State County Employees Afscme Council 71 (Golden Crest)

STATE COUNTY EMPLOYEES AFSCME COUNCIL 71 (GOLDEN CREST) 49 American Federation of State, County and Munici- pal Employees, Council 71, AFL-CIO and Golden Crest Convalescent Centers, Inc. Case 4-CB-4754 Based on the entire record, and particularly on my ob- servations of the witnesses and their demeanor, I make the following FINDINGS OF FACT 9 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 10 October 1984 Administrative Law Judge George F. Mclnerny issued the attached decision. The counsel for the General Counsel and the Charging Party filed exceptions and supporting briefs. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. i Counsel for the General Counsel and the Charging Party have ex- cepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolu- tions unless the clear preponderance of all the relevant evidence con- vinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd . 188 F 2d 362 (3d Cir 1951) We have carefully exam- ined the record and find no basis for reversing the findings 2 In adopting the judge's conclusions in this case , we expressly dis- avow the statements made in fn 6 of his decision which suggest that the Employer was under some obligation to raise the ratification issue DECISION GEORGE F. MCINERNY, Administrative Law Judge. Based on a charge filed on November 1, 1983, by Golden Crest Convalescent Center, Inc. (the Charging Party or the Company) the Regional Director for Region 4 of the National Labor Relations Board issued a complaint dated December 15, 1983, alleging the Ameri- can Federation of State, County and Municipal Employ- ees, Council 71, AFL-CIO (the Union or Respondent) had violated and was continuing to violate the provisions of the National Labor Relations Act (29 U.S.C. § 153 et seq.) The Respondent filed an answer to this complaint denying the commission of any unfair labor practices. Pursuant to appropriate notice, a hearing was held on the allegations in the compaint before me at Philadelphia, Pennsylvania, on July 2, 1984, at which time all parties were represented by counsel and had the opportunity to introduce testimony and documentary evidence , to exam- ine and cross-examine witnesses, and to argue orally. After the close of the hearing the General Counsel and the Charging Party submitted briefs, which have been carefully considered. 1. JURISDICTION The jurisdiction of the Board here is based on the facts that the Charging Party, a New Jersey corporation oper- ating a proprietary nursing home in Atlantic City, New Jersey, enjoyed, in the year prior to the issuance of the complaint herein, revenues in excess of $100,000, and in that same period purchased goods and products valued at over $50,000 directly from points outside the State of New Jersey. I find that the Charging Party is an employ- er within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Union and the Company had had a collective-bar- gaining relationship going back to at least 1981 Accord- ing to the credible and undenied testimony of Attorney Morris Tuchman, the parties met again in the summer of 1983 for the purpose of negotiating a new collective-bar- gaining agreement. They met in Atlantic City, New Jersey, on June 29, and September 14 and 19 , settling same issues, eliminating others, and failing to reach agreement on still others. At this point, Tuchman was concerned about the outcome of negotiations and called in a representative of the Federal Mediation and Concil- iation Service at a final meeting on October 20 At this October 20 meeting, Tuchman acted as chief spokesman for the Company, and was accompanied by Leo Rosenson, Hank Chaimowitz, and Nat Freidman, owners of the Company , and Bruce Holden, the adminis- trator of the nursing home. The Union was represented by_ Ralph Head, as spokesman, and a employee commit- tee including Geraldine Hobbs and Jackson . ' There is no disagreement that, as described by Tuchman, he and Ralph Head, with the help of the mediator, came to an agreement on all outstanding issues at this meeting. All the witnesses who were there and who also testified in this hearing,2 Tuchman, Holden, and Ann Jackson, agreed that after the parties had come to terms, Tuch- man wrote out a memorandum by hand on a sheet of yellow lined paper and then read the terms twice or three times to the group. The memorandum was then signed by Hobbs and Holden.3 Tuchman wanted to take ' Vernon Moore, the Union's president, had attended the earlier meet- ings, but was not there on October 20 2 Geraldine Hobbs was present at the hearing and did not testify Ralph Head was not present at the hearing and did not testify No reason was advanced to explain his absence 2 The fact that the agreement was signed by Hobbs, who was not al- leged or shown to be an officer of the Respondent Union, is not signifi. cant since, if there was an agreement here, it was reached orally between Tuchman and Head, as noted in Tuchman's testimony, at the October 20 meeting 275 NLRB No. 13 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the memorandum back to New York with him to make copies and then prepare a new contract including the changes made in the memorandum, but Head prevailed on Tuchman to let him have the agreement and said that he would make and distribute copies. The meeting then broke up On the morning of October 21, the administrator of the nursing home, Bruce Holden, was told by Geraldine Hobbs that the employees were unhappy with the agree- ment which had been reached the night before, and that she did not think the employees would ratify this agree- ment. Holden expressed surprise that there was any rati- fication procedure involved. In his words "the under- standing of the parties last night was that it didn't require ratification. Nothing was said about it during negotia- tions." Holden then called Ralph Head, who assured the former that the agreement indeed did have to be ratified. Holden informed Tuchman of these conversations. There were some additional conversations between Holden and Tuchman, and Holden and Moore, showing that neither Holden nor Moore knew who had the copy of the Octo- ber 20 memorandum. Finally, apparently on October 26, Holden again called Head, who indicated that he did not know where the memorandum was as that time.4 Holden informed Tuchman of this and Tuchman filed the charge in the instant case, at the same time informing Head by a letter dated October 27 that he was filing the charge. Head replied on November 1 stating that the document was "misplaced" but reiterating the Union's position as initially stated to Holden by Hobbs that the document in question represented "an agreement subject to the ratifi- cation of the membership."5 As I understand the positions of the parties here, the sole issue before me for decision is whether or not the Company and the Union entered into a binding collec- tive-bargaining agreement on the evening of October 20, 1983. The Union argues that ratification by its member- ship was a condition precedent to the effectiveness of any agreement