General Teamsters, Local 249

GENERAL TEAMSTERS , LOCAL 249 General Teamsters, Chauffeurs and Helpers Local 249, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America and V. & M. Manufacturing Com- pany. Case 6-CB-1327 November 22, 1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On July 14, 1967, Trial Examiner Sidney Sher- man issued his Decision in this proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision, 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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER' Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, General Teamsters, Chauffeurs and Helpers Local 249, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its of- ficers, agents, and representatives, shall take the ac- tion set forth in the Trial Examiner's Recom- mended Order. I Delete from paragraph 2(b) of the Trial Examiner's Recommended Order that part thereof which reads "to be furnished .." and substitute therefor "on forms provided TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner: The instant charge was served on Respondent on January 24, 1967, the com- plaint issued on April 20, and the case was heard on June 6. The only issue litigated was whether Respondent vio- lated Section 8(b)(3) of the National Labor Relations Act, as amended, by refusing to execute a collective-bargain- 389 ing agreement. After the hearing briefs were filed by Respondent and the General Counsel. Upon the entire record,' including my observation of the witnesses , I adopt the following findings and conclu- sions: 1. THE BUSINESS OF THE COMPANY V. & M. Manufacturing Company, herein called the Company, is a Pennsylvania corporation, engaged at its establishment in Pittsburgh, Pennsylvania, in the non- retail sale of building materials. During the 12-month period proceeding the issuance of the complaint, the Company received directly from out-of-State points goods and materials valued in excess of $50,000. The Company is engaged in commerce under the Act. II. THE RESPONDENT General Teamsters, Chauffeurs and Helpers Local 249, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called Respondent, is a labor organization under the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleges that on December 27, the Com- pany and Respondent reached agreement on the terms of a contract but Respondent refused to execute such agree- ment, thereby violating Section 8(b)(3) of the Act. The answer denies any violation. A. Sequence of Events In June 1966 the Company and Respondent entered into negotiations for a contract covering the four em- ployees in the bargaining unit. Respondent, which was represented by Reed, its business agent, submitted a proposed contract, which was discussed at a meeting in August. This proposal (G.C. Exh. 2) contained a clause defining Respondent's jurisdiction as extending to "all men who drive ... load and unload vehicles ... warehousemen and garagemen . " On October 10, the Company's counsel, Lynch, addressed a letter to Reed setting forth the Company's position with regard to various clauses in Respondent's draft, and proposing that the following be appended to the clause defining Respondent's jurisdic- tion: It is not intended by this paragraph to grant jurisdic- tion to, nor to prohibit, the past practice, which shall be continued, of permitting the foremen to carry out all duties presently carried out by the foreman in the warehouse or of permitting the foreman, salesmen and other management personnel to make deliveries in cases where it is uneconomical to use a truck or in cases where the normal delivery method will not meet the customer's needs. At a meeting with Lynch on November 1, Reed agreed that the foregoing addendum be modified as follows: Any question as to what is the past practice will be subject to grievance procedure. I For corrections of the transcript, see the Trial Examiner's Orders of June 30, 1967, and July 12, 1967. After the hearing, Respondent submitted at my request, a copy of its bylaws, which is hereby received in evidence as T.X. Exh 1. 168 NLRB No. 61 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 27, there was a meeting attended by the parties' representatives and by all four members of the bargaining unit, to whom Reed read the provisions which had been negotiated by him with the Company, including the aforequoted language of the jurisdiction clause, as revised on November 1.2 There was conflicting testimony, which will be considered below, as to the reac- tion of the employees. It is agreed, however, that Reed concluded by advising the employees that he would have copies of the entire agreement typed tip and submit them to the employees for "proofreading" and that, if such co- pies met with their approval, he would present the con- tract to the Company for its signature. After receiving from Reed typed copies of the agreement, which con- tained the jurisdiction clause quoted above, the em- ployees indicated to Reed that they objected to the inclu- sion of that clause, and he so advised the Company. On January 11, 1967, the parties met again with the em- ployees, and Reed stated that it would be necessary to modify the jurisdiction clause. Lynch demurred, insisting that an agreement had been reached on December 27. No resolution of