Newtown Corp.

350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Newtown Corporation and Teamsters Local Union 651, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 9-CA-21115 16 June 1986 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN Upon a charge filed by the Union 6 August 1984,1 the General Counsel of the National Labor Relations Board issued a complaint 30 August against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act. The complaint alleges that the Union is the ex- clusive bargaining representative of the Company's employees in the appropriate unit; on 17 July the Union and the Company reached a full and com- plete agreement concerning terms and conditions of employment; since 17 July the Union has re- quested Respondent to execute a written contract embodying the agreement; and since 2 August the Respondent has refused to bargain with the Union by refusing to execute a written contract embody- ing the 17 July agreement. On 18 September the Company filed an answer, admitting in part and de- nying in part the complaint allegations. On 31 October the General Counsel filed a Motion for Summary Judgement. On 5 November the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The Company filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment Rule 56(c) of the Federal Rules of Civil Proce- dure provides that summary judgment shall be granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."2 We have reviewed the instant matter in light of this standard and conclude that the Gener- al Counsel's Motion for Summary Judgment should be granted. The allegations and filings in this case disclose the following undisputed facts. The Union was cer- ' All dates are 1984 unless otherwise indicated. z See Lake Charles Memorial Hospital, 240 NLRB 1330 (1979). tified in February 1980 as the exclusive collective- bargaining representative of the unit employees. Beginning April 1982 the Union and the Respond- ent held numerous bargaining sessions attempting to negotiate a contract. By their 13 July bargaining session the parties had agreed to a proposed con- tract except for two provisions concerning union security and contract duration; the Union proposed a union-shop provision and a 3-year contract, while the Respondent offered an open-shop provision and a 1-year contract. Before the meeting ended, Union Respresentative Rex Edwards stated he would present the Respondent's proposals to the bargain- ing unit members for a vote and notify the Re- spondent of the outcome. There is no evidence of allegations in the record that the proposed con- tract's express terms required ratification or that the parties had ever agreed to a ratification require- ment. At a meeting held 16 July all 10 bargaining unit members voted on the Respondent's proposal. On 17 July Edwards informed the Respondent that the unit ratified the contract by a vote of five for and five against. On the same day, the Union sent the Respondent a draft of the contract and a letter re- questing that the parties meet as soon as possible to sign the contract. The Respondent immediately expressed doubt that the parties were authorized to enter into a binding agreement absent a majority vote of the union membership. The Respondent reiterated its doubt in a letter sent to the Union 20 July, in a meeting with the Union 1 August, and in a second letter to the Union dated 2 August. In its 2 August letter the Respondent expressed concern that "in a vote of 100 percent of the members of the unit, a majority failed to approve the proposal submitted by the company and ... union . . . ." The Re- spondent's letter further stated that the Internation- al Union's constitution and Local Union's bylaws "embody the idea that a majority must approve the ratification of contract proposals," and that the Union was violating the Act by insisting on the agreement's execution absent a majority vote.3 The Respondent has since refused to sign an agreement. 0 The Local Union's bylaws, art. VII, sec 3, state. Members at each separate division, craft, or place of employment authorized to hold separate meetings may vote separately on dues and assessments which may apply to them alone, if higher than the mmimum applicable to the general membership, and may, when au- thorized by the Local Union Executive Board , vote separately on approval or disapproval of, or on matters arising under, contracts ap- plicable only to them, and strikes or other activities in which only they will participate The International's constitution, art. XII, sec 1, states. Contracts may be accepted by a majority vote of those members involved in negotiations and voting, or a majority of such members Continued 280 NLRB No. 38 NEWTOWN CORP. The Respondent admits it refused to execute a written agreement with the Union but denies the parties reached a full and final agreement, contend- ing that by deciding to take the Respondent's final proposals to a bargaining unit membership vote, the Union made the agreement's effectiveness con- tingent upon the unit members' ratification. The Respondent further argues it is excused from its ob- ligation to execute a written contract because its proposals were not ratified by a majority vote of the unit membership, as it contends the Union's constitution and bylaws require. We find no merit to the Respondent's contentions. It is well settled that when parties have reached an agreement concerning terms and conditions of employment, one party's refusal to reduce to writ- ing and to sign the agreed-upon contract violates the Act.4 The Respondent does not dispute that it made a contract offer to the Union on 13 July, and on 17 July the Union conveyed acceptance by in- forming the Respondent the contract had been rati- fied. In view of the Board's holdings that internal union matters cannot effect the validity of collec- tive-bargaining agreements, the Respondent's argu- ment that the Union's constitution and bylaws pro- hibit it from executing an agreement absent a ma- jority vote is incorrect as a matter of law.5 Electra- Food Machinery, 241 NLRB 1232, 1233 (1979), enfd. 621 F.2d 956 (9th Cir. 1980); M & M Oldsmo- bile, 156 NLRB 903, 905 (1966). As the Board stated in Martin J. Barry Co., 241 NLRB 1011, 1013 (1979):6 Furthermore, even if ratification were a pre- condition, we find that Respondent has no standing to question the validity of the proce- dures used by the Union in ratifying the agree- ment. It is well settled that ratification is an in- ternal union matter which is not subject to question by an employer. Here, there was a meeting at which