Carpenters Local 1476 (Lake Charles AGC)

National Labor Relations Board - Board Decisions

Jun 27, 1984

270 N.L.R.B. 1432 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters & Joiners of
America, Millwrights Local Union No. 1476 of
Lake Charles, Louisiana and Lake Charles Dis-
trict, Associated General Contractors of Louisi-
ana, Inc. Case 15-CB-2667
27 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 28 September 1983 Administrative Law
Judge Howard I. Grossman issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting brief' and the Charging Party filed a brief
in response.
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, findings, 2 and
conclusions as modified and to adopt the recom-
mended Order as modified.
Although we agree with the judge that the Re-
spondent violated Section 8(b)(3) of the Act, we do
so only for the reasons set forth below.
The Respondent and the Charging Party partici-
pated in five bargaining sessions during the spring
and summer of 1982 in an attempt to negotiate a
new collective-bargaining agreement. Their most
recent contract had expired on 30 April 1982. The
judge found that at the fifth session on 1 July the
parties reached an agreement on the reporting time
and minimum pay provision of a new contract. The
judge also found that on 23 August the parties
reached agreement on an entire contract which,
when printed, erroneously omitted the weather
clause contained in the 1 July reporting time and
minimum pay proposal. 3 The judge concluded that
The Respondent has moved to dismiss the complaint on the ground
that the matter is now moot by virtue of subsequent negotiations between
the parties. The General Counsel has opposed the motion. The parties'
signing of a negotiated agreement does not render a Board order moot.
Accordingly, the motion is hereby denied.
I 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.
s Art. XlII of the proposed contract set forth the reporting time and
minimum pay provisions. Art. XIII of the parties' expired contract and
the art. XIII proposal the Charging Party previously offered during the
1982 negotiations (including the I July proposal) required as a general
rule that the Charging Party pay an employee who reports for work on a
scheduled workday a minimum of 4 hours' pay regardless of whether the
Charging Party has any work for him. It also contained a weather clause
which specifically limited the Charging Party's wage obligations when it
laid off an employee due to weather or to other causes beyond its con-
270 NLRB No. 215
the Respondent violated Section 8(b)(3) by refusing
to correct the printed contract to conform it to the
1 July reporting time proposal. We disagree.
Both parties were fully aware at the 1 July bar-
gaining session that their agreement on several
extant proposals would be submitted to the Re-
spondent's members for ratification. 4 Therefore
both parties knew that they had negotiated only a
tentative contract agreement which would mature
into a final binding contract only upon ratification
by the Respondent's members. The Respondent's
members voted against ratification shortly after 1
July.
Furthermore, it seems implausible that the
Charging Party considered the I July agreement to
be a final contract when it chose to meet with the
Respondent again on 23 August for further negoti-
ations. If the parties had recognized the 1 July
agreement as a final contract the later negotiation
session on 23 August would have served no pur-
pose.
The agreement reached on I July obligated the
Respondent only to conduct a ratification vote on
the proposed contract and to then abide by the
proposed contract should it be ratified. Ratification
failed so none of the 1 July proposals was binding
on the Respondent. Accordingly we cannot agree
that the Respondent violated Section 8(b)(3) of the
Act by refusing to revise the 23 August contract to
conform it to the 1 July reporting time and mini-
mum pay proposals.
As noted, the parties engaged in further contract
negotiations on 23 August. At the start of this ses-
sion the Charging Party's negotiating committee
chairman provided the Respondent's negotiators a
full contract proposal. This proposed contract con-
tained those provisions on which both parties had
already reached tentative agreement on I July and
a few previously undiscussed items.
The Charging Party unknowingly deleted the
weather clause limitation from the article XIII
draft it submitted to the Respondent on 23 August.
