New Orleans Stevedoring Co.

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1076 (N.L.R.B. 1992)

1076
308 NLRB No. 158
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On May 14, 1992, Administrative Law Judge William N. Cates
issued the attached decision. The Respondent filed exceptions and a
supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 reversing the findings.
3 We agree with the judge’s finding that the Respondent agreed to
the proposed contract on May 14, 1991, when General Manager
Flanagan, after receiving a copy of the agreement, told Union Rep-
resentative Ellis that it ‘‘looked okay to him.’’ Accordingly, we find
it unnecessary to pass on the judge’s conclusion that the negotiations
between Transocean Terminal Operators (TTO) and the Union be-
tween February and April 1991 constituted joint bargaining, binding
the Respondent to any agreements reached by TTO.
1 All dates are in 1991 unless I specify otherwise.
2 On a weekly basis, as many as 400 employees are covered by
the DSA.
New Orleans Stevedoring Company and General
Longshoremen Workers, Local No. 3000, Inter-
national Longshoremen’s Association. Case 15–
CA–11565
September 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
An exception filed to the judge’s decision in this
case1 presents the question whether the Respondent
violated Section 8(a)(5) and (1) by failing to execute
a written contract embodying a full and complete col-
lective-bargaining agreement between the Respondent
and the Union.
The Board has considered the exceptions in light of
the record and brief and has decided to affirm the
judge’s ruling, findings,2 and conclusions3 and to
adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, New Orleans Stevedoring
Company, New Orleans, Louisiana, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Kathleen McKinney, Esq., for the General Counsel.
Douglass M. Moragas, Esq., of Harahan, Louisiana, for the
Respondent.
Jerry L. Gardner Jr., Esq. (Gardner, Robein & Urann), of
Metairie, Louisiana, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. I heard
this case in trial in New Orleans, Louisiana, on March 23,
1992, based on a complaint and notice of hearing issued by
the Regional Director for Region 15 of the National Labor
Relations Board (the Board) on August 9, 1991,1 following
his investigation of an unfair labor practice charge filed by
General Longshoremen Workers, Local No. 3000, Inter-
national Longshoremen’s Association (the Union) on June
27. In substance, the complaint alleges that on or about May
15, New Orleans Stevedoring Company (the Company or
NOSC) reached a full and complete agreement with the
Union regarding terms and conditions of employment of cer-
tain of its employees, and that on or about May 31, the
Union requested the Company execute a written contract em-
bodying the agreement and that since on or about June 13,
the Company, by oral statement, has failed and refused to do
so. It is alleged that the Company’s failure to execute such
a written contract violates Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act (the Act).
The Company’s answer admits it is ‘‘an employer’’ whose
operations are ‘‘in commerce’’ within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that its revenues are
derived from its function as an essential link in the transpor-
tation of freight and commodities in interstate commerce sat-
isfies the Board’s standards for assertion of jurisdiction and
that the Board’s jurisdiction over this controversy is properly
invoked.
The Company admits its vice president/general manager
Flanagan is a supervisor and agent within the meaning of
Section 2(11) and (13) of the Act, and that he has the author-
ity, but has refused to, sign an agreement with the Union be-
cause it asserts no agreement was ever arrived at with the
Union for the unit employees involved here. The Company
denies having violated the Act in any manner alleged in the
complaint.
It is admitted the Union is a labor organization within the
meaning of Section 2(5) of the Act.
All parties were afforded a full opportunity to call, to ex-
amine and cross-examine witnesses, and to present relevant
evidence. I have considered the entire record including the
parties’ briefs. I carefully observed the demeanor of the wit-
nesses as they testified. Based on the above, and more par-
ticularly on the findings and reasonings set forth below, I
will find the Company violated the Act essentially as alleged
in the complaint.
FINDINGS OF FACT
I. BRIEF OVERVIEW
The Company and Union have for an extended time been
parties to two collective-bargaining agreements. One of the
two agreements is the Deep Sea Agreement (DSA) which is
a multiemployer agreement that covers stevedoring work per-
formed at this and other employers on the Port of New Orle-
ans, Louisiana.2 Negotiations for the most recent DSA com-
1077NEW ORLEANS STEVEDORING CO.
3 Three employees of the Company are covered by the GYA.
4 The Union, the Company, and other members of the multiem-
ployer bargaining association were meeting on these same dates in
an effort to negotiate a new DSA. The meetings on the GYA took
place during breaktimes in the DSA negotiations.
5 Benny Holland and Clyde Fitzgerald, president and financial
secretary/treasurer, respectively, of the South Atlantic and Gulf
Coast District of the Union were present at the December meetings
as well as Union President Joseph.
6 The two gear yard employers at the Port of New Orleans other
than the Company are Transocean Terminal Operators (TTO) and
Ryan-Walsh, Inc. (Ryan-Walsh).
