Petition — Truckdrivers, Chauffeurs & Helpers, Local Union No. 100 v. National Labor Relations Board

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

MICHAEL RODAK, JR., CLERK

vo #680

TRUCKDRIVERS, CHAUFFEURS AND HELPERS

LOCAL UNION No. 100, INTERNATIONAL

BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,

WAREHOUSEMEN AND HELPERS OF AMERICA,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JONAS B. KATZ

Attorney for Petitioner

6 East Fourth Street

Cincinnati, Ohio 45202

A ee RR ce a

COURT INDEX PRESS, INC. — 80 Walnut Street, Cincinnati, Ohio 45202 — (513) 241-1450

INDEX

Page

8 SP re Pee ee ee ree ree |

SEE) 7 CNG a Abs Ne Edie Cosa eCLes er ee 2

QUESTIONS PRESENTED .«.. 0... ccccecsvcesss 2

SE Re 5.5.3 6 Cis das dhe debs dees 2

STATEMENT OF THE CASE ..............-05. 3

REASONS FOR GRANTING THE WRIT ....... 5

I. Decision of Sixth Circuit Violates this Court's

Mandate to Fashion a Single National Body

ee OS oe nk i ee eee ee 5

A. Court’s Affrmance of Board Order is

Contrary to Federal Labor Law Objec-

PEN TI, RE eh rt PRL EPDM. Uy elem 6

B. Court’s Decision Permits Board to Cre-

ate a Body of Contract Law Different

than Applied by Federal Courts ........ 8

CREE. ARG aSNE KN anode cath en cioeeenses ll

APPENDIX:

Opinion, United States Court of Appeals for the

Sixth Circuit, March 24, 1976 ..............2.. la

Decision and Order, National Labor Relations

es Se i SED ce sh bnacvacené seed uses 7a

Decision, Administrative Law Judge, National

SD TO I n.d. s CPs aviveneecctincon 9a

Appendix to Decision, Administrative Law Judge,

National Labor Relations Board ............. 28a

LIST OF AUTHORITIES CITED

Cases:

Arnold Co. v. Carpenters District Council, 417 U.S.

RPA ahi Ok etal a aa

Bondy v. Harvey, 62 F2d 521 (2nd Cir., 1933), cert.

Gam. Te CR. FEw CHD osc chose vgcceectases

Boys Market, Inc. v. Retail Clerks, 398 U.S. 235

CREED: sp:nnkep han tubhens deems teesaeneee 4

Eliason v. Henshaw, 17 U.S. 225 (1819) ...........

Gateway Coal v. Mine Workers, 414 U.S. 368

NN cis eka cdetioseass. anaes

Genesco, inc. v. Joint Council 13, 341 F2d 482

Pre ere ee borer. CLIT

Howard Johnson Co. v. Hotel Employees, 417 U.S.

rer a ee

Insurance Co. v. Young’s Administrator, 90 U.S. 85

Se PRES, ae RD

Lozano Enterprises v. NLRB, 327 F2d 814 (9th

Ee PE RE i SE

Means & Co. v. NLRB, 377 F2d 683 (7th Cir.,

I oda chs hcendeu as eee

Minneapolis & Co. Ry. v. Columbus Rolling Mill,

Se? We WO COED 0.9.02 00 accbev cennsd eyece cue

National Bank v. Hall, 101 U.S. 43 (1879) .........

Palmer v. Aeolian Co., 46 F2d 746 (8th Cir., 1931)

cost. Gem. 283 US. GBl (1981) ... 2... ccc scenes

H. K. Porter Co., Inc. v. NLRB, 397 U.S. 99 (1970) ..

Stackhouse Oldsmobile, Inc. v. NLRB, 330 F2d 559

Os Gis SD harks nbi cddccetcanesmeee

Page

tit.

Page

Steelworkers v. American Manufacturing, 363 U.S.

PEED SAO Ob-dee rhc cd Sade cspeub base ceaas 6

Steelworkers v. Enterprise Wheel & Car Corp., 368

EE SE Th 6 60 Fi hid o wh ose ike cue whee 9% 6

Steelworkers v. Warrior & Gulf Navigation Co., 563

2 ek ey SAR Peps a Teer eee 6, 9

Teamsters Local 174 v. Lucas Flour Co., 369 US.

PE se kh ae ek Neseeuntuwstevsbekensehess 7, 8

Teamsters Local 24 v. Oliver, 358 U.S. 283 (1959) .. II

Textile Workers Union v. Lincoln Mills, 353 U.S.

EE 6 Kua ohn ed Bek nea dade ees ewens 8, 10

Transportation Union v. U.P.R. Co., 385 U.S. 157

EE & Hh 6c Rd Ud Kes 6 CEO WSA CROWES ee HOURS VER 8

United States v. McMullen, 222 U.S. 460 (1912) .... 9

John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543

DEE Sb 2bes ce baeaus sabe e Hasek eeeereevatnres 8

Statutes:

Labor Management Relations Act (Public Law 101,

80th Cong. Ist sess., 29 U.S.C. 141, et seq.) ...... 2

Section 8 (b) (3) [29 U.S.C. 158 (b) (3)].. 2, 4, 8, 10, 11

Section 8(d) [29 U.S.C. 158(d)] .... 3, 4, 6, 8, 10, 11

Section 10(e) [29 U.S.C. 160] ................... 3, 5

Section 208 (4) [29 U.S.C. 178] .................. 3, 6

Section 301 (a) [29 U.S.C. 185] ............ 3, 6, 8, 10

Treatises:

Williston on Contracts, Third Edition, Section

SP CD: dhenws 0 dens ¥ee% dheustaueeyeeedss 9

Williston on Contracts, Third Edition, Section

SD GUND os b0 Lawes cemsdncedaedies bebeue i)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No.

TRUCKDRIVERS, CHAUFFEURS AND HELPERS

LOCAL UNION No. 100, INTERNATIONAL

BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,

WAREHOUSEMEN AND HELPERS OF AMERICA,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

OPINION BELOW

The opinion of the Court of Appeals (App. p. la),

is reported at 432 F2d 569, 91 LRRM 2849 (6th Cir.,

1976) ; the National Labor Relations Board decision and

order (App. p. 7a) are reported at 216 NLRB No. 176,

88 LRRM 1652 (1975), which affirmed the decision and

order of Administrative Law Judge Cohn (App. p. 9a).

2 ~

JURISDICTION

The judgment of the Court of Appeals was decided and

filed on March 24, 1976. Petition for rehearing was filed

on April 7, 1976 and denied on May 7, 1976. On May 12,

1976, Petitioner (hereinafter referred to as the “Union’’)

was granted a thirty (30) day stay of the mandate pending

application to this Court for Writ of Certiorari. On June

21, 1976, the Union was granted an additional thirty (30)

day stay of the mandate. This petition was timely filed

within ninety (90) days. Jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

I. Whether in a refusal to bargain case the National

Labor Relations Board may, under Section 8(d) [29 USC

158(a)] of the Labor Management Relations Act of 1947,

as amended, compel a union to execute a collective bar-

gaining agreement which under accepted principles of

contract law would not be binding on the parties under

Section 301 of the Act, [29 U.S.C. 185}.

II. Whether the National Labor Relations Board has

authority to compel a union to execute a collective har-

gaining agreement which offends federal labor policy be-

cause it contains an incomplete arbitration clause.

STATUTES INVOLVED

The relevant provisions of the Labor Management Re-

lations Act, 1947, as amended [29 U.S.C., sec. 141, et seq.]

(the “Act”’) , are as follows:

Section 8 (b) [29 U.S.C. 158 (b) ]: It shall be an unfair

labor practice for a labor organization or its agents . . .

§

(3) to refuse to bargain collectively with an em-

ployer...

Section 8(d) [29 U.S.C. 158 (4) ]: To bargain collec-

tively is the performance of the mutual obligation of

the employer and the representative of the employees

. .. and the execution of a written contract incorpo-

rating any agreement reached if requested by either

party, but such obligation does not compel either party

to agree to a proposal or require the making of a

concession . . .

Section 10(e) [29 U.S.C. 160(e)]: The Board shall

have power to petition any court of appeals of the

United States . . . for enforcement of such order and

for appropriate temporary relief or restraining order

Section 203 (d) [2® U.S.C. 173 (d) }: Final adjustment

by a method agreed upon by the parties is declared

to be the desirable method for settlernent of grievance

disputes arising over the application or interpretation

of an existing collective-bargaining agreement.

Section 30i (a) [29 U.S.C. 185 (a) }]: Suits for violation

of contracts between an employer and a labor organ-

ization representing employees in an industry affecting

commerce as defined in this chapter, or between any

such labor organizations, may be brought in any dis-

trict court of the United States having jurisdiction of

the parties, without respect to the amount in contro-

versy or without regard to the citizenship of the

parties.

STATEMENT OF THE CASE

Prior to 1973, the Duro Paper Bag Manufacturing

Company (the “Company’”) and Truck Drivers, Chauf-

feurs and Helpers Local Union No. 100 (the “Union”)

were parties to the Teamsters National Master Freight

Agreement. In 1973, Company withdrew from the mulkti-

4

employer group which negotiated the national agreement,

and requested separate negotiations with the Union.

Therefore in late 1973, the parties commenced negotia-

tions for a new collective bargaining agreement. A dis-

pute arose as to whether or not the Union had agreed

to a contract prepared and presented to the Union for

signature by the Company on December 8, 1973.

