Ship Shape Maintenance Co., Inc.

National Labor Relations Board - Board Decisions

Dec 15, 1970

187 N.L.R.B. 289 (N.L.R.B. 1970)

SHIP SHAPE MAINTENANCE CO. 289
Ship Shape Maintenance Co., Inc. and Building
Service Employees International Union, Local 82,
AFL-CIO. Case 5-CA-4630
December 15, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
essentially the question whether Respondent, herein called
the Company, had reached certain agreements with the
Charging Party, herein called the Union, so that the
Company's refusal to execute the agreements violated
Section 8(a)(5) and (1) of the Act.'
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
General Counsel and by the Company, I make the
following:
On July 17, 1970, Trial Examiner Frederick U. Reel
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent , Ship Shape Maintenance Co., Inc.,
Washington , D.C., its officers , agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner 's recommended Order.
I Our adoption of the remedy rests, however, upon his finding, with
which we agree, that Respondent failed to execute contracts to which he
had orally agreed, and therefore we do not pass upon the Trial Examiner's
alternative recommendation that the same remedy would have been
applicable even if such agreement had not been reached
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, heard at Washington, D.C., on May 18
and 25, 1970, pursuant to a charge filed the preceding
January 16 and a complaint issued March 31, presents
I The complaint alleged a refusal to sign five such statements After the
close of the hearing Respondent signed two of the agreements and General
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company, a Maryland corporation, engaged in the
District of Columbia in furnishing custodial cleaning and
related services to a number of buildings, is an employer
engaged in commerce within the meaning of Section 2(6) of
the Act. The Westchester Corporation, 124 NLRB 194, 196.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. Background
For several years the Company has recognized the Union
as the statutory bargaining representative of the custodial
employees in various buildings in Washington to which the
Company furnishes janitorial services. Each building has
constituted a separate bargaining unit. At the time of the
events here in question there were nine such units, five of
which were originally involved in this litigation. Of the five
units involved, four had been covered by contracts which
expired late in 1969, and the fifth was a unit in which the
Union had won no contract had been consummated at the
time in question. Each of a Board election and had been
certified in the spring of 1969 but the contracts provided
that it shall "renew from year to year unless not less than
sixty days prior to an anniversary date . . . written notice
to the contrary is given by one of the parties to the other."
Negotiations for contracts and for renewals were
normally conducted on a rather informal basis between
Company President Netterstrom and Union President
Bailey at the office of either or even over the telephone.
Frequently renewals of several contracts which had a
common expiration date would be negotiated at the same
meeting. The subject normally at issue in these meetings
was wages, as the fringe matters (sick leave, holidays,
vacations) are, as Bailey testified, "standard fringes that
have been in one contract from one year to another."
Netterstrom apparently made an occasional unsuccessful
attempt to obtain changes in the checkoff and holiday
provisions. When agreement was reached on a wage
increase at a particular building, the practice of Bailey and
Netterstrom was to apply the same wage increase in the
case of other contracts scheduled for expiration in the near
Counsel moved to withdraw the complaint as to those two The motion,
unopposed, is herewith granted
187 NLRB No. 37
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
future ("within 30, 45 days, somewhere in that neighbor-
hood," according to Netterstrom's testimony).
B. The Meeting of August 15, 1969
Early in August 19692 Bailey telephoned Netterstrom,
suggesting they meet to discuss a contract for the newly
certified 12th Street unit and also to discuss two contracts
which had expired, covering two other buildings, one on
North Capitol Street and the other on K Street. The
meeting was held in Bailey's office on August 15
After some negotiations, the two men compromised on a
wage increase for 15 cents per hour over the rates being
paid at each of the three units. They also agreed that the
substantive provisions of the new contracts at North
Capitol Street and K Street would be the same as the
expired contracts, except for the increased wages, and that
the "fringe benefits" at 12th Street would be identical to
those in the other contracts . As Netterstrom testified, he
agreed to "just the same standard agreement we had with
them ," although he made an unsuccessful effort to
eliminate premium pay for certain holidays.
After the foregoing matters had been concluded,
Netterstrom, according to his own testimony, "mentioned
about other units that we would have up to the first of the
year coming open . . .." He asked Bailey if the Company
"could expect the same thing in other contracts that we had
that were coming up in the future ," explaining that he
"needed to know this for the purpose of passing on costs, if
possible, to our customers." Bailey thereupon named four
buildings in which contracts were expiring (three of them
on October 31, covering buildings on 17th Street, L Street,
and Massachusetts Avenue , and the fourth expiring on
December 31, covering a building on M Street), and in
reply to Netterstrom's question indicated that the Union
would expect the same 15 -cent increase in each building.
