Teamsters Local 617 (Christian Salvesen)

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 601 (N.L.R.B. 1992)

601
308 NLRB No. 85
TEAMSTERS LOCAL 617 (CHRISTIAN SALVESEN)
1 The name of the Respondent has been changed to reflect the new
official name of the International Union.
1 While every apparent or nonapparent conflict in the evidence
may not have been specifically resolved below, my findings are
based on my examination of the entire record, my observation of the
witnesses’ demeanor while testifying, and my evaluation of the reli-
ability of their testimony. Therefore, any testimony in the record
which is inconsistent with my findings is discredited.
Local 617, International Brotherhood of Teamsters,
AFL–CIO1 and Christian Salvesen Distribution
Service. Case 22–CB–6734
August 31, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On April 6, 1992, Administrative Law Judge Steven
B. Fish issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Charg-
ing Party filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as modi-
fied.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Local
617, International Brotherhood of Teamsters, AFL–
CIO, Jersey City, New Jersey, its officers, agents, and
representatives, shall take the action set forth in the
Order as modified.
1. Add the following as paragraph 1(b).
‘‘(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO 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 or-
dered us to post and abide by this notice.
WE WILL NOT fail or refuse to sign the collective-
bargaining agreement submitted to us by Christian
Salvesen Distribution Service on or about November 8,
1990.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, on request, execute the collective-bargain-
ing agreement submitted to us by Christian Salvesen
Distribution Service on or about November 8, 1990.
LOCAL 617, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, AFL–CIO
Bert Dice-Goldberg, Esq., for the General Counsel.
Gary Carlson, Esq. (Schneider, Cohen, Solomon, Leder &
Montalbano), of Cranford, New Jersey, for the Respond-
ent.
Michael Barabander, Esq. (Grotta, Glassman & Hoffman,
P.A.), of Roseland, New Jersey, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant to
charges filed by Christian Salvesen Distribution Services (the
Employer or Charging Party) on March 11, 1991, the Re-
gional Director for Region 22 issued a complaint and notice
of hearing on June 28, 1991, alleging in substance that Local
617, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO (Re-
spondent or the Union), violated Section 8(b)(3) of the Act,
by failing and refusing to execute a collective-bargaining
agreement embodying the terms of an agreement reached
with the Employer.
The trial with respect to the allegations raised by the com-
plaint was heard before me on November 18, 1991. Briefs
have been filed by General Counsel and Charging Party and
have been carefully considered.
Based on my review of the entire record,1 and my obser-
vation of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The Employer is a corporation with an office and place of
business in Secaucus, New Jersey, where it is and has been
engaged in the warehousing and distribution of frozen foods
and related products. During the past year, the Employer pur-
chased goods valued in excess of $50,000 directly from sup-
pliers located outside the State of New Jersey. It is admitted
and I so find that the Employer is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
It is also admitted and I so find that Respondent is a labor
organization within the meaning of Section 2(5) of the Act.
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. FACTS
For many years, Respondent has been the collective-bar-
gaining representative for the Employer’s employees in an
appropriate unit of all warehouse employees at its Secaucus
facility. The parties have been bound to a series of collec-
tive-bargaining agreements, the most recent of which was ef-
fective by its terms for the period November 1, 1987, to Oc-
tober 31, 1990.
The parties met during the month of October 1990, to ne-
gotiate the terms of a new collective-bargaining agreement.
Harold Hoffman, the Employer’s attorney, and Joseph
Bocchino, its general manager, were present on behalf of the
Employer. Respondent was represented by William McKer-
nan, its president, James Ryan, its shop steward, and em-
ployee committee members John Lynch and Rafeq Sulih.
Pursuant thereto, the Employer submitted Respondent a copy
of a draft collective-bargaining agreement on October 9,
1990, which contained the provisions of the prior agreement
between the parties, plus several changes that the Employer
was proposing.
All these changes were discussed during the course of four
collective-bargaining sessions, culminating in an agreement
reached on October 31, 1990. On that date, the parties re-
duced their agreement to a handwritten document. On No-
vember 1, 1990, pursuant to Respondent’s request, Hoffman
prepared and forwarded to Respondent a typewritten Memo-
randum of Agreement (MOA), which incorporated the agree-
ment reached on October 31, 1990. The MOA recites that the
terms were agreed by the parties on October 31, and the
Union and its committee unanimously agree to recommend
ratification of the agreement to the bargaining unit. The
MOA provides that all articles of the Employer’s proposed
draft contract (submitted to Respondent on October 9) shall
be adopted and be effective November 1, 1990, with the ex-
ception of 12 modifications or deletions in such areas as se-
niority, hours of work, sick leave, and holidays.
On November 1, 1990, the employees of the Employer
voted to ratify the MOA by a vote of 25 to 2. Thereafter,
at the Employer’s premises, the MOA was signed by
Bocchino on behalf of the Employer and McKernan, Ryan,
Lynch, Sulih, and Vincent Gugliano on behalf of the Union.
