Martin J. Barry Co.

National Labor Relations Board - Board Decisions

Apr 20, 1979

241 N.L.R.B. 1011 (N.L.R.B. 1979)

MARTIN J. BARRY COMPANY
Martin J. Barry Company and Carpenters District
Council and its affiliated Local 974, United Brother-
hood of Carpenters & Joiners of America, AFL-
CIO. Case 5-CA-9363
April 20, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS MURPHY
AND TRUESDALE
Upon a charge filed on April 4, 1978, by Carpen-
ters District Council and its affiliated Local 974,
United Brotherhood of Carpenters & Joiners of
America, AFL-CIO (herein called the Union), and
duly served on Martin J. Barry Company (herein
called the Respondent), the General Counsel of the
National Labor Relations Board, by the Regional Di-
rector for Region 5, on May 31, 1978, issued and
served on the parties a complaint and notice of hear-
ing alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting commerce
within the meaning of Sections 8(a)(5) and (1) and
2(6) and (7) of the National Labor Relations Act, as
amended.
With respect to the unfair labor practices, the com-
plaint alleged, inter alia, that, commencing on or
about March 30, 1978, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union by refus-
ing to execute a contract setting forth the terms of a
final and binding agreement reached between the par-
ties, although the Union has requested and is request-
ing it to do so. On June 15, 1978, Respondent filed its
answer to the complaint, denying the commission of
any unfair labor practice.
On November 8, 1978, the parties executed a stipu-
lation wherein they agreed that certain documents
(including the charge, complaint, notice of hearing,
answer, and stipulation) shall constitute the entire
record herein, expressly waived a hearing before an
Administrative Law Judge and the issuance of an Ad-
ministrative Law Judge's Decision, and submitted the
case directly to the National Labor Relations Board
for findings of fact, conclusions of law, and an Order
based on the record.
Subsequently, on December 18, 1978, the Board
issued an Order approving the stipulation, transfer-
ring the proceeding to the Board, and granting per-
mission and time for the filing of briefs. Thereafter,
Respondent and counsel for the General Counsel
filed briefs with the Board.
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.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF RESPONDENT
Respondent, a Maryland corporation, is engaged in
the business of apartment and shopping center main-
tenance at various locations in the State of Maryland.
During the preceding 12 months, a representative pe-
riod, Respondent received gross revenues from its op-
erations in excess of $500,000. During this same pe-
riod, it had combined purchases, in interstate
commerce, of materials and supplies valued in excess
of $50,000 from points located outside the State of
Maryland and from wholesale or manufacturing en-
terprises which themselves purchased goods and ma-
terials valued in excess of $50,000, in interstate com-
merce, from points located outside the State of
Maryland.
The parties stipulated, and we find, that Respon-
dent is, and has been at all times material herein, an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Carpenters
District Council and its affiliated Local 974, United
Brotherhood of Carpenters & Joiners of America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time maintenance
employees employed by Respondent at its var-
ious apartment and shopping center locations in
Maryland; but excluding clerical employees,
guards and supervisors as defined in the Act.
There are approximately 135 employees in the above-
described unit.
2. The certification
On July 1, 1977, a majority of the employees of
Respondent in said unit, in a secret-ballot election
241 NLRB No. 148
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D ECISIONS OF NATIONAL LABOR RELATIONS BOARD
conducted under the supervision of the Regional Di-
rector for Region 5, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on July 14, 1977. and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Refusal To Bargain
Commencing on or about September 9, 1977, the
Union and Respondent held a series of meetings to
negotiate with respect to rates of pay, wages. hours of
employment, and other conditions of employment of
employees in the appropriate unit. During the first
such meeting, the Union's business representative,
Oneal Fowler, informed Respondent that any agree-
ment reached between the parties would be subject to
approval by the employees. Respondent submitted its
final offer at a meeting held on December 15. 1977.
Thereafter, the Union held two employee meetings
at which employees discussed and voted on Respon-
dent's final offer. At the first such meeting, held on
December 21, 1977, the offer was rejected by a secret-
ballot vote of 42 against and 3 for. At the second
meeting, held on February 23, 1978,' the offer was
accepted by a secret-ballot vote of 16 for and 6
against.
On or about February 24, 1978, the Union in-
formed Respondent that it had accepted Respon-
dent's offer. Respondent agreed to draft the formal
collective-bargaining agreement embodying the terms
of its offer. Respondent transmitted a formal contract
to the Union on or about March 30, 1978. The con-
tract did not contain an explicit requirement that the
contract receive an employee ratification vote in or-
der to be effective.
On March 31, 1978, John H. Riehl Ill, Respon-
dent's general manager and assistant treasurer, re-
ceived an employee petition containing the signatures
of 73 employees. The petition asked that Respondent
decline to sign the contract, asserted that employees
were not properly notified and that a majority of em-
ployees could not participate in contract discussions
and voting, stated that employees were misled into
voting to accept the contract, and claimed that some
I On February 17. 1978, the Union mailed a letter to each employee whose
name appeared on the list of eligible voters for the election held July I1 1977.
