Electrical Workers Ibew Local 1464 (Kansas City Power)

. ELECTRICAL WORKERS IBEW LOCAL 1464 (KANSAS CITY POWER) - 557 Local Union No. 1464 of the International Brother- hood of Electrical Workers (AFL-CIO) and, Kansas City ,Power & Light Company: Case 17-` CB-2509 ' 28 May 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 10 August 1982 Administrative Law Judge Jay R. Pollack issued the attached decision. The General Counsel and the Charging Party filed ex- ceptions and supporting briefs, and the'Respondent filed ' a brief in opposition to -those exceptions. 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, t and conclusions' only to the extent consistent with this Decision and Order. The issue is whether the Respondent may lawful- ly refuse to'execute the instant 'collective-bargain-. ing agreement because, contrary • to I the agreement. of the parties, the final printed version 'of the con- tract does not contain a union bug.2 The judge'. found that the Respondent did not violate the Act by refusing to execute the contract under these cir- cumstances..For the reasons set forth below, we. disagree with the judge, and find that the Respond- - ent has violated the Act as alleged. Facts The Respondent and the Employer have been parties to a series of collective-bargaining agree-_ ments since at -least 1949. All 'previous contracts be-, tween the parties had been printed by outside con-. tractors and had contained a union bug. Early in-, the 1980.- negotiations over the instant contract- (1 July 1980-30 June 1982), the Employer's ; -.vice, president, William Miller, advised the -Respondent; that the Employer had acquired new, printing equipment and would print the new contract in- house, using employees represented by Local. 16 13,. IBEW, a sister local of the Respondent. The Re= spondent's business manager, Charles Yaeger, asked Miller "if there would be any problem with having some indication that Local 1613 IBEW be put on the contract somewhere so it could [be identified], ' The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule- an admmtstra- 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 - ' 2 A union label of trademark indicating that the material was printed' by employees represented by a union as being printed by a local union. Miller' replied that he "didn't have any problem with that." There was no further discussion of this subject during the ensuing bargaining sessions. In July' 1980, after approximately. 30 bargaining sessions 'conducted over a 6-month period, the par- ties reached agreement on changes to be made in, the expiring contract, and executed a 31-page memorandum of agreement, reflecting those . changes., The terms of this memorandum of agree- ment were placed, into effect,. and have since then been adhered to by the parties. In-house printing of, the actual, new collective- - bargaining agreement itself was delayed for several, months. In March 1981, as the time for printing of the contract drew near, Yaeger asked the Employ- er's assistant director .of emloyee -relations, Robert. Robinson, whether the contract would. contain a, union bug or some other indication that it had been printed by-+union labor.. Robinson- told Yaeger that he would have to ask Miller. In a July 1981 meet- ing held to discuss this matter, Yaeger stated that a union bug had been agreed to during contract ne- ' gotiations -and that-the Respondent would not sign the contract if it did not 'contain a union bug or language 'indicating that it was printed by Local 1613. Miller insisted' that the Employer had not agreed to 'the inclusion of a'union' bug, and that it would -not -do. so. 3 - Analysis and Conclusion. One aspect of the bargaiiiing obligation imposed on a union by Section 8(b)(3) of the Act is the re- quirement, set forth in Section 8(d),'that'it execute, on request., of_ the. employer,' any written collective-, bargaining agreement it. reaches with that employ- er. However, the judge found that the Respondent here was "not obligated to execute the collective- bargaining, agreement submitted to it by the Em- ployer :because,_ without a union - bug, the agree- meht presented for signature did not constitute a ,.written.-, contract . incorporating [the] agreement- reached," within the meaning of Section 8(d) of the Act. . ' We find that the inclusion of the union bug on the final printed version . o'f the contract was not a matter involving the relationship between the em- ployees and the the Employer. We conclude, there- fore, that the union" bug was not a substantive aspect of the contract, and that the Employer's re- fusal to include the union bug in the final printed, 3 Based on a credibility; -resolution; the judge made a factual finding, which we affirm, that the parties had agreed to the inclusion of a union bug in the printed contract 275 NLRB No. 80 558 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement consequently did not justify the Re-, spondent's refusal to execute that agreement: In reaching 'this conclusion , we note in part that it is^ well settled that the inclusion of a union label or trademark (i.e., a union bug) on products pro- duced by employees represented by;that union is a nonmandatory subject of bargaining , because its re- lation to wages, hours, or other terms and condi- tions of employment' (i.e., mandatory subjects of bargaining) is at best remote and speculative. Kit Mfg. Co.,' 150 NLRB '662 (1964), enfd.- 365-F.2d 829 (9th Cir: 1966). A fortiori, the inclusion of a union' bug on the printed copies of a'collective-bargaining agreement bears- at- least an equally remote, specu- lative, and tenuous relation to wages, hours, or other terms' and conditions of employment. 