Electrical Workers Ibew Local 952 (D & R Electric)

ELECTRICAL WORKERS IBEW LOCAL 952 (D & R ELECTRIC) 319 Electrical Workers Local Union 952, International Brotherhood of Electrical Workers and D & R Electric, Inc. Case 31 -CB-5370 30 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On the basis of a" charge filed by D & R Electric, Inc., hereafter the Employer, on 18 November 1983, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 31, issued a complaint against Electrical Workers Local Union 952, International Brother- hood of Electrical Workers, hereafter the Respond- ent, on -30 January 1984. The complaint alleges that, since on or about 13 July 1983, the Respond- ent has violated Section 8(b)(3) of the Act by refus- ing to meet with the Employer for the purpose of negotiating or discussing the terms of a collective- bargaining agreement. The Respondent filed an answer to the complaint on -3 February 1984 in which it denied the commission of any unfair labor, practices. On 4 April 1984 the parties entered into a stipu-' lation to transfer this proceeding to the Board and they agreed that certain documents would consti- tute the entire record herein,' "waived all interme- diate proceedings before an - administrative law judge, and submitted this case directly to the Board for it to mmake' findings of fact and conclusions of law and the issuance of its Decision and Order. On 12 July 1984 the Board approved the stipulation and set a date for the parties to file their briefs. The General Counsel filed a brief and the Re- spondent sent a telegram in lieu of a brief. The Board has. considered the entire record, as stipulated to by the parties, as well as their briefs, and makes the following" " FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER - customers or business enterprises within the State of California, which customers or business enter- prises themselves meet one of the Board's jurisdic- tional standards, other than the direct inflow or direct outflow standard. The parties stipulated, and we find, that the Employer is, and at all material times has been, an employer engaged in commerce within -the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that the Re- spondent is, and at all material-times has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts D & R Electric, Inc. is an electrical construction company located in Ventura, California. The Re- spondent has been the recognized bargaining agent of a unit consisting of D & R's cable splicers, ap- prentices and journeyman wiremen,2 hereafter the Employer's employees, since 21 May 1968. On that same date D & R executed a Letter of Assent bind- ing it to all the terms and conditions of the collec- tive-bargaining agreement then in effect between the Respondent and the Ventura Electrical Con- tractors Association, hereafter the Association, ef- fective beginining 1 July 1968. The Letter of Assent stated, inter alia, that: In signing this Letter of Assent the under- signed firm does hereby authorize Ventura Electrical' Contractors Association as its col- lective bargaining representative for all matters contained in this agreement or pertaining to this agreement. This authorization to Ventura Electrical Contractors Association shall remain in effect until terminated by written notice to the parties to the aforementioned agreement thirty (30) days prior to the notification date provided for therein. The Employer, D &"R Electric, Inc., is now and has been at all material times a corporation duly organized under and existing by virtue of the laws of the State of California with an office and princi- pal place of business located in Ventura, California, where it is engaged in electrical construction work. During the past 12 months, the Employer, in the course and conduct of its business operations, sold goods or services valued in excess of $50,000 to ' The parties agreed that the complaint and notice of hearing, answer to the complaint, and the stipulation of facts, including exhibits attached thereto, constitute the entire record in this case In September 1981 the Respondent and the Asso- ciation negotiated and executed a new 2-year col- lective-bargaining agreement, hereafter called Agreement I, effective. by its terms from 1 October 1981 to 30 September 1983. Article 1, section 2(a) of the agreement provided that"either party desir- 2 The parties stipulated, and we find, that the following described em- ployees of the employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec 9(b) of the Act Included All cable splicers, apprentices, and journeyman wiremen, employed by the Employer Excluded All other employees, guards, and supervisors as defined in the Act - 275 NLRB No. 50 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing to change or terminate this agreement must notify the other in writing