Globe-Union, Inc.

GLOBE-UNION. IN('. Globe-Union, Inc. and Local 1116, International Union of Electrical, Radio and Machine Workers, AFL-CIO. Case 17 CA-8166 September 21, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY. AND TRt:ESDAI.E On May 24, 1979, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(bh) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its athor- ity in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,t and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaint be, and it hereby is, dismissed in its entirety. 'The Charging Party has excepted to certain credibility findings made bS the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Drv Wall Products. Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. In sec. III, D. of his Decision the Administrative Law Judge states that no general distribution of the third contract booklet has been made The record. however, indicates that union officials eventually distributed the btxoklet to its 230 members in 1978. The Administrative Law Judge's error. however. does not affect the result of our decision DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK, Administrative Law Judge: This is about a typing mistake in a collective-bargaining agree- ment which 2 years and one contract later the Company endeavored to correct. I find that effort is not an unfair labor practice. Procedurally the case originated with charges filed March 10, 1978. by Local 1116. International Union of Electrical, Radio and Machine Workers. AFL-CIO (the Union) against Globe-Union, Inc.. (Respondent or Corn- pany). Based on these charges a conmplaint issued April 19. 1978. alleging that Respondent had engaged unfair labor practices within the meaning of Section 8Xa)( I) anll (5) o1 the National abor Relations Act. as amended (the Act) b, altering the terms of' its collectise-bargaining agreement with the Union without notice to. or consullttion with. the Union. Respondent answered, denying it had altered the agreement or committed unitir labor practices, hut adiit- ting all other allegations of the cornplaint. F'he matter wkas tried belore me in Kansas ('it', Kansas. on August 29. 1978. Based on the entire record. including m,s observation ofI the witnesses and consideration of the hriefs filed h the parties. I make the lollowing: }:]Nl)tN(is [)| F." I 1. II n( ()'vPAN' Respondent. a corporation, operates a plant at St. Joseph. Missouri. for the manufacture of automobile hat- teries. It annually purchases goods and services valued at ov er $50,000 directl, trom sources outside Missouri Re- spondent is an emploer engaged in commerce within the meaning of Section 22). (6), and (7) of the Act. II. tilt tNION The Union is a labor organization within the meaning of Section 2(5) of the Act. It is the exclusive representative for collective-bargaining purposes within the meaning of the Act of all Respondent's production and maintenance em- ployees.' In early 1974 the Board certified the Uinion as the em- ployee representative. Ihereattcr the Union and the Conm- pany negotiated three successise collective-bargaining agreements. the first covering the period Jul, 25. 1974. through July 13, 1975: the second July 14. 1975. through July 15, 1977: and the third. which currentl in effect, July 18. 1977, to Julny 5. 1980. Ill. tIli AI. :(itl-) t NI-AIR I ABOR PRA( I (tS A. The Iethod of .Negoltiaing Sutwcc.s iive (otlralcls In negotiating their first agreement for 1974 75. the par- ties bargained and agreed upon all provisions of the con- tract. In negotiating their second agreement. however, the, negotiated only as to revisions and additions to the first agreement. Provisions of the first contract which were not changed in any way were simply incorporated into the sec- ond contract. A similar procedure was followed in negotiat- ing the third agreement fr 1977 1980. Revisions and addi- tions to the second agreement were negotiated. but those : The bargaining unit consilss o,f all production and maintenance emplos- ees employed by Respondent at its St Joseph. Missouri. aclit,. including group leaders. truckdrivers. and Janitors. hut excluding all office clericall em- ployees. quality control employees, professional emploecse, anllor-atch- men, guards, and supervisors as defined bs the Act IThis unit is ppropriate for collective hbargaining slihin he ineaning Ihe Act 245 NLRB No. 27 145 )lI( lsl(\S ()I Ns I ()IO I B()R