As drafted, article XIII guaranteed a laid-off em-
ployee a minimum of 4 hours' pay regardless of the
layoff's cause. When the parties reached article
XIII during discussion of the proposed contract on
23 August no one mentioned the omission. The
trol. In such circumstances the Charging Party was required to pay only
for time already worked that day, but not less than 2 hours' pay.
I The Charging Party's negotiating committee chairman conceded that
he was informed at the I July session by the Respondent's business agent
(who was a member of the Respondent's negotiating committee) that
their agreement would be submitted to the Respondent's members for
ratification. This submission of the contract agreement to member ratifi-
cation appears to be the Respondent's standard procedure. We note that a
later agreement reached by the parties on 23 August 1982 was also sub-
mitted to a ratification vote by the Respondent's members.
1432
CARPENTERS LOCAL 1476 (LAKE CHARLES AGC)
only comment on article XIII the Respondent of-
fered was that which it made regarding those arti-
cles on which they had already reached agreement,
which was "No questions."
Later during the same negotiation session the
parties reached an agreement on the entire contract
and signed the contract's last page. The Respond-
ent's members ratified the contract shortly after-
wards. Sometime thereafter the Respondent's busi-
ness agent Winn telephoned the Charging Party's
district manager Sibley and asked him how he in-
terpreted the minimum pay provision of article
XIII as set forth in the new contract. Both had
participated in the negotiations. When they dis-
agreed on the interpretation, Sibley read article
XIII and for the first time realized the weather
clause had been omitted. Sibley then told Winn
that the omission was a mistake and that the weath-
er clause should be in the contract. Winn respond-
ed that he "had a signed contract." The Respond-
ent refused the Charging Party's later request made
on or about 15 November 1982 to bargain concern-
ing the reporting time and minimum pay provisions
of article XIII.
The Board has reserved the remedy of rescission
for unilateral mistake to those instances where the
mistake is so obvious as to put the other party on
notice of an error.5 We find that this case presents
such an instance.
The deletion of the weather clause from article
XIII not only represented a change from the par-
ties' preceding contract, but also from all article
XIII proposals the Charging Party had offered
during the 1982 negotiations. Furthermore, the arti-
cle XIII draft offered the Respondent a significant
and costly new benefit. It is implausible that when
the parties reached article XIII during negotiations
on 23 August and the Charging Party's negotiators
said nothing regarding the apparent offer of this
new benefit that the Respondent did not realize
that the Charging Party was unaware of the omis-
sion. We find the Respondent knew or should have
known of the Charging Party's mistake.
Accordingly, we conclude that the parties did
not reach agreement on the article XIII proposed
on 23 August, and that the Respondent's refusal of
the Charging Party's request to bargain concerning
the reporting time and minimum pay provisions
violated Section 8(b)(3) of the Act.
AMENDED CONCLUSIONS OF LAW
1. Delete Conclusions of Law 5, 6, 7, 8, and 9.
* Globe-Union, 245 NLRB 145 (1979); Apache Powder Co., 223 NLRB
191 (1976). See also 17 Am.ur.2d, § 1146 at 493-494; 13 Williston, Con-
tracts § 1573 at 490 (1970).
2. Insert the following as Conclusions of Law 5,
6, and 7 and renumber the remaining Conclusion of
Law.
"(5) The Charging Party agreed to the reporting
time and minimum pay provisions of the article
XIII draft proposed on 23 August 1982 based on a
unilateral mistake of which the Respondent was or
should have been aware.
"6. Since on or about 15 November 1982, and
thereafter, the Respondent has failed and refused to
bargain with the Associated General Contractors
of Louisiana concerning reporting time and mini-
mum pay provisions.
"7. By its refusal to bargain with the Associated
General Contractors of Louisiana the Respondent
has violated Section 8(b)(3)."
