Freight, Construction, General Drivers, Warehousemen And Helpers, Local 287

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Freight, Construction, General Drivers, Warehouse- men and Helpers, Local 287, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America and Reed & Graham, Inc Case 32-CB-1603 26 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 1 June 1984 Administrative Law Judge Clif- ford H Anderson issued the attached decision The Respondent and the General Counsel filed excep- tions and supporting 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, findings,' and conclusions 2 and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed 1 The General Counsel has excepted to some of the Judge's credibility findings The Board s established policy is not to overrule an administra tive 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 re versing the findings 2 In adopting the Judge s conclusion that the Respondent Union did not violate Sec 8(b)(3) of the Act by refusing to sign the collective bar gaining agreement as proffered by the Employer, we find It unnecessary to pass on the Judge s discussion in the section of his decision entitled An Alternative Theory We amend the Judge s Conclusion of Law 4 to substitute the word 'agreement for the word "agent DECISION STATEMENT OF THE CASE CLIFFORD H ANDERSON, Administrative Law Judge I heard this case in trial in Oakland, California, on March 13, 1984, pursuant to a complaint and notice of hearing issued by the Regional Director for Region 32 of the Na- tional Labor Relations Board on October 27, 1983, based on a charge filed by Reed & Graham, Inc (the Charging Party or the Employer) on September 19, 1983, against Freight, Construction, General Drivers, Warehousemen and Helpers, Local 287, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Respondent or the Union) The complaint alleges and the answer admits that the Charging Party and the Union have had a longstanding collective-bargaining relationship regarding certain of the Charging Party's employees and that, on or about August 3, 1983, the parties reached full and complete agreement with respect to the terms of a new collective- bargaining agreement The complaint further alleges that the Charging Party requested Respondent to execute a written contract embodying the terms of this agreement about August 17, 1983, and that Respondent on that oc- casion and thereafter to date has failed and refused to execute the contract Respondent denies the Employer requested it to sign the contract agreed upon on August 3, 1983 All parties were given full opportunity to participate at the hearing, to introduce relevant evidence, to call, ex- amine, and cross-examine witnesses, to argue orally, and to file posthearing briefs 1 On the entire record, 2 including oral argument by the Union and a brief from the General Counsel, and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT3 I JURISDICTION The Charging Party is a California corporation with an office and place of business in San Jose, California, and at relevant times has been engaged in the business of manufacturing and supplying asphalt material The Charging Party annually, in the course and conduct of its business operations, sells and ships or provides serv- ices valued in excess of $50,000 directly to customers lo- cated outside the State of California II LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act III ALLEGED UNFAIR LABOR PRACTICE A Facts For many years the Charging Party has been engaged in the business of manufacturing and supplying asphalt material which includes delivery of its products by means of bottom-dump trucks Prior to 1974 the Em- ployer utilized the bottom-dump services of owner-oper- ators and did not have its own employees engaged in such work By 1974 the Employer utilized a mixed com- plement of owner-operators and employee bottom-dump 1 At the commencement of the heanng, counsel for the Union moved that I defer this case so that an arbitrator could resolve the issue present ed I denied the motion and reassert that holding here A precondition to deferral is the existence of a contract which an arbitrator may interpret Where, as here, the question of what, if any, contract binds the parties is an issue, deferral is inappropriate Anaconda Go, 224 NLRB 1041 (1976), enfd mem 578 F 2d 1385 (9th Cm 1978), and cases cited therein 2 The General Counsel s unopposed motion to correct transcript is granted 3 Through the pleadings, written and oral stipulations of fact and the arguments and concessions of counsel at the hearing, the parties substan- tially reduced the factual matters in dispute Where not otherwise noted, these findings are based on the pleadings, stipulations, and/or uncontested documentary and testimonial evidence 272 NLRB No 65 TEAMSTERS LOCAL 287 (REED & GRAHAM) 349 drivers using the Employer's trucks In that year it rec- ognized the Union as representative of its employees in the following unit, which is appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act All bottom-dump transfer rigs and semi-dump driv- ers employed by the Employer out of its San Jose, California facility, excluding all other employees, employees covered by other collective bargaining agreements, office clerical employees, professional employees, guards and supervisors as defined in the Act Since 1974 the Employer has increased its unit employee complement and decreased the number of bottom-dump owner-operators By 1980 and thereafter to the time of the hearing the Employer has not utilized bottom-dump owner-operators The Employer and the Union entered into successive 3-year contracts in 1974, 1977, and 1980 In each case the parties simultaneously signed a side agreement or adden- dum to the contract ("ten truck agreement") providing as follows Memorandum of Agreement The Union recognizes the employer (carrier) has primarily had a broker-owner/operator relation with the drivers and in this respect it is not the intent of the Union to preclude the use of the Owner-Operators by the Employer Therefore, the Union and the Employer hereby agree not to reduce the present number of Compa- ny Trucks (ten (10)) during the duration of this Agreement It is further agreed and understood that all terms, conditions and provisions of Section 30—Subcon- tracting and Section 31—Owner-Operator of the Construction Teamster—A G C Master Labor Agreement (Independent Short Form) shall not be applicable to, or enforceable against REED & GRAHAM, INC , for the work covered by this Agreement which is more specifically detailed in Article I, Section 2 4 The contract signed in 1977 contained a separate ad- dendum in addition to the "ten truck agreement" creat- ing a lower wage truck serviceman classification for the first time 5 During the 1980 negotiations the Employer's 4 The requirement that 10 trucks be maintained by the Employer as set forth in the memorandum agreement result from an attempt to maintain panty between the number of owner operators and the number of em ployees in 1974, 1 e , that there would be 10 employee operated trucks and 10 owner-operator trucks Since the employer no longer uses owner operators, the limitation has had no practical effect on the Employer s recent operations Insofar as the record reflects, since 1980 the Employer has not contemplated and the Union has had no reason to fear a change in unit employment by the Employer which would bnng the limitations of the ten truck agreement" into play 5 This additional unit classification was favorable to the Employer be- cause It created a lower pay rate for certain unit employees who had for merly been in a higher classification negotiator, Reed Graham, proposed that all references to "owner-operators" be deleted throughout the contract and the " ten truck agreement" The effect of the pro- posal was, inter aim, to cancel or eliminate the "ten truck agreement" The Union's negotiator, Don Bogginni, re- jected the Employer's demand insisting that the "ten truck agreement" was crucial to getting the contract rati- fied by the employees The Employer acquiesced in the demand that the "ten truck agreement" and the other references to owner-operators in the 1977-1980 contract were carried forward into the 1980-1983 agreement No discussion occurred regarding the truck serviceman clas- sification addendum in the 1980 negotiations Perhaps a month after the terms of a new contract were agreed upon in 1980, however, Graham telephoned Bogginni and informed him that he had forgotten to include the lower paid service classification in the new contract Bogginni responded that, since the classification had not been discussed in negotiations, it was not going to be added to the contract after the fact Graham, who recog- nized at this point he had made an oversight, acquiesced in the position of the Union and the 1980-1983 contract was signed without a truck serviceman addendum The 1980-1983 agreement expired by its terms on June 30, 1983 In preparation for negotiations for a new 3-year contract, Bogginni for the Union and Graham for the Employer exchanged written proposals The written pro- posals used the 1980-1983 contract as a base The parties denoted contract articles in which no changes were pro- posed from the old contract as "o k" or "same as con- tract" Following the exchange of proposals the two ne- gotiators and a unit employee met at the Union's offices in the first week of July and, again, using the old con- tract as a base, went through the 1980-1983 contract's articles, seriatim, establishing agreement with the 1980- 1983 language or proposing new language The old con- tract the parties used during the negotiations apparently, inadvertently, did not have the "ten truck agreement" addendum physically attached to It At no time during this negotiation session or in the written proposals which preceded it had the "ten truck agreement" been men- tioned or alluded to in any way, nor did the parties use all inclusive or "catch all" language in the negotiations such as "all remaining matter will remain unchanged" Substantial agreement on terms for a new contract was reached at this first bargaining session A second negotiating session was held some 2 weeks later at the Employer's offices with the same partici- pants Again using the 1980-1983 collective-bargaining agreement without the "ten truck agreement" as a base, essentially complete agreement was reached on all terms of a new contract save for certain minor matters pro- posed by the Employer and not then accepted by the Union Bogginni suggested he would submit the agreed- upon items and the Employer's additional proposed changes to the employees for ratification and the Em- ployer agreed Again at this meeting no mention was made by any party to the "ten truck agreement" and no indirect reference adopting all unchanged portions of the old contract was used 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - Several days later Bogginni called Graham and in- formed him that the employees were opposed to the Em- ployer's additional minor changes. Graham told Bogginni to take these proposals out and submit the contract to the employees as they had otherwise agreed. Approxi- mately 3 to 4 weeks later Bogginni came to Graham's office with a typed document prepared by the Union which Bogginni represented to Graham was the agree- ment they had reached and had been ratified by the em- ployees Bogginni requested that Graham sign it and left the document at the office. Later Graham examined