The letter stated, in relevant part:
The purpose of this meeting is to go over the contract and to bring you
up to date on our plans for the future. This meeting is of great impor-
tance to everyone and will help to give you security for the future.
Please attend.
The Postal Service returned 16 of the letters mailed by the Union because
the persons to whom the letters were addressed did not live at the listed
addresses and did not leave forwarding addresses.
voters were not employees of Respondent. On April
3, 1978, Riehl sent a letter to Respondent's attorney
stating that, because of the petition, Respondent
would not sign the contract. The Union received a
copy of the letter on April 4, 1978. Respondent has
not signed the contract.
C. Contentions of the Parties
Counsel for the General Counsel asserts that Re-
spondent's refusal to sign the agreed-upon contract
constitutes a per se violation of Section 8(a)(5) and (1)
of the Act. In this regard, counsel for the General
Counsel asserts that ratification was effectuated
through the employee meeting held on February 23,
1978, and, further, that in any event ratification was
not a requirement in order for the agreement between
the parties to be effective.
Counsel for the General Counsel first notes that:
Ratification is a matter solely within the prov-
ince of the Union and an employer cannot law-
fully question the ratification procedure as a
means to avoid executing an agreed-upon con-
tract.
Additionally, although counsel for the General Coun-
sel asserts that it is irrelevant whether ratification was
a condition precedent to execution of the contract, it
is noted that a ratification requirement was not incor-
porated into the agreement and, moreover, would
have been a gratuitous but unenforceable promise on
the Union's part. Thus, counsel for the General
Counsel asserts that "Respondent's attempt to inter-
vene itself in the Union's ratification procedure" is
the conduct which must be considered in the instant
case.
For these reasons, counsel for the General Counsel
maintains that Respondent violated and is violating
Section 8(a)(5) and (I) of the Act by refusing to ex-
ecute the agreed-upon contract.
Respondent contends that it was the understanding
of the parties that any agreement reached would be
subject to approval by the employees and that no
valid ratification vote was held concerning its final
contract offer. As evidence that a majority of employ-
ees did not ratify the contract, Respondent points to
the employee petition, signed by over half of the em-
ployees in the unit, seeking to prevent the signing of
the contract. Respondent also asserts that the meeting
held on February 23, 1978, was procedurally defec-
tive in several respects. First, Respondent notes that
the letter sent to employees did not explicitly state
that the purpose of the meeting was to vote on ratifi-
cation. Second, Respondent asserts that the use of an
"outdated" list of names and addresses, resulting in
the return of 16 of the letters, casts doubt on the re-
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MARTIN J. BARRY COMPANY
suits of the vote because the margin by which the
contract was "ratified" was less than 16. Finally., Re-
spondent notes the claim in the employee petition to
the effect that nonemployees participated in the ratifi-
cation vote.
For these reasons, Respondent submits that the
Board should dismiss the complaint inasmuch as no
valid agreement was reached by the parties.
D. Discussion and Conclusion
Section 8(d) of the Act requires "the execution of a
written contract incorporating any agreement
reached" in negotiations between an employer and
the representative of its employees. There is no dis-
pute that the parties had reached at least a tentative
agreement, which would ordinarily obligate both par-
ties to execute a contract embodying the terms of that
agreement. The question is whether Respondent ws
excused from such an obligation in these circum-
stances.
We do not agree with Respondent's argument that
employee ratification of the contract was a necessary
precondition to a binding agreement. The instant case
falls squarely within the facts of North Countr' Mo-
tors, Ltd.,2 wherein, although the union there involved
undertook to achieve ratification of the contract, no
requirement that this occur was ever incorporated
into the written contract. The fact tha.t the agreement
to employee ratification occurred at the beginning of
negotiations rather than at the end does not alter our
conclusion that the agreement was never a part of the
contract itself; it is plain on the face of the instrument
prepared by Respondent that ratification is not a pre-
condition to the effectiveness of the agreement.
Furthermore, even if ratification were a precondi-
tion, we find that Respondent has no standing to
question the validity of the procedures used by the
Union in ratifying the agreement. It is well settled
that ratification is an intrnal union matter which is
not subject to question by an employer.3 Here, there
was a meeting at which a vote was taken, and the
Union concluded that the meeting and vote met its
standards for a valid ratification vote. Undocumented
allegations of wrongdcing, made over a month after
the meeting to an entity with no authority to deter-
mine whether a valid ratification vote took place, do
not suffice to overturn the Union's conclusion in this
regard.4 Respondent may not raise questions concern-
2 146 NLRB 671 (1964).