the dispute was reached at that meeting, nor on January 25, 1967, when Lynch again discussed the matter with Reed.3 B. Discussion It is not disputed that at all times here material Re- spondent was the statutory representative of the Com- pany's employees in an appropriate unit, consisting of drivers, helpers, and warehousemen. As for the refusal to bargain, it is the General Counsel's position that, while Reed apprised the Company in advance of the December 27 meeting that he had no authority to bind the employ- ees, and that they would have to approve any agreement 4 the employees did in fact manifest such approval on December 27, so that at that point there was a binding agreement, which Respondent was required to sign, and that the Respondent's refusal to do so violated Section 8(b)(3) of the Act. In support of the General Counsel's contention, Lynch testified that on December 27, after the draft contract was read to them by Reed, the employees unanimously approved it by voice vote; that, when, at the January I I meeting, he opposed any modification of the jurisdiction clause on the ground that a binding agreement had al- ready been reached on December 27, the only one who disputed this was one of the employees, Henniquan, who commented that the December 27 vote was not binding because not in the form of a secret ballot, and that the em- ployees had a right to change their minds, just as the Company had done during the negotiations. Karl, the Company's vice president, who attended the December 27 meeting, appeared to have an even more vivid recollection of the voting by the employees. He re- lated that, first, the employees debated whether to accept the subcontracting clause in the proposed contract, and, after one of them, Barry, who was the most likely to be adversely affected thereby,5 indicated that he had no ob- jection thereto, the group voted unanimously for the clause. Karl added that there ensued a discussion of the jurisdiction clause, in which he participated, offering to put in writing the extent to which the Company's salesmen would perform unit work under the proposed ju- risdiction clause; that the men waived this; that Reed then called for a vote on the entire contract; that Lynch offered to leave the room with Karl during the voting, but Reed allowed them to remain; that three men promptly voted for the contract, but the last man, Henniquan, cast an affirmative vote only after his request for more time to consider the matter had been rejected by Reed; that Karl remarked, "Then that's the contract," and the employees left; that Karl and Lynch congratulated Reed on obtain- ing a good contract, and he invited them to join him at a tavern "to have a drink with the men and celebrate." Reed did not dispute any of the foregoing testimony, except that he denied that there was any vote taken on December 27, either on the entire contract or on the sub- contracting clause, and insisted that the only vote on the matter was that taken on January 1 I , 1967, when the men voted unanimously by secret ballot to reject the contract. Moreover, he testified that at the December 27 meeting the employees took issue with the jurisdiction clause,6 and that the matter was not resolved but was passed over. The only employee called by the Union was Bigley.7 Although he also insisted that there was no vote on December 27, and that no agreement was then reached, he was unable to explain plausibly why in a pretrial af- fidavit, after describing the reading of the contract by Reed to the employees, the witness stated: At the time that Reed finished reading aloud all parties, Reed, the employees, Lynch and Karl agreed that the contract was okay and contained everything they wanted. In view of this and other material conflicts between Bigley's testimony and his pretrial affidavit, I can give lit- tle weight to such testimony as corroborative of Reed's denial that there was a vote on December 27, or agree- ment on a contract.8 On the basis of demeanor, as well as the circumstan- tiality of their testimony, I credit Karl and Lynch, and and that on December 27, the employees voted unanimously to accept the entire contract, including the jurisdiction clause, and that at that point the contract became a legally binding agreement. The question remains what weight to give to the fact that, as noted above, Reed, in effect, told the employees, after the vote, that he would have copies of the agreement typed up and submitted to them for "proofreading," and that, if they approved the typewritten copies, he would L Apparently , at that time the various provisions agreed on had not been assembled into a single document but had to be pieced together by Reed from several separate documents, of which no copies were available for rural by the employees at the meeting 3 Between January I I and 25, Reed submitted to Lynch a typed con- tract, which conformed to that read to the employees on December 27, except that it omitted the controversial changes in the Jurisdiction clause a This statement by Reed conforms with the limitation on a business agent's authority contained in Respondent 's bylaws He had the least seniority in the unit He testified that there was also a "hassle " over the subcontracting clause, but that that issue was resolved by