Rl IO()NS t()ARE) Itlt1h CI t1 ii 1lc' isIl )be;llllc lpailt 1 tih Ihlill CoI)itl Ct In Ili t1111C. t 1ll t Il tlhe secI 1ld. 1 \ voliX',l.i , o / ic Seo(/ lid t'eri'cI'1l Ihe Initial algrcenient ctitined no prosisions imitiing pcrlrnitmnce of unit work b n onuniti personnel. A the fstltit iLego2iitlitls r the second agreement in April 197 , lilt Ilnion proposed a number t' changes including le itddition of'a nes secmon to article X in the following I ili )\cCs e\ctldcd1 11t l tle Ulit ill XrliCIC I SCC- I. I, l: not f icblnt IcLIaJ wkork of an', rineibei l tle thdlgltlHLn tlnli. I 1i ('oilulii did lot ;iCIept tilCe Plrolpos11. lit it shsc- lICIIllN tIle ;t toutIleirpro!nosl i tle olliis i lgultgie: SuIper' isis cuxclded front the unit i1 Aiticlc I. Section 1 sh11 lnIt perl ile regular ork ot'tan ilnetiber ot the h:rgaiting unil. hlis shall not he construed to pre- scnlt tiheni ftrom perltrilning operlations wshere an emer- geiln. ;rises for the purpose of inxestigastion or instruc- Iioin IhlS II IlaigeC was further re ised ill negotiations bh substi- tiitll) the , ord '"Inlphces'' ftlr "Supervisors'' in the first sillltCtc Nies of tle CO11p1lN itcgitiItOs indicateC that -irecintelt onl tIhis l;lIlgatIi e sas reacliedC oln it 3. 1975 \t that pint thile langug.e read s tollos: I 1lll)! ces xctllded r'onlm tilh unit in Article 1. Section 1.cxcept for janito' wtchelltil, hall not perform the iceilai ssork of ans member of the bhagaining unit. his shall not e Colstrued to precrut them 'roitl per- trliiiilig opertions ssheic an cemcrgcncN arises for the purlpos of investigaliol ol instruclltion. I here is no evidence o' urtlher ilegeotations or discussions respectinig that provision. O()n Jul 10(. 1975 the parties reached final agreement on all of, the revisions for the agreement. But no tped docu- ment then existed reflecting all of the changes. The com- pans neg otiatr collated his notes on he agreed revisions aid irranged or them to he tped and delivered to the Ilion For atilicalion h its memblhership. In the typed revi- sions the ssord "not" did not appear in the second sentence oif section 3 of' article X so that that provision in that docu- mient read as tIllows: tmployees excluded from the unit in Article I. Section I, except or janitor workmen, shall not perform the regular work o)f an, member of' the bargaining unit. This shall be construed to prevent them from perfiorm- ing operations where an emergency arises for the pur- pose of investigation or instruction. This documentation of the revisions was then ratified bh the union membership. On July 14. 1975, representatives of the tinion and ('ompany signed the document. 2 Norman Graf. now union president but then a member of the union negotiating teamrn testified in effect that the word "not" in the second sen- ience was absent from the language considered. But he was not the chief ot the union team and the weight of Ihe eilcnce indicates the word was in- cluded Subsequenls. a hooklet incorporating all the revisions. inludineI g tile )ne ju1st quoted, plus tle unchangled p1oxl - sions of tile first agreement as printed and distributed for geleral use. t lat point no question 'as raised about the ss ording of the second sentence of aticle X, .section 3. In ()ctoher 1975, ii re' iewing the printed booklet n ,I hired lalnt PIersonnel Manager Jhln ( lnlltnlens noted Mi hen he cnsidered an ambiuity in the second sentence of arlicle X. section 3. \fter conferring ith higher manage- nient he contaicted Carl Rouse, then union president, and also \Merle Arnold. then union ice president. nforming each that the ord "not" had erroneousl been onlmitted Iront the contract. Both agreed that an obvious error had occurred. lowever. nothing was done to clarift the matter during the balance of the second contract. ('. :'gi'otnlitr olhI/ 7/Third .1grcement In the negotiations which resulted in the third collective- bara;iin agreement in July 1977 the parties incorporated their agreed upon revisions of the second agreement in a tpewritten document. Ihese revisions were then presented to. and ratified by. the union membership. Following this representatives of the parties met. proofread the revisions. initialled each page. and signed duplicate copies of the document. These agreed upon revisions did not include an 3 revision of' sectioln 3 of article X. In ftict that provision was not treated in the negotiations. As with tile