Aptos Seascape Corp.

National Labor Relations Board - Board Decisions

Dec 14, 1971

194 N.L.R.B. 540 (N.L.R.B. 1971)

540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aptos Seascape Corporation and Hotel, Motel, Restau-
rant Employees and Bartenders ' International
Union, Local 483, AFL-CIO. Case 20-CA-6474
December 14, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On September 20, 1971, Trial Examiner Maurice
Alexandre issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief.'
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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,2 and conclusions3 and to adopt his
recommended Order.4
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 Trial Examiner and hereby orders that
Respondent, Aptos Seascape Corporation, San Die-
go, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
1 Respondent's request for oral argument is hereby denied as the record,
the exceptions, and briefs adequately present the issues and positions of the
parties.
2 We hereby correct the following inadvertent factual errors in the Trial
Examiner's Decision, which in no way affected his Decision or our
adoption thereof. The first sentence of paragraph 9 of sec. III, A, should be
changed to show that it was the Union that requested an effective date of
October I rather than Respondent The last sentence of that same
paragraph should be changed to reflect the fact that Gold testified that he
asked Determan whether he objected to disclosure to the Aptos' staff,
rather than the union staff.
3 Respondent has excepted to certain credibility findings made by the
Trial Examiner. It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and
find no basis for reversing his findings.
4 Respondent contends that it was prejudiced by the Trial Examiner's
closing off of a line of questioning designed to show differences between
two documents The Trial Examiner stated that he could compare the two
documents himself; that was the reason for his ruling However, although
received into evidence, the second document was not physically
transmitted to the Trial Examiner with the other exhibits. He assumed,
however, that the two documents were substantially different. We have
now received the second document, and it is in fact different. In those
circumstances, we find that his ruling was not prejudicial.
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE, Trial Examiner: This case was
heard in Monterey, California, on May 18, 1971, upon a
complaint, issued on February 26, 1971,' alleging that
Respondent had violated Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended, by refusing to
execute a written collective-bargaining contract embodying
the terms of a complete agreement reached by Respondent
and the Union covering a certified unit of Respondent's
employees. In its answer, Respondent denied commission
of the alleged unfair labor practices.
Upon the entire record, my observation of the witnesses,
and the briefs filed by the General Counsel and by the
Respondent, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent's answer failed to deny, and thereby
admitted, the following allegations of the complaint:
Respondent, a California corporation with its
principal office located in San Diego, California, is, and
at all times material herein has been, engaged in the
business of real estate development.
Respondent has a , place of business in Aptos,
California, which includes the operation of a restaurant
and commercial golf course, herein called the Aptos
facility.
Penasquitos, Inc., an Illinois corporation with its
principal office located in San Diego, California, is, and
at all times material herein has been, engaged in the
business of real estate development.
Aptos Seascape Corporation and Penasquitos, Inc.,
are, and at all times material herein have been, affiliated
businesses under the common management of Irvin J.
Kahn, and constitute a single integrated business
enterprise. Irvin J. Kahn formulates and administers
common labor pwhcies for Aptos Seascape Corporation
and Penasquitos, Inc.
During the past year, Aptos Seascape Corporation
and Penasquitos, Inc., have derived gross revenues in
excess of $500,000 from their operations in the State of
California.
During the past year, Aptos Seascape Corporation
and Penasquitos have received goods valued in excess
of $50,000 from firms which in turn received those
goods from outside the State of California.
Respondent is, and at all times material has been, an
employer engaged in commerce and operations affect-
ing commerce within the meaning of Section 2(6) and
(7) of the Act.
I find the facts to be as admitted, and that Respondent is,
and at all times material herein has been, an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
1 Based on a charge filed on December 10, 1970, by Hotel, Motel,
Restaurant Employees and Bartenders' International Union, Local 483,
AFL-CIO (hereafter called the Union).
194 NLRB No. 94
APTOS SEASCAPE CORP.
