Gollin Block and Supply Co.

I)3l(ISIONS OF NATIONAIL LABOR RELATIONS BOARD Gollin Block and Supply Company and IAocal 486, In- ternational Brotherhood of Teamsters, Chautfeurs, Warehousemen and Helpers of America. Case 7 CA - 14786 July 10, 1979 DECISION AND ORDER BY CHAIRMAN FANNING ANI) MLMBI RS JNKINS ANI) MURPHY On March 26, 1979, Administrative Law Judge William F. Jacobs issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed a cross-exception. 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 as modified herein.2 TIlE RLMEDY Having found that Respondent has engaged in un- fair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and that it take certain affirma- tive action designed to effectuate the policies of the Act. I Respondent has excepted to certain credibility findings made by the Ad- ministrative 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 Products, 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. We do not adopt the finding in fn. 3 of the Administrative Law Judge's Decision, inasmuch as the record indicates that, at the March 31 meeting attended by him, Gollin was aware of the proposed pension payment agreement between 4-D and the Union. That conclusion, however, does not affect the results herein, inas- much as we find that Respondent is bound by the memorandum agreement it signed on April 28 and is therefore obligated to sign and retroactively apply the written contract embodying the terms and conditions of employ- ment on which the parties had reached agreement on April 28. 1977. 2The Administrative Law Judge's recommended Order requires that Re- spondent sign the written contract embodying the terms and conditions of employment on which the parties had reached agreement on April 28, 1977. General Counsel excepts to the failure of the Administrative Law Judge to order as part of "The Remedy" that Respondent make employees whole for any losses they may have suffered as a result of Respondent's unfair labor practices. We note further that the Administrative Law Judge inadvertently failed to require that Respondent give effect to the terms and provisions of the agreed-upon collective-bargaining agreement retroactive to May I, 1977. Accordingly, we shall amend the Order and notice to so provide. In his Conclusion of Law 4, the Administrative Law Judge inadvertently referred to "8(aX5) and (9)" rather than "8(al(5) and (I)." Having found that Respondent has failed and re- fused to sign the collective-bargaining agreement em- bodying the terms of a memorandum agreement signed on April 28, 1977, we shall order that, upon request, Respondent sign said collective-bargaining agreement forthwith. In addition, we shall order that Respondent give effect to the terms of said agreement retroactive to May 1, 1977, and shall make employees whole for any losses they may have suffered by reason of its failure to execute and sign the aforesaid agree- ment with interest thereon to be computed in the manner described in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating C'o., 138 NLRB 716 (1962). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified herein, and hereby orders that the Respondent, Gol- lin Block and Supply Company, Munger, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified: 1. Substitute the following for paragraph (a): "(a) Refusing to bargain collectively in good faith with Local 486, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, by refusing, upon request, to sign the collec- tive-bargaining agreement submitted by the Union in June 1977 embodying the terms and conditions of employment on which the parties had reached agree- ment on April 28, 1977, and refusing to give effect to such contract retroactive to May 1, 1977." 2. Insert the following as paragraph 2(b), and re- letter the subsequent paragraphs accordingly: "(b) Give effect to the terms of the bargaining agreement described above, retroactive to May 1, 1977, and make the employees whole for any losses they may have suffered by the failure to sign the aforesaid agreement, with interest as set forth in the section of the Board's Decision and Order entitled 'The Remedy.'" 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF 'THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively in good faith with Local 486, International Brother- 243 NLRB No. 50 350 GOL I.IN BLOCK & SUPPLY CO. hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, in the appropriate unit set forth below by refusing, upon request. to sign the collective-bargaining agreement submitted by the Union in June 1977 embodying the terms and conditions of employment on which the Company and the Union had reached agree- ment. WE WILl NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization: to form, join, or assist labor organizations, in- cluding the Union herein: to bargain collectively through a bargaining agent chosen by our em- ployees; to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection: or to refrain from any such activities. WE WILL, upon request, execute with the Union a collective-bargaining agreement con- taining the provisions upon which we have reached agreement concerning rates of pay. wages, hours of employment, and other condi- tions of employment concerning employees in the bargaining unit described below. WE WILL give effect to the terms of said agree- ment retroactive to May 1, 1977, and wE wl.l. make whole our employees, with interest, for any losses they may have suffered due to our failure to execute or apply the terms of the above-men- tioned collective-bargaining agreement. The bar- gaining unit is: All I th-axle and double-bottom drivers, semi and 10-wheel drivers, straight truckdrivers, lift truckdrivers, block machine operators, yard- men, mechanics and stonecutters employed by the Respondent at its Munger, Michigan, place of business, but excluding supervisors as defined in the Act. GOLLIN BLOCK AND SUPPLY COMPANY DECISION STATEMENT OF riE CASE WIL.LIAM F. JAcOBS, Administrative Law Judge: This case was heard before me on June 6, 1978. at Bay City, Michigan. The charge was filed January 20, 1978, by Local 486, International Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers of America, herein called the Union. The complaint issued March 3. 