Sidney M. Barr

586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sidney M. Barr t/a Ashbourne Apartments and Local 252, Service Employees International Union, AFL-CIO. Case 4-CA-9876 March 19, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On January 10, 1979, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that that complaint be and it hereby is, dismissed in its entirety. The Charging Pary has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Prod- ucts, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION BERNARD RIES, Administrative Law Judge: This case was heard in Philadelphia, Pennsylvania, on July 18 and September 11, 1979. The issue presented is whether Re- spondent, since on or about July 12, 1 97 8,' has refused to sign a written contract embodying terms and condi- tions of employment allegedly agreed upon by Respon- dent and the Charging Party on or about July 1. Briefs have been received from all parties. By letter of November 1, 1979, Respondent noted an "object[ion]" to Charging Party's brief as being "deliberately filed out of time." The docket shows that on October 16, 1979, pur- suant to Respondent's request, a telegraphic message ex- tended the time for filing briefs to October 31, 1979. Charging Party's brief is dated October 31 and was re- ceived in the Division of Judges on November 5. No op- position to Respondent's implicit motion to strike has I All dates hereafter refer to 1978, unless otherwise specified. 248 NLRB No. 88 been received. Since Charging Party's brief was untimely filed, the motion to strike is granted. Having considered the other briefs, the entire record, and my recollection of the demeanor of the parties, I make the following findings of fact, conclusions of law, and recommendation. 2 If an employer and a union reach agreement on the terms and conditions of employment for represented em- ployees, the employer violates Section 8(a)(5) by refusing to incorporate those terms in a written document. H. J. Heinz Company v. N.L.R.B., 311 U.S. 514, 525-526 (1941). The principal question here is whether Respon- dent, which concededly has refused to sign a written contract proffered by the Union, had agreed to the terms embodied therein. I conclude that the evidence is insuffi- cient to show that Respondent did so agree. Respondent Baer is the sole proprietor of a residential apartment project located in Philadelphia, employing ap- proximately 10 service and maintenance employees. On March 16, the Union filed a petition for a representation election, seeking to represent these employees. On April 3, by written agreement, Respondent accorded recogni- tion to the Union as the bargaining representative of the employees. Respondent's signatory to the agreement was its attorney, Andrew N. Farnese. The evidence discloses that the subsequent contract negotiations, if they may be so characterized, were con- ducted exclusively by telephone between Farnese and Union Secretary-Treasurer Rocco J. Mastrocola. Mastro- cola testified that he told Farnese at the time of execu- tion of the written agreement that he would be in touch with Farnese once he had secured contract proposals from the unit employees, to which Farnese agreed. Thereafter, perhaps around April 20, Mastrocola called Farnese and "discussed the wages, hours, holidays, et cetera." There might have been 10-12 such conversa- tions, in the course of which, said Mastrocola, he read some or all of the proposed contract clauses to Farnese.3 Around July 1, the two had, according to Mastrocola, "finally got to the point where we had an agreement"; Farnese told him to "mail it in," and Mastrocola did so. The record shows that on July 12, Anthony L. Teti, the union president, sent Farnese copies of a bargaining agreement, with a cover letter reading: I have enclosed original and counterpart of agree- ment for the next period. Should you find them in order, please sign both copies and return to me. I will return one copy fully executed. After a while, not having heard from Farnese, Mastro- cola called and was told that Farnese "wanted Mr. Baer to look at the contract and Mr. Baer was away." Ac- cording to Mastrocola, this was the first reference Far- nese made to the possibility of Baer playing any role in the approval of the contract. Thereafter, into November, Mastrocola continued to call Farnese and continued to be told that Farnese was unable to contact Baer because 2 The parties agree that it is appropriate for the Board to exercise juris- diction in this matter and that the Charging Party is a labor organization within the meaning of the statute. I This issue will be more fully discussed below. ASHBOURNE APARTMENTS 587 of various trips the latter was making out of the State and out of the country. In November, Farnese arranged a meeting between Mastrocola and Baer. Mastrocola testified that Baer said he did not want to sign the contract because "all the men had left," but voiced no other reason for not sign- ing. Farnese gave conflicting testimony. He said "categori- cally" that in his "very first" conversation with Mastro- cola, he "specifically stated that I did not have the au- thority to act on behalf of Mr. Baer. My only function was to discuss this matter with him and to subsequently submit for approval and authorization to Mr. Baer." Far- nese said that he had "numerous" telephone conversa- tions with Mastrocola, but