Champaign County Contractors Association

CHAMPAIGN COUNTY CONTRACTORS ASSN. Champaign County Contractors Association and Operative Plasterers and Cement Masons Interna- tional Association Local #143, AFL-CIO. Case 38-CA-1790 April 30, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On January 18, 1974, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the 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, findings, and conclusions 1 of the Administrative Law Judge and to adopt his recommended Order as modified herein. 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 as modified herein and hereby orders that Respondent, Champaign County Contractors Association, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as so modified. 1 in ins conclusions of law, the Administrative Law Judge found that Respondent's conduct violated Sec 8(aX5) and (1) of the Act However, In. 3 of his Decision indicates that he did not believe that the complaint alleged a violation of Sec 8(a)(1) of the Act. We note this is in error and that the complaint did allege that Respondent's refusal to bargain also violated Sec. 8(a)(l) of the Act DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK, Administrative Law Judge: The central question here is whether a collective -bargaining agreement with an automatic renewal clause survived beyond its anniversary date where the only written notice of termination of the agreement given by the Union to the Employer was a copy of a Federal Mediation and i All dates herein are 1973 unless otherwise indicated. 467 Conciliation Service form sent in anticipation of the anniversary date. The case arises in the following manner. On July 20, 1973,1 Operative Plasterers and Cement Masons Interna- tional Association Local # 143, AFL-CIO (herein the Union), filed with the National Labor Relations Board (herein the Board) charges alleging that Champaign County Contractors Association (herein Respondent) had violated Section 8(axl) and (5) of the National Labor Relations Act, as amended (the Act). On October 3, a complaint (which was amended at the hearing) issued on behalf of the Board alleging that Respondent had committed unfair labor practices within the meaning of Section 8(aX5) of the Act by refusing to bargain with the Union for a new contract. In answering the complaint Respondent admits most of the operative facts but denies that the Union requested bargaining or that, in the circumstances, Respondent had a duty to bargain. The issues raised were tried before me at Champaign, Illinois, on November 8. Upon the entire record, my observation of the witnesses, and consideration of the briefs of the General Counsel and Respondent, I make the following: FINDINGS OF FACT 1. THE EMPLOYER ASSOCIATION Respondent is an association of building contractors doing business in Champaign County, Illinois. During the past year employer-members of Respondent purchased and received at their Illinois places of business goods and materials valued in excess of $50,000 which were transport- ed to their places of business from outside Illinois. Respondent represents its members in collective bargain- ing with various labor organizations, including the Charg- ing Party in this case. By virtue of its members' operations Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The Union is an organization of about 75 cementmasons and plasterers, including members of those crafts em- ployed by member-companies of Respondent. It represents its members in collective bargaining with various employ- ers including Respondent. It is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Union's Bargaining Status For a substantial period of time past the Union and Respondent have maintained collective-bargaining agree- ments covering plasterers and cementmasons employed by Respondent's member-companies. The complaint alleges, the answer admits, and I find that all plasterers and cementmasons working for members of Respondent within the geographical territory of the Union, but excluding 210 NLRB No. 76 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guards, professional employees , and supervisors within the meaning of the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(d) of the Act. The complaint also alleges, the answer admits, and I find, that at all times material to the issues involved in this case the Union has been the majority representative of the employees in that bargaining unit, and by virtue of Section 9(a) of the Act has been, and is, the exclusive representa- tive of such employees for purposes of collective bargain- ing with respect to rates of pay, wages , hours, and other terms and conditions of employment. B. The Most Recent Collective-Bargaining Agreement The most recent collective-bargaining agreement be- tween the Union and Respondent became effective July 24, 1971, for a period of 2 years . The provision in the agreement relating to its duration are contained in two sections, 19 and 20. Section 19 reads as follows: This Agreement shall be effective on July 24, 1971, and shall remain in full force and effect until midnight July 23, 1973, and shall continue in force from year to year therefore, except that by written notice given by either party at least sixty (60) days, but not more than ninety (90) days, prior to July 24th