Metro Products, Inc.,

76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Metco Products, Inc., Division of Case Manufactur- ing Company and Communications Workers of America. Case 11-CA-12436 June 14, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND CRACRAFT On February 29, 1988, Administrative Law Judge Philip P. McLeod issued the attached deci- sion. The Respondent filed exceptions and a sup- porting 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, and conclusions and to adopt the recommended Order as modified." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Metco Products, Inc., Division of Case Manufacturing Company, Greensboro, North Caro- lina, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. Substitute the following for paragraph 2(b). "(b) Give effect to the terms of the contract ret- roactive to June 30, 1987, and make employees whole for any losses they may have suffered by reason of the Respondent's failure to execute and sign this agreement, with backpay to be computed in the manner prescribed in Ogle Protection Service, 183 NLRB 682 (1970), and interest thereon to be computed in the manner prescribed in New Hori- zons for the Retarded, 283 NLRB 1173 (1987)." 1 We shall modify par 2(b) of the judge's recommended Order to pro- vide that backpay be computed in a manner consistent with Board policy as set forth in Ogle Protection Service, 183 NLRB 682 (1970). Jasper C. Brown Jr., Esq., for the General Counsel. Charles P. Roberts III, Esq. (Haynsworth, Baldwin, Miles, Johnson, Greaves, & Edwards), of Greensboro, North Carolina, for the Respondent. Delbert Gordon, of Greensboro, North Carolina, for the Charging Party. DECISION STATEMENT OF THE CASE PHILIP P. MCLEOD, Administrative Law Judge. I heard this case on 9 December 1987 in Greensboro, 289 NLRB No. 15 North Carolina. The charge that gave rise to the case was filed on 8 July 1987. A complaint and notice of hearing issued on 19 August 1987 that alleges, inter alia, that Metco Products, Inc., Division of Case Manufactur- ing Company" (Respondent) violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act), by re- fusing to execute a collective-bargaining agreement agreed on with Communications Workers of America (the Union), the bargaining representative of Respond- ent's employees. In its answer to the complaint, Respondent admitted certain allegations including the filing and serving of the charge; its status as an employer within the meaning of the Act; the status of Communications Workers of America as a labor organization within the meaning of the Act; and the status of certain individuals as supervi- sors and agents of Respondent within the meaning of Section 2(11) of the Act. Respondent denied having en- gaged in any conduct that would constitute an unfair labor practice within the meaning of the Act. At the trial, all parties were represented and afforded full opportunity to be heard, to examine and cross-exam- ine witnesses, and to introduce evidence. Following the close of the trial, counsel for the General Counsel and Respondent both filed timely briefs with me, which have been duly considered. On the entire record in this case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Metco Products, Inc., Division of Case Manufacturing Company, is a North Carolina corporation with a place of business in Greensboro, North Carolina, where it pro- duces cabinet furniture. In the course and conduct of its business operations, Respondent annually purchases and receives at its North Carolina facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of North Carolina. In addition, Respondent annually sells and ships from its North Caro- lina facility products valued in excess of $50,000 directly to points outside the State of North Carolina. Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION Communications Workers of America is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. ' The complaint and notice of hearing captions this case as indicated and includes various substantive jurisdictional paragraphs that refer to Metco Products, Inc. as being a division of Case Manufacturing Compa- ny In its answer, Respondent titles the caption as Metco being a division of Casard Furniture Manufacturing Company but then proceeds to admit the substantive jurisdictional paragraphs that refer to Metco as being a division of Case In view of these facts and for the sake of consistency, I have continued to refer to Metco as a division of Case METCO PRODUCTS 77 III. THE UNFAIR LABOR PRACTICES At its Greensboro, North Carolina facility, Respondent manufactures ready-to-assemble furniture , including tele- vision stands and entertainment centers . It employs ap- proximately 120 production and maintenance employees. In October 1986, an election was conducted among Re- spondent's production and maintenance employees, which resulted in the Union being certified as the exclu- sive collective-bargaining representative of these employ- ees. On 3 November 1986, the Union sent a letter to Paul Saperstein, Respondent's president, requesting to meet and bargain concerning the terms of a collective -bargain- ing agreement covering unit employees. In response to this request, Attorney Robert Pearlman telephoned Union Representative Delbert Gordon and notified Gordon that he would be representing Respondent during