Outrigger-Maui

OUTRIGGER-MAUI Sunshine Hotels Limited d/b/a Outrigger-Maui and ILWU Local 142. Case 37-CA-1142 September 20, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On June 9, 1976, Administrative Law Judge David G. Heilbrun issued the attached Decision in this pro- ceeding. Thereafter, the Charging Party filed excep- tions, the General Counsel filed exceptions and a supporting brief, and the Respondent filed an an- swering 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 I 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. i The General Counsel and the Charging Party have 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 resolu- tions 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 revers- ing his findings. No exceptions were filed to the Administrative Law Judge's rationale for finding that Respondent's negotiator, Donald Chapman, had apparent authority to bind Respondent to any applicable consequences of the negoti- ations. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge: This case was heard at Honolulu, Hawaii, on February 26, 1976, based upon a charge filed July 15 I and complaint issued i All dates and the named months hereafter are in 1975, unless indicated otherwise 31 November 11 alleging that Sunshine Hotels Limited d/b/a Outrigger-Maui, herein called Respondent, violated Sec- tion 8(a)(1) and (5) of the Act by refusing to sign , an agree- ment assertedly reached with International Longshore- men's & Warehousemen's Union (ILWU) Local 142, called the Union. Upon the entire record in this case , including my obser- vation of the witnesses, and upon consideration of briefs filed by General Counsel and Respondent, I make the fol- lowing: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, a corporation, operates a tourist hotel on the Island of Maui, Hawaii, annually deriving gross reve- nue in'excess of $500,000 and annually purchasing goods and services valued in excess of $50,000, which originated outside Hawaii. I find Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5). II. THE ALLEGED UNFAIR LABOR PRACTICES Facts and Discussion In February the Union was certified for a bargaining unit inclusive of maintenance employees, maids, and laun- dry employees at Respondent's hotel .2 The Union's'secre- tary-treasurer promptly transmitted written proposals for an initial contract, offering simultaneously on behalf of the Maui Division to meet and confer. By arrangement a first meeting was held at the Union's Wailuku, Maui, hall with Business Agent John Arisumm, a unit chairman of the rep- resented employees, Chapman, and Hotel Manager Donna Woods in attendance. The Union's 30-page proposal, com- prising comprehensive economic and noneconomic terms and conditions of employment organized into-41 distinct subjects (including 3 as exhibits), formed the basis of dis- cussion. Arisumi and Chapman functioned as respective spokesmen in negotiations covering the document "line by line, page by page ... section by section." The process continued through subsequent dealings, the chronology and significance of which are in dispute. Arisumi testified that a second meeting occurred March 28 (following an initial one March 10) and five issues re- mained unresolved at its conclusion. He recalled then tele- phoning Chapman on March 31 and expressly resolving each issue by concession, modified concession, or deferral. Anticipating departure to the mainland on April 4, Arisu- mi sent his marked copy of the proposal to the Union's 2 The facility is leased by Respondent in order to provide guaranteed accommodations for persons purchasing tour packages from Travel Enter- prises of Park Ridge (Chicago area), Illinois, This entity controls Respon- dent's operations on the Island of Maui and its owners direct Donald Chap- man, Respondent's "top operating officer in Hawaii" (titled vice president), in matters of business policy 226 NLRB No. 9 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Honolulu office "with instructions" for its printing and di- rected persons at his own office to call Chapman "as soon as the contract is ready." Arisumi returned April 16 and handcarried the still--undelivered contract, as revised, to Chapman's secretary. His next contact on the matter was by telephone about May 1, at which time Chapman stated his home office "got mad with him" concerning "the con- tract that was negotiated." Subsequent telephone calls into early June were fruitless and on June 6 Arisumi wrote Chapman requesting "follow thru with whom ever is re- sponsible" regarding signature and return of "our collec- tive bargaining agreement." 3 Chapman's version is that three meetings occurred on March 3, 13, and 29. He confirmed the Union's initial pro- posal was a "tool" whereby negotiations proceeded with "checkmarks" and "notes" used largely to reflect intent. Chapman testified that upon completion of the third meet- ing only the subjects of separation allowance and funeral leave remained unresolved. He recalled that Ansumi un- dertook to have typing done in accordance with discussion to date, and that around April 17 he received a quantity of revised copies .4' Arisumi testified that on the subject of separation allow- ance Chapman sought only to delete certain phraseology reading "for reasons clearly beyond his own control" (which was done), and respecting funeral leave Chapman agreed without question. Contradicting this, Chapman tes- tified he "did not agree to pay somebody eight days' pay after a year's employment, after I had given them a vaca- tion." He added that funeral leave was discussed "quite in depth" but, language on`the subject appearing in the re- vised document was "not what we agreed on," " primarily as to relative's' death occurring while an employee was on paid vacation. . General