International Brotherhood Of Teamsters, Chauffeurs, Ware-Housemen And Helpers Of America, Afl--Cio

30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Teamsters Local Union No. 251 a/w International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO and McLaughlin & Moran, Inc. Case 1-CB- 6894 July 13, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On a charge filed on October 12, 1988, by McLaughlin & Moran, Inc (the Employer), the General Counsel for the National Labor Relations Board issued a complaint dated November 23, 1988, against Teamsters Local Union No 251 (the Respondent), alleging that the Respondent had vio- lated Section 8(b)(3) and (d) of the Act by failing and refusing to execute a written contract embody- ing a collective-bargaining agreement reached earli- er with the Employer The Respondent filed an answer to the complaint, denying that it had violat- ed the Act On April 2, 1990, the Respondent, the Employer, and counsel for the General Counsel filed a stipula- tion of facts signed by the parties on February 5, 6, and 8, 1990 The parties agree that the charge, complaint, answer, and stipulation, with attached exhibits, shall constitute the entire record in this case and that no oral testimony is necessary or de- sired by any of the parties The parties waive a hearing before an adminis- trative law judge, the making of findings of fact and conclusions of law by an administrative law judge, and the issuance of an administrative law judge's decision, and agree to submit the case di- rectly to the Board for findings of fact, conclusions of law, and the issuance of a Decision and Order The parties also have submitted bnefs, and, in the event the Board accepts the stipulation, no party requests that the Board set a time for the filing of further briefs The National Labor Relations Board has delegat- ed its authonty in this proceeding to a three- member panel The Board has duly considered the matter and has decided to approve the stipulation and make it a part of the record, and to transfer the proceeding to the Board for the purpose of making findings of fact and conclusions of law, and for the issuance of a Decision and Order On the entire record and the briefs, the Board makes the following FINDINGS OF FACT I JURISDICTION The Employer, a corporation, is engaged in the wholesale distribution of beer at its facility in Prov- idence, Rhode Island Annually, in the course and conduct of those operations, the Employer pur- chases and receives at its Providence facility prod- ucts, goods, and materials valued in excess of $50,000 directly from points outside Rhode Island We find that the Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Respondent is a labor organization within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A Facts The Respondent is the designated exclusive col- lective-bargaining representative of a unit of em- ployees at the Employer's Providence facility 1 The Employer has recognized the Respondent as the representative of the unit in a series of collec- tive-bargaining agreements, the most recent of which (pnor to the events in this case) was effec- tive from July 1, 1985, to June 30, 1988 2 Between May and September, the Employer and the Respondent met numerous times in an attempt to negotiate a new contract The Employer was represented in those negotiations by its attorney, John Rosenquest, who was accompanied at each session by either Paul Moran, the Employer's presi- dent, or Terrence Moran, the Employer's vice president, or by both The Respondent was repre- sented by its secretary-treasurer and principal offi- cer, Gerald Blmkhorn (who is an admitted agent of the Respondent), and by Peter Taraborelh, the local union steward At the outset of negotiations, the Employer had informed the Respondent that one of its principal bargaining objectives was a reduction in the wage rates paid to casual employees Blmkhorn informed the Employer early in the negotiations that casuals who had worked more than 500 hours for the Em- ployer the previous year would be allowed to par- ticipate in the ratification vote on the Employer's final offer Blinkhorn explained that this practice 'The unit, which the Respondent admits is appropnate, consists of All truck drivers, roadmen, helpers, warehousemen, power-lift oper- ators, switchers, yardmen or platform men regularly and physically engaged either in the local pickup and delivery of beer, the check- ing, stacking, loading, unloading, handling, shipping and receiving of beer employed by the Employer at its Providence, Rhode Island fa- cility, and excluding all other employees, supervisors and guards as defined in the Act 2 Unless otherwise noted, all dates are in 1988 299 NLRB No 7 TEAMSTERS LOCAL 251 (MCLAUGHLIN & MORAN) 31 was required as a result of the International Union's having entered into a settlement with the Teamsters for a Democratic Union (TDU) con- cerning a dispute over ratification of the Master Freight Agreement The last negotiating session took place on Friday, September 23 Most issues had been re- solved before that date, and the parties focused on the issues that were still open (pensions and wages) At the end of the session, the Employer presented its final offer to the Respondent Blink- horn stated that although he