AMENDED REMEDY
Having found that the Respondent violated Sec-
tion 8(b)(3) of the Act, we shall order the Re-
spondent to cease and desist therefrom, and to take
certain affirmative action designed to effectuate the
policies of the Act. We shall order that the Re-
spondent, on request, bargain with the Associated
General Contractors of Louisiana concerning re-
porting time and minimum pay provisions. Addi-
tionally, we shall order the Respondent to reim-
burse Associated General Contractors of Louisiana
members for any payments they made under pro-
test that they would not have incurred under arti-
cle XIII of the parties' collective-bargaining agree-
ment which expired on 30 April 1982.6 Interest
shall be computed and paid on any such reimburse-
ment in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977), and Isis Plumbing
Co., 138 NLRB 716 (1962).
ORDER
The National Labor Relations Board orders that
the Respondent, United Brotherhood of Carpenters
& Joiners of America, Millwrights Local Union
No. 1476 of Lake Charles, Louisiana, its officers,
agents, and representatives, shall
I. Cease and desist from
(a) Refusing to bargain with Lake Charles Dis-
trict, Associated General Contractors of Louisiana,
Inc., and its employer members concerning report-
ing time and minimum pay provisions.
(b) Engaging in any like or related conduct in
derogation of its statutory duty to bargain.
6 Plumbers Local 420 (Paragon Mechanical), 254 NLRB 445 (1981);
Graphic Arts Local 280 (James H. Barry Co.), 235 NLRB 1084 (1978),
enfd. 596 F.2d 904 (9th Cir. 1979); Longshoremen ILWU Local 17 (Los
Angeles By-Products), 182 NLRB 781 (1970), enfd. 451 F 2d 1240 (9th Cir
1971)
1433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request meet and bargain with Lake
Charles District, Associated General Contractors
of Louisiana, Inc., and its employer members, con-
cerning reporting time and minimum pay provi-
sions.
(b) Reimburse Lake Charles District, Associated
General Contractors of Louisiana, Inc. and its em-
ployer members for any payments made under pro-
test which would not have been incurred under ar-
ticle XIII of the collective-bargaining agreement
which expired on 30 April 1982.
(c) Post at its offices and meeting halls copies of
the attached notice marked "Appendix." 7 Copies
of the notice, on forms provided by the Regional
Director for Region 15, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to members are customarily posted. Reasona-
ble steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Promptly mail to the Regional Director for
Region 15 signed copies of the notice for posting
by Lake Charles District, Associated General Con-
tractors of Louisiana, Inc., and its employer mem-
bers, if willing, at places where notices to its em-
ployees are customarily posted.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Lake
Charles District, Associated General Contractors
of Louisiana, Inc. and its employer members con-
cerning reporting time and minimum pay provi-
sions.
WE WILL NOT engage in any like or related con-
duct in derogation of our statutory duty to bargain.
WE WILL on request meet and bargain with Lake
Charles District, Associated General Contractors
of Louisiana, Inc., and its employer members, con-
cerning the reporting time and minimum pay provi-
sions.
WE WILL reimburse, with interest, Lake Charles
District, Associated General Contractors of Louisi-
ana, Inc., and its employer members, for any pay-
ments made under protest which would not have
been incurred under article XIII of the collective-
bargaining agreement which expired on 30 April
1982.
UNITED BROTHERHOOD OF CARPEN-
TERS & JOINERS OF AMERICA, MILL-
WRIGHTS LOCAL UNION No. 1476 OF
LAKE CHARLES, LOUISIANA
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. A
charge was filed in Case 15-CB-2651 on November 17,
1982,' by Lake Charles District, Associated General
Contractors of Louisiana, Inc. (AGC or the Charging
Party), alleging that United Brotherhood of Carpenters
& Joiners of America, Millwrights Local Union No. 1476
of Lake Charles, Louisiana, Inc. (Respondent or Mill-
wrights) refused to include in a collective-bargaining
agreement all contract provisions which had been agreed
on during negotiations, in violation of Section 8(b)(3) of
the National Labor Relations Act (the Act). This charge
was dismissed on November 1 by the Regional Director
for Region 15 on the ground that there was insufficient
evidence to establish a "meeting of the minds" on the
disputed contract provision, pertaining to reporting time.
