Polycon Industries,Inc.

National Labor Relations Board - Administrative Judge Opinions

Nov 12, 2013

13-CA-104249 (N.L.R.B. Nov. 12, 2013)

JD–79–13
Merrillville, IN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
POLYCON INDUSTRIES, INC.
and Case 13–CA–104249
TEAMSTERS LOCAL UNION NO. 142,
AFFILIATED WITH THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Cristina Ortega, Esq.,
for the General Counsel.
Steven A. Johnson and Arthur C. Johnson, Esqs.,
for the Respondent.
Paul T. Berkowitz, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEOFFREY CARTER, Administrative Law Judge. This case was tried in Chicago,
Illinois on September 16, 2013. Teamsters Local Union No. 142, affiliated with the International
Brotherhood of Teamsters, (the Union) filed the charge on May 2, 2013,1 and the General
Counsel issued the complaint on July 19, 2013.
In the complaint, the General Counsel alleges that Polycon Industries, Inc. (Respondent)
violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by, since on or
about May 9, 2013, refusing to execute a written agreement with the terms and conditions of
employment that Respondent negotiated with the Union. Respondent filed a timely answer
denying the violation alleged in the complaint.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following

1 All dates are in 2013 unless otherwise indicated.
JD–79–13
2
FINDINGS OF FACT
I. JURISDICTION
5
Respondent, an Illinois corporation, manufactures bottles at its facility in Merrillville,
Indiana, where it annually sells and ships goods valued in excess of $50,000 directly to points
outside of the State of Indiana. Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the Act. 10
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Union -- Background
15
Since July 27, 2010, the Union has been the exclusive collective-bargaining
representative of the following appropriate bargaining unit:
All full-time and regular part-time production and warehouse employees employed by
[Respondent] at its facility currently located at 8919 Colorado Street, Merrillville, IN; 20
excluding all office clerical employees and guards, professional employees and
supervisors as defined in the Act.
(GC Exhs. 1(c), par. V, 1(e), par. V; see also Transcript (Tr.) 18.)
25
B. Negotiations for a Collective-Bargaining Agreement
1. Early contract negotiations
In October 2010, the Union and Respondent began negotiations for an initial collective-30
bargaining agreement. Union organizers Harvey Jackson and Les Lis served as members of the
Union’s negotiating team, while Respondent’s vice president/chief financial officer William
(Bill) Hansen and Respondent’s attorney Steven Johnson handled negotiations for Respondent.
(Tr. 17–19, 56–57.) For the most part, negotiations went smoothly, and the parties agreed to
contract language in several areas, including a union-security clause that stated as follows:35
The Employer hereby recognizes the Union as the sole and exclusive bargaining agent for
all employees covered by the terms and provisions of this Agreement. All present
employees who are members of the Union on the effective date of this Agreement shall
maintain their membership in good standing in the Union as a condition of their 40
employment. All present employees who are not regular members of the Union shall, on
or after the 31st day following the date of the execution of the Agreement, be required to
become and remain members in good standing of the Union as a condition of their
employment. All employees who are hired hereafter shall be required to become and
remain members in good standing of the Union as a condition of their employment from 45
and after the 31st day of their employment or the effective date of this Agreement,
whichever is later.
JD–79–13
3
(Joint (Jt.) Exh. 2, Article I, Section 2; see also Tr. 27–28.)
2. January 2013 – Union members vote to ratify a draft contract
5
On January 5, 2013, Union members voted to ratify a draft version of the collective-
bargaining agreement. (Tr. 20; Jt. Exh. 2.) On January 16, the Union sent a copy of the ratified
draft contract to Hansen, with the accompanying message “Here is the contract that was voted on
hope it is OK. Please let me [know].”2 (Jt. Exh. 3; Tr. 20, 29–30 )
10
3. February 2013 – the parties agree to correct an error in the draft contract regarding
employee vacation time
In February 2013, the parties met to discuss a typographical error in the draft contract
regarding employee vacation time. The January 2013 draft contract contained language stating 15
that full-time employees would begin receiving three weeks of paid vacation on “the anniversary
of their third year of employment” with Respondent. (Jt. Exh. 2, Article 4, Section 3.) The
parties agreed that this provision should be corrected to state that full-time employees would
begin receiving three weeks of paid vacation on the anniversary of their tenth year of
employment with Respondent. (Tr. 20–22; see also Jt. Exh. 7, Article 4, Section 3 (draft contract 20
with the corrected vacation language.)
On March 11, Steven Johnson emailed Union organizers Jackson and Lis, as well as
Union attorney Paul Berkowitz, to ask the Union to send Respondent a copy of the revised
contract before submitting it to the bargaining unit for ratification. As Johnson stated, “Bill 25
[Hansen] and I will need one final review before we ‘sign off’ on your submission which should
guarantee that we are all on the same page.” (Jt. Exh. 4; Tr. 30–31.)
4. Respondent raises concerns about the union-security clause
30
On March 12, before the Union responded to his March 11 email, Johnson contacted the
Union to express his concern about the union-security clause in the revised contract. Johnson
stated as follows:
Good morning,35
Because of the length of time taken in bargaining, it may be that the union security clause
need[s] to be reviewed so as to be in compliance with the Indiana Right to Work statute.3
I’ll take a look when you email your final draft.
40

