J. W. Praught Co.

National Labor Relations Board - Board DecisionsJul 18, 1974

212 N.L.R.B. 482 (N.L.R.B. 1974)

482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. W. Praught Company and United Brotherhood of Carpenters and Joiners of America , AFL-CIO. Case 1-CA-9321 July 18, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 14, 1974, Administrative Law Judge Paul Bisgyer issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. to execute with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, through its Norfolk District Council of Carpenters of Norwood , Massachusetts, AFL- C1O,3 herein jointly called the Union , as the exclusive bar- gaining representative of the Respondent 's carpenters in an appropriate unit, an interim memorandum of agreement and a subsequently printed written collective -bargaining contract which embodied allegedly negotiated rates of pay, wages , hours of employment , and other terms of employ- ment. At the close of the hearing , the parties waived oral argument . Only the General Counsel thereafter availed himself of the opportunity afforded the parties to file a brief. Upon the entire record,4 and from my observation of the demeanor of the witnesses , and with due consideration being given to the arguments advanced by the parties, I make the following- FINDINGS AND CONCLUSIONS 1 THE BUSINESS OF THE RESPONDENT The Respondent, a Massachusetts business trust with its principal office and place of business in West Roxbury, Massachusetts, is engaged in the general construction busi- ness, including the installation of plumbing and heating equipment. In the regular course and conduct of its busi- ness, the Respondent annually purchases materials valued in excess of $50,000 from sources outside Massachusetts which materials are transported to its operations within the State. In addition, the Respondent performs services valued in excess of $50,000 at locations outside the State. I, accordingly, find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED DECISION STATEMENT OF THE CASE PAUL BISGYER, Administrative Law Judge. This proceed- ing, with all the parties represented, was heard on Novem- ber 20 and 21, 1973, in Boston, Massachusetts, on the complaint of the General Counsel issued on October 12, 1973,i and the answer of J. W. Praught Company, herein called the Respondent or Company. In issue is the question whether the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended,' by refusing 1 The complaint is based on a charge filed by United Brotherhood of Carpenters and Joiners of America , AFL-CIO. on September 12. 1973, a copy of which was duly served on the Respondent by registered mail on the following day 2 Sec 8(a)(I) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain , or coerce employees in the exercise of the rights guaranteed in section 7 " Insofar as pertinent . Sec 7 provides that "lelmployees shall have the right to self-organization , to form , join or assist labor organizations , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection Sec 8 (a)(5) makes it an unfair labor practice for an employer "to refuse It is undisputed that the Union is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A The Evidence I The Union's initial approach to the Respondent; em- ployment of union carpenters at the Aaron Guild Ele- mentary School jobsite The Respondent is the general contractor at the Aaron Guild Elementary School jobsite in Norwood, Massachu- to bargain collectively with the representatives of his employees" designated by a majority of them in an appropriate unit 3 Norfolk District Council of Carpenters of Norwood, Massachusetts, AFL-CIO herein called the District Council, is a subordinate body of the Charging Party , herein called the International The District Council, which is the governing organ of various local unions , has territorial jurisdiction over , among other areas . Norwood, where the Respondent 's Aaron Guild Elementary School project involved in this case is located The District Council negotiates agreements on behalf of the International and the District Council's constituent local unions The General Counsel's unopposed motion made in his brief to correct the transcript of testimony is granted and the transcript is accordingly corrected 212 NLRB No. 78 J W PRAUGHT CO 483 setts. About the second week in June 1973,5 shortly after work started there, Thomas E. Moseley, the business repre- sentative of the District Council, visited the project to ar- range for the hiring of the Union's carpenter-members. There, he met Dermot J. Fitzpatrick, the Respondent's job superintendent, and George Leolis, the carpenter-foreman. In answer to Moseley's inquiries, Fitzpatrick stated that the Company expected to hire from 6 to 10 carpenters as its needs appeared after the demolition work was completed and assured Moseley that he would then call upon the Union