Meatcutters Local 17 (Aero Restaurant, Inc.)

National Labor Relations Board - Board Decisions

Mar 15, 1979

241 N.L.R.B. 22 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amalgamated Meatcutters and Butcher Workmen of
North America, AFL-CIO, Local 17 (Aero Restau-
rant, Inc.) and Peggy Callihan. Case 8-CB-3406
March 15, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On November 14, 1978, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting 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 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 Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
I The General Counsel has excepted to certain credibility findings made by
the Aministrative 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 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
BERNARD NESS, Administrative Law Judge: Upon an un-
fair labor practice charge filed by Peggy Callihan, an indi-
vidual, on May 16, 1977, a complaint was issued by the
Regional Director for Region 8 of the National Labor Rela-
tions Board on September 12, 1977. The complaint, as
amended at the hearing, alleged that Amalgamated Meat-
cutters and Butcher Workmen of North America, AFL-
CIO, Local 17, herein called the Union or Respondent, vio-
lated Section 8(bXl)A) of the Act. The Respondent has
denied the commission of any unfair labor practices. Hear-
ing was held before me on January 25 and March 16-17,
1978.
Upon the entire record, including my observation of the
witnesses and their demeanor, and after due consideration
of the briefs filed by the General Counsel and the Respon-
dent, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Aero Restaurant, Inc., a division of Aero Enterprises, a
wholly owned subsidiary of ARA Services, Inc., an Ohio
corporation, herein called the Company, is engaged in the
retail sale of goods and services at the Akron-Canton Re-
gional Airport, North Canton, Ohio. In the course and con-
duct of its business operations, it sells products and/or fur-
nishes services, the gross value of which exceeds $500,000.
It annually ships goods valued in excess of $50,000 directly
to points located outside the State of Ohio. The parties
agreed, and based on the foregoing I find, that the Com-
pany is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties agree, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
The Union has been the certified collective-bargaining
representative for all full-time and regular part-time food
service and newsstand employees at the Company's Akron-
Canton Regional Airport facilities since October 1976 as a
result of a Board-conducted election. Shortly thereafter, the
parties began negotiating for an initial contract. Upon sub-
mission to the bargaining unit employees by the Union for
ratification of a proposed contract with the Company, the
employees agreed to ratify the contract. Thereafter the par-
ties executed the contract. The General Counsel contends
that the Union did not fairly represent the employees and
thereby violated Section 8(b)(1)(A) because it misrepre-
sented substantive provisions of the proposed contract at
the ratification meetings' and misrepresented the amount of
union dues the bargaining-unit employees would be re-
quired to pay pursuant to the proposed contract containing
a union-security clause. The Union's constitution provided,
and the parties understood, any agreement arrived at was
subject to ratification by the employees. The General Coun-
sel does not seek to have the collective-bargaining contract
set aside, but contends that a remedy should require the
Union to place the employees in the position which the
Union represented they would enjoy with ratification of the
contract. The General Counsel contends that the Union
misled the employees by telling them part-time employees
would be provided hospital and insurance coverage under
the contract when they were not; and thus the Union
should be ordered to provide the part-time employees such
benefits as are provided to full-time employees during the
life of the contract. As for sick leave benefits, the General
Counsel contends that the Union misled the employees to
believe there was no change in the sick leave policy; thus
the Union should be required to pay directly to the affected
t Hospitalization and insurance benefits applicable to part-time employ-
ees, the sick leave policy, and the status of the Company's past practices.
241 NLRB No. 4
22
MEATCUTTERS LOCAL 17
employees the difference in sick leave benefits enjoyed prior
to the contract. In further support of his contention that the
Union misled the employees to believe the Company's past
practices would remain in effect, the General Counsel urges
that the Union should be required to reimburse the employ-
ees for the elimination of the Christmas bonus and the ser-
vice uniforms costs. In support of his contention that the
Union misrepresented that the union dues would be $8
rather than $8.50, the General Counsel contends that the
Union should reduce its dues 50 cents per month for the
entire period of the contract amd reimburse the employees
for the difference in dues payments they have been required
to pay.
