Childers Products Co.

National Labor Relations Board - Board Decisions

Sep 26, 1985

276 N.L.R.B. 709 (N.L.R.B. 1985)

CHILDERS PRODUCTS CO
Childers Products Company and Teamsters Union
Local No. 115 a/w International Brotherhood of
Teamsters , Chauffeurs, Warehousemen. and
Helpers of America . Case 4-CA-13947
26 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 6 August 1984 Administrative Law Judge
Wallace H. Nations issued the attached decision.
The. Respondent filed exceptions and a supporting
brief. The General Counsel filed an answering
brief. I
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, 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, Childers
Products Company, Bristol, Pennsylvania, its offi-
cers, agents,, successors, and assigns, shall take the
action set forth in the Order.
' 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 F2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
Barbara C. Joseph, Esq., of Philadelphia, Pennsylvania,
for the General Counsel.
Louis A. Mtnella, 'Esq., of Philadelphia, Pennsylvania, for
the Respondent.
Norton H. Brainard, Esq., of Philadelphia, Pennsylvania,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge.
Based on a charge filed by Teamsters Union Local No.
115, a complaint issued on February 29, 1984, alleging
that about July 18, 1983,1 Childers Products Company
(Respondent) had failed and refused to bargain collec-
tively with the Union in violation of Section 8(a)(1) and
(5) and Section 8(d) of the Act by failing and refusing to
give effect to and abide by - the collective-bargaining
' All dates are in 1983 unless otherwise indicated
709
agreement reached by the parties about July 18. Re-
spondent filed its answer to' the- complaint on March 12,
1984, and ,in its answer Respondent presented an affirma-
tive defense to its refusal to give effect to the collective-
bargaining agreement by stating that an "express condi-
tion precedent," ratification had not been accomplished.
A hearing was held on May 10, 1984, in Philadelphia,
Pennsylvania. Subsequently, briefs were filed by the
General Counsel and Respondent.
1. BUSINESS OF RESPONDENT
Respondent Childers Products Company is a Califor-
nia corporation engaged in the manufacture and distribu-
tion of metal jacketing, mastick coatings, and adhesives.
with a plant located in Bristol, Pennsylvania During the
past year, Respondent, in the course and conduct of its
business operations, sold and shipped goods valued in
excess of $50,000 directly to points outside the Common-
wealth of Pennsylvania. Respondent is, and has been at
all times material to this decision, an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. I find that it will effectuate the policies of
the Act to assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
'Teamsters Union Local No. 115 is , and at all times ma-
terial to this decision has been, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On September 21, 1978, following a Board election in
Case 4-RC-12735, the Union was duly certified as the
exclusive collective-bargaining representative of Re-
spondent's employees. On June 19,, 1979, the Board
found that since October 13, 1978, Respondent had re-
fused to bargain collectively with the Union as the exclu-
sive bargaining representative of the employees in the
appropriate unit, and that, by such refusal, Respondent
violated Section 8(a)(1) and (5) of the Act. The Board's
Order was enforced by the Court -of Appeals for the
Sixth Circuit on March 13, 1981.
On February 20, 1983, Respondent, the Union, and the
General Counsel entered into a- settlement stipulation in
Case 4-CA-13071, subject to approval by the Board,
providing for the entry of a consent order by the Board
and a consent judgment by any appropriate United States
court of appeals. The Board issued its Order on March
25, which provided that Respondent cease and desist
withdrawing recognition from the Union and from refus-
ing to bargain collectively concerning the rates of pay,
wages, hours of work, and other terms and conditions of
employment with Teamsters Union Local No. 115 and in
any like or related manner interferring with, restraining,
or coercing employees in the exercise of their rights
guaranteed them in Section 7 of the Act. Further, Re-
spondent was required to bargain with the Union on re-
quest and, if an understanding was reached, to embody
such understanding in a signed agreement.
