Meatcutters Local 17 (Aero Restaurant, Inc.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO, Local 17 (Aero Restau- rant, Inc.) and Peggy Callihan. Case 8-CB-3406 March 15, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On November 14, 1978, Administrative Law Judge Bernard Ness issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions 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 Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaint be, and it hereby is, dismissed in its entirety. I The General Counsel has excepted to certain credibility findings made by the Aministrative 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. DECISION STATEMENT OF THE CASE BERNARD NESS, Administrative Law Judge: Upon an un- fair labor practice charge filed by Peggy Callihan, an indi- vidual, on May 16, 1977, a complaint was issued by the Regional Director for Region 8 of the National Labor Rela- tions Board on September 12, 1977. The complaint, as amended at the hearing, alleged that Amalgamated Meat- cutters and Butcher Workmen of North America, AFL- CIO, Local 17, herein called the Union or Respondent, vio- lated Section 8(bXl)A) of the Act. The Respondent has denied the commission of any unfair labor practices. Hear- ing was held before me on January 25 and March 16-17, 1978. Upon the entire record, including my observation of the witnesses and their demeanor, and after due consideration of the briefs filed by the General Counsel and the Respon- dent, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Aero Restaurant, Inc., a division of Aero Enterprises, a wholly owned subsidiary of ARA Services, Inc., an Ohio corporation, herein called the Company, is engaged in the retail sale of goods and services at the Akron-Canton Re- gional Airport, North Canton, Ohio. In the course and con- duct of its business operations, it sells products and/or fur- nishes services, the gross value of which exceeds $500,000. It annually ships goods valued in excess of $50,000 directly to points located outside the State of Ohio. The parties agreed, and based on the foregoing I find, that the Com- pany is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties agree, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES The Union has been the certified collective-bargaining representative for all full-time and regular part-time food service and newsstand employees at the Company's Akron- Canton Regional Airport facilities since October 1976 as a result of a Board-conducted election. Shortly thereafter, the parties began negotiating for an initial contract. Upon sub- mission to the bargaining unit employees by the Union for ratification of a proposed contract with the Company, the employees agreed to ratify the contract. Thereafter the par- ties executed the contract. The General Counsel contends that the Union did not fairly represent the employees and thereby violated Section 8(b)(1)(A) because it misrepre- sented substantive provisions of the proposed contract at the ratification meetings' and misrepresented the amount of union dues the bargaining-unit employees would be re- quired to pay pursuant to the proposed contract containing a union-security clause. The Union's constitution provided, and the parties understood, any agreement arrived at was subject to ratification by the employees. The General Coun- sel does not seek to have the collective-bargaining contract set aside, but contends that a remedy should require the Union to place the employees in the position which the Union represented they would enjoy with ratification of the contract. The General Counsel contends that the Union misled the employees by telling them part-time employees would be provided hospital and insurance coverage under the contract when they were not; and thus the Union should be ordered to provide the part-time employees such benefits as are provided to full-time employees during the life of the contract. As for sick leave benefits, the General Counsel contends that the Union misled the employees to believe there was no change in the sick leave policy; thus the Union should be required to pay directly to the affected t Hospitalization and insurance benefits applicable to part-time employ- ees, the sick leave policy, and the status of the Company's past practices. 241 NLRB No. 4 22 MEATCUTTERS LOCAL 17 employees the difference in sick leave benefits enjoyed prior to the contract. In further support of his contention that the Union misled the employees to believe the Company's past practices would remain in effect, the General Counsel urges that the Union should be required to reimburse the employ- ees for the elimination of the Christmas bonus and the ser- vice uniforms costs. In support of his contention that the Union misrepresented that the union dues would be $8 rather than $8.50, the General Counsel contends that the Union should reduce its dues 50 cents per month for the entire period of the contract amd reimburse the employees for the difference in dues payments they have been required to pay. The Union's negotiating team consisted of George Pratt, union president; Gary Feiock, financial secretary; Marvin Heath, organizer; together with two employees of the Com- pany who were union stewards, Jane Dickerhoof and Ernie Williams.2 The bargaining unit, during the material period, included approximately 