Richard O'Brien Plastering Co.

National Labor Relations Board - Board Decisions

Jan 27, 1984

268 N.L.R.B. 676 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Richard O'Brien Plastering Company and Yocum
Plastering Company, Inc. and Locals 32, 58,
and 149, Operative Plasterers' and Cement
Masons' International Association. Cases 27-
CA-7446 and 27-CA-7448
27 January 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 18 February 1983 Administrative Law Judge
Gerald A. Wacknov issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and Respondents filed cross-excep-
tions, a supporting brief, and a memorandum brief
in response to the General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge:
Pursuant to notice, a hearing with respect to this matter
was held before me in Denver, Colorado, on November
9 and 10, 1982. The initial charges in Cases 27-CA-7446
and 27-CA-7448 were filed on August 3, 1981,1 by
Locals 32, 58, and 149, Operative Plasterers' and Cement
Masons' International Association (the Union or the Plas-
terers) and amended charges in these cases were filed on
August 26. Thereafter, on October 18, the Regional Di-
rector for Region 27 of the National Labor Relations
Board (the Board) issued a complaint and notice of hear-
ing alleging a violation by Richard O'Brien Plastering
Company, and Yocum Plastering Company, Inc., respec-
tively, O'Brien, Yocum or, jointly the Respondent of
I All dates are within 1981 unless otherwise specified.
268 NLRB No. 104
Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended (the Act). 2
The parties were afforded a full opportunity to be
heard, to call, to examine and cross-examine witnesses,
and to introduce relevant evidence. Since the close of
the hearing, briefs have been received from the General
Counsel and counsel for the Respondents.
Upon the entire record, and based on my observation
of the witnesses and consideration of the briefs submit-
ted, I make the following
FINDINGS OF FACT
1. JURISDICTION
The Respondents are Colorado corporations engaged
in the construction business, with their principal places
of business in the Denver, Colorado area. Each Respond-
ent annually provides services valued in excess of
$50,000 within the State of Colorado for contractors
who are directly engaged in interstate commerce within
the meaning of the Board's direct inflow standards. It is
admitted, and I find, that the Respondents are employers
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The principal issue raised by the pleadings is whether
the Respondents violated Section 8(a)(1) and (5) of the
Act by placing into effect certain unilateral charges prior
to a bargaining impasse.
B. The Facts
The predecessor contract expired on May 1, on which
date the Union commenced an economic strike, as the
parties were unable to agree upon the terms of continu-
ing the contract.3 Prior to the strike, there had been a
total of six negotiating meetings. The contractors4 were
satisfied with the language of the predecessor contract
which had been refined over a period of many years.
The Union initially desired major changes and additions
to the contract, and while the contractors would not
agree to any such proposed changes, the record shows
abundant discussion of the items presented by the Union.
2 The consolidated complaint contains the names of two additional Re-
spondents, namely, Nielsen Plastering Company and John D. Burke, Jr.,
Inc., and alleges that these Respondents committed the identical viola-
tions alleged to have been committed by Respondents O'Brien and
Yocum. However, the charges relating to Nielsen Plastering Company
and John D. Burke, Jr., Inc. were later withdrawn by orders dated Octo-
ber 27, 1981, and April 6, 1982.
3 There is a dispute regarding the parties' respective positions on con-
tinuing the terms and conditions of the predecessor contract. Apparently,
the contractors desired to continue the old contract without modification
until a new agreement was reached.
* There were approximately six or seven contractors, including the Re-
spondents herein, who belong to the Contracting Lathers & Plasterers
Association of Colorado and who, with the exception of Respondent
O'Brien, were bargaining simultaneously, but independently, with the
Union. Respondent O'Brien, while a member of the Association, bar-
gained individually with the Union. The meetings between O'Brien and
the Union were held on or about the same dates as the group meetings.
676
RICHARD O'BRIEN PLASTERING CO.