for carpenters. Fitzpatrick also informed Moseley that he intended to hire Roger Flaherty, a member of the Union's Norwood Local 866, who had previously applied for employment. Moseley had some complimentary things to say about Flaherty's ability. In the course of their conver- sation, Fitzpatrick advised Moseley that the Company ran an open shop and that it was its policy to sign no agreement with any trades union but that it would pay union wages and health and welfare and other benefits.6 Several weeks after this conversation the Respondent be- gan hiring carpenters. On or about July 1, the Respondent employed Flaherty and Christy Leolis, the son of the car- penter-foreman. Within the next 2 to 3 weeks, at the Respondent's request, Moseley referred four members of the Union (Charles Zampi, James Russell, Philip Hayes, and Jacques Gadbois), who were thereupon employed on the jobsite. Dunng the same period, John Kasaras, a friend of George Leolis, was also hired 7 About the middle of July, Moseley again visited the job- site and handed Fitzpatrick a copy of the District Council's contract with the Associated General Contractors of Massa- chusetts, Inc., and other employer associations, which had expired on June 15,8 a copy of an interim memorandum of agreement, and forms on which employers report their monthly contributions to certain funds provided for in the 5 Except as otherwise indicated, all dates refer to 1973 6 The foregoing findings are based on the uncontradicted portions of the testimony of Moseley and Fitzpatrick It is also undisputed that prior to Flaherty's employment Fitzpatrick informed Flaherty that the Company operated an open shop It is, however, unnecessary to resolve their conflict in testimony whether Fitzpatrick also apprised Flaherty of the Company's policy not to sign agreements with unions i Shortly after his employment on thejobsite, Flaherty was appointed shop steward by Moseley and from that time on Flaherty kept weekly steward's reports of hours worked by carpenters for pension fund purposes These reports (G C Exits 6A to E), which I find correctly reflect the carpenter employment situation through November 19, the day before the hearing in this case, show the following periods of employment of the named carpen- ters From week ending Through week ending Flaherty 7/2 11/19 Christy Leolis 7/2 11/19 (Except 9/19-10/24) Zampi 7/18 8/9 Russell 7/18 8/9 Hayes 7/25 8/8 Cadbois 7/25 8/8 Kasaras 7/18 11/19 (Except 9/ 19-1 0/ 24 ) prevailing contract. It appears that at that time the parties to the expired contract had already renegotiated a new agreement modifying in several respects the expired con- tract and providing for a wage increase subject to the ap- proval of the Construction Industry Stabilization Committee (CISC) established under the Government's wage-price stabilization program. Pending this approval, printing of the new contract was held in abeyance In the meantime, the Union utilized the above-mentioned memo- randum of agreement as an acknowledgement by the signa- tones of acceptance of the terms of the new agreement, including the wage increase retroactive to June 16 upon approval by the CISC. When Moseley gave Fitzpatrick the above documents, Fitzpatrick stated that he had no authori- ty to sign any agreement but that he would transmit them to the Company's office, although it was the Company's general policy not to sign any agreement with labor organi- zations. As Fitzpatrick had indicated to Moseley, the Respondent refused to sign the memorandum of agreement and Moseley was subsequently so informed. As a consequence, Moseley arranged with carpenters Flaherty, Zampi, Russell, Hayes, and Gadbois to come to the District Council's hall to dis- cuss this problem.9 On July 27, these individuals met with Moseley who explained that the Respondent's refusal to sign an agreement with the Union meant that the Respon- dent was not obligated to make contributions to the pen- sion, health and welfare, and apprentice funds and that, therefore, the carpenters would not be guaranteed pension credit or coverage by the health fund. In order that the Union might be in a position to take appropriate steps, Moseley requested the carpenters to sign cards authorizing the Union to represent them in collective bargaining. The carpenters thereupon signed authorization cards and hand- ed them over to Moseley. Moseley then communicated with Fred T Hansen, coordinator-organizer of the State Council of Carpenters, discussed the situation with him, advised him that he had signed cards from five of the eight carpenters 10 employed on the Respondent's jobsite, and enlisted his as- sistance in unionizing the Respondent 2. The Union 's August 1 meeting with Praught; the re- quest for recognition and a signed agreement On August 1, Union Representatives Hansen and Mose- ley met with Joseph W. Praught , Jr., the Respondent ' s trus- tee and chief executive officer, at the latter's office and presented him with a letter requesting union recognition,' I 8 This agreement was executed on June 16, 1972, and contained some 32 pa^es of comprehensive terms and conditions of employment Not invited were Christy Leolis, who was not a union member, Kasaras, who, it appears, belonged to a local carpenter union outside the District Council's jurisdiction and the carpenter-foreman, George Leolis who ap- parently was also a member of Kasaras' local union 10 As indicated above, one of the eight carpenters, George Leolis, had the title of carpenter-foreman In view of the fact that the Union represented a majority in a carpenters unit, whether or not Leolis is included, it is unneces- sar to determine his supervisory status under the Act This letter was dated August I and stated that the International repre- sented a majority of the Company's carpenters and demanded immediate recognition 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a copy of the expired agreement between the Union and Associated General Contractors and other employer associ- ations, and the interim memorandum of agreement men- tioned above. Praught placed these documents on his desk without reading them. The union representatives then in- formed Praught that the Union represented a majority of the Company's carpenters employed at the Guild Elementa- ry School jobsite, that they had in their possession signed authorization cards to that effect, and that they wanted Praught to sign an agreement with the Union. Inasmuch as the Union's newly negotiated agreement with the employer associations had not yet been printed pending CISC ap- proval of the wage increase, Hansen and Moseley evidently intended Praught to sign the memorandum of agreement. Praught did not question the Union's majority claim or ask to examine the authorization cards, observing, instead, that the Union probably represented a majority of the carpen- ters, "quite a few" of whom had been referred to the job by that organization.12 However, Praught declared that he would not sign an agreement with the Union because it was his policy never to sign any union agreement. He attributed this policy to a past unpleasant experience he had had with a Pipefitters union, although he conceded that his relation- ship with Carpenters trade unions had been satisfactory. Nevertheless, Praught expressed his willingness to continue his practice of paying his carpenters union rates and fringe benefits. In the ensuing discussion, when Praught indicated that he had a general familiarity with the terms of the ex- pired agreement, Moseley advised him of the wage increase the Union had negotiated with the employer associations which was retroactive to June 16 subject to the CISC's approval. In addition, he pointed out a few changes that had been made in certain provisions of the expired contract which were advantageous to the contractors and would be embodied in the new agreement Praught remarked that he was happy over those changes. However, despite the efforts of Hansen and Moseley to persuade Praught to sign the memorandum of agreement, Praught adhered to his deter- mination not to sign any union agreement but repeated his oral assurance that he would pay the new wage rates retro- actively when they were approved by the CISC, as well as the fringe benefits. While Praught might have indicated in the discussions that he had no particular objection to the old or new agreement, the evidence is too equivocal and ambig- uous from which to infer that Praught accorded unqualified recognition to the Union as the exclusive bargaining agent of the Company's carpenters or approved all the terms and conditions of employment set forth in the expired 32-page association agreement, as modified by the contracting par- ties in their recent negotiations. At most, the evidence shows the Respondent's willingness to comply with the monetary requirements and the normal employment practices of the trade. Indeed, according to Hansen's testimony, when Praught was given the expired agreement at the August 1 meeting, Praught said that "he would look it over." More- over, Hansen also testified that at another point in the dis- cussions, after Moseley described the changes which were made in the expired contract and Praught was asked wheth- I2 In answer to Praught's inquiry, Moseley stated that Flaherty. one of the signers of the authorization cards, was a member of the Union er he would sign the memorandum of agreement, Praught answered that he would say neither yes nor no but would look the documents over and that he and the union repre- sentatives would get together again in "a couple of weeks." 13 Whether it was on this or another note, the meet- ing ended without acceptance by Praught of the agreement previously reached by the Union and the employer associa- tions. 