2 The Union’s decision to vote on the draft contract in January 2013 was premature because, in
contrast to the Union’s normal practice, the Union did not send a copy of the draft contract to Respondent
for review before holding the ratification vote. (Tr. 28–29.)
3 The Indiana right-to-work statute took effect on March 15, 2012. (Tr. 23–24.)
JD–79–13
4
Wanted to bring this up now, so that you don’t have to vote the contract a third time,
inasmuch as you wouldn’t want to sign a document not in compliance with the law, and
certainly we wouldn’t sign either.
(Jt. Exh. 5; Tr. 31–32.) Subsequently, the Union sent Respondent two drafts of the revised 5
contract that contained the corrected employee vacation language, but did not contain any new
language regarding the union-security clause.4 (Jt. Exhs. 6–7; Tr. 21–22, 32–34.)
Later on March 12, the Union responded to Johnson’s email about the union-security
clause by sending a proposed memorandum of understanding. The memorandum of 10
understanding stated that the union-security clause in the collective-bargaining agreement would
have no force or effect while the Indiana right-to-work law was in effect, but also stated that
should the right-to-work law be nullified, invalidated or repealed, then the union-security clause
would become effective to the full extent permitted by law. (Jt. Exh. 8; Tr. 34.)
15
On March 19, Johnson emailed the Union to respond to the memorandum of
understanding that the Union proposed. Johnson rejected the proposed memorandum, explaining
his rationale as follows:
Have received and reviewed the union security language. Thanks for sending. I’m sure 20
you understand that we will not execute a contract that, on its face, violates state law. If
you have better language, we’ll be happy to take a look. If not, I have language.
(Jt. Exh. 9; see also Tr. 35.) The Union responded later that day by proposing that the parties
add contract language at the beginning of the union-security clause to state that the union-25
security clause “will be enforced to the extent allowed by law.” The Union also encouraged
Respondent to send alternative language if it wished to do so. (Jt. Exh. 10; Tr. 36.)
5. March 23 – Union members ratify draft contract with corrected vacation language
30
On March 23, the Union held a ratification vote on the draft contract that included the
corrected employee vacation language, but also contained the union-security clause language that
Respondent previously deemed objectionable. Before conducting the vote, however, the Union
did advise the bargaining unit that the union-security clause would be changed in light of the new
right-to-work law, and that the change to that clause would not have an economic impact. Union 35
members thereafter voted to ratify the revised draft contract. (Tr. 22, 36; see also Jt. Exh. 7
(version of contract that Union members ratified on March 23).)
40