As a result, the Company filed a charge with the Na-

tional Labor Relations Board (the “Board’’) alleging

that the Union refused to bargain in good faith by refusing

to execute the contract in question. A complaint was

issued and the Administrative Law Judge of the Board

(the “Judge’’) found that the Union had violated Sec-

tions 8(b) (3) and 8(d) [29 Us.C. 158(b) (3) and

(d)] of the Act and recommended that the Union be

required to execute the contract submitted to it by

Company (App. p. 26a).

This contract of December 8, 1973, provides for the final

step of the grievance procedure, as follows (App. p. 38a) :

“The Company and Business Representatives have

jointly drawn up a list of reputable qualified arbitra-

tors (See exhibit #1 at the end of this agreement.)

When a grievance cannot be resolved in steps 1, 2 and

3 of this Article it shall be submitted for hearing

before an Arbitrator selected by mutual agreement

from the list referred to above.”

In fact, there is no Exhibit 1 to the contract, and never

has been; none was submitted in the Board proceeding

and there has never been a jointly drawn up list of arbi-

trators.

The Union filed exceptions to the Judge’s decision’ con-

' Other issues raised included failure to satisfy condition precedent

of membership ratification, which was known to the pany;

indefinite duration of the contract; and lack of mutual agreement

on other items in the agreement.

5

tending inter alia that it could not be compelled to execute

an agreement which on its face was incomplete because of

the lack of an agreed list of arbitrators. Although the

Judge’s decision contained no discussion or finding on this

issue (App. pp. 17a, 18a), the Board completely ignored

this question and issued its standard boilerplate affirmance

of the decision (App. pp. 7a, 8a) .

The Board sought and was granted enforcement of its

order in the Sixth Circuit Court of Appeals pursuant to

Section 10(e) of the National Labor Relations Act, as

amended [61 Stat. 136, 73 Stat. 159, 29 U.S.C. sec. 160 (e) }.

Again the same issue was raised by the Union but it was

dismissed by the Court on the grounds that, “the Board

is not strictly bound by the technical rules of contract

law”, citing Lozano Enterprises v. NLRB, 327 F2d 814,

818 (9th Cir., 1964). This petition seeks to obtain relief

from that order.

REASONS FOR GRANTING WRIT

I. The Decision of the Sixth Circuit permitting the

Board to apply different standards in Section

8(d) cases than the courts would apply under Sec-

tion 301 violates this Court’s mandate to fashion

a single national body of labor law

The Board in this case has ordered the Union to sign

a collective bargaining agreement which provides for the

settlement of all disputes by arbitrators selected from an

agreed list when in fact, the contract does not contain

any such list.

6

The question here presented is whether the Board,

under Section 8 (d) [29 U.S.C. 158 (d) ], may order a union

to execute a contract which, on its face, is contrary to fed-

eral labor policy encouraging arbitration and which by ac-

cepted principles of contract law would be unenforceable

in a suit under Section 301 [29 U.S.C. 185].

A. Circuit Court’s affirmance of Board’s Order

is contrary to federal labor law objectives

It need not be argued that the broad Congressional

objectives of industrial stabilization and labor peace can

best be attained by mutually agreed upon methods of

arbitration and grievance settlement. Labor Management

Relations Act sec. 203 (d) [29 U.S.C. sec. 173 (d) ]; Arnold

Co. v. Carpenters District Council, 417 U.S. 12 (1974);

Gateway Coal v. Mine Workers, 414 U.S. 368 (1974);

Steelworkers v. American Mfg., 363 U.S. 564 (1960) ;

Steelworkers v. Warrior & Gulf Navigation, 363 U.S. 574

(1960). In Warrior & Gulf Navigation, supra at 580, 581,

this Court recognized that “the collective bargaining agree-

ment is an effort to erect a system of industrial self-govern-

ment’, and that the arbitration system is “actually a vehicle

by which meaning and content is given to the collective

bargaining agreement”. “It is the arbitrator’s construction

which is bargained for.” Steelworkers v. Enterprise Wheel

& Car Corp., 363 U.S. 593, 599 (1960). Clearly the arbi-

tration clause of any collective bargaining agreement is a

substantive provision to which the Board is without power

to compel agreement. H. K. Porter v. NLRB, 397 USS.

99, 102-109 (1970).

7

Imposing a collective bargaining agreement upon an-

other party without the completely agreed upon vehicle

for reaching these objectives is a direct contradiction to the

Act and completely frustrates federal labor policy. For

example, in this case, any grievances which arise under the

contract which cannot be settled by the parties must be

resolved by an arbitrator picked from the jointly drawn

list. ‘The Company could take the position that the only

joint drawn list of arbitrators is that which it will pro-

pose and that any other list will not be considered

“jointly drawn” or acceptable. Ordinarily, if the question

arose before the execution of a contract, the Union would

have a right to take economic action to force a fair reso-

lution of this dispute. Here, however, the Board order

conceivably forecloses such an option because the Union

is obligated by the contract not to engage in any strike or

work stoppage. Although the no-strike clause is always the

quid pro quo for a workable provision,? such would not be

the case. It has the choice of taking the Company's arbi-

trators or not arbitrating. In short, the Board order puts

the Union at the mercy of the employer for the resolution

of disputes under the contract or forces it to engage in a

strike because there is no enforceable arbitration clause.

Boys Market, Inc. v. Retail Clerks, 398 U.S. 235 (1970).

Either course is hardly in furtherance of the stated policy

of the Act to stabilize labor relations. Cf. Stackhouse Olds-

mobile, Inc. v. NLRB, 330 F2d 559 (6th Cir., 1964) .®

On this premise alone the Board's order should not stand.

2 Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962); Gate-

way Coal Co. v. Mine Workers, 414 U.S. 368 (1974).

3In Stackhouse, the Sixth Circuit recognized the important federal

policies and refused to require an employer to sign a negotiated

agreement because to insist on the incorporation of a dispu union

security clause would not contribute to the stability of labor rela-

tions. The contested clause a burden on the employer to

ascertain if it was being le applied.

8

B. The Court's Decision permits the Board to

create a body of contract law different than

that applied by federal courts.

The foregoing emphasizes the importance that must be

placed on delineating the essential elements which lead to

establishing a binding labor agreement under both Sections

8 (b) (3) and 8 (d) and Section 301 (a) of the Act.

Although a large body of federal labor law has been

fashioned pursuant to this Court’s holding in Textile

Workers Union v. Lincoln Mills, 353 U.S. 448 (1957),

until now it has been assumed that both the Court and

Board would apply accepted principles of contract law to

determine if an agreement has been reached and/or was

enforceable. Notwithstanding that the Court has recognized

that a collective bargaining agreement is not an ordinary

contract, Transportation Union v. UPR, 385 U.S. 157

(1966); John Wiley & Sons v. Livingston, 376 U.S. 543

(1964) , this Court, in interpreting labor agreements, has

refused to accept doctrines which “do violence to accepted

principles of contract law”. Teamsters Local 174 v. Lucas

Flour Co., 369 U.S. 95 (1962). Thus, when the judi-

cial inquiry centers on the existence or non-existence of

an agreement, it has been assumed that “the essentials

of a collective bargaining contract are [the same as|

those found in the law of contracts: ‘There must be a

meeting of the minds by acceptance of an offer, the terms

agreed on must be definite, etc.”, Williston on Contracts,

Third Edition, Section 1020A. The Seventh Circuit ap-

pears to agree. See Means & Co. v. NLRB, 377 F2d 683

(7th Cir., 1967). Even the Ninth Circuit in Lozano Enter-

prises v. NLRB, 327 F2d 814, 818 (9th Cir., 1964) cited by

the Court of Appeals (App. p. 6a) for the proposition

that “the technical rules of contract do not necessarily con-

9

trol all decisions in labor-management cases’, also notes

that “the normal rules of offer and acceptance are generally

determinative of the existence of a bargaining agreement”.

Means & Co., supra at 686.

Accepted principles of contract law require mutual assent

on all essential terms of an agreement in order for a contract

to exist. Minneapolis & Co. Ry. v. Columbus Rolling

Mill, 119 U.S. 149 (1886) ; Insurance Co. v. Young’s Ad-

ministrator, 90 U.S. 85 (1874) and Eliason v. Henshaw, 17

U.S. 225 (1819). Where the contract is a unit and it is

left uncertain in one particular, the whole will be regarded

as only inchoate, because the parties have not been ad

idem, and therefore, neither is bound. Natl. Bank v. Hall,

101 U.S. 43 (1879). A labor agreement, incomplete on its

face on an essential term, like any other agreement should

not be enforceable where the “indefinite promise is so essen-

tial to the bargain that inability to enforce that promise

strictly according to its terms makes it unfair to en‘orce the

remainder of the agreement”. Williston on Contracts,

Third Edition, Section 48; United States v. McMullen,

222 U.S. 460 (1912); Bondy v. Harvey, 62 F2d 521, 524

(2nd Cir., 1933), pet. for writ of cert. denied 289 U.S.

740 (1933) ; Palmer v. Aeolian Co., 46 F2d 746 (8th Cir.,

1931), pet. for writ of cert. denied 283 U.S. 851 (1931).

This principle is particulary applicable to the arbitration

clause of a collective bargaining agreement which is the

vehicle chosen by the parties to give meaning and content

to the agreement, Warrior & Gulf Navigation, supra.