7 The above description of the December meetings is taken from
Union Representative Ellis’ credited testimony. General Manager
Flanagan only gave very generalized testimony about the December
negotiations. Flanagan did testify ‘‘the Union was trying to encour-
age us to sign some Gear Yard Agreement. we discussed various
things, but no decision was reached [i]t got to be a loud yelling
match.’’
8 The Company and Union, among others, met on this occasion at
the offices of the New Orleans Steamship Association to discuss
container royalties and the GYA discussions were had during a
break in the royalties discussions.
menced in August 1990 and resulted in an agreement that is
effective until 1994. The parties’ second agreement covers
the employees of the Company that maintain and repair
equipment including containers serviced and repaired by the
Company whether such equipment is owned, leased, or oth-
erwise used by the Company. It is this latter agreement
known as the gear yard agreement (GYA) that is at issue.3
II. THE FACTS
Certain pertinent facts are not disputed and are set forth
without identifying the witnesses that testified with respect
thereto. Where facts are disputed, the conflicting versions
will be set forth or noted. Appropriate resolutions of credibil-
ity will be made for all conflicts at one specific point in the
decision.
The employers that are signatory to the DSA at the Port
of New Orleans are also parties to gear yard agreements.
However, the GYA’s have traditionally, as was the case here
been negotiated separately between the Union and the var-
ious employers whereas the DSA is negotiated on a multiem-
ployer basis. The Company and Union have been parties to
a GYA at least since the 1970s. The most recently negotiated
GYA, other than the one at issue here was negotiated in
1980 and was effective from October 1, 1980, until Septem-
ber 30, 1983. By various memorandums of agreement and/or
otherwise, the agreement was extended until November 30,
1990.
On September 18, 1990, Union President Irvin Joseph no-
tified Company General Manager Flanagan and the other em-
ployer representatives that the GYAs would not be extended
and that the Union was ready to enter into negotiations with
each employer for new GYAs.
In November 1990, the Union presented the Company a
14-page written proposal for a new GYA.
Union Financial Secretary/Treasurer Mark Ellis and other
representatives of the Union met with General Manager
Flanagan on two occasions in early December4 regarding a
new GYA.
The first of the two December meetings took place on De-
cember 4. Union Representative Ellis5 explained to General
Manager Flanagan that the three main issues the Union want-
ed in a new GYA were wage parity with the longshoremen,
no subcontracting of unit work, and portwide seniority for
the three gear yard employers.6 General Manager Flanagan
told the Union the Company could hire mechanics at less
than longshoremen wages and added he did not wish to be
compelled by portwide seniority to have to hire someone his
Company might find unsuitable for employment. Flanagan
also did not want to accept a no subcontracting provision in
any new GYA.
The second December meeting took place on either late
December 7 or during the early morning hours of December
8, 1990. This meeting also took place during a break in the
ongoing DSA negotiations. Union Representative Ellis again
explained what it would take to arrive at a GYA, specifi-
cally, the three items he had raised with Flanagan in their
earlier December meeting. Ellis said the Company was not
willing at that time to reach an agreement that included the
three specifically sought provisions.7
The Union and Company next met on January 3.8 Those
present for the Union in addition to Union Representative
Ellis were Union President Joseph and Union Attorney Wil-
liam Lurye. (Union Attorney Lurye). Ellis started the meet-
ing by telling General Manager Flanagan the Union and an-
other gear yard employer, TTO, had reached an agreement
on the ‘‘big three items that [the Union] wanted . . . in the
contract this time around.’’ According to Ellis, they then
‘‘argued’’/discussed those three critical items. Ellis said he
first explained to Flanagan, regarding port wide seniority,
that ‘‘there was no problem with them having to hire some-
one that wasn’t qualified out of the pool, or someone that
had been discharged from another company.’’ Flanagan was
concerned about having the authority to choose only the em-
ployees he felt were appropriate when hirings took place. Re-
garding the issue of no subcontracting, Ellis testified:
[W]e explained to them that anything that they were
doing at the time in their shops, they would be able to
continue doing; that the no subcontracting provision
was designed to stop any further erosion of ILA work,
and not to try to recapture anything that may have gone
out of the door in the past.
Flanagan expressed concern that he not be restricted from
continuing to operate as he was currently doing. Ellis assured
Flanagan the Union simply did not want to lose any more
unit work to outside contractors than had already been lost.
Ellis explained to Flanagan the Union had settled all mon-
etary issues with TTO by agreeing to phase in parity for the
gear yard employees with the stevedore employees over a 4-
year period rather than having it all up front the first year.
Ellis told Flanagan it was the Union’s desire that wage parity
be achieved by the final year of the new GYA. General
Manager Flanagan was concerned about being forced into a
position where the Company would not be competitive and
he expressed an opinion that he could hire qualified mechan-
ics on the waterfront for the wages the Company was then
paying or even less.