'Not all nonmandatory subjects of bargaining are norisubstantive aspects of a contract. For -example, it is ' well settled that -bargaining fora change in the scope of a - unit is a • nonmandatory subject of bar- gaining . But, where the parties have- reached agree- ment on such a change, the description of that-unit would obviously be a substantive aspect of the con- tract, -involving the relationship between employees and. the employer. Accordingly, a party would be entitled to refuse to execute a written collective- bargaining agreement which did not -include the - description . of the bargaining unit that the parties had agreed to in,negotiations. _ . - However, the inclusion ,of the union bug on ,the - printed version of. the instant collective-bargaining agreement is not a substantive aspect of that agree- ment: While the presence of the union, bug on the printed copies' of the collective-bargaining agree- ment-may have symbolic value for the Respondent, it nevertheless constituted at most 'a peripheral con- cern, something akin to a ministerial matter, rather than a material, aspect of the collective-bargaining relationship. Since the agreement presented to the - Respondent for signature' contained- all of the sub- stantive terms agreed. to by the parties,_ we find that the Respondent was obligated to -execute that agreement .4 4 Nordstrom. Inc, 229 NLRB 601 (1977), relied on by our dissenting colleague and by the judge in dismissing the instant allegation, is inappo- - site. In Nordstrom, the employer presented a proposal which included both mandatory and nonmandatory subjects of bargaining The union ac- cepted the proposal with respect to the 'mandatory subject (wages), but did not accept with respect to the nonmandatory subjects (amnesty for strike-breaking employees, acceptance of certain discharge decisions, and merger of two separate units represented by the union ). The union insist- ed that the employer execute a contract containing the mandatory, but not the nonmandatory, subjects of bargaining. The Board found that the employer had lawfully refused to execute the agreement, on the grounds that the employer's proposal on'the mandatory subject may have been affected by its proposals on the nonmandatory subjects , and that once the nonmandatory subjects were removed from the bargaining table by the union's failure to accept them, the employer was then free to modify its proposal on the mandatory subject. - Therefore we conclude that it was an unfair labor practice in violation of Section 8(b)(3) of the Act of the Respondent to condition execution of the instant collective-bargaining agreement on the inclusion of the union bug on, the printed copies of the contract. ORDER "`. The National Labor Relations Board orders that the Respondent, Local 'Union No. 1464 of the International Brotherhood of Electrical Workers, AFL-CIO, its officers, agents, and representatives, shall 1.. Cease and desist from (a) Refusing to bargain in good faith with.the Employer, Kansas City Power & Light Company, by refusing to execute - the collective-bargaining agreement reached with the Employer in 1980. (b) In "any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2.. Take • the following affirmative action neces- sary to effectuate the policies of the Act. (a) Execute the collective-bargaining agreement reached -with the Employer in 1980. (b) Post at :its business offices and meeting halls copies of. the attached notice marked "Appendix."5 Copies.of the notice, on forms provided by-the Re- gional Director for Region 17,• after- being signed- by the Respondent's authorized • representative, shall be posted by, the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous -places including all places where: notices to members are customarily posted: Reasonable steps shall be taken by the Respondent. to ensure that.the notices are not altered, defaced, or covered by any other material. (c) Furnish the-Regional Director for Region 17 signed copies of such notice for posting by the Em- Here, unlike Nordstrom, the matter in dispute-the union bug-is not a substantive matter of the contract Nor is there any contention that the Respondent tailored any of its proposals on substantive matters in return for the Employer's agreement to include the union bug on the final print- ed version of the contract We are not, as our dissenting colleague suggests , writing the contract for the parties To the contrary the parties have reached complete-agree- ment on all substantive provisions of the contract Our.dissenting col- league's-reliance on Interprint Co, 273 NLRB 1863 (1985), is clearly mis- placed Unlike the mstani case, in Interprint the parties had failed to dis- cuss, much less agree to, certain important ' clauses in the draft contract, such as commencement and termination dates Also, other important clauses, which had allegedly been agreed on, dealing with such subjects as equipment transfer , new machinery and processes, and responsibilities of the International union, were omitted or altered in drafting the con- tract • ' 6 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 " ELECTRICAL WORKERS IBEW LOCAL 1464 (KANSAS CITY POWER) ployer, if willing, in places where notices to em- ployees are customarily posted. (d) Notify the Regional Director in writing within, 20' days from the date of this Order what steps the Respondent has taken to comply. MEMBER DENNIS, dissenting. Contrary to the majority, I agree with the judge that the Respondent's refusal to execute the pro- posed contract was lawful because it did not accu- rately reflect the parties' agreement, i.e., it did not include a union bug. Accordingly, I would dismiss the complaint in its entirety. In my view, a refusal-to-execute violation is not established when the writing fails to incorporate all the agreed-upon terms, whether or not those terms are mandatory subjects, of bargaining. A party is not free in negotiations to agree to permissive sub- jects, delete the permissive subjects from the writ- ten agreement, and then compel the other "party to sign the inaccurate written agreement on pain, bf violating Section 8(a)(5) or Section 8(b)(3). 'See Nordstrom, Inc., 229 NLRB 601 (1977). = The majority errs : in dismissing the parties' agreement on the presence of a union bug as "at most a peripheral concern, something akin to a ministerial matter." As the judge stated: "No matter how trivial the General Counsel and the Employer view a union bug, the Union' should not be forced to forfeit what it secured during negotia- tions." In ordering the Union to execute a docu- ment not reflective of the bargain struck at the ne- 559 gotiating table, Chairman Dotson and Member Hunter have "written the contract for the parties," the very error they claimed the judge committed in Interprint Co., 273 NLRB at 1864-65 (1985) (Member Dennis concurring' in result). 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 with the Em- ployer; Kansas City. Power &'Light Company, by refusing to•execute the collective-bargaining agree- ment we reached with Employer in 1980. - WE WILL 'NOT in any like or related manner re- strain. or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE, WILL. execute. the - collective-bargaining agreement we, reached with the Employer in 1980. LOCAL UNION. No."' 1464 OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (AFL-CIO) [On 26 August 1985 the "Board issued a Supple- mental ' Decision - in this proceeding ' at 275 NLRB 1504; to which the judge's decision is attached.]