the document delivered by Bogginni and discovered that it was an accurate reflection of their agreement save that the new 1983-1986 contract had the "ten truck agree- ment" appended to it. Graham signed the body of the contract and returned it to the Union without the "ten truck agreement" attached. Graham's cover letter ex- plained that, inasmuch as the "ten truck agreement" had never been mentioned during the 1983 negotiations, it was not a proper part of the 1983-1986 agreement. Sub- sequently, by letter dated October 14, 1983, Graham de- manded that Bogginni sign the contract without the "ten truck agreement." The Union had not acquesced in the Employer's demand and counsel for the Union stipulated at the hearing the Union continues to refuse to sign the contract without the "ten truck agreement" as a neces- sary part of the agreement. B. Analysts and Conclusions The case is without essential factual dispute. Based on the above events, the General Counsel and the Employer argue that total agreement was reached as to all terms and conditions of a new contract. They argue that the "ten truck agreement" was a part of the new contract. Complete agreement having been reached, argue the General Counsel and the Employer, the Union is obligat- ed to sign the new contract. The Union agrees that a complete agreement was reached. However, based on the same facts, the Union argues that the context of events demonstrates that the "ten truck agreement," uni- formly present in previous collective-bargaining agree- ments, was carried forward and was a necessary part of the agreement reached by the parties in the 1983 negotia- tions. Accordingly, argues the Union, the Employer should be obligated to sign the contract specifically in- cluding the "ten truck agreement."6 The Board has long held, with Supreme Court approv- al, that a party that has agreed to terms and conditions of a collective-bargaining agreement may be ordered to sign such an agreement. H. J. Heinz Co. v. NLRB, 311 U.S. 514 (1941). Such a "make-sign" obligation has been extended to labor organizations who refuse to sign side- letter agreements or contract addenda if the Union agreed to them as a part of an overall agreement. Hospi- tal Employees District 1199-C (Episcopal Hospital), 241 NLRB 270 (1979). 6 The Union had filed an 8(a)(1) and (5) charge against the Employer contending that the Employer was bound to sign the contract including the "ten truck agreement" The General Counsel dismissed that charge however and It is not in issue before me It is clear no explicit agreement to include or exclude the "ten truck agreement" occurred during the 1983 ne- gotiations for the 1983-1986 contract. Nor was there constructive or indirect reference to it by the use of re- sidual inclusion or exclusion language. There is thus no dispute that the parties were completely silent regarding the "ten truck agreement" throughout the 1983 negotia- tions. In the written exchange of proposals and during the article-by-article perusal and review of the previous contract by the parties during the face-to-face negotia- tions, each and every aspect of the contract was dis- cussed and either carried forward unchanged or modified with the single, glaring, exception of the "ten truck agreement." While in other circumstances this unusual omission might be contrued as part of a hidden agenda or conscious or deliberate omission by either or both parties, I specifically find that this is not the case here. There is insufficient evidence to support even a suspicion that either party was consciously avoiding reference during the negotiations to the "ten truck agreement" in order to obtain, by omission, what might not be obtained by direct demand and negotiation. Thus I find there was no trick intended or relied on by either party during the negotiations to create the situation here at issue. Rather I find the parties simply forgot to consider the "ten truck agreement" addendum during the negotiations and that the current contrary positions of the parties must be ad- judged and resolved without a finding of scienter of either side. Evaluating the record as a whole, including the de- meanor of the witnesses and the negotiations between the parties over the years, I rind that the union negotiator believed that the "ten truck agreement" was carried for- ward into the 1983-1986 agreement and was disabused of that belief only with the Employer's refusal to sign the contract after he presented it I also find that the Em- ployer's negotiator did not realize the omission to discuss the "ten truck agreement" had occurred until after the ratification, at which time, perhaps in recollection of the fate of the service classification in the 1977 negotiations, he concluded the "ten truck agreement" need not be in- cluded in the contract. I also find that neither negotiator had the "ten truck agreement" in his mind at any time during the 1983 ne- gotiations. The testimony is clear that the negotiations in 1983 were amicable and that resolutions of all items under discussion was quickly achieved. It is implausible that the Union, had it been aware of the omission of the "ten truck agreement" during the negotiations or if it held the belief that the Employer would rely on that omission to seek deletion of the "ten truck agreement" addendum, would not have raised the matter during ne- gotiations. So, too, I believe the Employer would have proposed the same changes it had in 1980, if it was seek- ing the deletion of the "ten truck agreement." Thus the omission to raise the matter in negotiations by either side in my view was a result of a simple mistake which may have occurred as a result of the fact that the copy of the 1980-1983 contract that the parties used in their