Kennebec Beverage Co., Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1980

248 N.L.R.B. 1298 (N.L.R.B. 1980)

1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kennebec Beverage Co., Inc. and Truck Drivers,
Warehousemen & Helpers Union, Local 340, af-
filiated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Help-
ers of America. Case 1-CA-14688
April 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On December 19, 1979, Administrative Law
Judge George F. McInerny issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief and the
General Counsel filed a brief in support of the Ad-
ministrative Law Judge's Decision.
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
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order, as modified herein.
Respondent has excepted to the Administrative
Law Judge's finding that "the document which
was prepared by [the Union] and forwarded to
[Respondent] [Jt. Exh. III] is a memorialization of
the agreement reached by the parties" on June 19,
1978. To the extent that Joint Exhibit III does not
contain a provision for the payment of helpers to
which the parties agreed, Respondent's exception
has merit; however, we find that Joint Exhibit III
varies from the agreement reached by the parties
only in its omission of such provision and that, in
the circumstances presented here, the Section
8(a)(5) allegation of the complaint has been estab-
lished.
Section 8(d) of the National Labor Relations
Act, as amended, imposes upon either party to a
' Respondent has excepted to certain inadvertent or typographical
errors in the Administrative Law Judge's Decision. Accordingly, the
name of Respondent's counsel appearing in the caption of the Decision is
hereby changed to read, "Skelton, Taintor & Abbott, P.A ". and the date
appearing in the last line of page 1 of the Decision is hereby changed to
read "April 24, 1979"
2 Respondent has excepted to certain credibility findings made by the
Administrati've l.aw Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Drv Wall Products.
Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cr 1951). We have
carefully examined the record and find no basis for reversing his findings
248 NLRB No. 176
collective-bargaining agreement the duty to ex-
ecute a written contract incorporating such agree-
ment if so requested by the other party. Part of this
duty is the obligation to assist in reducing the
agreement reached to writing.3
In the instant matter, the Union, in an attempt to
reduce to writing the agreement reached on June
19, 1978, drafted Joint Exhibit III and forwarded it
to Respondent for execution. Respondent, howev-
er, refused to execute Joint Exhibit III, insisting
that it would not do so until its attorney approved,
a condition imposed only after full agreement had
been reached on June 19, 1978. Since that time, Re-
spondent has neither informed the Union that Joint
Exhibit III varies from the agreement reached nor
in any other manner attempted to comply with its
duty to assist in reducing such agreement to writ-
ing. The mere fact that this requires an addition to
Joint Exhibit III does not relieve Respondent of its
obligation to execute the collective-bargaining con-
tract upon which the parties agreed.4
Accordingly, notwithstanding the fact that Joint
Exhibit III does not contain the provision for the
payment of helpers to which the parties agreed, we
conclude that Respondent has violated Section
8(a)(5) of the National Labor Relations Act, as
amended, "by refusing to execute a collective-bar-
gaining agreement previously agreed upon."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Kennebec Beverage Co., Inc., Augusta, Maine, its
officers, agents, successsors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Upon request by the Union, forthwith ex-
ecute the contract upon which agreement was
reached with the Union on June 19, 1978, complet-
ed copies of which shall be furnished by the
Union."
2. Substitute the attached notice for that of the
Administrative Law Judge.
3 See generally Amalgamated Clothing Workers of America [enry I
Siegel Co.] v. N.L.R.B., 324 F.2d 228 (2d Cir 1963).
, Trojan Steel Corporation, 222 NLRB 478 (1976), enfd 551 F.2d 308
(4th Cir 1977); see also International Union of Operating Engineers, Local
525. AFL-CIO (Clark Oil & Refining Corporation), 185 NLRB 609 (1970).
KENNEBEC EVERAGE C. 1299
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to sign or apply
a written collective-bargaining agreement em-
bodying the terms of the agreement reached
on June 19, 1978, by our representative and
representatives of Truck Drivers, Warehouse-
men & Helpers Union, Local 340, to be effec-
tive June 26, 1978.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of rights guaranteed by the
National Labor Relations Act.
WE WILL upon request by the Union forth-
with execute the contract upon which agree-
ment was reached with the Union on June 19,
1978, completed copies of which shall be fur-
nished by the Union.
