Boston Edison Co.

BOSTON EDISON CO. Boston Edison Company and Local 369, Utility Workers Union of America, AFL-CIO. Case 1- CA-23666 July 29, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND CRACRAFT Upon an unfair labor practice charge filed on March 21 , 1986, by the Union, Local 369, Utility Workers Union of America, AFL-CIO, the Gener- al Counsel of the National Labor Relations Board issued a complaint on December 5, 1986 , against the Respondent, Boston Edison Company, alleging that it violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act. Copies of the com- plaint and notice of hearing were served on the Re- spondent. The Respondent filed a timely answer denying the commission of any unfair labor prac- tices and asserting certain affirmative defenses. On July 27, 1987, the parties jointly moved the Board to transfer the proceeding to the Board without benefit of a hearing before an administra- tive law judge and they submitted a proposed record consisting of the formal papers and the par- ties' stipulation of facts with attached exhibits. On September 30, 1987, the Board issued an order granting the motion, approving the stipulation, and transferring the proceeding to the Board. Thereaf- ter the General Counsel, the Union, and the Re- spondent filed briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record in this case, the Board makes the following findings. I. JURISDICTION The Respondent is a corporation with its princi- pal office and place of business in Boston , Massa- chusetts, and is a public utility engaged in the gen- eration, transmission, distribution, and sale of elec- tricity in the greater Boston area. The Respondent during the calendar year ending December 31, 1985, derived gross revenues in excess of $250,000 in the course and conduct of its business oper- ations, and purchased and received products, goods, and materials valued in excess of $50,000 di- rectly from points located outside the Common- wealth of Massachusetts. Accordingly, we find that the Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION 549 The parties stipulated and we find that at all times material Local 369, Utility Workers Union of America, AFL-CIO (Local 369 or Union); Utility Workers Union of America, AFL-CIO (the Na- tional Union); Local 386, Utility Workers Union of America, AFL-CIO (Local 386);1 and Local 387, Utility Workers Union of America, AFL-CIO (Local 387) were labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Issue The issue is whether the Respondent has, since on or about January 30, 1986, and continuing to date, violated Section 8(a)(5) and (1) of the Act by refusing to negotiate and enter into an agreement separately with Local 369 with regard to a retirement/pension plan covering the employees represented for the purposes of collective bargain- ing by Local 369. B. Facts The Respondent is a public utility and is engaged in the generation, transmission , distribution, and sale of electricity in the greater Boston area. The parties stipulated that all production and mainte- nance employees employed by the Respondent in- cluding those employees in the classifications listed in the schedule effective June 13, 1986 , of the col- lective-bargaining agreement between the Respond- ent, Local 369, and the National Union , but exclud- ing meter readers, foremen, office clerical employ- ees, professional employees, guards and all supervi- sors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. At all times material, Local 369 has represented the bargaining unit of the Respondent's production and maintenance employees. On June 29, 1950, the Board certified the Nation- al Union as the exclusive collective-bargaining rep- resentative for the employees in the production and maintenance unit. In 1950, the National Union was also certified as the exclusive collective-bargaining representative for the employees in the office and clerical unit and the professional and technical unit respectively. Shortly after the three certifications ' At all times material , Local 387 has represented a bargaining unit of Respondent's office and clerical employees. Until recently, Local 386 represented a bargaining unit of all professional and technical employees. This professional and technical unit still constitutes a separate bargaining unit but it is now represented by Local 387. Local 386 no longer exists as a separate local union. This change occurred on February 1, 1987, after the factual development relevant to the instant case 290 NLRB No. 70 I 550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD were issued in 1950, Local 369, Local 387, and Local 386 were chartered to represent the employ- ees in the production and maintenance unit, the office and clerical unit, and the professional and technical unit respectively. In 1971, the three col- lective-bargaining agreements for the three bargain- ing units were amended through the collective-bar- gaining process to reflect that the Respondent rec- ognized both the National Union and the three re- spective local unions as the exclusive collective- bargaining representative for the employees in the three bargaining units. Specifically, since 1971 and continuing to