Georgia Roofing & Sheet Metal Co.

National Labor Relations Board - Board Decisions

Mar 26, 1975

217 N.L.R.B. 115 (N.L.R.B. 1975)

GEORGIA ROOFING & SHEET METAL CO 115
Georgia Roofing & Sheet Metal Company and Sheet
Metal Workers International Association, Local
203, AFL-CIO. Case 10-CA-10715
Upon the entire record, and my observation of the.wit-
nesses and their demeanor, and after consideration of the
briefs filed by the parties, I make the following:
March 26, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On December 23, 1974, Administrative Law Judge
Bernard J . Seff issued the attached Decision in this
proceeding . Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three -member panel.
The Board has considered the record and the at-
tached 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 Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended 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
BERNARD J. SEFF, Administrative Law Judge: This case
came for hearing before me in Columbus, Georgia, on August
26, 1974. The Sheet Metal Workers International Associa-
tion, Local 203, AFL-CIO, hereinafter called the Union or
Local 203, filed its charge on May 9, 1974, and the complaint
issued on August 2, 1974, alleging that Respondent, Georgia
Roofing & Sheet Metal Company, hereinafter referred to as
Respondent or Company, violated Section 8(a)(5) and (1) of
the Act in that the parties reached agreement on the terms
of a collective-bargaining contract, but had refused, and does
now refuse, to sign the agreement.
Respondent in its answer denied the commission of any
unfair labor practices, but admitted allegations to the com-
plaint sufficient to support the assertion of jurisdiction based
on the current standards of the Board (both inflow of over
$50,000 and outflow of over $50,000) in the past 12 months.
The answer further admits that the Union is a labor organiza-
tion within the meaning of the Act.
FINDINGS OF FACT
I THE COMPANY AND ITS BUSINESS
Respondent is a Georgia corporation, with its principal
office and place of business located at Columbus, Georgia,
where it is engaged in commercial and industrial sheet metal
and roofing construction.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
Introduction
On June 7, 1973, in an election by secret ballot conducted
by the National Labor Relations Board, a majority of the
employees designated and selected the Union as their repre-
sentative for the purposes of collective bargaining in the fol-
lowing unit: -
All sheet metal employees, -including mechanics and
helpers, employed by Respondent at its Columbus,
Georgia, shop, excluding office clerical employees,
professional employees, guards and supervisors as de-
fined in the Act.
On June 15, 1973, the Regional Director certified - the
Union as the exclusive collective-bargaining representative of
all employees in the unit set forth supra.
Prior to a strike which occurred in 1970, both Smith Ray-
mond (the Company's chief competitor in the area) and Re-
spondent were under contract with the Union.
III THE ALLEGED UNFAIR LABOR PRACTICES
A series of meetings took place after the Union was certi-
fied by the NLRB. Several of these sessions involved the
Union, Respondent, and the Smith Raymond Company. The
Union proposed that these two contractors accept the then
existing contract which was due to expire on August 1, 1973,
and thereafter negotiations would begin toward the excution
of a new contract.
A meeting took place on August 1, 1973, among the union
representative, Mooneyhan, Respondent's president, Powers,
and Raymond. According to the Union's testimony, two
points were raised by Powers: (1) Powers looked at the con-
tract; Mooneyhan said there was really nothing to discuss
other than the fact that if Raymond would sign the agree-
ment, he (Powers) would do likewise and powers did not
question any of the terms of the contract; (2) the subsequent
time, Powers made a counterproposal on money matters
which represented a difference of 30 cents an hour on a 2-year
contract.
The record shows that at numerous subsequent meetings
the discussion concerned the question as to whether Ray-
mond would agree to sign the contract. The point was repeat-
217 NLRB No. 32
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
edly raised by Powers that he would not sign the agreement
unless his principal competitor , Raymond , also signed. Later
in August 1973, both Raymond and Powers agreed to sign if
two other companies , Holt Services and DuPriest, also
signed. Here again the General Counsel stated that no spe-
cific terms of the contract were questioned "other than the
wage scale."
The record clearly reflects that Respondent did not agree
to the Union's wage proposals . During Mooneyhan's tes-
timony on cross-examination he said:
A. On August 1, 1973 Mr. Powers offered to sign our
agreement , the only difference being the wage proposal.
Q. (By Respondent 's counsel) And it was, as you
stated on direct examination , his offer was essentially
fifty cents over two years and your demand was eighty-
seven and a half cents over two years?
A. Yes
Q. So he did not, as of August 1, in any event agree
to any contract?
A. That's correct. He agreed to everything except the
wages. The only objection was the wages.
Over a considerable period of time, and many perfunctory
meetings , Powers kept telling the Union that he would sign
the contract if Raymond would also sign. During this period
there was also some discussion about the pension plan. Pow-
ers said he would agree to pay in the amount required to each
man, but it would be their responsibility to turn such sums
over to the Union . Powers wanted his offer to be com-
municated to the men. He did not want to assume the book-
keeping chore of keeping pension records for the Union.
Mooneyhan agreed to present this to the members, and they
agreed to Powers proposals on this point.
Powers testified that he offered a 25 -cent-per-hour increase
in wages in each of 2 years . Subsequently he offered to pay
$6.55 plus 30 cents for another year. Powers explained that
he had a plateau which he could reach, $6.80, but that was
his limit . The union proposal called for an increase in Febru-
ary 1975 resulting in a total economic package of $7.05 per
hour . Respondent argues in its brief that the most the Em-
ployer agreed to pay was $6 . 80 an hour . In other words, no
meeting of the minds ever took place on the question of
wages.
Contentions of the Parties
The General Counsel takes the position that Respondent
reached full agreement with the Union to the substantive
terms of a contract . Respondent agreed to sign the contract
if his chief competitor also signed it. The General Counsel
points out correctly that if a party refuses to sign a con-
tract because of the existence of a non-mandatory
condition-insistence that a competitor also sign the
contract-such refusal is violative of Section 8(a)(5) of the
Act.
Respondent argues on two levels: (1) no agreement was
ever arrived at on the question of wages; (2) in any event the
charge was filed more than 6 months after the event on which
it is based, and therefore the cause of action is barred by the
operation of Section 10(b) of the Act.
While the record is somewhat confused, it is clear that
Respondent never reached agreement with the Union on
wages. According to the transcript , the Union's wage demand
was 30 cents higher than the Company's offer, and was
beyond the plateau it said it could afford to pay. As to Re-
spondent's second contention , it becomes unnecessary to deal
with this issue since I have decided the case on the merits.
Based on the evidence adduced at the hearing , I find that
the General Counsel has failed to establish by a preponder-
ance of the credibile evidence in the record that Respondent
violated Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The, Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The allegations of the complaint that Respondent has
engaged in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act has not been sustained by
substantial evidence.
[Recommended Order for dismissal omitted from
publication.]