Counsel's case is premised on conceded'authori- ty of Chapman "to negotiate . . . the best deal that I could," coupled with asserted agreement on all matters constituting a typical, integrated collective-bargaining agreement. The implementation ,of wage rates plus other basic terms and conditions of employment is also contend- ed as showing that agreement was both reached and ac- knowledged. There is no real doubt that Chapman exhib- 3 Arisumi wrote a brief followup letter dated June 27 and conversed by telephone with Chapman on July 9, learning at that time of extensive'"ques tions" which had come into existence These "questions" were in fact the contents of a 12-page letter sent by Gerald Mann, president of Travel Enter- prises, to Chapman as comments on the "draft agreement." Chapman fur- nished Arisumi a copy of the letter, the charge in this matter followed shortly Arisumi testified that he made no bargaining request subsequent to March 31 since "we concluded negotiations " about that time:' ° The Union's original proposal and the revision are in evidence as G C. Exhs 7 and 8, respectively. Structurally there is great similarity between the two, with the revised document slightly shorter at 26 pages (including only two "exhibit" subjects, one of them tailored specifically to classifications of the certified bargaining unit with scheduled wage rates to be effective from April 1) Three subjects (dental plan, medical examinations , and training program) are totally deleted. Group life insurance and pension plan are, per understanding, to be discussed during term of the agreement The most visible modification relates to, deletion of "regular part-time" employees as a basic class to be covered by the agreement This deletion, leaving only "regular fulltime" and "casual" as the classes to which much of the contract would relate, resulted in deliberate language change for sections (as renum- bered) 5, 6, 11, 13, 14, 17, and 18. ited apparent-authority in dealings with Arisumi, sufficient to bind Respondent to any applicable consequences of the negotiations. Chapman repeatedly reaffirmed the existence of authority "to negotiate a contract" However, the total theme of such testimony tends to qualify this function by Chapman perceiving his role subject to "final approval" of a Chicago owner after he had carried discussion " as far as we could go." It is fair to believe that Chapman, a novice to the collective-bargaining process, considered his part limited to a first reading or shake-out of the Union's pro- posed contract language along lines considered operation- ally sound .5 But it is not Chapman's subjective motivation, nor internal controls within Respondent's business organi- zation as to which functionary might sign a negotiated col- lective-bargaming agreement, which controls the question. If Chapman's conduct, viewed at the material point in time of March 31 beyond which Arisumi sought no further ne- gotiations, amounted to full agreement in every material respect, then Respondent cannot escape the legal signifi- cance that attached by operation of law. Cf. Helen S. Pas- ko, d/b/a American Steel Line Co., 210 NLRB 811 at 813 (1974). Summarizing, there is no viable issue of agency- type authority present, and evaluation on the merits is con- fined to classic factors of this type case .6 The true question is how matters stood at the end of March? The focus must relate to whether an agreement was "complete," without "mechanistically" limiting appro- priate analysis. Cf. Trojan Steel Corporation, 222 NLRB 478 (1976). First, the wide disparity in experience should be noted. Arisumi functioned in a familiar role, seeking to win established "guidelines" for the benefit of newly repre- sented employees. Chapman, having divided responsibili- ties that left only 5 percent of his working time for hotel affairs, participated with a faulty notion that what might be produced was only tentative. Although this was an erro- neous posture, it is merely academic if the requisite com- pleteness of a contract is not established. The case contains elements of both Southwest Janitorial and Maintenance Cor- 5 This motivation is apparent from the positions taken by Chapman re- specting major facets of the proposal A three-tiered grouping of employees was simplified to two ; distinguishable only by `the convenient test of wheth- er "normally" working at least 20 hours per week. Sophisticated subjects such-as the dental plan, medical examinations, and reimbursable employee training were eliminated early without notable controversy . The matters of group life insurance and pension plan, each normally requiring extensively descriptive language, were totally deferred, while agreement on the employ- ee medical plan excluded family members from its noncontributory feature. In contrast to this typical shaving of union proposals, Chapman volunteered the existing practice of "free passages/complimentary transportation" for employee vacation travel to the locale of other Travel Enterprises hotels. Phrasing in Chapman's investigatory affidavit as to scope and perma- nence of his bargaining authority relates to guidance from his principals while meeting with them in mid-March. It is unnecessary to dwell on this point since under either version of the bargaining chronology the parties met face to face another time after this episode, and Chapman made no attempt to limit the apparent authority he projected throughout the deal- ings. While not significant to ultimate resolution , I credit Chapman's recollec- tion that a total of three bargaining meetings occurred His testimony on the point was persuasive and he coupled this background with collateral indica- tors supporting the memory. I reach this conclusion mindful of a showing in the record that Chapman