date, the collective-bargaining agree- ments for the production and maintenance unit have contained the following language in the rec- ognition clause: The Company recognizes the Union and the Local as the exclusive bargaining representa- tive of all the employees of the Company in the Production and Maintenance Unit, as certi- fied by the National Labor Relations Board in Case No. 1-RC-1368 on June 29, 1950. At all times since 1950, Local 369 has participat- ed in collective-bargaining negotiations with the Respondent and the National Union for collective- bargaining contracts covering the employees in- cluded in the unit of production and maintenance employees employed by the Respondent and has signed all collective-bargaining agreements since 1950 which covered the employees. Since 1951, there have been successive separately negotiated, separately administered collective-bargaining agree- ments for each of the three bargaining units. The three respective collective-bargaining agreements were initially negotiated between the Respondent, the National Union, and each local union in 1951, and the three agreements were each separately re- negotiated in 1953, 1955, 1957, 1959, 1961, 1963, 1965, 1967, 1969, 1971, 1973, 1975, 1977, 1980, 1983, and 1986. The most recent collective-bargain- ing agreement between the Respondent, Local 369, and the National Union covering the employees in- cluded in the production and maintenance unit is effective by its terms from the period of June 13, 1986 to May 15, 1990. In each general negotiating process which led to the agreements, Local 369, Local 387, and Local 386 each submitted their own proposals and negotiated separately with the Re- spondent. The National Union has been signatory to all the collective-bargaining agreements. The employees of the Respondent in all three bargaining units have always been covered by one unified pension/retirement plan (pension plan). The existence of a single pension plan for all three bar- gaining units predates the certification of the Na- tional Union in 1950.2 Since 1950, when the Na- tional Union was certified and the three local unions were chartered, collective bargaining over changes in the pension plan has been conducted separately from the general collective bargaining described above for all other terms and conditions of employment. Unlike the general negotiations over the three collective-bargaining agreements, collective bargaining over the pension plan has always been conducted jointly among all three local unions, the National Union, and the Respond- ent. In practice, each local union submitted its own pension plan proposals, but the negotiation sessions were conducted jointly, and the resulting unified pension plan covered employees in all three bar- gaining units. When agreement was reached through collective bargaining on pension plan issues, the parties produced a unified Memorandum of Agreement that was signed by the Respondent, the National Union, and all three local unions. The membership of each local union conducted a ratifi- cation vote over the terms contained in the agree- ment. Pension plan bargaining, as described above, occurred in 1951, 1957, 1962, 1967, 1972, 1975, 1977, and 1980. By letter dated January 6, 1972, the Respondent notified the National Union that Local 369, Local 387, and Local 386 had notified the Respondent of their intention to review the pension plan. By letter dated January 7, 1972, Local 369 notified the Re- spondent that it would not negotiate in joint session regarding the pension plan with the other local unions. The Respondent notified Local 369 by letter dated January 14, 1972, that a separate meet- ing date with Local 369 for pension plan negotia- tions was not acceptable to it. By letters dated Feb- ruary 29, 1972, the National Union notified Local 369, Local 387, and Local 386 that Local 369 would be given the opportunity to attempt to ar- range for separate negotiations with the Respond- ent regarding a pension plan by March 6 and, if that could not be arranged, Local 369 was directed to negotiate jointly with Local 387 and Local 386. When the Respondent continued to refuse to ne- gotiate separately with Local 369 regarding a sepa- rate pension plan, Local 369 filed an unfair labor practice charge in Case 1-CA-8176. After investi- gation of this charge, it was dismissed by Region 1. Local 369 appealed this dismissal to the Office of Appeals and this appeal was denied. 