29 full-time employees and ap- proximately 18 part-time employees. Those employees who worked 30 or more hours per week were considered full- time employees. Negotiations between the Union and the Company commenced shortly after the Union's certifica- tion. After about 12 meetings with the Company, the nego- tiations reached a point where the Company's position had hardened, and it requested the Union to take the proposals to the membership. A ratification meeting was held on Feb- ruary 3, 1977,' and the employees voted overwhelmingly to reject the proposed contract. There were 23 employees at this meeting. After two further negotiation meetings, an- other ratification meeting was held on March 14 and the employees voted 26 to 2 for ratification. The voting at each meeting was by secret ballot. The contract was thereafter executed and runs from April 1, 1977, through March 31, 1980. The five union representatives named above who comprised the negotiating team appeared on the platform at each of the ratification meetings. At the February 3 meeting, Pratt was the principal speaker. Initially, the union representatives summarized the proposed provisions. The other union representatives also participated and an- swered questions propounded by the employees. At the March 14 meeting the union representatives announced that the only additional concession they were able to obtain was a wage reopener in the third year. More discussion followed, resulting in the ratification. It is undisputed that the meetings were open and employees had full opportunity to ask, and indeed asked, many questions and answers were given. There was no evidence of any hostility on the part of any of the union representatives towards the employees. The witnesses for the General Counsel testified that at these meetings they had no reason to believe the union represen- tatives were attempting to mislead them or misrepresent the proposed contract provisions. No self-contained document including all the provisions of the proposed contract had been prepared prior to the meeting nor was any written material distributed to the employees. The union represen- tatives testified that it was not their practice to prepare a 2 Neither Dickerhoof nor Williams was a union steward any longer at the time of the hearing, and Williams was employed elsewhere. I All dated hereinafter refer to 1977 unless otherwise indicated. full and complete written contract prior to ratification. The union representatives took turns reading proposed provi- sions. During negotiations, the parties had initialed sepa- rate sheets for various provisions tentatively agreed upon. There is no evidence that the union representatives engaged in any arm-twisting to induce the employees to ratify the proposed contract. At the first meeting, Pratt reported to the employees that the Union was not happy with the pro- posed contract. He recommended rejection and hinted strongly that if the employees rejected the contract, the ne- gotiating team would be in a better bargaining position to obtain additional concessions from the Company. After the rejection by the employees on February 3 and two further negotiation meetings, Pratt reported to the employees at the March 14 ratification meeting that the only additional con- cession the Union was able to obtain was a wage reopener in the third year of the contract. This time the proposed contract was ratified. That there was discussion about provisions of the con- tract at the two ratification meetings is undisputed. How- ever. conflicting testimonies were presented concerning rep- resentations by the Union representatives as to substantive provisions of the contract and the amount of union dues. In most instances, the witnesses were unable to identify the particular union representative who allegedly made certain statements. The alleged misrepresentations first came to light when Callihan, the Charging Party, discovered in May when she was pregnant that as a part-time employee she was not eligible to participate in the hospitalization bene- fits. Copies of the contract were given to employees in late April or May. Sick Leave. Before the Union came into the picture, full- time employees (30 hours a week or more) and part-time employees who worked between 20-30 hours per week re- ceived sick leave benefits after completion of 90 days of employment. Under the contract executed by the Union and the Company, the sick leave benefits remained the same except that benefits did not accrue until the employ- ees had completed 1 year of employment, rather than 90 days as heretofore. Peggy Callihan testified that a union representative stated at the meeting that sick leave benefits would be the same as before and described the number of hours employees would accrue. She testified, however, that the union representative did not state the waiting period had been changed from 90 days to I year. Feiock also testi- fied that the employees were told the sick leave benefits were the same as the employees had before. Both Feiock and Heath testified that they believed the benefits were the same. Pratt's recollection of the discussion concerning the sick leave appeared to be hazy, and I do not place any reliance on that portion of his testimony relating to the discussion of sick leave. I find that a union representative at the February 3 