mistakenly named Kahului, a city adjoining Wai- luku, as the meeting place. Additionally the face of G.C. Exh 3, presumably original correspondence to Chapman, shows penciled notation anticipating a meeting on March 27, a date no one now fixes as actually involved. OUTRIGGER-MAUI poration, 205 NLRB 1061 (1973), and Texas Cinema Corpo- ration, 208 NLRB 226 (1974). In Southwest Janitorial a course of three negotiating sessions spanned approximately 5 weeks. The parties "went through the contract page by page, each side proposing and accepting changes" (first two sessions only) and dealt at the final meeting with a "remaining four issues." In the face of ambiguity re- specting the authority of the employer's participating offi- cial, and contention that only conditional agreement was reached pending legal review of phraseology, it was con- cluded that events at the-final negotiating session had pro- duced a "valid collective agreement" giving rise' to an obli- gation that it be executed by signing. Rationale of this case was colored by respondent's procedural machinations, and a showing that mediation assistance appeared to dispose of "outstanding differences" after the "three long sessions [had] hammered out" the contract. Such elements were of obvious influence in the holding, which summarized by ref- erence to "all that has transpired herein." Texas Cinema, seemingly more germane, was a case in which an 8(a)(5) issue was resolved on finding that the parties (with respon- dent represented by an official having "no prior experience with unions or union contracts") did not reach "a complete meeting of the minds on the proposed contract and/or that there was a consensual contract agreement." As in Texas Cinema this case lacks a meeting of the minds on signifi- cant terms of employment, the subjects of separation al- lowance and funeral leave.8 The primary approach to this factual issue is the bargainers' respective testimony. I am more impressed with Chapman's here than with Arisumi's. The former was emphatic, consistent, and coupled his claim in both instances with a rationale for resisting liberali- ty of what the Union proposed. Arisumi's flat contradic- tion regarding funeral leave and his comprehension of as- sent to the separation allowance proposal with only a seven-word deletion in subparagraph (a) (exclusive of stan- dard modification clearing "regular part-time" from the subject) is not credited. I do so essentially because overall tenor of the evidence shows Chapman having better recall of bargaining discourse and secondary indicators do not provide the measure-of support claimed by General Coun- sel. Clerically, a perfect deletion of the lined out phrase "for reasons clearly beyond his own control" is found upon comparing the proposed to the revised document as to se- paration allowance. Respecting funeral leave, Chapman's own draft intriguingly shows "OK" next to the subject, a marking found similarly on that page for the following sub- jects of jury duty and discharge which were each un- 8 I reconcile Ansumi's testimony that he resolved what to his perception was five remaining issues by telephone on March 31 by believing that he did so while oblivious to, or forgetful of, Chapman's position on the additional two subjects. 33 changed between the two complete contract versions. But this circling of language and its association to a question mark in Chapman's copy of the proposal embraces the 8- days-pay feature as well as objection to how a permanent termination was defined. There is no reason to doubt that this contemporary penciled marking does not harmonize with Chapman's testimony on the point. Further, the "OK" as to funeral leave is coupled with a discernible penciled checkmark permitting the conclusion that Chapman did, as he described, consider the subject protested with sufficient emphasis that Arisumi was expected to change it by ex- cluding bereavement benefits from a time of vacation. Fi- nally, the difficult intricacies of contract revision are illus- trated by G.C. Exh. 10 in which, for subparagraph (d), Arisumi's penned marking would yield the phrase "or disa- bility retirement benefits under the any [sic] Company pen- sion plan" while the actual revision reads "or disability retirement benefits." In essence the Union sought to progress too far and too fast .9 It attempted to transmute ethereal dialogue into a clean contract draft assertedly representing the full and complete agreement of the parties. While I find that Chapman's testimony is self-serving and not free of vague- ness, overall it is the better source of learning what actually occurred. When he testified, to never (by March 31) having seen an "original agreed-upon contract," the only fair meaning is expectancy that such must contain his position on both separation allowance and funeral leave. The rule of the case is whether meeting of the minds occurred and I am unconvinced that prima facie showing was made in this regard. Aside from the credibility resolution, no attempt was made to corroborate Arisumi's version of what Chap- man supposedly did not dispute. I note that a passive union adherent was present at one or more of the sessions, and such person was not called nor was explanation ad- vanced of unavailability. In such circumstances extensive implementation of other provisions, as was done, does not demonstrate a full agreement. Accordingly, I render a conclusion of law that Respon- dent has not violated Section 8(a)(1) or (5) as alleged and issue the following recommended: ORDER10 The complaint is dismissed in its entirety. 9 The disputed factual issue of whether Ansumi ever tendered a contract across the bargaining table for signature is immaterial to decision here. 10 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.