The record is clear that all parties understood that agree-
ment on wages was the keystone of reaching a total
agreement, and that the other items were secondary and
would "fall in place" when the wage issue had been set-
tled.
The Respondents, who had maintained a bargaining
relationship with the Union for a period of over 16
years, were interested in giving the Union what they
considered to be a reasonable wage increase, and the
wage issue played a predominant role in the negotiating
sessions on and after March 19. The two meetings prior
to March 19, namely, on February 16 and March 12,
were primarily concerned with noneconomic matters. At
the meeting on March 19, O'Brien offered an hourly
wage increase of $1.75, $1.52, and $1.67 for each year of
a proposed 3-year contract. This amounted to a 13-per-
cent increase for the first year, and a 10-percent increase
for the next 2 years. Yocum and the other contractors,
about the same period of time, were offering somewhat
less. s
The Union, on the other hand, was then committed to
a wage increase for the first year of the contract of $3.90
per hour. The reason for this is that the Union and the
Lathers Union were "competitors" in that their crafts
performed similar or related work, and apparently their
wages had historically been the same. However, as a
result of a recent merger between the Lathers Union and
the Carpenters Union," the Lathers commenced working
under an agreement previously negotiated between the
Carpenters Union and another Contractors Association.
Application of this contract to the Lathers brought them
wages considerably higher than those of the Plasterers
Union. Thereupon, the Plasterers commenced to insist on
a commensurate wage increase from the members of
Contracting Lathers and Plasterers Association.7
As noted above, the strike commenced on May 1.
With the commencement of picketing, the Respondents
herein, and apparently the other members of the Associa-
tion, were effectively shut down. Several bargaining ses-
sions were held between the advent of the strike and
May 15 with no agreement being reached. During the
meetings on May 7 and 14, the Union lowered its wage
demand to $3.75 per hour for the first year of the con-
tract. According to the testimony of Larry Tobin, Sr.,
the Union's business manager and chief negotiator, the
union membership had advised him that $3.75 was the
"bottom line." The separate letters sent to the Union by
the Respondents accurately set forth the parties' posi-
tions.
On May 14, O'Brien sent the following letter to the
Union:
I The record is unclear regarding the precise wage offer of the other
contractors at this time.
I See Sollari d Sons, Inc. 264 NLRB 282 (1982), for background infor-
mation regarding this merger.
7 Negotiations between the Contracting Lathers and Plasterers Asso-
ciation and the Lathers, apparently through the Carpenters Union, were
proceeding simultaneously. Although the record is not entirely clear, it
appears that while working for members of the Contracting Lathers and
Plasterers Association, the Lathers would be paid the lower wage rate,
and while working for members of the Gypsum Dry Wall Contractors
Association, they would be paid the higher rate.
As you know, we met in a bargaining session on
Thursday, May 14, 1981. This company gave you
our last and best offer. We made numerous conces-
sions and a combined wage and fringe benefit in-
crease of:
1981
1982
1983
$1.75
$1.52
$1.67
You flatly rejected our offer and held firm at S3.75.
It is clear that we are miles apart, and as we ac-
knowledge, at an impasse.
I suggested to you that you may wish to contact
FMCS. In any event, this company will resume bar-
gaining with you when and if there is an indication
on your part that you will present a reasonable pro-
posal.
In the meantime, we intend to keep operating, with
replacements if necessary.
On May 15, Yocum sent the following letter to the
Union:
In confirmation of our meeting on Thurday, May 7,
1981, concerning negotiations on a new agreement
with your Plasterers Local #32. At that meeting
you did reject our offer of 1.20-1.30 and 1.30 and
other proposals pursuant to a new agreement. On
Friday, May 15, 1981, I called you by telephone
and asked if your negotiating committee had recon-
sidered and you said, "No, you had not changed
your position on the offer." You further stated that
you had also rejected Richard O'Brien Plastering
Company's offer of 1.75-1.52-1.67 for three
years.