negotiations. The parties held their first negotia- tion session on 25 November 1986 . Thereafter, the par- ties met approximately eight more times during Decem- ber 1986 and January, February, March, and June 1987. The Union's negotiating team included Delbert Gordon, Local Union President Charles Carroll, and em- ployee Kenneth Stalley. At the first negotiating session, Respondent was represented by Attorney Robert Pearl- man and Supervisor J. D. Parrish . This was the only meeting that Parrish attended . Thereafter, he was re- placed by Plant Manager Larry Clark. At the first ses- sion on 25 November, Gordon introduced himself and other members of the Union's negotiating team. Gordon informed Respondent that he was the chief negotiator for the Union and was there with full authority to reach an agreement. Gordon testified credibly and without contradiction that Pearlman responded by stating he was chairman of Respondent's bargaining committee, and that he too was given the authority to negotiate an agreement. The Union then presented Respondent with a package of contract proposals covering everything except wages. The remainder of this meeting was devot- ed to the parties discussing the Union's proposals and Gordon explaining them where necessary. During the meetings in December 1986 and January, February, and March 1987, various proposals and coun- terproposals were exchanged. The primary issues in dis- pute between the parties related to job security, arbitra- tion, dues checkoff, movement of personnel, job classifi- cations, and wages. Gordon testified without contradic- tion that the parties reached agreement on the majority of noneconomic issues during the January, February, and March meetings. Although negotiations were ongoing, the Union re- ceived a copy of a letter that Respondent distributed to employees informing employees that the parties were at an impasse. As a result, the Union sought the services of the Federal Mediation and Conciliation Service . Federal Mediator Leonard Duggins was assigned to assist in ne- gotiations. Thereafter, Duggins convened several meet- ings during March and on 4 June . During the March meetings, the parties did not meet face to face. Instead, Duggins shuttled between the two parties with proposals and counterproposals. Gordon testified without contra- diction that during the meeting on 18 March , Duggins transmitted a written proposal from Pearlman in which Respondent increased its wage raise proposal from 15 to 20 cents per hour. Gordon inquired whether Respondent was proposing a 3-year contract . It is undisputed that Pearlman responded in the affirmative. The final negotiating session between the parties was held by Federal Mediator Duggins on 4 June. The Union was represented by Gordon, Carroll, and Stalley. Re- spondent was represented by Pearlman. The parties met face to face. Duggins began the meeting by informing Pearlman the Union had told him they were prepared to make major concessions. Duggins then turned to Gordon and allowed him to proceed with the meeting. Gordon testified that in preparation for this meeting, he made an outline of each proposal submitted by the parties. Gordon utilized this outline in making his re- marks during the meeting . Gordon cross-referenced each union proposal with the corresponding proposal from Respondent. Regarding those items that were in dispute, Gordon either agreed to Respondent's proposal or with- drew the Union's demand. Through this process, all issues were resolved. The last two items to be discussed related to the length of time allowed a union representa- tive in the investigation of a grievance and the duration clause of the contract itself. Gordon testified credibly and without contradiction that both of these matters were discussed and agreed on by Pearlman at the meet- ing on 4 June. Gordon told Pearlman it could take a union representative at least 5 minutes to find the person he might be seeking during an investigation . Gordon asked Pearlman for a 10-minute period to conduct such an investigation. Pearlman agreed. Gordon asked Pearlman if he was still proposing a 3- year agreement, and Pearlman said he was . Pearlman stated Respondent wanted the contract to become effec- tive on 30 June. Federal Mediator Duggins then suggest- ed that the contract expire on 29 June 1990. Both Pearl- man and Gordon agreed to this date . The parties agreed to use the Union's proposed language concerning the du- ration clause. Gordon then stated that the parties had a contract and Pearlman agreed. Pearlman and Gordon discussed the logistics of preparing clean copies of the agreement in its final form. Pearlman stated he had to go out of town, so Gordon volunteered to have the contract typed in final form for the parties' signature. Within a few days of the meeting , Gordon mailed copies of the agreement typed in final form to Pearlman and Plant Manager Larry Clark. When Gordon did not hear from Pearlman , Gordon telephoned Pearlman on 22 June and told Pearlman the Union was prepared to meet and sign the agreement. Pearlman told Gordon that he had every intention of signing the agreement , but that he had to run the agreement by Saperstein. Within a few days, Pearlman telephoned Gordon's office and left a message that there were a couple of areas in the agree- ment he still wanted to review with Saperstein. On 29 June, Gordon again telephoned Pearlman. Pearlman again stated that he had to review the document with Saperstein. Pearlman also stated , however, that Respond- ent would put the agreed-on wage proposal into effect. 