Construction & General Laborers, No. 304

CONSTRUCTION & GENERAL LABORERS, NO. 304 Construction and General Laborers , No. 304, Laborers International Union of North America, AFL-CIO and Office and Professional Employees Union Local No. 29, AFL-CIO. Case 20-CA-11124 February 16, 1977 DECISION AND ORDER BY MEMBERS FANNING , PENELLO, AND WALTHER On November 4, 1976, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, Charging Party and the General Counsel filed exceptions and supporting briefs. 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 herein be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge: This case was heard at San Francisco, California, on September 27, 1976,1 based on a charge filed February 26, and complaint issued April 16, alleging that Construction and General Laborers, No. 304, Laborers International Union of North America, AFL-CIO, herein called Respondent, violated Section 8(a)(1) and (5) of the Act by direct bargaining with employees and by refusal to sign an agreement assertedly reached with Office and Professional Employees Union Local No. 29, AFL-CIO, herein called the Charging Party. Upon the entire record (including Respondent's oral argument), my observation of the witnesses, and consider- ation of General Counsel's posthearing brief (the Charging Party waived such filing), I make the following: I All dates and named months are in 1976, unless indicated otherwise. 2 Respondent maintains its office and principal place of business in Oakland, California, functioning with a purpose of representing laborer trade employees with respect to wages, rates of pay, hours of employment, or other terms and conditions of employment. It is a local affiliate of the 228 NLRB No. 31 247 Findings of Fact and Resultant Conclusion of Law The case concerns Respondent in its role as employer of office clericals represented by the Charging Party.2 Con- tractual relations have long existed between these parties by virtue of periodic negotiations between Alameda County trade union office employers and the Charging Party. The last such contract was effective until November 1, 1975, and bargaining toward a new one commenced then with individual sessions extending through January. The cus- tomary format existed with 56 employing labor organiza- tions participating in a joint manner for their mutual convenience under auspices of a negotiating committee; this group faced by the Charging Party's negotiating team, including Representative Louis Celaya. Respondent's presi- dent, Anthony Schiano, and business manager, John King, were members of the Employer's negotiating committee. On January 28 tentative settlement was reached with final drafting of language promptly undertaken, producing a complete 15-page document to represent the 1975-77 period. Employees represented by the Charging Party ratified on February 4. Participating trade union office employers met February 9, with at least King present for Respondent, and approved a committee report recom- mending adoption of the tentative settlement. On February 18, Celaya transmitted the contract document to each employer for signature. Since at least 1966, Respondent has voluntarily paid its office employees $20 per week more than wage scale set forth in applicable agreements over that span of time. The subject of this override was not raised during bargaining. On or about February 12, Respondent's secretary-treasurer, David Melendrez, spoke with Bookkeeper/Office Manager Edith Withington, stating he had just received a summary of benefits and would not pay the $15 weekly wage increase contemplated in the new contract. Withington suggested other office employees be so advised. That afternoon Melendrez spoke to them as a group, attributing his intention to Respondent's bad financial condition while intimating need to reduce total hours of work through probable reduction in force. About that time, Celaya had several telephone conversations with Melendrez in which the latter repeatedly declined to sign the proposed contract or implement any wage increase because of claimed inability to pay. In all regards other than salary controver- sy, Respondent complied with provisions of the newly negotiated agreement. On February 20, Respondent's officers met with Celaya and all office employees (including one from the Hayward branch office) by arrangement, proposing a shorter workweek in lieu of layoffs. The employees caucused with Celaya, countering that should Respondent grant the $15 pay increase as expected a 4-day workweek would be tried experimentally. This was refused, compensation of office employees was not changed, and two were laid off. Here the full context of bargaining must be understood. See United Brotherhood of Carpenters and Joiners of Amen- International Union, to which it annually remits at the Washington, D.C, headquarters per capita membership dues and initiation fees in excess of $50,000. I find that Respondent is an employer within the meaning of Sec. 2(6) and (7) of the Act and the Charging Party a labor organization within the meaning of Sec. 2(5). 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ca, Local Union No. 347, AFL-CIO (Wabash Valley Contractors Association), 225 NLRB 414 (1976). While orientation of these parties imbued the negotiation process with measured formalism, the case does not call up principles of association bargaining . The binding nature of true associationwide dealings was not present, and counsel stipulated precisely to "no formal employer association, and that each union [in the capacity of an employer] is required to sign a contract separately." Evidence shows that side agreements were known between the Charging Party and particular locals of the vicinity, while at least two other trade union office employers had long practiced overscale wage payment. Organization of an employer negotiating committee drawn from the many participating organiza- tions, mediation assistance furnished by the area labor council, and disciplined ritualism of having plenary assent to the negotiating committee's final product does not create association-type bargaining where none was intended. This leads to the key issue of whether agreement was fully reached. Obviously it was not, because Celaya understood the various local unions would present any tentative settlement to their own executive boards for approval. This could not be more clear than from his answer, "They would take the contract back for ratification and we would do the same." The oddity of why testimony concerning this process was not advanced is not my concern; suffice it to note motivation rooted in philosophy and conscience with residual significance that needful ratification by Respon- dent was not accomplished. On the contrary, its financial official promptly and consistently maintained that past practice of overscale salary benefits would not continue because of changing times . Section 8(d) of the Act cannot be read in a vacuum, nor its fair meaning disregarded. It is in this sense that full agreement was not reached because Respondent queried whether the new, retroactively effec- tive, minimum wage scales covering four office classifica- tions, read in connection with further unchanged phraseolo- gy from article 11, (b), that "no employee shall suffer any reduction in wages and conditions as the result of the signing of this Agreement," meant it need increase weekly salaries by $15 or not at all. This circumstance leaves the fruits of bargaining incomplete with respect to Respondent, 3 Respondent persuasively argues Celaya demonstrated during the February 20 meeting that, even then , circumstances had not yielded the Charging Party a contractually assured feature of continuing $20 overscale weekly salaries to employees. 4 In the event no exceptions are filed as provided by Sec. 102.46 of the and displays abiding nonmeeting of the minds on this important point. The final hurdle to agreement was executive board ratification and this patently has not occurred, leaving the parties where they were in February with respect to statutory obligation under Section 8(a)(5) as related to Section 8(d).3 Actually a two-phase process was necessary to consum- mate this course of bargaining. The first was achieved on February 9, when an economic package and expanded phraseology won general acceptance . The final step was reciprocal ratification. Here it foundered because Melen- drez' more intimate involvement with financial affairs exposed the unresolved point of whether Respondent would, in practical terms, be increasing clerical wages by $15 per week or whether a cushioning effect of article 11, (b), permitted the phenomenon of simultaneously comply- ing with new wage scales but without corresponding increase in actual payroll costs . The parties are arguing over a matter of mixed semantic and conceptual dimensions. They are left without agreement on the matter ; in principle so much as had Respondent refused to accede on any less abstruse subject. The allegation of direct bargaining with employees has not been established, because evidence shows only advice by Melendrez of Respondent's position coupled with, at most, a prediction that forced continuation of the salary bonus would require an economic layoff. The incident originated with routine direction to the person in immedi- ate charge of payroll functions. Subsequent grouping of all employees later that day was at her suggestion, and in any event would not have converted essential nature of the pronouncement. Solicitation of responsive comments from the group was not made nor did the episode intrinsically undermine the Charging Party's representative status. Accordingly, I render a conclusion of law that Respon- dent has not violated Section 8(a)(1) and (5) as alleged and issue the following recommended: ORDER4 The complaint is dismissed in its entirety. 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.