ratification meeting stated the sick leave benefits were the same and described the hours employees would accrue. I also find that nothing was said concerning the waiting period nor did anyone raise any question about it. Hospitalization and Insurance. Before the Union came into the picture, only full-time employees were entitled to any hospitalization benefits under a companywide group insurance plan covering the Company's nationwide facili- 23 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ties. Part-time employees were not covered. Similarly, term life insurance was provided to full-time employees but not to part-time employees. The General Counsel contends the employees were told at the ratification meetings that the proposed contract provided hopitalization and insurance coverage for part-time employees. The contract did not so provide. It is undisputed that the Union was unable to get any concessions from the Company in the negotiations in this area. The Company refused to budge, contending it had a group policy with an insurance carrier and would not consider any changes until its expiration. A number of the General Counsel's witnesses testified that the employees were told at the ratification meetings part-time employees would receive the same benefits as full- time employees. Rita Bauman testified that she told Pratt she was a part-time employee and asked if her children were covered by hospitalization and Pratt replied she and her children were covered even though she was a part-time employee 4 Cedas Hayes testified that she asked if part-time employees would have to pay full dues and Pratt or Heath replied in the affirmative.5 Archer, Callihan, and Wilkin also testified that a union representative responded to Hayes' question by saying the part-time employees would have to pay full dues because they would receive full bene- fits under the contract. Pratt recalled Hayes asking whether part-time employees would have to pay full union dues. He admitted saying they would have to pay full dues under the International constitution but he would try to get the ap- proval of the International for a reduction in dues for part- time employees.6 Feiock, Heath, and Williams all denied that the employees were told part-time employees would get the same benefits as the full-time employees. They all testified that the employees were told the Company would not consider any changes in its policy with the insurance carrier.7 Dickerhoof, a witness for the General Counsel, tes- tified that she did not hear any union representative state part-time employees would have to pay full dues because they would receive full benefits. She did recall Pratt saying that he would try to get the dues reduced for part-time employees. Charging Party Callihan testified that the em- ployees were told the company policy with the carrier would run out in a couple of years then changes would be effected. Union Dues: At the time of the ratification meetings, the International constitution provided that membership dues would be not less than $8.50 per month. In some plants members were paying more because of strike assessments. 4 Corroborated by Connie Archer, Pat Callihan, Debbie Lough, Rosemary Wilkin, and Jane Dickerhoof. Archer testified that Pratt responded to Bau- man's question. Lough and Wilkin thought it was Pratt. Callihan did not know who replied to Bauman's question. Dickerhoof thought it was either Feiock or Heath. I She testified that "maybe it just didn't come out clear or misunderstood" but she understood the union representative to explain part-time employees would be covered for benefits in answering her question. After receiving clearance from the Union's executive board, he made such request by letter dated June 3 to the International. It was approved by the International. 7 In a letter to the Union dated March 30, the Company confirmed under- standings relative to issued raised in the negotiations (G.C. Exh. 3). One of the items reads as follows: "The parties will pursue the possibilities of other Insurance and Hospitalization Carriers and/or Health and Welfare Funds prior to the expiration of the current Hospitalization and Insurance policy." The General Counsel contends that the unit employees were told at the ratification meetings the dues would be $8 per month. Callihan and Cochran testified that one of the union representatives said the dues would be $8. Hayes' testimony on this point is not clear-"about $8 a month." Pratt and Williams both testified that the employees were told the dues were $8.50 per month. Neither Feiock nor Heath could recall at the time they testified what the spe- cific amount of dues was; the meetings were held I year earlier. However, they recalled that the minimum amount was quoted correctly at the meetings. Past Practices: The General Counsel contends that the employees were told at the ratification meetings all past practices would remain in effect, and past benefits would not be taken away. The contract provided that the agree- ment "supersedes all agreements, understanding and prac- tices in effect prior to the date of this Agreement, whether the same were based on implication, written or oral agree- ments or other factors." (art. XXIV). Archer testified that the employees were told past practices would be the same, and the Company would not be able to