3. The Union's further efforts to secure a signed agree- ment; the Union's representation petition and unfair la- bor practice charge On or about August 20, Hansen called Praught on the telephone apparently to inquire about his decision whether to sign the memorandum of agreement. Praught told Han- sen that he was busy and that he and Moseley should go to the jobsite to see Superintendent Fitzpatrick to whom he had given all the information and union documents. There- upon, Hansen arranged for Moseley to speak to Fitzpatrick. On or about August 24, Moseley went to the jobsite. How- ever, nothing came of this visit as Fitzpatrick advised Mose- ley that he lacked authority to sign an agreement with the Union. In the meantime, on August 22, Hansen filed in the Board's Regional Office a petition for certification as the bargaining representative of a unit of carpenters (Case 1- RC-12896). The petition alleged, among other things, that request for recognition was made on August l and was declined by the Company on the same day Subsequently, this petition was withdrawn when the complaint in the pre- sent case was issued on October 12 on the basis of an unfair labor practice charge filed by the Union on September 12. In contradiction of the allegation in the representation peti- tion, the charge alleged that on or about August I the Re- spondent recognized the Union as the collective-bargaining representative of the carpenter employees and has continu- ously since that date refused to sign any agreement negotiat- ed with the Union. On September 3, the CISC approved the wage increase previously negotiated by the Union and the employer asso- ciations, effective as of June 16 On September 20, Moseley sent to the contracting employers letters advising them of this approval. An identical letter was mailed to the Respon- dent. The following week the new agreement was printed embodying the new wage rates, fringe benefit allocations, and other comprehensive terms and conditions of employ- ment. The next meeting between the Union and Praught oc- curred in the afternoon of October 5. Only Hansen attended as the agent of the Union, Moseley having become in the meantime Persona non grata to Praught. This meeting was arranged in the mormng when Hansen telephoned Praught and requested an opportunity to resume discussions for a signed agreement. In the course of the telephone conversa- tion, Hansen reasserted the Union's claim to majority status and its desire for a signed collective-bargaining agreement. It does not appear what agreement Hansen wanted 13 The foregoing findings are based on a composite of the testimony of Hansen , Moseley, and Praught, which appears to me to reveal what probably transpired at their August I meeting J W. PRAUGHT CO signed-the memorandum of agreement or the recently printed new association contract. In any event, Praught made it plain that he was not inclined to alter his position, although he offered to give the Union a statement to the effect that he would pay the wage increase and fringe bene- fits, which he was doing anyway. This proposal was rejected by Hansen. In this conversation, Praught also expressed his annoyance that an unfair labor practice charge had been filed by the Union. The afternoon meeting was essentially nothing more than a repetition of Hansen's earlier efforts to induce Praught to sign an agreement and Praught's expressed determination never to sign collective-bargaining agreements as a matter of principle. On this occasion, Hansen presented Praught with a copy of the new agreement which Praught declined to receive or execute. However, Praught renewed his prior proposal to give the Union a statement committing himself to pay the wage increase retroactively and fringe benefits. Again, Hansen declined the offer and Praught accused the Union of ulterior motives and threatened that, if the Union persisted in its demands for a signed contract, he would not pay the carpenters the increased wage rates or the retroac- tive monies but would, instead, request a return of his past contributions to the various funds.14 The conversation closed with Hansen saying that he would discuss Praught's final position with the District Council's agent. As events turned out, this was the last meeting between the Union and Praught.15 Hansen's subsequent attempts to arrange a meet- ing with Praught proved to be futile. Notwithstanding the fact that the Respondent was not a party to any written contract, it initially paid its carpenters on the Guild jobsite the wage rates and, on their behalf, made the contributions to the pension and health and wel- fare funds, as provided in the expired association contract. When it was apprised by the Union that the wage increase was approved by the CISC, the Respondent paid the new rates. B. Concluding Findings I Appropriate unit; the Union's majority status The carpenters here