The MOA also reflects the 25–2 vote to ratify the agreement
by the Employer’s employees at 3:36 p.m., on November 1,
1990.
Thereafter, Hoffman prepared a single document which in-
corporated the MOA along with the specific terms of the
Employer’s draft proposals, and forwarded same to Respond-
ent for review with a letter dated November 8, 1990. The let-
ter requests that after the MOA is reviewed, that Hoffman
be contacted to arrange a mutually convenient time for exe-
cution of the agreement. Neither McKernan nor anyone else
from Respondent replied to Hoffman’s letter.
On February 11, 1991, Hoffman sent another letter to
McKernan, reminding Respondent that it still had not signed
the agreement, nor attempted to contact Hoffman about the
matter. The letter continues that unless he hears from Re-
spondent by February 22, 1991, he intended to file charges
with the Board to see that the agreement agreed to is exe-
cuted. Charging Party received neither a response to this let-
ter nor an executed copy of the agreement by Respondent.
On March 11, the instant charges were filed. Subsequently,
the parties met in an attempt to resolve the matter. At that
meeting, Respondent sought to renegotiate certain provisions
previously agreed to including holidays and seniority. Al-
though Charging Party did make some concessions, no reso-
lution of the matter was reached at the meeting.
The only witness presented by Respondent was its shop
steward, James Ryan. Most of his testimony consisted of
rambling, inappropriate and irrelevant attacks on officials of
Charging Party concerning matters having nothing to do with
the issues at hand. However, Ryan did testify at one point
that he wouldn’t sign the contract proposed, because he dis-
agrees with the interpretation of certain provisions of the pro-
posed agreement by Charging Party. Additionally, Ryan also
contended that at the ratification meeting of the employees,
the employees who voted in favor of the agreement, because
of language difficulties, did not understand what they were
voting for.
III. ANALYSIS
It is well established that the obligation to execute a col-
lective-bargaining agreement encompassing terms agreed on
by the parties, which is imposed on employers H. J. Heinz
Co. v NLRB, 311 U.S. 514 (1941), is also binding on unions,
and the failure to do so by a union is violative of Section
8(b)(3) of the Act. Teamsters Local 70 (Emery Worldwide),
295 NLRB 1123 (1989); Graphic Communications Local 583
(National Press), 288 NLRB 284, 287 (1988); Machinists
Local 701 (Avis Rent A Car), 280 NLRB 1312, 1315 (1986).
It is also clear that once the parties have executed a MOA,
that they are also obligated to execute a full collective-bar-
gaining agreement which incorporates the terms agreed to in
the MOA, which include other documents referred to in the
MOA. Fayard Moving & Transportation, 290 NLRB 26, 27
(1988); Electrical Workers IBEW Local 1228 (WNAC-TV,
WRKO & WROR), 230 NLRB 342, 343–344 (1977); Meat
Cutters Local 530 (Duquoin Packing), 202 NLRB 478, 483
(1973).
Here, there can be no question that the parties executed an
MOA on November 1, 1990, which correctly reflected the
parties’ agreement, and that the MOA was ratified by the
employees. Additionally, Charging Party on November 8,
1990, sent Respondent a full and complete collective-bar-
gaining agreement, which reflected accurately the MOA plus
the prior draft agreement previously submitted by Charging
Party to Respondent.
The testimony of Ryan, Respondent’s only witness, sug-
gests that in his view, no agreement was reached, because
the employees due to translation problems, did not know
what they were voting for. I find this purported defense to
be both factually and legally unsupportable. Thus, even if
Respondent established, which it has not, that the employees
were confused about the MOA because of language difficul-
ties, this would not establish that no agreement was reached.
It is Respondent’s responsibility and obligation to assure that
its members are able to understand what they are voting for,
and it cannot rely on its own failures to comply with this ob-
ligation, to justify refusing to execute an agreement with
Charging Party, the terms of which were clearly agreed to
during negotiations.
Indeed, Respondent has admitted on the record of this pro-
ceeding, by its attorney, that the proposed contract submitted
to it by Charging Party, correctly reflected the agreement of
the parties, i.e., the MOA plus Charging Party’s prior pro-
603TEAMSTERS LOCAL 617 (CHRISTIAN SALVESEN)
2 It is, of course, not essential that Ryan himself sign the agree-
ment. While Charging Party did insert a line in the agreement for
Ryan to sign, its attorney correctly asserted that it has no right to
tell Respondent who must sign the agreement on its behalf, and did
not intend to and does not insist that Ryan sign the agreement.
3 In this connection, while Charging Party has adhered to its inter-
pretation of the contract, and enforced the contract in that manner,
Respondent has not filed a grievance over any of these matters.
4 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.
