Automobile Mechanics Local No. 701, International Association Of Machinists And Aerospace Workers, Afl-Cio

National Labor Relations Board - Board Decisions

Jul 31, 1986

280 N.L.R.B. 1312 (N.L.R.B. 1986)

1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Automobile Mechanics Local No . 701, International
Association of Machinists and Aerospace Work-
ers, AFL-CIO and Avis Rent A Car System,
Inc. Case 13-CB-11076
31 July 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 8 April 1986 Administrative Law Judge
Claude R. Wolfe issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Party
filed answering briefs.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, fmdings, I and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Automobile
Mechanics Local No. 701, International Associa-
tion of Machinists and Aerospace Workers, AFL-
CIO, its officers, agents, and representatives, shall
take the action set forth in the Order.
1 The Respondent has excepted to some of the judge's credibility find-
ings . The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The judge inadvertently stated that Rourke called Staniszewski on the
morning of 17 August 1985 rather than 27 August 1985 and that Rourke
submitted a typed draft to Local 702 rather than Local 701.
Robert Bloch and Howard Malkin, Esqs., for the General
Counsel.
William A. Widmer III, Esq., for the Respondent.
Michael A. Curley, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This
case was litigated before me at Chicago, Illinois, on 28
January 1986 pursuant to charges filed on 12 and 20 Sep-
tember 19851 and complaint issued 25 October. The
complaint alleges that Automobile Mechanics Local No.
701, International Association of Machinists and Aero-
space Workers , AFL-CIO (Respondent, Local 701, or
1 All dates are 1985 unless otherwise noted.
the Union) violated Section 8(b)(3) of the National Labor
Relations Act (the Act) about 9 September by refusing
to execute a written collective-bargaining contract em-
bodying a full and complete agreement reached between
Local 701 and Avis Rent A Car System, Inc. (Avis)
about 28 August. Respondent denies the commission of
unfair labor practices.
After considering the entire record, the comparative
testimonial demeanor of the witnesses, and the able post-
trial briefs of all parties, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Avis, a corporation engaged in the retail rental of
automobiles at O'Hare International Airport, Chicago, Il-
linois, derived gross revenues in excess of $500,000 from
its rental automobile business during the calendar year
preceding the issuance of the complaint , a representative
period, and, during the same period, purchased and re-
ceived goods and materials valued in excess of $5000 at
its Chicago, Illinois facility which came directly from
outside the State of Illinois . Avis is now, and has been at
all material times, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
For at least 16 years prior to the events under consid-
eration in this case Avis and Local 701 had entered into
successive collective -bargaining agreements covering a
unit of Avis employees.2 The latest of these agreements
expired on 30 April.
Bargaining meetings for a new agreement were held
on 27 March, 9 April, and 23 August. Gerald Rourke
was chief spokesman for the Avis bargaining team. Gene
Staniszewski was the chief and only bargainer for Local
701. The negotiations concentrated on wages, cost-of-
living adjustments, a two-tier wage scale , the subcon-
tracting of new-car preparation, and a 7-day workweek.
It appears that in this case, as they had in the past, the
parties followed the Union 's collective-bargaining agree-
ment with employers in the trucking industry, and con-
fined the negotiations to concerns peculiar to Avis. After
discussing the five topics enumerated above at each
meeting, Rourke presented Staniszewski with a final pro-
posal on 23 August. Staniszewski agrees that this propos-
' The bargaining unit is alleged and admitted to consist of the follow-
mg Avis employees:
All automotive machinists , mechanics , semi-skilled workers , lot men,
apprentices and all other employees employed by the Employer at
its Chicago , Illinois, facility who come under the jurisdiction of Re-
spondent , and who are covered by and described in a collective-bar-
gaining agreement between Respondent and the Employer effective
by its terms for the period from May 1, 1982 to April 30, 1985, ex-
cluding office employees, guards and supervisors as defined in the
Act.
