Lasley Acoustics Co.

National Labor Relations Board - Board Decisions

Sep 19, 1977

232 N.L.R.B. 81 (N.L.R.B. 1977)

LASLEY ACOUSTICS CO.
Lasley Acoustics Co. and United Brotherhood of
Carpenters & Joiners of America, Local 690. Case
26-CA-6256
September 19, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On June 10, 1977, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a reply thereto.
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 brief
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.
IThe General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry /Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: This
proceeding involves the refusal of the above-named
Respondent to sign a collective-bargaining agreement the
terms of which were allegedly orally agreed upon. The
proceeding was initiated by a charge filed by the above-
named Union on July 29, 1976,1 pursuant to which
complaint issued on January 11, 1977, alleging that
Respondent had violated Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended. On March 10,
1977, hearing was held in Little Rock, Arkansas.
Upon the entire record, including my observation of the
witnesses, and after consideration of the briefs filed by the
parties, I hereby make the following:
I Unless otherwise indicated, all dates are in 1976.
2 Jurisdiction is not in issue. Respondent admits it meets the Board's
direct inflow standard for the assertion of jurisdiction
232 NLRB No. 19
FINDINGS OF FACT
I. THE FACTS
Respondent is an acoustical contractor in Little Rock,
Arkansas. 2 For a number of years, it has been party to a
collective-bargaining agreement with the Union. Histori-
cally, the agreement signed by Respondent was the same as
that negotiated between the Union and the Arkansas
Chapter of the Associated General Contractors (hereinaf-
ter referred to as AGC). Respondent is a member of the
Arkansas Acoustical and Specialty Contractors Associa-
tion (hereinafter referred to as AASCA) and in 1976 it and
the other members of that AASCA gave timely notice to
the Union that they would negotiate their own agreement
independent of the AGC. Thereafter, Respondent and
Ozark Acoustical Contractors, Inc., and Horton Drywall &
Acoustical Tile Company met with the Union on April 23.
Although the contractors were meeting jointly and were all
represented by attorney Philip Lyon, it is undisputed that
each contractor was bargaining on his own behalf. The
meeting was devoted principally to a discussion of the
Union's proposals which consisted of its proposals to the
AGC then under discussion with the AGC.
On April 30, the Union and AGC reached agreement
and, on May 18, a copy of the agreement was mailed to
Respondent and the other acoustical contractors. On June
22, attorney Lyon sent identical counterproposals on
behalf of each of his clients noting, however, that they were
separate counterproposals. The counterproposal proposed
acceptance of the AGC contract with nine changes.
On July 2, the parties met and discussed the contractors'
counterproposals. It is undisputed that agreement was
reached in principle on two issues, foreman pay and union
visitation rights, subject to agreement on specific language
to be resolved by the attorneys by an exchange of letters
after the meeting. In addition, it is undisputed that the
parties discussed an apprenticeship ratio issue, with the
contractors proposing a higher ratio of apprentices to
journeymen and the Union adhering to the position that
any change had to be worked out with the Joint
Apprenticeship Committee and not with it. The AGC
agreement provided for contractor payments to an AGC
industry fund to which the contractors objected. The
Union would not agree to delete the provision, but instead
proposed that as it played no part in the fund the
contractors could, in effect, ignore the provision and set up
their own fund. Other issues discussed involved the
establishment of a helper category and the inclusion in the
agreement of a nondiscrimination clause based on race,
color, religion, or sex.
According to Business Agent Morris Mullins, all these
issues were resolved and it was said at the meeting that
with the exchange of letters by the attorneys as referred to
above the agreement would be finalized. However, Mullins
could not recall who said that. On cross-examination,
Mullins said that attorney Lyon spoke to his clients stating,
"The agreement is final, and is this okay with you all?" and
the contractors nodded in agreement.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On this same issue, attorney Kaplan testified as follows:
JUDGE JALETTE: Well, what statement was made to
support that assertion, and by whom; that, "We will
finalize these two items, and then we have a complete
agreement, once we've done that."
THE WITNESS: That was my suggestion as to what we
do. Philip agreed to it.
JUDGE JALETTE: What did you say?
THE WITNESS: Well, to the best of my recollection,
what I said was, "Now look; we are agreeing with you
on two items; that is, that you are completely right in
regard to when a single individual goes out, and that we
have no right to conduct all of our Union business on
your jobs. As far as we're concerned, we don't see
anything from you here today which indicates that you
are that serious on any of the other items; that you are
going to cause us not to have an agreement.
What I propose is that Philip and I will exchange
language, which will put a memorandum of under-
standing to this whole agreement; whereby this agree-
ment is the agreement between the parties, and this
memorandum of understanding will interpret the two
sections."