5 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.’’
posal. However, Respondent argues that it is not legally obli-
gated to execute the contract submitted for two reasons.
First, Respondent asserts that the MOA, constitutes a com-
plete collective-bargaining agreement, and that Respondent
by executing the MOA has fully satisfied its obligations
under Section 8(d) of the Act. Thus, Respondent argues that
it is being asked to sign a contract a second time, which is
not required under the Act.
However, whether or not one might construe the MOA as
a complete collective-bargaining agreement, Charging Party
is entitled to have Respondent execute a single document
which incorporates all the terms agreed to by the parties. Re-
tail Clerks Local 322 (Ramey Supermarkets), 226 NLRB 80,
87 (1976); Summit Tooling Co., 195 NLRB 479, 480, 488
(1972); Operating Engineers Local 12 (Tri County Assn.),
168 NLRB 173 (1967); Sears Roebuck & Co., 139 NLRB
471, 478 (1967); WNAC, supra at 343, 344.
The rationale for this result is aptly summarized by the ad-
ministrative law judge in Ramey Supermarkets, supra; ‘‘By
its terms, a memorandum is incomplete. By present notation
and reference to other material, it serves the parties’ imme-
diate purposes to terminate the dispute between them until a
more permanent record of their agreement can be pre-
pared. . . . Experience with memoranda shows that, because
they are incomplete and sometimes not too clear, they tend
to become a source of disagreement and discord unless soon
translated into more complete and precise documents.’’ Id at
87. Thus, the requirement that Respondent execute a com-
plete and precise document is less likely to result in disagree-
ments with respect to interpretations of their terms.
Moreover, the requirement that Respondent execute the
agreement is more appropriate, in view of the position of its
shop steward. Thus, it appears from Ryan’s testimony in this
proceeding, that in his view, and perhaps the view of the
other members of the negotiating committee, there is no con-
tract between the parties. While I have rejected Ryan’s asser-
tion that employees did not know what they voted for as a
defense, he, as the shop steward, appears to believe that no
agreement was reached. Therefore, it is essential for stability
of the collective-bargaining relationship, that any doubts
about whether a contract exists be put to rest. This can only
be done in my view by an authorized representative of Re-
spondent executing the agreement submitted to it by Charg-
ing Party.2
Respondent also defends its refusal to sign the contract on
the grounds that Charging Party has interpreted certain provi-
sions of the agreement differently than Respondent. Respond-
ent argues that by signing the contract as presented, it would
be acquiescing in Charging Party’s interpretation of the
agreement, and might prejudice Respondent’s position in any
grievance that it might file.3
I find this defense to be totally without merit. The fact that
there may be disagreements as to the interpretation of any of
the terms of contract agreed to, is clearly no defense to a re-
fusal to execute the agreement. Furniture Workers Local 36
(Telescope Furniture), 281 NLRB 1263, 1272 (1986). The
terms of the agreement are clear and unambiguous, and con-
form to the terms of the MOA. Respondent is therefore obli-
gated to execute the document as presented. Fayard, supra
at 27; Duquoin, supra at 483. Questions concerning the inter-
pretation or implementation of the agreement should be rel-
egated to the grievance procedure of the contract. Respond-
ent has cited no authority in support of its rather novel posi-
tion that by signing the agreement, it is acquiescing in
Charging Party’s interpretation of each and every clause
therein. I do not believe that Respondent is correct, but in
any event conclude that its argument in that regard is prop-
erly addressed to the arbitrator.
Therefore, I reject Respondent’s purported defenses to its
refusal to execute the agreement reached between it and
Charging Party. Accordingly, based on the foregoing, I con-
clude that Respondent has violated Section 8(b)(3) of the
Act, by failing to do so.
CONCLUSIONS OF LAW
1. Charging Party is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. By failing and refusing since on or about November 8,
1990, to sign the collective-bargaining agreement previously
agreed to with Charging Party, Respondent has violated Sec-
tion 8(b)(3) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Local 617, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO, Jersey City, New Jersey, its officers, agents,
and representatives, shall
1. Cease and desist from failing and refusing to sign the
collective-bargaining agreement submitted to it by Christian
Salvesen Distribution Service on or about November 8, 1990.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, forthwith execute the collective-bargaining
agreement submitted to it by Christian Salvesen Distribution
Service on or about November 8, 1990.
(b) Post at its business offices and meeting halls copies of
the attached notice marked ‘‘Appendix.’’5 Copies of the no-
tice, on forms provided by the Regional Director for Region
22, after being signed by the Respondent’s authorized rep-
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to mem-
bers 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) Sign and return to the Regional Director for Region 22
sufficient copies of the notice for posting by Christian
Salvensen Distribution Center, if willing, at all places where
notices to employees are customarily posted.
(d) Notify the Regional Director for Region 22 in writing
within 20 days from the date of this Order what steps the
Respondent has taken to comply.