280 NLRB No. 149
MACHINISTS LOCAL 701 (AVIS RENT A CAR)
al reflects what the parties had discussed . It reads as fol-
lows:
COMPANY FINAL OFFER
(1) Wages:
(a) Employees hired prior to Aug 23, 1985
Mechanic
5-1-85 :. 10$/hr.
5-1-85 :.25*/hr.
5-1-85 :.25$/hr.
(b) Employees hired after Aug 23, 1985
Mechanic
$9.25-8/85
9.50-5/86
9.75-5/87
Semiskilled
7.00-8/85
7.25-5/86
7.50-5/87
(2) COLA-IS ELIMINATED
(3) SEVEN-DAY WORKWEEK IS ESTAB-
LISHED ON A SENIORITY BID BASIS. This
means that employees may be scheduled any five
(5) consecutive days of work with two (2) consecu-
tive days off.
(4) NEW-CAR PREP SERVICE FUNCTIONS
(SEE ATTACHMENT)
The attachment to the proposal lists the functions in-
cluded in new-car preparation.
Staniszewski told Rourke that he would take the pro-
posal to the employees for a vote. Shortly thereafter on
the same day the unit employees assembled in the Avis
conference room at Staniszewski 's request and with Avis'
permission. Staniszewski credibly testified that the Avis'
final proposals in 1973, 1976, 1979, and 1982 had been
submitted to the employees for a ratification vote with
the employees assembled with Avis ' permission on Avis'
premises . Rourke's testimony that a ratification vote was
never taken before to his knowledge and Avis' city man-
ager Dan Krezel's claim that to his recollection Local
701 had never conducted a ratification vote before were
not nearly as certain or impressive as Staniszewski's re-
cital. There was simply no reason for Staniszewski to
invent a new procedure for 1985. Krezel agrees that he
understood Staniszewski was taking the proposal to the
employees for a ratification vote. Rourke's claim that as
far as he was concerned the employee vote had nothing
to do with whether there would be an agreement is not
credited.
The employees rejected Avis' final proposal by a 13-
to-0 vote , and voted to strike by an 11-to-2 margin. Stan-
iszewski noted the employees' comments , and told
Krezel the proposal had been rejected and the employees
wanted a larger wage increase the first year, retention of
cost-of-living adjustments, no 7-day workweek, and re-
strictions on the work performed by new-car preparation
contractors. Krezel gave Staniszewski 's message to
Rourke that evening by telephone.
1313
Rourke called Staniszewski on the morning of 17
August . After some discussion , Rourke revised his final
offer . The revisions were (1) a raise to a 25-cent first-
year wage increase for employees hired before 23
August; (2) a 40-hour guarantee during the 7-day work-
week with overtime pay at 1-1/2 times regularly hourly
pay for any hours worked over 8 per day and for the
sixth day in the workweek and with double time for the
seventh day; (3) an increase in recall rights from 18 to 24
months; and (4) a provision that subcontractors doing
new-car preparation would do no drilling for any instal-
lation and would do no radio repair or installation. Stan-
iszewski told Rourke he agreed with the revised propos-
al and would take it to the employees for a vote.
The next day, 28 August , after receiving permission
from Krezel , Staniszewski met with unit employees in
the Avis conference room . He presented the Company's
revised final proposal. The employees promptly rejected
it by a vote of 10 to 4. Staniszewski then told the em-
ployees that he would take a strike vote, and that if they
did not vote to strike by a two-thirds majority that
meant they had accepted the proposal. With this advice
the employees voted 9 to 5 to strike. Emerging from the
meeting Staniszewski met Jerome Bernacki, the mainte-
nance and damage manager for Avis, and told him the
parties had a 3-year contract . Staniszewski then met
Krezel and told him they had a contract . Krezel immedi-
ately called Rourke and told him the parties had a con-
tract . Rourke then revised the expired collective-bargain-
ing agreement to reflect the negotiated changes, typed it,
and sent it to Staniszewski on 9 September with a cover
letter advising Staniszewski to sign and return copies to
Rourke "if you find them free of error." This letter and
draft agreement were accompanied by a side letter re-
flecting an agreement on medical and dental insurance
reached by Rourke and Staniszewski over the telephone
on 4 or 5 September.
