Plasterers Local 627 (Jack Hart Concrete)

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1286 (N.L.R.B. 1985)

' 1286 PLASTERERS LOCAL 627 (JACK HART CONCRETE)
Cement Masons , Local 627, Operative Plasterers
and Cement Masons International Association
of the United States and Canada and Jack Hart
Concrete Construction . Case 31-CB-5560
29 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon an unfair labor practice charge filed 6
April 19841 by the Employer, the General Counsel
of the National Labor Relations Board, by the Re-
gional Director for Region 31, issued 29 May 1984
a complaint against Cement Masons, Local 627,
Operative Plasterers and Cement Masons Interna-
tional Association of the United States and Canada,
the Respondent, alleging that it has violated Sec-
tion 8(b)(3) of the National Labor Relations Act.
Copies of the charge and complaint and notice of
hearing before an administrative law judge were
duly served on the parties. On 4 June 1984 the Re-
spondent filed a timely answer to the complaint de-
nying the commission of any unfair labor practices
and asserting certain affirmative defenses.
On 6 September the parties jointly filed a stipula-
tion to transfer the instant proceeding to the Board
without benefit of a hearing before an administra-
tive law judge and submitted a proposed record
consisting of the formal papers and the parties' stip-
ulation of facts with attached exhibits. On 29 No-
vember the Associate Executive Secretary, by di-
rection of the Board, issued an order approving the
stipulation and transferring the proceeding to the
Board. Thereafter, the General Counsel, the Re-
spondent, and the Employer filed briefs.
On the entire record in the case, the Board
makes the following
FINDINGS OF FACT
1. JURISDICTION
The Employer, a sole proprietorship with an
office and principal place of business located in
Reseda, California, is engaged as a concrete sub-
contractor in the building and construction indus-
try. In the course and conduct of its business, the
Employer annually purchases and receives goods
or services valued in excess of $50,000 from sellers
or suppliers located within the State of California,
which sellers or suppliers receive such goods in
substantially the same form directly from outside
the State of California. In addition, in the course
and conduct of its business the Employer annually
derives gross revenues in excess of $500,000.
' All dates are 1984 unless otherwise indicated
We find that the Employer is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act and that the Respondent is
a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
About 28 February 1975 the Respondent and the
Employer entered into a short-form collective-bar-
gaining agreement binding them to the terms of the
then current master labor agreement between
Southern California General Contractors and
Eleven Southern California Counties Cement
Masons, and to any renewals, extensions, or re-
negotiations of the master agreement. Pursuant to
the short-form agreement, the Respondent and the
Employer have been bound to comply with certain
terms of successive master labor agreements, the
most recent which is effective from 1 July 1983 to
15 June 1986.
The short-form agreement contains, inter alia,
the following provision:
This Agreement shall become effective as of
the date shown below, and shall continue in
effect for the same terms of the applicable
multiple-employer labor agreement and for
any renewals or extensions or renegotiations
thereof, provided, however, that either party
may give five (5) days written notice to the
other party subsequent to the termination date
of the appropriate multiple-employer agree-
ment of its desire to terminate said agreement,
and said agreement shall terminate at the con-
clusion of the five (5) days notice. Any renew-
als or extensions or renegotiations of the appli-
cable multiple-employer agreement shall auto-
matically be binding upon the Union and the
Employer where said five (5) days written
notice to the other party is not given.
By letter dated 23 March, the Employer gave
the Respondent notice of its intent to terminate the
short-form agreement pursuant to the termination
provision. About 24 March the Employer request-
ed that the Respondent bargain collectively with
respect to terms and conditions of employment of
the employees in the appropriate unit.2 Beginning
2 The parties stipulated that at all times material, the Respondent has
been, by virtue of Sec 9(a) of the Act, the exclusive representative for
purposes of collective bargaining of the employees in the following ap-
propriate unit
All employees of the Employer engaged in Cement Masons work
falling within the recognized jurisdiction of the Union signatory to
the Master Labor Agreements between Southern California General
Contractors and Eleven Southern California Counties Cement
Masons, and described therein
274 NLRB No. 187
PLASTERERS LOCAL 627 (JACK HART CONCRETE) 1287
about 5 April, the Respondent has refused to bar-
gain collectively with the Employer, maintaining
that pursuant to the language contained in the
short-form agreement the Employer's notice of ter-
mination was neither timely nor effective. The
complaint alleges that the Respondent's refusal to
bargain violated Section 8(b)(3) of the Act.
B. Contentions of the Parties
As noted above, the short-form agreement pro-
vides that "either party may give five (5) days
written notice to the other party subsequent to the
termination date of the appropriate multiple-em-
ployer agreement of its desire to terminate said
agreement, and said agreement shall terminate at
the conclusion of the five (5) days notice." The
General Counsel points out that the short-form
agreement makes no allusion to the current master
agreement , effective 1 July 1983 to 15 June 1986,
and contends that the "appropriate" master agree-
ment referred to in the termination provision was
that in effect at the time the short-form agreement
was signed, and which expired in 1977. Thus, the
General Counsel argues that the Employer's 23
March notice was timely, having occurred "subse-
quent to the termination date of the appropriate
multi-employer agreement," and that under Carpen-
ters Local 743 (Armstrong & Smith Construction),
261 NLRB 425 (1982), and Wheeler Construction
Co., 219 NLRB 541 (1975), the Respondent has un-
lawfully refused to bargain.
