B. F. Goodrich Chemical Co.

B. F. GOODRICH CHEMICAL CO. B. F. Goodrich Chemical Company, a Division of the B. F. Goodrich Company and International Associ- ation of Machinists & Aerospace Workers, Lodge No. 31, AFLCIO. Case 23-CA-6372 September 27, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 29, 1977, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed an answering brief. 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 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. DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge: Upon a charge filed by Machinists Lodge No. 31, a complaint issued by the General Counsel on March 11, 1977, and an answer filed by Respondent, a hearing was held on April 7, 1977, in Beaumont, Texas. Upon the entire record in the case, including my observation of the demeanor of witnesses and upon consideration of briefs, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a New York corporation, is an employer within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This case involves Respondent's chemical plant in Port Neches, Texas, where Respondent has contractual rela- tions with six unions, including the Charging Party. Each of the unions negotiates its own working agreement with Respondent, but the unions bargain jointly with Respon- dent for an employee benefit programs agreement. The parties were negotiating a renewal of their separate "working" agreements and in early January 1977 they were also engaged in joint negotiations respecting amendments to their benefit agreement. One of the union' demands in the hospital-medical- surgical category of the benefit agreement was for payment by Respondent of all fees charged by surgeons who assist attending surgeons in surgical services. The parties ulti- mately agreed that Respondent would make such pay- ments up to 20 percent of the appropriate schedule. There is a dispute, however, whether the parties had reached a "20 percent" agreement without restriction. The General Counsel contends that the agreement was not qualified whereas Respondent contends that the agreement for such payments included the italicized conditions in the follow- ing clause: Effective when the surgical services are performed on an in-patient of a hospital, benefits will also be provided for the services of a doctor licensed to practice medicine who actively assists the operating surgeon in the performance of such surgical services when the type and complexity of the surgical service and the condition of the patient requires such assistance and when the hospital does not have an approved intern or resident training program or a house officer or does not have surgical assistance routinely available as a service provided by a hospital intern, resident or house officer. Payment will be made for the fee charged by the assistant surgeon up to 20%9 of the maximum amount shown for that operation in the appropriate schedule. Respondent refused to execute an agreement without the indicated conditions and the General Counsel contends that Respondent thereby violated Section 8(aX5) of the Act. Respondent and union negotiators met on or about January 5, by which time the Union had submitted its demand for full payment of assistant surgeon fees. Leon Tevis was chairman of the Pipefitters negotiating commit- tee and also was overall union chairman in the benefit negotiations; Jack Cutler, a Machinists representative, was union cochairman; George Palmer was a member of the Machinists negotiating committee; and Hugh Davis is a Machinists International representative. Robert Straface, Sr., manager of industrial relations at the Port Neches plant, was Respondent's chief spokesman in negotiations. I I shall refer to the unions collectively as the Union. 232 NLRB No. 64 399 DECISIONS OF NATIONAL LABOR RELATIONS BOARD William Riley is an industrial relations supervisor under Straface and William J. Englehart is Respondent's corpo- rate director of employee benefits with responsibility for administration of all employee benefits for the entire corporation, including pensions and medical and hospitali- zation benefits. All parties agree, and General Counsel Witnesses Tevis and Davis testified, that Respondent made an oral counterproposal of 20-percent payment for assistant surgeon fees at the January 5 meeting. While they testified that the matter was not otherwise discussed at the meeting, Tevis also testified that he did not recall whether or not it was. Disagreeing in part with Tevis' and Davis' testimony, General Counsel Witness Cutler first testified that the union proposal was not even mentioned at the meeting and then he testified it possibly could have been mentioned; General Counsel Witness Palmer testified that he could not recall the subject coming up.2 Respondent Witnesses Straface, Englehart, and Riley truthfully testified that the assistant surgeon matter was discussed at the January 5 meeting and that Englehart3 informed the union represen- tatives that the normal allowance for assistant surgeons was 20 percent of the attending surgeon's fees. Englehart also advised the union committee on this occasion that it is standard practice in all B. F. Goodrich contracts to provide that such payment be conditioned on the degree and complexity of the surgery and on the unavailability of residents and interns at the hospital involved. Further meetings occurred on or about January 20 and the parties purportedly reached