The current charge was filed by AGC on November
17, alleging that the Millwrights had refused to bargain
over terms and conditions of employment, in violation of
Section 8(b)(3). A complaint issued on December 13, al-
leging that the Millwrights had refused to bargain with
AGC concerning the reporting time and minimum pay
provisions of a proposed collective-bargaining agree-
ment, in violation of Section 8(b)(3). A hearing was con-
ducted before me on these matters in Lake Charles, Lou-
isiana, on February 22, 1983. On the entire record, in-
cluding briefs filed by Respondent and the Charging
Party, and a statement of position by the General Coun-
sel, and on my observation of the demeanor of the wit-
nesses, I make the following
I All dates are in 1982 unless otherwise specified.
1434
CARPENTERS LOCAL 1476 (LAKE CHARLES AGC)
FINDINGS OF FACT
I. JURISDICTION
The pleadings as amended at the hearing establish that
AGC is a multiemployer association composed of vari-
ous employers engaged in the construction and mainte-
nance industry, existing in part for the purpose of repre-
senting its members in collective bargaining with Re-
spondent. The amended pleadings further establish that
three of AGC's members have their offices and places of
business in Lake Charles, Louisiana, and individually
purchased and received at such places, within the 12-
month period preceding issuance of the complaint, goods
and materials valued in excess ot $50,000 directly from
points located outside the State of Louisiana. The
amended pleadings further establish, and I find, that
AGC's employer members are employers engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings establish and I find that Respondent is a
labor organization within the meaning of Section 2(5) of
the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICE
A. Summary of the Evidence
1. The bargaining history and the reporting time
provision
The parties had previously entered into collective-bar-
gaining agreements, beginning in the 1950s. The last con-
tract expired on April 30, 1982. That agreement provid-
ed that an employee reporting for work, for whom no
work was available, would receive 2 hours' pay unless he
had previously been notified not to report. If work was
performed, the employee received not less than 4 hours'
pay, and, if more than 4 hours of work were performed,
a full day's pay. In the event that weather conditions
prevented any work, the employee would receive 2
hours' pay provided he remained at the jobsite for 2
hours. If work was interrupted by inclement weather,
the employee was paid for time actually worked but not
less than 2 hours.2
There were five bargaining sessions concerning a new
agreement, two in April before the old contract expired
and three thereafter, the last on August 23. The principal
representative for AGC was Joe T. Miller, for 30 years
chairman of its labor negotiation committee. He was as-
sisted by Samuel J. Sibley, AGC's district manager. The
Millwrights was represented by members of a negotiating
committee, including Dallard G. Ledoux, union presi-
dent, and Elvin O. Winn, business agent and financial
secretary.
The witnesses disagreed as to the bargaining history
and procedure. According to AGC District Manager
Sibley, each session began with a recapitulation of items
which had been agreed on. These were not discussed in
2 Jt. Exh. 7, art. Xl.
the following sessions, which dealt only with items on
which there had been no agreement. Miller said that
AGC started with a proposed master agreement, as to
which it was seeking agreement from the other trades.
As changes were negotiated in the master agreement,
AGC gave the union representatives "separate sheets of
refinements" as to the items agreed on. Previously
agreed-upon items were not discussed in subsequent ses-
sions. These were then incorporated into a final docu-
ment on August 23, plus some new items which had not
been discussed until that date.
Union President Ledoux, however, denied that there
was any agreement on any provisions prior to the last
meeting on August 23. The entire contract was read over
by the parties on that date, and it was only then that
agreement was reached on each provision. For the most
part, this was achieved by Miller's asking questions such
as "Any questions on this article?" or "No questions?"