II. THE LABOR ORGANIZATION INVOLVED
Respondent has admitted, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Evidence
In December 1969, Union Secretary-Treasurer Arnold
(now deceased) and Union President Gold met with
Holbrook, the manager of Respondent's beach and country
club. Holbrook greeted them by stating, "I have been
expecting you because my grapevine tells me that the
employees wish to be represented by the union." The Union
representatives gave Holbrook a copy of the Union's
master collective-bargaining agreement then in effect in the
Monterey-Santa Cruz area. Holbrook stated that he was
not the proper person to meet with and suggested that the
Union representatives meet with Watson, Respondent's
vice president. In early January 1970,2 Gold and Arnold
met with Watson, who stated that he had been informed by
Holbrook that the Union represented the employees. At
that time, they gave Watson a copy of the trust agreement
governing the industrywide health and welfare insurance
program which was referred to in the master contract.
Watson raised some questions relating to the contract,
expressed concern regarding the relation of employer
contributions to employee health and welfare benefits, and
requested the Union's cooperation in connection with a
hotel which Respondent wished to erect .3 In late January,
Gold and another Umon representative met with Watson,
at which time they discussed certain specifics of the health
and welfare plan. Thereafter, Holbrook informed the
Union that Project Manager Lang had been "assigned as
the person in charge."
On or about April 18, Arnold and Gold met with Lang
and other company representatives. Lang stated that he had
just taken over Respondent's entire construction develop-
ment program, and had not yet had an opportunity to read
and analyze the proposed contract and to discuss it with his
staff. The Union agreed to his request that they meet again
in early May. When they met as agreed, Lang requested a 1-
year delay in negotiations, stating that by that time the
hotel complex would be finished and the Company could
then devote all its efforts to negotiations. When Arnold
objected, Lang replied that he had had considerable
experience as a trade unionist, that he knew all about delays
in election procedures, and that "he had to stall for at least
a year." He further stated that even if the Union were
eventually to be certified, lengthy negotiations would take
place because he intended to do everything possible to stall
for a year.
2 All dates referred to hereafter relate to 1970 unless otherwise stated.
3 The Union subsequently filed a brief in support of Respondent's
petition to the Planning Commission relating to the hotel.
4 Also referred to in the record as Detterman. His full name is Donald
P. Determan.
541
Thereafter, the Union filed a petition for certification. On
June 12, Respondent and the Union executed a Stipulation
for Certification Upon Consent Election. Signing on behalf
of Respondent was Don Determan,4 as attorney for
Respondent.5 Determan testified that Wiggins, Kahn's
house counsel and his superior, was also present on June 12,
but that Determan signed the consent agreement as "a
matter of convenience." The election was held on July 17,
at which time 24 employees voted for the Union and 8
voted against. Following the counting of the ballots, Lang
invited Determan, Gold, and other Union representatives
(not identified in the record) to a cocktail lounge, where
they engaged in general discussion. At its conclusion, Lang
suggested a prompt meeting "for purposes of negotiations
and wrapping up the contract." On July 27, the Board
certified the Union as the exclusive collective-bargaining
representative of the restaurant, bar, kitchen, and janitorial
employees at Respondent's Aptos facility.
By letter dated July 30 and addressed to Lang, Gold
forwarded two copies of the new 5-year master contract
which the Union and the industry had agreed to, effective
August 1, and requested a bargaining meeting. Receiving
no reply, Gold telephoned Lang on or about August 19, and
they agreed to meet on August 25. Gold and Lang met on
that date,6 at which time the latter stated he did not know
whether he had the power to negotiate or whether someone
else would be designated to negotiate for Respondent. Gold
accused Respondent of resuming stalling tactics, and Lang
promised to ascertain who was to represent Respondent.
Gold suggested that since Lang might be the one
designated, they should discuss the contract in order to save
time. Lang agreed. They accordingly "went over" the
master contract, agreed to minor modifications, and then
discussed the trust agreement referred to in Section 23 of
the contract. Lang requested Gold to reduce to writing and
send him the modifications they had agreed to, together
with an explanation of the trust agreement, and to call him
in about a week.
