Automobile Mechanics Local No. 701, International Association Of Machinists And Aerospace Workers, Afl-Cio

1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Automobile Mechanics Local No. 701, International Association of Machinists and Aerospace Work- ers, AFL-CIO and Avis Rent A Car System, Inc. Case 13-CB-11076 31 July 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 8 April 1986 Administrative Law Judge Claude R. Wolfe issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed answering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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, fmdings, I and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Automobile Mechanics Local No. 701, International Associa- tion of Machinists and Aerospace Workers, AFL- CIO, its officers, agents, and representatives, shall take the action set forth in the Order. 1 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The judge inadvertently stated that Rourke called Staniszewski on the morning of 17 August 1985 rather than 27 August 1985 and that Rourke submitted a typed draft to Local 702 rather than Local 701. Robert Bloch and Howard Malkin, Esqs., for the General Counsel. William A. Widmer III, Esq., for the Respondent. Michael A. Curley, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge. This case was litigated before me at Chicago, Illinois, on 28 January 1986 pursuant to charges filed on 12 and 20 Sep- tember 19851 and complaint issued 25 October. The complaint alleges that Automobile Mechanics Local No. 701, International Association of Machinists and Aero- space Workers, AFL-CIO (Respondent, Local 701, or 1 All dates are 1985 unless otherwise noted. the Union) violated Section 8(b)(3) of the National Labor Relations Act (the Act) about 9 September by refusing to execute a written collective-bargaining contract em- bodying a full and complete agreement reached between Local 701 and Avis Rent A Car System, Inc. (Avis) about 28 August. Respondent denies the commission of unfair labor practices. After considering the entire record, the comparative testimonial demeanor of the witnesses, and the able post- trial briefs of all parties, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Avis, a corporation engaged in the retail rental of automobiles at O'Hare International Airport, Chicago, Il- linois, derived gross revenues in excess of $500,000 from its rental automobile business during the calendar year preceding the issuance of the complaint, a representative period, and, during the same period, purchased and re- ceived goods and materials valued in excess of $5000 at its Chicago, Illinois facility which came directly from outside the State of Illinois. Avis is now, and has been at all material times, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE For at least 16 years prior to the events under consid- eration in this case Avis and Local 701 had entered into successive collective-bargaining agreements covering a unit of Avis employees.2 The latest of these agreements expired on 30 April. Bargaining meetings for a new agreement were held on 27 March, 9 April, and 23 August. Gerald Rourke was chief spokesman for the Avis bargaining team. Gene Staniszewski was the chief and only bargainer for Local 701. The negotiations concentrated on wages, cost-of- living adjustments, a two-tier wage scale, the subcon- tracting of new-car preparation, and a 7-day workweek. It appears that in this case, as they had in the past, the parties followed the Union 's collective-bargaining agree- ment with employers in the trucking industry, and con- fined the negotiations to concerns peculiar to Avis. After discussing the five topics enumerated above at each meeting, Rourke presented Staniszewski with a final pro- posal on 23 August. Staniszewski agrees that this propos- ' The bargaining unit is alleged and admitted to consist of the follow- mg Avis employees: All automotive machinists, mechanics, semi-skilled workers, lot men, apprentices and all other employees employed by the Employer at its Chicago, Illinois, facility who come under the jurisdiction of Re- spondent, and who are covered by and described in a collective-bar- gaining agreement between Respondent and the Employer effective by its terms for the period from May 1, 1982 to April 30, 1985, ex- cluding office employees, guards and supervisors as defined in the Act. 280 NLRB No. 149 MACHINISTS LOCAL 701 (AVIS RENT A CAR) al reflects what the parties had discussed. It reads as fol- lows: COMPANY FINAL OFFER (1) Wages: (a) Employees hired prior to Aug 23, 1985 Mechanic 5-1-85:. 10$/hr. 5-1-85:.25*/hr. 5-1-85:.25$/hr. (b) Employees hired after Aug 23, 1985 Mechanic $9.25-8/85 9.50-5/86 9.75-5/87 Semiskilled 7.00-8/85 7.25-5/86 7.50-5/87 (2) COLA-IS ELIMINATED (3) SEVEN-DAY WORKWEEK IS ESTAB- LISHED ON A SENIORITY BID BASIS. This means that employees may be scheduled any five (5) consecutive days of work with two (2) consecu- tive days off. (4) NEW-CAR PREP SERVICE FUNCTIONS (SEE ATTACHMENT) The attachment to the proposal lists the functions in- cluded in new-car preparation. Staniszewski told Rourke that he would take the pro- posal to the employees for a vote. Shortly thereafter on the same day the unit employees assembled in the Avis conference room at Staniszewski 's request and with Avis' permission. Staniszewski credibly testified that the Avis' final proposals in 1973, 1976, 1979, and 1982 had been submitted to the employees for a ratification vote with the employees assembled with Avis' permission on Avis' premises. Rourke's testimony that a ratification vote was never taken before to his knowledge and Avis' city man- ager Dan Krezel's claim that to his recollection Local 701 had never conducted a ratification vote before were not nearly as certain or impressive as Staniszewski's re- cital. There was simply no reason for Staniszewski to invent a new procedure for 1985. Krezel agrees that he understood Staniszewski was taking the proposal to the employees for a ratification vote. Rourke's claim that as far as he was concerned the employee vote had nothing to do with whether there would be an agreement is not credited. The employees rejected Avis' final proposal by a 13- to-0 vote, and voted to strike by an 11-to-2 margin. Stan- iszewski noted the employees' comments , and told Krezel the proposal had been rejected and the employees wanted a larger wage increase the first year, retention of cost-of-living adjustments, no 7-day workweek, and re- strictions on the work performed by new-car preparation contractors. Krezel gave Staniszewski's message to Rourke that evening by telephone. 1313 Rourke called Staniszewski on the morning of 17 August. After some discussion, Rourke revised his final offer. The revisions were (1) a raise to a 25-cent first- year wage increase for employees hired before 23 August; (2) a 40-hour guarantee during the 7-day work- week with overtime pay at 1-1/2 times regularly hourly pay for any hours worked over 8 per day and for the sixth day in the workweek and with double time for the seventh day; (3) an increase in recall rights from 18 to 24 months; and (4) a provision that subcontractors doing new-car preparation would do no drilling for any instal- lation and would do no radio repair or installation. Stan- iszewski told Rourke he agreed with the revised propos- al and would take it to the employees for a vote. The next day, 28 August, after receiving permission from Krezel, Staniszewski met with unit employees in the Avis conference room. He presented the Company's revised final proposal. The employees promptly rejected it by a vote of 10 to 4. Staniszewski then told the em- ployees that he would take a strike vote, and that if they did not vote to strike by a two-thirds majority that meant they had accepted the proposal. With this advice the employees voted 9 to 5 to strike. Emerging from the meeting Staniszewski met Jerome Bernacki, the mainte- nance and damage manager for Avis, and told him the parties had a 3-year contract. Staniszewski then met Krezel and told him they had a contract . Krezel immedi- ately called Rourke and told him the parties had a con- tract. Rourke then revised the expired collective-bargain- ing agreement to reflect the negotiated changes, typed it, and sent it to Staniszewski on 9 September with a cover letter advising Staniszewski to sign and return copies to Rourke "if you find them free of error." This letter and draft agreement were accompanied by a side letter re- flecting an agreement on medical and dental insurance reached by Rourke and Staniszewski over the telephone on 4 or 5 September. Dean Kocina, deputy in charge of Local 701, advised the Company by mailgram of 9 September , received 10 September, as follows: THIS WILL SERVE AS RENEWED OFFICIAL NOTICE THAT YOUR COMPANY REMAIN BOUND BY TERMS AND CONDITIONS OF THE MAY 1 1982 THROUGH MAY 1 1985 LABOR AGREEMENT SIGNED BY YOURSELF APRIL 27TH 1983, UNITL SUCH TIME AS A RECOG- NIZED SUCCESSOR AGREEMENT IS IN PLACE. ANY UNILATERAL CHANGE IN THE LABOR TERMS AND CONDITIONS WILL BE CONSIDERED AN UNFAIR LABOR PRACTICE BY THE UNDERSIGNED. A letter dated 9 September was also sent to the Compa- ny by Kocina. Its content is identical to the mailgram. The Company had not implemented any changes in terms or conditions of employment , but it had consulted with its employees and commenced rescheduling their workdays in accord with the 7-day workweek proposal which Avis thought had been agreed on as part of a new contract. The scheduling was not implemented. Kocina's letter and the draft contract submitted by Rourke were mailed the same day and thus crossed in 1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the mails. On receipt of the contract, Kocina directed Staniszewski to review it for corrections. Kocina had re- moved Staniszewski as business representative for Avis employees on 6 September for the asserted reasons that Staniszewski had erred in thinking that the contract had been ratified because there was less than a two-thirds strike vote. Kocina told Staniszewski that the contract could only be ratified by a majority vote if a strike vote had carried by a two-thirds majority. Exactly where Kocina and Staniszewski got their opposing understand- ings of constitutional requirements is unexplained because neither is supported by the constitution. The International union constitution does not describe the authority of a local business representative, require employee ratification of a collective-bargaining agree- ment, bar a second strike vote after the first one carries, or support a conclusion that a rejected contract becomes accepted by the Union if a strike vote carries by less than a two-thirds majority. The constitution simply does not cover these matters. Accordingly, neither Stanis- zewski's understanding of constitutional requirements nor that of Kocina has any evidentiary support, nor do these interpretations provide anything helpful to the resolution of the issues before me. Staniszewski was the only union negotiator present at any contract negotiation with Avis within the past dozen years or so. He was also the only union representative who administered the Avis contract by visiting the prem- ises and consulting with employees during the terms of the various collective-bargaining agreements preceding the one at issue. It was he who always announced the Union's agreement with bargaining proposal. Avis was never advised that it had no authority to agree to a con- tract. There is no persuasive evidence that employee rati- fication of an agreement was required even though Stan- iszewski had for many years regularly presented pro- posed agreements to the Avis employees assembled on Avis premises with Avis' permission for the purpose of taking a ratification vote. It had become an established practice acquiesced in and even assisted by Avis' furnish- ing of time and space to conduct the vote. The language of the charges filed by Avis attorneys support this view when they state that Staniszewski "agreed to take the agreement before the members of the unit for a ratifica- tion vote." Ratification had become by practice a part of the bargaining process, but ratification or the lack of it is really not important in this case because Local 701 pre- sents nothing but its ipse dixit to show ratification was a requisite rather than Staniszewski's personal practice and because the obligation to execute a contract arose from Staniszewski's 28 August pronouncements to company managers that there was an agreed-on contract. Local 701 had for years communicated its agreement to con- tracts with Avis through Staniszewski. We are reminded in Teamsters Local 749 (American Colloid)9 that "[i]n normal contract law, a party who communicates the ac- ceptance of an agreement through an agent is bound by the agent's acts or statements." The evidence preponder- ates in favor of a finding that Staniszewski was an agent of Local 701 expressly authorized to negotiate and con- 195 NLRB 474, 476 (1972). clude collective-bargaining agreements. He had done so in the past without any apparent need to consult his su- periors. At the very least, Avis was entitled to rely on its representations, whether it be considered an actual or ap- parent agent. Avis had done so for many years without repercussion and had never been informed of any limita- tion on its authority. It was reasonable for Avis to rely on Staniszewski's agreement in 1985. Staniszewski cer- tainly believed an agreement had been reached, and ex- pressed no reservations to Avis. When Staniszewski an- nounced to Krezel and Bernacki on 28 August that they had a contract, Avis was entitled to rely on that repre- sentation. Local 701 is bound by that representation, whether ratified or not.4 Accordingly, I conclude and find that, as Staniszewski advised Bernacki and Krezel, the parties had reached agreement on 28 August. There had been a meeting of the minds on all substantive issues. All that remained was the preparation of a written agree- ment reflecting what the oral agreements were. Rourke took this duty on himself and submitted a typed draft to Local 702, not knowing that Kocina was simultaneously issuing his message rejecting the agreement as reported by Staniszewski. Kocina rejected the contract out of hand before even seeing it because he considered that Staniszewski had acted improperly in taking a new strike vote and using the results thereof as a reason for accept- ing Rourke's revised final proposal. The complaint alle- gation that Local 701 violated Section 8(b)(3) of the Act by refusing to execute a collective-bargaining agreement embodying the agreement reached on 28 August is cor- rect because Kocina's rejection of the agreement Stanis- zewski had made was contrary to Local 701's statutory duty to honor that agreement. Respondent argues that the document submitted by Rourke for signature was a draft subject to revision as had been the case in the 1982 negotiatinos when Local 701 drafted the agreement. Respondent further argues that the draft contained additions, deletions, and revi- sions never negotiated. I see no need to minutely exam- ine the differences alluded to by Respondent because, as a group, they appear to be minor matters of draftsman- ship reasonably in accord with the agreement reached on 28 August. Moreover, here, as in Electrical Workers IBEW Local 22 (Electronic Sound), supra, which I find is almost on all fours with this case and is controlling precedent, the 28 August oral exchanges between Stanis- zewski and Krezel and Bernacki constitutes the agree- ment, and any argument over the Rourke draft is of no consequence to this decision. Local 701 does not agree with the draft, and I find that it had not agreed with the exact language. This language disagreement does not excuse Kocina's rejection of the binding oral agreement given by Staniszewski. As Judge Anderson notes in Elec- tronic Sound:5 4 Electrical Workers IBEW Local 22 (Electronic Sound), 268 NLRB 760 (1984), Elevator Constructors Local 8 (National Elector), 185 NLRB 769 (1970), Teamsters Local 427 (Edward D. Sultan), 223 NLRB 1342 (1976), Painters (Maynard C Belvoir), 223 NLRB 748 (1976). 5 268 NLRB at 763 MACHINISTS LOCAL 701 (AVIS RENT A CAR) The Board has noted the difference between a meeting at which an oral agreement is reached, which agreement is binding on the parties, and the occurrence of a separate later meeting to "draft le- galistic language reducing the parties' previously ar- rived at oral agreement to writing." Teamsters Local 85 (Tyler Bros. Drayage Co.), 206 NLRB 500, 506 (1973). Kocina's 9 September rejection of the 28 August agree- ment had nothing to do with Rourke's draft, which nei- ther Kocina nor Staniszewski had yet seen. What it boils down to is that Kocina attempted to void Staniszewski's, and thus Local 701's, agreement because he disagreed with Staniszewski's conduct in agreeing to a contract which the employees had twice rejected. The attack on the content of Rourke's draft, which I find made no sig- nificant changes in the prior contract as amended by the agreed-on provisions on 28 August, was an afterthought by Kocina designed to strengthen Respondent's position. There was no other apparent reason to pour over the draft language if Kocina in fact believed there was no agreement on substance before he received the draft. It poses no great hardship on Local 701 to require it, as Section 8(d) of the Act requires, to reduce the 28 August oral agreement to "legalistic language," after consulta- tion with Avis' representatives,6 and sign it. According- ly, my Order will require it to do so. CONCLUSIONS OF LAW 1. Avis Rent A Car System, Inc. is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Automobile Mechanics Local No. 701, International Association of Machinists and Aerospace Workers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. All automotive machinists, mechanics, semi-skilled workers, lot men, apprentices and all other employees employed by Avis Rent A Car System, Inc. at its Chica- go, Illinois, facility who come under the jurisdiction of Respondent, and who are covered by and described in a collective-bargaining agreement between Automobile Mechanics Local No. 701, International Association of Machinists and Aerospace Workers, AFL-CIO and Avis Rent A Car System, Inc. effective by its terms for the period from May 1, 1982, to April 30, 1985, excluding office clerical employees, guards, and supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective-bargaining within the meaning of Section 9(b) of the Act. 4. At all material times, Local 701 has been and now is the exclusive representative of the employees in the unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing since about 9 September 1985 to execute a collective-bargaining agreement including all the terms and conditions to which the parties agreed on 28 August 1985, Respondent Local 701 violated Section 8(b)(3) of s Rourke's request that Staniszewski sign the draft copies "if you find them free of error" clearly invited such consultation 1315 the Act and engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The Respondent, Automobile Mechanics Local No. 701, International Association of Machinists and Aero- space Workers, AFL-CIO, its officers, agents, and repre- sentatives, shall 1. Cease and desist from (a) Refusing to bargain collectively with Avis Rent A Car System, Inc. by failing and refusing to sign a collec- tive-bargaining agreement embodying the terms and con- ditions of employment for Avis employees which were agreed to on 28 August 1985. (b) In any like or related manner engaging in conduct in derogation of its statutory duty to bargain with Avis. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request by Avis Rent A Car System, Inc. and jointly with Avis Rent A Car System, Inc. prepare and sign a written agreement containing the terms and condi- tions of employment agreed to between Local 701 and Avis on 28 August 1985. The terms and conditions are not subject to further negotiations for the term of the written agreement unless the parties mutually agree to such negotiations. (b) Give retroactive effect to and honor the agreement until its expiration. (c) Post at its business offices and meeting halls copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Furnish the Regional Director with signed copies of the notice for posting by Avis Rent A Car System, Inc., if willing, at all places where notices to their em- ployees are customarily posted. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply therewith. For the pur- pose of determining or securing compliance with this Order, the Board, or any of its duly authorized repre- ° 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 8 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." 1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentatives, may obtain discovery from the Respondent, its officers, agents, successors or assigns, or any other person having knowledge concerning any compliance matter, in the manner provided by the Federal Rules of Civil Procedure. Such discovery shall be conducted under the supervision of the United States Court of Ap- peals enforcing this Order and may be had upon any matter reasonably related to compliance with this Order, as enforced by the Court. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government meat for Avis employees in an appropriate unit which we agreed to on 28 August 1985. WE WILL NOT in any like or related manner engage in conduct in derogation of our statutory duty to bargain with Avis Rent A Car System, Inc. WE WILL, on request of Avis Rent A Car System, Inc., sign the aforementioned contract, and WE WILL give it retroactive effect and honor its terms until its ex- piration. AUTOMOBILE MECHANICS LOCAL No. 701, INTERNATIONAL ASSOCIATION OF MACHIN- ISTS AND AEROSPACE WORKERS, AFL- CIO WE WILL NOT refuse to bargain collectively with Avis Rent A Car System, Inc. by failing and refusing to sign a contract embodying the terms and conditions of employ-