Construction & General Laborers, No. 304

National Labor Relations Board - Board Decisions

Feb 16, 1977

228 N.L.R.B. 247 (N.L.R.B. 1977)

CONSTRUCTION & GENERAL LABORERS , NO. 304
Construction and General Laborers , No. 304, Laborers
International Union of North America , AFL-CIO
and Office and Professional Employees Union
Local No. 29, AFL-CIO. Case 20-CA-11124
February 16, 1977
DECISION AND ORDER
BY MEMBERS FANNING , PENELLO, AND
WALTHER
On November 4, 1976, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, Charging Party and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard at San Francisco, California, on September
27, 1976,1 based on a charge filed February 26, and
complaint issued April 16, alleging that Construction and
General Laborers, No. 304, Laborers International Union
of North America, AFL-CIO, herein called Respondent,
violated Section 8(a)(1) and (5) of the Act by direct
bargaining with employees and by refusal to sign an
agreement assertedly reached with Office and Professional
Employees Union Local No. 29, AFL-CIO, herein called
the Charging Party.
Upon the entire record (including Respondent's oral
argument), my observation of the witnesses, and consider-
ation of General Counsel's posthearing brief (the Charging
Party waived such filing), I make the following:
I
All dates and named months are in 1976 , unless indicated otherwise.
2 Respondent maintains its office and principal place of business in
Oakland , California , functioning with a purpose of representing laborer
trade employees with respect to wages, rates of pay, hours of employment, or
other terms and conditions of employment . It is a local affiliate of the
228 NLRB No. 31
247
Findings of Fact and Resultant Conclusion of Law
The case concerns Respondent in its role as employer of
office clericals represented by the Charging Party.2 Con-
tractual relations have long existed between these parties by
virtue of periodic negotiations between Alameda County
trade union office employers and the Charging Party. The
last such contract was effective until November 1, 1975,
and bargaining toward a new one commenced then with
individual sessions extending through January. The cus-
tomary format existed with 56 employing labor organiza-
tions participating in a joint manner for their mutual
convenience under auspices of a negotiating committee;
this group faced by the Charging Party's negotiating team,
including Representative Louis Celaya. Respondent's presi-
dent, Anthony Schiano, and business manager, John King,
were members of the Employer's negotiating committee.
On January 28 tentative settlement was reached with final
drafting of language promptly undertaken, producing a
complete 15-page document to represent the 1975-77
period. Employees represented by the Charging Party
ratified on February 4. Participating trade union office
employers met February 9, with at least King present for
Respondent, and approved a committee report recom-
mending adoption of the tentative settlement. On February
18, Celaya transmitted the contract document to each
employer for signature.
Since at least 1966, Respondent has voluntarily paid its
office employees $20 per week more than wage scale set
forth in applicable agreements over that span of time. The
subject of this override was not raised during bargaining.
On or about February 12, Respondent's secretary-treasurer,
David Melendrez, spoke with Bookkeeper/Office Manager
Edith Withington, stating he had just received a summary
of benefits and would not pay the $15 weekly wage increase
contemplated in the new contract. Withington suggested
other office employees be so advised. That afternoon
Melendrez spoke to them as a group, attributing his
intention to Respondent's bad financial condition while
intimating need to reduce total hours of work through
probable reduction in force. About that time, Celaya had
several telephone conversations with Melendrez in which
the latter repeatedly declined to sign the proposed contract
or implement any wage increase because of claimed
inability to pay. In all regards other than salary controver-
sy, Respondent complied with provisions of the newly
negotiated agreement . On February 20, Respondent's
officers met with Celaya and all office employees (including
one from the Hayward branch office) by arrangement,
proposing a shorter workweek in lieu of layoffs. The
employees caucused with Celaya, countering that should
Respondent grant the $15 pay increase as expected a 4-day
workweek would be tried experimentally. This was refused,
compensation of office employees was not changed, and
two were laid off.
Here the full context of bargaining must be understood.
See United Brotherhood of Carpenters and Joiners of Amen-
International Union, to which it annually remits at the Washington, D.C,
headquarters per capita membership dues and initiation fees in excess of
$50,000. I find that Respondent is an employer within the meaning of Sec.