Dean Kocina, deputy in charge of Local 701, advised
the Company by mailgram of 9 September , received 10
September , as follows:
THIS WILL SERVE AS RENEWED OFFICIAL NOTICE
THAT YOUR COMPANY REMAIN BOUND BY TERMS
AND CONDITIONS OF THE MAY 1 1982 THROUGH MAY
1 1985 LABOR AGREEMENT SIGNED BY YOURSELF
APRIL 27TH 1983, UNITL SUCH TIME AS A RECOG-
NIZED SUCCESSOR AGREEMENT IS IN PLACE.
ANY UNILATERAL CHANGE IN THE LABOR TERMS
AND CONDITIONS WILL BE CONSIDERED AN UNFAIR
LABOR PRACTICE BY THE UNDERSIGNED.
A letter dated 9 September was also sent to the Compa-
ny by Kocina. Its content is identical to the mailgram.
The Company had not implemented any changes in
terms or conditions of employment , but it had consulted
with its employees and commenced rescheduling their
workdays in accord with the 7-day workweek proposal
which Avis thought had been agreed on as part of a new
contract. The scheduling was not implemented.
Kocina's letter and the draft contract submitted by
Rourke were mailed the same day and thus crossed in
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the mails. On receipt of the contract, Kocina directed
Staniszewski to review it for corrections. Kocina had re-
moved Staniszewski as business representative for Avis
employees on 6 September for the asserted reasons that
Staniszewski had erred in thinking that the contract had
been ratified because there was less than a two-thirds
strike vote. Kocina told Staniszewski that the contract
could only be ratified by a majority vote if a strike vote
had carried by a two-thirds majority. Exactly where
Kocina and Staniszewski got their opposing understand-
ings of constitutional requirements is unexplained because
neither is supported by the constitution.
The International union constitution does not describe
the authority of a local business representative, require
employee ratification of a collective -bargaining agree-
ment, bar a second strike vote after the first one carries,
or support a conclusion that a rejected contract becomes
accepted by the Union if a strike vote carries by less
than a two-thirds majority. The constitution simply does
not cover these matters. Accordingly, neither Stanis-
zewski's understanding of constitutional requirements nor
that of Kocina has any evidentiary support, nor do these
interpretations provide anything helpful to the resolution
of the issues before me.
