Local No. 9, Operating Engineers

LOCAL NO. 9, OPERATING ENGINEERS 129 Local Union No. 9 of the International Union of Operating Engineers and The Fountain Sand & Gravel Company. Case 27-CB-763 3 Respondent's request for oral argument is hereby denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties DECISION April 18, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 21, 1973, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief; the Charging Party filed cross-exceptions and an answering brief; and General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings I findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Local Union No. 9 of the International Union of Operating Engineers, Denver, Colorado, its officers, agents, and represent- atives, shall take the action set forth in the said recommended Order. i Respondent's motion to stoke testimony given by counsel for the Charging Party on the ground that such testimony by an attorney constitutes a breach of the Canons of Judicial Ethics is hereby denied In our view, it is not our function or responsibility to pass on the ethical propriety of a decision by counsel to testify in one of our proceedings. When, as here, the testimony is otherwise proper and competent, it should be accepted in evidence Cf. French v Hall, 119 U.S 152 ( 1886), and Southern Beverage Company, 171 NLRB 926, enfd 423 F 2d 720 (C.A. 5, 1970). Also see generally 118 A.L.R. 954. 2 In its exceptions to the Administrative Law Judge's Decision, Respondent raises for the first time the contention that the Board should give application to its Collyer policy and defer this matter to the grievance and arbitration procedures in the collectrve-bargaining agreement. Colyer Insulated Wire, 192 NLRB 837 Respondent's deferral request is hereby denied on the ground that it was not timely raised in this proceeding. See MacDonald Engineering Co., 202 NLRB No. 113. Members Fanning and Jenkins would not defer in any event STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: This case was heard on July 31, August 1 and 2, 1973, in Denver, Colorado.' The charge was filed on April 19 and the complaint alleging a violation of Section 8(b)(3) of the National Labor Relations Act by the Respondent2 was served on May 25. The timely filed answer of Respondent, while admitting certain allegations , denied the commission of the alleged unfair labor practice. While some collateral issues were raised and will be disposed of herein, the real issue, or problem, to be resolved is: Was the negotiated "Addendum" to the parties' labor agreement ever approved by Kenneth Jennings, Respondent's business manager-as the parties agreed would be a necessary prerequisite to an agreement? Upon the entire record, including my observation of the demeanor of the witnesses , and after due consideration of the very helpful briefs filed by General Counsel, the Company and the Union, I make the following: FINDINGS OF FACT 1. JURISDICTION The Fountain Sand and Gravel Company (herein Company or Charging Party) is, and at all times material herein has been, a corporation organized under and existing by virtue of the laws of the State of Delaware and maintains its principal office and place of business at Pueblo, Colorado, where it is engaged in the manufacture and sale of sand, gravel, ready-mix concrete, asphalt, and miscellaneous rock products . In the course of its business operations, I find that the Company annually sells goods and materials valued in excess of $50,000 to purchasers located both within and outside the State of Colorado. The Company also annually purchases and receives goods and materials valued in excess of $50,000 from points outside the State of Colorado. Based on these facts, I find the Company to be an employer engaged in commerce within the meaning of Section 2(5), (6), and (7) of the Act. II. THE LABOR ORGANIZATION Local Union No. 9 of the International Union of All dates hereinafter will be 1973 unless otherwise indicated s William F. Schoeberlein, Esq, appears in the transcript as the attorney for the Company, however, during the hearing Schoeberletn was called as a witness by the General Counsel whereupon he moved the court to withdraw as counsel and the motion was granted Robert F Starzel filed a formal appearance on behalf of Company after the hearing closed and thereafter submitted a brief 210 NLRB No. 28 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Operating Engineers (Respondent) is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE A. Introduction Respondent and the Company have had a collective- bargaining relationship since 1965. The most recent contract is dated March 1972, and will expire December 1974. The issue to be resolved herein concerns an "Addendum" to this most recent contract. There are approximately 20 employees at the Arkansas River plant where the Company processes sand and gravel and makes other rock products. In the summer of 1972, the Company began to process a slag pile located on the premises of the C. F. & I. Steel Corporation which is only 2-1/2 miles from their Arkansas River plant . The products produced at the two locations are, generally speaking, similar and the job classifications are the same--except at the C. F. & I. location the Company has an asphalt plant and a hot plant operator job classification which it does not have at the Arkansas River plant. Because of some internal corporate machinations, which if discussed would only tend to obfuscate the real issue and therefore need not be delineated here, a dispute arose between the Company and the Respondent as to the rate of pay including fringe benefits to be applied to the employees working at the C. F. & I. site. Simply stated, the Company wanted to treat the C. F. & I. location as an accretion to an existing unit, and therefore covered by the current contract (G. C. Exh. 2), with the only problem being one of negotiating an equitable rate for the new classificationhot plant operator. The Respondent felt all employees at the C. F. & I. site should be covered by a different contract frequently referred to as the highway and heavy contract, or the Master Agreement for the State of Colorado (G. C. Exh. 3). These different points of view were of major concern to the respective parties. The Company had the problem of the interchange of employees between the two locations and the attendant problems that would be created by having employees with the same or similar skills being paid two different rates depending on their particular job location when both locations were in the same general area. Additionally, the added wage cost and differing fringe benefits would seriously effect their competitive position in all areas of production except possibly the asphalt plant (hot plant operator). On the other hand, the Respondent was seeking to obtain the highest wages and best benefits possible for its members (the higher rates were paid for a period of time), but in addition asphalt operations are generally under the highway and heavy agreement and Respondent did not wish to get caught in the crossfire of complaints that might be raised by signatories to the highway and heavy agreement. Several meetings took place between the parties to no avail, prior to the February 22 meeting which is the critical meeting to a resolution of this dispute. B. The February 22 Negotiating Meeting On February 22 a meeting took place in the law office of Attorney Schoeberlein, with Schoeberlein and Mr . Olmen, vice president and general manager for Fountain Sand and Gravel, representing the Company. The Union was represented by Attorney Brauer and Mr. Sandidge, an organizer and treasurer of Respondent. According to the testimony of Olmen, initially this meeting was much like the others , but finally the Company offered to pay the asphalt plant operator the heavy and highway rate . This lead to a consideration of the other classifications that were directly associated with the asphalt operation (as distinguished from the other sand and gravel operations at the C. F. & I. site). The result was that the Company agreed to pay heavy and highway rates to any one that worked any portion of the day on the asphalt operation. Expressions were made by both sides, that agreement had been reached, subject to having the terms reduced to writing and the approval of Mr. Jennings, business manager for the Union, and Mr. Holmes, president of the Company. The attorneys were to get'together within the next few days to draft appropriate language to cover what had been agreed to. Mr. Sandidge's version of what occurred at the Febru- ary 22 meeting is very similar as it relates to the salient and relevant issue. The following answers by Sandidge were in response to questions by the General Counsel: Q. Now, who said what relating to this tentative agreement, relating basically to the approval? Who said what? A. Well, Mr. Schoeberlein and Mr. Olmen dis- cussed the operation, and we worked out an agreement, tentative agreement, that if these employees were doing this work, they would be covered by this agreement. If they were doing that work on the hot plant, they would be covered by the master agreement. That is about the sum and substance of it. Q. Now, you stated that it was subject to approval by Mr. Holmes, the President? A. Mr. Jennings is the one I take my agreements back to. Q. No, no. It was said in this meeting, wasn't it, that it was subject to approval by Mr. Holmes on the Compan 's side; is that correct? A. Yes. Q. Who said that? A. Mr. Doug Olmen. Q. And it was said at this particular meeting that you would take it back for approval on the Union side? A. I informed them that I would have to have Mr. Jennings' approval on anything that I negotiated. Q. And that is all you said? A. I think I also-maybe I didn't. I think I said pending approval of the Union and the members. I am not sure. Q. You don't recall really saying that, or do you recall it? A. Well, normally I don't usually say it, but I don't recall saying it, but it is said, yes. Q. It was said at this meeting, or is said? I want to LOCAL NO. 9, OPERATING ENGINEERS know what you recall being said at this particular meeting. A. I recall I said I had to take it back to Mr. Jennings for his approval. Q. Was anything else said relating to approval that you said? A. Not that I recall. Q. Anything Mr. Brauer said relating to approval that you recall definitely? A. No. Q. So, the only thing the Company knew from your particular statement was that Mr. Jennings had to approve this particular language, or agreement; is that correct? A. True. From testimony of Olmen and Sandidge there can be no doubt agreement was reached, subject only to the approval of Holmes and Jennings and I so find. C. Did Jennings Approve the Negotiated Agreement of February 22 The testimony seems quite clear that in all the negotiat- ing sessions attended by Jennings he took the position that the operation engaged in by Fountain Sand & Gravel at the C. F. & I. site was not a commercial operation, but was a contracting or construction operation. (The point being that the labor agreement at a commercial operation would generally follow the terms of the company agreement with the Union (G. C. Exh. 2), while a contracting or construction operation would be expected to follow the terms of the highway and heavy agreement (G. C. Exh. 3).) The testimony is convincing and I accept and find as a fact that Jennings did consistently take the position above indicated at all negotiating sessions he attended. This determination is not proof, however, of the real issue herein, but only provides a basis for arguing that if Jennings approved the "Addendum" it represented a change in