4 The Union administrative assistant that sent the revised contracts was not copied on Johnson’s
March 12 email about the union-security clause. Thus, Johnson’s March 12 email simply crossed in
cyberspace with the Union’s March 12 emails with the revised contracts that corrected the employee
vacation language. (Tr. 21–22, 32–34.)
JD–79–13
5
6. March 25 through May 1 – the parties continue discussions
about the union-security clause
On March 25, the Union (via Jackson) emailed Respondent a “final” draft of the contract
that included the Union’s proposed language that the union-security clause would only be 5
enforced to the extent allowed by law. Jackson asked Respondent to send him any language
changes or corrections that were not reflected in the draft. (Jt. Exh. 10; see also Jt. Exh. 10A
(March 25 draft contract); Tr. 38.) At trial, Jackson acknowledged that the parties had not yet
reached an agreement about the union-security clause and how it should be modified to account
for the right-to-work statute. (Tr. 37.)10
Upon receiving no response to his March 25 email, on April 25, Jackson sent a follow-up
email to Respondent to ascertain Respondent’s position on the union-security clause. Jackson
stated as follows in his April 25 email:
15
I have not received the language you said you would send. Please contact me to resolve
this LAST issue. We will also need to talk about changing the date the contract takes
effect. I had no idea to get the simple language done it would take so long.
(Jt. Exh. 10; Tr. 25, 37.) Jackson also contacted Union attorney Paul Berkowitz for assistance. 20
(Tr. 26, 39.)
On April 30, Berkowitz sent Johnson a letter to notify him that the Union planned to file
an NLRB charge against Respondent unless Respondent signed the collective-bargaining
agreement that Union members ratified on March 23. Berkowitz provided the following 25
rationale for the Union’s anticipated charge:
Dear Steve:
Barring your client’s signing the agreed upon Collective Bargaining Agreement (ratified 30
by the Union membership on March 23, 2013 with the Company being notified shortly
thereafter of the approval of the Contract), my client will be filing the attached 8(a)(5)
NLRB Charge due to Polycon’s failure to sign the parties’ agreed upon Collective
Bargaining Agreement.
35
I understand the confusion over the “Union Security Clause” which both parties agreed to
in the ratified Collective Bargaining Agreement. However, the need to renegotiate
Article 1– Section 2 due to Indiana’s adoption of its Right to Work statute is subject to
Article 23. Thus, it is not a legal basis for the Company’s refusing to sign the Contract.
40
As we both know, Article 23 is entitled “Separability and Savings Clause” and states as
follows:
Section 1. If any Article or Section of the Contract or of any attachments thereto
should be held invalid by operation of law or by any tribunal of competent 45
jurisdiction, or if compliance with or enforcement of any Article or Section would
be restrained by such tribunal pending a final determination as to its validity, the
JD–79–13
6
remainder of this Contract and [or] any attachments [] shall not be affected
thereby.
Section 2. In the event that any Article or Section is held invalid or enforcement
thereof or compliance therewith has been restrained, as above set forth, the parties 5
shall enter into immediate collective bargaining negotiations, upon the request of
the Union, for the purpose of arriving at a mutually satisfactory replacement.
Pursuant to Section 2 of Article 23, Local 142 Business Representative Harvey Jackson
has already provided you with the Union’s proposed language for a satisfactory 10
replacement of the Union Security provision. You acknowledged receipt on March 19,
2013, but have failed to respond to the requests to negotiate said language or to simply
accept it. Thus, this letter constitutes the Union’s grievance against Polycon for its
failure to follow the contractually required procedure set forth in Article 23, Section 2.
Please let me know at which Step of the grievance procedure the Company wishes to 15
begin the process. The Union suggests immediately going to Arbitration. If the
Company refuses to participate in the grievance procedure, then, the Union will amend its
Charge to include a unilateral change of the Collective Bargaining Agreement.
Whether [intentionally] or not, a basically administrative task is being turned into a road 20
block which is leading into at least one and potentially two Charges being filed against
Polycon. It would make a lot more sense to all concerned if the Company simply accepts
the Union’s proposed replacement language or at least responds with a counter proposal.
But in either event, your client is legally required to sign the agreed upon Collective
Bargaining Agreement.25
As noted as the beginning of this letter, the refusal to sign the Collective Bargaining
Agreement will result in the attached Charge being filed at the end of the day tomorrow,
May 1, 2013, unless you notify this Office that your client is in fact signing the Collective
Bargaining Agreement. At the same time, I would appreciate your telling us where you 30
stand on the Union’s proposed replacement language.
(Jt. Exh. 12.)
Later on April 30, Johnson advised Berkowitz that “if you feel the need to file the charge, 35
please do so. The employer might want to determine how the full Board and 7th Circuit come
down on whether a union and the Board can compel an employer to execute an Agreement that
contains language that violates a state’s valid right-to-work law. That said, I’ll take a look [at
Jackson’s proposed language] tomorrow, and if you file, we can deal with that in the future.” (Jt.
Exh. 13.) 40
JD–79–13
7
On May 1, Johnson sent Berkowitz proposed union-security clause language that
Respondent believed would comply with the Indiana right-to-work statute.5 Johnson requested
that Berkowitz incorporate the proposed language into the agreement and then send the revised
contract to Respondent for review and signature. (Jt. Exh. 14.)
5
7. May 2 – the Union files its NLRB charge and
employees begin circulating a decertification petition
Berkowitz replied to Respondent’s proposed union-security clause language on May 2
with an email that stated:10
Hi Steve
My client will be filing the NLRB Charge against Polycon for its illegal refusal to sign
the collective-bargaining agreement.15
Now that we have begun negotiations in an attempt to arrive at a mutually satisfactory
replacement for the Union Security Clause, the Charge will not include an allegation of
the company’s illegal and unilateral attempt to modify Article 23 of the contract.
20