Staniszewski was the only union negotiator present at
any contract negotiation with Avis within the past dozen
years or so. He was also the only union representative
who administered the Avis contract by visiting the prem-
ises and consulting with employees during the terms of
the various collective -bargaining agreements preceding
the one at issue. It was he who always announced the
Union's agreement with bargaining proposal . Avis was
never advised that it had no authority to agree to a con-
tract. There is no persuasive evidence that employee rati-
fication of an agreement was required even though Stan-
iszewski had for many years regularly presented pro-
posed agreements to the Avis employees assembled on
Avis premises with Avis' permission for the purpose of
taking a ratification vote. It had become an established
practice acquiesced in and even assisted by Avis' furnish-
ing of time and space to conduct the vote. The language
of the charges filed by Avis attorneys support this view
when they state that Staniszewski "agreed to take the
agreement before the members of the unit for a ratifica-
tion vote." Ratification had become by practice a part of
the bargaining process, but ratification or the lack of it is
really not important in this case because Local 701 pre-
sents nothing but its ipse dixit to show ratification was a
requisite rather than Staniszewski's personal practice and
because the obligation to execute a contract arose from
Staniszewski 's 28 August pronouncements to company
managers that there was an agreed-on contract. Local
701 had for years communicated its agreement to con-
tracts with Avis through Staniszewski. We are reminded
in Teamsters Local 749 (American Colloid)9 that "[i]n
normal contract law, a party who communicates the ac-
ceptance of an agreement through an agent is bound by
the agent's acts or statements." The evidence preponder-
ates in favor of a finding that Staniszewski was an agent
of Local 701 expressly authorized to negotiate and con-
195 NLRB 474, 476 (1972).
clude collective-bargaining agreements . He had done so
in the past without any apparent need to consult his su-
periors. At the very least, Avis was entitled to rely on its
representations, whether it be considered an actual or ap-
parent agent. Avis had done so for many years without
repercussion and had never been informed of any limita-
tion on its authority. It was reasonable for Avis to rely
on Staniszewski's agreement in 1985. Staniszewski cer-
tainly believed an agreement had been reached, and ex-
pressed no reservations to Avis. When Staniszewski an-
nounced to Krezel and Bernacki on 28 August that they
had a contract, Avis was entitled to rely on that repre-
sentation. Local 701 is bound by that representation,
whether ratified or not.4 Accordingly, I conclude and
find that, as Staniszewski advised Bernacki and Krezel,
the parties had reached agreement on 28 August. There
had been a meeting of the minds on all substantive issues.
All that remained was the preparation of a written agree-
ment reflecting what the oral agreements were. Rourke
took this duty on himself and submitted a typed draft to
Local 702, not knowing that Kocina was simultaneously
issuing his message rejecting the agreement as reported
by Staniszewski. Kocina rejected the contract out of
hand before even seeing it because he considered that
Staniszewski had acted improperly in taking a new strike
vote and using the results thereof as a reason for accept-
ing Rourke's revised final proposal. The complaint alle-
gation that Local 701 violated Section 8(b)(3) of the Act
by refusing to execute a collective-bargaining agreement
embodying the agreement reached on 28 August is cor-
rect because Kocina's rejection of the agreement Stanis-
zewski had made was contrary to Local 701's statutory
duty to honor that agreement.
Respondent argues that the document submitted by
Rourke for signature was a draft subject to revision as
had been the case in the 1982 negotiatinos when Local
701 drafted the agreement. Respondent further argues
that the draft contained additions, deletions, and revi-
sions never negotiated. I see no need to minutely exam-
ine the differences alluded to by Respondent because, as
a group, they appear to be minor matters of draftsman-
ship reasonably in accord with the agreement reached on
28 August. Moreover, here , as in Electrical Workers
IBEW Local 22 (Electronic Sound), supra, which I find is
almost on all fours with this case and is controlling
precedent, the 28 August oral exchanges between Stanis-
zewski and Krezel and Bernacki constitutes the agree-
ment, and any argument over the Rourke draft is of no
consequence to this decision. Local 701 does not agree
with the draft, and I find that it had not agreed with the
exact language. This language disagreement does not
excuse Kocina's rejection of the binding oral agreement
given by Staniszewski. As Judge Anderson notes in Elec-
tronic Sound:5
4 Electrical Workers IBEW Local 22 (Electronic Sound), 268 NLRB 760
(1984), Elevator Constructors Local 8 (National Elector), 185 NLRB 769
(1970), Teamsters Local 427 (Edward D. Sultan), 223 NLRB 1342 (1976),
Painters (Maynard C Belvoir), 223 NLRB 748 (1976).
5 268 NLRB at 763
MACHINISTS LOCAL 701 (AVIS RENT A CAR)
The Board has noted the difference between a
meeting at which an oral agreement is reached,
which agreement is binding on the parties, and the
occurrence of a separate later meeting to "draft le-
galistic language reducing the parties ' previously ar-
rived at oral agreement to writing." Teamsters Local
85 (Tyler Bros. Drayage Co.), 206 NLRB 500, 506
(1973).
Kocina 's 9 September rejection of the 28 August agree-
ment had nothing to do with Rourke's draft, which nei-
ther Kocina nor Staniszewski had yet seen . What it boils
down to is that Kocina attempted to void Staniszewski's,
and thus Local 701's, agreement because he disagreed
with Staniszewski 's conduct in agreeing to a contract
which the employees had twice rejected. The attack on
the content of Rourke's draft, which I find made no sig-
nificant changes in the prior contract as amended by the
agreed-on provisions on 28 August, was an afterthought
by Kocina designed to strengthen Respondent 's position.