276 NLRB No. 74
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the spring of 1983, after execution of a formal set-
tlement agreement in Case 4-CA-13071, Respondent and
the Union began bargaining. On June 30, Respondent
and the Union reached agreement on terms and condi-
tions of employment for Respondent's employees. The
meeting took place at the union hall. Present for the
Union as negotiators were Robert Henninger and James
Oliver. A bargaining unit employee, Joseph Search, who'
had been on the negotiating committee for several years,
was also present. Search had attended 95 percent of all
negotiating sessions . After reaching agreement on all
terms , Henninger brought a standard memorandum of
agreement and wrote down all the terms agreed to by
the parties and placed the Union's stock line, "THIS
AGREEMENT SUBJECT TO RATIFICATION," at
the end of the agreement. There was no discussion of the
sentence and the parties had never discussed contract
ratification during any of the negotiating sessions prior to
June 30, 1983. Both Respondent and the Union signed
the memorandum of agreement on June 30.
At the hearing for this proceeding, Respondent, the
General Counsel, and the-Charging Party entered the
following stipulations:
1. On or about June 30, Respondent and the
Union reached full and complete agreement with
respect to terms conditions of employment of the
unit set forth in Paragraph 4(a) of the Complaint
and such agreement was embodied in a Memoran-
dum of Understanding signed by the parties on June
30, which incorporated by reference all other terms
and conditions of employment agreed to by the par-
ties , and the total agreement of the parties was re-
flected,in joint exhibit 2, the actual contract.
2. Since on or about July 18, continuing to the
present time ; Respondent has not given effect to the
agreement reached by the parties on June 30.
3. There was no discussion whatsoever of con-
tract ratification during negotiations between the
Union andRespondent prior to June 30.
After the ' agreement was signed , Robert - Henninger
and James Oliver told Joseph Search, the employees'
representative, to go back to Respondent's employ and
inform them of a meeting on July 5 at 7 p.m. to review
the, contract.
On July 5, Robert Henninger, James Oliver, John
Morris , secretary-treasurer and business manager for the
Union, Joseph Yeoman, president, and several other
union representatives were present at the union hall at 7
p.m. None of Respondent's employees came to the meet-
ing. The union representatives waited until 9:30 or 10
p.m.
At the next union executive board meeting, on July 14,
the agreement reached between Respondent and the
Union was presented to the entire executive board. The
fact that Respondent's employees did not show . up for
the July 5 meeting was made known to the executive
board. The contract was presented, a motion was made
to put it into effect , the motion was seconded and passed,
and the Union conte:.ds that the contract was thereby
ratified.
By letter dated July 18, the Union, by John Morris, in-
formed Respondent's counsel that the contract between
Respondent and the Union had been approved. The
letter instructed Respondent to put the contract into
effect as of July 1. In response to the Union's letter, -
counsel for Respondent, by letter dated July 21, stated
that Respondent -had reason to believe that the agree-
ment had not been submitted for a ratification vote of its
employees and asked , "[P]lease advise." • • -
There was some factual question as to why the em-
ployees did not show up at the meeting scheduled for
July 5, and I find the factual 'differences to be immaterial
to the decision of this proceeding. No 'vote of the em-
ployees was ever taken with respect to the. contract and
it is the Union's contention that no,vote was necessary
for ratification under its constitution and bylaws. As I
see it, the question before the Board is whether the
Union's action, as set out above, constitutes ratification
within the meaning of the proviso in the collective-bar-
gaining agreement and whether, in any event , Respond-
ent-Childers Products Company has standing to raise the
question.
B. Did the Action of the Executive Board on July 14
Constitute Ratification of the Involved Collective
Bargaining
The Union's standard procedure for 'contract ratifica-
tion is as follows: - -
A bargaining committee made up of bargaining
unit employees and union representatives negotiate
with the employer for an agreement. When, in the
committee 's estimation , the best agreement has been
reached, the bargaining unit members of the com-
mittee are instructed to go back to the other em-
ployees, inform them that an agreement has been
reached and that a meeting will take place at a cer-
tain place and time and when the contract will be
presented to them. A meeting is held, the Union
reads the contract to the bargaining unit employees
and they vote on it. If a majority of the employees
vote to ratify the contract it is approved and the
employer is instructed to putt the agreement into
effect. To authorize a strike, the employees must
vote the contract down by two-thirds of those _
'present and voting. If two-thirds of the employees
do not vote to strike, and a majority of the employ=
ees do not vote to accept the contract, the contract
is presented to the executive - board, which then
votes on whether or not to accept or reject- it. If, in
the executive board's opinion, the contract is the
employer's final offer, the executive board is obli-
gated to accept the offer. A strike vote may be
taken separately or may be accomplished in the
vote on whether or not to accept the contract. -
Article XII of the Union's constitution and bylaws
states that: -
Contracts may be accepted and ratified by a major-
tiy vote of the affected members present and voting
on such issues.