It is undisputed the Company and Union did agree to par-
ity of wages phased in over 4 years for the gear yard em-
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Union Attorney Lurye testified the parties did not arrive at a final
agreement at this meeting but that he ‘‘viewed it as an agreement
in principal.’’
10 The Company is headquartered in Texas where General Man-
ager Flanagan’s younger brother resides and serves as president of
the corporation.
11 Ellis at times was joined in the negotiations by Union Attorney
Lurye and/or Union President Joseph as well as others.
12 Those present for the Union in addition to Union Representative
Ellis were Union President Joseph and Union Vice President Charles
Coleman.
13 The Union agreed to meet with the three gear yard employers
without locking them into a multiemployer bargaining arrangement.
14 The three-page fax Ellis sent to the employers on February 28,
reflects approximately three changes to art. III related to ‘‘hiring
procedures’’ and one change to art. IV related to ‘‘seniority.’’
15 TTO Vice President Teissier testified no agreement was reached
at the February 27 meeting ‘‘other than we would get back to them’’
on art. III and IV. Teissier testified he was ‘‘the point man’’ and
that after the February 27 meeting, he reviewed issues that he and
Ellis discussed with NOSC General Manager Flanagan and Ryan-
Walsh Senior Vice President Baker. Teissier said he and Ellis
‘‘faxed’’ information back and forth several times after the February
27 meeting regarding changes to articles III and IV.
ployees so that their pay would equal that of the stevedores
under the DSA. The Company implemented the first phase
of wage parity on January 28.
Ellis testified, regarding the parties’ understanding, on the
other key issues on January 3:
I asked Mr. Flanagan if we had an agreement. And
Mr. Flanagan agreed that we had an agreement. And
the three of us—or the four of us in the room, the three
from the ILA and Mr. Flanagan . . . stood up and
shook hands with each other.
Ellis said they did not have a final agreement:
It was still going to have to be reduced to writing.
But it was agreed that we were going to have a contract
that embodied those three principal items that I had de-
scribed.9
General Manager Flanagan described the January 3 meet-
ing as one where the Union indicated they needed ‘‘some
type of seniority protection for the men’’; ‘‘a no subcontract-
ing clause’’; and ‘‘parity with the longshore wages.’’ Flana-
gan said ‘‘exact details were not discussed’’ but he said he
did agree’’ in ‘‘principle’’ with the three key items the
Union was seeking.
General Manager Flanagan testified he told the Union’s
representatives at the January 3 meeting ‘‘that whatever we
come up with has to be approved by the people in Texas.’’10
Union Representative Ellis, Union President Joseph, and
Union Attorney Lurye all deny Flanagan said anything about
his authority to negotiate and/or to execute an agreement
being limited or that he had to obtain anyone’s approval of
whatever final product might be negotiated.
It is acknowledged that General Manager Flanagan met
with Union Representative Ellis at Ellis’ office on or about
January 7. The two had ‘‘a brief discussion over the pro-
posed language of the agreement.’’ Ellis said it was a ‘‘rath-
er congenial meeting’’ at which ‘‘seniority and the sub-
contracting provisions’’ were discussed. General Manager
Flanagan testified they discussed ‘‘various points’’ in the
GYA with Ellis suggesting ‘‘some wordings’’ that Ellis con-
tended would ‘‘clarify’’ their agreement but that he (Flana-
gan) ‘‘was not completely happy’’ with Ellis’ proposed clari-
fying language.
Flanagan testified he told Ellis at this meeting that what-
ever was arrived at would have to be approved by Texas.
Ellis denied Flanagan mentioned any such limitations or re-
strictions on his negotiating authority.
Union Representative Ellis testified that after the January
7 meeting, with Flanagan, the Union decided that since the
GYA had not been rewritten in such a long time that it
would be best for the Union to select the employer of the
three involved it perceived would be ‘‘the hardest to actually
get [an agreement] nailed down’’ with and concentrate on
that employer. The Union selected TTO.
Ellis stated that commencing on January 14, he began de-
tailed negotiations with TTO’s vice president Richard
Teissier.11 Ellis testified he and Teissier attempted to refine
language on, among other subjects, no subcontracting and se-
niority and that when it appeared they were about to reach
an agreement on hiring procedures and seniority Teissier
faxed him a message requesting the Union meet jointly with
the three gear yard employers, namely, the Company (Ryan-
Walsh and TTO). Teissier’s February 21 fax to Ellis, reads
in part as follows:
REF: GEARYARD CONTRACT
With earlier changes mutually agreed to, this leaves
only article III and IV to finalize. Since both referred
to articles are newly proposed and relate to portwide
practices it is TTO’s position that these particular arti-
cles should be jointly discussed with Ryan Walsh,
NOCS, [Teissier’s way of identifying the Company
herein] and TTO. We are requesting that a mutually ac-
ceptable date be agreed to in order to fully discuss
these proposed issues. When acceptable wording is
agreed to, we will be in a position to officially sign
contract agreement. We wish to assure you that we are
as anxious as you to finally conclude this agreement,
and look forward to finalizing the (2) two remaining
issues.