referring the matter to Barry, who agreed to the clause r It was explained by counsel at the hearing that the other three em- ployees were not available to testify, for vanous reasons " It is arguable that Bigley's pretrial statement that complete agreement was reached on December 27, in addition to its use for purposes of im- peachment , should be treated as a declaration against interest, and there- fore entitled to substantive weight as affirmative evidence that there was such an agreement However, I do not deem it necessary to decide whether this is so GENERAL TEAMSTERS, LOCAL 249 391 present the contract to the Company for signature. Reed, himself, was unclear as to what he meant by this The most that can be made of his testimony is that, where, as here, a contract is read to employees, there is danger of misunderstanding by them, and to guard against this it was his practice to submit a typed copy thereafter to them so that they would have an opportunity to modify any ac- tion they had taken on the basis of an imperfect un- derstanding of the contract. Even so, his admonition to the employees to take such a second look at the contract could not negate the fact that the employees had already approved the contract in its entirety and were, therefore, bound by such approval,9 unless the Company assented to their reconsidering that action. Although Lynch, at least, heard Reed's foregoing remark 10 and did not demur thereto, I cannot infer therefrom any acquiescence by the Company in any "second look" proposal. Admittedly, on December 27, Reed spoke only in terms of submitting the typed copies to the employees for "proofreading." That term, as defined in the dictionary and as commonly un- derstood, denotes merely the act of detecting and correct- ing any discrepancy between a copy, printed or typed, and the original,l i and the Company's representatives could not be bound by any other esoteric meaning that Reed may have attached to the term "proofreading." That the Company's representatives did not, in fact, con- strue the "proofreading" remark as implying that the em- ployees were still free to withdraw their approval of sub- stantive terms is evident from Karl's uncontradicted testimony that, after the vote, he stated to Reed "Then, that's the contract," and congratulated him on obtaining a good contract. It is significant, moreover, that Reed not only did not challenge the foregoing assumption of Karl that negotiations had been concluded, but invited him to join the employees in a celebration if Reed did not him- self believe that there was a binding contract, or thought that there was still an unresolved issue, it is not clear what he or the employees were proposing to celebrate. Moreover, there is no denial of Lynch's testimony that at the January i l meeting his assertion that complete agreement had been reached on December 27 was not questioned by anyone other than Henniquan, who relied only on the untenable12 contention that there had been a voice vote on that date and not a secret ballot. It is thus clear that, whatever Reed may have intended to imply by his "proofreading" remark to the employees on December 27, the Company's failure to object thereto cannot be construed as consent to a reconsideration by the employees of the substantive terms of the contract, and that, even if the Company had any reason to doubt the finality of the employee vote on that date, Reed's sub- sequent conduct at the December 27 meeting, as credibly related by Karl, was calculated to dispel such doubt and confirm the Company's belief that the vote was final and binding. Finally, in view of such conduct , I do not credit Reed's testimony that he intended by his "proofreading" remark to reserve to the employees the right to rescind their approval of any substantive terms of the contract. It is therefore found that on December 27 complete agree- ment was reached by all interested parties upon terms and conditions of employment , that Respondent did not on that date attempt to reserve to the employees the right to reconsider their action in approving the agreement, and that , in any case , the Company did not assent to such reconsideration . It follows that , by refusing to execute a written contract embodying the terms agreed to on December 27, the Union violated Section 8(b)(3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section Ill, above, occurring in connection with the Company's operations described in section 1, above, have a close, in- timate, 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 of commerce. V. THE REMEDY It having been found that the Respondent violated Sec- tion 8(b)(3) of the Act, it will be recommended that it be required to cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. As it has been found that on December 27, the parties reached complete agreement on terms and conditions of employment and that Respondent thereafter repudiated such agreement and refused to execute a written contract embodying such terms and conditions, it will be recom- mended that Respondent be ordered to execute such a contract, which shall be effective retroactively from July 1966, to June 30, 1969.13 CONCLUSIONS OF LAW 1. All drivers, helpers, and warehousemen at the Com- pany's Pittsburgh location, excluding office