at least ninety (90) days prior to the anniversary date." On 22 June 1982 the Employer sent a certified letter to the Respondent stating that, pursuant to the above-described agreement, it revoked the au- thority of the Association to bargain • collectively on its behalf. The letter further sought termination of Agreement I as of its effective termination date and closed by stating that, if called upon to do so, the Employer would bargain separately with the Respondent. On .13 July 1982 the Respondent's business manager-sent a reply letter to the Employ- er noting receipt of its 22 June letter "stating that your firm is withdrawing the authority of the [As- sociation] to negotiate for your firm." The Re- spondent's letter continued by stating that, based on the Letter of Assent executed by the Employer in 1963, the Employer was bound by Agreement I until 30 September 1983. "The method of terminat- ing the agreement is spelled out in the Letter of Assent A.-. . . Your firm will remain subject-to all the terms and conditions of the agreement until such time that the Letter of Assent can be legally terminated." In February 1983 the Respondent and the Asso- ciation engaged in collective bargaining. Pursuant to this bargaining the Respondent and the Associa- tion agreed to and, executed in February 1983 changes to the Agreement. These changes, hereaf- ter called Agreement II, became effective as of the date of its execution and provided, inter alia: Article I, Section 1. change to read This Agreement shall take effect October 1 1981 and remain in effect until September 30 1984, unless otherwise specifically provided for herein. It shall continue in effect from year to year thereafter, from October through Sep- tember 30 of each year, unless changed or ter- minated in the way later provided herein. The Employer received no notification of the bar- gaining before it took place, while it occurred, or at any time prior to execution of Agreement II: On 13 April 1983, at a time when it had no knowledge of the collective bargaining or Agree- ment II, the-Employer sent a registered letter to the Respondent again revoking the authority of the Association to bargain on its behalf. The-letter fur- ther notified the Respondent that the Employer would not be bound by the agreement beyond its 30 September 1983 expiration day or by: any other agreement negotiated by [the Association] on behalf of this contractor, nor will this contractor . . . be bound thereafter by any negotiations, renegotiations, amend- ments, extension, or renewal of any labor agreement with your union. - - - The letter concluded by stating that, if called upon to do so, the Employer was ready and willing to meet with the Respondent as an individual employ- er, for purposes of collective bargaining.3 By letter dated 13 September 1983, the Employer requested a collective-bargaining meeting to negoti- ate a new contract.4 On 15 September 1983 the Re- spondent's business manager sent a letter to the Employer stating: In correspondence to D & R Electric dated July 13,-1982 and August 30, 1982 the position of the Local Union was stated very clearly. We consider D & R Electric to be a-signatory contractor to the 1981 -,1983 Inside Wireman Agreement and any amendments thereto. This agreement terminates September. 30, 1984. When this agreement terminates, Local. 952 will be more. than happy to- sit down, with you . . . and negotiate an agreement. . . . Communications ended at - this juncture and the charges in this case. were filed 2 months later. B. Contentions of the Parties The General Counsel contends that the Respond- ent's refusal to bargain with the Employer with re- spect to rates of pay, wages,. hours, and- other terms and conditions of employment affecting employees represented by the Respondent, and its insistence; instead; that the Employer was bound by Agree- ment II, violated Section 8(b)(3) of the Act._ It fur- ther contends that the Employer's letter of 22 June 1982 was timely and effective in terminating its ob- ligations under the Letter of Assent. However, if for any reason 'the 22 June letter of -termination was not effective, then the General Counsel con- tends that the Employer's letter of 13 April 1983 was effective in terminating its obligations under the Agreement.5 The Respondent appears to regard Agreement II as an amendment to the initial agreement which, among other things, extended the expiration date of 3 The parties stipulated that, pursuant to the provisions of the Letter of Assent, the revocation on 13 April 1983 of the bargaining` authority granted the Association was timely for an expiration date of 30 Septem- ber 1983 - - • - . ,, The Employer's letter of 13 September 1983 was not made a part of the record 5 The General Counsel also makes two alternative arguments First; that the Employer