Georgia Roofing & Sheet Metal Co.

GEORGIA ROOFING & SHEET METAL CO 115 Georgia Roofing & Sheet Metal Company and Sheet Metal Workers International Association, Local 203, AFL-CIO. Case 10-CA-10715 Upon the entire record, and my observation of the.wit- nesses and their demeanor, and after consideration of the briefs filed by the parties, I make the following: March 26, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On December 23, 1974, Administrative Law Judge Bernard J. Seff issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and the Respondent filed an answering 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 briefs 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 Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Administrative Law Judge: This case came for hearing before me in Columbus, Georgia, on August 26, 1974. The Sheet Metal Workers International Associa- tion, Local 203, AFL-CIO, hereinafter called the Union or Local 203, filed its charge on May 9, 1974, and the complaint issued on August 2, 1974, alleging that Respondent, Georgia Roofing & Sheet Metal Company, hereinafter referred to as Respondent or Company, violated Section 8(a)(5) and (1) of the Act in that the parties reached agreement on the terms of a collective-bargaining contract, but had refused, and does now refuse, to sign the agreement. Respondent in its answer denied the commission of any unfair labor practices, but admitted allegations to the com- plaint sufficient to support the assertion of jurisdiction based on the current standards of the Board (both inflow of over $50,000 and outflow of over $50,000) in the past 12 months. The answer further admits that the Union is a labor organiza- tion within the meaning of the Act. FINDINGS OF FACT I THE COMPANY AND ITS BUSINESS Respondent is a Georgia corporation, with its principal office and place of business located at Columbus, Georgia, where it is engaged in commercial and industrial sheet metal and roofing construction. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. Introduction On June 7, 1973, in an election by secret ballot conducted by the National Labor Relations Board, a majority of the employees designated and selected the Union as their repre- sentative for the purposes of collective bargaining in the fol- lowing unit: - All sheet metal employees, -including mechanics and helpers, employed by Respondent at its Columbus, Georgia, shop, excluding office clerical employees, professional employees, guards and supervisors as de- fined in the Act. On June 15, 1973, the Regional Director certified - the Union as the exclusive collective-bargaining representative of all employees in the unit set forth supra. Prior to a strike which occurred in 1970, both Smith Ray- mond (the Company's chief competitor in the area) and Re- spondent were under contract with the Union. III THE ALLEGED UNFAIR LABOR PRACTICES A series of meetings took place after the Union was certi- fied by the NLRB. Several of these sessions involved the Union, Respondent, and the Smith Raymond Company. The Union proposed that these two contractors accept the then existing contract which was due to expire on August 1, 1973, and thereafter negotiations would begin toward the excution of a new contract. A meeting took place on August 1, 1973, among the union representative, Mooneyhan, Respondent's president, Powers, and Raymond. According to the Union's testimony, two points were raised by Powers: (1) Powers looked at the con- tract; Mooneyhan said there was really nothing to discuss other than the fact that if Raymond would sign the agree- ment, he (Powers) would do likewise and powers did not question any of the terms of the contract; (2) the subsequent time, Powers made a counterproposal on money matters which represented a difference of 30 cents an hour on a 2-year contract. The record shows that at numerous subsequent meetings the discussion concerned the question as to whether Ray- mond would agree to sign the contract. The point was repeat- 217 NLRB No. 32 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD edly raised by Powers that he would not sign the agreement unless his principal competitor, Raymond, also signed. Later in August 1973, both Raymond and Powers agreed to sign if two other companies, Holt Services and DuPriest, also signed. Here again the General Counsel stated that no spe- cific terms of the contract were questioned "other than the wage scale." The record clearly reflects that Respondent did not agree to the Union's wage proposals. During Mooneyhan's tes- timony on cross-examination he said: A. On August 1, 1973 Mr. Powers offered to sign our agreement, the only difference being the wage proposal. Q. (By Respondent's counsel) And it was, as you stated on direct examination, his offer was essentially fifty cents over two years and your demand was eighty- seven and a half cents over two years? A. Yes Q. So he did not, as of August 1, in any event agree to any contract? A. That's correct. He agreed to everything except the wages. The only objection was the wages. Over a considerable period of time, and many perfunctory meetings, Powers kept telling the Union that he would sign the contract if Raymond would also sign. During this period there was also some discussion about the pension plan. Pow- ers said he would agree to pay in the amount required to each man, but it would be their responsibility to turn such sums over to the Union. Powers wanted his offer to be com- municated to the men. He did not want to assume the book- keeping chore of keeping pension records for the Union. Mooneyhan agreed to present this to the members, and they agreed to Powers proposals on this point. Powers testified that he offered a 25-cent-per-hour increase in wages in each of 2 years. Subsequently he offered to pay $6.55 plus 30 cents for another year. Powers explained that he had a plateau which he could reach, $6.80, but that was his limit. The union proposal called for an increase in Febru- ary 1975 resulting in a total economic package of $7.05 per hour. Respondent argues in its brief that the most the Em- ployer agreed to pay was $6.80 an hour. In other words, no meeting of the minds ever took place on the question of wages. Contentions of the Parties The General Counsel takes the position that Respondent reached full agreement with the Union to the substantive terms of a contract . Respondent agreed to sign the contract if his chief competitor also signed it. The General Counsel points out correctly that if a party refuses to sign a con- tract because of the existence of a non-mandatory condition-insistence that a competitor also sign the contract-such refusal is violative of Section 8(a)(5) of the Act. Respondent argues on two levels: (1) no agreement was ever arrived at on the question of wages; (2) in any event the charge was filed more than 6 months after the event on which it is based, and therefore the cause of action is barred by the operation of Section 10(b) of the Act. While the record is somewhat confused, it is clear that Respondent never reached agreement with the Union on wages. According to the transcript , the Union's wage demand was 30 cents higher than the Company's offer, and was beyond the plateau it said it could afford to pay. As to Re- spondent's second contention, it becomes unnecessary to deal with this issue since I have decided the case on the merits. Based on the evidence adduced at the hearing , I find that the General Counsel has failed to establish by a preponder- ance of the credibile evidence in the record that Respondent violated Section 8(a)(5) of the Act. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The, Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The allegations of the complaint that Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act has not been sustained by substantial evidence. [Recommended Order for dismissal omitted from publication.]