Southern California Edison Co.

SOUTHERN CALIFORNIA EDISON CO. 203 Southern California Edison Company and Local Union No. 47, International Brotherhood of Electrical Workers, AFL-CIO-CLC. Case 21- CA-24863 June 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On November 12, 1987, Administrative Law Judge Jerrold H. Shapiro issued the attached deci- sion. The General Counsel and the Charging Party filed exceptions and supporting briefs. The Re- spondent filed a brief in opposition to the General Counsel's and the Charging Party's exceptions and cross-exceptions . The Charging Party filed a brief in response to the Respondent's cross-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 record in light of the exceptions and briefs and has decided to affirm the judge's rulings,- findings,' and conclusions and to adopt his recommended Order. We adopt the judge's conclusion that the Re- spondent did not violate Section 8(a)(5) by unilater- ally implementing its last offer after the parties reached impasse in their wage reopener negotia- tions based on our decision in Speedrack, 293 NLRB 1054 (1989). In Speedrack and its companion case, Hydrologics, 293 NLRB 1060 ( 1989), we held that when the parties have terminated a contract provision through the exercise of a wage reopener and have complied with the procedural require- ments of Section 8(d), they are free, after the 60- day period specified in Section 8(d) has elapsed, to exercise all the prerogatives normally available to them during bargaining, namely, to strike or lock out and to implement final proposals on reopened subjects after impasse has been reached. In this case there is no allegation that the 8(d) re- quirements were not met. Moreover, the evidence indicates that a Federal Mediation and Conciliation Service commissioner participated in the parties' May 9, 1986 bargaining session more than 60 days before the Respondent's July 31 unilateral changes. We find it reasonable to infer from this that the re- quired 8(d) notification was provided by the Union, who initiated the reopening of the wage provision, more than 60 days before the Respondent 's unilat- eral changes.2 We also find no evidence that the parties intend- ed, after 8(d) requirements about time and notice have been satisfied, to constrain themselves from the use of economic weapons or the unilateral im- plementation of proposals on which impasse has been reached. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 2 Because no party has raised the issue of compliance with the notice requirements of Sec. 8(d), Member Cracraft finds it unnecessary to pass on the issue. Lana Hill Parke, for the General Counsel. Charles G. Bakaly Jr. and Kenneth E. Johnson (O'Melveny & Myers), for the Respondent. Carmen Munoz-Silva, for the Respondent. Alexander B. Cvitan (Reich, Adell & Crost), for the Charging Party. DECISION STA'T'EMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge. This proceeding in which a hearing was held on 28 July 1987 is based upon an unfair labor practice charge filed by Local Union No. 47, International Brotherhood of Electrical Workers, AFL-CIO-CLC (Union) on 29 July 1986 and an amended complaint issued on 24 June 1987, on behalf of the General Counsel of the National Labor Relations Board by the Board 's Regional Director for Region 21, alleging that the Southern California Edison Company (Respondent) has engaged in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) and Section 8(d) of the National Labor Relations Act (Act). More specifically, the amended complaint alleges in sub- stance that Respondent violated the Act during its 1986 contract reopener wage negotiations with the Union, by refusing to bargain about the retroactivity of its wage in- crease proposals and by unilaterally implementing its final wage increase proposal without the Union's con- sent. Respondent filed an answer to the amended com- plaint denying the commission of the alleged unfair labor practices' and, as an affirmative defense, alleging that the allegation concerning its unilateral change of the em- ployees' wages was barred by Section 10(b) of the Act.2 ' The Charging Party has excepted to some of the judge 's credibility findings. The Board's established policy is not to overrule an admmistra- 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 Cit. 1951). We have carefully examined the record and find no basis for re- versing the findings We note that the judge incorrectly stated that the number of days of retroactive wage increase paid in 1965 was 43 when the number was 105. ' In its answer Respondent admits it is an employer engaged in com- merce within the meaning of Sec . 