considered the final offer unacceptable he would present it to the Re- spondent's membership for approval or rejection at a meeting scheduled for the next day, September 24, at 8 a m About 9 15 a m Saturday, September 24, Blink- horn telephoned Rosenquest at home and informed him that the meeting had been held and that the vote had been 28 to 20 in favor of accepting the Employer's final offer Blinkhorn then told Rosen- quest, "We have a contract You can relax and have a good weekend" The two negotiators then congratulated each other on having reached an agreement Between September 24 and 26, Blinkhorn was told by individuals not named in the record that they had heard that some employees may have voted twice in the September 24 meeting, and that some employees may not have understood the con- tents of the Employer's final offer Blmkhorn con- ducted no further investigation of those allegations Blmlchorn was also informed by William McCar- thy, general president of the Teamsters Internation- al, that, contrary to the position that Blinkhorn had communicated to the Employer, the International believed that casuals should not vote on contract ratification The casuals who voted in the Septem- ber 24 meeting did so according to the eligibility policy of the Respondent that Blmkhorn had ex- pressed to the Employer in negotiations On September 26, Blinkhorn called Rosenquest and told him that complaints had arisen regarding the procedure used at the September 24 meeting, and over the participation in the vote by casual employees Blmkhorn told Rosenquest that as far as the Respondent was concerned, "We do not have a contract" Rosenquest replied that an agreement had been concluded on September 24, and that the Respondent's internal problems did not undo the parties' new contract On Wednesday, September 28, Rosenquest and Blinkhorn met again, this time with Richard Peirce, the Respondent's attorney The three dis- cussed the dispute regarding the existence of a new agreement Rosenquest reiterated that any prob- lems concerning ratification were internal to the Respondent, and that a new contract had come into existence on the members' approval of the final offer and Blinkhorn's informing Rosenquest by telephone that day that the parties had a con- tract Blmkhorn, however, indicated that he intend- ed to submit the Employer's final offer to a second vote on Saturday, October 1 The Respondent thereafter posted at the Re- spondent's facility a notice of the vote scheduled for October 1 On September 29, however, Blink- horn removed the notice and informed the employ- ees that a new contract was in effect That evening, Blinkhorn and Rosenquest spoke again by telephone Bhnkhorn told Rosenquest that he had changed his mind about having a second vote, and said "We have a contract" Peirce called Rosen- quest on the morning of September 30 and stated that the Respondent had again scheduled a second vote for October 1, and that it was the Respond- ent's position that there was no contract in effect A second vote was taken on October 1 on the Em- ployer's final offer, the vote was 31 to 11 to reject the offer On October 7, the Employer presented the Re- spondent with copies of a collective-bargaining agreement purporting to be effective from July 1, 1988, to June 30, 1991, and of a memorandum of agreement on seniority matters Those documents together embody the terms and conditions of em- ployment contained in the Employer's final offer of September 23, which was voted on in the Respond- ent's September 24 meeting and to which Blink- horn referred in telephone conversations with Ro- senquest on September 24 and 29 On October 12, Peirce called Rosenquest and informed him that the Respondent believed there was no agreement currently in force between the parties, and that the Respondent refused to sign either the 1988-1991 contract or the memorandum of agreement on se- niority matters At no time has the Respondent ex- ecuted either document B Issue The only issue is whether the Respondent violat- ed Section 8(b)(3) and (d) of the Act by refusing to sign the contract and memorandum of agreement on semonty matters presented by the Employer C Contentions of the Parties The General Counsel and the Employer contend that the Employer and the Respondent reached a meeting of the minds on September 24, when the employees voted 28 to 20 to accept the Employer's final offer, and when Blinkhorn informed Rosen- quest of that development and said, "We have a 32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD contract" They argue that thereafter, the Respond- ent had an obligation to sign the agreed-on con- tract when it was presented Any internal problems that subsequently developed do not relieve the Re- spondent of its obligation to sign and abide by the terms of the new contract To hold otherwise would allow a union to avoid any agreement that it determined it did not like simply by pleading the existence of some irregularity in the union's own ratification procedures Accordingly, the General Counsel and the Employer contend that the Re- spondent unlawfully refused to sign the new con- tract The Respondent contends that no agreement ever came into existence because the Respondent's members never ratified the Employer's final offer by a meaningful