Dunn said that
Fealk was sitting directly across from him at the table. Dunn also recalled hearing the
conversation between Hurst and Stockwell that the agreement had to be ratified (Tr. 478, 479).
Dombrow testified that he told Dunn that there was nothing in the tentative agreement
about ratification and that Dunn replied “They know it needs to be ratified.” Dombrow believed
that Fealk was “close enough to hear it” and nod his head in agreement, but admitted that he
did not know if Fealk actually heard him talking to Dombrow because there were other
conversations occurring at the same time. Dombrow also testified that Estes had signed the
typed agreement in the large conference room and passed the document over to Stockwell for
his signature. Dombrow said that while Stockwell was signing the agreement, Estes asked
Stockwell if he (Stockwell) would recommend the tentative agreement and Stockwell responded
in the affirmative when he takes “…it (the agreement) to the membership” (Tr. 430-434, 449,
459).15 Boone testified that he believed Fealk overhead this conversation and affirmatively
nodded his head (Tr. 378, 379, 386, 387).
Page testified that he did not hear ratification being mentioned on July 1 or in any prior
bargaining sessions (Tr. 509).16
Fealk testified there was a quick discussion regarding Brinker’s question as to when the
agreement goes into effect after the Respondent returned with its handwritten proposal. Fealk
said that someone from the Respondent bargaining committee replied that the allocation
needed to be decided by the members, so the agreement would go into effect the first pay
period after the ratification of the allocation. Fealk insisted that there were no discussions about
ratification of the entire agreement. Fealk also said that Dunn never discussed ratification while
the agreement was being typed.

15 Dunn said that Dombrow was sitting to his right. Dombrow testified that Dunn was sitting to his
right, followed by Boone at the table. Dombrow said that Fealk was directly across the table from him and
that Wells was sitting next to Fealk (Tr. 430).
16 Page had left early on July 1 before the agreement was signed.
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Fealk testified that the mediator made copies of the typed agreement and the parties
caucused to review and sign the agreement. Fealk said that some of Respondent bargaining
agents were sitting around the table upon his return to the conference room with the signed
agreement. Fealk testified that the parties were shaking hands and cordially conversing before
leaving. Fealk said that the mediator was sitting at the head of the table and that he was sitting
next to him and conversing on an unrelated topic. Fealk said he was not talking to Wells or
Hurst. Fealk said that he did not hear Hurst telling Stockwell that the agreement did not need to
be ratified. Fealk also did not hear a response from Stockwell. Fealk said that ratification was
never discussed on July 1 and he never heard any conversation between Dunn and Dombrow
about ratification. Fealk denied that he had nodded his head in consent (that the agreement
had to be ratified) towards Dunn and Dombrow while they sat across the table (Tr. 566-573).
Milford (Woody) Woodbeck was a subpoenaed witness for the Respondent.17
Woodbeck is the chair of Overhead Conveyors and his brother is Tom Woodbeck, the president
of Overhead Conveyors. Woody testified that he had a conversation with Tom (Tr. 393-397).
Woody testified that he was not involved in the 2013 negotiations with the Respondent, but Tom
was on the MCMA bargaining committee. Woody had asked Tom whether there was any
conversation about ratification on July 1 and Tom replied that ratification never came up.
According to Woody, Tom said to him that nobody discussed ratification on July 1 because
everyone knew (his assumption) that the agreement had to be ratified (Tr. 402-408).
C. The Respondent Formally
Rejects the Agreement
Wells testified that he was informed by the Respondent during the bargaining session on
July 1 that MCMA would be informed of the wage allocation by July 5. Wells said that MCMA
received either a facsimile or email from the Respondent setting forth the wage allocations on
July 5 (GC Exh. 8). The document stated, in part
In accordance with the current Collective Bargaining Agreement between Michigan
Conveyor Manufacturing Association Inc. and Operating Engineers’ Local 324, please
be advised that effective the first full payroll period on or after July 8, 2013, pending
radification (sic), the following wage allocation is as follows:
It is noteworthy that the wage allocation was provided to MCMA on July 5 before the
union voted on the allocation.18 In response to the email, Fealk replied to Stockwell on July 8
and inquired whether the wage allocation was actually ratified because Stockwell requested that
the allocations be effective on or after July 8. Stockwell replied to Fealk the morning of July 8
that the “…wage allocation had not been ratified” and the vote was planned for the evening of
July 8 (GC Exh. 9).
The Respondent held its union meeting to vote on the agreement on July 8. Stockwell
testified that he called his secretary to send out notice for a special meeting as soon as the

17 His testimony was allowed over the hearsay objection of the General Counsel.
18 Stockwell explained that the Respondent already knew the wage allocations based upon the past
practice of the prior two contracts so it was not necessary for the membership to vote on the allocation
(Tr. 326, 327). I do not credit Stockwell’s testimony on this point. If the wage allocation was already
known to the parties, why would the parties feel that it was necessary to include language in the tentative
agreement that the wage increase “…shall be effective the Monday following notification of the wage
allocation by the Union or the Contractors?”
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agreement was signed on July. Stockwell said that the notice went out on July 1 (Tr. 298, 299).
The notice stated that “There will be an Operating Engineers Local 324 ratification meeting” on
July 8 with Stockwell’s name at the bottom of the letter (R Exh. 5). Stockwell said that a specific
procedure was followed and the tentative agreement was distributed at the meeting (R Exh. 6,
7). He insisted that the Respondent leadership had recommended the agreement at the
meeting (Tr. 303-306).
Stockwell testified that the employees rejected the tentative agreement by a substantial
margin (R Exh. 5). He said that the inspection time was the biggest issue and that there was a
membership motion not to come back (from negotiations with MCMA) with anything less than
the terms and conditions to GLFEA (Tr. 306, 307). On July 9, Stockwell informed Fealk by
email that the union members rejected the agreement and that the Respondent did not see any
benefit to continue bargaining for a new agreement (GC Ex. 10).19
Fealk wrote to Stockwell by letter dated July 11, 2013 inquiring as to whether the
Respondent believe that the parties are at impasse and if the Respondent was attempting to
dissolve the bargaining relationship with MCMA. Fealk noted in his letter that MCMA and its
members do not consent withdrawing from multiemployer bargaining (GC Exh. 13). In
response, Stockwell wrote to Fealk on July 12 that the Respondent saw no purpose in
maintaining dual agreements covering the same work since all employers have short form
agreements with the Respondent (GC Ex. 23). Stockwell stated that
Therefore, the Union has decided to discontinue bargaining with Michigan Conveyor
Manufacturers Association. We expect that employers will contribute under the Great
Lakes Fabricators and Erectors Association agreement pursuant to the short form
agreements they have signed with the Union.
Not all MCMA members had signed short form agreements with GLFEA. Wells testified
that he signed a short form agreement on behalf of Central Processing that only checked the
MCMA agreement (Tr. 77, 78). Estes testified that Central Conveyor was abiding by the MCMA
contract after bargaining ceased because his company had checked only MCMA in the short
form agreement (Tr. 154). Aristeo had no short form agreement with the Respondent. Only
Overhead Conveyor had a dual contract arrangement with MCMA and GLFEA. Nevertheless,
the Respondent requested that MCMA employer-members abide by the GLFEA agreement and
to report monthly fringe benefits contribution under GLFEA (GC Exh. 34). When Central
Processing attempted to contribute the fringe benefits under MCMA, the fringe benefits pension
fund informed Central Processing that it had incorrectly checked the short form agreement and
that the employer should remit the fringe funds to GLFEA (Tr. 82; GC Exh. 24).