of any year thereafter, either party may notify the other of its desire to amend, modify, or terminate this agreement. The Respondent contends no notice to amend, modify, or terminate was given prior to July 24, 1973, and therefore the agreement continues in effect. The Union and the General Counsel contend that notice was given, that the contract has terminated, and that the employees covered are now working without a contract. The dispute, then, turns on the application of the above provision to the events set out hereinafter . Section 20 of the agreement provides: The parties hereto mutually agree that they will, at least once each year during the life of this agreement, meet together to discuss any problems or questions that shall arse out of this agreement, and shall adjust such problems as they agree such problems are detrimental to both parties. There has been, however, no resolution of the present dispute by virtue of Section 20. The agreement contains no specific provisions for arbitration. At the time of the hearing herein the Union and Respondent, through counsel, expressed a hope for early resolution through Board procedures. In the absence of established agreed- upon procedures for non-Board disposition of the matter, and considering the labor relations value of finding some way out of the contractual limbo that the employees and their union consider themselves to be in, it is appropriate for the Board to resolve it as an unfair labor practice issue. C. Past Practice of Giving Notice For the past 10 years the Union has followed the practice of sending Respondent specific notice that the collective- bargaining agreement was about to expire. Thus, in addition to notifying the Federal Mediation and Concilia- tion Service by filing with it its form F-7, with a copy to the Illinois Department of Labor and another copy to Respondent, the Union's past practice has been to send a registered letter to Respondent advising that the collective- bargaining agreement was about to expire and that negotiations were desired. George Shapland, Respondent's president at the time of the events involved herein, testified, and I find, that such procedure is normal for most building trade unions in the area, in addition to the Union here. D. The Union's Notice to the Employer on the Last Contract In anticipation of the anniversary date of the most recent agreement, described above, Henry Dixon, the Union's financial and corresponding secretary, on May 1 sent to the Federal Mediation and Conciliation Service its stand- ard form F-7 which he had filled out on behalf of the Union. The form advised the Mediation Service of the identity of the parties, the number of employees involved, the nature of the industry, the contract expiration date, and the identity of the person filing the notice. Dixon sent a copy of this filled-out form to the Illinois Department of Labor and he also mailed a copy without any covering letter to Respondent at the office of its president, George Shapland, at Shapland Construction Co. Respondent does not have a separate office of its own. It arrived there May 2 and was filed away as in the past. It thus was received 83 days before the alleged expiration date and was timely, being less than 90 and more than 60 days before that date. The issue is whether, although timely, it was adequate notice. Although Dixon receives some compensation from the Union for acting as financial and corresponding secretary, he is not a full-time union official. He works full time as a cementmason and performs his union duties during off- hours. He testified, and I find, that at the time he sent the Mediation Service notice he was not familiar with past practice relating to notice to the employer in advance of an anniversary date of a contract . He was of the view that the copy of the noticF which he mailed to Respondent was sufficient to fulfill the requirement for notice under the agreement. At that time he had only held the position of financial and recording secretary for about 2 months. On the other hand, George Shapland credibly testified, and I find, that the arrival in the office of his construction business of the copy of the form to the Mediation Service did not trigger any attention on the part of Respondent because copies of such forms have not been used in the past as notice of termination of agreements. E. The Refusal to Bargain 1. Events leading up to the refusal After Dixon sent the copy of form F-7 to Shapland on May 1, nothing further happened for about a month. During the first week of June, Francis Ducey, chairman of CHAMPAIGN COUNTY CONTRACTORS ASSN. 469 the Union negotiating committee, part-time union business agent, and until December 1971 its financial and recording secretary, had occasion to be in Shapland's office on other business. Ducey informed Shapland of the identity of the members of the union negotiating committee and asked about the employer negotiating committee . Shapland asked Ducey if there was any chance of changing the contract expiration date from July 23 to May 1. Most of the other collective-bargaining agreements to which Res- pondent is a party expire during April and May and for some time Respondent has desired that the term of its agreement with the Union here coincide with its other collective-bargaining