2(6) and (7) of the Act and meets the National Labor Relations Board's applicable discretionary jurisdictional standard Respondent also admits that the Union is a labor organization within the meaning of Sec. 2(5) of the Act. 2 Sec. 10(b) of the Act provides in pertinent part that "no complaint' shall issue based upon any unfair labor practice occurring more than six Continued 295 NLRB No. 28 204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Upon the entire record, from my observation of the demeanor of the witnesses , and having considered the posthearing briefs, I make the following FINDINGS OF FACT THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. The setting Respondent, a California corporation, is a public utility in the. business of transmitting and selling electricity to private, commercial, and industrial users located in the State of California, primarily in southern California. The Union has been the collective-bargaining representative of an appropriate unit of Respondent's employees since 1945 and since then, as of the date of the hearing in this case, has negotiated 22 successive collective-bargaining contracts with Respondent covering the employees. The collective-bargaining contract between the parties in effect from 1 January 1984 to 31 December 1986 (the 1984 Agreement) contained article XVI, entitled "Dura- tion, Termination and Renewal ." Paragraph C of article XVI of the 1984 Agreement, reads: Negotiations upon the proposed amendments or changes of the terms of this Agreement , as set forth in the notice of desire to amend, shall begin not later than forty (40) days prior to the expiration date or expiration of any subsequent yearly period, and shall continue until agreement is reached, and during said negotiations this Agreement shall remain in full force and effect, except that during such negotiations, subsequent to the expiration date or the expiration of any subsequent yearly period either party on sixty (60) days' notice to the other, may terminate said Contract . Any agreement reached as a result of such negotiation with respect .to any wage change shall become effective as of the anniversary termination date of this Agreement, provided such retroactivity does not exceed sixty (60) days. Article XVI(C), as described above, was first included in the parties' initial contract, the 1945 contract, and has remained unchanged in all pertinent respects in each of the 21 successor contracts. months prior to the filing of a charge with the Board ...." The 29 July 1986 charge filed in this case alleges that "within the past six months" the Respondent in violation of Sec. 8(a)(5) and (1) of the Act "has failed and refused to bargain in good faith with the [Union ]." It is well settled that Sec. 10(b) does not bar the Board from considering other subsequent acts under a previously filed charge if such acts are "sufficiently related to the specific acts alleged" in the charge and constitute "part of- the same course of conduct." NLRB v. Central Light & Power Co. , 425 F.2d 1318, 1320-1321 (5 Cir. 1978). Also see Fant Milling Ca, 360 U.S 301 (1959), and El Cortez Hotel Y. NLRB, 390 F 2d 127 (9th Cir. 1968). Respondent's 10(b) defense is without ment because the unilateral change in the em- ployees' wages which occurred subsequent to the Union 's 29 July 1986 charge was sufficiently related to the conduct alleged by that charge and constituted part of the same course of conduct. Article XVI(D) of the 1984 agreement allowed the subject of wages to be reopened for negotiations for the third year of that Agreement, and reads as follows: Either party, by a notice in writing sixty (60) days prior to December 31, 1985, may reopen article XII, Wages, only for the purpose of negotiating general across-the-board changes in the basic straight time rate of pay for the job classifications set forth in Exhibit A. Agreement reached as a result of such reopening shall become effective as of January 1, 1986, providing such retroactivity does not exceed sixty (60) days. Article XVI(D), as described above, was first included in the parties' 1953 contract and since then, except for the 1980 contract,3 has remained unchanged in all pertinent respects in each of the successor contracts. Article VIII of the 1984 Agreement, entitled "Waiv- ers," states in its entirety: "The waiver of any breach or condition of this Agreement by either party does not constitute a precedent for any further waiver of such breach or condition." Article VIII was first included in the parties' initial contract, the 1945 contract, and has re- mained unchanged in each of the 21 successor contracts.. 2. The 1945 contract negotiations As described supra, the 60-day retroactivity provision which first appeared as part of article XVI(C) in the par- ties' initial collective-bargaining contract negotiated in 1945, provided that "any agreement reached as a'result of such negotiations with respect to any wage change shall become effective as of the anniversary date of this agreement, provided such retroactivity does not exceed sixty (60) days." This provision was proposed and agreed to by the parties during a 6 June 1945 bargaining session, under the following circumstances. The parties' negotiators were discussing a retroactivity provision which had been proposed by the Union which provided for unlimited retroactivity, when the United States Department of Labor Conciliation Service Com- missioner, Harry C. Malcolm, engaged the negotiators in the following discussion: MR. MALCOLM: . . . Why don't you limit these retroactivities to 60 days? If your negotiations go 60 days, more than 60 days