1978. alleging that Gollin Block and Supply Company. herein called Respon- dent or the Company, violated Section 8(a)(1 ) and (5) of the National Labor Relations Act refusing to sign a collective- bargaining agreement the terms and conditions of which had been previously agreed upon. All parties appeared and were afforded full opportunity to he heard and present evidence and argument. Upon the entire record and based upon my observation of the demea- nor of the witnesses, I make the following: FIND)I(iS ()F FA('I 1. IF it .SINESS ()o RSPOl)FNDN I Respondent, a Michigan corporation, is engaged in the manufacture and wholesale sale and distribution of cement blocks and related products. DIuring the calendar year 1977' Respondent, in the course and conduct of its business operations, purchased goods and supplies valued in excess of $50,000 which were shipped directly to Respondent's place of business in Munger. Michigan. from outside the State of Michigan. The complaint alleges, the answer ad- mits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1t. Itt L.ABOR OR(ANIZAIO()N IN1()\Y[LI) The Union is a labor organization within the meaning of Section 2(5) of the Act. h1i. T1il ALI.FGE( ) tINFAIR I ABOR PRAII( lES Carl Havalda, business agent for the Union, has repre- sented employees of Respondent for approximately 12 years. Prior to 1974. Respondent bargained as part of a group of five employers. but in that year this group or asso- ciation broke up. so two of the employers negotiated to- gether while Respondent joined with the other two to bar- gain as a group of three, only later to break up further to negotiate individually. The 1974 77 contract was due to expire April 30. 1977. so by letter dated May 12, 1976. Respondent advised the Union of its intention to negotiate the next contract as a single employer. On February 9 the Ulnion advised Respondent that it intended to modify certain portions of the contract and de- sired to negotiate with it toward that end. In accordance with the requirements of the Act, it also, on the same date, notified the Federal Mediation and Conciliation Service and the Michigan Employment Relations Commission of its intention. On March 17 negotiations began, a proposal already hav- ing been sent by the Union. On March 31 another meeting was held at which Respondent offered a proposal2 to the Union through its representative William Bigham. The tenor of negotiations was set by the Company's proposal in its first three paragraphs: (c()NRA(C PROPOSAI. FROM (i()l.l.IN BR.OCK ANI) S P'I'I.Y 10 IAM1S 1IIRS l.O( A =486 On your initial set of demands presented to Gollin Block and Supply the names of Acme. Euclid and Van Poppelin Brothers Block and Supply appeared. In our t Hereafter all dates are 1977 unless otherwise indicated (;(C Exh 7 351 DE(CISIONS OF NATIONAl. LABOR RELATIONS BOARD meeting of March 17. 1977 at # I Executive ('enter you gave us to understand the demands were devel- oped by employees from other plants. We have tried to make the Teamsters aware that Giollin Block and Supply must negotiate its own con- tract, using as a basis for that the need to resolve the Gollin Plant problems as well as the economic factors of this operation solely. We will meet only with yourself and the Gollin Plant steward, and expect to work under our rights as pre- scribed under the N.L.R.A. Thus, it is clear that Respondent intended to bargain solely on the basis of its own economic situation without regard to the position of' other block companies with which it had bargained as an association in the past. According to Havalda. bargaining on March 31 took place much as Re- spondent desired. Respondent's proposal, as well as the Union's proposal, was discussed without references to other companies. Agreement was reached on certain matters, but when a dispute arose over the pension contributions, the meeting broke up. The parties met again on April 21. Proposals were con- sidered from both sides. According to the Company's repre- sentative, during this meeting the steward brought in a peti- tion signed by Respondent's employees stating that they wanted exactly the same conditions that employees of 4 ) had. Again according to the company representative, Re- spondent agreed to this, and therefore a tacit understanding evolved whereby Respondent's contract would be the same as 4 D's contract. The Union's representative, however, de- nied that 4-D was ever mentioned during this meeting. The steward was called as a witness for the Company and stated that he had attended the April 21 meeting and "produced" a document which indicated that all of the employees de- sired to be paid the same wages paid to employees of other block companies: Euclid, Acme, and Van Poppelin. He did not mention 4-D. From the testimony of all of the witnesses, I find that at the April 21 meeting Respondent continued negotiating as a single employer. 4-D was not mentioned, just as Havalda testified, and the steward presented a petition from the em- ployees only for the purpose of advising their employer that they wanted to be assured that they would receive at least the same wages under the new contract that other block company employees would receive. Respondent's main concern at this meeting appears to have been with pension payments and subsequently with the fact that 4-D 3 had received a contract providing for lower pension payments than the Union was demanding from Respondent. Respon- dent appears to take the position or at least implies that the steward, on behalf of the employees, was petitioning at the April 12 meeting for a contract identical to that of 4 D even if it were less favorable to Respondent's employees; that is, even if it provided for smaller pension payments, like those contained in the 4-D contract. Such a position I find, is patently absurd. Clearly, the larger the payments paid into the pension fund by Respondent. the greater the Paul Gollin. Respondent's owner, did not know at the time the provisions of the 4 D contract. benefit to its employees, and I cannot believe the steward would make such a demand. In any case. the Union was in no way bound by the employees' petition. of which. as far as the