The Employer, however, contends that the "ap-
propriate multiple-employer agreement" for pur-
poses of triggering the termination clause is the
1980 to 1983 agreement, and that its notice was
timely because it was given subsequent to the expi-
ration date of that agreement. The Employer fur-
ther argues that the existence of a renewal master
agreement covering 1983 to 1986 does not bar its
notice. The Employer maintains that if the renewal
agreement did bar its notice it could never termi-
nate the agreement because successive master
agreements would perpetually defeat the "subse-
quent notification" requirement.
The Respondent notes that the current 1983 to
1986 master agreement does not contain a provi-
sion for a midterm modification and argues that the
Employer is bound to its terms until 15 June 1986.3
The Respondent contends that the Employer, by
failing to give notice of its intent to terminate the
agreement within 5 days subsequent to 15 June
3 The Respondent submitted with its brief a copy of a purported
monthly report from the Employer to employee trust funds in support of
its contention that the Employer has been complying with certain terms
of the 1983 to 1986 master agreement The document, however, was not
part of the parties' stipulation of facts and we therefore have not consid-
ered it
1983, the termination date of the prior master
agreement,4 became bound to the 1983 to 1986
agreement for its entire term. Under the Respond-
ent's interpretation, the termination language of the
short-form agreement provides for a 5-day
"window" period after expiration of each succes-
sive agreement during which the Employer may
terminate that agreement. Thus, according to the
Respondent, the Employer's 23 March notice was
untimely as it was not within the applicable
"window" period, and the next such period will
not arise until the expiration of the 1983 to 1986
master agreement.
C. Discussion
All parties agree that the issue before the Board
is solely one of contract interpretation . The Board,
however , is not compelled to endorse any of the
parties' interpretations . As the Board stated in
NCR Corp.:5
. . . when "[a party ] has a sound arguable
basis for ascribing a particular meaning to his
contract and his action is in accordance with
the terms of the contract as he construes it,"
the Board will not enter the dispute to serve
the function of arbitrator in determining which
party 's interpretation is correct.6
We note in the present case that the General Coun-
sel and the Employer have significantly different
views as to which "appropriate" multiple-employer
agreement triggers the 5 -day notice provision, the
General Counsel contending that it was the expira-
tion of the 1975 agreement and the Employer con-
tending that it was the 1980 to 1983 agreement.
The parties also disagree as to the application of
the 5-day provision . The General Counsel and the
Employer argue that it means that the agreement is
terminated 5 days after notice is given at any time
subsequent to the expiration date of the "appropri-
ate" master agreement , whereas the Respondent
contends that notice must be given within 5 days
after the expiration date of the existing master
agreement.
We find that the termination provision of the
short-form agreement is ambiguous on its face and
4 The parties' stipulation of facts does not set forth the precise term of
the 1980 to 1983 master agreement Any discrepancy between the dates
noted by the Respondent and those noted by the Employer does not
affect our conclusion
5 271 NLRB 1212 (1984), quoting Vickers, Inc, 153 NLRB 561, 570
(1965)
6 We note that the short -form agreement provides that provisions in
the master agreements regarding grievance procedures or arbitration shall
not be binding on the parties , and states that in place of such provisions
the parties agree to meet and attempt to settle grievances and claims of
contract violation by direct negotiation
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the parties' differing interpretations of the ter-
mination provision are equally reasonable. We fur-
ther note the absence of extrinsic evidence as to
the precise meaning of the termination language or
the parties' intent at the time the short-form agree-
ment was executed. We conclude that, at the least,
the interpretation urged by the General Counsel,
on which the alleged violation is premised, has not
been established as the correct or indeed even the
only reasonable interpretation of the contract.? We
further note that there is no indication of any bad
faith on the part of the Respondent in refusing to
bargain based on its construction of the termination
provision. In all these circumstances, we find that
' We find Carpenters Local 743 (Armstrong & Smith Construction), 261
NLRB 425 (1982), and Wheeler Construction Co, 219 NLRB 541 (1975),
relied on by the General Counsel, inapposite here Neither case involved
the language present in this case Furthermore, in both cited cases the
Board found the express language was not ambiguous and relied on ex-
trinsic evidence concerning the parties ' intent in agreeing to such lan-
guage
the General Counsel has not established by a pre-
ponderance of the evidence that the Respondent,
by refusing to bargain with the Employer, has vio-
lated Section 8(b)(3) of the Act. Accordingly, we
shall dismiss the complaint.
CONCLUSIONS OF LAW
1. The Employer, Jack Hart Concrete Construc-
tion, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Respondent , Cement Masons , Local 627,
Operative Plasterers and Cement Masons Interna-
tional Association of the United States and Canada,
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The Respondent has not violated Section
8(b)(3) of the Act, as alleged.
ORDER
The complaint is dismissed.