beyond the expiration date, then your retroactivity would only be 60 days; and it has a tendency in that way to make both sides get in there and pitch. MR. KEETON: [union spokesman] That sounds reasonable. MR. MALCOLM: If you leave the retroactivity wide open, it will be charged, whether rightfully or not, that you are stalling, because you know you are going to get it back, anyway. If you don't have it in there, the Company will be charged with stall- ing, because they know they are not going to have a The 1980 contract instead of the above-described art XVI(D), con- tained a provision calling for an automatic midterm across-the-board pay raise based on a rise in the Consumer Price Index. SOUTHERN CALIFORNIA EDISON CO. ' 205 to give it back to you . So if you say that any in- crease in wages negotiated would be effective as of the anniversary date, provided it is not more than 60 days, then you are limited to 60 days; and it has a tendency to help things move along. It makes for a very healthy situation. In this instance , you actual- ly have 120 days there that you could negotiate in, if you wanted to; and if you can't reach an agree- ment in 120 days, then you can't reach an agree- ment at all. MR. KENYON [Respondent spokesman]: How would that thing be limited , now? Show me how you would write it, how would it read. MR. MALCOLM : I have no pride of authorship. I was just giving you the idea . You can word it any way you want to . . . "Any agreement reached with respect to wages shall be retroactive to the an- niversary date of this agreement, provided such ret- roactivity is not more than 60 days." You could make it something like that. That's just a rough idea. MR. KENYON [Respondent spokesman]: In other words, if we argued on this lower line on into June or July, we would have 60 days of retroactivity only? MR. KEETON [union spokesman]: That's right. MR. MALCOLM: If you started to negotiate 60 days before the anniversary date, you would have 60 days after that. MR. KENYON : Without penalty? MR. MALCOLM : Without penalty. MR. KENYON : To the boys? MR. MALCOLM: Yes; and it would have a tenden- cy to make the two of you get out of it, and would eliminate the charge of stalling on both sides. I must say that if you can't negotiate a contract in 120 days, why, you don't want a contract. That is pretty well understood. At this point Malcolm and the parties' negotiators draft- ed the following language to be included in the contract: "Any agreement reached with respect to wages shall be retroactive to the anniversary date of this agreement, provided such retroactivity does not exceed 60 days." Later during the negotiations the parties agreed to modify this language by substituting "become effective as of for "be retroactive to," a modification which did not change the essential meaning of the provision as ini- tially drafted by the parties. 3. The 1946 contract negotiations Respondent and the Union signed their initial collec- tive-bargaining contract on 7 March 1946, with a term of 1 October 1945 through 30 June 1946. On 25 April 1946, during the term of that contract , the parties agreed to extend the term of the contract from 30 June 1946 to 31 December 1946 and at the same time agreed upon a 7.5- percent general across-the-board wage increase retroac- tive to 1 February 1946. Under the circumstances, article XVI(C) was not applicable to those negotiations. 4. The 1947 contract negotiations The first time, after article XVI(C)'s retroactivity pro- vision was placed in the 1945 contract , that the parties discussed the retroactivity provision was during the 1947 contract negotiations. During those negotiations, the 60- day period of retroactivity for wages ended 2 March 1947. The negotiations began on or about 21 November 1946 and the parties signed an agreement on 23 May 1947, providing for wage increases retroactive to 1 Janu- ary 1947, 141 days of retroactivity. R. G. Kenyon and G. N. MacKinnon were two of the principal negotiators for Respondent and the Union respectively. They also had been negotiators for their respective parties during the 1945 contract negotiations when the parties adopted Commissioner Malcolm's suggestion to incorporate the 60-day retroactivity provision in article XVI(C). It is therefore a fair inference that Kenyon and MacKinnon were well aware of the parties' intent in agreeing to in- clude that provision in the contract. During an 11 February 1947 negotiation session, the negotiators for both parties expressed concern about the upcoming 60-day retroactivity period which ended 2 March 1947, and indicated it was important that the par- ties reach agreement on a successor contract prior to that date, but it did not look as if this was possible. Kenyon at this point and later that day during the nego- tiations assured the Union's negotiators that Respondent was not accusing the Union of stalling or dragging its heels, whereupon MacKinnon, for the Union, and Kenyon, for Respondent, had the following discussion: MR. MACKINNON:... Now, what are we going to do about it [referring to the provision calling for 60-days of retroactivity for wages]? We have a