Lasley Acoustics Co.

LASLEY ACOUSTICS CO. Lasley Acoustics Co. and United Brotherhood of Carpenters & Joiners of America, Local 690. Case 26-CA-6256 September 19, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On June 10, 1977, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a reply thereto. 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 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. IThe General Counsel has excepted to certain credibility findings made by the Administrative 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 (C.A 3. 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Administrative Law Judge: This proceeding involves the refusal of the above-named Respondent to sign a collective-bargaining agreement the terms of which were allegedly orally agreed upon. The proceeding was initiated by a charge filed by the above- named Union on July 29, 1976,1 pursuant to which complaint issued on January 11, 1977, alleging that Respondent had violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended. On March 10, 1977, hearing was held in Little Rock, Arkansas. Upon the entire record, including my observation of the witnesses, and after consideration of the briefs filed by the parties, I hereby make the following: I Unless otherwise indicated, all dates are in 1976. 2 Jurisdiction is not in issue. Respondent admits it meets the Board's direct inflow standard for the assertion of jurisdiction 232 NLRB No. 19 FINDINGS OF FACT I. THE FACTS Respondent is an acoustical contractor in Little Rock, Arkansas. 2 For a number of years, it has been party to a collective-bargaining agreement with the Union. Histori- cally, the agreement signed by Respondent was the same as that negotiated between the Union and the Arkansas Chapter of the Associated General Contractors (hereinaf- ter referred to as AGC). Respondent is a member of the Arkansas Acoustical and Specialty Contractors Associa- tion (hereinafter referred to as AASCA) and in 1976 it and the other members of that AASCA gave timely notice to the Union that they would negotiate their own agreement independent of the AGC. Thereafter, Respondent and Ozark Acoustical Contractors, Inc., and Horton Drywall & Acoustical Tile Company met with the Union on April 23. Although the contractors were meeting jointly and were all represented by attorney Philip Lyon, it is undisputed that each contractor was bargaining on his own behalf. The meeting was devoted principally to a discussion of the Union's proposals which consisted of its proposals to the AGC then under discussion with the AGC. On April 30, the Union and AGC reached agreement and, on May 18, a copy of the agreement was mailed to Respondent and the other acoustical contractors. On June 22, attorney Lyon sent identical counterproposals on behalf of each of his clients noting, however, that they were separate counterproposals. The counterproposal proposed acceptance of the AGC contract with nine changes. On July 2, the parties met and discussed the contractors' counterproposals. It is undisputed that agreement was reached in principle on two issues, foreman pay and union visitation rights, subject to agreement on specific language to be resolved by the attorneys by an exchange of letters after the meeting. In addition, it is undisputed that the parties discussed an apprenticeship ratio issue, with the contractors proposing a higher ratio of apprentices to journeymen and the Union adhering to the position that any change had to be worked out with the Joint Apprenticeship Committee and not with it. The AGC agreement provided for contractor payments to an AGC industry fund to which the contractors objected. The Union would not agree to delete the provision, but instead proposed that as it played no part in the fund the contractors could, in effect, ignore the provision and set up their own fund. Other issues discussed involved the establishment of a helper category and the inclusion in the agreement of a nondiscrimination clause based on race, color, religion, or sex. According to Business Agent Morris Mullins, all these issues were resolved and it was said at the meeting that with the exchange of letters by the attorneys as referred to above the agreement would be finalized. However, Mullins could not recall who said that. On cross-examination, Mullins said that attorney Lyon spoke to his clients stating, "The agreement is final, and is this okay with you all?" and the contractors nodded in agreement. 81 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On this same issue, attorney Kaplan testified as follows: JUDGE JALETTE: Well, what statement was made to support that assertion, and by whom; that, "We will finalize these two items, and then we have a complete agreement, once we've done that." THE WITNESS: That was my suggestion as to what we do. Philip agreed to it. JUDGE JALETTE: What did you say? THE WITNESS: Well, to the best of my recollection, what I said was, "Now look; we are agreeing with you on two items; that is, that you are completely right in regard to when a single individual goes out, and that we have no right to conduct all of our Union business on your jobs. As far as we're concerned, we don't see anything from you here today which indicates that you are that serious on any of the other items; that you are going to cause us not to have an agreement. What I propose is that Philip and I will exchange language, which will put