The Sixth Circuit in stating that technical rules of con-

tract law do not bind the Board has, in effect, held that the

Board, under Sections 8 (b) (3) and 8 (d) , may require the

parties to a labor agreement to do less to bind them than the

Court would require under Section 301. However, since

a contract which the Board requires be executed under

10

Section 8(d) must eventually be enforced under Section

301, consistent principles of contract law must be applied

in both instances. In this case, the Sixth Circuit has em-

barked upon a dangerous departure from the policy of

establishing consistent principles of labor law by indicating

that the Board may establish different principles of contract

law under Sections 8 (b) (3) and 8(d). Under this hold-

ing, the forum alone might be the controlling factor in

determining the existence of a contract, a result condemned

by this Court in Howard Johnson Co. v. Hotel Employees,

417 U.S. 249 (1973).

Although it has been assumed that accepted principles

of contract law apply in Section 301 cases, the Court has

not directly stated just what elements are necessary to reach

a binding labor agreement or to what extent accepted

principals of contract law will apply to the body of federal

labor law created since Lincoln Mills, supra. Likewise,

the Court has not stated whether the Board’s criteria

io order the execution of an agreement under Sections

8(b) (3) and 8(d) should be the same as the Court's

criteria for enforcement under Section 301. At least one

circuit has raised interesting questions on the Board's au-

thority in this area. See Genesco, Inc. v. Joint Council 13,

341 F2d 482 (2nd Cir., 1965).

The body of federal labor law has grown by leaps and

bounds since 1957. Its increased interplay with the au-

thority of the National Labor Relations Board makes it

essential that in its area in which the authority of the

courts and the Board overlap, the principles of law govern-

ing be the same. In the light of Howard Johnson Co.,

supra, the Court should now make clear that the Board is

without authority to go beyond accepted principles of con-

tract law applicable to federal courts in determining

1}

whether a union or employer have come to an agreement

which requires execution under Sections 8(b) (3) and

8 (d) of the Act.

It is Congressional policy to encourage the employer and

the representative of the employees to establish through

collective negotiations their own charter for the ordering

of industrial relations thereby minimizing industrial strife.

Teamsters Local 24 v. Oliver, 358 U.S. 283, 295 (1959).

Total assent to an arbitration clause in an agreement is an

essential element without which there can be no agreement.

CONCLUSION

For the foregoing reasons, the Union respectfully sub-

mits that a Writ of Certiorari should be granted.

Respectfully submitted,

JONAS B. KATZ

Attorney for Truck Drivers,

Chauffeurs & Helpers Local

Union No. 100

6 East Fourth Street

Cincinnati, Ohio 45202.

APPENDIX

No. 75-1659

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NATIONAL LABOR RELATIONS

Boarp,

Petitioner,

Ve On APPLICATION for

TRUCKDRIVERS, CHAUFFEURS AND| Enforcement of an

Hevrers, Locat Union No.} Order of the Na-

100, INTERNATIONAL BrotuHer-| tional Labor Rela-

HOOD OF TEAMSTERS, CHaAuF-| tions Board.

FEURS, WAREHOUSEMEN AND

HELPERS OF AMERICA,

Respondent. |

Decided and Filed March 24, 1976.

Before: Prcx, Circuit Judge, Markey, Chief Judge,

United States Court of Customs and Patent Appeals,* and

ENGEL, Circuit Judge.

Peck, Circuit Judge. This case is before the court upon

application of the National Labor Relations Board for

* Sitting by designation,

la

2a

enforcement of its order issued against Truckdrivers,

Chauffeurs and Helpers Local Union No. 100 Internation-

al Brotherhood of Teamsters [Union].

Duro Paper Bag Manufacturing Company [Company],

the charging party, does most of its own carrier work

and employs approximately twenty drivers. The Union

has represented the Company’s drivers for the past ten

years and prior to the 1973 negotiations the Company had

signed both the Teamsters Master Agreement, which ex-

pired June 30, 1973, and an addendum, which expired in

about October 1973, covering local working conditions.

On March 28, 1973, the Company notified the Union

that it intended to bargain with the Union on its own

behalf for an entire collective bargaining agreement. The

Company and the Union held negotiating meetings on

November 17, November 29, and December 7, 1973. The

Company was represented by Employee Relations Director

Rains, and the Union by Business Agent Jack O’Banion

and three members of a negotiating committee. At the

first meeting Rains indicated that he had authority to con-

summate an agreement and in response to Rains’ question

as to whether O’Banion had the same authority, O’Banion

replied, “Let’s go on,’”’ and the parties then exchanged

proposals. By the third meeting, the parties had resolved

their differences as to all but two major contract provisions,

the grievance procedure and wages. The dispute regard-

ing the grievance procedure revolved around the Com-

pany’s proposal that the Federal Mediation and Con-

ciliation Service be the source of arbitrators. Rains pro-

posed instead that each party draw up its own list of arbi-

trators and according to Rains’ testimony (which the ad-

ministrative law judge and the Board credited) , the Union

was agreeable to that, and proceeded to a discussion of

wages.

$a

On the issue of wages, the Union had proposed substan-

tial increases for pickups and deliveries, which proposal

the Company had rejected. Alternatively, the Union sug-

gested that the drivers be paid on an hourly rate for such

work. After protracted discussion, Rains hit the table,

stood up and said, “You got it.” Then, according to Rains’

credited testimony, Rains advised the Union negotiators

that the agreement would be typed and sent to them the

following day. He then shook hands with the four men

and left. Business Agent O’Banion agreed generally with

Rains’ testimony as to the December 7th meeting. How-

ever, O’Banion testified that the three committeemen would

not accept the grievance procedure and therefore, would

not recommend it to the other drivers.

On December 8, Rains had the agreement typed and

that evening he telephoned O'Banion to secure final agree-

ment as to five items upon which there was understanding,

but which required the technical language to be cleared

by the Company's attorney. These items were: (1) a

driver protection clause; (2) a list of management repre-

sentatives, upon whom a driver could call regarding prob-

lems with work; (3) transfer of title clause, protecting

the Union in the event of a sale of the Company; (4) a

cost of living clause; and (5) a list of management sug-

gested arbitrators. These items were agreed to by O’Ban-

ion.

Within the next few days, Rains submitted the written

agreement to the Union, but he never received it back

and was unable to reach O’Banion by phone in order to

determine what had happened. On or about December

15, the Union had a meeting and, by secret ballot, unani-

mously voted down the Company's proposal. On Decem-

ber 29, Rains was told the Job Steward had notified the

Company not to put the new rates into effect or there

4a

would be trouble. On March 23, 1974, O’Banion advised

Rains that the Union would not accept the contract and

urged the Company representative to sign the Teamsters

Master Freight Agreement, which Rains refused to do.

On March 30, 1974, the parties met and the Company

maintained it had a binding contract but wished to resolve

any difference which endangered the employer-employee

relationship. No resolution was forthcoming.

The Union's position has beet and is taat: (1) there

was never an agreement reached between the parties; and

(2) even if such agreement was reached, a condition

precedent to the consummation of such agreement was

ratification by the membership, and the Company was

at all times aware of such condition precedent. The ad-

ministrative law judge found and the Board adopted the

finding, “that the members of the Union's negotiating

committee, on and after December 7, 1973, concluded that

they had negotiated a binding agreement with the Com-

pany even though they may have felt that they should

submit any agreement they negotiated to the membership

for approval."”” The administrative law judge further

found that neither past practice nor the International

Union’s constitution was sufficient to put the Company

on notice that ratification by the membership was a condi-

tion precedent to conclusion of a binding collective bar-

gaining agreement. The administrative law judge rejected,

in light of all circumstances including demeanor consider-

ations, testimony of the three Union committeemen that

Rains was told of the necessity for member ratification.

Instead, he found that the actions of the Union representa-

tives were such as to lead Rains to believe they had au-

thority to negotiate to a final agreement.

In light of the above findings, the Board concluded that

by refusing to execute the collective bargaining agreement

5a

with the Company, the Union engaged in unfair labor

practices within the meaning of the National Labor Rela-

tions Act § 8(b) (3), and ordered the Union to cease and

desist from these unfair labor practices and if requested

to do so by the Company, to sign the proposed agreement.

Section 8(b) (3) of the National Labor Relations Act

provides that: ‘‘It shall be an unfair labor practice for a

labor organization or its agents . . . to refuse to bargain

collectively with an employer. .. ."" This court has held

that this provision requires that when the parties reach

an agreement they have a duty to execute a written con-

tract. Standard Oil Co. v. N.L.R.B., 322 F.2d 40, 45 (6th

Cir. 1963). Whether or not an agreement has been

reached between the parties is a question of fact for the

Board to determine, and we “are charged by statute and

case law, . . . to uphold factual findings of the Board which

are supported by substantial evidence on the record viewed

as a whole.” Adams Potato Chips, Inc. v. N.L.R.B., 430

F.2d 90, 93 (6th Cir. 1970), cert. denied, 401 U.S. 975

(1971); Universal Camera Corp. v. N.L.R.B., 340 US.

474 (1951).