pro- vision in the agreement. As Spike said, maybe we were wrong in 1945 or whenever it was to have said 60 days. We believe that is a mistake, but we are faced with it. Now, we can't wrap it up . I don't see how it is possible to do so. MR. KENYON : I am not complaining about the 60-day retroactivity. I am complaining about the fact that we did not start our negotiations soon enough, I mean, recognizing that 60 days . That is a reasonable period of time but we could have started sooner on our 1947 negotiations. In other words, in- stead of starting on the 21st of November we could have backed up into, say, October or some other damn time. MR. MACKINNON : [I]t is obvious to me, and I think to you, that we can't complete these negotia- tions on our conditions or anywhere [close to] it before February 28th or March the 2nd. . . . So either the wage rates, when we do agree upon them, are not to be retroactive to January the 1st, or we will have to, by mutual agreement, make some provision for retroactivity to that date. The only other thing that we can do is terminate the agreement, get out from under that provision and everything else, and then just say, "We will negoti- ate a new agreement." We will not then have that 206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 60-day thing . Maybe we can come to an agreement on 90 days, or maybe we can come to an agreement on something else. I don't know what else to do. That is just putting it bluntly . Maybe we are now paying for a mistake that neither of us knew we were making at the time we did not start negotiat- ing in October. The 11 February 1987 bargaining session ended with the following discussion about retroactivity: MR. HODGE [union negotiator]: [N]o matter what we try to do, no matter how we try to speed it up, we can't possibly get this thing wound up by March the 2nd. So, therefore, what are we going to do about the retroactive pay? .. . MR. KENYON : I don't think, Jack, that is any- thing we should try to settle at twenty minutes to five on the 11th of February, because everybody having anything to do with the contract has known that a long time . That has been staring us in the face ever since November the 21st last year. We've got that problem to meet. . . . I don't think we should talk about retroactivity until we have ex- hausted every possibility of getting this thing set- tled. I think that's the reason we agreed to the 60 days, that is, it is a coercive factor on both teams. It keeps peace in the family. It urges you to make a deal. MR. MACKINNON: I grant you that . . . . Last year when we talked about that we said that will force us to keep going. MR. KENYON: That's right. It compels us- MR. MACKINNON:-to try to get to an agree- ment. MR. KENYON: Yes, indeed, and it's a lot easier. MR. MACKINNON : You bet you. All right. We'll see you in the morning then. When the negotiations resumed on 12 February 1947 MacKinnon, for the Union, told Respondent's negotiat- ing committee he did not see how the negotiators "during the days that remain, even with maximum utili- zation of our time and efficiency" could reach an agree- ment on a successor contract. In response Kenyon, for the Respondent, stated: Mac, let me drop a note in here. I thought about it last night. There is nothing inherently sacred in ret- roactive pay. The concept which we had when we signed our contract was that sometime during the first 60 days we would, both sides, be compelled to get our bridges under us and go to town and make a deal. But if for some reason we did not make a deal until after the 1st of March the concept, which apparently is growing in some minds, that the only thing about this business which is important is the retroactive pay-I can understand how a guy might want it, but I am saying to you that it does not nec- essarily follow that you would then be empowered or be in shape to just say, "to hell with our present contract. We are •going to fix it so that we will make retroactivity start when we want it, and we want it as of this date ." My feeling in the matter is we made a cold-blooded deal which we thought was a good one. The Union signed it, we signed it, and we thought it was all right . Now, an attempt to spread that or to make that better, or from the point of view of the employee a sweeter deal, it could possibly be interpreted as bargaining in bad faith. And my feeling in the matter is, Mac, that we must attempt, these two negotiating committees, to make this deal and get the damn thing over with. .. . [A]nd I am afraid that the Union is in a bind be- cause it has a constituency which has not yet been informed that there are some things you can't really push over. During an 12 April 1947 negotiation session the par- ties' negotiators discussed different proposals to be in- cluded in a successor contract , and when they reached that part of article XVI(C) which dealt, with retroactiv- ity, had the following discussion: MR. MORRELL [union negotiator]: The part we object to is the 60-day retroactive period . We think that if the contract is going to remain in full force for the period of time, that whatever retroactive pay should