On February 27, the Union12 met with TTO Vice Presi-
dent Teissier, General Manager Flanagan, and Ryan-Walsh’s
senior vice president, Kingsley Baker, at TTO’s head-
quarters.13 Ellis testified the parties ‘‘bickered a lot about
[seniority] language’’ but that they also discussed ‘‘manning
night-time operations’’; and the requirement for gear yard
employees on ‘‘weekends,’’ ‘‘holidays,’’ and on ‘‘automated
ships.’’ Ellis testified that when the meeting ended, there was
no complete agreement but it was understood that since he
had everything in his computer, he would prepare the nego-
tiated changes and ‘‘get [the changes] to the three employ-
ers’’ and they could then see where they were in negotia-
tions.
Ellis testified he sent the negotiated language changes14 to
all three gear yard employers but that he continued to talk
with TTO Vice President Teissier ‘‘in refining the final lan-
guage.’’15
1079NEW ORLEANS STEVEDORING CO.
16 On that same occasion, Teissier ‘‘faxed’’ General Manager
Flanagan and Ryan-Walsh Senior Vice President Baker the following
message:
REF: GEAR YARD CONTRACT
In the event you have not already received same, we herein
enclose changes agreed to by 3000 re our joint meeting of Feb-
ruary 27th. Upon review of my notes, all appears to be in order
except the following:
(1) ARTICLE IV—‘‘SENIORITY’’
Mark was waiting for us to propose new wording which
Kingsley has now received from [Attorney] David Walker read-
ing as follows and which I have no problem proposing to Mark;
‘‘Seniority shall prevail to the fullest extent possible, consistent
with the employer’s right to make work assignments under this
article.’’
(2) ARTICLE IV—(1a)
We proposed ending sentence after ‘‘The Current Employer.’’
Not addressed by Ellis.
(3) ARTICLE IV—SECTION 4 (2d)
We proposed (3) three years, Mark held at (5) years. This is no
strike issue with me since this only applies to referral when an
employee is on lay-off from his employer and taking into con-
sideration our agreement whereas employers’ seniority will take
precedence over port-wide seniority.
Suggest we hand tough on Article IV, Section 1(a) and agree
to Section 4 (2d) as proposed by Mark.
Please give me a call and lets discuss.
17 Ellis testified that while he and Teissier were working through
language for art. III and IV, that Teissier represented he was speak-
ing for the other two employers namely, Ryan-Walsh and NOSC, on
art. III and IV. General Manager Flanagan denied Teissier was at
any time his authorized representative for any negotiations with the
Union.
18 Union Attorney Lurye testified, without contradiction, that At-
torney Walker told him when they talked sometime in April that he
represented all three employers in their efforts to arrive at acceptable
contract language. General Manager Flanagan denied Walker was
ever authorized to speak on behalf of NOSC.
Union Representative Ellis testified he and TTO Vice
President Teissier spoke and/or communicated via fax once
or twice a week after February 27, until a final agreement
was arrived at with TTO.
On March 27, Teissier faxed Ellis a one-page memoran-
dum16 that in pertinent parts reads as follows:
Re your fax February 28th, note majority of items ad-
dressed by TTO/RW/NOCS [Teissier’s way of identify-
ing the Company herein] agreed to by you. Have poled
RW/NOCS and would hope to finalize Thursday/Friday
however, in interim, would like to know if you dis-
cussed suitable wording under Article IV Section (1a)
with Bill [Union Attorney Lurye] that could satisfy our
joint concerns. Putting aside Articles 3 & 4 for time
being, would now like to address only those remaining
issues relating only to TTO.17
On April 16, Teissier ‘‘faxed’’ Union Representative Ellis
a one-page memorandum regarding the GYA in which he
noted further revisions to articles III and IV. In his memo-
randum, Teissier advised Ellis the proposed language
changes had ‘‘been reviewed with both [Ryan-Walsh] and
[NOSC].’’ Regarding one of the proposed changes, Teissier
indicated ‘‘as previously, discussed, TTO/RW/NOSC posi-
tion remains unchanged and will accept proposed verbiage’’
provided certain words were deleted in the paragraph. As to
still another part of article IV, Teissier wrote ‘‘after further
review, we accept wording as proposed by you.’’
TTO Vice President Teissier also sent General Manager
Flanagan and Ryan-Walsh Seniority Vice President Baker a
‘‘faxed’’ memorandum on April 16, with his April 16 memo-
randum to Ellis attached. In his memo to the employers,
Teissier pointed out certain proposed language changes for
articles III and IV; made reference to Ryan-Walsh Senior
Vice President Baker’s having obtained advice from Attorney
David Walker; and, sought the comments of Flanagan and
Baker.