did not become a member of a multtemployer bargain- ing group by virtue-of signing the Letter of Assent and. second. that under traditional contract law the Employer terminated its obligation under the Letter of Assent However, for' the reasons set forth herein, we - find it unnecessary to pass on either of these arguments ' ELECTRICAL WORKERS IBEW LOCAL 952 (D & R ELECTRIC) Agreement I by 1 year.", It therefore contends that the Employer was bound by Agreement II until 30 September 1984. - C. Discussion and Conclusions The complaint alleges in effect that commencing on or about 13 July 1983 the Respondent has re- fused, and continues to refuse, to meet with the Employer for the purpose of negotiating or discuss- ing the terms of a collective-bargaining agreement in violation of Section 8(b)(3) of the Act. This case turns on whether or not the Employer was bound by Agreement II which extended the expiration date of Agreement I to 30 September 1984. For the reasons set forth below, we find that the Employer was not bound by Agreement II and that the Re- spondent's conduct here constitutes a violation of Section 8(b)(3) of the Act. In addressing the merits we would again note that the Letter of Assent executed between, the Employer and the Respondent provides that the bargaining authority granted to the Association shall be effective "until terminated by written notice to- the parties to the aforementioned agree- ment thirty (30) days prior to the notification date provided for therein.',' By virtue of executing the Letter of Assent, the parties stipulated, and we find, that the Employer was bound by the terms and conditions of Agreement I. The notification date as set forth in article I, section 2(a), of Agree- ment I states that either party must notify the other in writing at least 90. days prior to the anniversary date. (Emphasis added.) Therefore, when the pro- vision for termination in the Letter of Assent is read together with the provision for termination in Agreement I, written termination was timely if re- ceived by the parties 120 days prior to Agreement I's 30 September 1983 anniversary date. Accord- ingly, termination,, was timely if made prior to 2 June 1983. On 22 June 1982, almost 1 year before the notifi- cation date required by the Letter of Assent, the Employer sent written notification to the Respond- ent that revoked the authority of the Association,to bargain collectively on its behalf, and sought termi- nation of Agreement I as of its effective expiration date. ' . By letter dated 13, July 1982 the Respondent's business manager notified the Employer that, based on the Letter of Assent executed by the Employer in 1968, the Employer was bound by the agree- ment, and that "the method of terminating the 8 We ieach this conclusion on the basis of the Respondent's 15 Sep- tember 1983 letter to the Employer which states, inter alia, "we consider D & R Electric to be a signatory Contractor to [Agreement I] and any amendments thereto This agreement terminates September 30, 1984 " 321 agreement is spelled out in Letter of Assent A." The letter continued by stating, "your firm will remain subject to all the terms and conditions of [Agreement I] until such time that the Letter of Assent can be legally terminated." However, as noted by the General Counsel, the Respondent's letter does not indicate, even generally, why the Employer's 22 June 1982 letter failed to comply with the termination procedures established by the Letter of Assent.' Notwithstanding its letter of 22 June 1982, the Employer again sent written notification to the Re- spondent and the Association on 13 April 1983, stating that the -Association's authority to represent it was revoked, that the Association had no further authority to continue to bind it, and that it was ready to bargain individually with the Respondent on the expiration of Agreement I. However, as the parties' stipulation shows, by the time the 13 April 1983 notification was sent Agreement II had been negotiated and executed without the Employer's knowledge. . Under all the circumstances present in the case, we find that the Employer has effectively terminat- ed its obligation to be bound to any agreement be- tween the Respondent and the Association beyond the expiration of Agreement I. In reaching this conclusion we specifically rely on the literal terms set forth in the Letter of Assent under which the Employer's notice was timely.8 The notification by its terms is clear and unequivocal in its intent to terminate the Association's authority to bargain for the Employer beyond Agreement I's expiration date. It is also significant that there has been no evidence submitted or any allegation raised that the Employer conducted itself in a manner that would have led the Respondent to believe that it intended to be bound by further