a memorandum of under- standing to this whole agreement; whereby this agree- ment is the agreement between the parties, and this memorandum of understanding will interpret the two sections." He and I had had another case where we had talked about memorandums of understanding, and it was a common usage between us. My recollection is that he agreed that that's what we would do. He looked at his clients and said, "Is that OK," and nobody dissented from it. No one. Further examination by counsel for Respondent, was as follows: Q. What did he say to make you believe that these contractors had agreed to that basic AGC contract? A. What he did was agree with the way that I suggested that we handle the matter. Q. He agreed to the mechanism only. A. No. The way I agree that we handle the matter; that is- Q. You took that to mean, then, that he agreed to the basic AGC contract? A. Stirely. Q. That he agreed to the mechanism? A. To both. No. To both, because that's what we were dealing with. We were dealing with- Q. That was an assumption on your part, then. A. Well, you know, if you say it's an assumption-I think that what I understood what he said was, "Yes, that's what we'll do." Q. What was said that would lead me to believe- I'm a third person. I wasn't there. A third person sitting there at the end of that table, and a contract was reached and everybody was bound. A. Well, what was said was, "We will sign this contract. This contract will be our contract, with the exception of the memorandum of understanding which will go with the contract." Q. OK, now. Somebody said, "We will sign that contract, with the exception .. ."? Who said that? A. Philip did all of the talking in regard to the way we were going to-Mr. Lyon did. Q. And he actually said, "We will sign that contract, with the exception of the memorandum of understanding"? A. He said that he will send me a letter with that gloss on it, with that memorandum of understanding. That will constitute his signature. I will sign it and return it to him, and that will constitute the signature on behalf of my client. Q. Did he say that he would--his clients would ever sign the AGC contract? A. No. I assumed that he was acting on behalf of his clients. That's what it had always been. Q. Now, I'm confused. I'm new on this. I was brought in here at the last minute. You said a minute ago that Philip said, "We will sign the AGC basic contract, conditioned upon these two letters and a memorandum of understanding." Now you just said that he didn't say that. A. Well, look, Mr. Staley, what happened in that room was I proposed that the AGC memorandum of understanding would be the contract-I'm sorry-The AGC contract would be the contract between the parties, or among each of these parties; and Philip and I would exchange a memorandum of understanding. Q. Philip never said, "We will sign the AGC contract." A. Now, I don't think the word, "sign," was used. I'll be quite honest with you. I don't think that the word, "sign," was used. He said, "We agree." Now, "We agree," means "we agree." Q. He said, "We agree to the AGC contract"? A. "We agree." That's the- Q. We agree to what? A. We agree that the contract among these various parties is the AGC contract, together with the memo- randum of understanding. That was our agreement. That's the agreement. Q. Now, he didn't say all of those words, though; did he? A. Well, he had to have said all of those words; we were there for two hours. This portion of the contract that I am-of this discussion that I am talking about consumed approxi- mately the last 20 minutes of the discussion. So, someplace within that 20 minutes where he and I were doing most of the talking, he said that and I said what I have said. That's the way the dynamic of that meeting oc- curred. It occupied a two-hour period and the last several minutes, 15 to 20 minutes of that two hours, was consumed with the finalization of the contract. On July 13, attorney Lyon sent a letter to attorney Kaplan with language clarifying the provision respecting foreman pay and union visitation rights. Kaplan was not 82 LASLEY ACOUSTICS CO. agreeable to part of the language; he discussed the matter with Lyon and sent revised language to him on July 17. On or about July 20, Kaplan and Lyon had a conversation in which Lyon stated he was having difficulty with Respon- dent, stating Respondent might not sign the agreement, and in which Lyon proposed a change reflecting that in signing the letter of clarification he was acting on behalf of certain acoustical contractors who had signed or would sign the agreement with the Union. Lyon signed the letter of understanding and sent it to Kaplan. On July 13, Horton Drywall & Acoustical Tile Company signed the AGC agreement subject only to counsel reaching agreement on the foreman pay and union visitation rights issues and, on July 14, Ozark Acoustical Contractors did likewise. Thereafter, Respondent's president, Robert Lasley, had conversations with union representatives in which he refused to sign the agreement. II. ANALYSIS AND CONCLUSIONS On the basis of the foregoing, General Counsel and the Union contend that Respondent had agreed to the terms of a new agreement and that Respondent's refusal to sign the agreement was a refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. General Counsel's position is predicated on the assertion that attorney Lyon entered into a final and binding agreement on behalf of his client. In support of his assertion, General Counsel adverts to the following: I. A few days after the meeting of July 2, contractors Gerald Horton of Horton Drywall & Acoustical Tile Company and Jim Hardwick 3 of Ozark Acoustical Con- tractors submitted to Lyon proposed language on the issues of foreman pay and union visitation rights. 