his account of them seemed somewhat inconsistent. Thus, although he stated that "our conversations were primarily those pertaining to the wages," seemingly indicating that at least two or more of such conversations were substantive, he subse- quently asserted that "99 per cent of our conversation was pertaining to my inability . . . to communicate with Mr. Baer" and that it was only in "the first or second telephone call" that wages were discussed. Farnese denied that Mastrocola had ever read any of the contract proposals to him, and further stated that he told Mastro- cola in the July I call that the contract which Mastro- cola was going to send would be submitted to Baer for his approval. The draft contract which the Union sent to Farnese on July 12 is 8 pages long and contains 17 clauses and a wage schedule. The question is whether, on or about July 1, Farnese told Mastrocola, without reservation, that he agreed to the terms and conditions embodied in the draft. I tend to doubt it. If I were to find Mastrocola a credible witness, that would resolve the issue in the General Counsel's favor. However, while I surely would not say that Mastrocola personally impressed me as a liar, I also am unable to say that certain of his testimony, relatively brief as it was, was not disturbing. Farnese was never furnished a copy of the proposed contract prior to July 12. Mastrocola's testimony about the extent to which he read the contract clauses to Far- nese over the telephone contained significant variations. At first, Mastrocola testified that he read the contract to Farnese "[n]ot word-by-word, not all the clauses, but most of them." Then, when shown the contract and asked which portions he had read aloud to Farnese, Mas- trocola said, "I read all of them to him." The answer, when the question was repeated, became, "To the best of my knowledge, I read them all." Then: "Most of it. I can't recall exactly, you know, what I read and what I didn't read. Where there was question on it, I read it." Finally: "I can't recall, to be very honest, Your Honor, exactly what was discussed. I had about eight or ten conversations with him over the phone. I can't be honest and tell you exactly what was read and what wasn't. I don't remember. But, basically, we had an agreement on it. There were questions that he raised about different things that we discussed and that was it." This kind of testimony does not compel the inference that Mastrocola is an indisputably reliable witness. It might be possible, despite my reservations about Mastrocola's testimony, to find substantiation for the complaint in the testimony of Farnese and in the sur- rounding circumstances of the case. I must say that I had less than implicit faith in every word uttered by Far- nese. 4 And there are circumstances which arguably mili- tate in the General Counsel's favor. One is that there would seem to have been some specific reason which caused the Union to send the contract to Farnese on July 12; that could have been, as Mastrocola testified, that agreement on a 25-cent raise, which he said had been the main bone of contention, was finally reached; it could also have been that, having been unable to get action from Farnese, Mastrocola finally decided that the best course of action was to prepare a contract and have Far- nese present it to the itinerant Baer.5 Withal, however, I am hesitant to confidently rely on Mastrocola's testimony, and other circumstances strongly suggest the unlikelihood of Farnese having agreed to the contract terms. For one thing, I find it hard to believe that an attorney with 37 years at the bar, after some brief conversations on the telephone about a contract covering a subject area with which he had no familiarity, would have, without even seeing a document containing a number of terms only, at best, briefly discussed, indicated unqualified assent to those terms. 6 That, in my view, seems grossly improbable.7 Furthermore, I note that Mastrocola's testimony did not, in so many words, state that there had been such a final expression of assent by Farnese; in fact, asked on cross-examination whether he had inferred agreement simply because Farnese had told him to "mail it in," Mastrocola answered in the affirmative. Moreover, the claim that Farnese had indeed con- veyed to Mastrocola the impression that he possessed au- thority to agree and had exercised that authority does not fit comfortably with the Union's course of conduct after July 12. According to Mastrocola, he began calling Farnese in July and continued to do so until November, only to be repeatedly told that Baer must see the agree- ment. One would suppose that if Mastrocola really thought that he had already secured agreement from a company representative who had indicated his authority 4 Although like Mastrocola, Farnese was not a discernibly un- trustworthy witness, some of his testimony seemed dubious For example, in view of the fact that Farnese was not a labor law practitioner, I was less than convinced by his testimony about the proposed checkoff clause, which on its face does not require written authorizations by employees, being "repulsive" to him. 5 It is my impression that both principal witnesses were inclined to e- aggerate here and that the truth can probably be found in some middle ground 6 While most of the clauses in the draft contract are what might be considered standard, one