Timothy LaLonde (LaLonde) testified that he is the director of the fringe benefits pension
fund and explained the reporting requirements and collection of the contractors’ monthly
contributions to the fringe fund. LaLonde stated that the allocation of the monthly benefit funds

19 A short form agreement is signed by an employer and states that the employer would follow the
master agreement. Under a short form agreement, the employer also agrees to the wages and benefits
of a different master agreement. Wells testified that a short form agreement would enable an employer-
member to perform non-conveyor work so long as it abides by the wages and benefits of another master
agreement (Tr. 75-78; GC Exhs. 16, 17). The Respondent informed each employer-member that
inasmuch as an agreement with MCMA was not ratified, the Respondent expected the employers to
follow the fringe benefit terms under the GLFEA master agreement (Tr. 78, 79: GC Exhs. 11, 22).
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should correspond with the box that the contractor had checked (in the short form agreement)
(Tr. 516-520; GC Exh. 25).
Since July 9, the Respondent had not sought to bargain with the MCMA.
Discussion and Analysis
The General Counsel argues that the Respondent violated Section 8(b)(3) of the Act
when it failed to execute a contract with MCMA after an agreement was signed by the parties
on July 1. The General Counsel contends that the Respondent failed to clearly and timely
notify MCMA of any limitations or condition precedents to conclude an agreement.
The Respondent argues that the parties never reached a meeting of the minds with a
final collective bargaining agreement and that it was not obligated to execute an agreement
because the terms of the agreement was subject to ratification.
A. Legal Analysis
Section 8(d) of the Act requires that the parties in a collective-bargaining relationship,
once an agreement is reached, to execute that agreement at the request of either party.
Section 8(b)(3) of the Act provides that it is an unfair labor practice for a union to refuse to
bargain collectively with an employer. A refusal by either the employer or the union constitutes
an unfair labor practice under the Act. See Graphic Communications Union District 2
(Riverwood International USA), 318 NLRB 983, 990 (1995), and cases cited. Once it has been
established that there has been a meeting of the minds, a contract may come into existence
before its execution. H. J. Heinz Co. v. NLRB, 311 U.S. 514 (1941); Hospital Employees Local
1199 (Lenox Hill Hospital), 296 NLRB 322 (1989).
It is also well established that where the parties execute a memorandum of agreement
which incorporated provisions of the former contract with additional terms agreed upon, the
parties are obligated to execute the full collective-bargaining agreement containing the entire
agreement between the parties. Electrical Workers Local 1228 (RKO General), 130 NLRB 342,
343-344 (1977); Auto Workers Local 365 (Cecilware Corp.), 307 NLRB 189, 192 (1992).
The obligation to execute the contract arises only if the parties had a “meeting of the
minds” on all substantive issues and material terms of the agreement. Sunrise Nursing Home,
325 NLRB 380, 389 (1998). The General Counsel bears the burden of showing not only that
the parties had the requisite “meeting of the minds,” but also that the document which the
Respondent refused to execute accurately reflected that agreement. If it is determined that an
agreement was reached, a party’s refusal to execute the agreement is a violation of Section
8(b)(3) the Act. Windward Teachers Assn., 346 NLRB 1148, 1150 (2006); Cherry Valley
Apartments, 292 NLRB 38 (1988) (the burden of proof is on the party alleging the existence of
the contract).
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. Diplomat Envelope
Corp., 263 NLRB 525, 535-36 (1982). “Subjective misunderstandings or misunderstandings as
to the meaning of terms which have been agreed to are irrelevant, provided that the terms
themselves are unambiguous judged by a reasonable standard.” Health Care Workers Union,
Local 250 (Trinity House), 341 NLRB 1034, 1037 (2004); Pittsburgh-Des Moines Steel
Company, 202 NLRB 880, 888 (1973). Instead, a meeting of the minds occurs where there has
been agreement on “all substantive issues and material terms of the agreement.” Teamsters
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Local 771 (Ready-Mixed Concrete) 357 NLRB No. 173, slip op. at 5. The General Counsel has
the burden of establishing that there has been an objective manifestation of agreement on such
terms, thereby proving that an agreement was reached. Teamsters Local 771, above
The focus of the inquiry is not “the parties’ subjective inclinations, but… their intent as
objectively manifested in what they said to each other… [their] words and actions… [and] their
‘tone and temperament.’” Id. The “hallmark indication that a binding agreement has been
reached” consists of ending a meeting or series of meetings “with handshakes and mutual
expressions of satisfaction on the successful outcome of their endeavor.” Id.
In Teamsters Local 471 (Superior Coffee), 308 NLRB 1, 2 (1992), the Board held that
the Union violated Section 8(b)(3) when it refused to sign an agreement and stated, in part
In determining whether [an] underlying oral agreement has been reached, the Board is
not strictly bound by technical rules of contract law but is free to use general contract
principles adopted to the bargaining context. Also, Americana Healthcare Center, 273
NLRB 1728 (1985).20
As stated in Teamsters Local 287 (Reed & Graham), 272 NLRB 348 (1984), the test is
whether or not applying an objective or reasonable standard, irrespective of the subjective
opinions of the parties, mutual agreement on a contract was reached. Thusly, if words and
conduct chargeable to one or any party have but one reasonable meaning, with respect to
which the other party has noted concurrence, a contract will be deemed concluded on that
basis. Pittsburgh-Des Moines Steel Co., 202 NLRB 880, 888 (1973).
B. Credibility
The credibility resolutions herein have been derived from a review of the entire
testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the
witnesses, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). A
credibility determination may rely on a variety of factors, including the context of the witness’
testimony, the witness’ demeanor, and the weight of the respective evidence, established or
admitted facts, inherent probabilities, and reasonable inferences that may be drawn from the
record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001). Credibility findings need not be all-or-nothing propositions—indeed,
nothing is more common in all kinds of judicial decisions than to believe some, but not all, of a
witness’ testimony. Daikichi Sushi, above.
C. The Respondent violated Section 8(b)(3) of the Act
When it Failed to Execute the Agreement
1. Stockwell’s Authority to Bargain on Respondent’s Behalf
Before determining the ultimate question of whether the parties reached an agreement in
their 2013 contract negotiations, it is first necessary to establish Stockwell’s authority to speak
and bargain on the Respondent’s behalf. The duty to bargain includes the obligation to appoint
a negotiator with genuine authority to carry on meaningful bargaining regarding fundamental
issues. Schmitz Food, 313 NLRB 554, 560 (1993). The law is well settled that an agent

20 It is well established that technical rules of contract do not control whether a collective-bargaining
agreement has been reached. Pepsi-Cola Bottling Co. v. NLRB, 659 F.2d 87, 89 (8th Cir. 1981).
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assigned to negotiate a collective-bargaining agreement is clothed with “apparent authority to
bind the principle in the absence of clear notice to the contrary.” Las Vegas Sands, Inc., 324
NLRB 1101, 1108 (1997). The Board has held that “when an agent is appointed to negotiate a
collective-bargaining agreement that agent is deemed to have apparent authority to bind his
principal in the absence of clear notice to the contrary.” Univ. of Bridgeport, 229 NLRB 1074
(1977). The 9th Circuit affirmed Bridgeport, emphasizing that “any such ‘notice to the contrary’
must be ‘affirmative, clear and timely;’” Las Vegas Stands, Inc. v. NLRB, 172 F.3d 57 (9th Cir.