Miller testified that agreement was reached between
the parties on a reporting time provision at a bargaining
session on July 1. AGC presented a proposal for report-
ing time pay which was similar to that in the expired
contract. Like the prior contract, the proposal placed re-
strictions on this right in the event of inclement weather
and other events beyond the employer's control. The in-
clement weather proposal was contained in the third and
last paragraph of the proposal. s According to Miller, he
told the union representatives on July I that this propos-
al had been accepted by four other trades. 4 Winn said
that he would "sell" the proposal to the membership.
District Manager Sibley testified on cross-examination by
Respondent that the "document itself was handed across
the table to the Union and this is what we agreed to,
verbatim." Asked the position of the union representa-
tives, Sibley replied that he said, "We are in agreement."
Business Agent Winn recalled that AGC presented a
reporting time proposal, but could not remember the
date. Winn averred that he replied that the Millwrights
would accept if the other trades did so, but added that
this condition referred to more than just the reporting
s The proposal reads as follows:
ARTICLE 13. REPORTING TIME AND MINIMUM PAY
(a) Should an employee be required by the Employer to report for
work and not be given work, he shall receive two (2) hours straight
time pay, unless notified on the previous day not to report. Employ-
ee must remain on the job two (2) hours to collect this pay.
(b) An employee starting to work Monday through Friday inclu-
sive shall receive not less than four (4) hours pay, and if such em-
ployee is required to continue on the second period of the shift, he
shall receive not less than eight (8) hours pay.
The provisions of paragraph (b) shall not be applicable where the
employee is laid off by reason of bad weather, breakdown of mo-
chinery or any other cause beyond the direct control of the Employ-
er, in which event payment will be made for actual time worked, but
not less than two (2) hours. An employee receiving pay for four (4)
hours or eight (8) hours under this provision may be required to
remain on the job and perform work under his jurisdiction, until he
has been on the job the number of hours paid. (Jt. Exh. 5.]
The Brick Masons, the Cement Masons, the Ironworkers, and the
Carpenters. Two of the contracts, those with the Teamsters and the Op-
erators (Plasterers), did not include weather clauses. The basic reason, ac-
cording to Miller, was the fact that their prior contracts did not have
such clauses.
1435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time proposal. Miller, however, denied that there was
any condition attached to Winn's agreement. Ledoux
was shown the AGC proposal and said that it was
"vaguely familiar." He denied that the Millwrights ac-
cepted it, and asserted that he did not see the language
of the reporting time proposal until the last session on
August 23.
The reporting time proposal was not discussed by the
parties in any of the bargaining sessions after July 1.
2. The final bargaining session
During the final session on August 23, Miller present-
ed to the Millwrights what purported to be a contract
containing provisions already agreed upon plus some ad-
ditional proposals. There was a variance between the re-
porting time provision in this document and the provi-
sion which, according to AGC, had been agreed upon
during the July I session.5 The AGC representatives tes-
tified that they were unaware of this variance at the
time.
According to Miller, the Millwrights representatives
caucused and compared the proposed agreement with
the Ironworkers agreement, which AGC had executed
with that union on July 16. The reporting time provision
of the Ironworkers agreement was identical with the
proposal which, AGC asserts, the Millwrights had ac-
cepted on July 1.6 Miller said that he was surprised to
learn that the Millwrights had a copy of the Ironwork-
ers' agreement, since the latter had just been printed.
After the caucus, the Millwrights representatives showed
Miller a list of the variations between the Ironworkers'
contract and their proposed agreement, and requested
discussion. However, this list of variations did not con-
tain a reference to the reporting time provision.
The parties signed the final page of the document
without reading it carefully. Later, the Millwrights' ne-
gotiating committee studied the final document, but only
to see whether there was an omission injurious to the
Millwrights, according to Winn. The business agent said
that he thought AGC would similarly protect them-
selves. The document was presented to the union mem-
bership, which accepted it.