agreements between the Re- spondent and the Association. Indeed, the Employ- er's letter of 13 April 1983 is directly to the con- trary. Finally, we note that at no point has the Re- spondent . disclaimed status as the bargaining repre- sentative of the Employer's employees. Rather, the Respondent predicated its refusal to bargain with the Employer on its insistence that the Employer was bound by Agreement II. Having found that the Employer timely withdrew before the exten- sion . of Agreement I, we find the Respondent's ' It is not clear from the "Stipulation of Facts" whether the Employer also sent written notification to the Association We note, however, that the Respondent's refusal to bargain was not predicated on any such ab- sence of notice - 8 It is apparent from the terms specified in the Letter of Assent that to be timely notice must be received any time prior to the 120-day notifica- tion period No outside limit or window period is specified 322 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD contention to be without- merit. In these circum- stances, we find that the Respondent's refusal to bargain directly with the Employer violated. Sec- tion 8(b)(3) of the Act. IV. REMEDY Having found that the Respondent violated Sec- tion 8(b)(3) of the Act by refusing to bargain di- rectly with the Employer on all issues involving the wages, hours, and other terms and conditions of employment, and insisting instead, that the Em- ployer was bound by Agreement II on and after 15 September 1983, we shall order it to cease and desist • therefrom and affirmatively to bargain with the Employer on request. CONCLUSIONS OF LAW 1_13 & R Electric, Inc., Ventura; California, is an employer engaged in commerce within . the meaning of Section 2(6) and (7) of the Act. - - 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Since 1968 and at all times material herein, the Respondent has been the recognized representative of D & R's employees, within the meaning of Sec- tion 9(a) of the Act... - 4. By refusing to bargain with D & R Electric, Inc. on all issues involving wages, hours, and other terms and conditions of employment, as. the exclu- sive bargaining representative of D & R employees, and instead, insisting that D & R was bound to Agreement II on or after 15 September 1983, Re- spondent Electrical Workers Local Union 952, International Brotherhood of Electrical Workers violated Section 8(b)(3) of the Act. 5. The foregoing is an unfair labor • practice within the meaning of the Act. ORDER The National Labor Relations Board orders that the Respondent, Electrical Workers Local Union 952, International . Brotherhood of Electrical Work- ers, Ventura, California, its officers, agents, and representatives, shall 1. Cease and desist from refusing as the collec- tive-bargaining representative of the Employer's employees to bargain collectively -With -the Em- ployer by failing or- refusing to, bargain directly with the Employer on all issues involving wages, -hours, and other terms and conditions of employ- ment. , . . . 2. -Take the following affirmative action which the Board finds will effectuate the policies of the Act. '(a) On request by D &- R Electric, Inc., as the exclusive bargaining reprentative of D & - R's em- ployees, bargain with respect to wages, hours, and other terms and conditions of employment and, if an agreement is' reached, embody it in a signed contract. - (b) Post at its offices and meeting places in and about Ventura, California, copies of the attached notice marked "Appendix."9 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed -"by the Respondent's authorized representative, shall • be ;posted by the Respondent, immediately upon receipt and- main= tained for 60 consecutive days in conspicuous places including,all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by the Respondent to ensure' that the no- tices are not altered,' defaced, or covered by any other material. ' '(c) Notify the Regional Director in writing within 20 days from the date of this Orderwhat steps the Respondent-has taken to comply. 9 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " - APPENDIX ' NOTICE To MEMBERS POSTED BY ORDER OF THE 'NATIONAL LABOR RELATIONS BOARD - An Agency-of the United States Government The National' - Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively 'with D & R Electric, Inc., on all issues involving wages, hours, and other terms and conditions of employ- ment affecting the employees of D & R Electric, Inc. • WE WILL, on request, by D & R Electric, Inc., as the exclusive bargaining "representative of the employees of D & R Electric,. Inc.; bargain collec- tively on. all issues involving wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed contract. '' • ' ELECTRICAL WORKERS LOCAL UNION 952, INTERNATIONAL BROTH- ERHOOD OF ELECTRICAL WORKERS