1999). Timeliness requires that such limitations be disclosed to the other party before an
agreement is reached. A.W. Farrell & Son, Inc., 359 NLRB No. 154, Slip op. at 3 (2013).
With respect to the question of an agent’s authority to bind a principle, the Court in
Metco Products, Div. of Case Mfg. Co. v. NLRB, 884 F.2d 156, 160 (4th Cir. 1989) stated
In the context of collective bargaining, the NLRB has adopted a clear and simple rule
regarding the creation of apparent authority on the part of a labor negotiator. The NLRB
has long held that "when an agent is appointed to negotiate a collective-bargaining
agreement that agent is deemed to have apparent authority to bind his principal in the
absence of clear notice to the contrary. University of Bridgeport, 229 NLRB 1074. See
also Aptos Seascape Corporation l94 NLRB 540 (1971), Medical Towers Limited, 289
NLRB No. 123 (l987) enfd. granted without opinion, Medical Towers Ltd. v NLRB, 862
F.2d 309 (3rd Cir. l988). The laudable purpose of this rule is to lessen the opportunities
for ambiguity and confusion by requiring a party who chooses to negotiate through an
agent to disclose any limitations on the agent’s authority.
Here, it is clear that Stockwell had apparent authority to speak on the Respondent’s
behalf for the 2013 negotiations. None of the Respondent’s witnesses disputed his authority.
At no point during the negotiations did the Respondent’s witnesses expressly limited Stockwell’s
authority. Stockwell (or his office) initiated the bargaining by hand delivering the Respondent’s
February proposal to the MCMA office. Stockwell testified that he was authorized by the
Respondent to enter into a final agreement in March before the effective date of the Michigan
right to work statute.21
Stockwell also testified that he was the chief negotiator during bargaining for the
Respondent and was present throughout all the bargaining sessions. Further, once
negotiations began, Stockwell was always the point of contact and chief spokesperson for the
Respondent. Finally, all correspondence during the negotiations were directed to and
responded by Stockwell. Accordingly, I find that Stockwell had the apparent authority as the
labor negotiator to speak on behalf the Respondent.
2. There was a Meeting of the Minds
Going into the last bargaining session on July 1, the parties were faced with two
outstanding and unresolved issues, which the Respondent deemed to be sacred cows.
Stockwell and Boone testified that the two remaining issues preventing a final agreement were
the guaranteed 40 hours and the inspection (grease) time. On July 1, the parties met at the
mediator’s office in a large conference room. There were some brief discussions and the

21 Although Stockwell denied he continued to have the authority after the effective date of Michigan
right to work statute, no credible evidence was proffered that would indicate the delegated authority to its
bargaining committee to approve agreements and modifications without submission to a vote of its
membership was timely and clearly rescinded by the Respondent.
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mediator separated the parties. The MCMA bargaining agents remained in the large
conference room and the Respondent committee was escorted to another room. The mediator
began shuttle diplomacy between the two parties, but with no fruitful progress. The mediator
suggested a sidebar session that was attended by Fealk, Boone and Page. There was some
dispute as to who had initially attended the sidebar, but Estes and Stockwell subsequently also
became involved in the sidebar discussion.22 All witnesses testified that inspection time and the
guaranteed 40 hours were debated and unresolved.
Although there was some disputes over the events leading up to the tentative
agreement, it was clear that at the July 1 meeting, the Respondent’s bargaining committee was
leaving after the sidebar session proved unfruitful. While Fealk and Estes were talking with the
mediator in the hallway, the Respondent bargaining committee gathered their belongings and
began to head out of the building. On their way out, Stockwell stopped by the conference room
to say goodbye to the members of the MCMA bargaining committee. At this point, it was either
Hurst or Woodbeck telling Stockwell to hold on and wait a moment since the MCMA committee
still felt that a tentative agreement could be reached. Stockwell did in fact stop, sat down and
began discussing the two outstanding issues with the MCMA agents. At this point, Fealk and
Estes returned to the conference room and everyone sat down in the large conference room
with Stockwell, Hurst and Woodbeck did most of the talking.
During this discussion, Stockwell explained to Hurst and Woodbeck the significance of
keeping the inspection time and the guaranteed 40 hours. Stockwell said that he fully
understood the position of MCMA that it was unfair to pay a guaranteed of 40 hours for work
that was not performed. Stockwell also explained that it would be acceptable to have less than
the guaranteed 40 hours provided that the parties followed the national maintenance agreement
and MCMA employers give three days’ notice of a blackout day when the guaranteed 40 hours
would not apply. With regard to inspection time, Stockwell said it would be acceptable to apply
the additional time for the inspection of larger equipment where the operator is responsible for
an entire crew and not to allocate additional time for inspection involving equipment operated by
a single worker. With this understanding over the two remaining issues, the parties felt
comfortable enough to caucus. After further discussions, the Respondent bargaining committee
provided the mediator with a handwritten proposal. At the bottom of the handwritten proposal,
the Respondent stated that the “union reserves the right to add, subtract from or modify the
proposals.”
Upon review of the Respondent’s proposal, the MCMA bargaining committee accepted
the terms of the proposal without any modifications or revisions.23 The parties congratulated
themselves, shook hands, and Fealk, Wells and Dunn retreated to the mediator’s office to type
the agreement. The mediator made copies of the typed tentative agreement and credible
evidence indicated that Stockwell and Estes signed each of their agreement in separate rooms
and then exchanged their signed agreements in the large conference room. The typed tentative
agreement did not state that the union had the right to further add, subtract or modify the
tentative agreement. The bargaining committees congratulated themselves and shook hands
again and left the building to everyone’s satisfaction.

22 I believe the reason for the inconsistency as to the number of sidebars was due to the fact that
other individuals subsequently attended the discussion making it seems like there were two sidebar
sessions.
23 There was some reluctance voiced over the wage increase proposal, but eventually MCMA agreed
to the Respondent’s proposed wage increase.
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In Vallejo Retail Trade Bureau, 243 NLRB 762, 767 (1979), the Administrative Law
Judge, with Board approval stated:
The expression "meeting of the minds" in contract law does not literally require that both
parties have identical subjective understandings on the meaning of material terms in the
contract. Rather, subjective understandings (or misunderstandings) as to the meaning
of terms which had been asserted to are irrelevant, provided that the terms themselves
are unambiguous " judged by a reasonable standard." Citations omitted.
I find that the General Counsel has established that the parties reached a “meeting of
the minds” on the terms of the collective-bargaining agreement. In applying the objective and
reasonable standard under Vallejo and Teamsters Local 287, above, the parties had a clear
meeting of the minds on the understanding of the material terms of the contract and that a
mutual agreement was reached on July 1.24
To be sure, this is not a case where the parties’ agreement itself included ambiguous
language that precluded a meeting of the minds, and thus resulted in there being no contract.
Standard Parking d/b/a ABM Parking Services, 360 NLRB No. 132 (2014). Here, it is not in
dispute that on July 1, Stockwell made clear that there were two sacred issues preventing an
agreement. Boone also testified to the same. Stockwell explained the significance of those two
issues and said what would be needed to his satisfaction. With regards to the two outstanding
issues, Stockwell clearly testified that it would be acceptable to him that the guaranteed 40
hours would not apply during the week of seven holidays and that the inspection time would
continue except for single operated equipment.