3. Winn's conversations with Sibley
A short time later, business agent Winn called AGC
District Manager Sibley, and asked for a copy of the
contract. Sibley replied that it was at the printer. Winn
then called the printer, obtained one copy, and made 300
copies of this document. He then called Sibley a second
I Pars. (a) and (b) of art. 13, as set forth in the written contract, are
identical with those in the July I proposal, except that the word "em-
ployee" in the last sentence of par. (a) becomes "employees," and the
paragraph designations are capitalized. Supra, fn. 3. The last paragraph,
however, is different. The first sentence of the third paragraph in the
July I proposal is omitted, and the paragraph reads: "An employee re-
ceiving pay for four (4) hours or eight (8) hours under this provision may
be required to remain on the job and perform work under his jurisdic-
tion, until he has been on the job the number of hours paid." (Jt. Exh. 11,
art. 13.)
Jt. Exh. 6, art. 13. Supra, fn. 3.
time, about August 31.' According to lie district manag-
er, Winn asked him how he interpreted the reporting
time provision, and Sibley repeated the question to
Winn. The business agent then gave his interpretation,
which Sibley said was incorrect because there was no
weather provision. Winn denied that there was a weather
clause in the contract. Sibley then read article 13 for the
first time, and discovered that Winn was right. Accord-
ing to the district manager, he then told Winn that the
parties had intended to include the weather clause, and
that it should be in the agreement. Sibley averred that
Winn did not deny this, but merely replied that the Mill-
wrights had "a signed contract," and that any further
discussion would have to be with the union attorney.
After this conversation, Sibley called the printer and dis-
covered that the Millwrights did have a signed copy of
the contract.
In his pretrial affidavit, Winn denied that there was
any discussion of reporting time after the bargaining ses-
sions (G.C. Exh. 3). However, on cross-examination he
corroborated Sibley's version of this conversation. Winn
testified that the district manager told him, "Don't you
know that's not what was negotiated?" Winn replied, ac-
cording to his own testimony, "It's written in the con-
tract and I have a contract. That's it." When Sibley
denied that Winn had a signed copy, the business agent
replied that he had 300 copies.
4. Miller's meeting with Winn
Sibley informed Miller of these events, and the latter
called Winn on September 3 and requested a meeting.
The business agent came to Miller's office, and was told
that the subject of discussion was "the mistake in the Re-
porting Time." "I was afraid of that," Winn replied ac-
cording to Miller.
Miller then pointed out that the clause in the written
contract was not the one which had been agreed on
"across the bargaining table." He observed that similar
mistakes had occurred in the past, and had been correct-
ed. Winn initially said there was nothing he could do
about it. The contract had been presented to the mem-
bership, Winn had consulted his attorney, and he had a
"valid written contract." Winn then suggested that he
might be able to do something if AGC would grant the
employees a tool allowance. Miller rejected this propos-
al, and the conversation ended. The AGC representative
called Winn on September 9, and was told that the Mill-
wrights could not change the contract.
Winn did not deny any of the details in Miller's testi-
mony. In fact, he admitted that he had the conversation
and told Miller that he would take article 13 back to the
membership for possible correction if AGC would "offer
something," such as a tool allowance. Winn justified this
on the ground that the Union had attempted to obtain a
tool allowance in the negotiations.
7 Winn's testimony shows that there were two conversations about the
contract with Sibley, the first one in which he asked for a copy, and the
second one in which he discussed art. 13.
1436
CARPENTERS LOCAL 1476 (LAKE CHARLES AGC)
5. Subsequent communications
On September 15, Sibley wrote Winn asking for cor-
rection of the "inadvertent error." The letter noted that
AGC would pay wages under the allegedly erroneous
clause only "under protest" (Jt. Exh. 4). The union coun-
sel answered the next day, stating that the agreement
was "clearly stated in writing" (Jt. Exh. 10). On Novem-
ber 8, after the Regional Director for Region 15 had dis-
missed the charge in Case 15-CB-2651, Sibley wrote
Winn asking for bargaining on reporting time and mini-
mum pay (Jt. Exh. 3). As indicated, this was followed on
November 17 by the filing of the current charge.