his "attitude" toward the operation at the C. F. & I. site. It should be noted, however, that approval of the "Addendum" would not necessarily be inconsistent with Jennings' prior position, but could mean that he became convinced that the C. F. & I. site work was strictly a commercial operation . While the Company argued at the negotiating sessions that the C . F. & I. site work was strictly a commercial operation, I have grave doubts that the company representatives ever persuaded the Union, or Mr. Jennings, to accept its position in this regard. As a matter of fact, the evidence is to the contrary and I so find. Approval of the "Addendum" might have meant, however, that Mr. Jennings recognized the solution as worked out by competent representative of both parties at the February 22 negotiating session as being a reasonable compromise to a difficult problem. In my opinion, this is what occurred and I so find. While Jennings denied in response to a question from s As a practical matter it is not uncommon even when ratification by the general membership of a union is required, for the discussion and approval by the members to occur on the basis of notes or oral reports to the 131 General Counsel that he ever agreed to the "Addendum" and further denied that he ever communicated to any one that he had agreed to "this Addendum," from all the evidence and testimony I am convinced that at one point he gave his approval, and this approval was conveyed by Attorney Brauer to Company Attorney Schoeberlein. If Jennings is to be credited, he must have meant by his answers that he had never signed the final "Addendum." Jennings acknowledged that he was reasonably sure Sandidge told him of the agreed upon settlement shortly following the February 22 meeting. Jennings also acknowl- edged authorizing Brauer to work with the company attorney, Schoeberlein, in drafting language to express the terms of the agreement. An examination of only the typed portion of General Counsel's Exhibit 9 (which was prepared by Brauer and discussed with Schoeberlein the day following the negotia- tions resulting in agreement) reveals that it contains the essential provisions of the final "Addendum." I find it incredible that Brauer would have prepared this instrument (G. C. Exh. 9) in the manner he did, unless Jennings had given his approval to that which Brauer and Sandidge had worked out with Schoeberlein and Olmen on February 22. The mere act of approval, I find to be quite different from the formal act of signing the finished document .3 If Jennings was not in agreement with what was negotiated by his authorized representatives on February 22, it certainly was not necessary to wait until sometime after mid-March to say so. The weight of the evidence and simple logic compels me to find that Jennings gave his approval to the agreement, but before affixing his signature to the final document something occurred to cause him to change his mind. The reason for the change of position was not fully explored at the hearing, nor was it necessary for a resolution of this dispute. While the determination of this type of issue is extremely difficult and never without some doubt, nevertheless as the trier of the facts , I believe from all the evidence that it is more plobable than not that the fact in question-did Jennings approve the addendum -did occur. In reaching this coticltision, it is implicit that I have given careful consideration to the testimony of Schoeberlein whom I find to be a highly credible witness, even though "obtusive" and often times aggravatingly loquaciotis.4 ^. Consideration of Other Arguments by Respondent In addition to contending that Jennings never gave approval to the "Addendum" and never advised the Company of his approval , Respondent's counsel also argues that no agreement was reached because the unit employees involved rejected the agreement. In support thereof, Respondent cites Lear Siegler, Inc. v. UAW, 419 F.2d 534 (C.A. 6, 1969). The Sieglercase, while arising under a section 301 action and not an unfair labor practice, clearly states that, "The method of ratification, unless members by the negotiators and thereafter the final contract is typed and signatures of authorized representatives thereafter affixed. 4 Chauffers, Teamsters, and Helpers Union, Local 186 (Max Rudolph Trucking Co), 172 NLRB 788 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD otherwise stipulated by the parties, is an internal concern of the union." Such a rule of law, however, does not dispose of this case. Respondent argues that its constitu- tion (See Resp. Exh. 4) requires ratification by the membership "Following the negotiation of the proposed agreement." Certainly this is a common practice on the part of labor organizations and is in harmony with Board and court law. A requirement of membership ratification before final agreement, however, must be made a condition precedent at the time of the particular negotiations. The requirement must be made known at the time of negotiat- ing. In my opinion, the evidence does not support a conclusion that such a condition precedent was either required by the Respondent or could have been tactily understood by the Company to exist.5 The comments by George Wolf at one of the January meetings to the effect, "our members will never buy it," hardly rises to the requirement of a condition precedent relating to ratification by the general membership. Moreo- ver, and far more importantly, at the February 22 meeting, which resulted in the agreement, there can be no doubt that the parties made it clear that the agreement would be subject only to the approval of Jennings and Holmes. There is not one shred of evidence that anything was said about ratification by the members at this concluding meeting. If the parties wanted to provide for additional conditions precedent to agreement