Local Union No. 1464 Of The International Brotherhood Of Electrical Workers (Afl-Cio)

1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 1464 of the International Brother- hood of Electrical Workers (AFL-CIO) and Kansas City Power & Light Company. Case 17- CB-2509 26 August 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 28 May 1985 the Board issued a Decision and Order in this proceeding.' The Board has sua sponte decided to reconsider that decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Upon reconsideration of the attached administra- tive law judge's decision in light of the exceptions and briefs, the Board has decided to overrule its Decision and Order of 28 May 1985, to affirm the judge's rulings, findings,2 and conclusions, and to adopt the recommended Order.3 ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. MEMBER HUNTER, dissenting. Contrary to my colleagues, and for the reasons fully set forth in the majority opinion in the initial decision in this case, 275 NLRB 557, I find that the Respondent has violated the Act as alleged by con- ditioning its execution of the instant collective-bar- gaining agreement on the inclusion of the union bug on the printed copies of the contract. ' 275 NLRB 557 z The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- 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 again carefully examined the record and find no basis for reversing the findings 3 Member Dennis concurs in the result based on the rationale set forth in her dissenting opinion in the Board's original decision (275 NLRB 557) DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge I heard this case in trial at Kansas City, Kansas, on June 22, 1982. Pursuant to a charge filed against Local Union No. 1464 of the International Brotherhood of Electrical Workers (AFL-CIO) (the Union or Respondent), on August 28, 1981, by Kansas City Power & Light Compa- 275 NLRB No. 219 ny (the Employer) the Regional Director for Region 17 of the National Labor Relation Board issued a complaint and notice of hearing-on October 5, 1981. The complaint alleges in substance that Respondent violated Section .8(b)(3) of the National Labor Relations Act by refusing to execute a collective-bargaining agreement with the Employer. Respondent does not dispute that a collective- bargaining agreement has been reached but contends that the agreement it is being -requested-to' execute' `does- not embody the full agreement of the parties. -All parties were given full opportunity to appear, to introduce relevant evidence, to examine and cross-exam- ine witness, to argue orally, and to file briefs. Based on the entire record, from my observation of the demeanor of the witnesses, and having considered the posttrial briefs of the parties, I make the following FINDINGS OF FACT AND CONCLUSIONS 1. JURISDICTION The Employer is a public utility engaged in the gen- eration and distribution of electric power with offices and a principal place of business in Kansas City, Missou- ri. In the course of its business, the Employer annually derives gross revenues in excess of $250,000 and annually purchases goods valued in excess of $50,000 directly from sources located outside the State of Missouri. Ac- cordingly, Respondent admits and I find that the Em- ployer is engaged in commerce and in a business affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence The Union and the Employer have been party to a series of collective-bargaining agreements since at least 1949, the most recent of which expired on June 30, 1980.' Commencing in January 1980, the Union and the Employer began negotiations for a succeeding contract. After approximately 30 negotiation sessions, agreement was reached on changes to be made to the expiring agreement. On July 7, 1980, Respondent and the Em- ployer executed a 31-page, memorandum of understand- ing which reflected the changes in the contract agreed upon by the parties. These changes were ratified by the Union's membership. . The terms of the agreement were placed into effect upon ratification by the Union's membership. However, the contract was not reduced to printed form until ap- proximately .1 year later. The parties had agreed to review all letters of understanding and determine which would be included in one written document with the i The Respondent represents the Employer's nonsupervisory outside physical employees such as linemen and repairmen ELECTRICAL WORKERS IBEW LOCAL 1464 (KANSAS CITY POWER) 1505 new collective bargaining. The compilation of the letters of understanding account for the delay in the discovery of the instant dispute. Thus, it was not until March 1981 that the parties discovered that there was a dispute over the inclusion of a "union bug.f2 • - During- contract' negotiations, the Employer informed the Union that it would be printing the contract in- house, utilizing employees represented by IBEW Local 16113_ All. previous agreements-between the parties had been printed by outside contractors and had contained a union bug. Charles Yaeger, Respondent's' business man- ager, testified that early on in the negotiations, William Miller, the Employer's vice president of administration, said the Employer had acquired new equipment and would print, the contract in-house. According to Yaeger, he asked Miller who would print the contract and Miller answered that members of Local 1613 would print the contract.' Yaeger asked if there would be any problem with having a union'bug or language indicating that the contract had been printed by Local 1613. Miller an- swered that he did not have any problem with