On April 25, Teissier sent Ellis a faxed message in which
he noted they only had one item remaining on seniority then
they would have an agreement. Teissier said that when nego-
tiations for TTO were being finalized, he specifically advised
General Manager Flanagan ‘‘that we had set up a conversa-
tion between Mr. Lurye18 [Union Attorney] and Mr. Walker
[TTO’s attorney] and that so far as Kingsley [Baker of Ryan-
Walsh] and I were concerned, the change under that seniority
classification was found acceptable.’’ On April 30, Ellis
wrote Teissier that ‘‘the last remaining issue [had] been re-
solved by their attorneys [Lurye and Walker]’’ and that he
would drop off a copy of the final agreement for Teissier
that day.
TTO Vice President Teissier testified he subsequently noti-
fied Flanagan and Baker that TTO was in a position to, and
did, on or about April 30, sign a GYA with the Union.
Teissier testified that at the time TTO reached an agree-
ment with the Union, he understood Ryan-Walsh and the
Company had not reached ‘‘an agreement in toto to all
items.’’ Union Representative Ellis testified that after reach-
ing an agreement with TTO, and having the same ratified by
TTO’s gear yard employees, he, on May 9, dropped a copy
of the agreement (with the name changed to the Company)
at General Manager Flanagan’s office for him to review.
Ellis attached a note thereto that reads as follows:
May 9, 1991
Dear Henry—
Enclosed is the final version of the gear yard contract
with Transocean Terminal Operators. All areas of con-
cern were worked out and agreed to including the se-
niority provisions. We will be ratifying this document
tonight. Please review this contract as soon as possible.
I would like to present it to your employees for ratifica-
tion on Tuesday, May 14, 1991.
Thanks
/s/ Mark
Ellis testified that after he dropped the proposed contract
at General Manager Flanagan’s office on May 9, he tried to
telephone Flanagan several times but was unsuccessful. He
said Flanagan finally returned his calls on May 14. Ellis
asked Flanagan if he had reviewed the contract and Flanagan
said he had. According to Ellis, Flanagan wanted to know
how TTO and the Union resolved the very last impasse relat-
ed to management rights. Ellis told Flanagan ‘‘the lawyers
had worked it out.’’ Ellis said he responded to and/or an-
swered other concerns and questions Flanagan had. Ellis tes-
tified ‘‘Mr. Flanagan, at the end of the conversation, told me
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Ellis stated Flanagan ‘‘accepted’’ and ‘‘agreed to’’ the ‘‘iden-
tical contract’’ that TTO agreed to.
20 Due to a death in Ellis’ family, the ratification vote was not ac-
tually held until May 30.
21 Ellis, during rebuttal testimony, denied Flanagan ever stated any
disagreement with the proposed contract. Ellis also denied telling
Flanagan it was tough but he would just have to sign the same con-
tract TTO had signed.
that it looked okay to him.’’19 Ellis told Flanagan he would
like to meet with his employees to ratify the agreement.
Flanagan asked that Ellis not meet with his gear yard em-
ployees until Flanagan’s supervisor returned to the city. Ellis
told Flanagan he did not see why the supervisor needed to
be present but subsequently agreed to Flanagan’s request and
delayed the ratification vote until May 20. According to
Ellis, Flanagan never at any time made mention of having
to obtain approval of the agreement from anyone. Ellis fur-
ther testified Flanagan voiced no objections to the agreement
but rather assisted in setting up a ratification vote on the
agreement.
Subsequently, the Company’s gear yard employees voted
3 to 0 in favor of the new agreement.20
Ellis testified that after NOSC’s employees ratified the
agreement, he had Union President Joseph sign a copy and
that he also took Flanagan a copy with a note for him to sign
it and he would thereafter provide all parties with signed
copies of the agreement.
Ellis testified he did not thereafter see General Manager
Flanagan until June 16, when they were both attending a
meeting of the New Orleans Steamship Association. Ellis
asked Flanagan if he had signed a copy of the GYA. Flana-
gan responded he could not until Texas told him he could.
Ellis said he was ‘‘angry’’ and didn’t want to make a scene
in front of others from the Steamship Association so he sim-
ply walked away from Flanagan. Ellis subsequently asked
Flanagan to sign the agreement and even threatened to go to
the Board if Flanagan did not do so. Ellis stated that to date,
the Company has not signed the GYA.
General Manager Flanagan testified that on or about May
9, he received a copy of the contract the Union had nego-
tiated with TTO. He said he was away from his office at the
time but that Ellis left a note for him to consider the agree-
ment. Flanagan testified:
I talked to Mr. Ellis at some point after May 9.
