B. F. Goodrich Chemical Co.

National Labor Relations Board - Board Decisions

Sep 27, 1977

232 N.L.R.B. 399 (N.L.R.B. 1977)

B. F. GOODRICH CHEMICAL CO.
B. F. Goodrich Chemical Company, a Division of the
B. F. Goodrich Company and International Associ-
ation of Machinists & Aerospace Workers, Lodge
No. 31, AFLCIO. Case 23-CA-6372
September 27, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 29, 1977, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs, and the Respondent 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
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 be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: Upon a
charge filed by Machinists Lodge No. 31, a complaint
issued by the General Counsel on March 11, 1977, and an
answer filed by Respondent, a hearing was held on April 7,
1977, in Beaumont, Texas.
Upon the entire record in the case, including my
observation of the demeanor of witnesses and upon
consideration of briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, is an employer
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
This case involves Respondent's chemical plant in Port
Neches, Texas, where Respondent has contractual rela-
tions with six unions, including the Charging Party. Each
of the unions negotiates its own working agreement with
Respondent, but the unions bargain jointly with Respon-
dent for an employee benefit programs agreement. The
parties were negotiating a renewal of their separate
"working" agreements and in early January 1977 they were
also engaged in joint negotiations respecting amendments
to their benefit agreement.
One of the union' demands in the hospital-medical-
surgical category of the benefit agreement was for payment
by Respondent of all fees charged by surgeons who assist
attending surgeons in surgical services. The parties ulti-
mately agreed that Respondent would make such pay-
ments up to 20 percent of the appropriate schedule. There
is a dispute, however, whether the parties had reached a
"20 percent" agreement without restriction. The General
Counsel contends that the agreement was not qualified
whereas Respondent contends that the agreement for such
payments included the italicized conditions in the follow-
ing clause:
Effective when the surgical services are performed on
an in-patient of a hospital, benefits will also be
provided for the services of a doctor licensed to practice
medicine who actively assists the operating surgeon in
the performance of such surgical services when the type
and complexity of the surgical service and the condition of
the patient requires such assistance and when the hospital
does not have an approved intern or resident training
program or a house officer or does not have surgical
assistance routinely available as a service provided by a
hospital intern, resident or house officer. Payment will be
made for the fee charged by the assistant surgeon up to
20%9 of the maximum amount shown for that operation
in the appropriate schedule.
Respondent refused to execute an agreement without the
indicated conditions and the General Counsel contends
that Respondent thereby violated Section 8(aX5) of the
Act.
Respondent and union negotiators met on or about
January 5, by which time the Union had submitted its
demand for full payment of assistant surgeon fees. Leon
Tevis was chairman of the Pipefitters negotiating commit-
tee and also was overall union chairman in the benefit
negotiations; Jack Cutler, a Machinists representative, was
union cochairman; George Palmer was a member of the
Machinists negotiating committee; and Hugh Davis is a
Machinists International representative. Robert Straface,
Sr., manager of industrial relations at the Port Neches
plant, was Respondent's chief spokesman in negotiations.
I I shall refer to the unions collectively as the Union.
232 NLRB No. 64
399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William Riley is an industrial relations supervisor under
Straface and William J. Englehart is Respondent's corpo-
rate director of employee benefits with responsibility for
administration of all employee benefits for the entire
corporation, including pensions and medical and hospitali-
zation benefits.
All parties agree, and General Counsel Witnesses Tevis
and Davis testified, that Respondent made an oral
counterproposal of 20-percent payment for assistant
surgeon fees at the January 5 meeting. While they testified
that the matter was not otherwise discussed at the meeting,
Tevis also testified that he did not recall whether or not it
was. Disagreeing in part with Tevis' and Davis' testimony,
General Counsel Witness Cutler first testified that the
union proposal was not even mentioned at the meeting and
then he testified it possibly could have been mentioned;
General Counsel Witness Palmer testified that he could not
recall the subject coming up.2 Respondent Witnesses
Straface, Englehart, and Riley truthfully testified that the
assistant surgeon matter was discussed at the January 5
meeting and that Englehart3 informed the union represen-
tatives that the normal allowance for assistant surgeons
was 20 percent of the attending surgeon's fees. Englehart
also advised the union committee on this occasion that it is
standard practice in all B. F. Goodrich contracts to provide
that such payment be conditioned on the degree and
complexity of the surgery and on the unavailability of
residents and interns at the hospital involved.