The Union's negotiating team consisted of George Pratt,
union president; Gary Feiock, financial secretary; Marvin
Heath, organizer; together with two employees of the Com-
pany who were union stewards, Jane Dickerhoof and Ernie
Williams.2 The bargaining unit, during the material period,
included approximately 29 full-time employees and ap-
proximately 18 part-time employees. Those employees who
worked 30 or more hours per week were considered full-
time employees. Negotiations between the Union and the
Company commenced shortly after the Union's certifica-
tion. After about 12 meetings with the Company, the nego-
tiations reached a point where the Company's position had
hardened, and it requested the Union to take the proposals
to the membership. A ratification meeting was held on Feb-
ruary 3, 1977,' and the employees voted overwhelmingly to
reject the proposed contract. There were 23 employees at
this meeting. After two further negotiation meetings, an-
other ratification meeting was held on March 14 and the
employees voted 26 to 2 for ratification. The voting at each
meeting was by secret ballot. The contract was thereafter
executed and runs from April 1, 1977, through March 31,
1980. The five union representatives named above who
comprised the negotiating team appeared on the platform
at each of the ratification meetings. At the February 3
meeting, Pratt was the principal speaker. Initially, the
union representatives summarized the proposed provisions.
The other union representatives also participated and an-
swered questions propounded by the employees. At the
March 14 meeting the union representatives announced
that the only additional concession they were able to obtain
was a wage reopener in the third year. More discussion
followed, resulting in the ratification. It is undisputed that
the meetings were open and employees had full opportunity
to ask, and indeed asked, many questions and answers were
given. There was no evidence of any hostility on the part of
any of the union representatives towards the employees.
The witnesses for the General Counsel testified that at these
meetings they had no reason to believe the union represen-
tatives were attempting to mislead them or misrepresent the
proposed contract provisions. No self-contained document
including all the provisions of the proposed contract had
been prepared prior to the meeting nor was any written
material distributed to the employees. The union represen-
tatives testified that it was not their practice to prepare a
2 Neither Dickerhoof nor Williams was a union steward any longer at the
time of the hearing, and Williams was employed elsewhere.
I All dated hereinafter refer to 1977 unless otherwise indicated.
full and complete written contract prior to ratification. The
union representatives took turns reading proposed provi-
sions. During negotiations, the parties had initialed sepa-
rate sheets for various provisions tentatively agreed upon.
There is no evidence that the union representatives engaged
in any arm-twisting to induce the employees to ratify the
proposed contract. At the first meeting, Pratt reported to
the employees that the Union was not happy with the pro-
posed contract. He recommended rejection and hinted
strongly that if the employees rejected the contract, the ne-
gotiating team would be in a better bargaining position to
obtain additional concessions from the Company. After the
rejection by the employees on February 3 and two further
negotiation meetings, Pratt reported to the employees at the
March 14 ratification meeting that the only additional con-
cession the Union was able to obtain was a wage reopener
in the third year of the contract. This time the proposed
contract was ratified.
That there was discussion about provisions of the con-
tract at the two ratification meetings is undisputed. How-
ever. conflicting testimonies were presented concerning rep-
resentations by the Union representatives as to substantive
provisions of the contract and the amount of union dues. In
most instances, the witnesses were unable to identify the
particular union representative who allegedly made certain
statements. The alleged misrepresentations first came to
light when Callihan, the Charging Party, discovered in May
when she was pregnant that as a part-time employee she
was not eligible to participate in the hospitalization bene-
fits. Copies of the contract were given to employees in late
April or May.
Sick Leave. Before the Union came into the picture, full-
time employees (30 hours a week or more) and part-time
employees who worked between 20-30 hours per week re-
ceived sick leave benefits after completion of 90 days of
employment. Under the contract executed by the Union
and the Company, the sick leave benefits remained the
same except that benefits did not accrue until the employ-
ees had completed 1 year of employment, rather than 90
days as heretofore. Peggy Callihan testified that a union
representative stated at the meeting that sick leave benefits
would be the same as before and described the number of
hours employees would accrue. She testified, however, that
the union representative did not state the waiting period
had been changed from 90 days to I year. Feiock also testi-
fied that the employees were told the sick leave benefits
were the same as the employees had before. Both Feiock
and Heath testified that they believed the benefits were the
same. Pratt's recollection of the discussion concerning the
sick leave appeared to be hazy, and I do not place any
reliance on that portion of his testimony relating to the
discussion of sick leave. I find that a union representative at
the February 3 ratification meeting stated the sick leave
benefits were the same and described the hours employees
would accrue. I also find that nothing was said concerning
the waiting period nor did anyone raise any question about
it.