WE WIlI. give retroactive effect to the
terms and conditions of the said contract and
WE WILL make whole our employees for any
losses they may have suffered by reason of our
failure to sign the said contract.
KENNEBEC BEVERAGE CO., INC.
DECISION
STATEMENT OF THE CASE
GEORGE F. MCINERNY, Administrative Law Judge:
Based upon a charge filed on July 6, 1978, by Truck
Drivers, Warehousemen & Helpers Union, Local No.
340, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, herein referred to as the Union, and an amend-
ed charge filed on August 3, 1978, the Regional Director
for Region I of the National Labor Relations Board,
issued a complaint dated August 11, 1978, alleging that
Kennebec Beverage Co., Inc., herein referred to as Re-
spondent, or the Company, had refused to execute a col-
lective-bargaining agreement with the Union which had
previously been agreed to by it, in violation of Section
8(a)(5) of the National Labor Relations Act, as amended,
herein referred to as the Act. Respondent filed an answer
to said complaint on August 16, 1978, denying the com-
mission of any unfair labor practices. On April 24, 1978,
the Regional Director amended the complaint by the ad-
dition of a new allegation that Respondent had unlawful-
ly withdrawn recognition from the Union.'
I No evidence was presented at the hearing on this last allegation. The
counsel for the General Counsel. in her brief. requested leave to ith-
draw this allegation Since Respondent, in its brief, urged that I dismiss
the allegation, I grant the General Counsel's request to withdraw this al-
legation from the complaint.
Pursuant to notice contained in said complaint, a hear-
ing was held before me at Augusta, Maine, on May 10
and 11. 1979, at which all parties appeared and were
given full opportunity to present testimony and docu-
mentary evidence, to argue orally, and to submit briefs.
Following the close of the hearing, briefs were submitted
by the General Counsel and by Respondent. These have
been carefully considered.
Upon the entire record in this case, including particu-
larly my observation of the witnesses who testified and
their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Kennebec Beverage Co., Inc., is a Maine corporation
engaged in the wholesale distribution and sale of bever-
ages from its principal office and place of business in Au-
gusta, Maine. It annually receives beverages valued at
over $50,000 directly from points located outside of the
State of Maine. The complaint alleges. the answer
admits, and I find that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
lIt. THE ALLEGED) UNFAIR I.ABOR PRACTICES
A.Background
On February 23, 1978,2 Respondent's employees
voted, in an election conducted under the auspices of
Region 1, to be represented by the Union. On March 3,
the Board certified the Union as the collective-bargain-
ing representative for a unit consisting of all drivers,
helpers, salesmen, and warehousemen employed by Re-
spondent at its Augusta, Maine, facility.
B. The Negotiation¥
On March 6, the Union's secretary-treasurer, Adelard
LeCompte, Jr., forwarded to John Kesaris, Respondent's
manager, a letter requesting that negotiations for a col-
lective-bargaining agreement commence. Included with
that letter was a proposed collective-bargaining agree-
ment.
After 10 days or so, LeCompte called Kesaris and
asked him when they could sit down to start negotia-
tions. In this conversation Kesaris asked whether Le-
Compte would have legal counsel present at the negotia-
tions. LeCompte answered that he would not, but that
Kesaris could have counsel if he wanted. Kesaris did not
reply to this. A meeting was set up for March 29 at the
Holiday Inn in Auburn. This meeting was canceled by
Kesaris, but the parties did meet at Respondent's offices
in Augusta on March 31. At the conclusion of this meet-
ing Kesaris told LeCompte that he would call to set up
the next meeting. He did not, so LeCompte called Ke-
2 All dates herein are in 178 unless otherwise noted
KENNEEC BEVERAGE CO q
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
saris on April 17 and set up a second meeting for May 1,
again at Respondent's offices. On May I the parties met,
then adjourned the meeting to a Howard Johnson's res-
taurant in Augusta. After some delay, again due to Ke-
saris being "tied up," another meeting was held on May
22, and a fourth session on June 9. A final session was
held at the offices of the Federal Mediation and Conci-
liation Service in Portland on June 19.