and informed vote It argues that because a union's internal ratification procedures are not open to question by employers, a union acting in good faith has the right to determine whether a ratification vote is fair and conducted according to its internal procedures Accordingly, when questions were raised concerning the propri- ety of the September 24 vote, including the eligibil- ity of casual employees to vote on ratification, the Respondent properly held another vote on the Em- ployer's final offer Because that offer was rejected in the second vote, there is no contract that the Respondent is obliged to sign The Respondent contends that to hold otherwise would be to deny unions the right to police their own internal votmg procedures to ensure that employees cast informed votes D Discussion and Conclusions It is well settled that, when an employer and a union have reached agreement on terms and condi- tions of employment, it is unlawful for one of the parties to refuse to sign a contract embodying the terms of that agreement H J Heinz Co v NLRB, 311 US 514, 526 (1941), Hospital Employees Local 1199 (Lenox Hill Hospital), 296 NLRB 322 (1989) If, therefore, the Employer and the Respondent reached such an agreement on or after September 24, the Respondent has acted unlawfully by refus- ing to execute the contract containing the terms of that agreement We find, contrary to the conten- tions of the Respondent, that an agreement was reached The record clearly establishes that the employees approved the Employer's final offer on September 24, and Blinkhorn communicated that approval to Rosenquest The record further establishes that the employees voted in accordance with the procedure Blinkhorn had announced to the Employer early in the negotiations There can be no doubt, on this record, that Blinkhorn, as the Respondent's agent and principal officer, had at least the apparent au- thority to convey the Respondent's acceptance of the Employer's offer to Rosenquest on September 24 3 Because the parties clearly came to a "meeting of the minds" on September 24, the parties had a contract beginning on that date It is irrelevant that the Respondent subsequently held a second vote at which the Employer's offer purportedly was re- jected, because the contract already had been in effect since September 24 Operating Engineers Local 12 (Tr-County Assn ), 168 NLRB 173 (1967) Accordingly, the Respondent violated Section 8(b)(3) by refusing to sign the contract containing the terms agreed to on September 24 Id The Respondent argues, however, that it alone is privileged to determine which internal procedures it will employ for such matters as contract ratifica- tion, and that it acted within its discretion when it responded in good faith to concerns raised over the procedures employed in the September 24 vote by holding a second vote on the Employer's offer Ac- cordingly, the Respondent contends, it is not bound by the result of the earlier vote We find no merit to this contention The Respondent is correct, of course, in stating that, as a matter of law, it is none of the Employ- er's business how (or even whether) the Respond- ent obtains the employees' approval of the Em- ployer's offer The Board has held consistently that if a union undertakes to submit a contract proposal to a vote of its members, it is for the union, and not the employer, to construe the meaning of the union's internal requirements for ratification North Country Motors, 146 NLRB 671, 674 (1964), M & M Oldsmobile, 156 NLRB 903 (1966), enfd 377 F 2d 712 (2d Cir 1967), 4 Martin J Barry Go, 241 NLRB 1011, 1013 (1979), Newtown Corp, 280 NLRB 350, 351 (1986), enfd 819 F 2d 677 (6th Cir 1987) Thus, an employer may not lawfully refuse to sign a contract on the basis that the union's rati- fication procedures were not in accordance with the requirements of its constitution and bylaws, Newtown Corp, supra, North Country Motors, supra, or that the ratification vote was tainted by proce- dural defects, Martin .1 Barry Co. supra, or even that the union coerced its members into voting for ratification, Utility Tree Service, 218 NLRB 784 (1975), enfd mem 539 F 2d 718 (9th Or 1976) As the Board stated in M & M Oldsmobile, 156 NLRB at 905-906 (footnote omitted) 3 See, e g, Local 1199 (Lenox Hill Hospital), supra, judge's slip op at 10, Ben Franklin National Bank, 278 NLRB 986, 994-995 (1986) 4 The court of appeals in M & M Oldsmobile did not reach the Issue of whether the employer could challenge the union's ratification procedures 377 F 2d at 717 TEAMSTERS LOCAL 251 (MCLAUGHLIN & MORAN) 33 If, as claimed by [the employer], an employ- er were free to challenge the union's assertion that ratification had taken place, it would be difficult, if not impossible, for the parties to a collective-bargaining agreement to arrive at a final settlement without the fear of being forced into protracted litigation regarding the union's compliance with its own procedures, clearly a collateral issue The encouragement of such industrial instability could not have been with the intendment of the Act The Respondent relies on the North Country Motors line of cases in asserting that, because it alone has the authority to interpret its own internal procedures, it was privileged to hold a second vote