In a letter dated August 28 and addressed to Lang, Gold
stated:
I wish to express my appreciation for the way our
meeting went, and I thought you advanced many points
that you raised, which I agreed to change.
I would like to review these items, and subject to getting
final approval from the "Home Office," the Umon
agrees to combine these changes into a Supplemental
Agreement to be made a part of the Master Agreement.
The letter then set forth the changes which the Union
proposed. Attached to the letter was a three-page document
summarizing the industry insurance and pension program.
Also enclosed, but not referred to in the letter, was a copy
of the newly revised and printed trust agreement. The letter
concluded by requesting Respondent's position on the
proposed modifications. Thereafter, Gold called Lang, who
5 Determan is engaged in the private practice of law. However, he,
receives a salary from Irvin J. Kahn Corporation, which manages
Respondent, and he devotes most of his time to the affairs of Kahn and its
affiliated corporations.
6 Arnold was then recovering from surgery and could not be present.
542 DECISIONS OF NATIONAL LABOR_ RELATIONS BOARD
stated that he had forwarded "all of the documents" to his
"home office," and that "a Mr. Wiggins was the person who
would be empowered to enter into binding negotiations
with the union." Gold, who had not asked Lang to identify
Wiggins' position with Respondent, telephoned Wiggins,
stated that he had been informed that Wiggins was the one
empowered to enter into binding negotiations on behalf of
Respondent, that Gold and Lang had reviewed the master
contract and had agreed to certain modifications, and that
he wished to meet in order to conclude the matter. Wiggins
acknowledged that he was empowered to enter into binding
negotiations, and asked Gold to call him on or about
September 21. When Gold complied, they arranged to meet
on September 28, and Wiggins advised Gold that Determan
would accompany him to the meeting.
On September 27, Determan was informed by Wiggins
that the latter would be unable to attend the meeting the
following day because of a fire close to his home. Determan
testified that he asked whether the meeting should be called
off, that Wiggins replied in the negative, and that Wiggins
stated, "Why don't you go ahead and see what they are
talking about." In a preheanng affidavit, Determan stated
that Wiggins "gave me no instructions on the way I was to
handle negotiations with the Union."
On September 28, Determan went to the meeting place
and met with Gold and Arnold. Determan informed them
of the reason why Wiggins could not be present. Gold
testified that he then asked Determan whether he had the
power to enter into binding negotiations. Determan gave
evasive and conflicting testimony as to whether Gold asked
him that question, but finally admitted that Gold asked that
question as soon as Determan arrived, and that Arnold
repeated the question at the end of the meeting. Gold
testified that Determan replied that he did have that power,
and that he was handling other union negotiations for
Respondent. Determan gave evasive and conflicting
testimony regarding his reply, variously stating among
other things that the subject was not discussed, that he did
not recall discussion thereof, that he stated that he did not
have that authority, that he believed that he so stated, that
he stated that he was negotiating subject to ratification by
his principal, that he stated that the Union's proposal
would have to be evaluated by several persons, and that
since neither he nor Wiggins had authority to bind
Respondent he stated that those present "would at least be
able to discuss the contract." He finally admitted that he
"didn't have that much recollection" of the conversation. In
his prehearing affidavit, Determan had stated: "I don't
recall any discussion at the union hall about my authority
to negotiate."
Gold testified that Determan had his own copy of the
Union's master contract at their meeting, but that at the
request of Determan, Gold gave him a copy of his letter of
August 28 to Lang and the attachment thereto. Determan
testified that he did not have a copy of the master contract
when he arrived, and that a copy was furnished to him by
Gold or Arnold. Determan's affidavit states: "I also had a
copy of their standard master agreement which I glanced at
but did not read in detail." Determan testified, in
explanation of that statement, that it "doesn't say anything
about when I received it." He further testified that he could
not recall whether he and Wiggins had discussed the
anticipated negotiations prior to September 28, or whether
he had possession of "the file" relating thereto. In addition,
he testified that he had no discussions with officials of
Respondent until the day after the September 28 meeting.