Although the testimony of the key witnesses for the par-

ties in this case conflicts in several respects, there is clearly

substantial evidence in the record viewed as a whole from

which the Board could conclude that an agreement was

reached. The administrative law judge and the Board

chose to credit the testimony of the Company’s witness,

Rains, and the “credibility of witnesses is within the ‘spe-

cial province’ of the Board, which not only has experience

and expertise in labor disputes, but also has the benefit of

the {administrative law judge’s] observations as to de-

meanor evidence.” Adams Potato Chips, Inc. v. N.L.R.B.,

supra at 94. Fur.aermore, in determining whether the

parties have in fact reached agreement under a particular

6a

set of circumstances, the Board is not strictly bound by the

technical rules of contract law. Lozano Enterprises v.

N.L.R-B., 327 F.2d 814, 818 (9th Cir. 1964).

As to the Union’s contention that ratification by its

membership was a condition precedent to conclusion of an

agreement, while a Union’s membership may require rat-

ification by the membership, Houchens Market v. N.L.R.B.,

375 F.2d 208, 212 (6th Cir. 1967), an employer may rely

upon the apparent authority of the Union representatives

to conclude an agreement, where there is a basis for such

reliance. International Union of Elevator Constructors,

Local No. 8, AFL-CIO, 185 N.L.R.B. 769 (1970), en-

forced 465 F.2d 974 (9th Cir. 1972). There is substan-

tial evidence in the record of the instant case from which

the Board could conclude that the employer reasonably

relied upon the representations of the Union negotiators

that they had the authority to bargain to final agreement.

We conclude that substantial evidence supports the

Board’s findings that there was an agreement reached be-

tween the parties and that the Union acted in violation of

the National Labor Relations Act § 8 (b) (3) in refusing to

execute that agreement.

Enforcement of the Board’s order is granted.

7a

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR

RELATIONS BOARD

Case 9—CB—2608

TRUCK DRIVERS, CHAUFFEURS AND HELPERS

LOCAL UNION No. 100, AN AFFILIATE OF THE

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA

and

DURO PAPER BAG MANUFACTURING COMPANY

DECISION AND ORDER

On October 16, 1974, Administrative Law Judge Robert

Cohn issued the attached Decision in this proceeding.

Thereafter, Respondent filed exceptions and a supporting

brief, and General Counsel and Charging Party filed an-

swering briefs.

Pursuant to the provisions of Section 3(b) of the Na-

tional Labor Relations Act, as amended, the National La-

bor 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

8a

decided to affirm the rulings,’ findings, and conclusions?

of the Administrative Law Judge and to adopt his recom-

mended Order.

ORDER

Pursuant to Section 10 (c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations Board

adopts as its Order the recommended Order of the Ad-

ministrative Law Judge and hereby orders that Respon-

dent, Truck Drivers, Chauffeurs and Helpers Local Union

No. 100, an affiliate of the International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America, Covington, Kentucky, its officers, agents, and

representatives, shall take the action set forth in the said

recommended Order.

Dated, Washington, D.C. March 14, 1975.

Howard Jenkins, Jr., Member

Ralph E. Kennedy, Member

John A. Penello, Member

(SEAL) NATIONAL LABOR RELATIONS

BOARD 7

' We are satisfied that the Respondent’s assertion that the Adminis-

trative Law Iudge was hostile during the hearing is without merit. In

our opinion there is nothing in the record to suggest that his conduct

of the hearing, his resolutions of credibility, or the inferences he drew

were based on bias, prejudice, or hostility.

2 We agree, for the reasons expressed by the Administrative Law

Judge, that the cited provision of the International Union's constitution

provides no support for Respondent’s argument that the Company un-

derstood and agreed that any agreement arrived at during negotiations

was subject to ratification by the membership before it became binding.

Furthermore, the record additionally shows that the cited provision

relates specifically to “Strike Action by Local Union” and not, as herein

involved, to whether Respondent’s bargaining committee had authority

to enter into a binding collective-bargaining agreement.

9a

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR

RELATIONS BOARD

DIVISION OF JUDGES

WASHINGTON, D.C.

Case 9-CB-2608

TRUCK DRIVERS, CHAUFFEURS AND HELPERS

LOCAL UNION No. 100, AN AFFILIATE OF THE

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA

and

DURO PAPER BAG MANUFACTURING COMPANY

J. Michael Fischer, Esq.,

for the Ceneral Counsel.

Jonas B. Katz, Esq., (Gettler & Katz),

Cin: innati, Ohio, for the Respondent.

Paul H. Tobias, Esq., (Goldman, Cole & Putnick) ,

Cincinnati, Ohio, for the Charging Party.

DECISION

Statement of the Case

ROBERT COHN, Administrative Law Judge: This

case was heard in Cincinnati, Ohio, on June 26, 1974,

pursuant to a charge filed the preceding March 26, and a

complaint issued May 8. The complaint alleges, in es-

sence, that since on or about December 8, 1973, the Re-

10a

spondent Union has failed to bargain collectively in good

faith with Duro Paper Bag Manufacturing Company (here-

in the Employer or Company), in violation of Section

8 (b) (3) of the National Labor Relations-Act, as amended,

(herein the Act), when, following negotiations, it failed

and refused to execute a collective-bargaining agreement

reached the previous day. Respondent, by its duly filed

answer, denied the commission of any unfair labor prac-

tices.

Following the trial, counsel for all parties filed written

briefs, which have been duly considered.

Upon the entire record, including my observation of

the demeanor of the witnesses, and after due considerations

of the briefs filed by all parties, I make the following:

Finding of Fact

I. Commerce

The employer, a Kentucky corporation, has its principal

office and place of business in Covington, Kentucky, where

it is engaged in the manufacture of paper bags, and related

products. During the past 12 months, a representative

period, the Company in the course and conduct of its busi-

ness, received gross revenues in excess of $500,000 from

the sale of its products. During the same period of time,

the Company caused to be shipped in interstate commerce,

goods and products valued in excess of $50,000 directly to

its Kentucky locations from points outside the state of

Kentucky.

I find, as the Respondent admits, that the Company is,

and has been at all times material, an employer engaged

in commerce within the meaning of Section 2 (2), (6) and

(7) of the Act.

lla

II. The Labor Organization Involved

Truck Drivers, Chauffeurs and Helpers Local Union

No. 100, an affiliate of the International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America (herein the Respondent or Union) is a labor

organization within the meaning of Section 2(5) of the

Act.

ill. The Alleged Unfair Labor Practices

A. Background

For several years prior to the events here at issue, the

Company and Respondent have been parties to collective-

bargaining agreements covering the Company’s truck

drivers." In the past, the Company was a signatory of the

National Master Freight Agreement which covered the

basic provisions relating to wages, benefits, grievance pro-

cedure, and the like. To that agreement, the Company

and Respondent negotiated an “addendum” which covered

local conditions such as pay for pickups, work rules, etc.?

'The drivers number approximately 20, and consist of both over-

the-road and ijocal cartage drivers. Another labor organization with

whom the Company bargains, represents the Company's production

empluyees.

The complaint alleges, and the answer admits that the drivers ove

bargained for by the Respondent in the following appropriate units:

All truck drivers employed by the Employer at its plant in Lud-

low, Kentucky, excluding office clerical employees and all guards,

professional employees and supervisors as defined in the Act, and

all other employees of the Employer.

All truck drivers employed by the Employer at its plant in

Covington, Kentucky, excluding office clerical employees, and

all guards, professional employees and supervisors as defined in

the Act, and all other employees of the Employer.

2 See General Counsel’s Exh. No. 13.

12a

The master agreement expired on June 30, 1973, and the

Company apparently decided at about that time to nego-

tiate individually with Respondent respecting a new col-

lective agreement.

Jack Rains, Director of Employee Relations for the

Company, commenced his attempt to schedule negotiating

meetings with Respondent in June, but was unsuccessful.

assertedly due to the obstinateness of the Union, until Oc-

tober. At that time the Company filed an unfair labor

practice charge with the National Labor Relations Board

(herein the Board) claiming that the Respondent violated

the Act by its refusal to meet and bargain with the Com-

pany. Apparently that charge had the desired effect since

it resulted in the scheduling of the first negotiating meet-

ing to take place on November 17.

B. The Negotiating Sessions, and Their Aftermath

Present for the Company at the first meeting was Rains;

present for the Union were the business agent, Jack O’Ban-

ion, along with employees Claude Kidd (job steward) and

Joe Underwood, a driver. At that meeting little was ac-

complished other than the exchange by the parties of their

1espective proposals for a new collective-bargaining agree-

ment, and the scheduling of the next meeting for Novem-

ber 29. However, according to the testimony of Rains,

which I credit, the following colloquy took place between

him and O’Banion respecting the respective authority of

the two men to negotiate a contract:

Did he at any time ask you whether or not you

had authority to agree to hours?

3 All dates hereinafter refer to the calendar year 1973, unless other-

wise indicated.

4The addendum was scheduled to expire in October.

13a

A. He asked me that the first day we met, if I

had the authority to consummate such an agreement

that I presented to him on the 17th day of November.

And I said, “Jack, if I wouldn’t have it, I'd send a

messenger boy up here who we pay $1.99 an hour.”

And he said, “Fine.”

I said, “Do you have authority?”

And he said, “Let’s go on.”

And we started reading the document that I pre-

sented to him. That was on the 17th day of Novem-

ber.

A second meeting between the parties was held on No-

vember 29, and a third and final meeting looking toward

the consummation of a collective-bargaining agreement was

held on December 7.5 The last meeting was a rather

lengthy one and substantial progress was made with respect

to agreement on most items in the contract. However,

near the close of the meeting, two major items remained

for resolution: (1) grievance procedure and (2) wages.