and, because the employees in the second vote re- jected the Employer's offer, to refuse to sign the contract because no binding agreement was reached Contrary to the Respondent, however, those cases establish that it was not privileged to act as though no agreement was reached on Sep- tember 24 Had the Employer, rather than the Re- spondent, refused after that date to sign a contract embodying the terms of the Employer's last offer, it would have violated Section 8(a)(5) That is be- cause, under North Country and its progeny, a binding contract came into existence when Blink- horn informed Rosenquest that the Employer's offer had been accepted by vote of the employees and that the parties had a contract But if, as of September 24, a contract existed that was binding on the Employer, that contract also was binding on the Respondent For the same reasons the Board enunciated in M ci M Oldsmobile, it would not serve the statutory purpose of encouraging collec- tive bargaining to allow unions to avoid their con- tracts on the ground that they had failed to follow their own internal procedures That the Respond- ent may have mistakenly followed the wrong pro- cedures does not absolve it from being bound by the representations Blmkhorn made to Rosenquest, when Rosenquest had no way of knowing or even suspecting that a mistake may have been made Local 1199 (Lenox Hill Hospital), supra at 322, judge's slip op at 9-10 5 In summary, when Blinkhorn informed Rosen- quest on September 24 that the Employer's offer had been accepted and "We have a contract," the Employer had no choice but to take Blmlthorn's word that an agreement had been reached At that point, a contract existed between the parties, 6 and 5 In allowing casual employees to vote on September 24, the Respond- ent acted in accordance with the intention it had announced to the Em- ployer early in negotiations Thus, Rosenquest had no reason to doubt that the vote on that date was anything but completely valid 6 See Operating Engineers Local 12 (Tn-County Assn), supra the Employer could not lawfully have refused to sign that contract on the basis that the Respondent had failed to follow its own procedures And be- cause the Employer could not lawfully have re- fused to sign, neither could the Respondent CONCLUSION OF LAW By refusing, on and after October 12, 1988, to sign the 1988-1991 collective-bargaining contract and memorandum of agreement on seniority mat- ters, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(3) and (d) and Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act Having found that the Respondent, as the exclu- sive representative of the employees in the unit de- scribed above, engaged in collective bargaining with the Employer and agreed on the terms of a contract governing wages, hours, and other condi- tions of employment for those employees, and having found that the Respondent thereafter re- fused to execute a contract containing the agreed- on terms and conditions of employment, we shall require the Respondent, on request by the Employ- er, to execute that contract ORDER The Respondent, Teamsters Local Union No 251 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO, Providence, Rhode Island, its offi- cers, agents, and representatives, shall 1 Cease and desist from (a) Refusing to execute the collective-bargaining contract, incorporating by reference the memoran- dum of agreement on seniority matters, agreed to on September 24, 1988, as the representative of em- ployees of the Employer, McLaughlin & Moran, Inc, in the following appropriate unit All truck drivers, roadmen, helpers, warehou- semen, power-lift operators, switchers, yard- men or platform men regularly and physically engaged either in the local pickup and delivery of beer, the checking, stacking, loading, un- loading, handling, shipping and receiving of beer employed by the Employer at its Provi- dence, Rhode Island facility, and excluding all other employees, supervisors and guards as de- fined in the Act 34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) On request, execute the collective-bargaining contract with the Employer, including the memo- randum of agreement on seniority matters, agreed to on September 24, 1988 (b) Post at the Respondent's office in Provi- dence, Rhode Island, copies of the attached notice marked "Appendix " Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- ployees 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 material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 1 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" IT IS FURTHER ORDERED that the stipulation is approved and made a part of the record IT IS FURTHER ORDERED that the proceeding is transferred to the Board in Washington, D C APPENDIX NOTICE TO EMPLOYEES AND 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 ordered us to post and abide by this notice WE WILL NOT refuse to execute the 1988-1991 collective-bargaining agreement agreed to with McLaughlin & Moran, Inc on September 24, 1988 WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the nghts guaranteed you by Section 7 of the Act WE WILL, on request, execute the aforesaid col- lective-bargammg agreement TEAMSTERS LOCAL UNION NO 251 A/W INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMER- ICA, AFL-CIO