2 From approximately 1943 to 1950, the three bargaining units existed but were represented by the United Brotherhood of Edison Workers in separate units of production and maintenance employees , office and cleri- cal employees, and technical employees. See Boston Edison Co., 51 NLRB 118 (1943) BOSTON EDISON CO. By letter dated December 18, 1985 , the Respond- ent notified the National Union and Local 369 of its desire to terminate the then-current collective- bargaining agreement and of the Respondent's in- tention to review and modify the pension plan. By letter dated January 9, 1986, Local 369 requested to negotiate with the Respondent separately over the terms of a pension plan covering only the em- ployees included in the production and mainte- nance unit. By letter dated January 30, 1986, the Respondent replied to the letter dated January 9 , 1986, from Local 369. The Respondent's response was that the pension plan is with the National Union, the parties have historically bargained jointly, and that the Re- spondent intends to do so again this year. By letter dated February 28, 1986, Local 369 ad- vised Respondent, inter alia, of the names of the bargaining committee for Local 369, and by letter dated March 3, 1986, the National Union's presi- dent, James Joy Jr., advised the Respondent that Local 369 had permission to proceed separately for the 1986 negotiations to modify the current collec- tive-bargaining agreement and the pension plan. On March 7, 1986, the Respondent and Local 369 met in their first general negotiating session for the collective-bargaining agreement for the produc- tion and maintenance unit . Local 369 again request- ed that the Respondent meet individually with Local 369 to negotiate terms of a separate pension plan for the production and maintenance employ- ees, but the Respondent did not agree. On March 13, 1986, at the second general negoti- ating session over the collective-bargaining agree- ment for the production and maintenance unit, Local 369 first presented its proposals to modify the agreement. Included were proposals to modify the pension plan. The Respondent refused to accept or discuss the pension proposals that day, and told Local 369 that it intended to negotiate pension plan changes jointly with all three local unions and the National Union . By letter dated March 14, 1986, the Respondent notified the Na- tional Union of its position that pension plan nego- tiations would be conducted jointly, as in the past. On April 3, 1986, representatives of the Re- spondent, the National Union, and the three local unions met for the first scheduled pension plan bar- gaining session. Local 369 announced that it would not participate in joint bargaining and then with- drew. The negotiation session continued without Local 369. Local 369 returned to the negotiation session to present its list of proposed changes in the pension plan and to hear the Respondent's propos- als. Local 369 then left and bargaining continued 551 between the National Union , the Respondent, Local 387, and Local 386. On April 10, 1986, the parties convened for a second day of pension plan negotiations . Local 369 was not present until after lunch . During the morn- ing session, the Respondent, the National Union, Local 387, and Local 386 bargained jointly. During the afternoon session, the Respondent and Local 369 bargained over Local 369's pension plan pro- posals. The National Union, Local 387, and Local 386 were present. On April 24, 1986, the parties convened for a third day of pension plan negotiations . During the morning session , the Respondent, the National Union, Local 387, and Local 386 bargained jointly. Local 369 appeared only for an afternoon session and discussed only Local 369's proposals with the Respondent. For at least part of the afternoon ses- sion, the National Union, Local 387, and Local 386 were present. About 4 p.m., when the negotiation session ended, the Respondent asked Local 369 to participate in a full-day session with all the parties present on May 1, 1986. Local 369 did not respond. On May 1, 1986, the parties convened for a fourth day of pension plan negotiations . Through- out the day, the Respondent negotiated individual- ly with each local union over their respective sets of proposals, in the presence of the National Union and the other two locals . The parties convened for a fifth day of pension plan negotiations on May 8, 1986. The Respondent announced its position that the pension bargaining process for 1986 would result in only one pension plan, as in the past. After a recess, the National Union announced that Local 387 and Local 386 had withdrawn their separate proposals and that Local 369's proposals would be adopted by Locals 387 and 386. Bargaining ensued on that basis. At the close of the session, the Re- spondent presented the National Union and Locals 369, 387, and 386 with a written proposal on the pension plan that eventually became part of the Respondent's final offer to all three local unions as the contract expiration date on May 15, 1986, ap- proached. On May 16, 1986, all three local unions began a strike on issues unrelated to the instant charge. The strike was resolved prior to June 13, 1986, and new separate collective-bargaining agreements were en- tered into between the Respondent and each of the three local unions covering the bargaining units represented by each local union, and the National Union. With respect to the pension plan, a single Memorandum of Agreement was prepared reflect- ing changes agreed to by the Respondent, the Na- tional Union, and the three local unions. 