that. Yeager's testimony was substantially corroborated- by James Repass; union president and Michael Johnson, union vice president. Repass testified that Yaeger asked if there would be a problem with putting some identify- ing mark that the contract was printed by members of Local 1613 on either the cover or back page of the con- tract. According to Repass, "Miller said he had no prob- lem with this, he saw no' problem with this." Johnson testified that Yaeger asked whether a union bug or some identifying mark would be on the contract. According to Johnson, Miller answered that "this would be no prob- lem." Miller testified that he did not specifically recall dis- cussing the printing of the contract with the Respondent. Miller, during the relevant time period, was engaged in negotiations with three IBEW 'Locals: Respondent, Local 1613, and Local 412. Thus, Miller testified that he recalled that the Employer told two or three of the Locals that the Employer would print the collective-bar- gaining agreement in-house but did not specifically recall discussing the matter with Respondent. However, Miller vehemently denied that there -was any discussion of a union bug during -negotiations Robert Robinson, the Employer's assistant director of employee relations, and Lawrence Dolci, manager labor relations, testified in accord with Miller. Dolci, "who took copious notes of the negotation sessions, made no reference -in his notes to any discussion of the in-house printing. I have decided to credit Yaeger's version of the dis- cussion regarding the union bug which was corroborated by Repass 'and Johnson. -I find-the testimony of the Em- ployer's witness somewhat contradictory. They testified that .the discussion of the in-house printing was brief and 2 A union label or trademark indicating that the material was printed by a union shop - 3 The expiring contract -contained a provision that the Employer would provide'a punted copy of the agreement to every employee in the bargaining unit Under this provision the Employer paid for the printing costs 4 IBEW Local 1613 represents the Employer's office and clerical em- ployees - - not substantial, and thus they could not recall what was said It seems illogical that they can be so certain that no mention of a union bug was made. In any event, I find Yaeger, Repass, and Johnson to be sincere witnesses and I credit their testimony. In March 1981 Yaeger asked Robinson if the contract would contain a union bug or other identifying mark. Robinson answered that the matter had to be taken up with Miller. On July 14 Yaeger, Repass, Miller,' and Robinson met to discuss the problem Miller told Yaeger that the-agreement would not contain a union bug or identifying language. Yaeger told Miller that a union bug was agreed to during the negotiations and that if the agreement did not contain a union bug or language indi- cating it was printed by Local 1613, the Union would not sign the agreement The parties attempted to settle their differences but were unable to do so. Approximate- ly 2 weeks later, Miller,' Robinson, Yaeger, -and- Repass met again. Yaeger again refused to sign the agreement unless it contained a union bug or other identifying mark. Yaeger offered to submit the dispute to arbitration. Miller said that the dispute should be submitted to the Board. The parties were unable to resolve their -differ- ences and both parties filed charges with the Regional Director. The charge filed by the Union was dismissed and the instant complaint was filed pursuant to the Em- ployer's charge B. Analysis Section 8(b)(3) of the Act provides: "It shall be an unfair labor practice for a labor organization or its agents--(3) to refuse to bargain collectively with an em- ployer, provided it is the representative of its employees subject to the provisions of Section 9(a)." Section 8(b)(3) must be read in conjunction with Section 8(d): For purposes of this section, to bargain collec- tively is the peformance of the mutual obligation of the employer and the representative of the employ- ees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder, and the execution of a written contract incorporat- ing any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession . . . . Section 8(d) of the Act explicitly requires the execu- tion of a written contract incorporating any agreement reached in requested by either party H. J. Heinz Co. v. NLRB, 311 U.S. 514, 523 (1941 ); Retail Clerks Local 322 (Roswil, Inc.), 226 NLRB 80, 87 ( 1976). The General Counsel must show not only that an agreement was reached, but that the document which Respondent has refused to execute accurately reflected that contract. Pa- cific Coast Metal Trades Council (Foss Shipyard), 260 NLRB 1117 (1982); Oil Workers Local 7-507 (Capital Packaging Co.), 212 NLRB 98, 108 ( 1974). Here, the 'credible evidence establishes' that , after over 30 years of collective bargaining, the contract for the 1506 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD . first time would be printed by.the Employer's own em- ployees. Yaeger asked if a union bug or other identifying mark would be on the contract. Miller answered that it would be no problem. The previous contracts had always contained a union bug • Further, the parties were essentially negotiating changes to the expiring agreement. Thus, based on the previous dealings between the parties and the circumstances of the bargaining, it is reasonable to infer that Miller intended "no problem" to be an assent to the inclusion of a union bug or other identify- ing mark and that Respondent reasonably understood the same. Accordingly, I