298 N.L.R.B. 811 (N.L.R.B. 1990)

Rashid Construction Co., Inc.

National Labor Relations Board - Board DecisionsJun 18, 1990

298 N.L.R.B. 811 (N.L.R.B. 1990)

I RASHID CONSTRUCTION CO Rashid Construction Company, Inc. and Connecticut Laborers' District Council of the Laborers' International Union of North America, AFL- CIO. Case 34-CA-4301 June 18, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY Upon a charge and amended charge duly filed by the Union, the General Counsel of the National Labor Relations Board by the Acting Regional Di- rector for Region 34 issued a complaint and notice of hearing dated June 29, 1989, and an amended complaint and notice of hearing dated December 13, 1989. The complaint and amended complaint allege that the Respondent engaged in certain unfair labor practices within the meaning of Sec- tion 8(a)(1) and (5) of the National Labor Relations Act. About December 26, 1989, the parties entered into a stipulation of facts and jointly petitioned the Board to transfer this proceeding directly to itself for findings of fact, conclusions of law, and the is- suance of a decision and order. The parties stipulat- ed that they waived a hearing before an administra- tive law judge, the making of findings of fact and conclusions of law by an administrative law judge, and the issuance of an administrative law judge's decision. The parties also agreed that the charge, first amended charge, complaint, amended com- plaint, answer, amended answer, answer to amend- ed complaint, and stipulation of facts constitute the entire record in this case and that no oral testimo- ny was necessary or desired by the parties. On January 29, 1990, the Board issued its Order approving the stipulation and transferring the pro- ceeding to the Board. Thereafter, the General Counsel and the Respondent filed briefs in support of their respective positions. On April 2, 1990, the General Counsel filed a motion to strike portions of Respondent's brief. On April 13, 1990, the Re- spondent filed an opposition to the General Coun- sel's motion to strike. Also, on April 13, 1990, the Respondent filed a motion to strike portions of General Counsel's brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the stipulation, the briefs, the motions," the entire record in this pro- ceeding, and makes the following I The General Counsel's motion to strike portions of Respondent's brief is granted to the extent that the Respondent's statements differ from the stipulation of facts. The Respondent states "Rather, the only ration- FINDINGS OF FACT I. JURISDICTION 811 Rashid Construction Company, Inc., the Re- spondent, is a Connecticut corporation with an office and place of business in Hartford, Connecti- cut, and has at all times material been engaged in the management of construction projects. During the 12-month period ending May 31, 1989, the Re- spondent in the course and conduct of its business operations provided services valued in excess of $50,000 for Hartford Hospital, an enterprise within the State of Connecticut that is directly engaged in interstate commerce. The parties stipulated, and we find, that the Respondent is now, and at all times material has been, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. The parties stipulated, and we find, that the Union is now, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Facts On or about January 31, 1980, the Respondent entered into an acceptance agreement wherein it adopted the 1977-1981 collective-bargaining agree- ment between the Union and the Labor Relations Division, the Associated General Contractors of Connecticut, Inc. (AGC).2 By the terms of the 1980 acceptance agreement, the Respondent is bound by any successor collective-bargaining agreements between the Union and the AGC unless the Respondent or the Union properly termi- ale given by the Union to the Respondent for the signing of this revised declaration of trust involved compliance with federal pension laws In order to accommodate the Union's concerns regarding these pension issues, the Respondent agreed to sign a separate document binding it to contribute to the Union's pension fund." Nothing in the record indicates the Union's reason for requesting the Respondent to sign the revised dec- laration of trust (referred to infra as an updated acceptance agreement) Further, the parties stipulated that the Respondent agreed to sign a docu- ment binding it to contribute to the Union's "fringe benefit fund," rather than to the Union's "pension fund " The Respondent's motion to strike portions of General Counsel's brief is granted to the extent that the General Counsel's statements differ from the stipulation of facts The General Counsel states: "Rather, Respondent stubbornly and defiantly refused to sign either the contract itself or the updated acceptance agreement " Nothing in the record indicates that the Respondent refused to sign the contract or that the Union requested it to sign the contract 2 The Respondent has never been a member of the AGC The parties stipulated that the Respondent granted recognition to the Union