He and I had had another case where we had talked
about memorandums of understanding, and it was a
common usage between us.
My recollection is that he agreed that that's what we
would do.
He looked at his clients and said, "Is that OK," and
nobody dissented from it. No one.
Further examination by counsel for Respondent, was as
follows:
Q. What did he say to make you believe that these
contractors had agreed to that basic AGC contract?
A. What he did was agree with the way that I
suggested that we handle the matter.
Q. He agreed to the mechanism only.
A. No. The way I agree that we handle the matter;
that is-
Q. You took that to mean, then, that he agreed to
the basic AGC contract?
A. Stirely.
Q. That he agreed to the mechanism?
A. To both. No. To both, because that's what we
were dealing with. We were dealing with-
Q. That was an assumption on your part, then.
A. Well, you know, if you say it's an assumption-I
think that what I understood what he said was, "Yes,
that's what we'll do."
Q. What was said that would lead me to believe-
I'm a third person. I wasn't there. A third person sitting
there at the end of that table, and a contract was
reached and everybody was bound.
A. Well, what was said was, "We will sign this
contract. This contract will be our contract, with the
exception of the memorandum of understanding which
will go with the contract."
Q. OK, now. Somebody said, "We will sign that
contract, with the exception .. ."? Who said that?
A. Philip did all of the talking in regard to the way
we were going to-Mr. Lyon did.
Q. And he actually said, "We will sign that
contract, with the exception of the memorandum of
understanding"?
A. He said that he will send me a letter with that
gloss on it, with that memorandum of understanding.
That will constitute his signature.
I will sign it and return it to him, and that will
constitute the signature on behalf of my client.
Q. Did he say that he would--his clients would
ever sign the AGC contract?
A. No. I assumed that he was acting on behalf of
his clients. That's what it had always been.
Q. Now, I'm confused. I'm new on this. I was
brought in here at the last minute.
You said a minute ago that Philip said, "We will sign
the AGC basic contract, conditioned upon these two
letters and a memorandum of understanding."
Now you just said that he didn't say that.
A. Well, look, Mr. Staley, what happened in that
room was I proposed that the AGC memorandum of
understanding would be the contract-I'm sorry-The
AGC contract would be the contract between the
parties, or among each of these parties; and Philip and
I would exchange a memorandum of understanding.
Q. Philip never said, "We will sign the AGC
contract."
A. Now, I don't think the word, "sign," was used.
I'll be quite honest with you. I don't think that the
word, "sign," was used.
He said, "We agree."
Now, "We agree," means "we agree."
Q. He said, "We agree to the AGC contract"?
A. "We agree." That's the-
Q. We agree to what?
A. We agree that the contract among these various
parties is the AGC contract, together with the memo-
randum of understanding.
That was our agreement. That's the agreement.
Q. Now, he didn't say all of those words, though;
did he?
A. Well, he had to have said all of those words; we
were there for two hours.
This portion of the contract that I am-of this
discussion that I am talking about consumed approxi-
mately the last 20 minutes of the discussion.
So, someplace within that 20 minutes where he and I
were doing most of the talking, he said that and I said
what I have said.
That's the way the dynamic of that meeting oc-
curred.
It occupied a two-hour period and the last several
minutes, 15 to 20 minutes of that two hours, was
consumed with the finalization of the contract.
On July 13, attorney Lyon sent a letter to attorney
Kaplan with language clarifying the provision respecting
foreman pay and union visitation rights. Kaplan was not
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LASLEY ACOUSTICS CO.
agreeable to part of the language; he discussed the matter
with Lyon and sent revised language to him on July 17. On
or about July 20, Kaplan and Lyon had a conversation in
which Lyon stated he was having difficulty with Respon-
dent, stating Respondent might not sign the agreement,
and in which Lyon proposed a change reflecting that in
signing the letter of clarification he was acting on behalf of
certain acoustical contractors who had signed or would
sign the agreement with the Union. Lyon signed the letter
of understanding and sent it to Kaplan.
On July 13, Horton Drywall & Acoustical Tile Company
signed the AGC agreement subject only to counsel
reaching agreement on the foreman pay and union
visitation rights issues and, on July 14, Ozark Acoustical
Contractors did likewise.
Thereafter, Respondent's president, Robert Lasley, had
conversations with union representatives in which he
refused to sign the agreement.
II. ANALYSIS AND CONCLUSIONS
On the basis of the foregoing, General Counsel and the
Union contend that Respondent had agreed to the terms of
a new agreement and that Respondent's refusal to sign the
agreement was a refusal to bargain in violation of Section
8(a)(5) and (1) of the Act.