Gold testified that Determan inserted in the master
contract the changes set forth in the August 28 letter; that
they then went through the contract section by section; that
Determan expressed his approval of virtually all of its
provisions; that they had a lengthy discussion regarding the
insurance and pension plan; 7 that Determan requested an
effective date of October 1; that he stated that when the
final draft of the contract was prepared, it would be
necessary to define the bargaining unit to conform to the
Board's certification,8 and to phrase the union-security
provision so as to conform to the requirements of the Act;
and that Gold agreed. Gold further testified that at the end
of their discussion, he stated that it appeared that they had
a contract; that Determan agreed and they shook hands;
that Determan stated that he would have a final draft
prepared, executed, and sent to the Union in about a week;
that when in response to Gold's offer to prepare the final
draft, Determan stated that he wished to do it, Gold
acquiesced because he felt that as an attorney, Determan
"had to earn a legal fee." In this connection, he further
testified as follows:
And I did propose two-as I testified, that I would be
delighted to prepare the draft for him and have us
execute it and have him take it to the proper authority
after he reviewed it.
And then he said, "No, I will do this work."
And assuming-knowing he was an attorney, I didn't
know that he was on a salary, on a retainer, or what
have you, I felt this was the normal thing, and some
attorneys want this done by the union. Some want to do
it themselves. And signing it on the spot is-I have
never signed anything on the spot until I saw the final
draft, and I assumed that-and I know that he didn't
have the power to sign it on the spot.
Gold testified that he asked Determan whether he objected
to disclosure to the Union staff that an agreement had been
reached; that Determan stated he had no objection; and
that on the same day, Arnold advised the Umon
representative in the Santa Cruz area to inform the staff
that a contract had been reached effective October 1.
7 Gold testified that he could not recall whether Determan brought a
copy of the trust agreement with him, that Gold had copies on the table
when Determan arrived , but that the trust was not discussed during the
meeting
8 The master contract stated that the employer recognizes the Union as
the sole representative for collective -bargaining purposes of "all employees
coming under the Charter of the Union." The Board's certification defines
the unit as follows: "All restaurant, bar, kitchen and janitorial employees
employed by Respondent at its Aptos, California facility, but excluding all
other employees, office clerical employees , guards and supervisors as
defined in the Act "
APTOS SEASCAPE CORP. 543
Determan testified that at the meeting he glanced at each
section of the master contract; that he may have stated that
some of the sections were very standard and presented no
legal problem; that some sections were legally less material
than others; that he stated that there was no point in
discussing some of the sections, such as Section 23 which
referred to the trust agreement; 9 that he may have raised
some minor points which might be a problem; but that he
stated that this was not for him to decide. On cross-
examination, however, Determan testified that he was not
certain that he made the last statement. Determan further
testified that neither he nor Gold stated that they had an
agreement at the end of their meeting; but that on the
contrary, he stated that the proposal would have to be
evaluated by others and that he would submit a counterpro-
posal as soon as possible. In this connection, he testified at
one point as follows:
0. So, it was understood that you were going to
have to go back to San Diego and get this contract
signed, wasn't it?
A. That is right, and revise it somewhat.
Q. All right.
Now, other than the revisions that are shown in
General Counsel's Exhibit Four, were there any other
revisions that were discussed at that meeting?
A. I believe I raised some questions, that I indicated
that they would have to be either asked by the people at
Aptos, or somebody else, relative to buttons on-for
instance, the union buttons on-the buttons on their
uniforms. I hadn't seen any, and to me that might
offend the people to Aptos. I didn't know.
Q. So, other than union buttons, or some minor
revisions, it was your understanding at the conclusion
of the meeting of September the 28th that you had
negotiated a complete agreement subject to the
discussions by your principals in San Diego, is that
correct?