Hospitalization and Insurance. Before the Union came
into the picture, only full-time employees were entitled to
any hospitalization benefits under a companywide group
insurance plan covering the Company's nationwide facili-
23
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties. Part-time employees were not covered. Similarly, term
life insurance was provided to full-time employees but not
to part-time employees. The General Counsel contends the
employees were told at the ratification meetings that the
proposed contract provided hopitalization and insurance
coverage for part-time employees. The contract did not so
provide. It is undisputed that the Union was unable to get
any concessions from the Company in the negotiations in
this area. The Company refused to budge, contending it
had a group policy with an insurance carrier and would not
consider any changes until its expiration.
A number of the General Counsel's witnesses testified
that the employees were told at the ratification meetings
part-time employees would receive the same benefits as full-
time employees. Rita Bauman testified that she told Pratt
she was a part-time employee and asked if her children
were covered by hospitalization and Pratt replied she and
her children were covered even though she was a part-time
employee 4 Cedas Hayes testified that she asked if part-time
employees would have to pay full dues and Pratt or Heath
replied in the affirmative.5 Archer, Callihan, and Wilkin
also testified that a union representative responded to
Hayes' question by saying the part-time employees would
have to pay full dues because they would receive full bene-
fits under the contract. Pratt recalled Hayes asking whether
part-time employees would have to pay full union dues. He
admitted saying they would have to pay full dues under the
International constitution but he would try to get the ap-
proval of the International for a reduction in dues for part-
time employees. 6 Feiock, Heath, and Williams all denied
that the employees were told part-time employees would
get the same benefits as the full-time employees. They all
testified that the employees were told the Company would
not consider any changes in its policy with the insurance
carrier.7 Dickerhoof, a witness for the General Counsel, tes-
tified that she did not hear any union representative state
part-time employees would have to pay full dues because
they would receive full benefits. She did recall Pratt saying
that he would try to get the dues reduced for part-time
employees. Charging Party Callihan testified that the em-
ployees were told the company policy with the carrier
would run out in a couple of years then changes would be
effected.
Union Dues: At the time of the ratification meetings, the
International constitution provided that membership dues
would be not less than $8.50 per month. In some plants
members were paying more because of strike assessments.
4 Corroborated by Connie Archer, Pat Callihan, Debbie Lough, Rosemary
Wilkin, and Jane Dickerhoof. Archer testified that Pratt responded to Bau-
man's question. Lough and Wilkin thought it was Pratt. Callihan did not
know who replied to Bauman's question. Dickerhoof thought it was either
Feiock or Heath.
I She testified that "maybe it just didn't come out clear or misunderstood"
but she understood the union representative to explain part-time employees
would be covered for benefits in answering her question.
After receiving clearance from the Union's executive board, he made
such request by letter dated June 3 to the International. It was approved by
the International.
7 In a letter to the Union dated March 30, the Company confirmed under-
standings relative to issued raised in the negotiations (G.C. Exh. 3). One of
the items reads as follows: "The parties will pursue the possibilities of other
Insurance and Hospitalization Carriers and/or Health and Welfare Funds
prior to the expiration of the current Hospitalization and Insurance policy."
The General Counsel contends that the unit employees
were told at the ratification meetings the dues would be $8
per month. Callihan and Cochran testified that one of the
union representatives said the dues would be $8. Hayes'
testimony on this point is not clear-"about $8 a month."
Pratt and Williams both testified that the employees were
told the dues were $8.50 per month. Neither Feiock nor
Heath could recall at the time they testified what the spe-
cific amount of dues was; the meetings were held I year
earlier. However, they recalled that the minimum amount
was quoted correctly at the meetings.
Past Practices: The General Counsel contends that the
employees were told at the ratification meetings all past
practices would remain in effect, and past benefits would
not be taken away. The contract provided that the agree-
ment "supersedes all agreements, understanding and prac-
tices in effect prior to the date of this Agreement, whether
the same were based on implication, written or oral agree-
ments or other factors." (art. XXIV). Archer testified that
the employees were told past practices would be the same,
and the Company would not be able to take anything away.