5 Respondent’s proposed union-security clause language stated as follows:
Employees have a certain rights to Union membership as covered by the National Labor
Relations Act. For the purposes of this section, an employee shall be considered to be a member
of the Union if he timely tenders the dues required for purposes of representation.
The Employer will grant the Union an opportunity during the orientation of new employees to
present the benefits of Union membership, at which time the Union may give such employees a
copy of the agreement between the Union and the Employer. For this purpose, the Employer shall
notify the designated Union representative of the starting date of new employees within thirty
(30) days of their start date.
Employees covered by this Agreement are not required to become or remain a member of the
Union. Employees covered by this Agreement are not required to pay dues, fees, assessments, or
other charges of any kind or amount to a labor organization. Employees covered by this
Agreement may choose to undertake any of the aforementioned activities; however, said choice is
the employee’s and employee’s alone. The aforementioned activities are not conditions of
employment or necessary for the continuation of employment. Neither the Employer nor the
Union will threaten, coerce, or in any manner attempt to sway an employee’s choice to undertake
or not undertake any of the aforementioned activities. . . .
The Employer and Union agree that a covered employee may change his decision in regard to the
aforementioned activities at any time, and said decision [has] no effect on the employee’s
continuation of employment or any condition of employment. Upon notifying the Employer or
Union of his changed decision, the Employer and the Union shall honor that decision.
(Jt. Exh. 14, page 2.)
JD–79–13
8
On that note, I can tell you that your proposed replacement, Section 2 is rejected. My
client’s counter-proposal is that Article 1 be retitled “Recognition” and that the following
sentence be added between the first and second sentences of the current Section 2.
The parties recognize that Indiana has recently adopted a Right-To-Work statute 5
and thus the following three sentences are of no force or effect and will not be
implemented so long as the Indiana Right-To-Work statute remains in effect.
Please let me hear from you.
Paul10
(Jt. Exh. 15, page 3; see also GC Exh. 1(a) (NLRB charge in this case filed on May 2).)
Also on May 2, some of Respondent’s employees began circulating a decertification
petition.6 The employees that signed the petition asserted that we “do not want to join Local 142 15
and refuse to pay dues to same.” Twenty-one (21) employees signed the decertification petition
on May 2. (Jt. Exh. 17.)
8. May 3 – The parties agree to revised union-security clause language
20
On May 3, Johnson emailed Berkowitz and agreed to the Union’s May 2 proposal
regarding the union-security clause language for the contract. Johnson stated:
Paul,
25
Good talking with you yesterday. Your proposed language is fine. I think you intended
that the proposed language be placed between the first and second paragraphs (not
sentences), as it makes no sense otherwise. That being the case:
1. Let’s have the contract start date be May 1, 2013.30
2. Because of the problems regarding language, in addition to signing the
agreement, we should initial and date each page, thereby assuring that the
copies distributed in the future are what was signed, and not a printed copy of
an earlier version.
35
If that is acceptable, please have the CBA revised and sent; I will review and, assuming
that it is consistent with our agreement, forward to the client for signing.
Regards,
Steve40
(Jt. Exh. 15, page 2.)