A. That is incorrect.
Q. All right.
Then, would you explain, to me what you had done
on September the 28th?
A. I had glanced through the contract, number one,
as I have previously indicated.
Q.
pal?
Weren't you there to negotiate for your princi-
A. Definitely.
Q.
you.
So, you had negotiated, whatever that means, to
Now, you have indicated to us in your testimony that
you went through the contract, that you went through
the letter of August the 28th. You were supposed to take
it back to San Diego and ask for approval, approval,
isn't that correct?
There wasn't any further negotiations to be done,
was there?
A. Well, I have never completed a negotiation with
anybody in one-half an hour over lunch.
Q. You were at the election in July, weren't you?
A. Yes.
Q. You were at the NLRB hearing leading to the
election prior to that, weren't you?
A. Yes.
Q. You knew that this matter had gone on, by
September 28th, over two months, didn't you?
A. (No response.)
Q. You knew that these parties had been waiting to
finish an agreement?
A. Oh, yes, yes. I-
Q. Were you coming up there with an empty
briefcase and an empty head? Didn't you know
anything?
A. I hadn't been involved prior to September the
28th. After the election of July the 17th until the time of
September the 28th, I might have been involved 20,
seconds.
Gold testified that since he did not receive a signed
contract, he telephoned Determan on or about October 6;
that Determan stated that because he was flooded with
legal work he might not be able to get to it for 4 weeks and
implied that he wanted to postpone the effective date; that
Gold replied that this was not what they had agreed to and
would put the Union in an embarrassing position, but that
he would advise Determan of the Union's views. By letter
dated October 12, the Union requested Determan to state
the,effective date he desired. Receiving no reply, Gold on
October 20 telephoned Determan, who stated that he was
swamped with work and that he could not get to the
contract for 2 or 3 weeks.
In early November, Gold again called Determan, who
stated that he would do his best to get to the contract in a
few days. By letter dated November 4, the Union's
attorney, Leahy, complained to Determan that the contract
had not yet been sent to the Union for execution. By letter
dated November 9, addressed to Leahy, Determan stated:
We have just received a draft of our proposed union
agreement from Aptos. There will have to be some
revisions made before we are able to send you and Pat
Arnold a copy of our proposed contract.
Gold testified that he telephoned Determan on or about
November 20 and heatedly asked what he meant by the
"minor modifications" referred to in his letter; that
Determan advised him to calm down, stating that he wished
to make some minor changes in phraseology which would
not change any of the substantive matters they had agreed
to; and that Determan promised to send the contract as
soon as he could. Gold further testified that during these
conversations, Determan never stated that the contract was
being reviewed by Respondent's officers, but attributed the
delay only to the pressure of work.
On December 6, Union Attorney Leahy called Determan
9 Determan testified that he asked for a copy of the trust agreement lengthy, and that he stated that he would have to study it
during the meeting, that Arnold obtained a copy for him, that it was
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and 'requested receipt of a contract by a specified date.
Leahy then told Gold that he would file an unfair labor
practice charge if a contract was not received from
Determan by that date. The charge was filed on December
10. By letter dated December 15 and addressed to the
Regional Office, Determan enclosed a notice of appearance
on behalf of Respondent and stated:
I am sure we will have no problem in resolving this
situation. Our relations with the Union have been most
satisfactory and we envision the finalization of an
agreement in the near future.
By letter dated January 11, 1971, and addressed to Gold,
Determan stated:
Enclosed is our proposed Union Agreement.
We would be most happy to meet with you in the
near future and resolve any questions that may arise.
With respect to the proposed agreement referr ed to in the
letter, Determan testified as follows on direct examination:
Q. Now, as a result of your conversations, as a
result of your meeting, as a result of being handed these
various documents, did you, eventually, reduce to
writing all of these things as well as your understanding
of the agreements entered into?
A. I entered a-I drafted a proposal on behalf of
my client, Aptos Seascape Corporation, based upon
these documents and my client's position.