find that the parties had agreed to a union bug or other identifying mark. The issue then-be- comes whether Respondent can lawfully condition the execution of the agreed-upon collective-bargaining agree- ment on the inclusion of a union bug or other identifying mark. In collective bargaining, unlike the common law. of contracts, a party does not have the right to select and determine with° whom he will contract. A party is not free to search for a third party that would be willing to meet its terms. Under -the Act, the employer must con- tract with the exclusive collective-bargaining representa- tive of its employees and the union, if it is an exclusive collective-bargaining representative, it must contract. with the employer of the unit employees it represents. Freedom of contract relates to the terms of the agree- ment and, once an agreement is reached, the parties are not free to refuse to embody it in a signed contract H. J. Heinz, supra. , - The parties agree that the subject of a union bug is not a mandatory subject of bargaining5 and -that the Union could not insist-to impasse upon its inclusion in the con- tract. See Kit Mfg., Co., 150-NLRB '662, 671-672 (1964), enfd. 335 F.2d 166 (9th Cir. 1964). However, it does not follow that a party that agrees to- a nonmandatory sub- ject of bargaining can insist on the execution of the con- tract absent that term. In this case, the Union- did not insist to impasse upon the inclusion of a union bug. It permissibly secured the inclusion of such an identifying mark. 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 negotiations. Neither the General Counsel nor the Employer should be permitted to rewrite.the contract after agreement was reached. . In . Nordstrom,, supra, 229 NLRB at 601-602 (1977), the Board was presented with the issue of whether one party. to 4 collective-bargaining negotiations could effectively conclude negotiations by agreeing only to the demands,; of the other-,party which constituted mandatory subjects of'bargainmg. The Board answered the -question in the negative ' In that :case,- although the employer. could -not insist on inclusion of. its nonmandatory proposals, it 5' By the' Board's definition; mandatory subjects of bargaining! "ate"• those comprised in the phrase -.'wages, hours, or other terms - and condi- tions of• employment' as set forth in Section 8(d) of the Act While the language is broad,, parameters have been established, although not quanti- fied The touchstone is whether or not the proposed clause set a term or condition of employment or regulates the relation between the employer and its employees " Operating Engineers Local 12 (AGC), 187 NLRB 430, 432 (1970), Nordstrom, Inc, 229 NLRB 601, 609 (1977) would have been permitted, to alter its mandatory pro- posals in the light-of the removal of the nonmandatory subjects. The Board viewed the nonmandatory subject as part of'a package containing mandatory and nonmanda-, tory proposals and concluded that- the employer could not be required to sign' an agreement which failed to re- flect the interaction and relationship between its package proposals on mandatory and nonmandatory subjects merely because-the union was better able-to perceive the distinction between mandatory and permissive subjects. Applying the principles of ,Nordstrom to the instant case, had the Union raised the inclusion of a union bug for the first time after negotiations had concluded, the General Counsel and the Employer would have been en-' titled to an order requiring the execution of the agreed- upon contract. Peerless Food, , 231' NLRB 530 (1977). However, since the agreement on the inclusion of the union bug took place early on in negotiations, it is highly speculative as to what would have occurred had-the Em- ployer resisted on this subject of.bargaining. In my view, to order the Union to execute the contract in the absence of a union bug or other identifying mark -would be equivalent to rewriting the 'contract of the parties. Sec- tion 8(d) of the Act expressly forbids requiring the union to make such a concession. For all the reasons stated above, I find that the General Counsel has not proven by a preponderance of the-credible evidence that Respond- ent has failed to execute a 'written collective-bargaining agreement which accurately reflected the agreement of the parties. Thus, the. complaint should be dismissed in its entirety. - On the foregoing- findings of fact and the entire record, I make the following CONCLUSIONS OF LAW • 1. The Respondent, Local Union No. 1464 of the International Brotherhood of Electrical Workers (AFL- CIO), is a labor organization within the' meaning of Sec- tion 2(5) of the Act. - -- - - - • 2. The Employer, Kansas City Power & Light Compa- ny; is an employer , engaged - in commerce within -the meaning of Section 2(6) and (7) of the' Act. 3: The General Counsel has failed to establish by a preponderance ofthe'credible evidence that'. Respondent violated Section 8(b)(3) of the Act, as. alleged in -the complaint On these findings of fact -and conclusions of law and on the entire record, I issue the following recommend- eds ORDER. . It having been found - and concluded that Respondent Local Union No. 1464 of the International-Brotherhood- of Electrical Workers (AFL-CIO) • has not engaged in unfair labor practices, the complaint is dismissed in its entirety - - e All motions inconsistent with this recommended Order are denied If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 10248-of the Rules, be adopted by. the Board,and•all objections to them shall be deemed waived for all purposes