6 Certain employees began expressing their unhappiness with the Union in late April. For example,
employee Michael Phipps began researching how to start a decertification petition after he attended a
Union meeting in late April. (Tr. 51–54.) Similarly, at shift meetings in late April, Hansen fielded
questions from a few employees about how they might go about getting rid of the Union. (Tr. 65.)
JD–79–13
9
In response to Johnson’s email, on May 7, Berkowitz emailed Johnson a copy of the
revised contract for review and signature. Berkowitz included the following notes about the
revised draft:
5
I have inserted the agreed upon sentence into Article 1, Section 2 of the contract. In re-
reviewing the document, it seems to me that the current second sentence in Section 2
which states “Said authorization shall be in compliance with all applicable Federal and
State Language” makes more sense being placed as the second sentence in Section 3. If
you disagree with the movement of that sentence, then the Union will agree to your 10
position. However, our request is not substantive other than to say we will comply with
the law.
Please review the entire contract. I obviously have no objection to your request that each
page be initialed and dated. If you and your client can do so, [] you can have your client 15
sign off on the signature page at the end of the contract, and get the document to my
Office, I will have Les and Harvey do the same and return a completely executed contract
to you.
(Jt. Exh. 15, pages 1–2; see also Jt. Exh. 16, Article 1, Section 2 (May 7 draft contract that 20
incorporated the union-security clause language that the parties agreed upon on May 3); Jt. Exh.
15, page 1 (May 8 email that Berkowitz sent to Johnson to follow up with Respondent about
signing the contract).)
9. May 9 – Respondent notifies the Union that it will not sign the contract25
On May 9, Johnson emailed Berkowitz to notify him that Respondent would not be
signing the collective-bargaining agreement. Johnson offered the following explanation for
Respondent’s decision:
30
Hi Paul,
. . . In checking my emails from the last several days, I found yours. I wanted to review
the contract you sent before sending to the client; I gave the client a call.
35
I am advised, and as you are probably aware, the employees have contacted the Board
regarding a [decertification petition]; I am advised that most employees signed a petition,
perhaps 60.7

7 As of May 3, forty-two (42) employees had signed and dated the decertification petition. That
number rose to forty-nine (49) employees by May 6. An additional eleven (11) employees signed the
petition, but there is no evidence (such as a date next to their signature) that establishes precisely when
they did so. (Jt. Exh. 17.) As of May 22, there were 106 employees in the bargaining unit. (Jt. Exh. 18,
page 1.)
Respondent (through Hansen) was aware that a decertification petition was being circulated in early
May because some employees brought individual pages of the petition (but not the entire petition) to his
attention. (Tr. 66.)
JD–79–13
10
I am not going to review the document, nor send the document to the client for review
and signature until I have some idea what’s going on. At least at this point, it appears
that [the Union] does not enjoy the support of a majority of the Polycon workforce, and if
that’s the case, the Board can guide us through the appropriate steps.
5
Regards,
Steve
(Jt. Exh. 15, page 1.)
10
10. Decertification petitions filed
On May 22, employee Michael Phipps filed a decertification petition with the Board.
There were 106 employees in the bargaining unit when Phipps filed the petition. (Jt. Exh. 18,
page 1; see also Tr. 53–54.) The Board notified Respondent that the petition had been filed. (Jt. 15
Exh. 18, pages 2–8.)
Respondent, in turn, filed an “RM” petition on June 20 regarding the Union’s
representation of the bargaining unit. There were 98 employees in the bargaining unit when
Respondent filed its petition. (Jt. Exh. 19, page 1.)20
DISCUSSION AND ANALYSIS
A. Credibility Findings