involved perform work customarily performed by members of the carpenters trade, including framing, form, and partition work, the installation of wood products, and related finishing work. Admittedly, they com- prise a skilled craft. Accordingly, I find that a unit of car- penters employed by the Respondent at the Guild Elementary School jobsite is appropriate for collective-bar- gaining purposes.16 As the evidence recited in the preceding part of this Decision establishes that on August 1, when the Union requested recognition from the Respondent, five of the seven or eight carpenters in the bargaining unit were members of the Union who had signed authorization cards, 14 In his earlier testimony, Hansen indicated uncertainty whether this threat was made during the October 5 office meeting or in his telephone conversation he had with Praught on the same day 15 In making the foregoing findings regarding the October 5 conversations. I rely on Hansen's testimony which I find to be more plausible and reliable than Praught's 16 The J L Hudson Company , 155 NLRB 1345. 1349 (1965) 485 I find that at all material times the Union has been the exclusive collective-bargaining representative of the em- ployees in that unit. 2. The Respondent 's refusal to sign an agreement Section 8(d) of the Act defines, in no uncertain terms, the bargaining duty of employers and unions alike to include "the execution of a written contract incorporating any agreement reached if requested by either party," as the "fi- nal step in the bargaining process." 17 As there is no ques- tion that the Respondent adamantly refused, on request, to sign the interim memorandum of agreement and the subse- quently printed collective-bargaining contract the Union had negotiated with the employer associations,18 the sole issue to be decided here is whether the Respondent had verbally agreed in its discussions with the Union to be bound by all the terms and conditions of employment ulti- mately embodied in the association contract. From a careful analysis of the record, I find that the evidence falls short of establishing such an equivocal and unambiguous acceptance by the Respondent of all the terms and conditions of employment previously negotiated by the Union with the employer associations as to place the Respondent under the statutory obligation to sign a con- tract containing those provisions, as the General Counsel and the Union argue. At most, the evidence discloses the Respondent's willingness only to pay the prescribed union wages retroactively upon CISC approval and the fringe ben- efits, as well as to observe the general employment practices of the carpenters trade. Indeed, there is serious doubt whether the Respondent had even accorded the Union rec- ognition as the carpenters' exclusive bargaining agent on August 1 when the Respondent purportedly agreed to be bound by both the monetary and nonmonetary terms nego- tiated by the Union and the employer associations. Signifi- cantly, as noted above, the Union alleged in its representation petition that the Respondent had refused to grant it recognition on that date when it was requested. In these circumstances, to require the Respondent to sign the memorandum of agreement or the subsequently printed as- sociation contract would be tantamount to imposing a con- tract upon the Respondent for which it had not bargained. This, undeniably, the Act does not sanction.19 In sum , I find that the General Counsel failed to sustain his burden of proving by a preponderance of the evidence that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to sign the memorandum of agreement or the association contract, however misguided the Respon- dent might otherwise have been regarding its statutory duty to execute "a written contract incorporating any agreement reached" 20 with its employees' exclusive bargaining agent concerning the terms and conditions of employment. Ac- cordingly, dismissal of the complaint is recommended. 17 H J Heinz Company v N L R B, 311 U S 514, 525 (1941) 16 Clearly, there is no evidence, nor is any contention made, that the Respondent was obligated to sign any agreement with the Union by reason of membership in. or other relationship with, any contrating association 19 Cf H K Porter Company, inc v N L R B, 397 U S 99 (1970) 20 Sec 8(d) of the Act 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in the unfair labor practices alleged in the complaint Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, I issue the following recommended: ORDER 21 It is ordered that the complaint issued herein against the Respondent, J. W. Praught Company be, and it hereby is, dismissed in its entirety 21 in the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions. and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings. conclusions, and Order, and all objections thereto shall be deemed waived for all purposes