Cutter Laboratories, Inc., 577 (1982)

CUTTER LABORATORIES, INC.

Cutter Laboratories, Inc. and International Longshoremen's and Warehousemen's Union, Local 6. Case 32-CA-3483

December 2, 1982 DECISION AND ORDER

BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN

On March 26, 1982, Administrative Law Judge Roger B. Holmes issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in support of the Administrative Law Judge's Decision.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith.

The amended complaint alleges that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to reduce to writing and execute the current collective-bargaining agreement between Respondent and the Union. The Administrative Law Judge recommended dismissal of the complaint based on his conclusion that the parties had a mutual misunderstanding with respect to one issue and that they therefore failed to reach a full agreement. We disagree with the Administrative Law Judge and, for the reasons set forth below, we find the alleged violation.

The relevant facts are not in dispute. The parties have maintained a collective-bargaining relationship since the 1940's and have executed a succession of collective-bargaining agreements, the most recent of which was effective from September 2, 1976, through September 1, 1979. In October 1977,

Respondent instituted a health and welfare plan, referred to as the Cutter Plan, for the benefit of its salaried nonunit employees. The plan gave salaried employees benefits which were in some respects superior to those benefits provided to unit employees. Several months later, the Union demanded that the Cutter Plan benefits be applied to unit employees.1

After several meetings, the parties resolved the benefits issue on May 18, 1979, by executing a The Union invoked art. XIV of the 1976-79 collective-bargaining agreement which provided: 'There shall be no discrimination against Union members as regards participation in any present or future Company benefits granted employees of the Company generally.' 265 NLRB No. 78 letter of understanding which stated: 'Effective September 1, 1979, the Company agrees to put into effect for the bargaining unit employees the same benefits granted to the salaried employees on October 1, 1977.' The letter of understanding then listed the Cutter Plan benefits in the same manner as they were listed in a letter dated July 22, 1977, sent by Respondent to its salaried employees. The letter of understanding did not, however, contain the following language from the 1977 letter: 'The payment of benefits and the operation of the plans will be subject to the terms and conditions of the issuance contracts and/or Company policies governing each plan.' There is no evidence that the parties discussed including such language in the letter of understanding prior to its execution.

Between August 16 and October 1979,2 Respondent and the Union met on 10 occasions to negotiate a new collective-bargaining agreement. At a bargaining session conducted on August 23, the parties mutually agreed that neither party could submit new contract proposals after August 31.

During these negotiations, the parties did not discuss employee health benefits other than to confirm their prior agreement to integrate the Cutter Plan pursuant to the May 18 letter of understanding.

The negotiations for the new collective-bargaining agreement culminated early in the morning of October 6, when the parties averted a strike by signing a settlement agreement. The handwritten settlement agreement listed 14 items which the parties had agreed upon to modify the previous collectivebargaining agreement and to form the new agreement. With regard to the inclusion of the Cutter Plan benefits, item 13 of the settlement agreement stated: 'Integrate benefits letter of 5/18/79 effective 9/2/79, as part of the contract.' At the time the settlement agreement was reached, Respondent agreed to reduce the agreement to writing, and have galley proofs prepared for a new contract. On October 6, Respondent implemented all terms of the collective-bargaining agreement under the settlement agreement.

Subsequent to the signing of the October 6 settlement agreement, the parties met five times in late 1979 and early 1980 to discuss contract-related issues. Some issues discussed were matters of substance, while others involved technicalities or specification of contractual language. For example, after implementing the Cutter Plan for unit employees, Respondent began utilizing a new leave of absence form. The new form required employees to provide medical certification after 3 days of absence rather than after 5 days of absence as pro2 All dates hereafter are 1979 unless otherwise indicated.

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DECISIONS OF NATIONAL LABOR RELATIONS BOARD vided under the 1976-79 contract. The Union took the position that the 5-day requirement was proper.

At an October 22 meeting, the issue was resolved in accord with the Union's position.

Pursuant to the parties' agreement, Respondent prepared galley proofs of the new collective-bargaining agreement and sent them to the Union in February or March 1980. On March 14, 1980, the Union sent Respondent a list of 'errors and disputes.' The list included numerous spelling and other technical errors. With regard to disputes, the letter noted three items: the disability premium issue discussed below; 'reprimand letters'; and the 'literature helper classification.' All matters on the list were subsequently resolved by the parties with the exception of the issue of whether Respondent's obligation to pay premiums for employees on disability was limited to 90 days or 1 year. The parties ultimately decided to submit the issue to binding arbitration, as provided in the collective-bargaining agreement. The arbitration hearing was conducted July 28, 1980, and an award of February 2, 1981, upheld the Union's position. At the arbitration hearing, Respondent acknowledged that it had a current collective-bargaining agreement with the Union.

By letter to Respondent dated April 17, 1980, the Union requested that the printed contract list certain job classifications and their corresponding wage codes. Respondent refused the request. It is undisputed that after Respondent refused the Union's initial request, the Union dropped the matter. At no time did the Union predicate its signing the contract on Respondent's agreement to include the classification codes in the printed agreement.

Finally, on April 25, 1980, Respondent's director of labor relations, Paul Mahan, presented the union representative with a document which stated in pertinent part:

It is understood that the Cutter Comprehensive Employee Protection Program of benefits, in existence on September 1, 1979 will apply to I.L.W.U. Local 6 bargaining unit employees.

It is further understood that if at any time in the future, limitations or qualifications to the plan as to benefits or entitlements are applied to the Cutter Comprehensive Employee Protection Program, that such limitations or qualifications will also apply to employees covered by this agreement.

It is undisputed that the language of this document, referred to as the 'caveat language,' had not been a subject of the parties' previous negotiations, nor was it included in the settlement agreement or the galley proofs prepared by Respondent. Respondent insisted, however, and continues to insist, that the caveat language be included in the printed contract. It refuses to sign the contract without this language. Respondent takes the position that the caveat language is a clarification of item 13 of the settlement agreement, and that its insistence on such language is necessitated by the Union's position, apparently stated at another grievance meeting, that it would accept only increases, not decreases in Cutter Plan benefits.

The Administrative Law Judge found that the parties had a mutual misunderstanding about the meaning of item 13 in the settlement agreement. He further found that the parties, having failed to reach a meeting of the minds about integration of the Cutter Plan into the contract, had failed to reach a final agreement which Respondent would be required to reduce to writing and sign. We disagree.

We reject as without merit the Administrative Law Judge's assertion that there was no meeting of the minds or that item 13 by its terms is ambiguous.

By the plain meaning of item 13, which incorporates by reference the equally unambiguous May 18, 1979, letter of understanding, Respondent and the Union evinced their intention to integrate the specifically described Cutter Plan benefits into the collective-bargaining agreement.3

Although the parties did not discuss details regarding the operation of the Cutter Plan, it is clear that further negotiations on the issue were not contemplated by either party.4

As far as the contract itself was concerned, agreement had been reached and the October 6 terms of agreement were intended by the parties to be final and binding. The decision to prepare the galley proofs, the implementation of all new contractual provisions, the parties' agreement to submit to arbitration an issue raised under the new collective-bargaining agreement and directly related to integration of the Cutter Plan, and Respondent's admission of a contract relationship at the arbitration hearing were all acts which belied Respondent's contention that a binding agreement had not been reached.5 s The cases cited by the Administrative Law Judge are factually distinguishable. In...