General Counsel's position is predicated on the assertion
that attorney Lyon entered into a final and binding
agreement on behalf of his client. In support of his
assertion, General Counsel adverts to the following:
I. A few days after the meeting of July 2, contractors
Gerald Horton of Horton Drywall & Acoustical Tile
Company and Jim Hardwick 3 of Ozark Acoustical Con-
tractors submitted to Lyon proposed language on the issues
of foreman pay and union visitation rights.
2. On July 13, Horton signed the AGC agreement
subject only to the language clarification on the two issues.
3. On July 14, Hardwick signed the new AGC agree-
ment.
4. When Kaplan and Lyon discussed the proposed
language in mid-July, Lyon raised no protest.
5. On July 20, Lyon signed the letter with the language
clarification.
I find no merit in General Counsel's contentions. I find,
as stipulated by attorney Lyon, that Lyon had the
authority to bind Respondent; however, Lyon testified that
at no time did he agree to the terms of a complete contract
and I credit him.
General Counsel's argument as outlined above is
addressed solely to the post-July 2 meeting conduct. Of
course, what Horton and Hardwick did after July 2, as
referred to by General Counsel in items i, 2, and 3 above,
is not proof of what Lyon was agreeing to on Respondent's
behalf. The fact that Horton and Hardwick signed an
agreement without further negotiations is a circumstance to
be weighed in deciding whether or not an oral agreement
had been reached on July 2, but that circumstance has
been outweighed by the testimony of both Horton and
Hardwick, which I credit, that no agreement was reached
3 The record incorrectly lists Hardwick as Hartwick and it is hereby
corrected.
on July 2 and that they decided after the meeting on July 2
to accept the Union's proposed contract for reasons of
their own.
Items 4 and 5 of General Counsel's argument establish
only, as attorney Lyon would concede, that agreement was
reached, in principle, on foreman's pay and union
visitation rights. In my judgment, the dispute in this case is
attributable to a misunderstanding of the parties over the
significance of the exchange of letters and agreement upon
foreman's pay and union visitation rights. According to
Respondent, the agreement reached at the July 2 meeting
related only to those two items and not as to the other
issues raised by the contractors. As I understand the
Union's position, oral agreement on a complete contract
was reached on July 2 subject only to a language revision
on the two items and, when this was satisfactorily worked
out, a complete oral agreement had been reached. I am not
persuaded that the evidence supports such a contention.
As noted earlier, Mullins testified that, at the July 2
meeting, all the issues raised by the contractors were
resolved; however, in support of that testimony all that
Mullins described was the manner in which the Union
rejected the contractors' proposals. He did not state that
the contractors acceded to the Union's position and
withdrew their proposals. Mullins did testify that, at one
point, attorney Lyon spoke to the contractors and stated,
"The agreement is final and is this okay with you all?" and
the contractors nodded in agreement. Lyon denied that
such an exchange occurred, and the testimony of Horton
and Hardwick tends to support him. I credit Lyon. In this
connection, I note that attorney Kaplan did not corrobo-
rate Mullins.
In the final analysis, this case is reduced to the testimony
of attorney Kaplan that, at the July 2 meeting, attorney
Lyon agreed to the terms of the AGC contract as modified
by a memorandum of understanding to be worked out
between them. After careful review of Kaplan's testimony,
recited in detail above, I am persuaded that Kaplan's
testimony reflected his honest interpretation of the mean-
ing of the events at the July 2 meeting and that he honestly
believed that, when the Union and the contractors agreed
to modification of two contract provisions by means of a
side letter, the contractors were acceding to the Union's
position on the other counterproposals of the contractors
and were agreeing to a complete contract. However, it is
clear from the testimony of Respondent's witnesses that,
while the contractors agreed to the procedure to modify
two provisions and while they were aware that the Union
would not accede to their other proposals, they did not
accede to the Union's position at that meeting. To the
contrary, assent was withheld and, in effect, the matter was
taken under advisement. For reasons of their own, two of
the contractors subsequently decided to accept the Union's
position and to sign the agreement. Respondent decided
otherwise.
In short, I find that Respondent did not orally agree to
the terms of a complete contract. Accordingly, I shall
dismiss the complaint.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
I. Lasley Acoustics Co. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. United Brotherhood of Carpenters & Joiners of
America, Local 690, is a labor organization within the
meaning of Section 2(5) of the Act.
3. General Counsel has not established by a preponder-
ance of the evidence that Respondent orally agreed to the
terms of a collective-bargaining agreement and that its
I 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 recommended Order herein shall, as provided in Sec.
refusal to sign an agreement with the Union was violative
of Section 8(aX 1) and (5) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER4
The complaint is dismissed in its entirety.
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.
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