negotia- tions did not have the "ten truck agreement" physically attached to it. TEAMSTERS LOCAL 287 (REED & GRAHAM) 351 Given these findings, it is clear that the parties did not reach agreement on including or excluding the "ten truck agreement" in an actual or subjective sense during the negotiations It is thus initially true that there was no "meeting of the minds" on inclusion or exclusion of the agreement Such subjective agreement or "meeting of the minds" is not necessary in every case however to bind the parties Thus the administrative law judge, with Board approval, stated in Vallejo Retail Trade Bureau, 243 NLRB 762, 767 (1979) It is therefore tempting to rely uncritically on the hoary maxim of the law of contracts that, absent a "meeting of the minds," there is no mutually bind- ing agreement The temptation is avoided, however because the expression, "meeting of the minds" in contract law does not literally require that both par- ties have identical subjective understandings on the meaning of material terms in the contract Rather, subjective understanding (or misunderstandings) as to the meaning of terms which had been assented to are irrelevant, provided that the terms themselves are unambiguous "judged by a reasonable stand- ard" Pittsburgh-Des Moines Steel Company, 202 NLRB 880, 888 (1973), and authorities cited therein See also, e g, Monument Printing Co, 231 NLRB 1215, 1220 (1977), and authorities cited therein The test here therefore is whether or not applying an objective or reasonable standard, irrespective of the sub- jective opinions of the parties, mutual agreement on a new contract without the "ten truck agreement" was reached In the instant case there is no dispute about the words used in the negotiations and no confusion regard- ing the meaning of the written proposals Here the par- ties agree the negotiations were totally silent on the issue Given this, the General Counsel argues that the omission to refer to the "ten truck agreement" during ne- gotiations by either party, applying an objective, reason- able standard constitutes abandonment by the Union of the "ten truck agreement" Given this constructive ac- quiescence in deleting the "ten truck agreement," argues the General Counsel, it is clear that the Union agreed to the contract without the "ten truck agreement" and must now be ordered to sign the contract without it The Union correctly points out that the "ten truck agreement" was but one part of the contractual scheme in the earlier contracts regarding owner-operators 7 Counsel for the Union points out that in 1980 the Em- ployer sought to eliminate all references to owner-opera- tors throughout the contract and that the Union success- fully resisted those changes In 1983 the parties specifi- cally agreed to carry forward unchanged the references to owner-operators in the body of the contract These facts, argues the Union, objectively indicated to the Union that the "ten truck agreement," too, would be car- ried forward as part and parcel of the owner-operator regulatory scheme contained in the 1980-1983 contract The Union argues that it could rely on this "objective 7 Various articles in the body of the contract deal with the Employees rights to utilize such contractors evidence" that no owner-operator language changes, as the Employer proposed and the Union rejected in 1980, were proposed in 1983 Thus the Union concludes the "ten truck agreement" was carried forward as a neces- sary part of the new agreement Examining the behavior of the parties at the 1983 ne- gotiations in light of the collective-bargaining history de- scribed above, as well as considering the arguments of the parties, I am not satisfied that the General Counsel has met his burden of proof in showing that by any tra- ditional legal test the parties herein reached binding agreement on a contract which did not contain the "ten truck agreement" I have specifically rejected the argu- ment that there was a subjective meeting of the minds between the parties I have also found that no trick or plan was involved on the part of either party to the ne- gotiations Rejecting the General Counsel's argument, I further find that the silence during negotiations in 1983 concerning the "ten truck agreement" does not consti- tute by any reasonable or objective standard an abandon- ment by the Union of the "ten truck agreement" The history of bargaining between the parties does not con- vince me otherwise The General Counsel argues that the Union well knew the Employer had sought deletion of the "ten truck agreement" in the 1980 negotiations It is also true, however, that when the Union resisted the language deletion in 1980, the Employer quickly aban- doned its demands Further, as the Union argues, the 1980 demands of the Employer included other changes in the language of the contract, which changes were not proposed by the Employer in 1983 Thus I find no agree- ment was reached on inclusion or exclusion of the "ten truck agreement" during the 1983 negotiations In Mercedes-Benz of North America, 258 NLRB 803 (1981), an administrative law judge found that parties had reached complete agreement on a collective-bargain- ing agreement, although the parties had not discussed the commencement date of the contract during the negotia- tions The administrative law judge found a particular commencement date consistent with the remaining agreed-upon terms of the contract and ordered the con- tract signed The Board, reversing the judge, found it significant that the parties had not discussed a date for the commencement of the contract and, accordingly, held the parties had not reached a meeting of minds on that issue and that, therefore, complete agreement on terms and conditions of a contract had not been reached