25
A credibility determination may rely on a variety of factors, including the context of the
witness’ testimony, the witness’ demeanor, 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. Relco Locomotives, Inc., 358 NLRB No. 37, slip op. at 12 (2012), enfd. ___
F.3d ___, 2013 WL 4420775 (8th Cir. 2013); see also Roosevelt Memorial Medical Center, 348 30
NLRB 1016, 1022 (2006) (noting that an ALJ may draw an adverse inference from a party’s
failure to call a witness who may reasonably be assumed to be favorably disposed to a party, and
who could reasonably be expected to corroborate its version of events, particularly when the
witness is the party’s agent). 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 35
all, of a witness’ testimony. Relco Locomotives, 358 NLRB No. 37, slip op. at 12.
In this case, credibility is generally not at issue because the majority of the testimony that
witnesses provided was unrebutted and was corroborated by documentation that was admitted
into evidence. The Findings of Fact accordingly incorporate the testimony of all of the witnesses 40
who testified at trial, to the extent that their testimony was based on their personal knowledge
and was corroborated by other evidence. To the extent that credibility issues did arise, I have
stated my credibility findings in the Findings of Fact above.
45
JD–79–13
11
B. Is Respondent Obligated to Execute the Contract?
It is well settled that the obligation in Section 8(d) of the Act to bargain collectively
requires either party, upon the request of the other party, to execute a written contract
incorporating an agreement reached during negotiations. However, this obligation arises only if 5
the parties had a “meeting of the minds” on all substantive issues and material terms of the
agreement. 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 the Act. Windward Teachers Assn., 346 10
NLRB 1148, 1150 (2006).
A “meeting of the minds” in contract law is based on the objective terms of the contract
rather than on the parties’ subjective understanding of the terms. Thus, subjective
understandings (or misunderstandings) of the meaning of terms that have been agreed to are 15
irrelevant, provided that the terms themselves are unambiguous when judged by a reasonable
standard. When the terms of a contract are ambiguous, and the parties attach different meanings
to the ambiguous terms, a “meeting of the minds” is not established. Hempstead Park Nursing
Home, 341 NLRB 321, 322 (2004); see also Windward Teachers Assn., 346 NLRB at 1150.
20
1. The parties reach a meeting of the minds about contract terms on May 3
As established in the evidentiary record, the parties began contract negotiations in
October 2010. It is undisputed that after an extended period of negotiations, by early 2013 the
parties had reached an agreement on all but two issues: (a) correcting a typographic error in 25
Article 4, Section 3 of the contract regarding employee vacation time; and (b) modifying the
union-security clause language in Article 1, Section 2 of the contract to be consistent with the
Indiana right-to-work statute that took effect in 2012. (Findings of Fact (FOF) Section II(B)(1)–
(4).) The parties agreed on revised language for Article 4, Section 3 (employee vacation time)
by March 2011, leaving the union-security clause language as the only remaining issue on the 30
table. (FOF, Section II(B)(3)–(4).)
Initially, the parties volleyed proposals back and forth about the union-security clause.
(See FOF, Section II(B)(4), (6).) I find, however, that the parties reached an agreement about
revised union-security clause language on May 3, when Respondent’s attorney Steven Johnson 35
notified the Union’s attorney Paul Berkowitz that Respondent would accept the union-security
clause language that the Union proposed on May 2. Indeed, Johnson explicitly told Berkowitz
on May 3 that the Union’s May 2 proposed union-security clause language was “fine,” and went
on to ask Berkowitz to prepare the contract for review and signature.8 I also find that the written