is rather unusual. The checkoff clause provides that, each month, "dues and initiation fees owing by each employee shall be deducted from the pay of such employees by the Employer" The clause does not spell out the requirement of Sec 302(cX 4) of the Act that such deductions may be made only pursuant to "written assignment" by employees .L.R.B. v Coletri Color Prints. Inc., 387 F 2d 298 (2.d Cir 1967), cited by counsel for General Counsel, is inapposite There the court held as a matter of law that "perfunctory" agreement to "noncontroversial or unimportant" standard provisions is nonetheless agreement, especially when made by negotiators thoroughly familiar with the contract Here, I conclude that agreement, perfunctory or otherwise, was not reached ASHBOURNE APARTMENTS 587 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to make such agreement, he would not have passively accepted such treatment, but rather would have ex- pressed outrage. The record shows that the Union's at- torney did not formally complain about Respondent's in- action until September 6, when a letter was sent noting that an "agreement was reached" between Respondent and the Union, and threatening legal action, including the filing of charges with the Board, if the contract were not signed "within seven days of the receipt of this com- munication." Nothing more was done, however, until the November meeting between Baer and Mastrocola ar- ranged by Farnese. Mastrocola testified, without contradiction, 8 that Baer told him at their meeting in November that he did not want to sign a contract because, due to turnover, the Union no longer represented a majority of the employ- ees. General Counsel, on brief, takes note of this testimo- ny and attributes Farnese's asserted turnabout "to a desire to undermine the Union's majority status through delaying tactics." That is not an easy charge to make against an employer who only recently had granted writ- ten voluntary recognition to the Union, thus surrender- ing all the legal opportunities for delay, and possible defeat of the Union, built into the statute. It does seem difficult, in view of this, to conclude that as of mid-July, the pertinent time here, Respondent had decided to renege on a contractual commitment in order to take ad- vantage of personnel turnover." Therefore, not because I find Respondent's case emin- ently persuasive,' 0 but rather because I cannot conscien- tiously conclude, as required by Section 10(c), that the General Counsel's case has been made by "the prepon- derance of the testimony taken," I am unable to hold that, as alleged, Farnese communicated to Mastrocola the notion that he, on behalf of Respondent, was agree- ing to all the terms and conditions proposed by the Union. Trusting neither principal witness wholly, and as- sessing the relevant circumstances, my best judgment is that Farnese probably told Mastrocola to send along the s Baer did not testify. 9 The record contains no evidence relating to changes in the composi- tion of the work force. 10 Among other things, I do not believe any adverse inference can be drawn, as Respondent argues, from the wording of the Union's July 12 letter ("Should you find them in order"). The letter, signed by the union president, appears to be a standard form. contract so that Farnese, and perhaps Baer, could look at it. That is not agreement. Whether Farnese, as he testi- fied, in so many words notified Mastrocola that only Baer had authority to sign off on a contract is anybody's guess; I am inclined to think that, at least, Mastrocola in some manner recognized that to be the case. ' For the foregoing reasons, I am unwilling to conclude that the complaint allegation is supported. Recognizing that I could be wrong, I nonetheless, on this record, would feel exceedingly uneasy about concluding that Farnese had communicated to Mastrocola that agreement on a contract had been reached. 12 CONCLUSIONS OF LAW 1. Sidney M. Baer t/a Ashbourne Apartments is an employer engaged in commerce within the meaning of the Act. 2. Local 252, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of the Act. 3. Respondent has not violated the Act in any respect alleged in the complaint. Upon the foregoing findings of fact and conclusions of law, I issue the following recommended: ORDER 3 The complaint is hereby dismissed. ' It seems fairly clear that Farnese acted as if he had some measure of authority to discuss contract terms; he testified that he told Mastrocola that he considered the proposed 25-cent increase "unsatisfactory." That does not mean, however, that he intimated possession of authority solely to conclude a contract. Mastrocola's post-July 12 stolid acceptance of Farnese's repeated indications that he could do nothing until he consulted Baer suggests to me that Mastrocola understood such approval to be a premise of their relationship. Such an inference may also arise from the fact that Mastrocola never even furnished Farnese with a copy of the proposed clauses during their "discussions," a most peculiar omission which may reflect Mastrocola's view of Farnese's authority. I2 My recommended dismissal of the complaint does not, of course, imply that Respondent is relieved of its obligation to continue to bargain in good faith with the Union. '3 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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.