take anything away. No longer given to the employees since the contract were the Christmas bonus, an allowance for uniform cleaning, and participation in a profit-sharing plan. Although she did not recall whether the past-practice-clause provision was recited to the employees, she recalled a question was asked about the Christmas bonus and the answer given was that the contract provision prohibited the giving of the bonus. Callihan testified that the employees were told if uniforms were shabby, they would be replaced by the Company. In his brief, the General Counsel has requested the transcript be corrected to show that his question to witness Cochran referred to "past practices" rather than "insurance bene- fits." I am not convinced that the question was incorrectly transcribed in this regard, and the request is denied. In any event, it is clear that the thrust of Cochran's response to the question was that the employees were told they would re- tain everything they already had. She also testified that the employees lost the uniform cleaning allowance and the Christmas bonus. Pratt testified that questions were raised whether uniforms would continue to be furnished to the employees and whether 10 cents per hour would continue to be taken out for their meals. He further testified as fol- lows: Q. Can you remember any questions being asked about past practices generally to the effect of will there be any changes in past practices, will there be any changes in our current benefits, any loss of our current benefits, I should say? A. Well, I can't remember it being directed that way, but I can remember the fact it was asked what did the past practice-there was a paragraph in the contract that said that the company would no longer gave to be oligated to past practices, or something like that. They asked the meaning of that and that was ex- plained to them. Feiock denied that any union representative said past prac- Art. XX provides that the Company would furnish uniforms. 24 tices could not be changed and employees would retain everything they had had heretofore. Analysis and Conclusions It is well settled that a union which enjoys the status of exclusive bargaining representative has an obligation to represent employees fairly, in good faith, and without dis- crimination against any of them on the basis of arbitrary, irrelevant, or invidious distinctions. Vaca, et al. v. Sipes, 386 U.S. 171 (1967); Miranda Fuel Company, Inc., 140 NLRB 181 (1962). But mere negligence or inadvertent error is not the type of conduct which was intended to be encompassed within the Miranda principles. General Truckdrivers, Chauf- feurs and Helpers Union, Local No. 692, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Great Western Unifreight System), 209 NLRB 446 (1974). The General Counsel argues that the Union failed in its duty to fair representation by its affirmative misrepresenta- tions and thereby violated Section 8(b)( 1)(A) of the Act. He argues that misrepresentations were knowingly made and were intentional. The discussions concerning the subjects in issue took place at the February 3 meeting, and if any mis- representations were made they would have been made at that meeting. At the March 14 meeting the Union an- nounced that after two more negotiation meetings with the Company, the only additional concession to be gained was a wage reopener in the third year of the contract. The Gen- eral Counsel points out that written copies of the proposed contract were not distributed to the employees, and that the employees had to rely upon the representations of the Union as to the contents of the contractual provisions. It should be remembered that the parties had bargained ex- tensively towards an initial agreement. Some provisions had been agreed upon and initialed by the parties; other provi- sions had not yet been agreed to. It was not the Union's practice to prepare a proposed contract in written form for distribution at ratification meetings. Since a condition prec- edent to the execution of a contract was the ratification by the employees, it may be argued that it was indeed incum- bent upon the Union to refrain from purposely deceiving them or fraudulently leading them to believe certain bene- fits existed under the proposed contract which, in fact, did not exist. The record disclosed that the Union diligently sought to obtain an initial contract beneficial to the unit employees. After about 12 negotiation meetings, it reported to the unit employees that it was unhappy with the fruits of its efforts and urged rejection of the proposed contract. The discus- sion at the meetings was uninhibited; many questions were posed to the Union representatives and answers were given. No rosy picture of gains achieved was portrayed to induce the employees to ratify the contract. To determine what actually was said at the ratification meetings is admittedly difficult to resolve. No minutes were taken nor was any transcription made. Some provisions of the proposed contract were read and many questions were asked. Various union representatives took turns in answer- ing questions. At the first ratification meeting, the union representatives told the employees that they were not hap- py with the proposed contract and recommended it be re- MEATCUTTERS LOCAL 17 jected. With this in mind, I cannot perceive that the