Maybe it was May 9; I don’t have the exact date to
give you. But I told him that—basically, that we did
not negotiate this contract, that we cannot be held to
somebody else’s contract, that we would like to nego-
tiate.
Flanagan stated Ellis responded it was what TTO had
agreed to and that it should be good enough for him.21
Flanagan said Ellis asked to present the contract to NOSC’s
employees for ratification. Flanagan said he asked Ellis to
delay the vote because his supervisor, Glenn West, was out
of the city and he had not had an opportunity to discuss the
agreement with Texas and that ‘‘we certainly didn’t approve
of the contract at that date.’’
Flanagan testified he subsequently told Ellis NOSC had
not had an opportunity to negotiate an agreement with the
Union. Flanagan could not recall what, if any, response Ellis
made.
Flanagan said he did not know when the ratification vote
at NOSC took place but that Ellis left a note at his office
saying the agreement had been ratified and asked Flanagan
to sign it. Flanagan said he telephoned Ellis and told him,
‘‘Mark, you know you can’t do that, we [have] not agreed
to that.’’
The Company admits it has not signed a new GYA with
the Union.
III. POSITIONS OF THE PARTIES
The positions of the parties may be summarized in general
terms as follows.
Counsel for the General Counsel contends General Man-
ager Flanagan had the authority to negotiate and execute any
agreement arrived at. Counsel for the General Counsel as-
serts that as of mid-May, the parties reached a ‘‘meeting of
the minds’’ on all terms for a new GYA. She contends
Flanagan never at any time prior to arriving at an agreement
expressed any limitation on his negotiating authority or his
authorization to execute any agreement arrived at. She asserts
the Union asked Flanagan to sign the agreement and she ar-
gues Flanagan’s admitted refusal to do so constitutes a viola-
tion of Section 8(a)(5) and (1) of the Act.
The Union’s position parallels that of the General Counsel.
The Company asserts the parties never arrived at an agree-
ment or a meeting of the minds on all issues related to a new
GYA. In that regard, the Company contends the joint meet-
ing on February 27, was not a negotiating session because
the parties were not bargaining in a multiemployer fashion.
Accordingly, the Company argues the only negotiating ses-
sions between it and the Union were held in December 1990
and early January 1991. The Company contends no agree-
ment was arrived at in those negotiating sessions. The Com-
pany argues the Union simply presented it with an agreement
that had been negotiated with another employer, namely,
TTO and insisted it execute it. The Company asserts General
Manager Flanagan told Union Representative Ellis on or
about May 9, that the TTO contract was not acceptable to
it and that the Company wanted to negotiate its own collec-
tive-bargaining agreement. Additionally, the Company con-
tends General Manager Flanagan told Ellis on that same oc-
casion that he would have to run the TTO agreement by his
superiors in Texas for their views on that particular agree-
ment. Simply stated, the Company asserts no agreement was
ever arrived at and as a result it has no obligation to execute
an agreement with the Union.
IV. LEGAL PRINCIPLES
Section 8(d) of the Act, which addresses the obligation to
bargain collectively and in good faith, requires ‘‘the execu-
tion of a written contract incorporating any agreement
reached if requested by either party.’’ Thus, if the parties
reached an agreement, the Company’s failure to execute a
contract embodying the agreed on terms with the Union
would constitute an unlawful refusal to bargain. H. J. Heinz
Co. v. NLRB, 311 U.S. 514 (1941). On the other hand, if
there was no agreement or ‘‘no meeting of the minds’’ as
contended by the Company, then it was not unlawful for the
Company to refuse to execute the contract presented to it by
1081NEW ORLEANS STEVEDORING CO.
the Union. Stated somewhat differently, the Board has no au-
thority to order an employer to execute an agreement to
which it has not assented. H. K. Porter Co. v. NLRB, 397
U.S. 99 (1970). The obligation to execute an agreement
arises only after a ‘‘meeting of the minds’’ on all substantive
issues occurs. See, e.g., Luther Manor Nursing Home, 270
NLRB 949 (1984). As noted in Kelly’s Private Car Service,
289 NLRB 30, 39 (1988), a party’s signifying assent to an
unsigned paper can serve as the formation of a contract. The
issue is simply one of intention. Did the parties intend to
have a contract? In determining whether an agreement has
been arrived at, the Board ‘‘is not strictly bound by the tech-
nical rules of contract law but is free to use general contract
principles adopted to the collective-bargaining context.’’
NLRB v. Electra-Food Machinery, 621 F.2d 956 (9th Cir.
1980). Inadvertent errors in a written agreement does not re-
flect a lack of agreement and the need for minor changes or
alterations in language does not relieve the parties of the ob-
ligation to execute an agreed-on contract. Kelly’s Private Car
Service, supra at 40. The burden of proof on the issue of
whether there was a ‘‘meeting of the minds’’ is on the Gen-
eral Counsel. See, e.g., Teamsters Local 287 (Reed &
Graham), 272 NLRB 348 (1984).
