Se-Ma-No Electric Cooperative

1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Se-Ma-No Electric Cooperative and International Brotherhood of Electrical Workers, Local 53. Case 17-CA-12829 16 July 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 16 September 1986 Administrative Law Judge Steven M. Charno issued the attached deci- sion. The Respondent and the General Counsel filed exceptions and a supporting brief and the Charging Party filed an answering brief to the Re- spondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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, and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent violated Section 8(a)(1) and (5) by refusing to bargain over the Union's proposed contract amendments which it rejected as untimely submitted. This finding was based on the judge's interpretation of the following provisions of the Respondent's most recent collec- tive-bargaining agreement with the Union:' Section 1. (A) The effective date of this agreement shall be January 1, 1983 . . . for a three-year period of up to and including December 31, 1985 and shall continue in full force and effect from year to year thereafter unless written notice is given by either party hereto to the other before sixty (60) days prior to any termination date notifying the other party of its desire to amend or cancel this Agreement. (B) If amendment is desired, the contents of the amendment shall be submitted by either party to the other, not later than sixty (60) days prior to the termination date and the par- ties shall, upon receipt of such amendment, im- mediately thereafter confer and negotiate with each other concerning amendment, in an effort to reach agreement respecting the same and the provisions of this Agreement shall remain in full force and effect until such agreement is reached. 1 The agreement expressly excluded these provisions from being sub- ject to arbitration. As indicated, the agreement was scheduled to expire on 31 December 1985. On 28 October 1985 the Respondent mailed a notice to the Union con- taining proposed amendments. The Union received the notice on 30 October and, on 31 October, mailed its own proposed amendments to the Re- spondent. 2 The letter reached the post office serv- ing the Respondent's area on Saturday, 2 Novem- ber. The Respondent was not open for business that day and the letter was not delivered. The Re- spondent picked it up at the post office on 4 No- vember. The Respondent rejected the Union's pro- posals as untimely and refused to bargain over them. The judge found that the last date for sub- mission of the Union's proposals was 1 November. He concluded, however, that this requirement was satisfied by the Union's mailing of them on 31 Oc- tober. The judge reasoned that the contract con- templated initial notice of intention to demand changes, to be received before the 60-day contrac- tual insulated period began, followed by a period of at least 24 hours in which either party might "submit" proposed amendments, thus permitting proposals up to and including the 60th day before the termination date, or, in this case, 1 November. He further reasoned that, in contrast to the giving of notice, which must be completed by its receipt before the insulated period begins, sOmission of proposed amendments requires only that they be sent—that being the ordinary meaning of "submis- sion." Thus, he concluded that the Union's submis- sion was timely and that the Respondent's refusal to consider the proposals was unlawful. We agree with the judge that timely giving of notice under section 1(A) means actual receipt. 3 It follows that the Union did not comply with this provision. We also think the judge was correct in finding that the submission of the contents of any desired amendments under section 1(B) of the con- tract is contemplated to be a separate act, that it follows the giving of notice of desire to amend under section 1(A), and that it may be effectuated by mailing. However, these conclusions do not answer the question whether the Union was pre- cluded from submitting amendments by its failure to give timely notice under section 1(A). When the two provisions are read together, as the parties cer- tainly contemplated they should be, they reveal that the Union was so precluded. 2 These amendments addressed terms and conditions of employment different from those addressed in the Respondent's proposal. 3 There was no exception to this finding Our acceptance of its cor- rectness does not indicate any retreat from the principle that certain miti- gating circumstances, not present here, may excuse delays in receipt of such notices if the contract is susceptible to such an interpretation See Taft Broadcasting Go, 264 NLRB 185, 189-190 (1982) 284 NLRB No. 109 SE-MA-NO ELECTRIC COOPERATIVE 1007 Section 1(A) gives either part3i the right to fore- stall automatic renewal of the contract by notifying the other of its desire to cancel or amend. Each type of notice, of course, has a different effect. KCW Furniture Co., 247 NLRB 541 (1980). If the notice is for cancellation, the contract is neither re- newed nor extended, and the parties' bargaining rights and obligations will be similar to those where no contract had existed. 4 If, on the other hand, the notice is for amendment, the party which did not give notice has full bargaining rights only as to the amendments submitted by the party which gave notice. 5 Thus, the party which gave notice has the right to rely on the other party's si- lence as indicating its satisfaction with the contract as it stands. Each party is presumed to know its own desires. The contractual provisions which create a 60-day insulated period do not contem- plate an extension of time for one party to act simply because the other party has given notice that it will submit amendments. By agreeing to these provisions, the parties cre- ated an increased measure of stability in the terms Of the contract. This is accomplished by virtue of the last clause in section 1(B). That clause keeps the contractual terms in effect beyond the expira- tion date at least while bargaining over the timely noticed amendments continues. hi this way, either party may have its desired amendments entertained without either cancelling the agreement or auto- matically opening it to amendments that the other party previously had no intention of proposing. The Union, which originally proposed these pro- visions, thus enjoyed the privilege (not timely exer- cised in this case) of opening the contract for amendments it desired while extending such other desired terms that might otherwise lapse on the ex- piration date. We conclude that considerations of stability, rather than that of giving a second chance to a party that has not given notice under section 1(A), underlie the second step of the amendment process as set forth in section 1(B). Therefore, the Respondent lawfully refused to bargain over the new amendments submitted by the Union after the date for giving notice of desire to amend had passed. 