record indicates, the Union may well have been un- aware. In sum. I find that no implied agreement arose at the April 21 meeting whereby the Union agreed to give to Re- spondent the same contract as that which had been negoti- ated with 4 D. Respondent's understanding to the contrary notwithstanding. The old contract was due to expire May I, at which time a strike was threatened. Havalda spoke to Bigham several times by telephone after their April 21 meeting. and they then agreed to meet on April 28. On April 28 tavalda presented to Respondent's representative a proposal con- taining various modifications of the existing labor agree- ment. The remainder, it was understood, was to remain un- changed. Havalda advised Bigham. at this time. that either he agree to this proposal or a strike would ensue. Although he at first refused, later Bigham agreed and did, in fact, sign the document. T'here was no discussion about 4 [) or its contract during this meeting, and as to the other block com- panies, Havalda merely advised Bigham that Poppelin had already signed and that Euclid would sign later that day. Subsequently, the contract changes contained in the April 28 proposal were physically incorporated into the new contract, copies of which Havalda supplied to Bigham in June with a request to have them signed and later re- turned. Havalda made several calls to Bigham thereafter requesting that the contracts be signed, but without success. IFinally. Bigham, on January 4 1978. advised Havalda that Gollin was not going to sign the contract because of the settlement with 4 D. According to tiavalda, it was at this time that Bigham brought up the subject of 4 D for the first time, asking. "What is going on with 4 D?" Havalda re- plied. "I don't know what's going on with 4 D. I don't represent 4-D." Respondent has ever since refused to sign the contract. General Counsel takes the position that Respondent signed the modification proposal, which together with the unchanged portions of the 1974 77 agreement composed the 1977 contract. and should be required to sign the 1977 labor agreement which it agreed to when it signed the modification proposal. Respondent takes the position that despite the fact that it agreed to and executed the modifica- tion proposal on April 28, there was nevertheless an under- standing between the parties that Respondent's 1977 labor agreement would be the same as 4 D's 1977 labor agree- ment, and since there are substantial differences between the two contracts, it is not required to execute the document proffered by the Union. I have found that no understanding ever existed whereby the Union agreed that Respondent's 1977 labor agreement would be the same as 4 D's labor agreement. Moreover, under the parole evidence rule, a prior or contemporaneous oral agreement may not alter the terms of a written con- tract, and the Board has consistently applied this rule in refusing to permit a party to a collective-bargaining agree- ment to vary the terms thereof by proving a contemporane- ous or prior oral agreement or undertaking. Freezer Queen Foods, Inc., 215 NLRB 638 (1974); Jerse', Contracting Corp., 112 NL.RB 660 1955). Inasmuch as Respondent has 352 GOLLIN BLOCK & SUPPLY CO. failed and refused to execute a collective-bargaining agree- ment the terms and conditions of which it had previously agreed upon, I find it in violation of Section 8(a)(5) and (1) of the National Labor Relations Act. I. J. Heinz Company v. N.L.R.B., 311 U.S. 514 (1941). Co)N('It'S()NS ()F LAW I. Respondent is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All I Ith-axle and double-bottom drivers, semi and 10- wheel drivers, straight truckdrivers, lift truckdrivers, block machine operators, yardmen, mechanics, and stonecutters employed by Respondent at its Munger, Michigan, place of business, but excluding supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(h) of the Act.4 4. Since May 30. 1974, the Union has been the duly des- ignated exclusive representative of the employees in the unit found to be appropriate within the meaning of Sections 8(a)(5) and (9) of the Act.' 5. By refusing to sign a collective-bargaining agreement the terms of which were otherwise agreed upon, Respon- dent has refused to bargain with the Union in violation of Section 8(a)(5) and ( I ) of the Act. Till RMi)Y Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action as set forth below designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law and the entire record, and pursuant to Sec- tion 10(c) of the Act. I hereby issue the following recom- mended: ' Admitted as amended at the hearing ' Admitted in the answer. ORDER 6 Respondent, Gollin Block and Supply Company, Mung- er, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with Local 486, International Brotherhxood of Teamsters, Chauf- feurs. Warehousemen and Helpers of America, by refusing, upon request, to sign the collective-bargaining agreement submitted by the Union in June 1977 embodying the terms and conditions of employment on which the parties had reached agreement. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action, which is neces- sary to effectuate the policies of the Act: (a) Upon request by the Union, sign a written contract embodying the terms and conditions of employment on which the parties had reached agreement on April 28. 1977. (b) Post at its place of business in Munger. Michigan, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 7. after being duly signed by Respondent's rep- resentatives, shall be posted by Respondent immediately upon receipt thereof, and he maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered bh any other material. (c) Notify the Regional Director for Region 7. in writing, within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. 6 In the event no exceptlons are filed as provided by Sec. 102.46 of the Rules and Regulamions of the National abir Relations Board. the findings, conclusions. and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations. he adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 7 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notices reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National labor Relations Board" 353