At the conclusion of the meeting of June 19 Le-
Compte testified that the parties had agreed on all of the
issues. At that point, for the first time, according to Le-
Compte, Kesaris stated that he was going to consult with
an attorney and that they did not have any agreement
until he had so consulted. LeCompte replied that he
would be willing to discuss language, but would not
permit any changes in the agreed on benefits provided in
the agreement. LeCompte then called a meeting of the
employees for the next night, June 20, to consider ratifi-
cation of the agreement. The meeting was held and the
contract was ratified. On the next day, June 21, Le-
Compte called Kesaris to inform him that the contract
had been ratified. Kesaris again stated that he would not
make any commitments until such time as his attorney
told him it would be all right for him to accept it. Le-
Compte went ahead and had a typed copy of the agree-
ment prepared from his notes and forwarded that docu-
ment to Kesaris on June 22. On July 3, LeCompte again
called Kesaris to inquire about the status of the contract
and was informed by Kesaris that he still had no word
lFk0 his attorney and that he would not sign until he
was told to do so. LeCompte then filed the instant
charges.
Kesaris' version of these events is somewhat different.
Initially, he testified that he informed LeCompte, not
once, but twice, that he would not have an attorney in
the initial stages of the negotiations, but that before he
made a "formal proposal" he would consult with an at-
torney or would have an attorney present. Kesaris testi-
fied further that, in fact, the parties never reached agree-
ment at all on a number of issues, and that there was no
final agreement for his attorney or himself to consider.
C. Credibility
A resolution of the issues in this case depends almost
entirely on the credibility of LeCompte and Kesaris. The
facts show that, with the exception of the first meeting
on March 31, and the Federal Mediation session on June
19, they met alone, and Kesaris' statements with respect
to his condition that an attorney be consulted were not
alleged to have been made in the presence of anyone
else. Roger Fortin, one of Respondent's employees, was
present at the first session at Respondent's offices and
was described as actively participating in the discussions.
I do not find him to be a particularly reliable witness,
but I note that he contradicted Kesaris' testimony that
there were no agreements on any issues during that first
session. Similarly, Frederick Dobson, the Union's presi-
dent and business agent, was supportive of LeCompte's
testimony concerning the June 19 meeting at the Federal
Mediation and Conciliation Service's offices in Portland.
However, it seems to me that Kesaris' testimony is fa-
tally flawed by his statement on direct examination that
he had never served as an officer or director of Respon-
dent, when that statement is compared with a document
which he submitted to the State of Maine in which he
stated that he was both a vice president and director of
Kennebec Beverage. His offhand admission of this lie is
indicative, to me at least, of a casual disregard of the
truth which I find carried over into his testimony as to
substantive issues in this case.
Beyond this substantial impediment to belief, I have
carefully analyzed his testimony on the course of negoti-
ations, and compared that testimony with LeCompte's
testimony and, further, with the annotated copies of the
original contract proposals which were used both by Ke-
saris and LeCompte, to track the course of negotiations.
Based on this analysis, I find that Kesaris' testimony does
not agree with LeCompte's testimony and, significantly,
it does not agree with LeCompte's notes on his copy of
the proposals, and on Kesaris' notes on his copy of the
proposals. Therefore, I do not credit Kesaris' testimony
on any of the material issues in the complaint.
Having found that Kesaris is simply not a credible wit-
ness, I find it unnecessary to recount in detail the session-
by-session chronology of the articles discussed at the
several bargaining sessions. While he testified that he
told LeCompte that he would bring in an attorney
before he made a definitive offer, Kesaris' further testi-
mony and his notes show that he did in fact make offers
and concessions during the negotiations. Then, contrary
to his own prior testimony, he insisted on the attorney
evaluating the contract. This, too, is logically inconsis-
tent with his testimony that there were a number of con-
tract items on which agreement had not been reached.
His attitude toward collective bargaining, albeit he con-
fessed his ignorance of labor law and custom, appears to
be a sort of Fabian strategy, to appear to agree and to
compromise, but taking advantage of every opportunity
to postpone, and eventually to evade the certainties of a
final agreement. Aside from the allegation in the com-
plaint, Kesaris may also have violated the law in this, but
such is not alleged.
The testimony of LeCompte is candid and believable.