agreements. This matter had been discussed in the negotiation of prior contracts . In a more current context, Shapland has mentioned Respondent's hope to Ducey as early as January 1973 and on several other occasions both before and after the first part of June. On this occasion in the first week in June Shapland also mentioned to Ducey that Respondent could legally offer an increase of 5.5 percent in wages. To this Ducey replied that a 5.5-percent raise was probably all the Union would ask. So far as this record shows the only two issues for prospective bargaining which came to the surface up to the time of the hearing herein were the question of conforming the contract expiration date to that of agreements with the other construction trades and the matter of wage increases which at the time was subject to Government imposed guidelines. About 3 days later, still in early June, Shapland telephoned Ducey to advise him that Respondent's negotiating committee would be chaired by one Ed Maliskas and that Ducey should contact him to set up the meetings. He again asked Ducey about the prospects of changing the contract expiration date. Around June 28, Ducey again met Shapland on other business. After the meeting Ducey told him he had been unable to reach Maliskas to arrange meetings for negotia- tions. Shapland suggested they make an attempt right then. He telephoned Maliskas, who was out for lunch , and left a message for him to contact Ducey and set up some meetings. The following Sunday, July 1, Ducey reached Maliskas by telephone at his home . Ducey suggested it was getting quite late and they had better get to the bargaining table. Maliskas told him there was a mixup regarding the termination of the contract. He asked Ducey if he could provide copies of what had been sent Respondent so they would know how the Union notified the Employer. Ducey agreed to do so, suggesting that he bring the notice to their first negotiation meeting . Maliskas declined the suggestion, saying he should take the notice by Shapland's office. This was the first indication that the Union had from Respon- dent that there was some question about the adequacy of the notice. Shapland testified that sometime between June 1 and July 13 he also asked Ducey for a copy of the notice given. Although credible, this testimony is imprecise as to time and is insufficient to establish that the issue was raised before July 1. After talking with Maliskas, Ducey told financial and recording secretary Henry Dixon "we needed copies of the letters he sent the association for termination of the contract." Dixon handed him a copy of the form F-7. Ducey asked if he had written a notice out in letter form, Dixon said no, that he thought the copy of the form was sufficient. Ducey took the copy of the form and delivered it to a secretary in Shapland's office on July 12. The next day, July 13, Shapland on behalf of Respon- dent wrote a letter to the Union, attention of Ducey, with copies to Maliskas and Respondent's attorney, which stated: It is my understanding that you have advised Ed Maliskas that you advised the Champaign County Contractors Association of your desire to terminate the existing contract and to negotiate a new contract. Would you please send me a copy of this correspond- ence along with evidence of it having been mailed and received by the Champaign County Contractors Asso- ciation. Shapland attached a personal note to Ducey asking him to stop by Shapland's office to see if the issue of notice of termination could be resolved. The letter and accompany- ing note were received by Ducey on July 16. The next day, July 17, he called on Shapland about 9 a.m. He asked Shapland what he had in mind about working out something on the contract. Shapland indicated he was thinking about a 5.5-percent wage raise and a change in contract expiration date to May 1. Shapland testified that on the various occasions that he mentioned these two items to Ducey he placed them in juxtaposition; one a quid pro quo for the other. On this occasion Ducey asked if they would meet with the Union . Shapland replied that he did not yet know, that he was working on it, and Ducey should call him back around noon, that he might know a little more then. Sometime that same day, it is not clear exactly when, Dixon telephoned Shapland to ask him what information he wanted in response to Respondent's letter of July 13. Shapland said they would like copies of everything Dixon had sent them. Dixon then told him that copy four of the form F-7 was all that he had sent and that he thought that was proper notice. Shapland commented that he did not know if they would consider it proper notice or not; that they were going to meet that evening to decide; that he personally had mixed feelings about it, but it was not entirely up to him. He also commented that they would like to see the contract expiration date changed to coincide with other collective-bargaining -agreements. About 11:30 a.m. on July 17 Ducey telephoned Shapland to learn what had developed. Shapland told him that Respondent's members were meeting late that afternoon. He promised to call Ducey after the meeting. 