Gold testified that Respondent's counterproposal reduced
the benefits that the employees then enjoyed. Contrary to
the General Counsel's brief, the record shows that the
counterproposal was offered and received in evidence as
part of General Counsel's Exhibit 5. Although the
counterproposal was not physically transmitted to me with
the other exhibits, I may assume from the existence of the
instant controversy that the counterproposal differed from
the agreement which, the General Counsel contends, was
reached by Respondent and the Union on September 28,
and that the difference is more than de minimis.
The complaint herein was issued on February 26, 1971.
By letter dated March 9, 1971, Determan forwarded
Respondent's answer to the complaint.
B. Concluding Findings
The General Counsel contends that Determan had actual
or sufficient apparent authority to enter into a collective-
bargaining agreement which was binding upon Respon-
dent, that he reached a meeting of the minds with Gold and
Arnold regarding all the terms of an agreement on
September 28, and hence that Respondent's refusal to sign
a written contract with the Union embodying their oral
agreement violated Section 8(a)(5) and (1), as alleged in the
complaint. Respondent contends that Determan did not
have authority to bind Respondent, that he so informed
Gold and Arnold, and that no agreement resulted from
their negotiations on September 28.10 1 find that Respon-
dent violated the above sections of the Act.
10 Respondent does not question the validity ° of the Union's
certification.
11 Cf. United Steelworkers of America v. CCI Corporation, 395 F.2d 529
(C A 10); Tacoma Printing Pressmen 's Union No. 44 (Valley Publishing
Company), 131 NLRB 1090, and Huttig Sash and Door Company, 151
In N.L.R.B. v. Coletti Color Prints, Inc., 387 F.2d 298
(C.A. 2), the Court stated:
It does not necessarily follow that one hired by a
company "to negotiate" a collective bargaining agree-
ment with a union has authority to bind the company to
the terms he negotiates without receiving subsequent
approval of those terms by the company. [Citations
omitted.] Under our present labor law, there certainly is
no duty on the part of an employer to be represented at
the bargaining table by a person with competent
authority to enter into a binding agreement with the
employees, although the bargainer's lack of such
authority is a factor to be considered in evaluating the
employer's good faith... .
Accord, Standard Oil Company (An Ohio Corporation), 137
NLRB 690. Thus, an agent may lawfully be invested with
the limited authority to negotiate a collective-bargaining
contract which is subject to ratification by the employer.
Such limitation upon the agent's authority, however, must
be disclosed to the Union before agreement is reached. In
Brotherhood of Painters, Decorators and Paperhangers of
America, Local 850, AFL-CIO, (Morgantown Glass and
Mirror, Inc.), 177 NLRB No. 16, the Board held, inter alia,
that a local union can lawfully defer signing a contract
pending approval by its international where "the necessity
for such approval is clearly understood by the parties."
Although that case involved a union as principal, the same
rule applies to an employer. Conversely, if the necessity for
the employer's approval of an agreement made by his agent
is not clearly understood, the employer's refusal to sign the
agreement is unlawful. Stated otherwise, an agent appoint-
ed to negotiate a collective-bargaining contract is deemed
to have apparent authority to bind his principal in the
absence of notice to the contrary. N.L.R.B. v. Ralph
Printing & Lithographing Co., 75 LRRM 2267 (C.A. 8).11
Whether or not this rule comports with "good technical
contract rule" is not controlling. What is important is
whether the rule states good collective-bargaining law.
Lozano Enterprises v. N.L.R.B. 327 F.2d 814, 818 (C.A. 9);
see also Section 2(13) of the Act. The rule, which imposes
no hardship upon the principal, is dictated by the statutory
policy of promoting industrial peace by encouraging
collective bargaining. Clearly, the statutory policy would be
thwarted by permitting a principal, after his agent has
reached agreement, to state for the first time that the latter's
authority was limited and that the agreement was subject to
ratification.