I find that Stockwell was speaking with apparent authority that what would be
satisfactory to him would also be acceptable to the Respondent. The MCMA committee
affirmatively acknowledged their agreement to the verbal terms proposed by Stockwell. This
gave the impetus for the Respondent to caucus and return with a handwritten proposal that fully
addressed the two sacred issues of the guaranteed 40 hours of work and the inspection time. It
is reasonable to conclude that if the two remaining issues were not fully vetted out during the
caucus, the Respondent would not have returned with its proposal.
I also find that there the parties had a meeting of the minds that the typed agreement
encompasses all the changes for the new contract and that there were no conditions precedent
for the execution of the contract. Upon the review of the handwritten proposal, the MCMA
bargaining committee did not modify or revise the Respondent’s proposal. The proposal was
clear and unambiguous to the parties and MCMA accepted the proposal without any revisions.
The handwritten proposal was typed and circulated among the bargaining committees.
The Respondent bargaining agents did not object or asked for further modification of the typed
agreement. There was no dispute over the words and no confusion regarding the meaning of
the written agreement. Wells and other witnesses testified that there were no changes made
from the Respondent’s handwritten proposal except for the inclusion as to when the
Respondent would notify MCMA of the wage allocation. The typed agreement did not contain
the language reserving the union’s right to add, subtract, or modify the agreement although
such language could have been included since a Respondent bargaining agent was present

24 Having found that the “meeting of the minds” occurred, I also find that at the tentative agreement
morphed into the terms of a binding collective-bargaining agreement.
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during the discussion and typing of the agreement. The tentative agreement did not state that
the agreement was conditioned on ratification by the union membership.
The parties congratulated themselves, shook hands and ended the meeting. The mood
of the parties after signing the agreement was most telling through Brinker’s testimony (Tr. 203).
He testified that after the parties left the building
We went off on our merry way because we had an agreement, so that was a very
positive thing; it was very euphoric. We had something that they proposed to us, so that
meant they liked it. It wasn’t our proposal; it was their proposal. We were happy.
It is obvious from the parties’ words and actions that their “tone and temperament” on
July1 signaled their belief that they had reached a complete agreement on a successor
collective-bargaining agreement. Brooks, Inc., v Ladies’ Garment Workers, 835 F.2d 1164,
1169 (6th Cir. 1987). They concluded the meeting with handshakes and mutual expressions of
satisfaction on the successful outcome of their negotiations. The “hallmark indication that a
binding agreement has been reached” consists of ending a meeting or series of meetings “with
handshakes and mutual expressions of satisfaction on the successful outcome of their
endeavor.” Teamsters Local 771 (Ready Mixed Concrete), above, slip op. at 5.
3. The Respondent failed to Timely, Clearly and
Unambiguously Notified MCMA of Ratification
In my analysis above, it was my opinion that the Respondent bargaining agents never
timely and clearly provided notice as to any limitations to bargaining authority in negotiating for a
contract. I further determined that the parties’ tentative agreement was clear and unambiguous.
The question remains as to whether the Respondent had timely and clearly notified MCMA that
ratification was a condition precedent to a final agreement on July 1. The General Counsel
argues that the Respondent failed to clearly and timely notify MCMA of any limitations to a
collective-bargaining agreement. The Respondent argues that MCMA was clearly and timely
notified that ratification was required before a final agreement.
I agree with the General Counsel. A condition precedent must be conveyed to the other
party by a clear, timely and unambiguous notice. Auto Workers Local 365, above at 193, 194.
The Board recently reaffirmed this policy and found that the union violated Section 8(b)(3) by
repudiating a final agreement arrived at through negotiations by the parties’ bargaining agent.
The Board stated that “if the limitation placed on the negotiating authority is a condition
precedent to a final and binding agreement the notice must be clear, unambiguous, and,
disclosed to the other party before the agreement is reached.” Teamsters Local 771 (Ready
Mixed Concrete), above, slip op. at 4.25
a. Ratification was not Discussed Before
Signing the Tentative Agreement
Here, the undisputed credible evidence establishes that ratification was never discussed
prior to the bargaining session on July 1. MCMA bargaining agents credibly testified that the

25 The Respondent argues that the there was a condition precedent to a final agreement because the
document was captioned “Tentative Agreement.” I disagreed. It is far from a clear and unambiguous
notice that there was a condition precedent to a binding agreement simply because the document was
captioned “Tentative Agreement.”
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Respondent never discussed the need to ratify any agreement reached at bargaining and never
discussed any ground rules for bargaining. Indeed, Stockwell, Boone, Dunn and other
Respondent bargaining agents conceded that ratification was never discussed with MCMA prior
to the bargaining meeting on July 1. Stockwell admittedly did not disclose to the MCMA
bargaining committee that that he had the authority to bind the union membership to a contract
without a ratification vote during the March 12 meeting because of the Michigan right to work
statute.
It is also undisputed that ratification was not initially discussed on July 1 when the
negotiating teams first met in the large conference room. The Respondent allegedly raised the
issue of ratification at the sidebar session attended by Fealk, Boone and Page (and
subsequently by Estes and Stockwell). Fealk and Estes credibly testified that ratification was
not discussed during their sidebar session with Boone, Stockwell and Page. At best, Boone
informed Fealk and Estes that the guaranteed 40 hours and inspection time were sacred cows
to the union membership, but never said that the agreement had to be ratified. Accordingly, I
find that Boone did not clearly and unambiguously disclose to the MCMA bargaining agents that
ratification was a condition precedent at the sidebar session.
When the sidebar session proved unfruitful, the Respondent bargaining committee
began to leave the building. Stockwell stopped at the large conference room to say goodbye to
the MCMA bargaining committee. Hurst or Tom Woodbeck said “whoa” or “hold on” to
Stockwell and requested that he talk some more and Stockwell agreed. At this point, the rest of
the Respondent bargaining team went into the conference room and sat down. After further
discussions, the parties reached a verbal understanding of the parameters of an agreement and
the Respondent committee agreed to caucus.
Upon the return of the Respondent bargaining agents with a handwritten proposal, the
MCMA considered and fully agreed to the Respondent’s proposed terms for an agreement
without any additional changes. The parties disagree as to what next occurred.
The witnesses testifying on the General Counsel’s case-in-chief consistently and
credibly stated that ratification of the contract was never discussed on July 1. At most, Wells,
Estes, Hurst, Fealk and others heard that only the wage allocation needed ratification. In
contrast, Stockwell said that after Fealk, Wells and Dunn had left the room to type up the
handwritten proposal, Hurst allegedly said to Stockwell that he (Stockwell) could just sign this
and we would have a contract. Stockwell replied to Hurst and Woodbeck that the agreement
had to be taken back to the membership for a vote. In turn, it is alleged that Woodbeck asked
Stockwell if he would recommend the contract and Stockwell replied in the affirmative.
Stockwell said that everyone heard his statement. Boone confirmed he heard the statement
made by Stockwell. Hurst denied that Stockwell mentioned ratification. Hurst said that
Stockwell mentioned only the wage allocation needed to be ratified.