I find that analysis applicable here Since the parties did not reach agreement on inclusion or exclusion of the "ten truck agreement," it is improper for me to substitute my judgment on it for theirs Thus I find complete agreement did not occur I have found that the parties did not reach subjective agreement on a new contract and further that there is not a reasonable basis for determining that an unambig- uous agreement had been reached I find it improper to determine the issue of inclusion myself Accordingly, I find no agreement occurred Inasmuch as no agreement was reached, the Union is under no obligation to sign the contract proffered by the Employer Accordingly, I find the Union in refusing to sign the Employer's version of 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the agreement did not violate Section 8(b)(3) of the Act Therefore I shall dismiss the complaint in its entirety C An Alternative Theory A separate independent rationale exists for refusing to obligate the Union to sign the contract specifically in- cluding the "ten truck agreement" addendum even if the Union's belief the addendum was included in the 1983- 1986 contract is regarded as a unilateral mistake which is insufficent in law to prevent a finding that the Union agreed to the contract as discussed 8 Under contract in- terpretation doctrines in the common law, sounding in the nature of equity, it is appropriate to rescind an agree- ment where a unilateral mistake occurred (1) enforce- ment against the mistaken party will be oppressive or result in hardship or an unequal exchange and (2) rescis- sion will impose no substantial hardship on the other party I believe these criteria have been met in this case and therefore I would not order the Union to sign the contract without the "ten truck agreement" even if the Union might "technically" be bound to do so First, to hold the error of the Union herein must result in its acquescence on the deletion of the "ten truck agreement" without allowing other contract changes, which might have been effected in negotiations, is to deny the Union and the employees it represents the chance to consider and propose alternatives to the simple excision of the protections contained in the addendum Since the limits on the Employer's right to use owner- operators was one of contract and not simply a matter of past practice, the deletion of the restriction from the 1983-1986 contract limits the Union's rights to further bargaining on the subject far more completely than if the Union had never obtained the written protection of the contract addendum and rather relied on the requirements of the Act that an employer bargain with a union before making unilateral changes in unit employees' working conditions 9 Thus, in my view, to force the Union to sign the contract without the addendum will limit the Union's rights as if it had consciously decided to aban- don the clause with full knowledge that the Employer was then free to act without the clause's limitations Thus, if the Union be forced to sign, a unilateral mistake has been transformed by the fictions of legal analysis into a knowing, willful abandonment of potentially important rights 8 The General Counsel correctly argues on brief that if the Union's mistake was unilateral, i e, its own and not the Employer's, it should not be allowed to profit from Its own error I specifically found the mistake herein to be mutual Reviewing authonty may differ however My fur ther alternative findings here may avoid a remand in such a situation 9 This is so, of course, because when a union specifically negotiates away a contract nght, it has done so knowingly and therefore has no fur ther nght at least dunng the life of the contract to be consulted about the employer's actions in that regard Second, I find no substantial harm to the Employer by returning the parties to the bargaining table as opposed to forcing the Union to sign The 1983 negotiations had been amicable and efficient Since the commencement of the bargaining relationship in 1974, the subject of the "ten truck agreement" has neither been the subject of dispute of grievance nor, at least since 1980, has it been more than a theoretical limitation on the Employer's business operations The parties herein have made bar- gaining work with great success through the years Why not resolve the problems and differences which exist be- tween the parties through negotiations where proposals and counterproposals can be exchanged and debated ? A return to the bargaining table thus in my mind will pro- mote free and open agreement Government intrusion now, in my view, will only make a smoothly functioning relationship increasingly defensive and technical In my view a "make-sign" order will do serious injury to the bargaining relationship Thus, even were my analysis of the negotiations, supra, to be in error and the Union held to have agreed to the contract, as argued by the General Counsel, I would not order the "make-sign" remedy sought but would dismiss the complaint and return the parties to the bargaining table On these findings of fact and on the entire record, I make the following CONCLUSIONS OF LAW 1 The Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 The Union and the Employer in negotiations in June and July 1983 at no time reached complete argee- ment concerning terms and conditions of a new collec- tive-bargaining agreement 4 Respondent therefore did not violate the Act by re- fusing to sign a contract purporting to be an agent reached by the parties as tendered it by the Employer 5 Respondent has not otherwise violated the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The complaint is dismissed in its entirety IS 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