CHILDERS PRODUCTS CO
The Union, in a normal practice, has decided to submit
all contracts negotiated to the employees for their ap-
proval. In the past, the Union had never faced the situa-
tion such as the present case, where no employees
showed up for a meeting to vote on the negotiated con-
tract. However, when the Union has been faced with dis-
satisfaction on the part of the employees with the con-
tract, it has taken a strike vote to determine if the em-
ployees are willing to engage in an economic strike. If
they are not willing to strike and, in the Union's estima-
tion, the employer's offer is the final offer, the Union has
submitted a contract to the executive board for approval
In this regard, article XII of the Union's constitution and
bylaws provides. "The failure of the membership to au-
thorize a strike upon rejecting the employer's last offer
shall automatically authorize the local union's executive
board to accept such last offer, or such additional proce-
dures as can be negotiated." Further, the executive board
has the power to "make and change rules and regulations
not consistent with the constitution and by-laws for the
management and conduct of the affairs of the Union"
and "To do all other acts except those which may be
under the authority of another officer or body as set'
forth herein as the Union may deem necessary or proper
for the protection of property of the Union for the bene-
fit of the organization and its members."
In this proceeding, the Union followed its normal
practice of instructing the bargaining unit employees on
the negotiating committee to inform the other employees
of a meeting at which the negotiated contract would be
presented to them. The employees were informed but
chose not to attend the meeting. In this proceeding,
though the contract stated that it was "subject to ratifi-
cation," there was no requirement that employees of the
Employer ratify the contract. The condition precedent of
"ratification" means ratification as defined by the Union
in its internal procedures . There was no understanding
established by the parties during negotiations concerning
what the Union meant by ratification. I find, therefore,
that the method of ratification was within the Union's
exclusive control and domain and that the Union reason-
ably interpreted its constitution and bylaws concerning
ratification and acted in accordance with them. I also
find that the contract was ratified by the action of the
union executive committee
Respondent also urges that the Union's action subse-
quent to the executive board meeting would indicate that
the contract was not considered ratified by the Union. I
disagree. On July 18, the Union sent a letter to Respond-
ent's employees stating, inter alia , "a contract between
Childers Products Company and this Union has been en-
tered into as of July 1, 1983." Certainly this letter indi-
cates that the Union considered the contract between it
and Respondent to be final as of that date.
A meeting was held in the beginning of August out-
side the Employer's facility to give the employees copies
of the contract and to sign them up for dues checkoff
and membership in the Union. Only -three bargaining unit
employees attended. The Union then sent the employees
a letter dated August 29, in which a meeting was set for
September 6. The testimony of Union Representative
Henninger indicated that the purpose of this meeting was
711
to give the employees a copy of the contract and to get
them to sign dues-checkoff and membership cards. Only
one -employee , Steve Pappert , attended this meeting.
Pappert testified that he was asked to vote on the con-
tract at the September 6 meeting . Robert Henninger,
who was also present at the meeting , denied that Pappert
was asked , to vote on the contract . His testimony was
that Pappert was merely asked to sign dues checkoff and
membership cards. Based on the demeanor of the wit-
nesses as well as the surrounding circumstances , I credit
Henninger 's version of what transpired at. the meeting.
As noted earlier in this decision , the Union had sent a
letter dated July 18 to the representative of Respondent
advising Respondent that the contract had been ap-
proved . No purpose whatsoever had been served by one
or more of the employees voting almost 2 months there-
after.
Respondent also urges that the letter of July 18, noted
immediately above, did not serve as notice of ratification
since the letter stated that the contract had been "ap-
proved" rather than "ratified ." I find this argument to be
totally spurious and it is rejected.