No longer given to the employees since the contract were
the Christmas bonus, an allowance for uniform cleaning,
and participation in a profit-sharing plan. Although she did
not recall whether the past-practice-clause provision was
recited to the employees, she recalled a question was asked
about the Christmas bonus and the answer given was that
the contract provision prohibited the giving of the bonus.
Callihan testified that the employees were told if uniforms
were shabby, they would be replaced by the Company. In
his brief, the General Counsel has requested the transcript
be corrected to show that his question to witness Cochran
referred to "past practices" rather than "insurance bene-
fits." I am not convinced that the question was incorrectly
transcribed in this regard, and the request is denied. In any
event, it is clear that the thrust of Cochran's response to the
question was that the employees were told they would re-
tain everything they already had. She also testified that the
employees lost the uniform cleaning allowance and the
Christmas bonus. Pratt testified that questions were raised
whether uniforms would continue to be furnished to the
employees and whether 10 cents per hour would continue
to be taken out for their meals. He further testified as fol-
lows:
Q. Can you remember any questions being asked
about past practices generally to the effect of will there
be any changes in past practices, will there be any
changes in our current benefits, any loss of our current
benefits, I should say?
A. Well, I can't remember it being directed that
way, but I can remember the fact it was asked what
did the past practice-there was a paragraph in the
contract that said that the company would no longer
gave to be oligated to past practices, or something like
that.
They asked the meaning of that and that was ex-
plained to them.
Feiock denied that any union representative said past prac-
Art. XX provides that the Company would furnish uniforms.
24
tices could not be changed and employees would retain
everything they had had heretofore.
Analysis and Conclusions
It is well settled that a union which enjoys the status of
exclusive bargaining representative has an obligation to
represent employees fairly, in good faith, and without dis-
crimination against any of them on the basis of arbitrary,
irrelevant, or invidious distinctions. Vaca, et al. v. Sipes, 386
U.S. 171 (1967); Miranda Fuel Company, Inc., 140 NLRB
181 (1962). But mere negligence or inadvertent error is not
the type of conduct which was intended to be encompassed
within the Miranda principles. General Truckdrivers, Chauf-
feurs and Helpers Union, Local No. 692, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America (Great Western Unifreight System), 209 NLRB
446 (1974).
The General Counsel argues that the Union failed in its
duty to fair representation by its affirmative misrepresenta-
tions and thereby violated Section 8(b)( 1)(A) of the Act. He
argues that misrepresentations were knowingly made and
were intentional. The discussions concerning the subjects in
issue took place at the February 3 meeting, and if any mis-
representations were made they would have been made at
that meeting. At the March 14 meeting the Union an-
nounced that after two more negotiation meetings with the
Company, the only additional concession to be gained was
a wage reopener in the third year of the contract. The Gen-
eral Counsel points out that written copies of the proposed
contract were not distributed to the employees, and that the
employees had to rely upon the representations of the
Union as to the contents of the contractual provisions. It
should be remembered that the parties had bargained ex-
tensively towards an initial agreement. Some provisions had
been agreed upon and initialed by the parties; other provi-
sions had not yet been agreed to. It was not the Union's
practice to prepare a proposed contract in written form for
distribution at ratification meetings. Since a condition prec-
edent to the execution of a contract was the ratification by
the employees, it may be argued that it was indeed incum-
bent upon the Union to refrain from purposely deceiving
them or fraudulently leading them to believe certain bene-
fits existed under the proposed contract which, in fact, did
not exist.
The record disclosed that the Union diligently sought to
obtain an initial contract beneficial to the unit employees.
After about 12 negotiation meetings, it reported to the unit
employees that it was unhappy with the fruits of its efforts
and urged rejection of the proposed contract. The discus-
sion at the meetings was uninhibited; many questions were
posed to the Union representatives and answers were given.
No rosy picture of gains achieved was portrayed to induce
the employees to ratify the contract.
To determine what actually was said at the ratification
meetings is admittedly difficult to resolve. No minutes were
taken nor was any transcription made. Some provisions of
the proposed contract were read and many questions were
asked. Various union representatives took turns in answer-
ing questions. At the first ratification meeting, the union
representatives told the employees that they were not hap-
py with the proposed contract and recommended it be re-
MEATCUTTERS LOCAL 17
jected. With this in mind, I cannot perceive that the repre-
sentatives would delude the employees into believing they
would be getting more benefits than called for in the pro-
posed contract. There is absolutely no basis to ascribe de-
ceit or a fraudulent design on the part of the union repre-
sentatives.' With respect to the sick leave benefits, I find
that nothing was said concerning the changes in the waiting
period for benefits to accrue nor were any questions asked
about it. The employees were told the benefits were the
same. I further find that there was no attempt by the Union
to deceive, misrepresent, or mislead the employees when
they would be eligible to receive the benefits. At best, the
Union may have been remiss in not pointing out the
changes in the waiting period.
As to the hospitalization and insurance benefits, I am
convinced that the Union representatives told the employ-
ees the Company would not change its group policy with
the insurance carrier and that further attempts would be
made to effect changes in the benefits when the group pol-
icy expired in 2 years. The union representatives on the
podium were aware that the Union was unable to obtain
hospitalization and insurance benefits for the part-time em-
ployees. I cannot perceive that they would have attempted
to mislead the part-time employees to believe they would
receive such benefits under the contract. It is undisputed
that the employees were told part-time employees would
have to pay full dues and that part time employees were
told they would receive benefits, as indeed they did. It may
be that the employees failed to understand the explanations
given by the union representatives. I do not believe that the
union representatives said part-time employees would re-
ceivefull benefits or that they were to be covered under the
hospitalization and insurance benefits.
Two of the General Counsel's witnesses testified that they
were told the dues would be S8. This is denied by the union
representatives. Again, I see no reason whatsoever why a
union representative would purposely mislead employees to
believe that union dues were 50 cents less than the actual
amount. If a union representative would have mistakenly
quoted the incorrect amount, it seems he would have been
corrected by one of the other representatives on the po-
' On rebuttal, Callihan testified that in early March 1978, about 2 weeks
before the resumption of the hearing in this matter, Dallas Mayle, an em-
ployee of another company and a department union steward on his shift, was
sitting at the bar at the Company's restaurant. According to Callihan, Mayle
told her that Heath had lied to the employees and Pratt backed him up.
Mayle purportedly also told her that Feiock had told him that the Union
had lied and the Union was going to have to pay. She did not ask in what
manner the Union had lied. She testified that Archer and Dickerhoof were
present; neither was called upon to corroborate her testimony in this regard.
Mayle preceded Callihan as a rebuttal witness for the General Counsel. He
admitted being at the bar and talking to Callihan about the local union
election but did not recall anything else in the conversation. He said he was
preparing to board a plane and was inebriated. He denied that Feiock had
ever said Heath had lied or that Pratt backed him up. Feiock had earlier
denied ever telling anyone Heath had lied and that Pratt backed him up.
Even were I to credit Callihan's testimony, I would place no reliance on it to
support a finding that the Union had lied to the employees at the ratification
meetings. Mayle was a union departmental steward at another company; he
was not involved in the negotiations nor was he present at the ratification
meetings. Although Callihan's testimony may be admissible, it serves very
little probative value and is completely unreliable to support a finding that
Feiock had made a declaration that Heath or the Union had lied to the
employees. In this connection I have considered Feiock's express denial of
making such a statement and the testimony of both Feiock and Heath con-
cerning the ratification meetings.
25
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dium. Accordingly, I find the employees were not told that
the dues would be $8 rather than the actual amount-$8.50.
Employees Archer and Cochran testified to the effect that
the employees were told they would be able to retain the
benefits they had. Yet Archer also testified that a union
representative said the Christmas bonus was not in the pic-
ture because of the past-practice clause. I find that Pratt
read the proposed clause pertaining to past practices and
answered questions about it but in no way were the em-
ployees told that under the proposed contract the employ-
ees would retain all the benefits they had had in the past.
In the light of the above, I find that the Union did not act
in bad faith with the unit employees not did it engage in
such arbitrary conduct of a nature as to constitute a failure
in its duty of fair representation to the employees violative
of Section 8(b)(1)(A) of the Act.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor prac-
tices alleged in the complaint.
Upon all the foregoing, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER'I
It is hereby ordered that the complaint be dismissed in its
entirety.
'0 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. 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.
26