Applying the foregoing principles to the instant case, I
find that Determan should be deemed to have had apparent
authority to bind Respondent when he engaged in
negotiations with Gold and Arnold on September 28. No
conten on is or can be made that Determan, an attorney,
was merely acting as Respondent' s messenger on that date.
In the past, he had represented the corporate complex to
which Respondent belonged in labor matters, including
negotiations, with little or no supervision or assistance.
Wiggins gave him no instructions on how to handle the
NLRB 470, enfd. as modified 362 F.2d 217 (C.A. 4), with Operating
Engineers Local Union No 3, AFL-CIO (California Association of
Employers), 123 NLRB 922, and Sheet Metal Workers Union, Local No 65,
AFL-CIO (Inland Steel Products Company), 120 NLRB 1678.
APTOS SEASCAPE CORP.
September 28 negotiations with the Union. Determan
testified that he possessed and exercised the power to
negotiate on behalf of Respondent on that date , and the
latter does not claim otherwise . Whether or not Respon-
dent's officers knew on September 28 that Wiggins was not
present during the negotiations , there is no doubt that they
subsequently learned that Determan had been the sole
negotiator . In addition , Determan continued to deal with
the Union on behalf of Respondent after September 28.
Indeed, so far as the record shows, he was the only one who
did so. It was Determan who prepared Respondent's
ostensible counterproposal to the Union, who entered a
notice of appearance on behalf of Respondent after the
unfair labor practice charge was filed, and who filed
Respondent 's answer to the complaint issued herein. At one
point in his testimony, Determan referred to Respondent as
"my client." At no time did Respondent disavow the
existence or exercise of Determan 's power to negotiate on
its behalf , nor did it inform the Union that his authority
was limited . Finally, I find that much of Determan's
testimony is not credible , and I reject his version of what
transpired on September 28. Rather, I credit Gold and find
that Determan stated to Gold and Arnold on that date that
he had the power to bind Respondent 12 Since the Union
was not informed that any agreement was subject to
ratification by Respondent, I find that Determan possessed
apparent authority to bind Respondent.
I further find that Determan reached a final agreement
with Gold and Arnold on September 28 regarding all the
terms and conditions of a collective-bargaining contract.
That contract consisted of the provisions of the master
contract as modified by the changes set forth in Gold's
letter of August 28 to Lang, a change in Section 2 of the
master contract so as to define the unit as set forth in the
Board 's certification , a change in Section 3 of the master
contract so as to conform it to the provisions of the Act
relating to union security and an effective date of October 1
for the contract . In so concluding, I rely on the following
considerations:
(a) Prior to their meeting with Determan , Gold and
Arnold had engaged in negotiations with Vice President
Watson and later with Project Manager Lang , and the latter
had indicated his approval of certain modifications of the
master agreement.
(b) I do not credit Determan 's testimony that he did not
have possession of, and had not read , the pertinent
documents prior to the September 28 meeting . The master
agreement, the trust agreement referred to therein , the letter
of August 28, and the summary of the trust agreement had
been in the possession of Watson or Lang. Determan gave
equivocal testimony as to whether he had "the file" and had
discussed the anticipated negotiations with Wiggins prior to
the meeting . He admittedly discussed the situation with
Respondent's officers , but I do not credit his testimony that
he first did so on the day after the meeting.
(c) Determan went through the master contract section
by section with Gold and Arnold. They discussed the
insurance and pension plan . Determan accepted the
changes set forth in the August 28 letter. Gold and Arnold
12 Cf. Huttig Sash and Door Company, 151 NLRB 470, 472 fn. 4, enfd.
as modified 362 F 2d 217 (C.A. 4), with United Steelworkers of America v
545
agreed to Determan's request for changes in the master
contract relating to the unit and to union security. They
also agreed to Determan's request for an effective date of
October 1. I credit Gold's testimony that at the conclusion
of the meeting, they shook hands and acknowledged that
they had an agreement which was to be reduced to writing
by Determan and signed by Respondent. Determan
assented to Gold's request for his consent that the Union's
staff be advised that an agreement had been reached.