prior agreement. the ompany undertook to collate the new revisions with the old unrevised provisions into a printed booklet fr general distribution. Two or 3 weeks after agreement was reached on the third agreement. but prior to the printing of the booklet. C('lemmens in a conversationl with L:nion Presidentt Norman Graf and inter- national representative Ra! Stader. stated that the typo- graphical error in sectioln 3 f article X would be corrected in the printed booklet. (irat said. "I wondered when you were going to bring that up." According to Graf. whom I credit. he also stated that Clemmens had better not change anything that had been agreed to: that he had failed to bring up that article in negotiations. which were over, and that if he was going to bring it up he should have brought it up then and not after negotiations were finished. Around the end of October or the first of November 1977 the contract booklets were printed and delivered to the plant offices. An office secretary informed Graf of this and he picked up a bundle of 10 of the booklets that same day for proofreading by union officials. During the next few days G(raf completed his proofreading and noted that the word "not" had been inserted in the second sentence of section 3 of article X so that that section in the booklet read as follows: Employees excluded from the unit in Article I. Section I. except for janitor- watchmen, shall not perform the regular work of any member of the bargaining unit. his shall not be construed to prevent them from per- forming operations where an emergency arises for the purpose of investigation or instruction. This was the same language agreed to by the negotiators of the second collective-bargaining agreement on July 3. 1975. (I ()1[i-t NI(IN. IN(' U!pon discocring whli he considered to he an n;iccii- rac, in the printed hooklet in the fori of lthe insertion ot the word "not" ill the second sentence of section 3 of arlticle X, Graf in the first part of' Novenlher. telephoned John Allen. acting personnel manager of' the plant. telling him of the claimed error in the booklet. Allen said he would check into it. At Gratrs request he agreed not to distributi the booklet. So far as the record shows thex remain udllistrih- uted. The ('oempan gave li) response to the ITnilonl' clainl of inaccuracy until Januar\ 31. 1978. when M1analger of' I.ahor Relations 'dward Ross wrote Ironm corporate heafquarters in Milwaukee to international representa;ive Ra,, Stader. with a copy to (;raf' as president of the I.ocal. eplailling that the first contract contained no clause litil ting the per- formance of'"bargaining unit work". that such a cla use wkas, negotiated into the second contract and that through a tsp- ing error the word "not" was omitted: and finall! that al- though his notes reflected no discussion of the point during negotiation of the third contract. he was sure the point \was mentioned because the mistake was obvious. This explana- tion amounts to a reassertion that the word "not" should be included in the third contract as well as the printed booklet thereof. Not long after receiving the letter Stader. Gratf and an- other union representative conferred with Plant Manager Sheldon Strand. (raf asserted that the version in the printed booklet was not what had been agreed upon and that the subject w;as not discussed during the negotiations of the third contract. He further asserted that if ans changes were to be made they should be made in negotia- tions, but neither party had the right to insert something that was not agreed upon by both parties. Strand asked i' he wanted the booklets reprinted or if he wanted a flyer put in them or just what did he wish. Graf' indicated all he needed was an acknowledgment in writing from the Com- pany that the word "not" in the printed booklet was an error so that he could post something on the bulletin board for the information of employees. Strand indicated he thought things could be worked out and he would get back to Graf. It was, however, not worked out on that basis. On Febru- ary 23, 1978, Acting Personnel Manager Allen wrote to Graf in a manner plainly indicating the controversy still existed and suggesting that the Union submit it to arbitra- tion. Graf informed Allen he did not agree with the Compa- ny's position. On March 9. 