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

National Labor Relations Board - Board Decisions

Jul 13, 1990

299 N.L.R.B. 30 (N.L.R.B. 1990)

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