B. Factual Analysis
I credit the testimony of Miller and Sibley as to the
bargaining procedure, i.e., that the parties reached agree-
ment on certain provisions, and then passed on to new
issues without further discussion of the agreed-upon
items. Ledoux's testimony denying this is contrary to
normal bargaining procedure and is implausible. His as-
sertion that he did not see the reporting time provision
until the last bargaining session is incredible.
Miller's and Sibley's testimony as to the agreement on
July I was detailed and believable. "We are in agree-
ment," the union representative said according to Sibley.
Winn's memory of the July 1 session was less precise
than those of the AGC witnesses-he could not remem-
ber the date-and his version is equivocal. Thus, al-
though he suggested that his agreement to the reporting
clause was conditioned on its acceptance by the other
trades, he expanded the condition to additional contract
matters. Winn and Ledoux were less believable witnesses
than Miller and Sibley, and I credit the AGC's version
of the July I bargaining session.
An inference that the parties reached agreement on
July 1 concerning a reporting clause with a weather pro-
vision is buttressed by the fact that reporting time was
not discussed after the July I bargaining session. As
noted, only unresolved matters were brought up at each
succeeding session, and the parties' failure to discuss re-
porting time suggests that the matter had already been
resolved. Such inference is further supported by the fact
that in Winn's subsequent conversations with Miller and
Sibley he failed to deny their assertions that there had
been agreement on a weather clause, and that the printed
contract erroneously failed to include it. Winn's final po-
sition simply was that he had a signed contract, but that
he might be able to change it if AGC would grant some-
thing the Millwrights had been unable to get in negotia-
tion (a tool allowance).
For these reasons I find that the parties reached agree-
ment on July 1 with respect to a reporting time provi-
sion with a weather clause, and that that agreement is set
forth in Joint Exhibit 5, supra at footnote 3. I also con-
clude that Winn was well aware of the mistake in the
printed contract. This is evidenced by his telephone call
to Sibley for the purpose of discussing only the reporting
time clause, and by his failure to deny that there was a
mistake in the printed contract.
C. Legal Analysis
Section 8(d) of the Act defines collective bargaining in
part as "the execution of a written contract incorporating
any agreement reached if requested by either party," and
it is settled law that an employer commits an unlawful
refusal to bargain violative of Section 8(aX5) by refusing
to do so. Georgia Kraft Co., 258 NLRB 908 (1981), enfd.
696 F.2d 931 (11th Cir. 1983). This is true despite the
contention that there was mutual mistake [Cutter Labora-
tories, 265 NLRB 577 (1982)], or that there was no meet-
ing of the minds [Granite State Distributors, 266 NLRB
457 (1983)]. The same principles have been applied to
unions, where refusal to sign a side letter on which the
parties had agreed was found to be violative of Section
8(b)(3). Hospital Employees (Episcopal Hospital), 241
NLRB 270 (1979).
I see no meaningful distinction between refusal to exe-
cute a contract which had been agreed on and refusal to
correct an erroneous contract so as to conform it to the
real agreement of the parties. In both cases there is a fail-
ure to comply with the mandate of Section 8(d) of the
Act. I also note that AGC did not voluntarily comply
with the erroneous reporting time provision. Rather, it
made payments thereunder only "under protest."
I am aware that the complaint does not allege failure
to execute an agreement, and that the charge in Case 15-
CB-2651 making a similar allegation was dismissed by
the Regional Director. However, the General Counsel
submitted a statement in which she advanced "no objec-
tion to the issuance of a broader remedy" if the evidence
established a meeting of the minds on July 1 concerning
the reporting time provision. Moreover, Respondent's
counsel stated on the record that he would not claim sur-
prise were I to find that there had been such an agree-
ment between the parties. As Respondent's counsel put
it, this had clearly been the position of AGC's counsel.