V. CREDIBILITY RESOLUTIONS
Union Representative Ellis appeared generally candid and
impressed me that he was attempting as best he could to tes-
tify truthfully. I am not unmindful of his interest in the out-
come of this case; however, I found him to be a believable
witness. Additionally, Ellis’ testimony was supported by that
of Union Attorney Lurye and Union President Joseph on
those occasions when the two were also present at conversa-
tions about which Ellis testified. The overall circumstances
of the case as well as the documentation presented at trial
generally supports Ellis’ testimony. Accordingly, I credit his
testimony and specifically do so where it conflicts with the
testimony given by General Manager Flanagan. General
Manager Flanagan was to a great extent unresponsive to
questions generally and specifically to questions related to
limitations or restrictions placed on his authority by the
Company’s Texas headquarters. Flanagan seemed anxious to
shift responsibility for his actions (or inactions) to higher of-
ficials of the Company in Texas. In light of all the above,
I am unwilling to rely on Flanagan’s testimony where it is
contradicted by that of other witnesses.
VI. ANALYSIS AND CONCLUSIONS
Applying applicable legal principles to the credited facts I
conclude counsel for the General Counsel sustained her bur-
den of proof in showing the parties reached full agreement
on a contract which, after being requested, the Company, in
violation of Section 8(a)(5) and (1) of the Act, refused to
execute.
First, I note the Company acknowledges General Manager
Flanagan had the authority to negotiate and/or execute a col-
lective-bargaining agreement with the Union. The credited
evidence establishes he never at any time prior to arriving at
an agreement expressed to the Union that his authority was
limited in any manner or that he needed prior approval from
anyone before agreeing to and/or signing a contract. Ellis’,
Lurye’s, and Joseph’s testimony that Flanagan never ex-
pressed any limitation on his authority was convincing and
dispositive of this issue.
Having determined that General Manager Flanagan had
authority without expressed limitations to finalize an agree-
ment, did he, on behalf of the Company, arrive at a new
GYA with the Union? A number of factors clearly indicate
he did. First, General Manager Flanagan admittedly reached
agreement in principle with the Union on January 3, on the
three items the Union contended were absolutely essential to
a new GYA. Flanagan and the three union negotiators even
shook hands on the agreement in principle at the conclusion
of their January 3 negotiating session. Flanagan and Union
Representative Ellis discussed further language changes on
January 7, when Flanagan called on Ellis at Ellis’ office for
that specific purpose. Contrary to the Company’s contention,
the evidence demonstrates the parties along with the two
other gear yard employers (TTO and Ryan-Walsh) did nego-
tiate jointly on February 27, regarding articles III and IV of
the proposed agreement. TTO Vice President Teissier testi-
fied he acted as ‘‘the point man’’ for all three employers on
that and subsequent occasions in attempting to arrive at mu-
tually acceptable provisions that had portwide ramifications,
namely, hiring procedures and seniority. That the February
27 meeting was in fact a negotiating session and binding on
the Company is borne out not only by General Manager
Flanagan’s participation in the meeting, but by the cor-
respondence that was exchanged with Flanagan by TTO Vice
President Teissier. Teissier credibly testified that within a
week to 10 days after he received from Ellis the proposed
changes discussed at the February 27 meeting related to arti-
cles III and IV, that he checked with General Manager
Flanagan (as well as Ryan-Walsh Senior Vice President
Baker) to see if they had received copies of the changes from
Ellis and to determine what, if any, changes they wanted ad-
dressed. That the bargaining after February 27 was on behalf
of all three employers related to articles III and IV, is also
borne out by the memorandum TTO Vice President Teissier
sent to Union Representative Ellis on March 27 in which
Teissier advised Ellis he had polled the other employers
about those articles. TTO Vice President Teissier in a March
27, memorandum to the Company (as well as to Ryan-
Walsh) suggested the employers ‘‘hang tough on Article IV,
Section 1(a) and agree to Section 4 (2d) as proposed by
Mark [Union Representative Ellis].’’ TTO Vice President
Teissier invited General Manager Flanagan and Ryan-Walsh
Senior Vice President Baker to give him ‘‘a call and let’s
discuss’’ the proposed changes. There is no showing that
General Manager Flanagan objected to the negotiations relat-
ed to or the resolution of articles III and IV of the proposed
agreement. Further communication (April 16) between
Teissier and the Union, the Company and Ryan-Walsh re-
flects the position of the three employers remained the same
on certain subsections of the articles under consideration
while upon further review the employers accepted the
Union’s proposal on a specific subsection of these particular
articles. I am persuaded the negotiations regarding articles III
and IV were on behalf of and binding on all three employers.