2. On July 13, Horton signed the AGC agreement subject only to the language clarification on the two issues. 3. On July 14, Hardwick signed the new AGC agree- ment. 4. When Kaplan and Lyon discussed the proposed language in mid-July, Lyon raised no protest. 5. On July 20, Lyon signed the letter with the language clarification. I find no merit in General Counsel's contentions. I find, as stipulated by attorney Lyon, that Lyon had the authority to bind Respondent; however, Lyon testified that at no time did he agree to the terms of a complete contract and I credit him. General Counsel's argument as outlined above is addressed solely to the post-July 2 meeting conduct. Of course, what Horton and Hardwick did after July 2, as referred to by General Counsel in items i, 2, and 3 above, is not proof of what Lyon was agreeing to on Respondent's behalf. The fact that Horton and Hardwick signed an agreement without further negotiations is a circumstance to be weighed in deciding whether or not an oral agreement had been reached on July 2, but that circumstance has been outweighed by the testimony of both Horton and Hardwick, which I credit, that no agreement was reached 3 The record incorrectly lists Hardwick as Hartwick and it is hereby corrected. on July 2 and that they decided after the meeting on July 2 to accept the Union's proposed contract for reasons of their own. Items 4 and 5 of General Counsel's argument establish only, as attorney Lyon would concede, that agreement was reached, in principle, on foreman's pay and union visitation rights. In my judgment, the dispute in this case is attributable to a misunderstanding of the parties over the significance of the exchange of letters and agreement upon foreman's pay and union visitation rights. According to Respondent, the agreement reached at the July 2 meeting related only to those two items and not as to the other issues raised by the contractors. As I understand the Union's position, oral agreement on a complete contract was reached on July 2 subject only to a language revision on the two items and, when this was satisfactorily worked out, a complete oral agreement had been reached. I am not persuaded that the evidence supports such a contention. As noted earlier, Mullins testified that, at the July 2 meeting, all the issues raised by the contractors were resolved; however, in support of that testimony all that Mullins described was the manner in which the Union rejected the contractors' proposals. He did not state that the contractors acceded to the Union's position and withdrew their proposals. Mullins did testify that, at one point, attorney Lyon spoke to the contractors and stated, "The agreement is final and is this okay with you all?" and the contractors nodded in agreement. Lyon denied that such an exchange occurred, and the testimony of Horton and Hardwick tends to support him. I credit Lyon. In this connection, I note that attorney Kaplan did not corrobo- rate Mullins. In the final analysis, this case is reduced to the testimony of attorney Kaplan that, at the July 2 meeting, attorney Lyon agreed to the terms of the AGC contract as modified by a memorandum of understanding to be worked out between them. After careful review of Kaplan's testimony, recited in detail above, I am persuaded that Kaplan's testimony reflected his honest interpretation of the mean- ing of the events at the July 2 meeting and that he honestly believed that, when the Union and the contractors agreed to modification of two contract provisions by means of a side letter, the contractors were acceding to the Union's position on the other counterproposals of the contractors and were agreeing to a complete contract. However, it is clear from the testimony of Respondent's witnesses that, while the contractors agreed to the procedure to modify two provisions and while they were aware that the Union would not accede to their other proposals, they did not accede to the Union's position at that meeting. To the contrary, assent was withheld and, in effect, the matter was taken under advisement. For reasons of their own, two of the contractors subsequently decided to accept the Union's position and to sign the agreement. Respondent decided otherwise. In short, I find that Respondent did not orally agree to the terms of a complete contract. Accordingly, I shall dismiss the complaint. 83 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW I. Lasley Acoustics Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Brotherhood of Carpenters & Joiners of America, Local 690, is a labor organization within the meaning of Section 2(5) of the Act. 3. General Counsel has not established by a preponder- ance of the evidence that Respondent orally agreed to the terms of a collective-bargaining agreement and that its I 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. refusal to sign an agreement with the Union was violative of Section 8(aX 1) and (5) of the Act. 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 The complaint is dismissed in its entirety. 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. 84