C. Does Respondent Have Standing to Challenge the
Validity of the Union 's Internal Procedures for
Contract Ratification and Has It Violated the Act by
Refusing to Give Effect to the Contract Reached by
the Parties
A union does not automatically assume the obligation
of obtaining ratification of a contract negotiated on
behalf of employees. If it does, however, "it is for the
Union, not the employer to construe and apply its inter-
nal regulations relating to what would be sufficient to
amount to ratification " M & M Oldsmobile, 156 NLRB
903, 905 (1966). See also North Country Motors, 146
NLRB 671 (1964), and Martin J. Barry Co., 241 NLRB
1011 (1979). Although I found in the preceding section
of this decision that the Union has properly interpreted
and followed its internal procedures, and has thus ratified
the contract in question , I further find that Respondent
has no standing to question the procedure and that the
method of contract ratification was within the Union's
exclusive domain and control . Thus, by ignoring the
Union's July 18 instruction to put the contract into effect
and conditioning acceptance of the contract on employee
ratification , Respondent has violated Sections 8(a)(1) and
(5) and 8(d) of the Act.
IV. THE REMEDY
Having found that Respondent violated Section 8(a)(1)
and (5 ) of the Act, I shall recommend that it cease and
desist therefrom and take certain - affirmative action de-
signed to effectuate the policies of the Act.
As I have found that Respondent violated its obliga-
tion under the Act by refusing to execute the-agreement
reached on June 30, and ratified by the Union on July
14, I shall also recommend that Respondent be ordered,
on request, to sign such agreement , to comply retroac-
tively to its effective date with its terms , and to make
whole the employees for any losses which they may
have suffered by Respondent 's refusal to sign such an
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement in accordance with the formula set forth in F.
W. `Woolworth Co., 90 NLRB 289 (1950), and Isis Plumb-
ing Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. Childers Products Company is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Teamsters Union Local No 115, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America is a labor organization within
the meaning of Section 2(5) of the Act
3. All production and maintenance employees, includ-
ing shippers, receivers, and chemical mixers at Respond-
ent's plant located at 2061 Hartell Street, Bristol, Penn-
sylvania, excluding all office clericals, guards and super-
visors as defined in the Act, constitute a unit appropriate
for the purpose of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. At all times since September 21, 1978, the Union has
been, and now is, the exclusive representative of the em-
ployees in the unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing about July 18 to execute a collective-
bargaining agreement including all the terns to which it
had previously agreed during contract negotiations by a
Memorandum of Agreement signed on June 30, and by
thereafter continuing its refusal to give effect to the
agreement, Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1) and (5) and 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-
ed2
(a) On. request, sign a collective-bargaining agreement
containing the terms and conditions of employment
agreed to between Respondent and the Union on June
30, 1983, give retroactive effect to its -terms and condi-
tions, and make its employees whole for any losses they
may have suffered as a result of its refusal to sign such
an agreement in the manner set forth in this decision en-
titled "The Remedy."
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order. -
(c) Post at its Bristol, Pennsylvania place of business
copies of the attached notice marked "Appendix."3
Copies of the notice, on forms provided by the Regional
Director for Region 4, after being signed by Respond-
ent's authorized representative, shall be posted by 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 Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
a 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 " -
ORDER
The Respondent, Childers Products Company, Bristol,
Pennslyvania, it officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Refusing to sign a collective-bargaining agreement
incorporating terms and conditions of employment
agreed on between Respondent and Teamsters Union
Local-No. 115 on June 30, 1983, or otherwise refusing,
on request, to bargain collectively with the Union as the
exclusive representative of the employees in the appro-
priate unit described in paragraph 3 in the section of the
decision entitled "Conclusions of Law" with respect to
rates of pay, wages; hours of work, and other terms and
conditions of employment.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
2 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
APPENDIX
NOTICE To EMPLOYEES
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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, loin, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT refuse to bargain collectively with
Teamsters Union Local No. 115 a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America for the unit described below
with respect to rates of pay, wages,, hours of work, and
CHILDERS PRODUCTS CO.
other terms and conditions of employment. The bargain-
ing unit is:
All production and maintenance employees , includ-
ing shippers, receivers and chemical mixers at Re-
spondent's plant located at 2061 Hartell Street, Bris-
tol, Pennsylvania , excluding all office clericals,
guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
713
WE WILL , on request , sign a contract with Teamsters
Union Local No. 115 a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, containing the terms and conditions agreed to
between us on June 30, 1983.
WE WILL give retroactive effect to its terms and con-
ditions and make our employees whole for any losses for
which they may have suffered as a result of our refusal
to sign such a contract.
CHILDERS PRODUCTS COMPANY