Further meetings occurred on or about January 20 and
the parties purportedly reached agreement on all bargain-
ing items. The assistant surgeon matter was not individual-
ly discussed at this time. On January 22, Machinists
Committeman G. K. Tilley asked Straface for a list of the
topical changes agreed upon by the parties to take back to
his union membership for ratification purposes. In prepar-
ing the list, Straface included an item under "Hospitaliza-
tion" which read, "Provide payment to assistant surgeon at
20% of surgeon's Schedule." On January 22, five of the six
unions ratified the amendments, and the sixth union did so
on January 27. The mentioned January 22 list was not in
"contract language form" and Tevis testified that the
parties historically work out their contract language before
signing but after ratification by the Union.
On or about January 28, Respondent gave the Union a
copy of a new contract, some 60 pages in length, for
execution. This contract was a compilation of all provisions
which the parties had agreed to renew, as well as
amendments and other changes. This was the first time in
negotiations that any contract changes, including the
assistant surgeon matter, were set out in "contract"
language. The document contained the assistant surgeon
language in dispute here, but it does not appear that the
union representatives read this document at that time.
Tevis informed Straface that the Union wanted to execute
only a memorandum of changes and, on February 2,
Respondent accordingly submitted a memorandum of
2 The parties stipulated that, if called as witnesses, other named
individuals would testify along the lines ofCutler's and Palmer's testimony.
:' Englehart's purpose in attending the meeting was to discuss the impact
of the Employment Retirement Income Security Act (ERISA).
agreement in the requested format. This memorandum also
contained the disputed qualifying language.
The Union did not execute the memorandum of
agreement at the parties' February 2 meeting. Asserting at
that meeting that Respondent had not made its assistant
surgeon counterproposal in the terms of the qualifying
language stated in the memorandum, Tevis told Straface
that the parties had agreed on a 20-percent clause without
qualifications. Tevis thereupon asked Straface whether the
latter was "reneging" on their agreement. According to
Tevis, Cutler, and Palmer, Straface purportedly responded,
"I guess I am." Straface, with corroboration by Riley,
denied having conceded such "reneging." All parties agree,
in effect, that Straface then told the union committee that
the language in dispute was the "contract" language for the
assistant surgeon item. Tevis told Straface that the
qualifying language had never been mentioned in negotia-
tions, whereupon Straface sought to refresh Tevis' recollec-
tion of Englehart's discussion of the matter at the January
5 meeting. Riley had taken minutes of that meeting and
Straface read these minutes to Tevis. Tevis thereupon said
he remembered.
Respondent refused to sign the memorandum of agree-
ment without the qualifying language and the February 2
meeting broke up. By letter the next day, the Union
advised Respondent that it would be willing to sign the
agreement as written, but with the understanding that the
Union would nonetheless file an unfair labor practice
charge respecting Respondent's purported reneging on an
agreement. The parties executed the memorandum of
agreement later that day (February 3).
Conclusions
Relying on the fact that the disputed restrictions were
not again mentioned by the parties after the January 5
meeting until they appeared in the comprehensive contract
of January 28 and the memorandum of agreement of
February 2, and upon the fact that the January 22 list of
changes agreed upon on January 20 did not contain the
restrictive language, the General Counsel contends that the
parties on January 20 had agreed on an assistant surgeon
clause without qualifications. 4 Respondent asserts that the
agreements reached on January 20 were only on "broad
terms" and that the qualifications were part of its 20-
percent counterproposal as a result of the January 5
discussion by Englehart and that any agreements reached
on January 20 were subject to drafting in contract language
after ratification by the Union.5
May it be fairly said that the record preponderantly
establishes that Respondent had agreed on a 20-percent
assistant surgeon clause without restriction? I think not,
and I see no need to explicate this matter further. What
does emerge in my opinion is a mutual misunderstanding
concerning inclusion of the qualifying language at issue
here, for which misunderstanding neither party is at fault.
Cf. Apache Powder Company, 223 NLRB 191, 195 (1976). I
accordingly conclude that Respondent did not violate the
4 Tevis admitted that the first qualification dealing with complexity of
the surgical service was necessanly implied in any event.
5 The record shows that even after union ratification Respondent agreed
to contract changes at the Union's instigation.
400
B. F. GOODRICH CHEMICAL CO.
Act by refusing to execute an unqualified 20-percent
clause, and I shall recommend that the complaint be
dismissed.
Upon the foregoing findings of fact, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and the recommended Order herein shall, as provided in Sec.
ORDER 6
It is ordered that the complaint be dismissed.
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.
401