As stated at that first meeting and during our tele-
phone conversation, 8 I feel that we have nothing
further to talk about and have reached an impasse.
Further meetings would not be productive unless
Plasterers Local #32 does not make an effort to ne-
gotiate by coming to the bargaining table with fair
and reasonable demands.
The contractors, including Yocum and O'Brien, began
hiring employees following the strike, and apparently re-
sumed operations about the last part of May or early
June. Yocum began paying his employees $1 per hour
above the expired contract rate, and O'Brien began
paying his employees $1.75 above the expired contract
rate. In addition, the Respondents, and apparently the
other contractors who are no longer parties to this pro-
ceeding, began placing the employees' entire wages and
fringe benefits on their checks, rather than remitting the
fringe benefits to various contractual funds. It is clear
that paying all fringe benefits directly to the employees
rather than to the various trust funds had been O'Brien
and the other contractors' consistent proposal
I Yocum testified, without contradiction, that during this telephone
conversation with Tobin on May 15, Yocum verbally made the same
wage offer as O'Brien. This offer was similarly rejected by Tobin.
677
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
throughout many bargaining sessions prior to the unilat-
eral changes. Throughout June and July there was
wholesale disaffection by the union members, who re-
signed from the Union and returned to work for the var-
ious contractors.
There were additional negotiating meetings on June 2,
6, and 8. At the June 2 meeting, the Union reduced its
wage demand from $3.75 to apparently S2.90.9 No agree-
ment was reached at those meetings. The June 8 meeting
was very abbreviated, the Union walking in and abruptly
leaving upon being told that the contractors had no fur-
ther proposal.
About seven negotiating sessions were held between
June 8 and October 22, on which date an agreement was
reached, providing basically for the old contract lan-
guage and benefits and hourly wage increases for a 3-
year contract of apparently $2.35, $2.34, and $1.80.
Yocum and O'Brien have refused to enter into this agree-
ment. '10
C. Analysis and Conclusions
It is clear that the parties desired to reach an agree-
ment. There is no allegation that the Respondents com-
menced negotiations with an intent not to reach an
agreement or that they engaged in bad-faith bargaining
prior to the unilateral conduct alleged in the com-
plaint. " It is also clear that the Union was committed to
a wage increase far exceeding what the contractors con-
sidered feasible, and that the Union's demand was pre-
mised on the wage rate that members of another union
received from another contractors association. As coun-
sel for the General Counsel correctly summarizes in her
brief, the Union, from the beginning of negotiations,
wanted compatibility with the Lathers, their competitors.
All other issues, I find, although not unimportant, were
of secondary significance and were dependent on first
reaching an agreement on wages.
As of mid-May, after the strike had commenced, both
O'Brien and Yocum had given the Union what was de-
scribed as their final offer. 12 The Union, however, de-
spite whatever protestations that Tobin may have made
that there was room to negotiate,'3 was then unalterably
committed to an increase of $3.75 per hour, $2 per hour
more than the Respondents' final offer. I find that at this
point the Respondents reasonably concluded that, as they
stated to the Union in their respective letters, an impasse
had been reached because, absent a change in the
9 O'Brien said he "believed" this was the Union's wage proposal. Busi-
ness Agent Tobin testified that he could not remember the money figures
as of that date.
L0 One of the original Respondents. Nielsen Plastering Company, has
similarly refused to sign the agreement; however, as noted above, the
Union has withdrawn its charge against Nielsen.
" Although Business Agent Tobin testified that the contractors, in-
cluding the Respondents herein, refused to discuss the Union's proposals
or make counterproposals, the record shows that in fact all of the Union's
proposals were discussed, and that counterproposals were advanced by
the contractors.
is Indeed, O'Brien had made this identical offer on March 19, 1-1/2
months prior to the strike.
13 Tobin testified that he always refuted the contractors' repeated
claims that an impasse had been reached. O'Brien and Yocum, however,
testified that when they told Tobin that the parties were at an impasse, in
mid-May and June, Tobin acquiesced by his silence.