be there should be retroactive as of the date of the contract. MR. KENYON [Respondent negotiator]: There was a good reason for putting in that 60 days, and the parties agreed on it last year, and it is a logical reason. There should be a stimulant, some kind of a prong that makes both the negotiating parties con- scious of the need for their getting the job done. Certainly, I will say this : That if the Union says, "It doesn't make any difference how long we fool around here with you, our retroactivity is still good," we will just take you on . We won't go for that worth a damn. That is too big an obligation. You've got to have some limit on the thing . You've got to have a fixed figure that pushes them over. Now, I'll go with you, and I have said this before; if we do not now have enough time in which to le- gitimately get the contract negotiated in the 60 days ensuing the following of the termination, let's set this whole business ahead a little further. Let's get at it a little sooner so we can consummate it. . . . I do think that it would be smart for us to get enough time in before we run into this doggone bind of the retroactive clause, so that both parties are reason- ably sure that you can consummate it, that you can make your deal. We thought when we had three and a half or four months that we had enough time. It is quite obvious we didn't. MR. MORRELL : This is the first year you opened the contract. MR. KENYON : This is the first renewal, that's right. MR. MORRELL : And it doesn't work this year. MR. KENYON: That's right. MR. MORRELL : So, therefore, it should be changed in some manner. SOUTHERN CALIFORNIA EDISON CO. 207 MR. KENYON : That is what I say, and I am will- ing to go along with you on some kind of a change; but we can't go for the idea that you could allow anybody to just sit here and bull away for 90 days, 120 days or for six or eight months and have no pressure on them to get the job done , Les. That is important. MR. • MORRELL : We are asking you to be free right now. We are asking you to set this date effec- tive as of this contract. MR. KENYON : So far as this thing that you're talking about now-I'm a little confused. MR. MORRELL: Retroactivity. MR. KENYON : Yes. I'm confused. Now you are discussing this contract or this year, or do you want to change the green book [referring to the collec- tive-bargaining contract]? MR. MORRELL : We're changing the green book. MR. KENYON: Oh. MR. MORRELL: To set this thing back to the expi- ration date. We've run into that the very first year. There is reason now. We didn't know at the time this was drafted. This was never exposed. Now it is exposed. . MR. KENYON: . . . I do think . . . that we are going to have to set up some kind of a reasonable period or limitation on the amount of retroactivity, so that you do not get into the bind where some- body , has a right to just sit there and go golly- wolly, golly-wolly, ad infinitum for a year and a half and have no pressure on him , have nothing to push him up. Jeez, it just seems you have to have a limitation. MR. MACKINNON : Well, I hadn't intended to say anything about this, but I am going to, because I have listened to this about long enough . . . . Put yourself in the position of any Union with a 60-day retroactive clause. Let's assume we are not dealing with your Company. Take some of these depart- ment stores you mentioned the other day. What in the world would prevent the management of those companies with a clause like this from sitting tight and saying to themselves, "Give nothing until the deadline. Then the membership will put pressure on the negotiating committee because of fear of loss of back pay and force the committee to accept what- ever kind of a deal the Company wants to offer." That is precisely what happened at the steam plant. I know it and so do you. MR. KENYON : I think this, however, Les. It is a difficult problem, but I think it is an essential prob- lem. I think it is important that there be a self stim- ulating device here that forces both of these people to get together to get the job done . See? There are pressures that the Union brings to bear upon the Company, as you well know, and there are pres- sures which the contract itself brings to bear upon the Company, and we have to live with them. Now, what Mac says, apparently , is that he doesn't like it when the Union has that pressure, because it can be translated to mean that the employees are being eu- chred into a position where they have to take some- thing which is less desirable than they are entitled to get and that they might get if you had ad infini- tum in which to argue and you could just sit there and argue until next Christmas on this thing. To my mind, somewhere along the line, you have to have a close-out, a termination. The fact that we guessed wrong as to how long it should be this time or it didn't work out right this time, I don't think that proves that the principle is wrong. During a bargaining session on 14 April 1947 the par- ties' negotiators continued their discussion • concerning the feasibility of maintaining article XVI(C)'s 60-day ret- roactivity provision in