Upon my review, I do not credit Stockwell’s testimony on this point. Stockwell said that
everyone in the room heard his conversation with Hurst and Woodbeck. He specifically recalled
Fealk in the room listening to the conversation. However, Fealk, Wells and Dunn had already
left the conference room to type up the agreement when Stockwell allegedly made his
ratification statement. In subsequent testimony, Stockwell contradicted himself and admitted
that Fealk and Wells were not in the room (Tr. 356). Respondent maintains that Tom
Woodbeck, a member of the MCMA committee heard this conversation. Tom Woodbeck was
not subpoenaed by the Respondent to testify. Instead, the Respondent subpoenaed Tom’s
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brother, Woody Woodbeck. Woody testified that Tom never told him (Woody) that the
Respondent had said anything about ratification on July 1.26
Additionally, Dunn and Dombrow had different versions of this conversation. Dombrow
said that Stockwell made this statement about taking to the membership for ratification to an
unknown person and it was Estes and not Hurst who responded if Stockwell will recommend the
contract to the membership. Estes denied hearing this statement from Stockwell and denied
asking Stockwell if he was going to recommend the contract. Dunn testified that Stockwell’s
statement regarding ratification was made to Hurst, but was not certain (Tr. 478). I do not credit
the testimony of Dunn on this point. Dunn could not recall when Stockwell said to Hurst that the
agreement had to go back for ratification. Dunn also could not recall what had precipitated the
conversation between Stockwell and Hurst (Tr. 478, 479). It is obvious that Dunn could not
place the time of Stockwell’s statement regarding ratification because Dunn was not present in
the conference room since it has been established that he departed with Wells and Fealk to
type up the agreement.
Accordingly, I find that the Respondent never discussed or mentioned to the MCMA
bargaining committee before the tentative agreement was signed that ratification of the tentative
agreement was a condition precedent to a final collective-bargaining agreement.
b. Ratification was not Discussed after
Signing the Tentative Agreement
After the Respondent’s handwritten proposal was typed and signed, the two bargaining
committees gathered once again in the large conference room. The MCMA bargaining agents
gravitated to one side of a rectangular conference table while the Respondent bargaining
agents were on the opposite side of the table. Various individuals were talking to each other
and several conversations were occurring at the same time. Individuals also began
congratulating each other and shaking hands on the signing of the agreement. The Respondent
contends that ratification was again raised at this point. Dunn testified that he had an open
conversation with Dombrow that was loud enough for individuals across from the table to hear
their voices. Since Dunn was involved in the typing of the agreement, Dombrow turned to Dunn
and said that the tentative agreement did not include ratification language at the bottom of the
agreement. Dunn allegedly responded that MCMA knew the agreement was upon ratification.
Dunn testified that Fealk overheard this statement and acknowledged the statement by nodding
his head in the affirmative.
Upon my review of the record, I do not credit the testimony of Dunn and Dombrow on
this point. Both Dunn and Dombrow were inconsistent as to where they were sitting when this
conversation occurred. Dombrow testified that he was directly facing Fealk (Tr. 449). Dunn
testified that he was directly facing Fealk (Tr. 495). Boone’s testimony was entirely different.
He testified that it was Stockwell who made a general statement that the signed agreement
needed ratification and did not recall any response from the MCMA bargaining agents. Upon
further questioning, he remembered that Estes said something to the effect, “we know that” (Tr.
375, 376). Boone also testified that he overheard the Dunn and Dombrow conversation and
that Fealk just “shrugged it off” (Tr. 378. 379).

26 The General Counsel moved to strike Woody Woodbeck’s testimony as hearsay. The counsel for
the Respondent argued that Woodbeck’s testimony was an exception to the hearsay rule because it is an
admission by a party opponent. I allowed his testimony to proceed (Tr. 403, 404). However, Woodbeck’s
testimony actually confirmed the fact that that ratification was not discussed by the parties on July 1.
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I credit the testimony of Fealk and Hurst. Fealk testified that he was sitting at the far
corner of the conference table talking to the mediator who was sitting at the head of the table.
Fealk testified that he was speaking exclusively to the mediator. Fealk denied overhearing the
conversation between Dunn and Dombrow and further denied that he nodded his head in
agreement to the statement made by Dunn. Hurst testified that he never heard the conversation
between Dunn and Dombrow although he was sitting either next (or near) Fealk (Tr. 552). In
addition, Estes, Brinker and Wells never heard this conversation. Boone’s testimony that
Stockwell made a general statement about ratification AFTER the agreement was signed
cannot be credited since no one else testified to the occurrence of this event. Stockwell did not
testify that he made such a statement and did not testify to the Dunn and Dombrow
conversation (Tr. 299, 300).
Under the circumstances where the two bargaining committees were engaged in several
conversations and extending congratulations, it is difficult and unreasonable to imagine that
Fealk overheard the conversation between Dunn and Dombrow. It is further difficult to conclude
that Fealk’s nod was a sign that he agreed with Dunn’s statement that ratification was required.
The objective record also shows that the Respondent continued to represent to MCMA that only
ratification of the wage allocation was required after the tentative agreement was signed by the
parties. As noted above, in a series of correspondence between Stockwell and Fealk, Stockwell
never mentioned that a ratification of the agreement was required. Stockwell’s undated letter to
Fealk states that there is a ‘current Collective Bargaining Agreement’ between the parties and
proceeds to set out the wage allocation for the $2.00 wage increase. In previous testimony,
Stockwell indicated that the wage allocation was determined by the union executive board and
entered into the minutes of the meeting. In my opinion, Stockwell’s letter to Fealk represented
that the wage allocation had already taken place (by the union executive board) and now is
waiting for ratification by the membership. This would be consistent with Stockwell’s earlier
testimony that wage allocation is determined by the executive board before ratification and
consistent with Stockwell’s email on July 8 to Fealk that the “wage allocation has not been
ratified” (GC Exh. 8).
The Respondent maintains that MCMA knew that ratification of the agreement was a
condition precedent based upon the past bargaining practice of the parties and the union
constitution even if disclosure that ratification of the agreement was not timely, clear and
unambiguous.
I find absolutely no credible evidence that the MCMA employer-members knew of the
Respondent’s past practice or were given a copy of the union constitution. Wells, Estes and
other MCMA management officials testified they were unfamiliar and had no knowledge of the
past practice of negotiations between MCMA and the Respondent with regard to ratification. I
credit their testimony that they were never provided a copy of the Respondent’s constitution and
did not know of the past practice of the union as to whether the 2007 and 2010 agreements
were ratified. Upon examination by the General Counsel, Stockwell conceded that he never
informed the MCMA bargaining committee that ratification was required during the 2007 and
2010 contract negotiations. Stockwell believed that the MCMA employer-members knew
ratification was a standard practice, but admitted that he did not know if MCMA was notified
during the 2007 and 2010 negotiations that ratification was required27 (Tr. 324, 325).

27 The attempt by Respondent to show there was a past practice to put the 2007 and 2010 contracts
to a vote was not credible. Correspondence from John Hamilton, the former Respondent General Vice
President, on July 18, 2007 to Estes requesting his signature to the agreement did not mention there was
Continued
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The Board reaffirmed that “[i]f the limitation placed on the negotiating authority is a
condition precedent to a final and binding agreement the notice must be clear, unambiguous,
and, disclosed to the other party before the agreement is reached.” Teamsters Local 771
(Ready-Mixed Concrete), above at slip op. at 4. In that case, the Board found that the union
violated Section 8(b)(3) by repudiating a final agreement arrived at through negotiations by
parties’ bargaining agents. In assessing whether the union’s agent had full authority, it was first
found that apparent agency was established when the union appointed a bargaining agent to
engage in negotiations. Next, it was determined that the employer was not given “clear,
unambiguous, and timely notice” of limited authority. Although in Teamsters Local 771, the
union’s agent did mention that he had to get the document signed by the president and ratified
by the membership, this was only at the end of negotiations, after the parties shook hands, and
was therefore found to be untimely. Given the timing and context of the statement regarding
signature and ratification, it objectively appeared to be a mere “administrative function” rather
than a condition precedent. Id. Finally, it was held that a letter from the union instructing that
“all side agreements must be approved in writing” by the union’s president was insufficient basis
for notice of limited authority because the letter was sent to the employer’s predecessor and
there was “absolutely no evidence that the Employer ever saw the letter or knew of its contents.”