2. The final position of Respondent About 6 o'clock that evening (July 17) Shapland called Ducey at home. He stated that Respondent did not feel it was properly notified and that, therefore, under the terms of the contract it would continue in effect for another year. Consistent with this position, Respondent has since refused to bargain with the Union for a new agreement. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. Discussion and Conclusions 1. Contention of the parties The General Counsel asserts a two-pronged theory. First, he argues that the Union gave adequate notice of intent to modify or terminate the collective-bargaining agreement, and therefrom flows Respondent's obligation to bargain for a new agreement . Respondent argues the contrary. For the reasons set out hereinafter I conclude that the General Counsel is correct in his assertion. In the alternative the General Counsel contends that even if adequate notice under the contract was not given, Respondent by its conduct has waived the requirement of notice. Respondent contends it has never waived the legal requirement of notice under the contract. For reasons set out later herein I agree with Respondent on this point. 2. The notice of May 2 There is no dispute that if Respondent's receipt of a copy of form F-7 on May 2 was notice within the meaning of section 19 of the contract, it was notice timely given. Being timely and in written form, as required by section 19, and containing the information essential for an effective notice, I find delivery of the copy of form F-7 was sufficient notice of the Union's intent to end the existing agreement. Thus the form F-7 identifies the parties, the number of employees, the industry, the contract expiration date, and the sender of the notice. Receipt of that written informa- tion within the time span called for in the contract, in whatever form, was reasonable notice where, as here, the contract provisions governing notice of termination are general in nature and no specific format for notice is stated. It is true, as Respondent contends, that the method used by Dixon departed from past practice in that no letter containing the substantive information of intent to terminate accompanied the copy of form F-7, nor was the form sent by registered or certified mail. But this past practice has not been incorporated into the contract so as to limit the broad language of section 19. While I agree that the past practice was a more efficient and effective means of giving notice, it clearly was not the only mode which could be legally effective. In the circumstances present here I am not prepared to find that Dixon's effort, although not up to the standards of past practice, was without legal effect. The parties here all knew each other. The contractors knew that Dixon and other union officials were working men. So long as the essential message was conveyed, it is not reasonable for Respondent to hold them to the standards of a Philadelphia lawyer. Respondent in effect argues that the essential message was not conveyed. It is pointed out that the function of form F-7 is to satisfy the requirements of Section 8(d) of the Act. I agree. But nowhere is it written that that is the only purpose the form may serve . Its delivery to the employer here was an indication of the Union's desire to 2 The question was treated by Administrative Law Judge (then Trial Examiner) Sidney D. Goldberg in an unpublished decision in Pekin Farmers' Grain Company, TXD-240-64, issued May 5, 1964, in Case negotiate a new contract. Apparently a clerical in Shap- land's office did not take it as such, but I think Respondent must bear the responsibility for that misjudgment. All the subsequent conduct of the Union , in the persons of Ducey and Dixon, was consistent with the belief that proper notice had been given. None of the evidence indicates that Respondent was misled. In the circumstances of this particular case I find that notice, legally adequate under section 19 of the existing agreement, was given to Respondent on May 2 . Counsel do not refer me to, nor am I aware of, any Board decision holding the contrary.2 3. The contention that Respondent waived notice The argument of the General Counsel in this regard is that events from early June through July 17 demonstrate that Respondent waived the lack of proper notice. More particularly, it is urged that there were only two issues for bargaining, wages and expiration date, and that Shapland bargained with Ducey on these matters, thereby obviating the need for notice. The General Counsel cites Ship Shape Maintenance Co., Inc., 187 NLRB 289, which supports that argument. But I am not persuaded that that case should be applied here. In Ship Shape the parties actually negotiated and reached agreement. Here formal bargaining sessions were contemplated but never arranged. The occasions in early and late June when Ducey talked with Shapland were clearly preliminary in nature, designed to set the stage for actual bargaining. The fact that their conversations indicated two areas of probable negotiation shows no more than initial sparring. Neither side was bound by what occurred. And on July 17, by which time the possible lack of valid notice had surfaced as an issue, Shapland in talking with Ducey was only engaging in exploratory probing for a way around an apparenit technical obstacle. In my view none of this was true bargaining. It was all too tentative and preliminary in nature . The record is clear that at no time did Respondent retreat from or specifically waive its technical position that the contract would continue in effect absent proper notice of termination. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States. Those found to be unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce and are unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. CONCLUSIONS OF LAW 1. Champaign County Contractors Association is a person within the meaning of Section 2(1) and an employer 13-CA-6042 before the Board. Although I agree with his able analysis, I do not rely on his Decision as precedent because it was not published. CHAMPAIGN COUNTY CONTRACTORS ASSN. 471 within the meaning of Section 2(2), engaged in commerce within the meaning of Section 2(6) and (7), of the Act. 2. Operative Plasterers and Cement Masons Interna- tional Association Local # 143, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All plasterers and cementmasons working for mem- ber-employers of the Champaign County Contractors Association within the geographical territory of Operative Plasterers and Cement Masons International Association Local # 143, AFL-CIO, excluding guards, professional employees, and supervisors within the meaning of the Act, constitute, and at all times material herein have constitut- ed, a unit appropriate for the purposes of collective bargaining. 4. The above-named Union was on May 2, 1973, and at all times since has been, the exclusive representative of all the employees in the above-described unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing to bargain collectively with the Union as the exclusive representative of the employees in the aforesaid unit, Respondent since July 17, 1973, has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(5) of the Act. 6. By failing and refusing to bargain as aforesaid, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, and has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(1) of the Act.3 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. In this connection I recommend that Respondent be ordered, upon request from the Union, to bargain with the Union as the representative of the employees in the unit herein found appropriate, and, if an understanding is reached, embody the same into a written, signed agreement. I further recommend that Respondent post appropriate notices. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER4 Champaign County Contractors Association, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to bargain collectively in good faith with Operative Plasterers and Cement Masons International Association Local # 143, AFL-CIO, as the exclusive bargaining representative of all employees of its member-employers constituting the unit herein found to be appropriate for the purposes of collective bargaining. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named Union as the exclusive representative of all the employees in the bargaining unit described above and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at the place of its principal office copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Officer-in-Charge for Region 38, after being duly signed by Respondent's authorized representative, shall be posted by it immediate- ly upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing 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 by any other material. (c) Notify the Officer-in-Charge for Region 38, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith. 3 The complaint does not allege either independent or derivative violation of Section 8(a)(1), nor was any mention thereof made during the hearing. The evidence which establishes the violation of Section 8(ax5) found above, however, also establishes a derivative violation of Section 8(a)(1) Thus the legal conclusion of an 8(aXI) violation flows automatically from the finding of the 8(a)(5) violation. 4 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. 5 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act by refusing to bargain with Operative Plasterers and Cement Masons International Association Local # 143 , AFL-CIO. It has ordered us to post this notice. WE WILL bargain collectively with Operative Plaster- ers and Cement Masons International Association Local # 143, AFL-CIO, as the exclusive collective- bargaining representative of employees of our member- contractors in the unit of All plasterers and cementmasons working for member-contractors of the Champaign County Contractors Association within the geographical territory of Operative Plasterers and Cement Masons International Association Local # 143, 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AFL-CIO, but excluding guards, professional This is an official notice and must not be defaced by employees, and supervisors within the meaning of anyone. the National Labor Relations Act, as amended. This notice must remain posted for 60 consecutive days CHAMPAIGN COUNTY from the date of posting and must not be altered, defaced, CoNTRAcroas ASSOCIATION or covered by any other material. (Employer) Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Dated By Savings Center Tower, 10th Floor, 411 Hamilton Boule- (Representative) (Title) yard, Peoria, Illinois 61602, Telephone 309-673-9283.