clerical and professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times here material Respondent has been and still is the exclusive representative of all the employees in 11 The contract provisions read to the employees represented the Com- pany's offer, which under well-settled rules of contract law became bind- ing as soon as accepted 10 Karl did not recall hearing any such statement by Reed, but opined that it might have been made during his temporary absence from the meet- ing 11 In his brief Respondent 's counsel stresses the fact that a standard dictionary defines the function of a "proofreader" as encompassing "the reading of printer's proof for the purposes of finding errors and of making notations indicating changes to be made ," and in effect , argues from this that the term "proofreading ," as used by Reed, should be construed to mean that the employees were to indicate "changes" to be made How- ever , this begs the issue, which is whether the changes were to be limited to such corrections as were necessary to conform the copy to the original, or were to extend to matters of substance Clearly, the word "changes" in the quoted definition, read in context, can refer only to such as were necessary to correct typesetter's or copyist's errors Respondent contends, also, that the Company should have understood that "proofreading" as used by Reed was not limited to the correction of typographical errors, since the employees were obviously not versed in, or concerned with, matters of "syntax " However, it would require no great erudition to detect the inadvertent omission of a fringe benefit or the insertion of the wrong wage rate, and the Company could reasonably have assumed that this was the sort of thing that Reed wanted the employees to look out for in proofreading the typed contracts 12 There was no evidence that anything in the Union 's constitution or bylaws requires approval of a contract by secret ballot, and the Union does not so contend In any event , any such undisclosed limitation on the validity of a voice vote would not be binding on the Company 11 The copy of the contract in evidence provides for such a term 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the aforesaid unit for the purposes of collective bargain- ing, within the meaning of Section 9(a) of the Act. 3. By refusing, after December 27, 1966, to execute a contract embodying the agreement reached by the parties on that date, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Sec- tion 8(b)(3) of the Act. RECOMMENDED ORDER Upon the entire record in the case, and the foregoing findings of fact and conclusions of law, it is recommended that Respondent, General Teamsters, Chauffeurs and Helpers Local 249, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from refusing to execute, upon request, a contract embodying the agreement reached by it with V. & M. Manufacturing Company on December 27, 1966, or any other agreement that may in the future be reached with that Company, concerning rates of pay, wages, hours of employment, or other conditions of em- ployment of its drivers, helpers, and warehousemen at its Pittsburgh location, excluding office clerical and profes- sional employees, guards, and supervisors as defined in the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act. (a) Upon request, execute a contract embodying the agreement reached on December 27, 1966, with V. & M. Manufacturing Company. (b) Post at its meeting halls and business offices in Pittsburgh, Pennsylvania, copies of the attached notice marked "Appendix."14 Copies of said notice, to be furnished by the Regional Director for Region 6, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Furnish to said Regional Director signed copies of the attached notice for posting by the Company, if it so desires, at its Pittsburgh location in places where notices to employees are customarily posted. (d) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith ", 14 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 15 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing , within 10 days from the date of this Order , what steps Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS OF GENERAL TEAMSTERS, CHAUFFEURS AND HELPERS LOCAL 249, A/W INTER- NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA AND TO ALL EMPLOYEES OF V. & M. MANUFACTURING COMPANY Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL, upon request by V. & M. Manufacturing Company, sign a contract containing the terms of our agreement reached with that Company on December 27, 1966, and of any other agreement that may be reached with that Company in the future concerning the rates of pay, wages, hours of employment, or other conditions of employment of employees in the following bargaining unit: All drivers, helpers, and warehousemen at the Pittsburgh location of V. & M. Manufacturing Company, excluding office clerical and profes- sional employees, guards, and supervisors as defined in the Act. GENERAL TEAMSTERS, CHAUFFEURS AND HELPERS LOCAL 249, A/W INTERNA- TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) Dated By (Representative) (Title) 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. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsyl- vania 15222, Telephone 644-2977.