3 Id. at 674, See also M &d M Oldsmobile, Inc.. 156 NLRB 903, 905 (1966).
'The validity of a ratification vote in this context is a different matter from
a question whether a contract which was not properly ratified will bar a
petition for an election. However, even in the latter context, we note that
"only where the written contract itself makes ratification a condition prec-
edent to contractural sic] validity shall the contract be no bar until ratified."
Appalachian Shale Producit Co.. 121 NLRB 1160. 1162 (1958) As noted
previously, the contract drafted by Respondent contained no such written
condition.
ing the Union's internal procedures in order to avoid
its obligation to sign the agreed-upon contract. For
this reason, it is unnecessary and inappropriate for us
to consider whether, in fact, the procedure followed
by the Union was consistent with its normal ratifica-
tion procedure.'
Accordingly, we find that Respondent has, since on
or about March 30, 1978, and at all times thereafter
to date, refused to bargain collectively with the Union
as the exclusive representative of the employees in the
appropriate unit by refusing to execute the agreed-
upon contract and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of
the Act.
IV. THE EFFE(CT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCEF
The activities of Respondent set forth in section
III, above, occurring in connection with its operations
described in section 1, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and () of the Act, we shall
order that it cease and desist therefrom and take cer-
tain affirmative action which we find necessary to ef-
fectuate the policies of the Act.
We have found that Respondent unlawfully re-
fused to sign the contract to which it and the Union
had agreed on February 24, 1978. We shall, therefore,
order Respondent, if the Union so requests, to sign
and give effect to a written contract embodying the
terms of the agreement reached, including but not
limited to the provisions relating to wages and eco-
nomic benefits, and to make whole its employees for
any losses suffered by reason of Respondent's refusal
to give effect to the agreement, backpay to be com-
puted in accordance with F. W. Woolworth Company,
90 NLRB 289 (1950), with interest computed in ac-
cordance with Florida Steel Corporation, 231 NLRB
In the event unit employees believe that their rights have been violated
by the Union's use of irregular or unlawful internal procedures, other re-
course is available to provide a remedy.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
651 (1977);6 see generally, Isis Plumbing & Heating
Co., 139 NLRB 716 (1962), enforcement denied on
different grounds 322 F.2d 913 (9th Cir. 1963).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Martin J. Barry Company is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Carpenters District Council and its affiliated Lo-
cal 974, United Brotherhood of Carpenters & Joiners
of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The following employees of Respondent consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time maintenance
employees employed by Respondent at its var-
ious apartment and shopping center locations in
Maryland; but excluding clerical employees,
guards and supervisors as defined in the Act.
4. Since July 14, 1977, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about March 30, 1978, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit by refusing to ex-
ecute the agreed-upon contract, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
6Counsel for the General Counsel has requested that any backpay order
herein include a provision for interest at the rate of 9 percent per annum. For
the reasons set forth in Florida Steel, supra, we shall provide for interest as
set forth therein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Martin J.
Barry Company, Baltimore, Maryland, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment by refusing to sign the agreed-
upon written contract with Carpenters District Coun-
cil and its affiliated Local 974, United Brotherhood of
Carpenters & Joiners of America, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All full-time and regular part-time maintenance
employees employed by Respondent at its var-
ious apartment and shopping center locations in
Maryland: but excluding clerical employees,
guards and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action, which the
Board finds will effectuate the policies of the Act:
(a) Upon request, sign and give effect to the writ-
ten contract embodying the terms of the agreement
reached between Respondent and the Union on Feb-
ruary 24, 1978, including but not limited to the provi-
sions relating to wages and economic benefits.
(b) Make whole its employees for any losses suf-
fered by reason of Respondent's refusal to give effect
to its agreement with the Union, in the manner set
forth above in the section entitled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents all payroll and other records
necessary to compute the backpay set forth in the
section entitled "The Remedy."
(d) Post at its various apartment and shopping
center locations in Maryland copies of the attached
notice marked "Appendix."7 Copies of said notice, on
forms provided by the Regional Director for Region
5, after being duly signed by Respondent's represent-
ative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
7 In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1014
MARTIN J. BARRY COMPANY
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment by refusing
to sign the agreed-upon written contract with
Carpenters District Council and its affiliated Lo-
cal 974, United Brotherhood of Carpenters &
Joiners of America, AFL-CIO, the exclusive rep-
resentative of the employees in the bargaining
unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, sign and give effect to
the agreed-upon written contract embodying the
terms of the agreement reached with the above-
named Union on February 24, 1978, as the ex-
clusive representative of all employees in the bar-
gaining unit described below. The bargaining
unit is:
All full-time and regular part-time mainte-
nance employees employed by Respondent at
its various apartment and shopping center lo-
cations in Maryland; but excluding clerical
employees, guards and supervisors as defined
in the Act.
WE WILL make whole all employees in the
above-described bargaining unit for any losses
suffered by reason of our refusal to give effect to
our agreement with the above-named Union.
MARTIN J. BARRY COMPANY
1015