As respects the difference between the parties on the

grievance procedure, it appears that under the Master

Agreement the procedure required, inter alia, that where

the parties were unable to resolve the grievance at the local

level, they were required to go to Columbus, Ohio, for

final resolution by a board composed of both management

and union representatives. This was time consuming and

costly, and the drivers apparently did not like it. The

Company therefore had proposed a grievance and arbitra-

tion procedure culminating in arbitration at the local level,

and had proposed the Federal Mediation and Conciliation

Service as a source of arbitrators. When the Union balked

5 At this last meeting the same people were present as previously

with the addition of Jim Brown, Shipping Superintendent for the Com-

pany, and Jerry R’gney, a truckdriver, for the Union.

l4a

at the proposal, Rains suggested that both parties draw up

a list of local arbitrators. According to Rains’ testimony,

the Union was agreeable to that, and proceeded to a dis-

cussion of wages.

As respects the issue of wages, the Union had proposed

substantial increases for pickups and deliveries. When

the Company balked at paying such increased rates, the

Union suggested that the drivers be paid on an hourly

rate for such work. After some heated discussion, Rains

hit the table, stood up and said “you got it (the hourly

rate).’’ Rains then advised the four union men that the

agreement would be typewritten and sent to them the fol-

lowing day. As Rains was preparing to leave O’Banion

expressed some concern as to whether Rains’ job might be

in jeopardy in view of the concession that he made with

respect to the wages, but Rains responded that he could

handle that. He then shook hands with the four men and

left.”

The following day December 8, Rains had the agree-

ment typed. That evening he telephoned O’Banion to

6The previous addendum prescribed various rates for unloading

“straight one stop loads” and various stops thereafter, and other rates

for picking up loads which are less than 20,000 pounds. See General

Counsel’s Exh. No. 13.

7 The foregoing findings are based upon the credited testimony of

Rains which was not substantially impaired by that of O’Banion. As

he testified on cross-examination, O’Banion agreed that there were

two major issues still open near the close of the December 7 meeting,

i.e., grievance procedure and wages; that Rains put in a proposal with

respect to grievance procedure and then moved on to the area of hours

in which he acceded, as above described; that there was a general

shaking of hands after which Rains left. O’Banion refrained from

bluntly declaring that there was no agreement at the close of the meet-

ing; however, he testified on direct examination that the three com-

mitteemen “would not accept the grievance procedure and therefore,

would not recommend it to the other drivers.”

I

l5a

secure final agreement with respect to five items upon

which there was understanding but which required the

technical language to be cleared by the Company attorney.

Those clauses were: (1) The driver protection clause,

which secured to the employee-drivers the right to haul the

Company's freight before using outside carriers; (2) a list

of management representatives whom a driver could call

in the event that there was a problem in connection with

his work; (3) a transfer of title clause which protected

the Union in the event of a sale of the Company; (4) a

cost of living clause; and (5) a list of management-sug-

gested arbitrators for the grievance procedure. These

were agreed to by O’Banion who, again, expressed concern

to Rains respecting the latter’s job.

Within the next couple of days, Rains submitted the

proposed written agreement to the Union by leaving it in

the Company’s guard house to be picked up hv a Union

committeeman. He never received it back executed.

Thereafter, Rains called O’Banion on several occasions to

inquire what had happened, but was unable to reach him.

On or about December 29, according to Rains’ testimony,

Superintendent Brown told Rains that job steward Kidd

had stopped in at Brown’s office and told him not to put

the new rates into effect-that if he did, there would be

trouble. Kidd related that the drivers did not like the

work rules and that they were not signing the agreement.

Rains assured Brown that this was “loose talk’”’ and not to

be concerned about it.

Meanwhile, on or about December 15, the Union had

a meeting in which a vote by a secret ballot was held on

whether to accept the Company’s proposal. It was voted

down unanimously.

On March 23, 1974, O’Banion came to Rains’ office to

advise that “the boys don’t like your contract and we're

l6a

not going to accept it. I’ve got copies of the Master Freight

Agreement here and I want you to sign.” Rains responded

that he did not intend to sign the Master Freight Agree-

ment, that the Company had negotiated a binding contract

in good faith. O’Banion replied that he would leave the

Master Freight Agreement with Rains until March 30 to

decide whether the Company wished to sign it; that if it

did not, a picket line would be placed about the Company

premises. After O’Banion left, Rains asked the drivers

who accompanied him to stay for a moment, and he inter-

rogated them as to what they did not like. They respond-

ed that it was the grievance procedure — they did not like

the arbitration provisions.

On March 30, there was a meeting among the parties®

to explore what was required to achieve agreement. At

that meeting, the Company maintained that they had a

binding contract but that they were meeting in an effort

to resolve any differences which endangered the relation-

ship should the agreement be placed into effect. At that

meeting, according to Rains’ testimony, it appeared that

the drivers and O’Banion were at odds concerning some

unexplained matter, and that the problem was not simply

a resolution of the grievance procedure.®

No resolution of the contract was accomplished at the

March 30, meeting. It appears that the Union was insisting

that the Company sign the Master Freight Agreement

8 Rains and Brown for the Company; O’Banion, Kidd, Underwood

and another driver for the Union.

There was some intimation in the record that this feeling had

ripened into a major dispute between the Union leadership and the

drivers to the extent that the latter had hired a lawyer to represent

them. However, this was not developed on the record since it ap-

peared to be outside the scope of the issue to be resolved in this

rr ceeding.

17a

while the Company took the position that an agreement.

had already been negotiated, which the Union refused to

sign.

Analysis and Concluding Findings

The Respondent defends this case on the grounds that:

(1) There was never an agreement reached between the

parties as to the substantive provisions of the contract; and

(2) even if such agreement was reached, a condition prece-

dent to the consummation of such agreement was the rat-

ification by the membership, and the Company was at all

times aware of such condition precedent. Therefore, since

the Company's proposed contract was rejected by the mem-

bership, no agreement was reached which is obligatory for

the Union to execute. I find that there is a lack of sub-

stantial evidence in the record to substantiate these con-

tentions.

Thus, as set forth above, it is agreed between the parties

that near the close of the December 7 meeting, only two

principal issues separated them from agreement — griev-

ance procedure and wages. I have found, based upon the

credited testimony of Rains, that the Union finally agreed

to his proposal respecting grievance procedure and that he

gave in to the Union proposal respecting wages. However,

even if — as there is some record evidence to suggest —

the Union committeemen did not like the grievance pro-

cedure proposal, there is no substantial evidence that they

voiced such obiection at the close of the December 7

meeting. Even if they did, there is no evidence that

O’Banion, in his telephone discussion with Rains the fol-

lowing day, indicated in any way that the Company’s pro-

posal respecting grievance and arbitration was not accepta-

ble to the Union. Finally, it is evident that the Union

18a

committee considered the Company’s final, written docu-

ment (GC Exh. No. 11) to be a proposed contract which

they would vote to accept or reject in its entirety, and not

piecemeal.'®

In view of the foregoing, I find and conclude that the

members of the Union’s negotiating committee, on and

after December 7, concluded that they had negotiated a

binding agreement with the Company even though they

may have felt that they should submit any agreement they

negotiated to the membership for approval.'' However,

Respondent argues that based upon (1) The constitution

of the International Union, (2) past practice at the Com-

pany’s plant, and (3) testimony of Respondent's witnesses

at the trial, it is clear that the Company understood and

agreed that any agreement reached at negotiations was

subject to ratification by the membership before it became

binding.

The provision of the International Union's constitution

cited by Respondent in its brief (page 4) '? states in per-

tinent part;

(b) Contracts may be accepted by a majority vote

of those members involved in negotiations and voting,

or a majority of such members may direct further ne-

gotiations before a final vote on the employer's offer

is taken, as directed by the Local Union Executive

10 Qn cross-examination, O’Banion conceded that when Teamster

members vote, they do so on a whole contract and not piecemeal.

11 O’Banion, on cross-examination, conceded that after the December

meeting had concluded, “it was the negotiating committee who sug-

gested to [him] to take the offer back to the members.”

12 The provision cited in the brief is “Article XI, Section I(b);”

however, such citation must have been a typographical error since

there is no such Section in Article XI. Rather, there is a Section 1(b)

in Article XII which appears to be related to the issue involved.

19a

Board. When in the judgment of the Local Union

Executive Board, an employer has made a final offer

of settlement, such offer must be submitted to the

involved membership and can be rejected only by a

two-thirds (2/3) vote of the members involved in the

negotiations and voting or responding to a referen-

dum mail ballot.

It would seem possible to construe the foregoing quota-

tion as much against Respondent’s position as in favor

of it since it provides that “contracts may be accepted by

a majority vote of those members involved in the negotia-

tions and voting... .” It is true that the provision pro-

vides further that “when, in the judgment of the Local

Union Executive Board, an employer has made an final offer

of settlement, such offer must be submitted to the involved

membership . . .” However, there is no evidence in the

instant case that the Local Union Executive Board took

any action in this matter. Under all circun ‘ances, I am

not convinced that the International Union’s constitution

provides the support of Respondent's position that is

claimed.