Id. at 5. A similar assessment here shows that apparent authority was established when the
Respondent appointed Stockwell as its bargaining agent and never notified the MCMA
bargaining committee of any limitations on his authority. Next, at no time before July 9 was
clear, unambiguous and timely notice of any limited authority given to the MCMA employer-
members. Assuming that the Respondent (through Stockwell) informed that ratification of the
agreement was required on July 1, I find this was only said at the end of negotiations and
therefore untimely. Even on the morning of the ratification vote, Stockwell continued to
represent that there was a present collective-bargaining agreement between the parties and
only mentioned to Fealk about ratification of the wage allocation. Finally, there is no credible
evidence that the MCMA employer-members knew of the Respondent’s past practice in ratifying
agreements or were given copies of the union constitution.
Accordingly, given these facts, I find that Stockwell had the authority to bind the
Respondent and the absence of any clear and timely notice that Stockwell’s authority to bind the
Respondent was limited. Consequently, the Respondent failed to clearly, timely and without
ambiguity to disclose to the MCMA bargaining agents that ratification was a condition precedent
to a final collective-bargaining agreement. I find and conclude that the Respondent violated
Section 8(b)(3) of the Act when it refused and failed to execute the agreement on July 1.
D. The Respondent violated Section 8(b)(3) of the Act
When it Refused to Bargain with MCMA
The General Counsel also argues that the Respondent failed and refused to bargain
with MCMA when it repudiated its multiemployer bargaining relationship in violation of Section
8(b)(3) of the Act. The General Counsel contends that if the parties reached an agreement on
July 1, then Respondent’s action on July 9 in repudiating the agreement and refusal to bargain
with MCMA is a violation of the Act.
_________________________
a ratification approval of the agreement (E Exh. 2). The tentative agreement for the 2010 contract
purportedly showed that there was a ratification vote on August 20, 2010 (R Exh. 10), but the agreement
was actually signed subsequently on September 10, 2010 (GC Exh. 31).
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Having found above that the parties had entered into a binding five year agreement on
July 1 and the Respondent violated the Act by failing and refusing to execute the final
agreement. I now find that the General Counsel has shown that the Respondent refused to
bargain with MCMA in violation of Section 8(b)(3) of the Act on July 9 and thereafter. Fealk’s
correspondence on July 11 to Stockwell inquired as to whether the Respondent believe the
parties were at impasse and was refusing to engage in further negotiations to bargain (GC Exh.
13). Stockwell testified that the Respondent was only terminating its collective bargaining
relationship with MCMA and not with the individual employer-members of MCMA. Stockwell
responded that given the fact that MCMA employers had short form agreements with the
Respondent, the Respondent perceived no purpose in maintaining dual agreements covering
the same work. Stockwell expected the MCMA employers to continue contributing the funds
under the GLFEA agreement pursuant to the short form agreements (GC Exh. 23). Stockwell
believed that the Respondent could terminate the bargaining relationship with MCMA but still
have the MCMA employer-members pay the fringe benefits under the GLFEA agreement
through the contractors’ short form agreements (Tr. 363-365).
In Retail Associates, 120 NLRB 388 (1958), the Board held that once a multiemployer
bargaining unit is established, either party is permitted to withdraw from the negotiations only
on timely written notice made prior to the contractually established date for modification of the
collective-bargaining agreement or to the agreed-on date for the commencement of
negotiations.
The Respondent argues that Retail Associates, above, is inapplicable in this situation.
The Respondent contends that employers who have an 8(f) relationship with a union do not
have an obligation to bargain for a successor contract absent a 9(a) relationship. The
Respondent contends that under John Deklewa & Sons, 282 NLRB 1375 (1987), absent a 9(a)
relationship, the union has no obligation to bargain a successor contract because the parties
had not reached a complete and final agreement and thus, there was no untimely withdrawal
from bargaining (R Br. at 29).
In John Deklewa, upon the contract’s termination, the signatory union would not enjoy a
presumption of majority status and either party may repudiate the Section 8(f) relationship.
That is exactly what Stockwell unsuccessfully attempted to do on July 9 and 12. It is without
dispute that Stockwell’s letter of July 12 stated that “…the Union has decided to discontinue
bargaining with Michigan Conveyor Manufacturers Association [and] that employers will
contribute under the Great Lakes Fabricators and Erectors Association agreement pursuant to
the short form agreements they have signed with the Union.” By Stockwell’s own admission,
the Respondent refused to continue bargaining with MCMA. However, Stockwell incorrectly
assumed that there was no agreement on July 1. Inasmuch as I found that the parties had
entered into a binding contract on July 1, the holding in John Deklewa would not apply here.28

28 The counsel for the charging party also argued that the 2010-2013 agreement rolled-over for an
additional year on June 20, 2013 and on June 20, 2014 because Respondent failed to timely and properly
give notice of termination at least 90 days prior to the termination of the 2010 contract by May 30, 2013
(GC Exh. 2 at 30). The charging party further contends that the Respondent failed to timely send a
written notice at least 60 days prior to the expiration date pursuant to Section 8(d)(1) of the Act and to
notify the FMCS within 30 days pursuant to Section 8(d)(3) of the Act. See, E Br. at 29-31. I agree.
There is no dispute that the Respondent had failed to timely notify the MCMA to terminate the 2010-2013
contract and failed to timely notified FMCS within 30 days after “such notice of the existence of a dispute.”
Under either scenario, the General Counsel has shown that there was a valid negotiated collective-
bargaining agreement on July 1 or alternatively, there was an annual extension of the 2010-2013
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Jaflo, Inc., 327 NLRB 88 (1998) (As the Respondent’s attempt to withdraw was legally
insufficient and as the union and the association reached an agreement, the Respondent is
legally obligated to execute and abide by its terms). Acme Wire, 251 NLRB 1567, 1571 (1980).
Further, John Deklewa is inapplicable here because the Respondent only sought to abandon a
bargaining relationship with MCMA and not with the individual companies.
The General Counsel also contends that the Respondent inappropriately required the
MCMA employer-members to abide by a collective bargaining agreement (GLFEA) that they
were not a party to and therefore forcing the employers to agree to a non-mandatory subject of
bargaining, i.e., the effective designation of the multiemployer association (GLFEA) as its
bargaining representative and by forcing the employer to be bound by the association
agreement. See, GC Br. at 18.
The counsel for the Respondent moved to strike that portion of the General Counsel’s
brief that attempts to expand the scope of the complaint by alleging that the Respondent’s
actions subsequent to July 9 are a violation of the act. The counsel for the Respondent argues
that when a GLFEA representative sought to intervene in the hearing to protect the rights of the
GLFEA short form agreements, the General Counsel took the position that
At this point, Great Lake Fabricators has no part in this hearing because the issue in this
hearing is whether or not there was a contract on July 1 and whether or not that should
be binding on the Respondent. If we were to bring the issue of which contracts would
be rescinded at this time, it would not be efficient for the purposes of the Act.