8 I have considered the fact that when Berkowitz sent Johnson the final contract on May 7, Berkowitz
proposed moving a sentence from Article 1, Section 2 to Article 1, Section 3. I do not find, however, that
Berkowitz’s proposal reopened the parties’ negotiations or rendered the May 3 agreement invalid. To the
contrary, Berkowitz clearly stated that the Union would abandon the proposed change if Respondent
requested that it do so. (See FOF, Section II(B)(8); see also Teamsters Local 771 (Ready-Mixed
Concrete), 357 NLRB No. 173, slip op. at 6 (2011) (recognizing that efforts to modify contract terms
after an agreement has been reached do not change the fact that the original agreement is a binding and
enforceable contract).)
JD–79–13
12
contract that the Union sent to Respondent on May 7 was fully consistent with the agreement that
the parties reached on May 3. 9 (FOF, Section II(B)(8).)
In light of the foregoing facts, I find that on May 3, 2013, the parties reached a meeting
of the minds on all substantive issues and material terms of a collective-bargaining agreement.10 5
Thus, Respondent was obligated to execute the May 7 contract that reflected the parties’ May 3
agreement.
10

9 I note that the parties did not make ratification of the contract by Union members a condition
precedent to an agreement. As the Board has explained, nothing in the Act imposes an obligation on
statutory bargaining agents to obtain employee ratification before making a final and binding agreement.
Instead, employee ratification becomes a condition precedent to the formation of a contract only when the
parties have reached an express agreement to that effect. Where there is such an express bilateral
agreement, the Board holds that a contract cannot become effective until ratification occurs. Teamsters
Local 287 (Granite Rock Co.), 347 NLRB 339, 339 (2006), enfd. 293 Fed. Appx. 518 (9th Cir. 2008).
Conversely, if employee ratification is a step that the union imposed on itself (as part of its internal
procedures), an employer may not refuse to sign an otherwise agreed-upon contract because of
nonratification. Personal Optics, 342 NLRB 958, 961–962 (2004), enfd. 165 Fed. Appx. 1 (D.C. Cir.
2005).
In this case, the evidentiary record does not establish that the parties made an express bilateral
agreement that employee ratification would be a condition precedent to a final and binding agreement.
The limited record on this point shows that on January 5 and March 23, the Union held ratification votes
on draft agreements that the parties negotiated. Although the Union’s ratification votes were arguably
premature insofar as they occurred before Respondent agreed that all contract language was acceptable,
the mere fact that the Union was eager to conduct ratification votes falls well short of establishing that the
parties expressly agreed to make ratification a condition precedent to a binding agreement. (FOF, Section
II(B)(2), (4)–(5).) Moreover, the evidentiary record does not otherwise show (via testimony or
documentation) that the parties expressly agreed to make employee ratification an essential step before an
agreement could be finalized. Accordingly, I find that the parties did not make employee ratification a
condition precedent to their being able to reach a binding and final agreement on contract terms. See
Personal Optics, 342 NLRB at 962 (finding that the parties did not make ratification a condition
precedent to an agreement, and noting that no testimony or written documents supported a conclusion to
the contrary); Teamsters Local 662 (W.S. Darley & Co.), 339 NLRB 893, 898 (2003) (finding that the
parties did not make ratification a condition precedent to an agreement), enfd. 368 F.3d 741 (7th Cir.
2004).
10 In its brief, the General Counsel argued (in part) that the parties reached an agreement as early as
March 11, when the parties corrected the typographical error in the contract regarding employee vacation
time. (See GC Br. at 15–17.) Since the Board has recognized that an employer is not obligated to sign a
contract that contains an illegal provision (see, e.g., Flying Dutchman Park, Inc., 329 NLRB 414, 416 &
fn. 6 (1999)), Respondent arguably was within its rights to insist (as it did on March 12, see FOF Section
II(B)(4)) that the parties resolve its concerns about the apparent conflict between the union-security clause
in the contract and the relatively new Indiana right-to-work statute. As the evidentiary record
demonstrates, however, the parties agreed to correct the objectionable union-security clause language on
May 3, thereby precluding Respondent from asserting that its subsequent (May 9) refusal to execute a
written contract was justified because the contract contained an illegal provision.
JD–79–13
13
2. The employee decertification petition did not relieve Respondent
of its obligation to execute the contract
Respondent asserts that it could not execute the contract because the Union lost the
support of a majority of employees in the bargaining unit before the parties agreed to contract 5
terms. See North Bros. Ford, Inc., 220 NLRB 1021, 1022 (1975) (noting that in some
appropriate circumstances, an employer may lawfully refuse to bargain with a union because the
union has lost the support of a majority of bargaining unit employees). This argument fails
because the facts here do not support Respondent’s argument.
10
As I have found, the parties agreed on contract terms (specifically regarding the union-
security clause, which was the last remaining clause in play) on May 3. (FOF, Section II(B)(8).)
At that time, the decertification petition had only just begun circulating, and had not been signed
by a majority of employees in the bargaining unit. (FOF, Section II(B)(7), (9) (as of May 3, 42
out of 106 unit employees had signed and dated the decertification petition).) In light of that 15
sequence of events, where Respondent agreed to contract terms and then subsequently
questioned whether the Union lost the support of a majority of employees in the bargaining unit,
Respondent was obligated to execute the contract that it agreed to, and violated Section 8(a)(5)
and (1) of the Act when it refused to do so.11 See YWCA of Western Massachusetts, 349 NLRB
762, 763 (2007) (employer was obligated to execute the contract that it agreed to 23 days before 20
it raised questions about whether the union had the support of a majority of bargaining unit
employees); Mount Airy Psychiatric Center, 230 NLRB 668, 679 (1977) (same, where employer
agreed to contract terms 12 days before it raised questions about whether the union had sufficient
support in the bargaining unit); North Bros. Ford, Inc., 220 NLRB at 1022 (same, where
employer agreed to contract terms 16 days before bargaining unit employees filed a 25
decertification petition).
In sum, I find that Respondent violated Section 8(a)(5) and (1) of the Act when, on or
about May 9, it failed and refused to execute a collective-bargaining agreement that embodied
the terms of its May 3 agreement with the Union.1230