the successor contract, as follows: MR. KENYON: ... [T]he other question which we were talking about the other day and which you thought we could discuss a little further this morn- ing was the next clause, this Duration, Termination and Renewal. Our problem there, Les, is just this. It says, "Any agreement reached as a result of such negotiation with respect to any wage change shall become effective as of the anniversary termination date of this agreement, provided such retroactivity does not exceed 60 days." If you have no retroac- tivity, the Company has got the Union on the hip. If, on the other hand, you have no limit to the ret- roactivity, it is well within the concept of man to say that the Union has got the Company on the hip. It was those two alternatives that we discussed last year at some length and arrived at this as a compro- mise deal, that you have a 60-day period following the termination and then you move in and close it off. In my opinion, it is an unfortunate deal that we should, on our first negotiation, have run into this bad deadlock here or bad slow up process that we didn't finish the job in the expected time. My sug- gestion for cure of that condition would be to see that we get more negotiation time in before the damn limitation on retroactivity could possibly take effect, and by so doing insure against a repetition of the present situation. I think we could do that. I think we could. MR. MORRELL: Would you be willing to elimi- nate that and add to the contract providing for whatever is agreed to be retroactive as of the date of the expiration of the contract? MR. KENYON: . . . I do feel that the limiting factor on the amount of retroactive time does stimu- late. It does force the parties to try to meet and reach an agreement. I don't think the Union would like it if we said you must get this cleared up be- cause at the end of the year you have no contract and there's no possible way to set it up. So that same kind of argument, the Company wouldn't like it if the retroactivity was running on into the future and you had no limitation on it at all. I think both parties have a problem there. 208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD MR. MORRELL : I would like to see it set up there so that you wouldn't have too much disturbance in the field which I know has occurred, perhaps, this year, but unless the Company is willing to make this correction and make it effective as of the date of the.expiration of this contract, I see no reason for changing any of it. If we are going to get down to a firm footing where we're going to operate fairly to both sides, then I see no reason . If .we want to create disturbance, we'll have to leave it as it is. During an 30 April 1947 negotiation session the par- ties' negotiators discussed the applicability of the 60-day retroactivity provision to Respondent 's wage offer, in these terms: MR. KENYON [Respondent negotiator]:.... We were willing to forego the technical right that we have under the contract to limit the retroactivity to 60 days in order to get these guys in the Union and those guys that are under the Union but are not necessarily members of the Union, get them all on the same plane. MR. MORRELL [union negotiator]: Why are you so willing to run it [referring to retroactivity] back this year when you don't want to put it in the con- tract from year to year? You still want to use the same leverage that you have had this year. MR. • KENYON: That's right. We still think that is a good leverage. It didn't work this year, but that is no reason why it's not a good leverage. MR. MORRELL: There is no reason why it shouldn't work next year. Is that the point? MR. KENYON: It should work. It hasn't hurt you any so far. MR. MORRELL: I can't see how we can take one position and then turn right around and do the re- verse; take the reverse position where the contract says it is a 60-day period and the Company now wants to set it back. MR. KENYON: We are trying now to make a deal. ... We know the contract calls for 60 days. We know it sets it up. See? And under normal condi- tions if we had completed our contract negotiations on time and as we should have done with three and a half months to do it in, we would have done it. We would have been under the wire... . MR. MORRELL : I am like you are in the first part of this. I don't want to argue this point because I think there are merits on both sides. 