As respects past practice, the record shows that in prior

years the Company adopted the National Agreement and

negotiated locally only the addendum which, as above

noted, had to do primarily with the wages for pickup

and deliveries, and local work rules. It appears that the

procedure for negotiating the addendum was the for the

business agent of the Respondent to meet with either the

president of the Company or Mr. Rains and negotiate an

agreement. It was then the practice for the business agent

to go outside the Company’s office where the negotiations

took place, discuss the agreement with the drivers who

congregated in another office, and secure their approval or

disapproval on the spot. This practice, argues the Respon-

20a

dent, clearly shows that the Company was always aware

that any agreement reached in the 1973 negotiations was

subject to ratification by the membership. I cannot accept

this argument in the light of significant changes which

occurred in 1973.

Thus, the whole character of the negotiations changed.

Rather than negotiating simply an addendum to a national

contract, the 1973 negotiations involved several meetings

wherein the discussions broadened to negotiating a whole

new collective-bargaining agreement. This required a more

formalized procedure ,and the Respondent appointed or

elected a negotiating committee which, as above described,

met with the Company’s representative, and hammered

out, over a series of meetings, what purported to be a new

contract. It was this obvious difference in the procedure

which prompted Rains, at the first meeting, to inquire of

O’Banion whether the latter had the requisite authority to

negotiate, and he replied “Let’s go on.” This response

certainly constituted a clear implication to Rains that the

answer to his question was affirmative. Moreover, I deem

it significant that as of January 5, 1973, the Respondent

posted on the employees’ bulletin board a notice to the

effect that O’Banion was to serve as Respondent's business

agent and that only he (with the exception of the president

and secretary-treasurer of the local) had the “authority to

conclude a collective-bargaining agreement or to alter or

waive the terms of such agreement.” (Emphasis in orig-

inal) **

In light of the foregoing notice and the change in the

character of the negotiations, as well as the implied admis-

sion of O’Banion in the first meeting of the parties above

13 See General Counsel's Exh. No. 12.

2la

described, I conclude that past practice was not sufficient

to put the Company on notice that ratification by the mem-

bership was a condition precedent to conclusion of a bind-

ing collective-bargaining agreement.

Finally, the Respondent argues that the Company was

put on notice of the need for ratification by the repeated

statements to that effect made by members of the nego-

tiating committee during ..e 1973 negotiations. These

committeemen, testifying on behalf of Respondent, stated

that during the negotiations they repeatedly emphasized to

Rains the necessity_for taking the matter back to the mem-

bership. For example, the testimony of Jerry Rigney:

We told him [Rains] — at the ending of everything we

always told lim that we'd have to take those back

before the men.

Joseph Underwood testified:

Yes, it was mentioned to Mr. Rains on three different

occasions by myself, that as far as the authority of the

committee, drivers’ committee, that we had no au-

thority to agree to anything. We would negotiate it

and take it back to the membership, back to the drivers

for a final approval by them... .

However, in addition to the categorical denial by Rains

of such notification, the above testimony is, in my vicw,

substantially impeached by the testimony of O’Banion, who

was, of course, the principal negotiator for Respondent.

Thus, he did not deny Rains’ testimony, above referred to,

that the negotiating committee of Respondent had authori-

ty to conclude an agreement, and further testified, on cross-

examination that it was only after the conclusion of the

December meeting that the negotiating committee sug-

22a

gested to him that the offer of the Company be taken back

to the membership."

In the light of all the circumstances, including demeanor

considerations, I consider the testimony of the Union com-

mitteemen to be “too good” and that while they may have

considered that any action on their part in negotiations

would eventually be approved or disapproved by vote of

the members, this was not made clear to the Company’s

negotiator. Consequently, he, in good faith, negotiated

an agreement with the Respondent’s committee which was,

on and after December 8, legally binding.'"®

However, Respondent further contends that the Com-

pany was aware that no final agreement was consummated

as evidenced by its failure to put into effect the new

changes negotiated. But this is understandable in light of

the threat of Kidd to Brown on December 29 that a strike

was imminent if the Company proceeded to implement the

agreement. Moreover, O’Banion testified that there was no

particular pressure to implement the agreement because

the Comparry was paying the wages of the Central State’s

contract as well as “picking up all the holidays, health and

14 O’Banion’s testimony on this point is as follows:

BY MR. FISHER:

Q. Well, if I understand your answer to the judge previously,

it was the negotiating committee who suggested to you to take

the offer back to the members; is that correct?

A. Yes, sir.

Q. They suggested it after the meeting was over?

A. Sometime—Well, yeah.

Q. After the meeting was over?

A. Uh-huh.

15 I have aiso taken into consideration on this point the lack of any

evidence that during the telephone conversation between Rains and

O’Banion on December 8, the latter made any reference to the require-

ment that the agreement was to go before a vote of the membership.

23a

welfare, pension, . . . there was no pressure on me to finish

the contract or leave it as is, as far as that goes.” Since

Rains was occupied in negotiating an agreement during

this time with the Union representing the production em-

ployees, it is understandable that the matter of signing

the contract was held in abeyance for several months in

early 1974. Finally, in late March, Respondent formally

notified the Company of its refusal to execute the Decem-

ber proposed agreement and insisted on Company agree-

ment adoption of the Master Freight Agreement.

In view of all the foregoing, I find that the defenses of

Respondent to the prima facie case of the General Counsel

de not withstand scrutiny, and I therefore find and con-

clude that all times on or about December 8, Respondent

has failed and refused to execute the agreement consum-

mated on December 7 and 8, in violation of Section 8 (b)

(3) of the Act.'®

IV. The Effect of the Unfair Labor

Practices Upon Commerce

The activities of Respondent set forth in Section III,

above, occurring in connection with the Company’s oper-

ations described in Section I, above, have a close, intimate,

and substantial relationship to trade, traffic, and commerce

among the several states and tend to lead to labor disputes

burdening and obstructing commerce and the free flow

thereof.

Vv. The Remedy

Having found that the Respondent has engaged in unfair

labor practices, it should be ordered to cease and desist

16 Teamsters, Local 186, (Max Rudolph Trucking Company), 172

NLRB 788.

24a

therefrom and to take certain affirmative action to effectu-

ate the policies of the Act. It has been found that the

Respondent has refused to bargain collectively with the

Company as the exclusive representative of all employees

in the appropriate units by refusing to execute the collec-

tive-bargaining agreement negotiated between it and the

Company in December 1973. As the proposed collective-

bargaining agreement transmitted by the Company to the

Respondent on or about December 8, 1973 embody the

terms of the agreement reached on December 7 and 8, it

will be recommended that the Respondent be ordered to

execute that document.

Conclusions of Law

1. Duro Paper Bag Manufacturing Company is an em-

ployer engaged in commerce within the meaning of Sec-

tion 2 (2), (6) and (7) of the Act.

2. ‘Truck Drivers, Chauffeurs, and Helpers Local Union

No. 100, an affiliate of the International Brotherhood of

‘Teamsters, Chauffeurs, Warehousemen and Helpers of

America, is a labor organization within the meaning of

Section 2 (5) of the Act.

3. The following constitute units appropriate for the

purpose of collective-bargaining within the meaning of

Section 9(b) of the Act:

(a) All truckdrivers employed by the Company at its

plant in Ludlow, Kentucky excluding office clerical em-

ployees and all guards, professional employees, and super-

visors as defined in the Act, and all other employees of

the Company.

(b) All truckdrivers employed by the Company at its

plant in Covington, Kentucky excluding office clerical em-

95a

ployees and all guards, professional employees, and super-

visors as defined in the Act, and all other empioyees of the

Company.

4. The Respondent has been, since 1970 and 1974,

respectively, the duly recognized exclusive collective bar-

gaining representative of all employees in the units de-

scribed above for the purpose of collective bargaining with-

in the meaning of Section 9(a) of the Act.

5. By refusing on or about December 8, 1973, and at

all times thereafter, to execute the collective-bargaining

agreement with the Company to which the Respondent

had previously agreed, Respondent has engaged in and is

engaging in unfair labor practices within the »eaning of

Section 8 (b) (3) of the Act.

6. The aforesaid unfair labor practices are unfair

labor practices affecting co-.sierce within the meaning of

Section 2 (6) and (7) of the Act.

Upon the foregoing findings of fact, conclusions of law,

and the entire record in this case, and pursuant to Section

10(c) of the Act, I hereby issue the following recom-

mended: '7

ORDER

Respondent, its officers, agents, and representatives, shall:

1. Cease and desist from:

(a) Refusing upon request of the Company to execute

the collective-bargaining agreement agreed to on or about

17 In the event no exceptions are filed as provided by Section 102.46

of the Rules and Regulations of the National Labor Relations Board,

the findings, conclusions, and recommended Order herein shall, as pro-

vided in Section 102.48 of the Rules and Regulations, be adopted by

the Board and become its findings, conclusions, and Order, and all

objections thereto shall be deemed waived for all purposes.

26a

December 8, 1973, as embodied in the proposed collective-

bargaining agreement transmitted to it by the Company

on or about December 8, 1973.

(b) In any like manner refusing to bargain with the

Company in accordance with the requirements of the Act.

2. Take the following affirmative action designed to

effectuate the policies of the Act:

(a) If requested to do so by the Company, forthwith

sign and execute the proposed collective-bargaining agree-

ment transmitted to it by the Company on or about Decem-

ber 8, 1973.

(b) Post at Respondent’s offices and meeting places

copies of the attached notice marked “Appendix.’’'® Copies

of said notice, to be furnished by the Regiona! Director

for Region 9, after being duly signed by the Respondent's

representative, shall be posted by Respondent immediately

upon receipt thereof, and be maintained by it for 60 con-

secutive days thereafter, in conspicuous places, including

all places where notices to its members are customarily

posted. Reasonable steps shall be taken by the Respondent

to insure that said notice are not altered, defaced, or

covered by any other material.