The Respondent maintains that the General Counsel is now seeking to expand the
complaint in her closing brief to find that the Respondent has coerced employers to be bound
by a multiemployer association, which they do not belong, as their collective- bargaining
representative. See, R Br. at 2 and motion to strike. The General Counsel and charging party
opposed the motion to strike.29 The counsel for the General Counsel argues she did not
sought to expand the complaint and that the allegations in the complaint clearly set forth the
violations in the complaint.
I agree. Paragraph 12 of the complaint states that “On or about July 9, 2013,
Respondent has failed and refused to bargain with the Charging Party” and paragraph 13
states “By Conduct described in paragraphs 11 and 12, the Respondent has been failing and
refusing to bargain collectively and in good faith with the Charging Party, in violation of Section
8(b)(3) of the Act.” Paragraph 12 serves more than just background information (as contended
by the Respondent). Paragraph 12 is an allegation in the complaint that the General Counsel
believes is a violation of the Act. Paragraph 12 also provides sufficient notice to the
Respondent as to what the General Counsel would be litigating. As such, the Respondent was
fully aware, prepared and had the opportunity to litigate this allegation at the hearing. The
Respondent was not unfairly prejudice of any due process rights when there was the
opportunity to litigate this issue. Accordingly, the Respondent’s motion to strike the allegation
that the Respondent failed and refused to bargain on July 9 and subsequent to that date is
denied.
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contract. Amax Coal Co. Div. v. NLRB, 614 F.2d 872 (3rd Cir. 1980) (failure to provide written notice to
FMCS violative of Section 8(b)(3) of the Act).
29 The motion to strike and the opposing responses have been made part of the record. I have
identified them as Hearing Exh. 1.
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While I find that the Respondent violated the Act when it failed and refused to bargain
with MCMA on July 9 and subsequent to that date, it does not necessarily follow that the MCMA
employers were coerced by the Respondent and forced to contribute the funds under the
GLFEA agreement.
The General Counsel argues that the MCMA employers are being compelled and bound
to an agreement negotiated by a multiemployer association (GLFEA) to which they do not
belong through coercion by the Respondent in violation of Section 8((b)(1)(B). The General
Counsel maintains that the Respondent unlawfully required the MCMA employers to pay wages
and fringes under a CBA that some were not a party to. In cases cited to by the General
Counsel and, in particular, Local 70, Teamsters (Emery Worldwide), 295 NLRB 1123, 1135
(1989), the Board held that the union violated Section 8(b)(3) by striking to coerce the employer
to abandon the agreed-to national agreement and Commercial Workers Local 1439, 262 NLRB
309 (1982), the Board found that the union violated Section (b)(3) when the union threatened
the employer with economic sanctions when it refused to sign an area agreement and because
the threatened economic sanctions had the effect of coercing the employer to select
Respondent to be its representative in violation of Section (b)(1)(B).
I find that the Respondent’s expectations that the MCMA employer-members should
abide by the GLFEA short form agreement did not amount to coercion or had the effect of
coercing the MCMA employer-members to select another multiemployer association as its
bargaining representative in violation of Section (b)(1)(B).30 At the hearing, testimony and
exhibits from both sides were taken regarding how the fringe benefits would be contributed
absent an agreement. Stockwell testified that the contractors would fall back on their short form
agreements. Witnesses for the MCMA companies testified as to what they did or did not do
with Stockwell’s request to contribute the funds to the GLFEA account. The testimony of record
shows that witnesses for the MCMA employers were instructed to contribute the monthly fringe
funds to GLFEA regardless of whether they had a short form agreement with GLFEA or not
(GC Exhs. 11, 18, 22, 23 and 34). The Respondent refused to stipulate that it notified the fringe
benefit funds that MCMA contractors should now be paying under GLFEA and that the fringe
benefit fund had reiterated that to the MCMA contractors (Tr. 84). Hurst testified that he is and
has been providing the wage allocation to GLFEA although Aristeo does not have a short form
agreement with GLFEA (Tr. 247).
However, while some MCMA employers paid into the GLFEA account after being
notified by the benefit funds that they had incorrectly contributed to MCMA, other MCMA
employers continued to contribute to MCMA. Estes testified that he was instructed to use the
GLFEA check-off box (box J) in making his company’s contribution to the fund even though his
company never had a short form agreement with GLFEA. Estes said that he continued to
contribute to the funds through MCMA because he had checked off the MCMA box in the short
form agreements for Central Conveyor and Conveyor Processing (Tr. 154). Brinker testified
that Dearborn continued to abide by the expired contract with MCMA (Tr. 210).31 There was no

30 I would also note that the counsel for the General Counsel did not specifically allege a violation of
Section 8(b)(1)(B) of the Act in her complaint. As a consequence, the alleged (b)(1)(B) violation was not
fully responded to and subjected the Respondent to a disadvantage with regard to this allegation.
Nevertheless, based upon the limited evidence taken, it is my opinion that the Respondent did not coerce
the MCMA employer-members to select another association as its bargaining representative in violation
of Section (b)(1)(B).
31 LaLonde testified that someone from the Respondent informed his office at the fringe benefits
pension fund that the fund should be collecting the contributions for GLFEA (Tr. 529). However, LaLonde
Continued
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testimony proffered that the Respondent attempted to threaten the employers who had not
abided by the GLFEA short form agreement with strikes and economic sanctions. Indeed,
Stockwell said that he expected the MCMA employers to abide by the short form agreement,
but there is no evidence that he had demanded to the employers to contribute the funds
through GLFEA or threatened the employers if they refused.
Accordingly, I find that the Respondent did not coerce MCMA employer-members to
contribute funds under the short form agreements with GLFEA in violation of the Act.
D. The Remedy
Among other relief sought in this complaint, the General Counsel amended the remedy
in the complaint to include
2(a) Upon the Charging Party’s request, execute the July 1, 2013 agreement described
above in paragraph 9(b) and apply it retroactively to July 1, 2013. If the Charging Party
does not request execution of the July 1, 2013 agreement, upon request, Respondent
must reinstate the terms of the 2010-2013 collective-bargaining agreement.
2(c) Rescind any agreements made between Respondent and any employer-member
including but not limited to the March 27, 2013 through May 31, 2018 agreement
between Respondent and the Great Lakes Fabricators and Erectors Association
(GFLEA) as it applies to the employer-members of the Charging Party, and make whole
all employer-members for any expenditures pursuant to said agreements which they
would not have been obligated to make under the July 1, 2013 agreement.
With regard to 2(a) of the remedy requested by the General Counsel, it is clear that
where a party refuses to execute a duly negotiated collective-bargaining agreement, the “Board
will direct it to do so and to give retroactive effect to the terms of the agreement.” A.W. Farrell &
Son, above, slip op. at 3. Accordingly, it is appropriate to order the execution of the July 1, 2013
negotiated agreement upon request of the charging party or if the request is not made to
execute the July 1 agreement, upon request, Respondent must reinstate the terms of the 2010-
2013 collective-bargaining agreement.
The amended remedy in 2(c) would also rescind any agreements made between the
Respondent and any employer member associations and was not limited to GLFEA. When a
legal representative from GLFEA appeared and sought to intervene, the General Counsel
strenuously argued against the intervention. The General Counsel maintains that “If we were to
bring the issue of which contracts would be rescinded at this time, it would not be efficient for
the purposes of the Act” (Tr. 15).