reached at the bargaining table, and the Company and the General Counsel, in turn, argue that no such condition was expressed by union representa- tives during the negotiations, and that those union repre- sentatives gave the Company to believe that they had au- thority to negotiate an agreement. Beyond the undisputed facts narrated above there are a couple of areas which are controverted. Tuchman and Holden both testified that the question of ratification never arose during the negotiations. Vernon Moore, however, testified that the American Federation of State, County and Municipal Employees International constitu- tion provides that members have the right to vote on all contracts, and that there can be no contract binding on the Union without ratification by the membership. Moore further testified, however, that he had never given a copy of the constitution to the Company here, 4 The memorandum never did turn up and, since Head did not testify, we had no opportunity to investigate the facts or the circumstances sur- rounding its disappearance, or destruction, or whatever In view of my findings and conclusions here, the matter is not significant 5 A ratification meeting scheduled for November 3, according to Head's November 1 letter, apparently was never held and there is no evidence that any company representa- tives were aware of such provisions At the meeting of September 19 both Tuchman and Moore testified that Moore expressed concern that his bargaining committee was not present. Tuchman replied that he had come all the way from New York, and that if Moore was there to negotiate he had authority to ne- gotiate and should be prepared to make proposals and counterproposals. Moore took counsel with Hobbs, who was there, and they continued to negotiate, with Moore making several additional proposals at that session. At that same meeting, according to Moore's testimony, he made a money proposal to Tuchman, saying that if the Company would bring "the membership up to $4.00 an hour and a 10, 10 and 10 three years agreement, I was pretty sure I could go back and get it ratified by the membership" Tuchman did not deny that this proposal had been made, but stated that he did not recall the pro- posal, or any discussion about ratification. Tuchman did, of course, deny generally that the ques- tion of ratification ever arose during the negotiations. However, in response to a question on cross-examination as to why he called the Federal mediator to the October 20 meeting, Tuchman replied that the Company had "made a particular proposal, which I can read back to you, the Union said that the proposal would be totally rejected and that there was no need to take that back " He later added that the Union had said there was no need to take it back, it would create "hostilities." In addition to the testimony of Moore dealing with the events on September 19, the Union presented the testi- mony of Ann Jackson concerning the meeting of Octo- ber 20. Jackson's testimony was rather confused on the timing of events, and I do not find her to be a sufficient- ly reliable witness to use her testimony in my findings or conclusions here. Moore, however, impressed me as a candid and credible witness. His answers were clear and forthright and, in my view, totally consistent with the general practice followed in collective-bargaining negoti- ation, as well as with the inherent probabilities of this sit- uation Moore's testimony of the events of September 19 is corroborated as I see it by Tuchman's testimony The latter, significantly, did not deny that Moore had made a money proposal, saying that he could "go back and get it ratified." This testimony of Moore, which I credit, leads me to conclude that Tuchman was aware that those rep- resentatives of the Union sitting across from him at the table had authority to negotiate. His comments to Moore on September 19 that the latter could negotiate and ad- vance proposals, even though his committee was not present, show that Tuchman understood that the union people had authority to negotiate. But Moore's testimony shows that Tuchman was aware, or reasonably should have been aware, that the authority of the union negotia- tors was limited to negotiations and could not, in the ab- sence of ratification, bind the Union to a contracts 6 I find it difficult to believe that Tuchman, who testified that he rep- resents 50 nursing homes, would not have considered that ratification is a normal and usual part of the bargaining process, and would not have raised the question himself in the course of these negotiations STATE COUNTY EMPLOYEES AFSCME COUNCIL 71 (GOLDEN CREST) 51 Since the authority of the union negotiators was limit- ed, as I have found, and since, as I have further found, the Company's negotiators had been made aware of such limitations; and, since, finally, there is no allegation or showing of bad faith or attempts to deceive on the part of the Union here,7 I find that the agreement negotiated between the parties on October 20 was subject to the Union's ratification process, and the refusal of the Union to honor the agreement since October 20, 1983, is not a violation of Section 8(b)(3) of the Act Joe Carroll Or- chestras, 254 NLRB 1158 (1981). See also Carpenters Local 1476 (Lake Charles AGC), 270 NLRB 1432 fn. 4 (1984). Cases cited by the Company and the General Counsel may be distinguished, factually, from the instant case. In Elevator Constructors Local 8 (National Elevator), 185 NLRB 769 (1970), the Board noted that the union's chief negotiator had stated that the agreement did not have to be taken back to the membership, and that prior agree- ments had not required ratification. Here, of course, there was no statement that ratification was not required and, as noted above, we do not know whether or not the one prior agreement introduced into evidence was in fact ratified. In Painters Local 1385 (AGC of Evansville), 143 NLRB 678 (1963), bargaining history for a period of over 30 years demonstrated that ratification had never been required or mentioned by the union in that case. CONCLUSIONS OF LAW 1. Golden Crest Convalescent Center, Inc. is an em- ployer within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent, American Federation of State, County and Municipal Employees, Council 71, AFL- CIO, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. The Respondent has not committed any unfair labor practices. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed8 ORDER The complaint herein is dismissed. 7 Since the allegations here do not include the issue of whether the Union violated the Act by not actually bringing the October 20 agree- ment to the membership for ratification , I make no finding on that matter Indeed, the thrust of the General Counsel's case is that actual ratification , or a ratification meeting, was irrelevant The matter, in any event, has not been fully litigated 8 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings , conclusions, and recommended Order shall , as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses