Industrial Workers Aiw Local 770 (Hutco Equipment)

INDUSTRIAL WORKERS AIW LOCAL 770 (HUTCO EQUIPMENT) Allied Industrial Workers of America, Local Union No. 770 and Hutco Equipment Company. Case 17-CB--3259 8 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND IBABSON On 6 April 1987 Administrative Law Judge Richard A. Scully issued the attached decision, The Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the judge's rulings , findings, I and conclusions, as modified herein, 2 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, Allied In- dustrial Workers of America, Local Union No. 770, Springfield, Missouri, its officers, agents, and representatives, shall take the action set forth in the Order. ' 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 Cyr 1951) We have carefully examined the record and find no basis for reversing the findings. 2 Inasmuch as we agree with the judge that the Respondent waived its right to object to the timeliness of the Employer's notice to reopen the contract for negotiations, we find it unnecessary to pass on whether the Respondent received timely notice. Richard C. Auslander, Esq., for the General Counsel. Frederick Perillo, Esq., of Milwaukee, Wisconsin, for the Respondent. Ransom A. Ellis, III, Esq., of Springfield, Missouri, for the Charging Party. DECISION RICHARD A. SCULLY, Administrative Law Judge. On a charge filed on 28 July 1986 and an amended charge filed on 8 October 1986 by Hutco Equipment Company, a complaint was issued on 8 October 1986 by the Board's Regional Director for Region 17, alleging that Allied In- dustrial Workers of America, Local Union No. 770 (the Union), had violated Section 8(b)(3) of the National Labor Relations Act (the Act). Specifically, it was al- leged that the Union had failed and refused to bargain in good faith with the Charging Party and that it was con- 651 tinuing to do so. The Respondent Union filed a timely answer denying that it had committed any violation of the Act. A hearing was held on 17 and 18 November 1986 in Springfield, Missouri, at which all parties were given a full opportunity to participate, to examine and cross-ex- amination witnesses, and to present other evidence and argument. Briefs filed on behalf of all parties have been given due consideration. On the entire record and from my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER At all times material, Hutco Equipment Company (the employer or Hutco) was engaged in the operation of a tractor-trailer repair business at its facility located in Springfield, Missouri. During the 12 -month period ending 1 September 1986, the Employer , in the course and conduct of its business operations,,purchased and re- ceived at its Springfield,- Missouri facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Missouri. The Respond- ent admits and I find that Hutco is an employer engaged in commerce withing the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent admits and I find that ,t is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES - A. Facts Since 1959, the Union has been the exclusive collec- tive-bargaining representative of Hutco's employees in a unit consisting of all employees employed by the Em- ployer at its Springfield, Missouri location, excluding office and clerical employees, supervisors, and guards as defined in the Act. The parties have entered into a series of collective-bargaining agreements, the most recent of which extended from 27 July 1983 to 26 July 1986. On 27 May 1986,1 Hutco's owner, R. L. Mullins, de- termined that the Employer had not received a notice from the Union of its intention to negotiate a new con- tract. Consesquently, he took action to serve such a notice on the Union on behalf of Hutco. About 9:30 a.m., Mullins telephoned Paul King, the Company's attorney, who was unavailable. Mullins spoke -instead with John Black, a law partner of King„ and told him what he wanted. Thereafter, Black looked at the termination clause in the collective-bargaining agreement and after conferring with King undertook to draft an appropriate notice to the Union. About noon that day, Black ,called the Employer and, in Mullins' ,absence, spoke with Serv- ice Manager Lindell Garrett and Office Manager Ester O'Dell, to whom he dictated a notice to be sent to the Union. Black told Garrett that a copy of the notice had ' All dates are in 1986, unless otherwise indicated 285 NLRB No. 96 652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to be delivered to a union steward that day and his office made arrangements to have a copy of the notice deliv- ered that day by courier to Archie Robbins, a regional representative of the International Union, who was locat- ed in Joplin, Missouri. When Mullins returned to his office, Garrett advised him what had taken place and Ester O'Dell was in the process of typing up the notice. Mullins also was tele- phoned by Black who wanted to be sure that the notice had been prepared and that Mullins knew that the copies were supposed to be delivered that day. Mullins , signed the notice for the Employer.2 At the time, the two union stewards at Hutco were Jack Adams and Leslie Small, neither of whom was at work on 27 May. Adams was on vacation and Small was on sick leave. Lindell Garrett testified that when he learned that the notice had to be delivered to a union steward that day he ascertained that Small was working at an auto body shop he was known to frequent. Garrett did so because he did not know where Adams lived and figured that Small would be the better one to contact. Mullins and Garrett both testified that Mullins gave Gar- rett a copy of the notice in an envelope addressed to Small with instructions to have Jerry Murphy, a cowork- er and neighbor of Small, deliver it to him. Garrett testi- fied that about 4:30 p.m., after Murphy had punched out, Garrett gave him the copy of the notice addressed to Small and told him that it involved a union matter and that it was very imporant that it be delivered to Small that day. They discussed the fact that Small was at the body shop, which was on the way from the plant to where Small and Murphy lived, and Murphy said that he would deliver it to Small. The evidence establishes that Murphy had previously delivered Small's paychecks to him on occasions when he was not at work on a payday and that Small had done the same for Murphy. By letter dated 31 May, Paul King advised Archie Robbins that he would be serving as the chief negotiator for Hutco and proposed 9 or 13 June as the date for the first bargaining session . Robbins responded by letter of 3 June, stating that he was involved in other contract ne- gotiaions and suggesting that they begin negotiations during the week of 14 July. King and Robbins ultimately agreed to hold the first negotiating session at King's office on 15 July. Prior to that date, the Union requested and was provided with certain information by the Em- ployer. On 15 July the parties met at King's office. The Union was represented by Robbins, Adams, and Small and the Employer by King and Mullins. At that meeting, they agreed on certain procedural matters such as meeting dates and times and "ground rules" to be applicable to the negotiations. King requested the Union's initial pro- posal and Robbins responded that because the Company had opened the contract he felt that it should go first. The Company's contract proposal was distributed and reviewed. Robbins stated that the Union would take time to study the proposal and would respond to it at the next session scheduled for 21 July. 2 The foregoing is based on the credible and mutually corroborative testimony of King, Black, Mullins, and Garrett On 21 July the union negotiators did not show up for the scheduled meeting. Leslie Small advised Mullins at the Hutco plant that the Union did not plan to attend the meeting and King subsequently received a letter from Robbins, dated 18 July, stating that the Employer had failed to comply with the notice provision of the parties' existing contract, that the Union considered the contract to be in force until 26 July 1987, and that because of this all scheduled meetings would be canceled. The Union takes the position that Hutco's notice to ne- gotiate a new contract was not timely because, under the terms of the contract, it had to be delivered to the Union not later than 26 May and that it was not actually deliv- ered to an authorized representative of the Union until 28 May. The General Counsel and Hutco contend that the notice was delivered to both Robbins and Small on 27 May, that both were authorized representatives of the Union, that service of the notice on 27 May was timely under the terms of the contract, and that the Union waived any timeliness objection it might have had by be- ginning bargaining on 15 July. B. Analysis and Conclusions 1. Timeliness of the notice Article XXIV of the collective-bargaining agreement entered into by the parties on 23 August 1983 provides, in pertinent part: Duration and Termination This agreement shall remain in full force and effect from July 27, 1983 to midhight July 26, 1986. This Agreement shall automatically renew itself for suc- cessive twelve (12) month periods thereafter, unless either party gives written notice to the other of not less than sixty (60) days or more than ninety (90) days prior to the termination date. The Board strictly construes contract provisions that forestall automatic renewal clauses.3 It has found the "termination date" to be the day preceeding the first day of the new contract term and that the termination date is to be included in the computation of the stated notice period.4 In this case, the "termination date" was 26 July. Including that date in the computation of the 60-day period, automatic renewal would have become effective on 28 May. To be timely, a reopening notice had to be received by 27 May. The Respondent relies on the method of computation used in Taft Broadcasting Co.,5 in which the termination date was excluded from the re- quired 60-day period. Such an exclusion is contrary to the method employed by the Board in Koenig Bros., supra, several other cases, s and its more recent decision in Abbott House, Inc.7 I find that a reopening notice re- ceived by the Union on 27 May would have been timely. S Sawyer Stores, 190 NLRB 651 , 652 (1971) 4 Koenig Bros , 108 NLRB 304 (1954) 5 264 NLRB 185, 189 (1982) 6 E g, United Electronics Institute of Iowa, 222 NLRB 814 ( 1976), Vapor Recovery Systems Co, 133 NLRB 580 (1961). 7 272 NLRB 78 fn 1 (1984) INDUSTRIAL WORKERS AIW LOCAL-770 (HUTCH EQUIPMENT) 2. Receipt of notice by the Union The Union also contends that it did not effectively re- ceive the notice from the Company until 28 May when its letter was delivered to Steward Leslie Small. Small testified that he received Mullins' letter of 27 May when it was handed to him by Jerry Murphy about 5 p.m. on 28 May, at Manning's Body Shop . According to Small, he took the letter from Murphy, opened it, read it, imme- diately called over Joseph Lewellen to look at it, and asked him to remember the date of the letter because it was dated the previous day. After Small returned to his house, he took the letter to Murphy's home and told Murphy that "since the dates didn't appear to-be correct that maybe we ought to remember this." Small made a notation on the envelope that it had been received by him on 28 May and Murphy made a notation on the bottom of the letter that he had delivered it to Small at the body shop on 28 May. Joseph Lewellen is an acquaintance of Small, who tes- tified that he was present when Murphy delivered the letter to Small at the body shop. Lewellen is not an em- ployee of Hutco or a member of the Union. He testified that he saw Murphy give the letter to Small, who opened it and read it. Small called Lewellen over and asked him to read the letter and remember the date "in case at some other time it would be considered impor- tant." Lewellen testified that Murphy gave the letter to Small on 28 May and that he checked the date on a cal- endar on the body shop door and his watch that displays the day and date. Jerry Murphy testified that he was given the letter for Small at quitting time on 28 May by Garrett . He remem- bered that the day was a Wednesday because he always goes to town to pick up a Springfield newspaper for his wife every Wednesday evening. He was present at the body shop along with Small , Lewellen, and another person when Small opened the letter and read it. Small pointed out to them that the letter was dated 27 May, but that day was 28 May. After he went home, Small came over to his house and he wrote on the letter the date he had delivered it to Small. As discussed above, Garrett testified that he gave the letter to Murphy on 27 May and instructed him to deliv- er it to Small that evening. He also testified that on the morning of 28 May, he asked Murphy if he had deliv- ered the letter to Small the night before and Murphy said that he had done so. After the controversy over the date of delivery arose, on 21 July, Murphy signed a writ- ten statement prepared by Garrett that says that Murphy delivered the letter to Small the day Garrett gave it to him. Murphy's statement does not include the date that delivery was made; however, Garrett testified that when he asked Murphy to sign the statement , he showed Murphy his own written statement that said that the date he gave the letter to Murphy was 27 May and that Murphy did not indicate that he considered it incorrect. The testimony of Murphy and Garrett concerning de- livery of the letter to Small is consistent except for the crucial factor of the date on which it occurred. After considering the demeanor of the witnesses, the content of their testimony, and the other evidence, I credit the testimony of Garrett that he gave Murphy the letter to 653 deliver to Small on 27 May. I do not credit that of Small, Lewellen, and Murphy that the date the letter was delivered was 28 May. The credible testimony of Attorneys King and Black establishes that they directed the preparation of the notice to the Union and that they impressed on the Employer that delivery of the notice had to be accomplished on 27 May. Their law firm un- dertook to arrange for delivery of the original notice to Archie Robbins in Joplin„ Missouri, on 27 May. They also advised the employer to deliver a copy of the notice to a union steward on the same day. The letter sent to Robbins on 27 May indicates that a copy was being hand delivered to Small. Under the circumstances , there is simply no reason to believe that after Garrett, O'Dell, and Mullins were told by the Company's attorneys that the letters had to be delivered on 27 May and their pre- paring the letters for delivery that day, the one meant for Small would not be given to Murphy to deliver until the following day. It is also doubtful that if Small was so concerned by the fact that the letter he received was dated the previous day that he called it to Lewellen's at- tention and had Murphy make a notation to that effect on the letter, he would take no action to determine what significance the delay in delivery might have until after the first negotiating. session, more than 1 -1/2 months later. At that point, the Union had received the Employ- er's contact proposal that both Robbins and Small con- sidered to be "lousy." Small first told Robbins that he re- ceived the notice on 28 March following the 15 July ne- gotiating session, while Small, Adams, and Robbins were discussing the Employer's contact proposal and after Robbins commented that they "would have it made in the shade" if Small had not received the notice on 27 May. From my observation of the demeanor of the wit- nesses, I consider Garrett and Mullins to be credible wit- nesses and believe their testimony that Murphy was given the letter to deliver to Small on 27 May. I do not find it peculiar that Murphy was asked to hand deliver the notice to Small despite its importance inasmuch as he had delivered Small's paychecks to - him in the past and Garrett had ascertained that Small was present at the body shop. Under the circumstances, asking Murphy to deliver the letter to Small was routine and reasonable." I did not find either Murphy or Small to be a credible or convincing witness. Having discredited their testimony, I conclude that their story about delivery being made on 28 May was a fabrication . In view of this conclusion, I do not credit the testimony of Lewellen, purporting to corroborate that the letter was delivered on 28 May, even though he is an apparently disinterested witness. I also find that the Union received effective notice of the Employer's intent to negotiate a new contract by de- livery of the notice to the office of Archie Robbins on 27 May. Robbins' testimonial admissions and the circum- stantial evidence establish that the Employer's letter to Robbins was delivered to his office and accepted on his behalf by Nadine Toppings on 27 May in the same 8 Local 770 had no mailing address The Employer had previously corresponded with Small on union matters by hand delivery and by mail- ing things to his home. 654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD manner in which other packages and correspondence ad- dressed to Robbins were routinely received. The evi- dence establishes that Robbins, although not a member of Local 770, was a regional representative of the Inter- national union, who had represented Local 770 as its chief negotiator in contract negotiations with the Em- ployer in 1981 and 1983 at the negotiating session on 15 July. Robbins had also represented the Union at third- step grievance meetings and arbitrations held pursuant to the collective-bargaining agreements between the parties since November 1980. In 1981, Robbins gave the Em- ployer notice of the Union's intent to negotiate pursuant to a reopener provision in the then-current agreement and, in May 1983, Robbins gave the Employer notice of the Union's intent to renegotiate the expiring contract. Also in May 1983, the Employer gave the Union notice of its intent to negotiate a new contract by sending writ- ten notice to Robbins at his office in Joplin. The parties did negotiate a new contract pursuant to these notices. There is no evidence that the Union ever raised any question about the propriety or efficacy of the Employ- er's notice to Robbins in connection with the 1983 nego- tiations. Considering all the foregoing circumstances, I find that Robbins exhibited sufficient apparent authority on behalf of Local 770 to make service of the- notice on him binding on the Union. 3. Waiver In the event that the service of the Employer's notice of intent to renegotiate the contract on Small and Rob- bins was untimely or otherwise ineffective, I find that the Union waived any objections to the timeliness of the notice. Although the Union now takes the position that service of the notice on Small was untimely, even if ac- complished on 27 May, and that service on Robbins was ineffective regardless of the date, it raised no timeliness objection to the Employer until Robbins' letter of 18 July to Attorney King. In the intervening period, the Union, acting through Robbins and Small, had requested and obtained certain information from the Employer for use in negotiations, it had agreed to a schedule of negoti- ating sessions through correspondence between King and Robbins, and it had participated in the first negotiating session on 15 July in which scheduling and procedural matters were agreed on and the Union received the em- ployer's contract proposal. It was after this that the Union raised its timeliness ob- jection for the first time. Accepting as true for the pur- poses of this discussion Small's testimony that he was aware of a "discrepancy" between the date of the Em- ployer's letter and the date he received it and that he felt it was significant enough that he asked Lewellen and Murphy to take note of it, he failed to provide a con- vincing explanation as to why he did nothing about it until after seeing the Employer's contract proposal over 1-1/2 months later. The Board recognizes that even when timely notice is not given, a party, "by its action, could have waived the notice requirement and agreed to bargain."9 That is what 9 Anchorage Laundry & Dry Cleaning, 216 NLRB 114 (1975) happened here as the Union, without any stated reserva- tions, advised the Employer that it would commence bargaining on 15 July and in fact did so. Only after that bargaining session, at which it received what it consid- ered to be an unfavorable proposal, did the Union raise an objection that the Employer's notice was untimely. The circumstances here are different from those in the cases relied on by the Union in which the Board found that no waiver had occurred. In the Sawyer Stores and Anchorage Laundry cases, the party raising the timeliness objection did so at or before the initial bargaining ses- sion. In the present case, the Union did not raise its ob- jection until after the first bargaining session was con- cluded and it failed to establish any extenuating circum- stances that would excuse its failure to do so. CONCLUSIONS OF LAW 1. Allied Industrial Workers of America, Local Union, No. 770 is a labor organization within the meaning of Section 2(5) of the Act. 2. Hutco Equipment Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By refusing to meet and bargain in good faith with the Employer for a new contract after 15 July 1986, the Respondent violated Section 8(b)(3) of the Act. 4. The unfair labor practices found are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent violated Section 8(b)(3) of the Act, I shall recommend that it be ordered to cease and desist from such violations and to take cer- tain affirmative action designed to effectuate the policies of the Act. I shall recommend" that the Respondent be ordered to meet and bargain with the Employer on re- quest. The Employer has requested that the Order require the Respondent to bargain "from and hence July 27, 1988," arguing that, otherwise, the Union would benefit from its unlawful refusal to bargain. i 0 However, the effect of such an order would be to impose on the Union the requirement that the terms of any resulting contract would be retroactive to that date. Section 8(d) of the Act prohibits such a remedy." i The Employer also seeks to be reimbursed for its costs and attorneys' fees incurred as a result of the Respond- ent's refusal to bargain, on the grounds that the Union's position was frivolous. Considering the facts that the Union has at least a colorable basis for its legal positions and that the crucial factual findings in this case were largely based on credibility considerations, I do not find the Union's position to have been frivolous, or that the Employer is entitled to the reimbursement it seeks. 10 At this point, whether the Union has derived a benefit from its re- fusal to bargain is speculation 11 See Ex-Cell-O Corp., 185 NLRB 107 (1970) INDUSTRIAL WORKERS AIW LOCAL 770 (HUTCO EQUIPMENT) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Allied Industrial Workers of Amer- ica, Local Union No. -770, Springfield, Missouri, its offi- cers, agents, and representatives, shall 1. Cease and desist from refusing, as the collective-bar- gaining representative of the Employer's employees in the appropriate unit, to bargain collectively with Em- ployer. 2. Take the following affirmative action necessary to effectuate the policies of the .Act. (a) On request by Hutco Equipment Company, bar- gain, as the exclusive bargaining representative of the Employer"s employees, with respect to wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed contract. (b) Post at its business office and meeting places around Springfield, Missouri, copies of the attached notice marked "Appendix."13 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- ,al. (c) Furnish to the Regional Director for Region 17 signed copies of the aforementioned notice for posting by Hutco Equipment Company, if willing, in places where notices to employees are customarily posted. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps have been 12 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 See. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 13 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 " 655 taken to comply. For the purposes of determining or se- curing compliance with this Order, the Board, or any of its duly authorized representatives, may obtain discovery from the Respondent, its officers, agents, successors, or assigns, or any other person having knowledge concern- ing -any compliance matter, in the manner provided by the Federal Rules of Civil Procedure. Such discovery shall be conducted under the supervison of the United States court of appeals enforcing this Order and may be had on any matter reasonably related to compliance with this Order, as enforced by the court. APPENDIX NOTICE To MEMBERS 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 or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively with Hutco Equipment Company with respect to wages, hours, and other terms and conditions of employment af- fecting the employees in the appropriate unit. WE WILL, on request by Hutco Equipment Company, bargain collectively, as the exclusive bargaining repre- sentatives of the employees in the appropriate unit, with respect to wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed contract. ALLIED INDUSTRIAL WORKERS OF AMER- ICA, LOCAL UNION No. 770