11 Put another way, as soon as Respondent and the Union agreed to contract terms on May 3, the
Union was entitled to an irrebuttable presumption during the term of the collective-bargaining agreement
(lasting up to 3 years) that it enjoyed the support of a majority of bargaining unit employees. Auciello
Iron Works, 517 US 781, 785 (1996).
12 In an effort to avoid the conclusion that I have reached here, Respondent relies heavily on the
Seventh Circuit’s decision in Chicago Tribune Co. v. NLRB, 965 F.2d 244 (1992), but Respondent’s
reliance on that decision is misplaced. (See R. Br. at 8–9.) In Chicago Tribune, the Seventh Circuit
addressed a unique set of facts in which the union lost the support of a majority of employees in the
bargaining unit long before the employer renewed its contract offer and the union accepted the offer. See
Chicago Tribune Co. v. NLRB, 965 F.2d 244, 249–250 (1992). The facts in the Chicago Tribune case
bear no resemblance to the facts at issue here. Moreover, I am bound to follow the Board’s decisions,
which (as discussed herein) clearly establish that Respondent violated the Act when it refused to execute a
written contract that embodied the terms of the agreement that it reached with the Union on May 3 (before
the Union lost the support of a majority of bargaining unit employees (if at all)).
JD–79–13
14
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act.
5
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. Since July 27, 2010, the Union has been the exclusive collective-bargaining
representative of the employees in the bargaining unit.
10
4. On May 3, 2013, Respondent and the Union reached a complete agreement on the
terms and conditions of an initial collective-bargaining agreement.
5. By refusing, since on or about May 9, 2013, to execute a collective-bargaining
agreement that embodies the terms of the May 3 agreement between Respondent and the Union, 15
Respondent violated Section 8(a)(5) and (1) of the Act.
6. The unfair labor practices stated in conclusion of law 5, above, affect commerce
within the meaning of Section 2(6) and (7) of the Act.
20
REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I shall order
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act. Specifically, having found that Respondent violated Section 8(a)(5) and (1) 25
of the Act by failing and refusing to execute a collective-bargaining agreement embodying the
May 3, 2013 agreement that it reached with the Union, I shall order Respondent to execute and
implement the agreement and give retroactive effect to its terms. I shall also order Respondent
to make bargaining unit employees whole for any losses attributable to Respondent’s failure to
execute the agreement, as set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 30
F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB No. 8 (2010).
For all backpay required herein, Respondent shall file a report with the Social Security 35
Administration allocating backpay to the appropriate calendar quarters. Respondent shall also
compensate affected bargaining unit employees for the adverse tax consequences, if any, of
receiving one or more lump-sum backpay awards covering periods longer than 1 year, Latino
Express, Inc., 359 NLRB No. 44 (2012).
40
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended13

13 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.
JD–79–13
15
ORDER
Respondent, Polycon Industries, Merrillville, Indiana, its officers, agents, successors, and
assigns, shall
5
1. Cease and desist from
(a) Failing and refusing to execute a collective-bargaining agreement that embodies the
agreement that Respondent and the Union reached on or about May 3, 2013, regarding the terms
and conditions of an initial collective-bargaining agreement. 10
(b) In any like or related manner interfering with, restraining, 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 policies of the Act.15
(a) On request of the Union, forthwith execute the collective-bargaining agreement that
the Union submitted to Respondent for signature on or about May 7, 2013, and give retroactive
effect to the terms of that agreement to May 1, 2013 (the effective date of the agreement).
20
(b) Make bargaining unit employees whole for any losses they have suffered as a result
of Respondent’s failure to sign and effectuate the agreement, plus daily compound interest, as set
forth in the remedy section of this decision.
(c) Compensate bargaining unit employees for the adverse tax consequences, if any, of 25
receiving lump-sum backpay awards covering periods longer than 1 year, and file a report with
the Social Security Administration allocating the backpay awards to the appropriate calendar
quarters for each unit employee.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional 30
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
35
(e) Within 14 days after service by the Region, post at its facilities in Merrillville,
Indiana, copies of the attached notice marked “Appendix.”14 Copies of the notice, on forms
provided by the Regional Director for Region 13, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are customarily 40
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

14 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the 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–79–13
16
notices, the notice 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 by such means.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn 5
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. November 12, 2013
10

GEOFFREY CARTER
Administrative Law Judge15
JD–79–13
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us 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 fail and refuse to execute a collective-bargaining agreement that embodies the
agreement that we and the Union reached on or about May 3, 2013, regarding the terms and
conditions of an initial collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL, on request of the Union, forthwith execute the collective-bargaining agreement that
the Union submitted to us for signature on or about May 7, 2013, and give retroactive effect to
the terms of that agreement to May 1, 2013 (the effective date of the agreement).
WE WILL make bargaining unit employees whole for any losses they have suffered as a result of
our failure to sign and effectuate the collective-bargaining agreement, plus interest compounded
daily.
WE WILL compensate bargaining unit employees for the adverse tax consequences, if any, of
receiving one or more lump-sum backpay awards covering periods longer than 1 year.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate quarters for each bargaining unit employee.
POLYCON INDUSTRIES, INC.
(Employer)
Dated By
(Representative) (Title)
JD–79–13
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.
The Rookery Building, 209 South LaSalle Street, Suite 900, Chicago, IL 60604-5208
(312) 353-7570, Hours: 8:30 a.m. to 5 p.m.
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, (312) 353-7170.