5. The contract negotiations from 1948 through 1959 The '1948 contract negotiations resulted in the parties agreeing to a successor contract on 8 March 1948, which provided for a wage increase retroactive to 1 January 1948, 66 days of retroactivity. Then in the 1949 contract negotiations the parties signed a successor contract which. provided. for 65 days of retroactivity for the agreed-upon wage increase. During the next contract ne- gotiations, held in 1951 , the parties reached an agreement prior to the expiration of article XVI(C)'s 60-day retro- activity period. During the 1952 contract negotiations, at a 20 March negotiation session, Respondent told the union it would agree to more than 60 days of retroactivity for its wage offer in exchange for the Union bargaining committee's endorsement of Respondent's proposed package . Eventu- ally in 1952, the parties reached agreement on the terms of a successor contract which contained a pay raise ret- roactive for approximately 75 days. In the next contract negotiations, held in 1953, after negotiations had reached an impasse, on 8 April, Respondent unilaterally imple- mented its final offer of a wage increase, with the in- crease retroactive for 98 days. Subsequently, in 1955, 1957, and 1959, the next times the parties negotiated suc- cessor contracts, they reached agreement within article XVI(C)'s 60-day retroactivity period. During the 1948 contract negotiations , at a 3 March bargaining session, Kenyon, Respondent's principal nego- tiator, explained Respondent's position on the subject of wage retroactivity, as follows: We are very anxious to get this deal wrapped up so that we can cover-not to have the problem of in- voking the sixty-day limitation on this retroactivity. We were very hopeful that we would be able to get the damned thing in and get it out of the way and get the deal closed. The Union does not feel that it can afford to make such an agreement, and it looks to me like we are just going to be in another one of those things like last year, where we dragged the ... thing on. And Les, we are extremely reluctant this time, and I told the boys the other day that if we are going to have a sixty-day limitation for any purpose at all, we have it there for the purpose of pumping up both sides of this table to get a con- tract. . . . Last year we made a special deal where- by we just forewent or forego-whatever . . . the verb is-the sixty-day provision and set the thing and made it retroactive to January 1. And, frankly, I am extremely reluctant to see us do it again. In fact, we are in the problem where if this means any- thing we are going to have to say, "that is it." .. . During the 1952 contract negotiations at a 24 January negotiation session, Landry for the Union, and Kenyon for Respondent, had the following discussion about wage retroactivity: MR. LANDRY: One of the strategic procedures of bargaining is to sit here through November, or De- cember, rather, and January and February . I think the simplest way of putting that is that at the end of February, the 60-day retroactivity runs out on the wage matter, and after those 60 days are over, then the screws are on the Union. MR. KENYON: [T]he only fellows in here now who have not wanted to talk about money are the guys on your side of the table. Don't give us that sort of stuff that we are stalling you for 60 days so we have you by the nuts at the end of that time. That isn't so. . . . I say to you that 60 days . . . is SOUTHERN CALIFORNIA EDISON CO. 209 adequate time, and history shows that I am right. In six or seven years we have only been over a couple of times. MR. RAPATTONI [union negotiator]: We have been over every year except one. MR. KENYON: Not enough to be technically over the 60 days, and we have always made it set up for the January 1, because it was within scope, within reason. One time we wrestled mightily until May and June or some silly thing , and it was in the early stages. MR. LANDRY : That matter of not getting any- where until March the 1st is a very strange coinci- dence, that it fits in so nicely with the 60-day retro- activity. MR. KENYON: That is one of the reasons you have it, so we will get somewhere; otherwise, we would be bargaining until August. 6. The 1961 contract negotiations In the 1961 contract negotiations, on 26 April the union membership ratified Respondent 's contract propos- al which had been recommended favorably by the Union's bargaining committee . The agreement provided for a 4 percent pay raise retroactive to 1 January 1961, 115 days of retroactivity. During a 26 April 1961 bar- gaining session, when the union negotiation committee agreed to recommend the Company's proposal, Respond- ent's negotiators explained its agreement to grant more than 60 days of wage retroactivity , as follows: We had told the Union, across the table many times, that we were not going to deviate from the contract . We were very reluctant to do anything that would establish a precedent as far as this retro- active pay is concerned . We still feel that way. However, we did not feel that we wanted to penal- ize the people but we did not want to establish a precedent. We summed our position up that the ret- roactivity was contingent upon the Union leader- ship recommending acceptance by the Negotiating Committee. When we get to this stage of negotiations . . . the Committee has little control or leverage to maintain their bargaining position, and almost the only one we have is retroactive pay. Actually this tends to be a support also for the Union Committee , because, at least, the members stand to be penalized to some degree on retroactive pay if they don't support their Committee. I think this has to be. Somehow we have to have a way to get some incentive when we have arrived at the best deal we can , some incentive for the members to support their Committee and