(c) Mail to the Regional Director for Region 9 signed

copies of the notice for posting by the Company, said Com-

18 In the event the Board’s 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 be changed to read “POSTED PURSUANT TO A

JUDGMENT OF THE UNITED STATES COURT OF APPEALS

ENFORCING AN ORDER OF THE NATIONAL LABOR RELA-

TIONS BOARD.”

27a

pany being willing, at all locations where notices to em-

ployees are customarily posted.

(d) Notify the Regional Director for Region 9, in

writing, within 10 days from the date of this Order, what

steps have been taken to comply herewith.

Dated at Washington, D.C.

/s/ ROBERT COHN

Administrative Law Judge

28a

Appendix

NOTICE TO MEMBERS

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

WE WILL, upon request by DURO PAPER BAG

MANUFACTURING COMPANY, execute the agreement

reached on or about December 8, 1973, as embodied in the

proposed collective bargaining agreement transmitted to

us by said employer on or about that date. The bargain-

ing units are: .

All truckdrivers employed by the Company at its

plant in Ludlow, Kentucky, excluding office clerical

employees and all guards, professional employees and

supervisors as defined in the Act, and all other em-

ployees of the Company.

All truckdrivers employed by the Company at its

plant in Covington, Kentucky, excluding office clerical

employees, and all guards, professional employees and

supervisors as defined in the Act, and all other em-

ployees of the Company.

TRUCK DRIVERS, CHAUFFEURS

AND HELPERS LOCAL UNION No.

100, AN AFFILIATE OF THE

INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, CHAUFFEURS

WAREHOUSEMEN AND HELPERS

OF AMERICA

(Labor Organization)

29a

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 concern-

ing this notice or compliance with its provisions may be

directed to the Board’s Office, Federal Office Building, Rm.

3003, 550 Main St., Cincinnati, Ohio 45202 (Tel. No. 513-

684-3686) .

GENERAL COUNSEL EXHIBIT 11

This Agreement

is made and entered into this FIRST day of

JANUARY, 1974 by and between:

The Duro Paper Bag Manufacturing Company, herein-

after referred to as the “Company” and Local #100 of the

International Brotherhood of Teamsters, Chauffeurs, Ware-

housemen and Helpers of America, herein referred to as

the “Union.”

ARTICLE I — RECOGNITION

1. The Company recognized the Union as the sole and

exclusive bargaining agent for the purpose of collective

bargaining with respect to wages, hours of work and all

other conditions of employment for its truck drivers em-

ployed at and dispatched from the Company’s Covington

Shipping Department.

2. The Company agrees to meet and deal with the Union

representatives and/or stewards as designated and autho-

rized by the Union, at times agreeable to both parties, for

the purpose of collective bargaining and processing of

$0a

grievances or such other items of interest to either party

from time to time.

3. Both the Unium and Company will keep each other

informed, in writing, as to the names of individuals elected

to represent them.

ARTICLE II — SCOPE OF AGREEMENT

1. This agreement shall have application to the over-the-

road and city drivers employed by this Company and shall

not be applicable to the Company employees who are

covered by a collective bargaining agreement with a Union

not signatory to this agreement, or those employees who

are outside the classification of over-the-road or city drivers

(described in Article I, Paragraph 1) employed by the

Company.

2. All present employees who are members of the Union

must remain members of the Union in good standing

throughout the life of this agreement. All employees who

are not members of the Union on the effective date must

become and remain members in good standing with the

Local Union, as condition of employment, on and after

the 3lst day of employment with the Company.

ARTICLE III — NON DISCRIMINATION

1. Both the Company and Union agree there will be no

discrimination against any employee because of this Union

membership or activity so long as such acts does not inter-

fere with the conduct of the Company’s business.

2. The Company and Union further agree not to dis-

criminate against any individual with respect to his hiring,

compensation and terms or conditions of employment be-

$la

cause such individual race, color, religion, sex, or national

origin.

ARTICLE IV — MANAGEMENT

The Union recognizes and agrees that the Management

of the business, including, but not limited to, the direction

of the working force; the right to hire, to plan, direct,

control; maintain rules and regulations, violations of which

shall be among the cause for disciplinary action up to

and including discharge. These things are vested in the

Company and such rights shall be exercised with due

regard for the rights of the employees and consistent with

this agreement.

All other rights not specifically nullified by this agree-

ment are retained by the Company.

ARTICLE V —

DUES DEDUCTION, INSURANCE AND PENSION

Section 1. The Company agrees to deduct from the em-

ployees earnings the initiation fees and monthly Union

dues for all members who present the Company with a

voluntary written authorization. Such initiation fees and

dues so deducted shall be forwarded, by the Company, to

the Union.

Section 2. The Company agrees to make the following

contributions to the Central States, Southeast and South-

west Areas Pension and Health and Welfare Funds:

Pension Health & Welfare

7-1-73 $17.00 7-1-73 $16.50

7-1-74 19.50 7-1-74 19.00

7-1-75 22.00 7-1-75 21.50

$2a

Section 3. If an employee is absent because of illness or

off the job injury and notifies the Company of such, the

Company will continue to make the required insurance

premium payments for four (4) weeks and the Pension

contributions for a period of four (4) weeks.

If the employee is injured on the job such Insurance

and Pension premiums and/or contributions shall continue

for a period of 12 months.

Section 4. If an employee is granted a leave of absence

as prescribed in Article IX he must remit, to the Company,

his monthly Insurance Premium and Pension Fund con-

tribution which the Company will forward to its proper

place. Otherwise employees on leave who fail to do so

will be cancelled from the plans.

ARTICLE VI — SENIORITY

Section 1. Newly hired drivers must work thirty (30)

cumulative work days within any ninety (90) calendar

day period before being considered a regular employee.

Upon completion of such period of time such employee.

seniority date shall revert back to his first day worked

during such ninety (90) day period.

Section 2. There shall be two seniority structures; one

for over-the-road drivers and one for city drivers. When

and if a driver is permanently transfered from one status

to the other said employee shall be placed on the bottom

of the seniority list to which he is transferred.

Section 3. The work force may be increased or decreased

at the discretion of the Company but the last man hired

shall be the first laid off. Recalls from layoff shall be

done by calling back the most senior employee first.

$3a

Section 4. An employee's seniority shall end for any of

the following reasons:

If the employee quits.

b. Discharge for just cause.

c. Employee is absent for three (3) working days with-

out proper notification to the Company unless a

reason satisfactory to the Company is given.

d. If, after being laid off, the employee is not recalled

by the Company for a period of three (3) years.

In recalling employees from lay-off the Notice of Recall

shall be deemed to have been given if mailed to the last

address on file with the Company or if given to the em-

ployee personally. Employees recalled shall be required

to report to work within ten (10) days otherwise the Com-

pany may fill the position from whatever sources are avail-

able to it.

ARTICLE VII — VACATION AND HOLIDAYS

Section 1. Employees covered by this agreement who have

worked sixty percent (60%) or more of the total working

days during any twelve month period shall receive a vaca-

tion with pay in accordance with the following schedule:

Amount of Vacation Eligibility Requirements

Six (6) days One (1) full year (12 con-

secutive months) .

Twelve (12) days Two (2) full years.

Eighteen (18) days Ten (10) full years or more.

Twenty-four (24) days Fifteen (15) full years or

more.

Pay will continue to be computed as in past.

84a

Section 2. The following named holidays shall be paid

for at the rate of eight (8) hours pay for the holiday

whether worked or not and regardless what day of the

week they may fall: New Years Day, Memorial Day,

Fourth of July, Labor Day, Thanksgiving Day, December

24th, Christmas Day and the Employee’s Birthday.

Section 3. To be eligible for such holiday pay an em-

ployee must:

1. Have been employed more than thirty (30) working

days (See Section 1, of Article VI).

2. Have worked the regular work-day immediately pre-

ceding and following the holiday, unless absence is

due to proven illness, vacation or excused by Com-

pany.

ARTICLE VIII — FUNERAL LEAVE

Section 1. In the event of a death of a member of the

immediate family (father, mother, wife, husband, brother,

sister, son or daughter) of an employee shall be entitled

to a maximum of two days off to attend the funeral. Such

employee will be paid for the two days upon proof of

relationship of the deceased.

ARTICLE IX — LEAVE OF ABSENCE

‘he Company agrees to grant leaves of absence up to

a maximum of ninety (90) days when business conditions

permit. No leave will be extended more than a total of

twelve (12) months and employees over-staying a leave

shall lose his seniority and job rights with the Company.

Employees on leave must make suitable arrangements for

continuation of Health and Welfare and Pension Payments

before the leave begins (See Article V, Section 4) .

35a

Falsifying reasons for a leave of absence and/or employ-

ment elsewhere during a leave shall be grounds for dis-

charge.

ARTICLE X — RULES OF CONDUCT

An employee who fails to maintain, at all times, proper

standards of conduct or who violates any of the following

rules shall be subject to disciplinary action up to and

including discharge.

1. Dishonesty.

2. Being under the influence of alcohol or drugs while

on duty in service of the Company.

3. Carrying unauthorized passengers.

4. Carelessness or negligence resulting in an accident.

Refusal to perform a service as required under this

agreement.