agreement on all bargain- ing items. The assistant surgeon matter was not individual- ly discussed at this time. On January 22, Machinists Committeman G. K. Tilley asked Straface for a list of the topical changes agreed upon by the parties to take back to his union membership for ratification purposes. In prepar- ing the list, Straface included an item under "Hospitaliza- tion" which read, "Provide payment to assistant surgeon at 20% of surgeon's Schedule." On January 22, five of the six unions ratified the amendments, and the sixth union did so on January 27. The mentioned January 22 list was not in "contract language form" and Tevis testified that the parties historically work out their contract language before signing but after ratification by the Union. On or about January 28, Respondent gave the Union a copy of a new contract, some 60 pages in length, for execution. This contract was a compilation of all provisions which the parties had agreed to renew, as well as amendments and other changes. This was the first time in negotiations that any contract changes, including the assistant surgeon matter, were set out in "contract" language. The document contained the assistant surgeon language in dispute here, but it does not appear that the union representatives read this document at that time. Tevis informed Straface that the Union wanted to execute only a memorandum of changes and, on February 2, Respondent accordingly submitted a memorandum of 2 The parties stipulated that, if called as witnesses, other named individuals would testify along the lines ofCutler's and Palmer's testimony. :' Englehart's purpose in attending the meeting was to discuss the impact of the Employment Retirement Income Security Act (ERISA). agreement in the requested format. This memorandum also contained the disputed qualifying language. The Union did not execute the memorandum of agreement at the parties' February 2 meeting. Asserting at that meeting that Respondent had not made its assistant surgeon counterproposal in the terms of the qualifying language stated in the memorandum, Tevis told Straface that the parties had agreed on a 20-percent clause without qualifications. Tevis thereupon asked Straface whether the latter was "reneging" on their agreement. According to Tevis, Cutler, and Palmer, Straface purportedly responded, "I guess I am." Straface, with corroboration by Riley, denied having conceded such "reneging." All parties agree, in effect, that Straface then told the union committee that the language in dispute was the "contract" language for the assistant surgeon item. Tevis told Straface that the qualifying language had never been mentioned in negotia- tions, whereupon Straface sought to refresh Tevis' recollec- tion of Englehart's discussion of the matter at the January 5 meeting. Riley had taken minutes of that meeting and Straface read these minutes to Tevis. Tevis thereupon said he remembered. Respondent refused to sign the memorandum of agree- ment without the qualifying language and the February 2 meeting broke up. By letter the next day, the Union advised Respondent that it would be willing to sign the agreement as written, but with the understanding that the Union would nonetheless file an unfair labor practice charge respecting Respondent's purported reneging on an agreement. The parties executed the memorandum of agreement later that day (February 3). Conclusions Relying on the fact that the disputed restrictions were not again mentioned by the parties after the January 5 meeting until they appeared in the comprehensive contract of January 28 and the memorandum of agreement of February 2, and upon the fact that the January 22 list of changes agreed upon on January 20 did not contain the restrictive language, the General Counsel contends that the parties on January 20 had agreed on an assistant surgeon clause without qualifications. 4 Respondent asserts that the agreements reached on January 20 were only on "broad terms" and that the qualifications were part of its 20- percent counterproposal as a result of the January 5 discussion by Englehart and that any agreements reached on January 20 were subject to drafting in contract language after ratification by the Union.5 May it be fairly said that the record preponderantly establishes that Respondent had agreed on a 20-percent assistant surgeon clause without restriction? I think not, and I see no need to explicate this matter further. What does emerge in my opinion is a mutual misunderstanding concerning inclusion of the qualifying language at issue here, for which misunderstanding neither party is at fault. Cf. Apache Powder Company, 223 NLRB 191, 195 (1976). I accordingly conclude that Respondent did not violate the 4 Tevis admitted that the first qualification dealing with complexity of the surgical service was necessanly implied in any event. 5 The record shows that even after union ratification Respondent agreed to contract changes at the Union's instigation. 400 B. F. GOODRICH CHEMICAL CO. Act by refusing to execute an unqualified 20-percent clause, and I shall recommend that the complaint be dismissed. Upon the foregoing findings of fact, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 6 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 the recommended Order herein shall, as provided in Sec. ORDER 6 It is ordered that the complaint be dismissed. 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. 401