Union's position, which it steadfastly maintained, there
was no realistic possibility that continuation of discussion
would have been fruitful. Thus, I find, that the unilateral
changes which the Respondents made, commencing
about June 1,14 were not unlawful, as they were consist-
ent with the proposals clearly advanced to the Union
during bargaining. Taft Broadcasting, 163 NLRB 475
(1967), enfd. 395 F.2d 622 (D.C. Cir. 1968); Hi-Way Bill-
boards, 206 NLRB 22 (1973), revd. on other grounds 500
F.2d 181 (5th Cir. 1974); R. A. Hatch Co., 263 NLRB
1221 (1982).
In late June and thereafter, the parties discussed the
subject of union fines levied against members who
crossed the picket lines and returned to work. All of the
contractors, including the Respondents, were admittedly
concerned about this and attempted, to no avail, to get
the Union to rescind the fines. Contrary to the testimony
of Tobin, I find that at no time did the Respondents
herein condition entering into an agreement upon the
Union's agreement to nullify the fines. Rather, I credit
the testimony of various contractors, including Yocum
and O'Brien, who testified that, although the matter of
fines was of importance, there was no ultimatum that re-
scission of the fines was a condition of signing the con-
tract.
At no time did either of the Respondents refuse to bar-
gain further with the Union after the impasse, or defini-
tively raise lack of majority status as an issue. Rather,
the Respondents continued to meet with the Union
thereafter. Virtually all the Respondents' former employ-
ees returned to work during the strike, either prior to or
after resigning from the Union. Yocum testified that cer-
tain employees who returned to work indicated that they
were satisfied with the wage offer made to the Union by
Yocum, that they believed the Union's wage demand
was excessive, and that they had not wanted to strike in
the first place. No employees, according to the testimony
of Yocum, told him that they no longer desired to be
represented by the Union. O'Brien testified that he spoke
with 7 of 13 employees who returned to work. One em-
ployee told O'Brien that he was concerned that the
Union did not take back the Company's offer to the
membership "and that he felt the Union was not repre-
senting him to the best of his welfare." According to
O'Brien, each of the employees "basically ... said about
the same thing, to varying degrees."
I conclude that such statements of dissatisfaction do
not definitively show that the employees no longer de-
sired union representation. Additionally, O'Brien's con-
clusionary testimony regarding his employees' statements
is not sufficiently specific to warrant the conclusion that
a majority of his employees no longer favored the
Union. It appears that the Union's alleged lack of majori-
ty status was raised as an afterthought for purposes of
this proceeding, and was never advanced by the Re-
spondents as a reason for refusing to engage in further
negotiations. Rather, negotiations continued long after
14 The complaint alleges that the unilateral changes were made on or
about May I, the date of the contract expiration and the commencement
of the strike. However, it appears, and I find, that the changes were
made in late May or early June, after the impasse had been reached.
678
RICHARD O'BRIEN PLASTERING CO.
the Respondents resumed operations with replacements
or former striking employees. I find that the Respond-
ents' contentions in this regard are not substantiated by
the evidence. See Orion Corp., 210 NLRB 633 (1974),
enfd. 515 F.2d 81 (7th Cir. 1975); Petroleum Contractors,
250 NLRB 604, 607 (1980), enfd. 671 F.2d 496 (3d Cir.
1981); Landmark International Trucks, 257 NLRB 1375,
1383-84 (1981).
CONCLUSIONS OF LAW
1. The Respondents are employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondents have not violated the Act as al-
leged.
Based on the foregoing findings of fact and conclu-
sions of law and on the entire record, I issue the follow-
ing recommended
ORDER '
The complaint is dismissed in its entirety.
'6 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order herein shall, as provided in Sec. 102.48 of the Rules, be adopted by
the Board and all objections to them shall be deemed waived for all pur-
poses.
679