552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD At times during the 1986 pension and collective- bargaining negotiations, Local 369 stated to the Re- spondent that it wanted an answer to the question of its right to bargain with respect to a separate pension plan apart from Local 387 and Local 386; that it was reserving its position and rights on that issue; and that it would pursue the instant charge filed with the National Labor Relations Board in that regard. The Respondent stated that Local 369 could reserve whatever rights it believed it had, but that the Respondent did not agree that Local 369 had the right to bargain with respect to a pen- sion plan individually . The Respondent further stated that it had always bargained with respect to the pension plan jointly and that it would continue to do so. C. Contentions of the Parties The Respondent contends that it did not violate the Act by refusing to agree to Local 369's request that it alter the historic joint pension bargaining practice that had been in effect since 1950 and bar- gain with Local 369 separately on the subject of pensions. In support, the Respondent cites Paper- workers Local 1027 (Mead Corp.), 216 NLRB 486 (1975) (Mead), for the proposition that once a vol- untary consensual unit has been established by the agreement of the parties, any party can then law- fully insist to impasse on continued bargaining along the lines of the established and historic unit. The Respondent also cites the case of Shell Oil Co., 194 NLRB 988 (1972), enfd . sub nom. Oil Workers v. NLRB, 486 F.2d 1266 (D.C. Cir. 1973), in de- fense of its action in refusing to bargain with the Union separately on the retirement/pension plan. Relying on Shell Oil, the Respondent argues that because for over 36 years pension bargaining has always been conducted on a companywide basis between Boston Edison, the National Union, and its three locals, the established unit for purposes of collective bargaining with respect to pension issues is the joint unit. Thus, the Respondent could law- fully insist on confining bargaining on pensions to the established joint unit. The Respondent further argues that this conclu- sion is supported by the Regional Director's 1972 dismissal of an unfair labor practice charge filed by Local 369 charging that the Respondent's refusal to bargain over pension plan improvements was un- lawful. In that proceeding the Office of Appeals, Office of the General Counsel, upheld the Regional Director's dismissal of the charge, on the grounds that the National Union is the certified representa- tive, that pension bargaining historically has been on a multiunit basis, and that the National Union never requested separate pension bargaining on a single unit basis. In the alternative, the Respondent also argues that even if Local 369 was privileged to withdraw from the multiunion bargaining arrangement, it did not lawfully do so because its attempted withdraw- al was neither permanent nor unequivocal. The Re- spondent maintains that the National Union has not agreed permanently to halt the multiunion bargain- ing arrangement because it granted only one of the four different union entities permission to proceed separately for 1 year-1986 . Further, citing Tampa Ship Repair & Dry Dock Co., 202 NLRB 368 (1973), the Respondent maintains that Local 369 did not unequivocally withdraw from multiunit bargaining, because it participated in the joint bar- gaining for the 1986 pension agreement and signed the single Memorandum of Agreement reflecting changes in the pension plan. The General Counsel's position is that Local 369 timely and unequivocally withdrew from multiunit bargaining on the pension plan and that the Re- spondent violated Section 8(a)(5) and (1) by its re- fusal to bargain separately with Local 369 concern- ing a pension plan. The General Counsel argues that while parties may voluntarily consent to the enlargement or alteration of an existing unit, to the merger of separate units, or to the combination of several units for the purpose of jointly negotiating issues of common concern , neither party may be forced to continue negotiations on the altered basis, citing Consolidated Papers, 220 NLRB 1281 (1975), and Pacific Coast Assn. of Pulp & Paper Mfrs., 133 NLRB 690 (1961 ), enfd. 304 F.2d 760 (9th Cir. 1962). The General Counsel also argues that the fact that Local 369 participated with Locals 387 and 386 in pension negotiations after the Respondent had rejected the request of Local 369 for separate negotiations does not render the request of Local 369 equivocal or moot. The General Counsel also requests a visitatorial clause in this case. The Charging Party reiterates the arguments made by the General Counsel in this case, and argues that a bargaining unit has the right to with- draw regardless of a history of multiunit bargain- ing, where it has given the employer timely and unequivocal notice of its intent to withdraw. If par- ties are unable to withdraw from multiunit bargain- ing, they would be discouraged from experiment- ing with such bargaining. Further, the Charging Party maintains that its withdrawal was timely and unequivocal, and that the Local 369-represented unit is an "appropriate unit" since Local 369 has been negotiating independent collective-bargaining agreements since 1950 with the Respondent. It fur- BOSTON EDISON CO. ther argues that any inconvenience to the Compa- ny caused by negotiating pensions separately is out- weighed by the importance of permitting the Union to negotiate