This conclusion is supported by the testimony of Union At-
torney Lurye that when he and Attorney Walker resolved
final language on these two articles Walker told him he rep-
resented all three employers on these two articles.
1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
23 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
National 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.’’
After the Union reached an agreement on all terms of a
new GYA with TTO and it had been ratified by TTO’s gear
yard employees, Union Representative Ellis on or about May
9, provided General Manager Flanagan with a copy of that
contract with the Company’s name herein substituted for
TTO’s. When Ellis and Flanagan made telephonic contact on
or about May 14, they discussed how the final language had
been arrived at and specifically discussed the entire agree-
ment. It was at that time that General Manager Flanagan told
Union Representative Ellis that the proposed contract looked
okay to him. That Flanagan agreed to the proposed contract
on that day is, in addition to Ellis’ testimony, borne out by
the fact Flanagan assisted Ellis in arranging for a ratification
vote by NOSC’s gear yard employees on the contract. The
only reservation General Manager Flanagan expressed about
scheduling the ratification vote was that his gear yard super-
visor was out of the city. The credited testimony establishes
he did not object to but rather accepted the contract on that
occasion.
After a favorable ratification vote had been taken on May
30, Ellis presented Flanagan with a signed copy of the con-
tract on May 31, and requested he execute it on behalf of
the Company. The evidence establishes Flanagan refused by
oral statement on or about June 15 to do so. Based on Ellis’
credited testimony, June 15, was the first time Flanagan had
raised the issue of his needing to get approval from the Com-
pany’s Texas office to enter into a collective-bargaining
agreement with the Union. Such belated announcement by
Flanagan is of no benefit to the Company. Its negotiator had
negotiated and accepted a contract before any restrictions on
the negotiator’s authority had been made known to the
Union.
In summary, the evidence establishes and I find the parties
arrived at a new GYA on or about May 14, and that the
same was presented to the Company for execution on May
31, and the Company in violation of Section 8(a)(5) and (1)
of the Act refused to do so on or about June 15.
CONCLUSIONS OF LAW
1. New Orleans Stevedoring Company is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. General Longshoremen Workers, Local No. 3000, Inter-
national Longshoremen’s Association is a labor organization
within the meaning of Section 2(5) of the Act.
3. The unit of employees described in article I of the par-
ties’ newly arrived at collective-bargaining agreement con-
stitutes a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. At all times material the Union has been the exclusive
representative of all the employees in the above-described
unit for the purpose of collective bargaining within the mean-
ing of Section 9(a) of the Act.
5. By refusing since on or about June 15, to sign and com-
ply with the collective-bargaining agreement agreed on be-
tween it and the Union on May 14, the Company has en-
gaged in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has violated Section
8(a)(5) and (1) of the Act I shall recommend that it cease
and desist and take certain affirmative action designed to ef-
fectuate the policies of the Act.
I recommend the Company be ordered, on request, to exe-
cute the collective-bargaining agreement it agreed to on May
14, with effective dates as set forth at article XVI of the
agreement. A copy of the specific agreement that is to be
signed was received in evidence as General Counsel’s Ex-
hibit 13b. Additionally, the Company shall make whole the
employees in the bargaining unit for losses, if any, which
they may have suffered by the Company’s refusal to sign the
agreement in the manner set forth in Ogle Protection Service,
183 NLRB 682 (1970), with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law, and on
the entire record, I issue the following recommended22
ORDER
The Company, New Orleans Stevedoring Company, New
Orleans, Louisiana, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to sign, implement, and comply with the
terms of the collective-bargaining agreement it agreed on be-
tween it and the Union which agreement is specifically de-
scribed in the remedy section of this decision.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Sign, implement, and comply with the terms of the col-
lective-bargaining agreement it agreed on between it and the
Union which agreement is specifically described in the rem-
edy section of this decision.
(b) Make whole its employees in the bargaining unit for
losses, if any, which they may have suffered by its failure
to sign, implement, and comply with the terms of the collec-
tive-bargaining agreement it agreed on between it and the
Union.
(c) Post at its New Orleans, Louisiana location copies of
the attached notice marked ‘‘Appendix.’’23 Copies of the no-
tice, on forms provided by the Regional Director for Region
15, after being signed by the Company’s authorized rep-
resentative, shall be posted by the Company immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
1083NEW ORLEANS STEVEDORING CO.
by the Company to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to sign, implement, and comply with
the collective-bargaining agreement we agreed on with Gen-
eral Longshoremen Workers, Local No. 3000, International
Longshoremen’s Association on May 14, 1991.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL NOT sign, implement, and comply with the terms
of the collective-bargaining agreement agreed to with the
Union on May 14, 1991.
WE WILL make whole our unit employees for any losses
they may have suffered by reason of our unfair labor prac-
tices.
NEW ORLEANS STEVEDORING COMPANY