2(6) and (7) of the Act and the Charging Party a labor organization within
the meaning of Sec. 2(5).
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ca, Local Union No. 347, AFL-CIO (Wabash Valley
Contractors Association), 225 NLRB 414 (1976). While
orientation of these parties imbued the negotiation process
with measured formalism , the case does not call up
principles of association bargaining . The binding nature of
true associationwide dealings was not present , and counsel
stipulated precisely to "no formal employer association,
and that each union [in the capacity of an employer] is
required to sign a contract separately ." Evidence shows that
side agreements were known between the Charging Party
and particular locals of the vicinity, while at least two other
trade union office employers had long practiced overscale
wage payment . Organization of an employer negotiating
committee drawn from the many participating organiza-
tions, mediation assistance furnished by the area labor
council, and disciplined ritualism of having plenary assent
to the negotiating committee 's final product does not create
association-type bargaining where none was intended.
This leads to the key issue of whether agreement was fully
reached . Obviously it was not, because Celaya understood
the various local unions would present any tentative
settlement to their own executive boards for approval. This
could not be more clear than from his answer, "They would
take the contract back for ratification and we would do the
same." The oddity of why testimony concerning this
process was not advanced is not my concern ; suffice it to
note motivation rooted in philosophy and conscience with
residual significance that needful ratification by Respon-
dent was not accomplished . On the contrary, its financial
official promptly and consistently maintained that past
practice of overscale salary benefits would not continue
because of changing times . Section 8(d) of the Act cannot
be read in a vacuum , nor its fair meaning disregarded. It is
in this sense that full agreement was not reached because
Respondent queried whether the new , retroactively effec-
tive, minimum wage scales covering four office classifica-
tions, read in connection with further unchanged phraseolo-
gy from article 11, (b), that "no employee shall suffer any
reduction in wages and conditions as the result of the
signing of this Agreement," meant it need increase weekly
salaries by $15 or not at all . This circumstance leaves the
fruits of bargaining incomplete with respect to Respondent,
3 Respondent persuasively argues Celaya demonstrated during the
February 20 meeting that, even then , circumstances had not yielded the
Charging Party a contractually assured feature of continuing $20 overscale
weekly salaries to employees.
4 In the event no exceptions are filed as provided by Sec. 102.46 of the
and displays abiding nonmeeting of the minds on this
important point . The final hurdle to agreement was
executive board ratification and this patently has not
occurred, leaving the parties where they were in February
with respect to statutory obligation under Section 8(a)(5) as
related to Section 8(d).3
Actually a two-phase process was necessary to consum-
mate this course of bargaining . The first was achieved on
February 9, when an economic package and expanded
phraseology won general acceptance . The final step was
reciprocal ratification. Here it foundered because Melen-
drez' more intimate involvement with financial affairs
exposed the unresolved point of whether Respondent
would, in practical terms, be increasing clerical wages by
$15 per week or whether a cushioning effect of article 11,
(b), permitted the phenomenon of simultaneously comply-
ing with new wage scales but without corresponding
increase in actual payroll costs . The parties are arguing over
a matter of mixed semantic and conceptual dimensions.
They are left without agreement on the matter ; in principle
so much as had Respondent refused to accede on any less
abstruse subject.
The allegation of direct bargaining with employees has
not been established , because evidence shows only advice
by Melendrez of Respondent's position coupled with, at
most, a prediction that forced continuation of the salary
bonus would require an economic layoff. The incident
originated with routine direction to the person in immedi-
ate charge of payroll functions. Subsequent grouping of all
employees later that day was at her suggestion, and in any
event would not have converted essential nature of the
pronouncement . Solicitation of responsive comments from
the group was not made nor did the episode intrinsically
undermine the Charging Party's representative status.
Accordingly , I render a conclusion of law that Respon-
dent has not violated Section 8(a)(1) and (5) as alleged and
issue the following recommended:
ORDER4
The complaint is dismissed in its entirety.
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.