as the exclusive collective-bargaining representative of the employees in the fol- lowing appropriate unit without regard to whether the majority status of the Union had ever been established under the provisions of Sec. 9(a) of the Act All laborers employed by Respondent but excluding all other em- ployees, office clerical employees, professional employees, guards and supervisors as defined in the Act. 298 NLRB No. 117 812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nates this obligation. Since the 1977-1981 collec- tive-bargaining agreement expired, the Union and the AGC have been parties to four successor agreements with the most recent running from April 3, 1989, through March 31, 1991. The Re- spondent admits that it is bound by each of these agreements. The parties stipulated that from on or about January 31, 1980, to March 17, 1989, the Re- spondent has complied with all terms and condi- tions of each of these agreements. Since on or about March 17, 1989, the Union has requested that the Respondent execute an updated acceptance agreement. Since on or about March 29, 1989, the Respondent has failed and refused to execute the updated acceptance agreement. The updated acceptance agreement contains four additions to the 1980 acceptance agreement. The first states that if there is a disparity between the collective-bargaining agreement and the updated acceptance agreement, the updated acceptance agreement prevails. The second addition states that the updated acceptance agreement is not affected by any consolidation, sale, transfer, assignment, joint venture, or any other combination or disposi- tion of the Company, if the Respondent maintains significant ownership, management, or control. The updated acceptance agreement also adds a require- ment to contribute to the Connecticut Laborers' Annuity Fund. The last addition requires contribu- tions from net pay to the Laborers' Political League in accordance with an employee's written authorization. Since on or about March 29, 1989, the Respond- ent has offered to sign a document obligating it to make payments into the Union's fringe benefit fund. By letter dated July 14, 1989, the fringe bene- fit fund notified the Respondent that, pursuant to the Union's instructions, it would no longer accept the Respondent's contributions. The Respondent has not signed any of the collective-bargaining agreements referred to above or any acceptance agreement other than the 1980 acceptance agree- ment. B. Discussion The narrow issue here is whether the Respond- ent must execute the updated acceptance agree- ment. Section 8(d) of the Act explicitly requires a party to execute a written contract incorporating any agreement reached if requested by the other party. H. J. Heinz Co. v. NLRB, 311 U.S. 514 (1941); Midvalley Steel Fabricators, 243 NLRB 516 (1979), enfd. as modified 621 F.2d 49 (2d Cir. 1980). However, neither party is required to sign an agreement containing terms not previously agreed on. Pacific Coast Metal Trades Council (Foss Shipyard), 260 NLRB 1117, 1119 (1982). The Respondent agrees that it is bound by the collective-bargaining agreements, but contends that it is not obligated to sign the updated acceptance agreement, because it contains lengthy and substan- tive additions to which the Respondent has not agreed. The General Counsel contends that the Re- spondent is bound by all successor collective-bar- gaining agreements, and that the Respondent does not contend that the updated acceptance agreement alters its obligations under the collective-bargaining agreement. The General Counsel also contends that it is not significant that the Respondent was asked to sign an updated acceptance agreement as op- posed to the collective-bargaining agreement be- cause this was the vehicle used to establish the par- ties' relationship and it memorializes the continued association. To support his position, the General Counsel relies on, inter alia, Heinz, 311 U.S. at 523- 526; Midvalley Steel, 243 NLRB at 516; and Casci Decorators, 289 NLRB 1408 (1988). We disagree with the General Counsel. The cases relied on by the General Counsel involved an employer's refusal to execute a collective-bargain- ing agreement that the employer itself or a multi- employer association on the employer's behalf had bargained over and agreed on. Here, the updated acceptance agreement contains terms that differ from the acceptance agreement executed in 1980 and that appear to revise the basis on which the Respondent accepted the collective-bargaining agreements agreed to by the Union and the AGC. The General Counsel has not alleged or shown that the Respondent has agreed to these revised terms. In the absence of such agreement, the Re- spondent is not obligated to execute the updated acceptance agreement. Accordingly, we find that the Respondent has not violated Section 8(a)(5) and (1) of the Act by failing to execute the updated acceptance agree- ment. We, therefore, dismiss the complaint. CONCLUSION OF LAW The Respondent did not violate Section 8(a)(5) and (1) of the Act. ORDER The complaint is dismissed.