Application of National Labor Relations Board for enforcement of its order requiring respondent to, inter alia, execute upon the union's request a written contract incorporating terms previously agreed to by the parties. Enforced as modified.
Before Smith,*fn* Feinberg, Circuit Judges, and Gagliardi, District Judge.*fn**
The National Labor Relations Board applies for enforcement of its order issued against respondent, Midvalley Steel Fabricators, Inc. In a decision and order reported at 243 N.L.R.B. No. 83 (1979), the Board found that Midvalley had violated sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (5), by refusing to execute an agreed-upon collective bargaining agreement, by shifting its position on previously agreed-upon terms and by refusing to bargain in good faith. The Board ordered respondent, among other things, to execute the collective bargaining agreement upon the request of the bargaining agent for the Midvalley employees, Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Union). The central issue before us is whether substantial evidence on the record as a whole supports the Board's findings. For reasons given below, we answer that question in the affirmative, and we enforce the Board's order, modified to reflect the bargaining unit stipulated to by the parties.
In January 1978, the Board issued a complaint charging that Midvalley had violated sections 8(a)(1) and (5) of the Act, 29 U.S.C. §§ 158(a)(1) and (5). After a hearing, the Administrative Law Judge (ALJ) made the following findings of fact: Joseph Charla, Jr., was at all relevant times the president of Midvalley, a small structural steel fabrication plant. As president of another steel fabrication plant, the Joseph Charla Iron Works, Inc. (Charla Iron), Charla had negotiated and signed a number of collective bargaining agreements with the Union over a twenty-year period; during many of those years, the Union representative in all negotiations with Charla Iron was William Colavito. Early in October 1977, the Union began a campaign to organize the employees of Midvalley. Colavito met with Charla late in October and requested that the Union be recognized as the collective bargaining agent for Midvalley's employees; Colavito offered to prove that a majority of the employees had signed authorization cards, but Charla indicated that such proof was unnecessary and acquiesced in the Union's claim.
Over the next few weeks, Colavito and Charla met on numerous occasions to discuss the terms of a collective bargaining agreement; no other persons were present during these meetings. At a meeting on October 31, 1978, Colavito proposed that Midvalley employees be paid at rates lower than those paid to employees in the New York City area who were covered by the Union's Standard Independent Contract (Standard Contract); Charla promised that he would study this proposal, as well as the Union's proposals relating to vacations, sick leave and severance pay. Two meetings followed at which the parties sought to work out a satisfactory wage differential; they also discussed modifying the provisions of the Standard Contract concerning holidays, pay for Saturday work and seniority. On November 8, Colavito made another proposal concerning wage rates. Charla agreed with the proposal and then said, "Fine, let me get ahold of my attorney and we'll set up a meeting, you get ahold of your attorney and we'll clean it up." Charla also requested two copies of the current Standard Contract for his attorney; Colavito delivered these copies on November 10.
Prior to their next meeting, Colavito telephoned Charla and suggested that he would prepare a draft of contractual provisions upon which they had agreed in order to save time at their next session. Charla responded that this was "Fine . . . ." On November 12, Colavito gave Charla a copy of the handwritten draft agreement Colavito had drawn up, and asked Charla to read it over for mistakes or omissions. Having done so, Charla acknowledged that the agreement seemed satisfactory; he also told Colavito that if he found "any mistakes or anything missing" he would call by the evening of the following day. Not having heard from Charla, Colavito called him on November 14; Charla told him that his attorney was still out of town. Charla spoke to Colavito on November 17 and told him "You're not going to like what I'm going to tell you, there are four points that I'm going to have to change." The four changes Charla wanted were: exclusion of truck drivers from the bargaining unit; revision of pay rates; elimination of the pension provision; and a different termination date for the contract. Colavito protested these changes, but agreed to meet with Charla.
The parties met again on November 19. Colavito acceded to Charla's demands to eliminate drivers from the unit and to revise the termination date; he refused, however, to change the pay rates or the pension plan because Charla already had agreed to these provisions. Colavito pointed out that these terms were incorporated in the November 12 draft agreement, and that Charla had never tendered any objections to the draft either on that date or later. Charla's only response was that "I never shook your hand." Charla suggested that they meet again on November 21, at which time the positions of the parties remained unchanged. Subsequently, the Union filed charges with the Board.
Since respondent does not dispute the foregoing findings of fact, we simply note that there is ample basis for them in the record. Colavito, the Board's principal witness at the hearing, testified as to the events related above and was extensively cross-examined by counsel for Midvalley. In contrast, Charla, who was Midvalley's single witness, testified only as to his name, address and position with Midvalley. Consequently, Colavito's testimony was uncontradicted. The ALJ found Colavito to be "a frank and forthright witness" whose testimony was "a substantially accurate account of what transpired in his numerous meetings with Mr. Charla."
Respondent does dispute, however, the inferences the Board drew from the ALJ's findings of fact. Like the ALJ, the Board concluded that on November 17 Midvalley shifted its position on previously agreed-upon terms, thereby violating sections 8(a)(5) and (1) of the Act. Similarly, both the ALJ and the Board found that Midvalley's conduct subsequent to that date was in derogation of its obligation to bargain in good faith. But in contrast to the ALJ, the Board also found that Midvalley had agreed to all of the terms of the draft contract submitted by the Union on November 12, and that therefore respondent's failure to execute the contract was in violation of sections 8(a) (5) and (1). Respondent contends that the Board's conclusions are not supported by substantial evidence on the record as a whole. We disagree.
The record leaves no room for doubt that, as both the Board and the ALJ found, Midvalley shifted its position on agreed-upon terms on November 17 and thereafter failed to bargain in good faith. Midvalley takes the position that the discussions between Charla and Colavito were to be "off the record," and that any agreement reached was to be subject to the approval of Midvalley's attorney. Midvalley also contends that Colavito and Charla never agreed on any terms at all; instead of a meeting of the minds, there was simply a series of offers and counteroffers, none of which were accepted. These arguments are contrary to the evidence.
We turn first to the contention that these meetings were "unofficial" in that no attorney was present. Prior to the parties' first meeting, Colavito suggested to Charla that they negotiate without attorneys; Charla concurred in this suggestion, noting that "Attorneys cost a lot of money anyway." Neither then nor at any other time did Charla indicate that any agreement he made would be subject to the approval of Midvalley's counsel; indeed, such a reservation would have defeated the purpose of meeting without attorneys in the first place. Not until November 8 did the subject of attorneys come up again. At the meeting on that date, Charla and Colavito agreed upon certain terms; Charla then proposed that the parties contact their respective attorneys for the purpose of setting up a meeting at which they could "clean it (the contract) up." While it is true that Charla requested two copies of the Standard Contract for his attorney, this is not inconsistent with the view that attorneys would play only a limited role in these negotiations, as the Board argues to us; the contract was to be submitted to the attorneys for "cleaning up," not for modification or approval of its substantive terms.
The evidence similarly belies the argument that the parties failed to agree on any contract terms whatsoever. On November 8, according to Colavito's uncontradicted testimony, Charla agreed to the Union's proposed reduced wage rate. On November 12, Colavito gave Charla a draft of those terms he believed that the parties had agreed to; Charla read the draft and indicated that it seemed "all right." Moreover, he did not call Colavito on November 13, as he had said he would if he found "any mistakes or anything missing." We agree with the Board that this conduct entitled the Union to conclude that respondent had committed itself to the terms set forth in Colavito's draft. That the parties ...