There was no other apparent reason to pour over the
draft language if Kocina in fact believed there was no
agreement on substance before he received the draft. It
poses no great hardship on Local 701 to require it, as
Section 8(d) of the Act requires, to reduce the 28 August
oral agreement to "legalistic language ," after consulta-
tion with Avis' representatives,6 and sign it. According-
ly, my Order will require it to do so.
CONCLUSIONS OF LAW
1. Avis Rent A Car System, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Automobile Mechanics Local No. 701, International
Association of Machinists and Aerospace Workers,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. All automotive machinists , mechanics , semi-skilled
workers, lot men, apprentices and all other employees
employed by Avis Rent A Car System, Inc. at its Chica-
go, Illinois, facility who come under the jurisdiction of
Respondent , and who are covered by and described in a
collective-bargaining agreement between Automobile
Mechanics Local No. 701, International Association of
Machinists and Aerospace Workers, AFL-CIO and Avis
Rent A Car System, Inc. effective by its terms for the
period from May 1, 1982, to April 30, 1985, excluding
office clerical employees, guards, and supervisors as de-
fined in the Act, constitute a unit appropriate for the
purposes of collective-bargaining within the meaning of
Section 9(b) of the Act.
4. At all material times, Local 701 has been and now is
the exclusive representative of the employees in the unit
for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing since about 9 September 1985 to execute
a collective-bargaining agreement including all the terms
and conditions to which the parties agreed on 28 August
1985, Respondent Local 701 violated Section 8(b)(3) of
s Rourke 's request that Staniszewski sign the draft copies "if you find
them free of error" clearly invited such consultation
1315
the Act and engaged in unfair labor practices affecting
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 recommend-
ed'
ORDER
The Respondent, Automobile Mechanics Local No.
701, International Association of Machinists and Aero-
space Workers, AFL-CIO, its officers , agents, and repre-
sentatives, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Avis Rent A
Car System, Inc. by failing and refusing to sign a collec-
tive-bargaining agreement embodying the terms and con-
ditions of employment for Avis employees which were
agreed to on 28 August 1985.
(b) In any like or related manner engaging in conduct
in derogation of its statutory duty to bargain with Avis.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request by Avis Rent A Car System, Inc. and
jointly with Avis Rent A Car System, Inc. prepare and
sign a written agreement containing the terms and condi-
tions of employment agreed to between Local 701 and
Avis on 28 August 1985. The terms and conditions are
not subject to further negotiations for the term of the
written agreement unless the parties mutually agree to
such negotiations.
(b) Give retroactive effect to and honor the agreement
until its expiration.
(c) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix."s Copies of
the notice, on forms provided by the Regional Director
for Region 13, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Furnish the Regional Director with signed copies
of the notice for posting by Avis Rent A Car System,
Inc., if willing, at all places where notices to their em-
ployees are customarily posted.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply therewith. For the pur-
pose of determining or securing compliance with this
Order, the Board, or any of its duly authorized repre-
° If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
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 pur-
poses
8 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 Nation-
al 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."
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentatives, may obtain discovery from the Respondent,
its officers, agents, successors or assigns , or any other
person having knowledge concerning any compliance
matter, in the manner provided by the Federal Rules of
Civil Procedure. Such discovery shall be conducted
under the supervision of the United States Court of Ap-
peals enforcing this Order and may be had upon any
matter reasonably related to compliance with this Order,
as enforced by the Court.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
meat for Avis employees in an appropriate unit which
we agreed to on 28 August 1985.
WE WILL NOT in any like or related manner engage in
conduct in derogation of our statutory duty to bargain
with Avis Rent A Car System, Inc.
WE WILL, on request of Avis Rent A Car System,
Inc., sign the aforementioned contract, and WE WILL
give it retroactive effect and honor its terms until its ex-
piration.
AUTOMOBILE MECHANICS LOCAL No. 701,
INTERNATIONAL ASSOCIATION OF MACHIN-
ISTS AND AEROSPACE WORKERS, AFL-
CIO
WE WILL NOT refuse to bargain collectively with Avis
Rent A Car System, Inc. by failing and refusing to sign a
contract embodying the terms and conditions of employ-