separately. The Charging Party maintains that since a union has a right to withdraw from multiunit bargaining, it is a violation of Section 8(a)(5) and (1) for an em- ployer to insist to impasse on multiunit bargaining, citing Shell Oil, supra, as support for its proposition that while parties may agree to consolidate units for purposes of collective bargaining, a party may not be forced to bargain on other than a unit basis. The Union also argues that the Mead case relied on by the Respondent is inapposite to the instant case. In Mead, the Union insisted to impasse on retaining multiunit bargaining, and the Board's decision to uphold its right to do so was consistent with em- ployees' Section 7 rights to bargain collectively through representatives of their own choosing. In the instant case, it is the employer who is insisting to impasse on retaining multiunit bargaining. In so doing, the Company is attempting to impose on the Union its opinion regarding who should be the col- lective-bargaining representative of its employees. This is inconsistent with employees' Section 7 rights to bargain collectively through representa- tives of their own choosing. The Charging Party further contends that de- spite its decision to enter into a joint pension agree- ment with the Respondent, its withdrawal was un- equivocal because the Company was notified at all times that the Union was nonetheless reserving its right to have this case resolved by the Board. In addition, Local 369 did not participate in any joint bargaining with the other locals, until the other locals withdrew their proposals and adopted Local 369's proposals. The Charging Party argues that for the Board to hold that Local 369 did not un- equivocally withdraw from multiunit bargaining would give the Union two untenable choices- either to accept the Company's unwillingness to bargain separately, even if it is unlawful, or to exist without a pension agreement until all the Board's processes and court appeals have been exhausted. The Charging Party also argues that Local 369 has maintained a separate identity from that of the other locals involved in multiunit bargaining, and that the bargaining unit represented by Local 369 was an appropriate one for purposes of collective bargaining. The Charging Party maintains that Local 369 was delegated authority by the National Union to negotiate a pension plan. Unlike the tem- porary authority granted in 1972, the grant of au- thority to Local 369 for the 1986 negotiations was clear and unequivocal. Further, the Respondent has never before questioned the authority of Local 369 553 to bind the National in contract negotiations for separate contracts with Local 369. Finally, the rec- ognition clause of the collective-bargaining agree- ment for the production and maintenance workers has contained language that the Company recog- nizes both the National and Local 369 as exclusive representative of that unit. D. Analysis and Conclusions The major thrust of the Respondent's argument is that two separate bargaining units covering the same employees co-exist-one unit for pension bar- gaining and a second unit for bargaining on the re- maining subject matters. The Respondent argues that because for over 36 years pension bargaining has always been conducted on a companywide basis between Boston Edison, the National Union, and its three locals, the established unit for pur- poses of collective bargaining with respect to pen- sion issues is a companywide unit. At the same time it acknowledges that the three separate em- ployee groups represented by the individual locals are the appropriate units for purposes of bargaining over the remaining subject matters. Although it is well settled that the parties may voluntarily agree to bargain jointly on an other- than-unit basis for certain subject matters and to bargain on a unit basis for other matters, that agreement does not result in two separate units-a broader unit for some purposes and a narrower unit for others. Only one unit covering the same em- ployees may exist at any given time , even if the parties agree to bargain on certain matters on a dif- ferent basis. Further, although parties may voluntarily con- sent to bargaining jointly on a basis other than the established appropriate unit , neither party may be forced to continue such negotiations. The scope of an established bargaining unit is a nonmandatory subject of bargaining that either party may propose changing so long as it does not insist on its propos- al to impasse. Consolidated Papers, supra.3 A party may not be forced to bargain on other than a unit basis. Shell Oil, supra.4 3 The Board in Consolidated at fn. 6, found that Mead, relied on by the Respondent here, was not relevant to the issue posed in Consolidated. It appears that the Board, without specifically so stating, was declining to follow Mead. Mead has not been cited in any Board majority decision since Consolidated. In fact, between the time that Mead and Consolidated were decided, it was only cited in a dissent in Columbus Printing Press- men Union 252, 219 NLRB 268 fn. 24 (1975), with a specific notation that the dissenting member was expressing no view concerning its validity or invalidity. Accordingly, we find that Mead was implicitly overruled by Consolidated. In any event, we overrule Mead to the extent it is inconsist- ent with our decision. 