repre- sentatives would delude the employees into believing they would be getting more benefits than called for in the pro- posed contract. There is absolutely no basis to ascribe de- ceit or a fraudulent design on the part of the union repre- sentatives.' With respect to the sick leave benefits, I find that nothing was said concerning the changes in the waiting period for benefits to accrue nor were any questions asked about it. The employees were told the benefits were the same. I further find that there was no attempt by the Union to deceive, misrepresent, or mislead the employees when they would be eligible to receive the benefits. At best, the Union may have been remiss in not pointing out the changes in the waiting period. As to the hospitalization and insurance benefits, I am convinced that the Union representatives told the employ- ees the Company would not change its group policy with the insurance carrier and that further attempts would be made to effect changes in the benefits when the group pol- icy expired in 2 years. The union representatives on the podium were aware that the Union was unable to obtain hospitalization and insurance benefits for the part-time em- ployees. I cannot perceive that they would have attempted to mislead the part-time employees to believe they would receive such benefits under the contract. It is undisputed that the employees were told part-time employees would have to pay full dues and that part time employees were told they would receive benefits, as indeed they did. It may be that the employees failed to understand the explanations given by the union representatives. I do not believe that the union representatives said part-time employees would re- ceivefull benefits or that they were to be covered under the hospitalization and insurance benefits. Two of the General Counsel's witnesses testified that they were told the dues would be S8. This is denied by the union representatives. Again, I see no reason whatsoever why a union representative would purposely mislead employees to believe that union dues were 50 cents less than the actual amount. If a union representative would have mistakenly quoted the incorrect amount, it seems he would have been corrected by one of the other representatives on the po- ' On rebuttal, Callihan testified that in early March 1978, about 2 weeks before the resumption of the hearing in this matter, Dallas Mayle, an em- ployee of another company and a department union steward on his shift, was sitting at the bar at the Company's restaurant. According to Callihan, Mayle told her that Heath had lied to the employees and Pratt backed him up. Mayle purportedly also told her that Feiock had told him that the Union had lied and the Union was going to have to pay. She did not ask in what manner the Union had lied. She testified that Archer and Dickerhoof were present; neither was called upon to corroborate her testimony in this regard. Mayle preceded Callihan as a rebuttal witness for the General Counsel. He admitted being at the bar and talking to Callihan about the local union election but did not recall anything else in the conversation. He said he was preparing to board a plane and was inebriated. He denied that Feiock had ever said Heath had lied or that Pratt backed him up. Feiock had earlier denied ever telling anyone Heath had lied and that Pratt backed him up. Even were I to credit Callihan's testimony, I would place no reliance on it to support a finding that the Union had lied to the employees at the ratification meetings. Mayle was a union departmental steward at another company; he was not involved in the negotiations nor was he present at the ratification meetings. Although Callihan's testimony may be admissible, it serves very little probative value and is completely unreliable to support a finding that Feiock had made a declaration that Heath or the Union had lied to the employees. In this connection I have considered Feiock's express denial of making such a statement and the testimony of both Feiock and Heath con- cerning the ratification meetings. 25 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dium. Accordingly, I find the employees were not told that the dues would be $8 rather than the actual amount-$8.50. Employees Archer and Cochran testified to the effect that the employees were told they would be able to retain the benefits they had. Yet Archer also testified that a union representative said the Christmas bonus was not in the pic- ture because of the past-practice clause. I find that Pratt read the proposed clause pertaining to past practices and answered questions about it but in no way were the em- ployees told that under the proposed contract the employ- ees would retain all the benefits they had had in the past. In the light of the above, I find that the Union did not act in bad faith with the unit employees not did it engage in such arbitrary conduct of a nature as to constitute a failure in its duty of fair representation to the employees violative of Section 8(b)(1)(A) of the Act. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor prac- tices alleged in the complaint. Upon all the foregoing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER'I It is hereby ordered that the complaint be dismissed in its entirety. '0 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. 26