78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD When Gordon questioned Pearlman on this matter, Pearlman hung up. Analysis and Conclusions Respondent admits it retained Pearlman to act as its spokesman in negotiations with the Union. Respondent did not call Pearlman to testify in this proceeding, and Respondent does not dispute the fact that agreement was reached concerning the terms of the contract at the meeting on 4 June. Indeed, in its posttrial brief, Respond- ent admits that sometimes after the 4 June meeting, Pearlman informed Saperstein that he had reached an agreement with the Union. After reviewing this agree- ment, Saperstein fired Pearlman because the agreement allegedly included compromises that Saperstein had never authorized or agreed to concerning the time al- lowed the Union for the investigation of grievances and the duration of the contract. Saperstein testified he fired Pearlman because Pearlman had exceeded his authority in consenting to those proposals. Respondent's defense, therefore, is based entirely on its contention that Pearl- man did not have authority to reach agreement with the Union without Saperstein's approval. Saperstein testified that Pearlman was retained to pre- pare Respondent's initial proposals to the Union and to keep Saperstein apprised of other developments as nego- tiations progressed. Saperstein claims it was up to him to approve or disapprove any modified proposals by Re- spondent. Respondent argues that the Union knew, or should have known, that Pearlman was acting with limit- ed authority because Gordon admitted that on many sub- jects Pearlman indicated he would have to review union proposals and respond at a later meeting. Respondent also argues, "The fact that Pearlman was an outside con- sultant and not an employee of Metco in itself indicated that he was not making substantive decisions regarding proposals." Finally, Respondent argues, "Just as it was implicit that the agreement was subject to ratification of employees, it was also implicit that it was subject to rati- fication by Saperstein." The evidence is quite clear that Respondent made no attempt whatever to notify or inform the Union that Pearlman would be acting in any limited capacity. Re- spondent does not even advance such a claim. Pearlman informed the Union during the first negotiating session that he had authority to negotiate a contract. Pearlman himself placed no limitations or restrictions on his au- thority. Respondent not only failed to call Pearlman as a witness, but also failed to call Superintendent J. D. Par- rish who was its other representative at the first negotiat- ing session. At this first meeting and throughout negotia- tions, the Union was led to reasonably believe that Pearl- man possessed the authority to obligate Respondent to the terms of a final agreement. Gordon testified credibly that although Pearlman sometimes expressed a need to talk to Saperstein before making certain commitments, at other times Pearlman made commitments on many pro- posals without waiting until the following meeting or in- dicating any need to talk to Saperstein. I find that throughout negotiations Pearlman had the apparent au- thority to bind Respondent to a collective-bargaining agreement. Saperstein's testimony concerning his reasons for not signing the collective-bargaining agreement is itself somewhat suspect. Saperstein claims Pearlman exceeded his authority by agreeing to allow the Union 10 minutes to investigate grievances and by agreeing to a 3-year contract. Saperstein makes this claim even though he ad- mittedly approved a 3-year wage proposal at an earlier meeting and even though Saperstein admits he did not require Pearlman to seek his approval on noneconomic issues such as the grievance investigation proposal. Al- though Saperstein claimed that he did not approve a 3- year contract, Plant Manager Clark testified that Saper- stein approved a 20-cent wage offer for 3 years after the Union rejected Respondent's initial 15-cent-per-hour wage increase proposal. It is altogether inconsistent that Respondent would make a 3-year wage proposal without intending a 3-year agreement. It appears that for some reason, which is not altogether clear, Saperstein became displeased with the contract after the parties reached agreement on 4 June and is now attempting to abrogate that agreement. Whether such be the case, however, I conclude the evidence establishes quite clearly that Re- spondent and the Union in fact reached agreement on the terms of a collective-bargaining agreement at the meeting of 4 June and that Respondent's representative at that meeting, Attorney Robert Pearlman, had at least apparent authority to enter into that agreement. Section 8(d) of the Act requires "the execution of a written contract incorporating any agreement reached if requested by either party." It is well-established Board law that a party to a collective-bargaining relationship violates its bargaining obligation under Section 8(a)(5) of the Act if it refuses to execute an agreement once reached. H. J. Heinz Co. v. NLRB, 311 U.S. 514 (1941); Fashion Furniture Mfg., 279 NLRB 705 (1986). In reach- ing the conclusion that the parties to such a relationship arrived at a "meeting of the minds" on the substantive terms of an agreement, "the Board is not strictly bound by the technical rules of contract law." NLRB v. Electra- Food Machinery, 621 F.2d 956 at 958 (9th Cir. 1980). It is well established that "when an agent is appointed to ne- gotiate a collective-bargaining agreement, that agent is deemed to have apparent authority to bind his principal in the absence of clear notice to the contrary." University of Bridgeport, 229 NLRB 1074 (1977). It is undisputed that in this case Respondent did nothing to notify the Union of any restriction or limitation placed on Pearl- man's authority to negotiate a collective-bargaining agreement on behalf of Respondent. Considering all the above, I find that Respondent and the Union arrived at a complete meeting of the minds, that there was no valid or unfulfilled condition preceding or subsequent in any way that affects the agreement, that Respondent has failed and refused to execute the agree- ment, and that in doing so, Respondent violated Section 8(a)(1) and (5) of the Act. CONCLUSIONS OF LAW 1. The Respondent, Metco Products, Division of Case Manufacturing Company, is an employer engaged in METCO PRODUCTS 79 commerce within the meaning of Section 2(6) and (7) of the Act. 2. Communications Workers of America is, and has been at all times material herein , a labor oraganization within the meaning of Section 2(5) of the Act. 3. On 20 October 1986 the Union was certified as the exclusive collective-bargaining representative of Re- spondent's production and maintenance employees at its Greensboro, North Carolina facility. 4. On 4 June 1987, Respondent and the Union reached agreement on the terms of a collective-bargaining agree- ment covering the terms and conditions of employment of Respondent's employees in the bargaining unit de- scribed above. 5. By failing and refusing to execute the written con- tract incorporating the agreement reached between it and the Union, Respondent has engaged in, and is engag- ing in, unfair labor practices within the meaning of Sec- tion 8(a)(1) and (5) of the Act. 6. The unfair labor practices that Respondent has been found to have engaged in, as described above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act .2 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eda ORDER The Respondent, Metco Products, Inc., Division of Case Manufacturing Company, Greensboro, North Caro- lina, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively and in good faith with Communications Workers of America by declining to execute a written agreement embodying the terms of the contract fully agreed to between the parties. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Sign the collective-bargaining agreement agreed to by Respondent and the Union on 4 June 1987. (b) Give effect to the terms of the contract retroactive to 30 June 1987 and make employees whole for any losses they may have suffered by reason of Respondent's failure to execute and sign this agreement, with interest to be computed in the manner prescribed in F. W. Wool- worth Co., 90 NLRB 298 (1950), with interest thereon to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).4 (c) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Greensboro, North Carolina facility copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent 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. (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. 4 Under New Horizons for the Retarded, interest is computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Flori- da Steel Corp, 231 NLRB 651 (1977) 5 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 2 Counsel for the General Counsel has requested that the remedy in- clude a visitatonal clause giving counsel for the General Counsel certain specific discovery powers during the compliance stage of this proceed- ing. The Board has granted such a request only on a case-by-case basis where it has felt such a clause is warranted . The Board has declined to routinely include visitatonal clauses in its order Cherokee Marine Termi- nal, 287 NLRB 1080 (1988). Counsel for the General Counsel points to no specific facts and no special circumstances that would warrant such a clause in this case, and the request is denied. a 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 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion 80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT refuse to bargain collectively and in good faith with Communications Workers of America by refusing to execute the collective-bargaining agreement embodying the terms of the contract agreed to between us. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL sign the collective-bargaining agreement agreed to by us and the Union on 4 June 1987 defining wages, hours, and working conditions of our production and maintenance employees employed at our Greens- boro, North Carolina facility. WE WILL give retroactive effect to the terms of that contract to 30 June 1987, and WE WILL make employees whole for any losses they may have suffered by reason of our failure to execute and sign that agreement, with appropriate interest. METCO PRODUCTS, INC., DIVISION OF CASE MANUFACTURING COMPANY