Taking into consideration these statements of the parties,
and the fact that the issue was fully litigated, I find that
Respondent Union, by its refusal to comply with the
Charging Party's request to correct the printed contract
so as to conform the reporting time provisions to the
true agreement of the parties, and by maintenance of the
agreement in its erroneous form, thereby engaged in a re-
fusal to bargain violative of Section 8(bX3) of the Act.
In accordance with my findings above and the entire
record, I make the following
CONCLUSIONS OF LAW
1. Lake Charles District, Associated General Contrac-
tors of Louisiana, Inc. is a multiemployer association
composed of employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. United Brotherhood of Carpenters & Joiners of
America, Millwrights Local Union No. 1476 of Lake
Charles, Louisiana, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All journeyman and apprentice millwrights em-
ployed by employer-members of the AGC in Lake
Charles, Louisiana, and other locations in southwest
Louisiana over which Respondent has jurisdiction consti-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. At all times material herein, Respondent has been
the authorized collective-bargaining representative of a
majority of the employees employed by employer-mem-
bers of the AGC in Lake Charles, Louisiana, and other
locations in southwest Louisiana in the appropriate unit
described above, and, by virtue of Section 9(a) of the
Act, is the exclusive representative of all employees in
said unit for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
5. About July 1, 1982, the parties reached agreement
on a reporting time and minimum pay provision of a new
contract, which contained a weather clause.
6. About August 23, 1982, the parties reached agree-
ment on the entire contract, and caused such agreement
to be printed with a reporting time provision which erro-
neously omitted the weather clause which had been
agreed on.
7. About August 31, 1982, and thereafter, AGC re-
quested, and Respondent refused, to correct the printed
contract so as to conform it to the actual agreement of
the parties.
8. AGC thereafter adhered to the erroneous reporting
time provision of the contract only under protest.
9. By its refusal to comply with AGC's request to cor-
rect the printed contract, and by its maintenance of said
agreement in erroneous form, Respondent thereby en-
gaged in a refusal to bargain violative of Section 8(b)(3)
of the Act.
10. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action in order to effectuate the purposes of the Act.
Thus, I shall recommend that Respondent, on request by
AGC, be ordered to correct the current contract be-
tween the parties so as to conform the reporting time
provision to the language set foth in footnote 3 of this
decision.
The record does not disclose to what extent, if any,
AGC members actually made wage payments under the
erroneous reporting time provision. In cases where em-
ployers have made unjustified expenditures after similar
violations of Section 8(b)(3), the Board with judicial ap-
proval has considered a make-whole remedy to appropri-
ate. "If a party who unlawfully refuses to bargain is per-
mitted to retain the fruits of unlawful action, the Act is
rendered meaningless, and defiance of the Board's orders
is encouraged." 8 Accordingly, I shall recommend that
Respondent be ordered to reimburse AGC members for
any payments they may have made which would not
have been made had the agreed-upon weather clause
been a part of the reporting time provision. Interest shall
be computed and paid on any such reimbursement in the
manner prescribed in Florida Steel Corp., 231 NLRB 651
(1977), and Isis Plumbing Co., 138 NLRB 716 (1962). 9
I shall also recommend that Respondent be ordered to
post appropriate notices.
[Recommended Order omitted from publication.]
I Plumbers Local 420 (Paragon Mechanical), 254 NLRB 445 (1981);
Graphic Arts Local 280 v. NLRB, 596 F.2d 904 (9th Cir. 1979), enfg. 235
NLRB 1084 (1978). See also Teamsters Local 334 (Halle Brms Cao.), 253
NLRB 1090, 1092 (1981), revd. on other grounds 670 F.2d 855 (9th Cir.
1982).
Q Teamsters Local 334 (Halle Broa Ca), ibid., fn. 2.
-U.S, GOVERNMENT PRINTING OFFICE. 1985-461-629:20000
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