4 Shell Oil Co., relied on by the Respondent , does not support its view. There the company had collective-bargaining agreements with various local unions of the Oil, Chemical and Atomic Workers Union (OCAW) Continued 554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In the instant case, the National Union was certi- fied in 1950 as the exclusive collective-bargaining representative for the Respondent 's production and maintenance employees. Shortly after the certifica- tion was issued, Local 369 was chartered to repre- sent the Respondent's employees in the production and maintenance unit. In 1951 Local 369 negotiated a separate collective-bargaining agreement for the employees it represents and thereafter it renegotiat- ed agreements in 1953, 1955, 1957, 1959, 1961, 1963, 1965, 1967, 1969, 1971, 1973, 1975, 1977, 1980, 1983, and 1986. The most recent collective- bargaining agreement between the Respondent, Local 369, and the National Union covering the employees in the production and maintenance unit is effective from June 13, 1986 to May 1990. The recognition clause of the collective-bargaining agreement for the production and maintenance workers contained language that the Company rec- ognizes both the National and Local 369 as the ex- clusive representative of that unit . Thus, the pro- duction and maintenance employees have contin- ued throughout to constitute a separate appropriate bargaining unit represented by the National and Local 369. With respect to the pension plans, historically each local union during joint negotiations submit- ted its own pension plan proposals ; the agreements reached in pension plan negotiations were specifi- cally subject to ratifications by the membership of the three locals which were individual parties to these agreements, and each local conducted sepa- rate ratification votes on the terms contained in the agreements.5 This joint bargaining with separate ratification and separate agreements is consistent with the finding that the units continued to be rep- resented as separate units. Local 369 successfully met the threshold require- ments for withdrawal from joint bargaining, as pro- vided in Retail Associates, 120 NLRB 388 (1958), and Evening News Assn., 154 NLRB 1494 ( 1965), covering employees in 19 bargaining units. Negotiations between Shell and OCAW had always been conducted separately for contracts covering each of the 19 units and the parties never engaged in multiunit or joint bargaining. Representatives of OCAW's employees proposed that Shell bargain with them on a joint basis regarding the common fringe benefit plans' revisions. Shell refused. In dismissing the complaint that had been issued based on OCAW's charges, the Board stated that in the absence of an agreement, neither party may attempt to force on the other an en- largement, alteration, or merger of an established unit or units. Thus, an employer (or a union) may lawfully insist on confining bargaining within established unit borders A union's (or employer's) attempt by coercive means, or by insistence in bargaining to the point of impasse , to require an alteration of a unit will be regarded as a unilateral attack on the integ- rity of the established bargaining unit. 6 The fact that a similar charge filed in 1972 was dismissed by the Re- gional Director does not constitute precedent for our decision . Neverthe- less, we find that the facts in the instant case are different than those present in the 1972 case in that here, unlike in 1972, the National specifi- cally notified the Respondent that Local 369 had permission to proceed separately for the 1986 negotiations to modify the pension plan. enfd. 372 F.2d 569 (6th Cir. 1967), by giving a timely and unequivocal notice to the Respondent of its desire and intention to bargain with the Re- spondent concerning the pension plan separately from Locals 387 and 386. In the letter of January 9, 1986, to the Respondent, Local 369 specifically notified the Respondent of its intention to negotiate a pension plan separately from the negotiations for the units represented by Locals 387 and 386. This notice was unequivocal and was made in a timely fashion as it was given prior to the commencement of negotiations on the pension plan on April 3, 1986. Further, the Respondent was notified by the National Union that Local 369 had permission to proceed separately for the 1986 negotiations to modify the pension plan. We also find that Local 369's withdrawal from joint bargaining was unequivocal despite the fact that it proceeded to bargain with the Respondent on a pension plan when the Respondent informed Local 369 that it was unwilling to bargain separate- ly. The Respondent was notified at all times that the Union was reserving its right to have this case resolved by the Board.6 Accordingly, we find that the Respondent has violated Section 8(a)(5) and (1) of the Act by refus- ing to negotiate separately with Local 369 over a pension plan covering the employees in the pro- duction and maintenance unit it