4 The contractual provision immediately following secs. 1(A) and 1(B) (C) If termination is desired, the reason for termination shall be fully set forth in said termination notice in order that all parties hereto shall have an opportunity to settle any differences of opinion which may exist, including the reason for such termination notices. 5 Of, course, bargaining over those amendments includes the presenta- tion of counterproposals on the same subject matter Such counterpropos- als would not be subject to the time limitations of secs. 1(A) and 1(B) of the agreement. ORDER The complaint is dismissed. Lyn R. Buckley, Esq., for the General Counsel. Ransom A. Ellis III, Esq. (Ellis, King Ellis & Black), of Springfield, Missouri, for the Respondent. Joseph W. Moreland Esq. (Blake & Uhlig), of Kansas City, Missouri, for the Union. DECISION STEVEN M. CHARNO, Administrative Law Judge. In response to a charge timely filed, a complaint was issued on 2 April 1986 alleging that Se-Ma-No Electric Cooper- ative (Respondent) violated Section 8(aX1) and (5) of the National Labor Relations Act, by failing and refusing to bargain collectively with the International Brotherhood of Electrical Workers, Local 53 (Union). Respondent's answer denied the commission of any unfair labor prac- tice. A hearing was held before me in Springfield, Missouri, on 12 May 1986. Initial briefs were filed by the General Counsel, the Union, and Respondent under due date of 16 June 1986, and reply briefs were filed by the Union and Respondent under due date of 30 June 1986. FINDINGS OF FACT I. JURISDICTION Respondent is a Missouri corporation engaged in the distribution of electric power with a place of business in Mansfield, Missouri. During the 12 months preceding is- suance of the complaint, Respondent, in the course of its business operations within Missouri, purchased and re- ceived goods valued in excess of $10,000 directly from points outside the State and derived gross revenues in excess of $250,000. It is admitted, and I fmd, that Re- spondent is an employer engaged in commerce within the meaning of the Act. The Union is admitted to be, and I find is, a labor or- ganization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE A. Background Respondent and the Union have been parties to succes- sive collective-bargaining agreements since at least 1971. Section 1 of article XVII of the most recent agreement sets forth the reopener provision, which is the sole sub- ject of controversy in this case: Section 1. (A) The effective date of this agreement shall be January 1, 1983 . . . for a three-year period of up to and including December 31, 1985 and shall con- tinue in full force and effect from year to year thereafter unless written notice is given by either party hereto to the other before sixty (60) days prior to any termination date notifying the other party of its desire to amend or cancel this Agree- ment. 1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (B) If amendment is desired, the contents of the amendment shall be submitted by either party to the other, not later than sixty (60) days prior to the ter- mination date and the parties shall, upon receipt of such amendment, immediately thereafter confer and negotiate with each other concerning amendment, in an effort to reach agreement respecting the same and the provisions of this Agreement shall remain in full force and effect until such agreement is reached. This language does not differ in any significant particular from that offered by the Union and accepted by Re- spondent during their first collective-bargaining negotia- tions. Section 2 of article XVII provides that the matters set forth in section 1 "shall not be the subject of arbitra- tion."1 B. Reopening the Agreement By letter to the Union dated 28 October 1985, 2 Re- spondent gave notice of its desire to amend the agree- ment and submitted proposed amendments. This letter was received by the Union on 30 October. On 31 Octo- ber, the Union mailed a certified letter to Respondent, which set forth the Union's proposed modifications of the agreement. This letter was received by the post office at Mansfield, Missouri, on Saturday, 2 November, and was picked up by Respondent on Monday, 4 No- vember. In an 8 November letter to the Union, Respondent as- serted that the Union's response was untimely under arti- cle XVII and that the contract would therefore be auto- matically renewed for another year, except for those pro- visions that Respondent sought to amend. The letter also conveyed Respondent's offer to bargain with respect to its own proposed amendments. In a telephone conversation on 13 December, James Waers, the Union's counsel, suggested to Respondent's counsel, Richard Farrington, that the parties meet and negotiate over Respondent's proposals and treat the Union's proposed modifications as counterproposals. Far- rington replied that Respondent was withdrawing its proposals and there was nothing left to negotiate. In a 16 December letter to Waers, Farrington reiterated the tele- phone conversation, stating that Respondent was with- drawing both its proposals and its notice to reopen and that the agreement would remain in effect for another year. All further attempts by the Union to institute bar- gaining over its proposed amendments were rejected by Respondent. C. Discussion Whether Respondent had a duty to bargain concerning the Union's proposed amendments, and therefore violat- ed the Act by refusing to do so, turns on interpretation of article XVII of the collective-bargaining