He had only been in the business of negotiating contracts
for a relatively short time in the spring of 1978, but his
testimony shows that he was knowledgeable about the
terms and conditions he was asking of Respondent. His
testimony further shows that he took into account the in-
experience of Kesaris, and allowed for that in his consid-
eration of counterproposals, and even in reconsidering
matters reopened at Kesaris' request after having been
agreed upon previously. LeCompte's testimony is in sub-
stantial agreement with his own notes, 3 with Kesaris'
notes, and with the inherent probabilities of the situation.
Thus, I find that agreement on all issues had been
reached at the final meeting between the parties on June
19, and the Kesaris' insistence at that time that the agree-
ment had to be approved by his attorney was nothing
more than another delaying tactic designed to avoid
what at that point had become his legal responsibility;
3 Leaving aside the shorthand notes on LeCompte's working copy of
the proposals, which, he said, were inserted by his secretary
KENNEBEC BEVERAGE CO. 1301
namely, the implementation of the agreed-upon wages,
hours, and conditions of employment of his employees.4
I find further that the document which was prepared
by LeCompte's office and forwarded to Kesaris is a me-
morialization of the agreements reached by the parties.
In so finding I have compared this document with the
draft proposals used by Kesaris and LeCompte during
negotiations and with LeCompte's credited testimony.
This comparison shows that the agreements reached
were fairly and accurately transcribed in the new docu-
ment and that document is, in fact, the agreement which
was reached on June 19.
Accordingly, I find that by failing and refusing to sign
the document containing the agreement between the par-
ties, Respondent has violated Section 8(a)(l) and (5) of
the Act. H. J. Heinz Company v. N.L.R.B., 311 U.S. 514
(1940); Electra-Food Machinery, Inc., 241 NLRB No. 194
(1979); Maury's Flourescent & Appliance Service, 226
NLRB 1290 (1976).
IV. THE REMEDY
Having found that Respondent has violated Section
8(a)(1) and (5) of the Act, I shall recommend that Re-
spondent cease and desist from its unfair labor practices
and that it take certain affirmative action designed to ef-
fectuate the policies of the Act. Specifically, I shall rec-
ommend that Respondent forthwith sign the collective-
bargaining agreement embodying the terms of the agree-
ment between Respondent and the Union, as found
herein; that it give effect to such agreement retroactively
to June 26, 1978; and that it make whole its employees
for any loss of wages or other employment benefits they
may have suffered as a result of Respondent's failure to
sign or to honor the agreement. The loss of earnings
under this recommended order shall be computed in the
manner set forth in F W. Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation, 231 NLRB 651
(1977). 5
CONCLUSIONS OF LAW
1. The Respondent, Kennebec Beverage Co., Inc., is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By failing and refusing to execute a written contract
embodying the terms and conditions of an oral agree-
ment reached with the Union and by refusing to apply
such contract, Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) and (5) of the
Act.
4While it is not essential to my findings in this case, Utility Tree Ser-
vice, Inc., 218 NLRB 784 (1975); Martin Barry Company, 241 NLRB
No. 148 (1979), 1 find that the contract was in fact ratified on June 20.
The testimony of Fortin and Dennis Kay is, in my view, unreliable and is
not credited. Each displayed a poor memory, as well as an indifference to
any issue except his own economic interest. I do not credit their testimo-
ny where it varies from that of LeCompte.
a See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
4. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER6
The Respondent, Kennebec Beverage Co., Inc., its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to sign or apply a written col-
lective-bargaining agreement embodying the terms of the
agreement reached on June 19, 1979, by a representative
of Respondent and representatives of Truck Drivers,
Warehousemen & Helpers Union, Local 340, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, to be ef-
fective June 26, 1978.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Forthwith sign the agreement described in para-
graph l(a) of this recommended Order.
(b) Upon the execution of said agreement give retroac-
tive effect to the provisions thereof and make its employ-
ees whole for any losses they may have suffered by
reason of Respondent's failure to sign the agreement.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its Augusta, Maine, facility copies of the at-
tached notice marked "Appendix." 7 Copies of said
notice, on forms provided by the Regional Director for
Region 1, after being duly signed by the Respondent's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order. what
steps have been taken to comply herewith.
6 In the event no exceptions are filed as provided by Sec. 102.40 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions. and recommended Order herein shall, as prov ided 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
7 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
KENNEHEC BEVERAGE Co.