represents. CONCLUSIONS OF LAW 1. Boston Edison Company is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 369, Utility Workers Union of America, AFL-CIO; Utility Workers Union of America, AFL-CIO; Local 387, Utility Workers Union of America, AFL-CIO; and Local 386, Utility Work- ers Union of America are labor organizations within the meaning of Section 2(5) of the Act. 3. The appropriate collective-bargaining unit is: All production and maintenance employees employed by Respondent including those em- ployees in the classifications listed in the pay schedule effective 13 June 1986 of the collec- 6 We agree with the General Counsel that the fact that Local 369 exe- cuted a pension plan agreement with the Respondent subsequent to the filing of the unfair labor practice charge does not render this case moot. See, e.g., Massillon Publishing Co., 215 NLRB 380 (1974), Pacific Coast Assn. of Pulp & Paper Mfrs., 133 NLRB 690 fn. 1 (1961). Here Local 369 was coerced by the Respondent's unlawful refusal to bargain into either foregoing a pension plan covering the bargaining unit employees it repre- sents or joining in the execution of the companywide plan The fact that it chose one of these options does not render this case moot . This is par- ticularly true in this case where Local 369 clearly informed the Respond- ent of its intention to preserve its argument that the Respondent's refusal to bargain separately was violative of Sec . 8(a)(S) and Local 369 pursued the instant unfair labor practice charge. BOSTON EDISON CO. 555 tive bargaining agreement between Respond- ent, Local 369 and the National Union but ex- cluding meter readers, foremen, office clerical employees, professional employees, guards and all supervisors as defined in the Act. 4. At all times relevant the National Union and Local 369 have been and are now the exclusive representative of all employees in the appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. The Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) by failing and refusing to bargain separately with Local 369 on a retirement/pension plan for employees in the production and maintenance unit. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.7 We have found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and re- fusing to bargain separately with Local 369 regard- ing a retirement/pension plan covering the employ- ees in the production and maintenance unit. In order to remedy these unfair labor practices, we shall order the Respondent to cease and desist and, on request, to rescind the pension agreement reached and to bargain separately with Local 369 on a pension plan covering the production and maintenance unit and, if an understanding is reached, to embody the understanding in a signed agreement. ORDER The National Labor Relations Board orders that the Respondent, Boston Edison Company, Boston, Massachusetts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain separately with Local 369, Utility Workers Union of America, AFL- CIO, as the exclusive bargaining representative of r As noted above the General Counsel requests that 'the Order include a visitatorial clause authorizing the Board for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure wider the supervision of the United States court of appeals en- forcing this Order. Under the circumstances of this case , we find it un- necessary to include such a clause. Cherokee Marine Terminal, 287 NLRB 1080 (1988). the employees in the bargaining unit on a retirement/pension plan covering unit employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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) On the request of Local 369, rescind any agreement covering a pension plan for unit em- ployees. (b) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All production and maintenance employees employed by Respondent including those em- ployees in the classifications listed in the pay schedule effective 13 June 1986 of the collec- tive bargaining agreement between Respond- ent, Local 369 and the National Union but ex- cluding meter readers, foremen, office clerical employees, professional employees, guards and all supervisors as defined in the Act. (c) Post at its facility in Boston, Massachusetts, copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Re- gional Director for Region 1, after being signed by the Respondent's authorized representative , shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 8 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 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." 556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES 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 separately with Local 369, Utility Workers Union of America, AFL-CIO as the exclusive representative of the employees in the production and maintenance bar- gaining unit on a retirement/pension plan. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, rescind any agreement covering a pension plan for unit employees and, on request, bargain with Local 369 and put in writing and sign any agreement reached on a retirement/- pension plan for our employees in the production and maintenance bargaining unit. BOSTON EDISON COMPANY