I find it is not appropriate that the collective-bargaining agreements entered into by the
Respondent with other multiemployer associations must be rescinded in order to effectuate the
remedial nature of an 8(b)(3) violation. The cases cited by the counsel for the General Counsel
deal with situations where the Respondent unions affirmatively coerced, engaged in economic
sanctions or threatened economic sanctions. Under such circumstances, as stated in
_________________________
maintains that the pension fund is a separate entity and it sought legal counsel before allocating the
contributions to GLFEA consistent with the short form agreements (Tr. 516, 527). In my opinion, it does
not seem likely to support the allegation that the pension fund was ordered by the Respondent to redirect
the contributions to the GLFEA account.
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Teamsters Local 70 (Emery Worldwide), above, at 1123 and quoting the Ninth Circuit in NLRB
v. Longshoremen ILWU Local 17, 451 F.2d 1240, 1243 (9th Cir. 1971), the Board held that “if a
party who unlawfully refuses to bargain is permitted to retain the fruits of unlawful action, the
Act is rendered meaningless.”
However, as noted above, here, the situation is entirely different. Stockwell and other
union officials never threatened, coerced, or engaged in strikes and other economic sanctions
against the MCMA employer-members if they decided not to abide by the GLFEA short form
agreements. As most, Stockwell requested and expected the employers to use the GLFEA
short form agreements. This is far from forcing the employers to abide by such agreements.
Accordingly, I find and conclude that rescission of any other collective-bargaining
agreement would be inappropriate.
Conclusions of Law
1. The Charging Party is a multiemployer association engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.
2. The Respondent, International Union of Operating Engineers, Local No. 324 and 324-
A, is a labor organization within the meaning of Section 2(5) of the Act.
3. At all times material herein, the Respondent has been the exclusive bargaining
representative for the employees of the MCMA employer-members in the following appropriate
unit of
All employees employed by employer-members of the Michigan Conveyor
Manufacturers Association as described in Articles I(A), II (A, B, and C) and XI of the
collective-bargaining agreement between the Union and the Association effective from
June 1, 2007 through May 31, 2010, thereafter renewable from year to year, absent
proper notification by one party to the other of its desire to change or terminate the
collective-bargaining agreement.
4. The Respondent engaged in unfair labor practice in violation of Section 8(b)(3) of the
Act when it repudiated the collective-bargaining agreement and tentative agreement that the
parties duly negotiated on July 1, 2013, and failing and refusing to abide by the 2010-2013
collective-bargaining agreement.
5. The Respondent violated Section 8(b)(3) of the Act when it failed and refused to
bargain with the Charging Party after July 9, 2013 without bargaining to an overall lawful impasse
in contract negotiations.
6. The Respondent’s acts and conduct described above constitute unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the Act.
7. The Respondent did not violate Section 8(b)(1)(B) and 8(b)(3) of the Act when it
allegedly coerced the employer-members of MCMA to select another multiemployer association
as its collective-bargaining representative.
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ORDER
Having found that the Respondent has engaged in certain unfair labor practices within
the meaning of Section (b)(3) of the Act, I find that it must be ordered to cease and desist and to
take certain affirmative action designed to effectuate the policies of the Act.
On these findings of fact and conclusion of law and on the entire record, I issue the
following recommend32
The Respondent, International Union of Operating Engineers, Local 324 and 324-A,
AFL-CIO for the State of Michigan, its officers, agents, successor, and assigns, shall
1. Cease and Desist from
(a) Failing and refusing to bargain collectively with the Michigan Conveyor
Manufacturers Association (the Association) by failing and refusing to execute the collective-
bargaining agreement embodying the terms and conditions of employment for the employees of
the Association employer-members agreed upon by the Respondent on July 1, 2013.
(b) In any like or related manner restraining with or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the purposes and policies
of the Act.
(a) Upon request by the Association execute the collective-bargaining agreement that
was reached with the Association on July 1, 2013, for all employees in the following
appropriate bargaining unit:
All employees employed by employer-members of the Michigan Conveyor
Manufacturers Association as described in Articles I(A), II (A, B, and C) and XI of the
collective-bargaining agreement between the Union and the Association effective from
June 1, 2007 through May 31, 2010, thereafter renewable from year to year, absent
proper notification by one party to the other of its desire to change or terminate the
collective-bargaining agreement.
(b) Give retroactive effect to the provisions of the collective-bargaining agreement
reached with the Association on July 1, 2013.
(c) If the Association does not request execution of the July 1, 2013 agreement, upon
request by the Association, reinstate the terms of the 2010-2013 collective-bargaining
agreement.
(d) Within fourteen (14) days after service by the Region, post at the Respondent’s
business offices and meeting halls throughout the State of Michigan, a copy of the attached

32 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 purposes.
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notice marked “Appendix.”33 Copies of the notice, on forms provided by the Regional Director
for Region 7, after being signed by the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees and members are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In addition to physical
posting of paper notices, the notices shall be distributed electronically, such as by email, posting
on an intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees and members by such means.
(e) Within 14 days after service by the Region, deliver to the Regional Director of Region
7 signed copies of the notice in sufficient numbers for posting by the Association employer-
members at their facilities, if it wishes, in all places where notices to employees are customarily
posted.
(f) Within 21 days after service by the Region, file with the Regional Director of Region 7
a sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C. September 23, 2014
________________________________
Kenneth W. Chu
Administrative Law Judge

33 If this Order is enforced by a judgment of the United States Court of Appeals, the words in the
notice reading “Posted by Order of the National 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.”
JD(NY)–41–14
APPENDIX
NOTICE TO MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
FEDERAL LAW GIVES YOU THE RIGHT TO:
• Form, join, or assist a union;
• Choose a representative to bargain with your employer on your behalf;
• Act together with other employees for your benefit and protection;
• Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT refuse to bargain collectively with Michigan Conveyor Manufacturers
Association (the Association) and employers who have authorized the Association to bargain on
their behalf, regarding employees’ wages, hours, and other working conditions.
International Union of Operating Engineers, Local No. 324 and 324-A, AFL-CIO (the Union) is
the limited collective bargaining representative of the employees in the following appropriate
unit:
All employees employed by employer-members of the Michigan Conveyor
Manufacturers Association (the Association) as described in Articles I (A), II (A,
B, and C) and XI of the collective-bargaining agreement between the Union and the
Association effective from June 1, 2007 through May 31, 2010, thereafter renewable
from year to year, absent proper notification by one party to the other of its desire to
change or terminate the collective-bargaining agreement.
WE WILL not in any like or related manner restrain or coerce employees in the rights
guaranteed to them by Section 7 of the National Labor Relations Act.
WE WILL upon the Association’s request, execute the July 1, 2013 agreement and apply it
retroactively to July 1, 2013. If the Association does not request execution of the July 1, 2013
agreement, WE WILL upon request, reinstate the terms of the 2010-2013 collective bargaining
agreement.
WE WILL upon request, bargain with the Association and the employer-members of the
Association regarding wages, and other terms and conditions of employment.
LOCAL NO. 324 AND 324-A, INTERNATIONAL
UNION OF OPERATING ENGINEERS (IUOE), AFL-CIO
___________________________________________________
(Labor Organization)
Dated: _______________ By:__________________________________________
(Representative) (Title)
JD(NY)–41–14
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Federal Building, Room 300
Detroit, Michigan 48226-2569
Hours: 8:15 a.m. to 4:45 p.m.
313-226-3200.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/07-CB-109303 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 313-226-3244.