Netterstrom 's testimony on direct examination continues:
Q. When he told you what you could expect, did
you say anything in reply?
A. No, Dust said, "Well, can I rely on that?"
And he said , "Yes."
And I said, "Okay."
At this point there is a conflict in the testimony.
According to Bailey, Netterstrom said, "When it expires,
write them up," and Bailey agreed to do so. Owens, another
union representative who was present at the close of the
August 15 meeting, testified that after Bailey said "The
same 15 cents," Netterstrom responded, "Oh, what the hell.
Write them up" or words of similar import and "threw his
hands up." A few moments earlier, according to Owens,
Netterstrom , in asking what rates the Union would seek in
the remaining four buildings, said , ". . . there is no need
wasting time coming back here or you wasting time coming
up there." Netterstrom denied saying anything to the effect,
"Oh, hell, write it up and send it to me. There is no sense
coming down here anymore." He testified that when he
replied "Okay" to Bailey's statement that the Union would
request the same 15 cents, he meant merely that he had the
answer to his question. He testified that at that time he did
not agree in any way to new wage rates in the last four
buildings . He further testified , however , that he relied on
the anticipated 15-cent increase in subsequent negotiations
with his "clients" at two of those buildings.
C. Subsequent Relations Between the Parties
Bailey had given his secretary, Dorothy Harding,
standing instructions to send out over his signature, which
she was authorized to affix , notifications that a contract
was about to expire and that the Union requested a meeting
to negotiate a new contract . Harding was aware that such
notices should be sent out 60 days before the expiration
date . She was on vacation from Monday , August 18, until
Tuesday, September 2, 1969, and had not been apprised of
what transpired in the conversation between Bailey and
Netterstrom on Friday, August 15. Upon her return to work
on September 2 she noted that the contracts at the L Street,
17th Street, and Massachusetts Avenue buildings were due
to expire October 31 , and that the 60-day notices had not
been sent . She promptly sent the Company the usual notice
concerning those buildings , and signed Bailey 's name to the
letter , but Bailey himself did not become aware until some
time in December that this letter had been sent.
The Company made no response to the letter of
September 2 which it received less than 60 days prior to the
expiration of the three contracts in question . On the same
date , September 2, Bailey sent the Company the proposed
new contracts for the K Street and North Capitol Street
buildings , which had been agreed to on August 15,
continuing as to substantive matters (except for the
increased wages) the contracts which had expired the
preceding July. The Company did not execute these
contracts until November 28, on which date the Company
mailed the executed contracts to the Union. On December
I Bailey wrote the Company enclosing the proposed
contracts for four buildings , the three whose contracts
expired October 31 and that for M Street where the
contract was to expire on December 31. On December 8
company counsel wrote Bailey with respect to the contracts
which had expired October 31, stating that the written
notices to reopen were not timely served , and that
accordingly the three agreements in question had been
renewed for at least I additional year . The Company has
continued to adhere to this position , and this litigation
ensued.
Bailey testified that he expected the new rates would go
into effect at the three buildings in question on November
1, and that they would be reflected in wages received in
mid-November . He learned about the third week in
November that the new wages were not being paid, and a
week to 10 days later forwarded the agreements to
Netterstrom for signature . Bailey attributed his tardiness in
submitting the written contracts to "pressing business" and
to the fact that " I was dealing with I thought a responsible
employer." On one previous occasion, involving a different
employer , the Union's failure to submit timely notice led to
an automatic renewal of a contract . However, in the instant
case the Union apparently did not give written notice with
2 All dates subsequently mentioned herein refer to the year 1969 unless
otherwise indicated
SHIP SHAPE MAINTENANCE CO.
respect to the M Street contract which expired December
31, 1969 (which, of course, is consistent with Bailey's theory
that agreement as to that building had been reached on
August 15), and according to company counsel the
Company did not receive a proposal on that building until
December 1, but the Company raised no issue as to the lack
of a 60-day notice and put the new rates into effect. After
the close of the hearing the Company signed contracts
covering the M Street and 12th Street buildings.3
D Concluding Findings
The issue between the parties lies in narrow compass' did
the discussion between Bailey and Netterstrom on August
15 concerning the buildings in which contracts expired the
following October 31 obviate the necessity of the Union's
giving written notice to the Company by September 24 of
the Union's desire to change the wage rates in the contract.