agreement. Respondent and the Union read the first two subsections of article XVII as if both provisions are intended to say 1 Respondent has relied on sec. 2 to resist arbitration of a union griev- ance concernmg interpretation of the reopener provision 2 All dates hereinafter are in 1985, unless otherwise indicated the same thing but are somewhat ambiguous and partial- ly in conflict with each other. In fact, both subsections can be interpreted without encountering ambiguity or en- gendering conflict. Subsection 1(A) provides that "notice" must be given "before" 60 days prior to termination in order to prevent automatic renewal. Respondent correctly argues on brief that such "notice" is not operative until actually re- ceived. NLRB v. Vapor Recovery Systems Co., 311 F.2d 782, 784-785 (9th Cir. 1962). In contrast, subsection 1(B) requires that proposed amendments be "submitted" to the other party "not later than" 60 days prior to termina- tion. Because no technical terms are involved, the words of subsection 1(B) should be given their plain and normal meaning. See, e.g., Precision Anodizing & Plating, 244 NLRB 846, 859 (1979); 4 Williston, Contracts (Williston), § 618 (3d ed. 1961 & Supp. 1985). Accordingly, "submit" may be taken to mean "to send or commit for consider- ation, study, or decision . . ." Webster's Third New International Dictionary 2277 (1981). Thus, the time con- straints of section 1(A) apply to receipt, while those of section 1(B) apply to mailing. Finding 31 December to be the agreement's termina- tion date, 3 article XVII must be interpreted to require that any nonrenewal notice be received by 31 October and any proposed amendments be sent by 1 November. As Respondent notes on brief, advance written notice of the precise language of proposed amendments allows more extensive analysis, the preparation of counterpro- posals or responses, and a general expedition of the bar- gaining process. Because the contractual interpretation set out above gives the recipient of a nonrenewal notice a minimum of 24 hours in which to submit proposed amendments, it is fully consonant with the professed pur- pose of the parties to the agreement. See Williston § 618. More significantly, it is hornbook law that, when there are potentially repugnant provisions in an agreement, an interpretation that removes potential conflicts and gives effect to all the provisions will be adopted. Simpson, Contracts § 67 (1954); Restatement 2d, Contracts § 202(5); Williston §§ 619-620. Given my interpretation of subsection 1(B), I find that the Union's submission of its proposed amendments was timely. Accordingly, I further find that Respondent was obligated to bargain with respect to the Union's pro- posed amendments. Respondent's refusal to do so is therefore violative of Section 8(a)(1) and (5) of the Act. CONCLUSIONS OF LAw 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All construction and maintenance employees em- ployed by Respondent, but excluding office clerical em- 3 Respondent on brief variously asserts that the termination date was 31 December 1985 and 1 January 1986, while the Union argues for 1 Jan- uary Construing any potential ambiguity against the drafter of the lan- guage, I have adopted 31 December as the termination date. See, e.g., Inta-Roto, Inc , 252 NLRB 764, 770 (1980) SE-MA-NO ELECTRIC COOPERATIVE 1009 ployees, janitors, professional employees and guards and supervisors as defined in the Act, constitute a unit appro- priate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material, the Union has been and is the exclusive representative of the employees in the aforesaid unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to bargain with the Union concerning the terms and conditions of a new collective-bargaining agreement, Respondent has engaged and is engaging in an unfair labor practice in violation of Section 8(aX1) and (5) of the Act. 6. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Because Respondent engaged in an unfair labor prac- tice, I shall order it to desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. The inclusion of a visitatorial provision in my Order, a remedy sought by the General Counsel and op- posed by Respondent, has not been shown to be neces- sary to ensure compliance with the Board's Order. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, Se-Ma-No Electric Cooperative, Mansfield, Missouri, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively over the terms and conditions of a new collective bargaining agreement with the Union as the bargaining representative of the em- ployees described in Conclusion of Law 3. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights to engage in or refrain from engaging in any or all of the activities specified in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain in good faith with the Union concerning the terms and conditions of a new collective- 4 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 m Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses - bargaining agreement and, if an agreement is reached, embody that agreement in a signed contract. (b) Post at its Mansfield, Missouri facility copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices 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 Order what steps the Re- spondent has taken to comply. 5 If this Order is enforced by a judgment of a Umted States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NoncE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with the International Brotherhood of Electrical Workers, Local 53 as the exclusive collective-bargaining representative of the employees in the unit described below by refusing to negotiate concerning the terms and conditions of a new collective-bargaining agreement. The appropriate collec- tive-bargaining unit is all our construction and mainte- nance employees, excluding office clerical employees, janitors, professional employees, guards and supervisors. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL, on request, bargain in good faith with the International Brotherhood of Electrical Workers, Local 53 concerning the terms and conditions of a new collec- tive-bargaining agreement and, if an agreement is reached, embody that agreement in a signed contract. SE-MA-NO ELECTRIC COOPERATIVE