1978. he wrote to the Company reviewing the history of section 3 of article X and demand- ing that the printed booklet be changed to conform with the language of the prior contract. He further demanded that the parties execute two copies of the complete agreement. He concluded by stating that the matter was not appropri- ate for arbitration; that unless the Company was willing to immediately execute the agreed upon contract, charges would be filed with the Board. The Company has not re- sponded to the March 9 letter. I). Discusionl The gravamen of the complaint is that in mid-November 1977 the Company altered a term of the collective-hargain- Iling algrlecilll ;ltd Illcrlc % tulillllic . ilx t.i;tl lgCd 1 cl ii .tl Col0lillol o!Cli' I llS illl ot il c'illplt5 -Cs B3ut tlhe (tiieFral (ISCc1l 1.ils l t11 sli II 1ail\ 11 ll. iIll thile ellplo,lllClll i t ti Cli lpoc,.!)lIcc. S1ll i III, I'cold sh'IlAs tile pertorllctice (orl iollpeltoll lti.nce) f1 t1lil \oil h , nionulit pelsilit i el co intllC I lOe i i g tel llc 1in ll ill. l , befhtre. he oln recenlt chlg so,,in. il ld tlis i Il i chinlge Ill the emplo nlenit of' the cilplose. 1 s li (oin Ollpil- seetlO O' art icle o ils pritlltIn o' ie Lhl c-t ltF, boiiklet and its lsisetllnc thatt I thlcl.s clrc Id I iil.li tellt tnilstaike rllC i 1975. It has done Ioll/ ti ig lhl il the ml;tter. No genleil dislrllitl 11111 lof il hooklelt h11s- l cerl Ill.ie. No cotllllllllCtIll o f t he (' Oill lls l posltlll 11a, hbeci alltinlpled to unit cnpllloc.e ()il thie toiitrlr\. the printed booklet cntiai1ting the cll i hiiii . itllh ted tilst to tunion offtticials tir appri xl. I h t Lioi d.ips - proved ailld nothing further his beei donic. W 'hateXcr its real terms are. the colirtact is susceptible of ch;ligec ni h the mutual assent of the parties. It is possible for olce pIlIr to) itate an agreeent.lel It is not possible lor tIl ;Igl''ellticiI to be unilalterall, altered. I ind. theretfre. that not orl hi1 the ('onipans not altered a term ;andlt condition ol crnpoll - meit as alleged. but that It has not acted unilatcrll Instead of a unilateral change in a teri and coiidition tl emploinelit. this recoid rcals a presenlt dlisalg-ieemlt be- tween the parties as to whether "not" should be Hticlutided I section 3 of article X. But that disagreenenit has nt ;tl;lai, existed. The weight of credible evidenlce shows that te lail- guage on which thes reached agreemen min 1975 included "nol" and that its ommission from the draflt rex isions signed at that time was an inadvertent error in i[pin. Fromn theni until the present disagreement the parties lied xid th the mistake unchanged. In the 1977 negotiations the maltter was not even discussed. It can he argued from tis that the parties therehb inferentials agreed on the pre-exisitinig al- beit erroneous, language. It seems to me more reasonlbhle to conclude that through mere neglect the pairties left the pre- vious mistake undisturbed. In these circumstances. I find that Respondent's attempt to correct the error in typing inadvertentl, made 2 ears before is not a violation of the Act. In pache Poider (ort- pun,. 223 NLRB 191 (1976) the Board observed "that re- scission fr unilateral mistake is. for obvious reasons a carefulls guarded remedy reserved fior those instances where the mistake is so obvious as to put the other part on notice of an error." I find that is the situation here. he mistake is obvious. The Company has been careful to notit' the Union of the error both before and after printiig the most recent contract booklet and has taken no further ac- tion. In my view there has been no violation of the Act and the complaint should be dismissed. Cot ( I t SitNS t)I Lx 1. Respondent is an emploier within the meanine of Sec- tion 2(2) of the Act and is engaged in commnerce within the meaning of Section 2(61 and i(7 of the Act. 2. The Uinion is a labor orgallniltion ithin the nicanlng of Section 2(i) o' the Act. I I I)ECISIONS 01: NATIONAL LABOR RELATIONS BOAR[) 3. Respondent did not in mid-November 1977 violate Section 8(a)(5) and (1) of the Act by inserting the word "not" in section 3 of article X of its printing of the collec- tive-bargaining agreement between the parties. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act. I hereby issue the following recommended: ORDER' The complaint is dismissed in its entirety. 'In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommend Order herein shall, as provided in Sec. 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. 148