(d) I credit Gold's testimony that Determan subsequently
acknowledged the existence of an agreement; that the latter
never denied such agreement, but merely stated he wished
to make only insubstantial changes in phraseology; and
that he continued to attribute his delay in preparing the
written contract only to the pressure of other work, and not
to any disagreement over its provisions.
In sum, I find that the negotiations did not take place for
the first time at the September 28 meeting ; that the parties
had engaged in significant negotiations before that date;
that Determan did not go to that meeting "with an empty
briefcase and an empty head," but on the contrary was
familiar with what had theretofore occurred; that he and
the Union representatives concluded an agreement which
he promised to reduce to writing; that Respondent was
bound by that agreement; and that Respondent thereafter
failed and refused to sign a written contract embodying that
agreement.
These conclusions are in no way inconsistent with Gold's
testimony that he knew that Determan did not have the
power to sign a contract "on the spot." That testimony was
nothing more than a recognition that the proper signatory
would be an officer of Respondent rather than Determan. I
accordingly find that Respondent's failure and refusal to
sign such a contract violated Section 8(a)(5) and (1) of the
Act.
CONCLUSIONS OF LAW
1. By unlawfully failing and refusing to execute a
written contract embodying the terms and conditions of an
oral agreement reached with the Union, as found herein,
Respondent engaged in unfair labor practices in violation
of Section 8(a)(5) and (1) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
THE REMEDY
I recommend that Respondent cease and desist from its
unfair labor practices and take certain affirmative action
which I deem necessary to effectuate the policies of the Act.
Specifically, I recommend that Respondent forthwith sign a
collective-bargaining contract embodying the terms of the
agreement reached by Respondent and the Union, as found
herein; that it give effect to such a written contract
retroactively to October 1, 1970; 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 the agreement. The loss of earnings under the
order recommended shall be computed in the manner set
CCI Corporation, supra.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 13
ORDER
Respondent, Aptos Seascape Corporation, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to sign a written collective-
bargaining contract embodying the terms of the agreement
reached on September 28, 1970, by a representative of
Respondent and representatives of Hotel, Motel, Restau-
rant Employees and Bartenders' International Union,
Local 483, AFL-CIO, effective October 1, 1970.
(b) In any, like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action:
(a) Forthwith sign the agreement described in paragraph
1(a).
(b) Upon execution of the aforesaid agreement, give
retroactive effect to the provisions thereof and, in the
manner set forth in the section herein entitled "The
Remedy," make whole their employees for any losses they
may have suffered by reason of Respond_ ent's failure to sign
the agreement.
(c) Preserve and make available to the Board or its agents
on request, for examination and copying, all payroll
records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(d) Post at its facility in Aptos, California, in those places
where notices to its employees are customarily posted,
copies of the notice attached hereto and marked
"Appendix." 14 Copies of said notice, on forms provided by
the Regional Director for Region 20, shall, after being
signed by Respondent's representatives, be posted by the
Respondent immediately upon receipt thereof and main-
tained by it for 60 consecutive days thereafter in
conspicuous places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision
what steps have been taken to comply herewith.15
13 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 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.
14 In the event that the Board's 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD."
15 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 20, in writing, within 20 days
from the date of this Order, what steps have been taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL forthwith sign a written collective-bargain-
ing contract embodying the terms of the agreement
made on September 28, 1970, by our representative and
those of Hotel, Motel, Restaurant Employees and
Bartenders' International Union, Local 483, AFL-CIO,
effective October 1, 1970.
WE WILL give retroactive effect to the terms and
conditions of 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.
WE WILL NOT fail or refuse to sign the above contract.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed by the National Labor Relations Act.
APTOS SEASCAPE
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official Notice and must not be defaced by
anyone
This Notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this Notice or compliance with
its provisions, may be directed to the Board's Office, 13050
Feder, l Building, Box 36047, 450 Golden Gate Avenue,
San Francisco, California 94102, Telephone 556-3197.