If the question were an ethical or moral matter, it would
not be difficult to decide. Netterstrom admitted giving the
15-cent wage increase in the buildings in which contracts
expired in July and December 1969, and in the building in
which the Union had recently become the bargaining
representative. Other substantive provisions in the con-
tracts are uniform throughout the buildings in which the
Company deals with the Union, and were continued
unchanged in the 1969 renewals. Moreover, Netterstrom
admitted relying on the 15-cent increase in negotiating his
rates with building owners in two of the four buildings
which were the subject of his closing discussion with Bailey
on August 15 here under scrutiny. In considering the legal
aspects of the case, however, note must be taken of
Netterstrom's testimony that he had not agreed in any way
to wage rates for any buildings except those on the original
"agenda" of that meeting. He further testified that when he
asked Bailey what wage rates the Union would want at the
buildings where contracts would expire later in the year and
Bailey replied that the Union would want the same 15-cent
increase, his (Netterstrom's) reply of "Okay" did not signify
agreement but merely that he had the answer to his
question. What must be decided here are questions of law
and fact, not questions of morality.
The primary fact in dispute is whether Netterstrom, after
hearing that Bailey would ask for the same 15-cent increase
in the remaining 1969 contracts, told Bailey to "write them
up," thereby implying that he was satisfied and would sign
the agreements. The quoted phrase is attributed to
Netterstrom by both Bailey and Owens, but is denied by
Netterstrom. Owens even added the colorful detail that
Netterstrom "threw his hands up" and used a mild
expletive to mark his concession or agreement. Unfortu-
nately for the trier of fact forced to choose among such
conflicting tales, all three men are interested witnesses, and
their demeanor in their brief respective sojourns on the
witness stand afforded little clue as to either their veracity
3 These contracts, attached as exhibits to the Company's brief, are for (-
year terms The preceding contract at M Street was for a 2-year term The
preceding contracts at the remaining three buildings were for 2-year terms,
but the proposed contracts, attached as exhibits to the Company's brief,
are for 1-year terms The original charge alleged that agreement had been
reached on I-year contracts at all five locations On the entire record, and
particularly in the light of the change to a 1-year term reflected in the two
M Street contracts, and the execution of a I-year contract at 12th Street, I
291
or the comparative accuracy of their memories. As to their
subsequent conduct, it may be said that Bailey's was
consistent with his theory that agreement had been reached,
while Netterstrom's, insofar as he relied on the 15-cent
increase in negotiating with his customers, is somewhat
inconsistent with his testimony that he left that meeting
without agreeing in any way to those rates.
Beyond all this, however, the sense of the situation seems
to me to render the Bailey-Owens version more accurate
than Netterstrom's denial. Negotiations in the past had
been conducted on a relatively informal basis. The only
subject which normally produced any controversy in their
negotiations was wage rates. They had just concluded
satisfactory negotiations covering wages for several build-
ings in the city, and had agreed (despite Netterstrom's
suggestion to cut back on paid holidays) to continue in
effect in the new contracts all the other substantive
provisions of the expiring agreements . The contracts at the
three buildings here in issue (the M Street matter no longer
concerns us; see fn. 1, supra) were due to expire October 31,
and Netterstrom, as he testified, raised the question of the
rates for those buildings for his own legitimate economic
purposes It seems entirely reasonable for him to have said,
as Bailey and Owens testified, "Write them up," signifying
his readiness to accept the same contract at those buildings
that he had just concluded for several others. I therefore
find and conclude that at the August 15 meeting
Netterstrom orally accepted Bailey's proposal for the new
contracts at the L Street, Massachusetts Avenue, and 17th
Street buildings, and that the Company's later refusal to
execute those contracts violated Section 8(a)(5) and (1) of
the Act.
Finally, even if I am in error as to whether agreement was
reached as to those contracts at the August 15 meeting, the
record admits of no doubt but that Netterstrom at that time
invited and received a union proposal for wage changes at
those locations after the expiration of the existing
agreement. Under those circumstances I find that the
Company, having already commenced negotiations 75 days
before the expiration date, waived the contractual require-
ment for a 60-day written notice. It follows under this
approach that the Company was guilty of a refusal to
bargain with the Union in December when the Company
took the position that the contracts had automatically
renewed. Under this approach, of course, the matter
remained "bargainable," but as a remedy for the refusal to
bargain I would recommend the payment of wages due
under the agreements submitted by the Union, for the
record shows that wage increases granted in one building
were customarily extended to others in which contracts
expired at or about the same time . Here the record shows
15-cent increases as of September 1 on 12th Street and as of
January 1 on M Street. A similar increase to remedy the
refusal to bargain as to the three buildings where contracts
find that the parties, on August 15, agreed that their contracts for the
forthcoming year would be I-year contracts
4 The contracts were effective November 1, 1967 The renewal clause
refers to written notice given "not less than 60 days poor to an anniversary
date of this Agreement " The "anniversary date" is November 1, and 60
days prior thereto is September 2 (31 days in October plus 29 days in
September) Netterstrom received the September 2 letter on September 4 or
5
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expired October 31 would therefore appear proper. See
International Union of Electrical Radio and Machine
Workers v. N.L.R.B. (Ttidee Products, Inc.), 426 F.2d 1243
(C.A.D.C.).