a vote was taken, and the may direct further negotiations before a final vote on the employer's offer is taken , as directed by the Local Union Executive Board. When, in the judgment of the Local Union Executive Board, an em- ployer has made a final offer of settlement, such offer must be sub- mitted to the involved membership and can be rejected only by a two-thirds (2/3) vote of the members involved in the negotiations and voting or responding to a referendum mail ballot If a settlement cannot be reached, the Local Union Executive Board shall order a secret ballot to be taken and it shall require a two-thirds (2/3) major- ity of those members of the Local Union involved in such negotia- tions and voting to adopt a motion to stoke 4 H J. Heinz Co v NLRB, 311 U S 514 (1941); K Mart Corp., 238 NLRB 1173, 1179 (1978) 5 Although we do not rely on our interpretation of the constitutional provision in question, an examination of the relevant clause persuades us that the Respondent's interpretation is incorrect, as the clause states that a two-thirds bargaining unit vote is required to reject an employer's final offer. See fn 3, above s See also Childers Products Co, 276 NLRB 709 (1985). 351 Union concluded that the meeting and vote met its standards for a valid ratification vote. . . . Respondent may not raise questions concerning the Union's internal procedures in order to avoid its obligation to sign the agreed-upon contract. For this reason, it is un- necessary and inappropriate for us to consider whether, in fact, the procedure followed by the Union was consistent with its normal ratifi- cation procedure. Accordingly, we find that by refusing to execute a written contract embodying the party's agree- ment the Respondent has violated Section 8(a)(5) and (1) of the Act. We therefore grant the General Counsel's Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a Kentucky corporation, has been engaged in the operation of a solid waste transfer station at its facility in Lexington, Kentucky. During the year preceding the issuance of the com- plaint, a representative period, the Company pro- vided refuse transfer services valued in excess of $50,000 for the Lexington Fayette Urban County Government, which meets the Board's direct non- retail standards and which is engaged in interstate commerce. We find that the Company is an em- ployer 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 Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification On 7 February 1980 the Union was certified as the collective-bargaining representative of the em- ployees in the following appropriate unit: All production and maintenance employees employed by Newtown Corporation at its Lexington, Kentucky facility, including truck drivers, litter pickers, maintenence men and traffic controllers, but excluding all office cler- ical employees and all professional employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Request to Bargain and the Respondent's Refusals Since 17 July the Union has requested the Com- pany to execute a written collective-bargaining agreement embodying the terms of the parties' 17 July agreement, and since 2 August the Company has refused. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing since 2 August to execute a written collective-bargaining agreement with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Company has engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, by refusing since 2 August to execute an agreed-upon contract with the Union, we shall order it to cease and desist and, upon request, to execute a written collective- bargaining agreement embodying the parties' 17 July agreement and to give retroactive effect to the agreement from the effective date of the contract' and make employees whole for any losses they may have suffered as a result of the failure to exe- cute the agreement, with such amounts to be com- puted in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). ORDER The National Labor Relations Board orders that the Respondent, Newtown Corporation, Lexington, Kentucky, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to execute a written collective-bar- gaining agreement embodying its 17 July 1983 agreement with Teamsters Local Union 651, affili- ated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 4 As none of the allegations or filings in this case disclose the effective date of the parties' contract, we leave the determination of that matter to the proceeding's compliance stage. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, promptly execute and give retro- active effect to a written collective-bargaining agreement embodying its 17 July agreement with the Union as the exclusive representative of the employees in the following appropriate unit: All production and maintenance employees employed by Newtown Corporation at its Lexington, Kentucky facility, including truck drivers, litter pickers, maintenance men and traffic controllers, but excluding all office cler- ical employees and all professional employees, guards and supervisors as defined in the Act. (b) Make employees whole for any losses they may have suffered as a result of the failure to exe- cute the agreement in the manner set forth in the remedy section of this decision. (c) Post at its facility in Lexington, Kentucky, copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Re- gional Director for Region 9, after being signed by the Respondent's authorized representative , shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted . Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. a If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to execute a written collec- tive-bargaining agreement embodying our 17 July 1983 agreement with Teamsters Local Union 651, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers NEWTOWN CORP. 353 of America as the exclusive representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, promptly execute and give retroactive effect to a written collective -bargaining agreement embodying our 17 July agreement with the Union as the exclusive representative of the employees in the bargaining unit. All production and maintenance employees employed by us at our Lexington, Kentucky facility, including truck drivers, litter pickers, maintenance men and traffic controllers, but excluding all office clerical employees and all professional employees, guards and supervisors as defined in the Act. WE WILL make you whole for any losses you may have suffered as a result of the failure to exe- cute the agreement, with interest. NEWTOWN CORPORATION