6. Leaving a load sit without justification after having

been picked or assigned.

7. Fighting on Company property among employees.

ARTICLE XI — DRIVER RESPONSIBILITIES

1. ‘To submit, in writing, the current telephone number

and address where he can be contacted at all times.

The Company will rely on the last telephone number

and address to reach a driver. Any wages or benefits

losses due to non compliance with this provision, by

the driver, is the fault of the driver.

2. To maintain proper conduct at all times when on

the road or in his dealings with a customer.

10.

36a

For all items picked up or delivered by him and is

required to count all merchandise and report any

shortage or over shipments. When a shortage or

overshipment exceeds ten (10) bales he must call

Duro Shipping Department for instructions before

leaving the point of delivery or pick up.

Drivers are responsible for their own fines and/or

expenses incurred as a result of their violation of

road or traffic laws.

To keep his physical examination current and in ac-

cordance with the Motor Carrier Regulations. Cur-

rent physical reports must be on file with the Com-

pany and any driver found not to have complied

with this provision will not be permitted to drive.

Driver marking off sick may be required to be ex-

amined by Company appointed doctor.

Vehicle condition, logs, trip sheets and invoices must

be properly filled out and turned in at the Shipping

Office at the end of each trip.

Any accident must be reported at the end of the trip

on which it occurs and before the driver involved

goes back on the job.

Any absence must be reported to the Company in

advance so that replacement may be secured. Failure

to report may result in suspension or discharge.

In case of emergency — where shipments materialize

after the start of board pick time the dispatcher will

dispatch the load (s) as the need dictate in order to

satisfy the customer (s). Such emergency dispatching

will not be construed as a violation of the board

picking procedures.

$7a

EXPENSES

Expense money is to be used for expense on the

road only.

It is the driver’s responsibility to keep his expenses

in line; any time a driver has accumulated excess ex-

pense monies the Company may limit future ad-

vances.

No toll road expenses will be reimbursed unless au-

thorized by the Company.

All expenditures of parts on the road must be au-

thorized by the Company before the purchase is made.

ARTICLE XII — GRIEVANCE PROCEDURE

Should either party to this agreement or any driver cov-

ered by this agreement have a grievance wherein a viola-

tion of any specific provision of this agreement has oc-

curred, it shall be processed in the following manner:

Step 1. Between the aggrieved party and a repre-

sentative of the other party who has been properly

designated to handle such matters.

Step 2. If it cannot be resolved in step one above then

it must be reduced to writing and submitted to a meet-

ing with the grieved party and the job steward and

a Company representative from the Industrial Rela-

tion Department.

Step 3. If no settlement can be reached in steps one

and two a meeting will be held with the Business

Representative of the Local Union and the Com-

pany’s Industriai Relations Representative.

Step 4. If no settlement is reached in steps one, two

$8a

or three the grievance shall, within thirty (30) days

from the answer in step 3, be submitted to Arbitration

in the following manner:

The Company and Business Representatives have

jointly drawn up a list of reputable qualified arbi-

trators (See exhibit #1 at the end of this agree-

ment.)

When a grievance cannot be resolved in steps 1,

2 and 3 of this Article it shall be submitted for

hearing before an Arbitrator selected by mutual

agreement from the list referred to above. The

Arbitrator so selected shall have full authority to

seek out all the facts and render a decision which

shall be final and binding. Such decision shall be

immediately following the hearing but no later

than fifteen days from the date of the hearing.

The cost of the Arbitrator shall be shared equally

between the Employer and the Union but any

other expenses that either side may incur on its

own shall be paid by the party responsible for in-

itiating such expenses.

ARTICLE XIII — BOARD PICKING PROCEDURES

The board shall be picked according to seniority giving

the most

senior.

TIME

(1)

senior first choice and progressing to the least

Board Pick Time shall be:

(a) Monday through Friday — 3:30 p.m.

(b) Saturday — 9:30 a.m.

(c) Holiday — Pick time will remain the same

(2)

(3)

(4)

(5)

(6)

39a

as (a) and (b) above but drivers on the

road must call in at pick time.

Drivers on the road at pick time for weekend

or holiday loads must call in prior to pick time

and leave a telephone number where he can

be contacted or he must call in at pick time and

make his selection.

There will be a (10) minute grace period. If

a driver cannot be contacted at the start of pick

time he will have an additional (10) minutes

before he is passed on the board.

Drivers must have completed their runs and

trucks returned to Company property in order

to be eligible to pick the board during the

week (Monday through Friday) .

When a driver pre-determines that he will not

be available at Board Pick Time he must sub-

mit in advance of the board pick time and in

writing a list of loads of his choice in order of

priority. Should additional loads come up af-

ter this selection is made the driver forfeits his

rights to these loads.

Where a driver has passed the board pick and

an emergency new load develops after 3:30

p-m., this driver must be called again and of-

fered the new load before using outside (ex-

tra) drivers. Should any driver not be avail-

able when called, the Company may get an ex-

tra driver to take the load.

Driver must pick the load himself and no one

is permitted to pick for another driver.

40a

(7) No loads or equipment are to be switched with-

out the permission of the Company.

(8) Ifa driver passes his chance to pick a trip the

Company is at liberty to use casual drivers af-

ter all perminate drivers have had an opportuni-

ty to pick the board.

(9) Drivers calling in sick must recall by noon on

the day he wishes to be placed on the board

to go out again.

(10) Drivers making a practice of marking off sick

may be required to furnish a doctor's statement

as evidence of such sickness.

(11) The Company will provide each driver with

the name and telephone number of individuals

who may be called when advice concerning de-

liveries, pick ups and extra help is required

(See actachment) .

ARTICLE XIV — WAGES

The hourly wage rates of pay during life of this agreement

shall be as follows:

Effective Date City Over-the-Road

1-1-74 $6.39 $6.23

1-1-75 6.69 6.53

1-1-76 6.99 6.83

Over the road drivers shall be compensated mileage pay

as follows:

1-1-74 .16325 per mile

1-1-75 = ~—-.17075 per mile

1-1-76 .17825 per mile

4la

1. Mileage charts will be posted showing regular stops.

In large cities with population of more than 500,000,

where the point of delivery is beyond the center city

Post Office, the Company will agree to pay such mile-

age based on twenty-five (25) miles regardless what

the actual miles may be. In these same cities where

the point of delivery is not beyond the center city

Post Office mileage will be paid based on center city

Post Office mileage.

2. The Company will provide each driver an itemized

statement of earnings and deductions.

ARTICLE XV —

FULL AGREEMENT—NO STRIKE—NO LOCKOUT

This agreement concludes the full agreement between

the Company and Union and resolves all issues and/or

disputes whether mentioned or not.

In committment to each the other it is agreed there

shall be no strikes by the Union and no lockouts by the

Company during the term of this agreement. Any em-

ployee or group of employees participating in a strike,

work stoppage or slowdown is subject to discharge.

Should a strike, work stoppage or slow-down occur the

Local Union must direct the workers to resume normal

operations. Failure on the Union to do so is considered

a breech of this agreement.

ARTICLE XVI — RENEWAL AND TERMINATION

Section 1. This agreement shall be in effect as of January

1, 1974, and shall remain in effect until January |, 1977

and from year to year thereafter unless terminated in

accordance with the provisions outlined in this article.

42a

Section 2. If either party desires to change any provisions

of this agreement it shall give written notice to the other

party at least sixty (60) days in advance to the expiration

date.

Section 3. The giving of notice as provided in Section 2

above shall constitute an obligation upon both parties to

sit down and negotiate in good faith all questions at issue

with the intent of reaching a written gareement prior to

the expiration date. Failure to give the written notice as

provided in Section 2 above shall waive the rights of that

party to re-open the agreement for negotiations, in which

case the agreement shall automatically renew itself for one

full year as written.

Section 4. If the parties have not reached an agreement

on or before the expiration date (Provided notice was

served and negotiations have taken place) all provisions

of this agreement shall remain in effect unless specifically

terminated in accordance with the provision outlined

below.

Section 5. At any time after the expiration date set forth

in Section | of this article if no agreement is reached either

party may give the other a written notice of its intent to

terminate the agreement in no less than ten (10) days.

All provisions of this agreement shall remain in full force

and effect until such ten (10) days have elapsed. During

this ten (10) day period attempts to reach an agreement

shall continue. This section does not apply where no 60

day notice was given as prescribed in Section 2 above.

Duro Paper Bag Manufacturing Company

43a

This Agreement and the Supplemental Agreements

hereto, hereinafter referred to collectively as “Agreement,”

shall be binding upon the parties hereto, their successors,

administrators, executors and assigns. In the event an

entire operation, or rights only, are sold, leased, transferred

or taken over by sale, transfer, lease, assignment, receiver-

ship or bankruptcy proceedings, such operation or use of

such rights shall continue to be subject to the terms and

conditions of this Agreement for the life thereof.

The employer shall not use outside carriers, if such use of

carriers prevents the following employees from the oppor-

tunity of earning not less than $200 per week:

Mel Hardin Claude Kidd

Marshall Webb E. T. Grigson

J. P. Rigney Joe Underwood

Gordon Curupper Al Schneider

Ear] Lister Glenn Brown

Jerry Rigney Al Grigson

Ed Biddle Bill Hightchew

Mat Lovett Marvin Golden

This clause shall only apply to the above mentioned

employees,