CONCLUSION OF LAW
Respondent by refusing to execute the agreements
submitted to it on December 1, 1969, covering the
Massachusetts Avenue , L Street, and 17th Street buildings,
and by adhering to the position that the Union had failed to
give timely notice of a desire to negotiate with respect to the
contracts at those buildings , engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(5) and ( 1) and Section 2(6) and (7) of the Act.
THE REMEDY
I shall recommend that the Company execute the
agreements in question and abide by their terms for the
period commencing November 1, 1969. This, of course,
does not preclude either party from bargaining for changes
in such agreements at any time such bargaining would
otherwise be appropriate. If, for example, those contracts
would have expired prior to the tame of compliance with
this Recommended Order, the parties would be free to
bargain at an appropriate time for the subsequent period. It
is the intent of this Recommended Order to treat those
contracts as legally in effect as of November 1, 1969. As
noted above, even if I were to find that agreement had not
been reached on August 15, 1969, 1 would find a refusal to
bargain in December, and would recommend as a remedy
therefor (under the Tudee case) the payment of a 15-cent
wage increase to all affected employees, effective Novem-
ber 1, 1969, and continuing at least until the parties bargain
in good faith to a contract or an impasse. Finally, as these
wage rates should have been placed in effect on November
1, 1969, I recommend that interest be paid on the unpaid
wages under the formula set forth in Isis Plumbing &
Heating Co., 138 NLRB 716. See N.L.R.B. v. Huttig Sash &
Door Co., 362 F.2d 217, 220 (C.A. 4, 1966).
Accordingly, upon the foregoing findings and conclu-
sions and upon the entire record in this case, I recommend,
pursuant to Section 10(c) of the Act, issuance of the
following:
ORDERS
Respondent Ship Shape Maintenance Co., Inc., its
officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Building Service
Employees Union, Local 82, affiliated with Service
Employees International Union, AFL-CIO, as the exclu-
sive bargaining representative of
All maids, porters, charwomen, scrubbers, and waxers
employed by Respondent at 1900 L Street, N.W.,
Washington, D.C., excluding office clerical employees,
guards, and supervisors as defined in the Act
All maintenance employees employed by Respondent
at Thomas House, 1330 Massachusetts Avenue, N.W.,
Washington, D.C., including porters, maids, charwom-
en, scrubbers, and waxers excluding all clerical
employees and supervisors as defined in the Act
All porters, maids, charwomen, scrubbers, and waxers
employed by Respondent at 808 17th Street, N.W.,
Washington, D.C., excluding office clerical employees,
guards and supervisors as defined in the Act
with respect to rates of pay, wages, tenure of employment,
or other conditions of employment.
(b) In any like or related manner interfering with the
efforts of the above-named labor organization to bargain
collectively on behalf of the employees in the above-
described units.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Execute the contracts covering the above-named
buildings which the Union sent the Company on December
1, 1969, and make such contracts effective as of November
1, 1969.
(b) Make whole its employees, in the manner set forth in
the section of the Trial Examiner's Decision captioned
"The Remedy," for all losses sustained by them as a result
of Respondent's failure to implement the new wage rates on
November 1, 1969.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Recommended Order.
(d) Post at the office buildings involved herein copies of
the attached notice marked "Appendix."6 Copies of said
notice, on forms provided by the Regional Director for
Region 5, after being duly signed by Respondent's
representatives, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by 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 receipt of this Decision, what steps
have been taken to comply herewith.?
S In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and recommended Order herein
shall, as provided in Section 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
6 In the event that the Board 's 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
r In the event that this recommended Order is adopted by the Board,
this provision shall be modified to read - "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
SHIP SHAPE MAINTENANCE CO.
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 with
Building Service Employees Union, Local 82, affiliated
with Service Employees International Union,
AFL--CIO, as the exclusive representative of our
building maintenance employees in the following
buildings:
1330 Massachusetts Avenue, N.W.
808 17th Street, N.W.
1900 L Street, N.W.
WE WILL sign the contracts covering those buildings
which the Union submitted to us on December 1, 1969.
WE WILL pay the wages called for in those contracts
293
effective November 1, 1969, with interest at 6 percent
per year on all back wages due under those contracts.
Dated By
SHIP SHAPE MAINTENANCE
Co., INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Federal Building, Room 1019, Charles Center, Baltimore,
Maryland 21201, Telephone 301-962-2822.