that would have been the logical and appropriate time to have done so. It was not done. I find nothing heretofore expressed to be in conflict with North County Motors, Ltd., 146 NLRB 171, cited by Respondent. Nor am I persuaded that the Company knew, or should have known, that the "Addendum" was, in accordance with Respondent's constitution, subject to ratification by the membership before final acceptance or approval. As indicated heretofore, while ratification of a labor-manage- ment contract by the general membership is a common and accepted practice in the "trade," it is not the usual and accepted practice as it relates to the settlement of disputes arising within a bargaining unit covered by a current and effective labor-management contract such as existed in this instance. Again, however, had the Respondent elected to do so it might have made ratification by the membership a condition precedent to agreement, but it did not do so. Respondent also argues rather persuasively that grievous error was committed in allowing Attorney William Schoeberlein to testify; that prejudicial error was thereby committed and his testimony should be expunged from the record. I know of no rule of law that prohibits an attorney that may have been involved in representing a client in litigating from testifying in that litigation, although the Code of Professional Responsibility and Canons of Judicial Ethics does set forth certain ethical considerations in this regard. In my opinion, receiving the testimony of Schoeberlein under all the circumstances of this case was 5 See Glass Workers Union Lcoal No 1220 (Industrial Conference Board), 162 NLRB 168, Operating Engineers Local Union No 3 (California Assn. of Employers), 123 NLRB 922, Sheet Metal Workers Union, Local No. 65 (Inland Steel Products Co), 120 NLRB 1678, 1679. 6 See discussion in Southern Beverage Company, Inc, 171 NLRB 926, enfd. 423 F 2d 720 (C.A. 5, 1970); wherein a similar, but different, type of ethical problem was referred to the Board by the Administrative Law Judge not in conflict with the Canon of Ethics and Respondent's argument to expunge his testimony is without merit. This matter is, however, specifically called to the attention of the Board and courts for whatever guidance they may consider appropriate to give counsel in future cases .6 CONCLUSIONS OF LAW 1. The Fountain Sand & Gravel Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local Union No. 9 of the International Union of Operating Engineers is a labor organization within the meaning of Section 2(5) of the Act and Al Sandidge and Kenneth Jennings are agents of said labor organization within the meaning of Section 2(13) of the Act. 3. The Respondent Unioi, is the exclusive representa- tive of the operating engin.,e.s and apprentice engineers employed by the Company at its Pueblo, Colorado, plant including the C. F. & I. site, excluding supervisory employees as defined in Section 2(11) of the Act which constitutes an appropriate bargaining unit within the meaning of Section 9(b) of the Act. 4. Respondent has failed to bargain in good faith with the Company by refusing to sign an agreed-upon "Adden- dum" to the current collective-bargaining agreement between the parties in violation of Section 8(b)(3) of the Act. 5. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY In order to effectuate the policies of the Act, I find it necessary to direct Respondent to cease and desist from the unfair labor practice found and to take certain affirmative actions. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 7 Respondent, Local Union No. 9 of the International Union of Operating Engineers, its officers, agents, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Fountain Sand & Gravel Company as required by Section 8(b)(3) of the Act. (b) Refusing to sign and execute any agreements reached by the parties. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon the request of Fountain Sand & Gravel r 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. LOCAL NO. 9, OPERATING ENGINEERS Company execute that certain "Addendum" to their current labor-management agreement effective from March 9, 1972, through December 31, 1974, as agreed to by the parties relating to the wage rates applicable to the Employer's employees working at the C. F. & I. Steel Corporation premises. (b) Post at its offices and/or hiring hall in Pueblo, Colorado, copies of the attached notice marked "Appen- dix." Copies of the notice, on forms provided by the Regional Director for Region 27, after being duly signed by a representative of the Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicu- ous places, where notices to members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Additional copies of the Appendix shall be signed by a representative of the Respondent Union and returned to the Regional Director for Region 27. These notices shall be posted, Fountain Sand & Gravel Company willing, at all places where notices to the Employer's employees are customarily posted. (d) Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 133 Pursuant to the recommended Order of an Administra- tive Law Judge 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 NOT refuse to bargain with Fountain Sand & Gravel Company, as required by the law, by failing to sign any or all agreements, or "Addendums," agreed to by the parties. WE WILL, upon request of Fountain Sand & Gravel Company, sign that "Addendum" to the contract between the parties effective from March 9, 1972, through December 31, 1974, agreed to by the parties relating to the wage rates applicable to the Employer's employees at the C. F. & I. Steel Corporation premises. Dated By LOCAL UNION No. 9 OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's office, U.S. Custom House, Room 260, 721 19th Street, Denver, Colorado 80202, Telephone 303-837-3551.