honor your commitments. In backing off of our po- sition on retroactive pay this time, this is a major step because, really, this retroactive pay control is the most important part. It is the only thing that can tend to stimulate acceptance of an agreed upon proposal by the membership. [W]e went way over backwards on this retroactive thing. We did not want to establish a precedent, but we felt this time we would do it and it would give you something that you could take back. The negotiation session ended with Respondent 's princi- pal negotiator Allen stating , "I would like to say again that I hope your committee . . . will recognize, that, in waiving this retroactivity we do not feel that we have established a precedent," and the Union's principal nego- tiator Coughlin responded by answering , "No. We don't think so." 7. The 1963 contract negotiations In the 1963 contract negotiations, on 19 June 1963, the union membership ratified Respondent 's contract .propos- al which called for a 5-percent wage increase , with the increase retroactive for 167 days . Respondent's proposal to pay retroactivity beyond article XVI(C)'s 60-day ret- roactivity period was a retreat from its original bargain- ing position and viewed as a major concession. During the 1963 negotiations, at several of the bargaining ses- sions, Respondent's principal negotiator Allen, explained Respondent's position on wage retroactivity , as follows: MR. WILHELM [union negotiator]: I will agree you are tossing in retroactivity. MR. ALLEN : No. I think I said in an effort to try to break this more or less stalemate we have had here for several weeks the Company would with- draw this item of service crew and would the Union then take the Company's proposal out and recommend it? If they would then we would rec- ommend that we would put in the retroactive pay back to January 1, but unless that occurred all bets were off. MR. ALLEN:. . . . Also, on the retroactive pay, we have had some trouble with some of our people who have said, "What is the use of this clause in the contract if we don't enforce it [referring to article XVI(C)]." Because 60 days is the limitation of the retroactive pay. In the interest of trying to get a deal, along with the committee here, we have gone and recommended certain things . Don't think we don't get some criticism from the field and else- where when we take' this kind of position, because people bite us just the same as they bite you... . We are trying to get a deal. We have to make some compromises with the issues we have in front of us, the same as the Union has to ... . MR. ALLEN : We have modified our position con- siderably since we started talking. The fact of the matter is, we made this a conditional proposal, which you are well aware of. I think the amount of retroactivity certainly was conditional, because under the contract it is not due after 60'days. That is one of the things we are going to have to look at too, if this goes on too darn long... . 210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8. The 1965, 1967, and 1969 contract negotiations In the parties' 1965 contract negotiations, on 15 April 1965, the union membership ratified the new contract which provided for a wage increase retroactive to 1 Jan- uary 1965, 43 days of retroactivity. In the 1967 contract negotiations, the negotiators, during a 17 February negotiation session, had the follow- ing discussion about wage retroactivity: MR. FAULKNER [Respondent negotiator]: ... . [T]here is a clause in the contract that says the limit of retroactivity is 60 days . I think at this point we would have to reach agreement or some extension of that even now if we are going to extend it. I think that the people in the field ought to have an opportunity to indicate their feelings before they would be exposed to suffering a penalty because of the fact that it is not ratified. MR. WESSON [union negotiator]: We have dis- cussed this and the committee feels that they are not in any position to take the thing back to the membership at this time. MR. FAULKNER: This disappoints me, Wiley, be- cause I think we have a deal here. It seems to me that we have an obligation at least to make sure that the membership has expressed itself particularly in view of the fact that, as I say, that 60-day situation is running and that at least I think is some obliga- tion to protect the membership with regard to the operation of this particular section... . MR. WESSON : As a result of our break the com- mittee still does not feel that they are in a position to go back out with this... . MR. FAULKNER : Okay, I just want to restate that any proposal that we made with regard to retroac- tivity at this meeting is now off. MR. WESSON : Right. MR. FAULKNER: The 60 days is running. MR. WESSON : Okay. We thank you and we will call you. The next week at a 23 February 1968 bargaining session the subject of wage retroactivity was again discussed, as follows: MR. FAULKNER [Respondent negotiator]: Are you saying that if we were agreeable to dropping both of these, and I am sure we would be as far as 10 and 4, that the union committee would take it out referring to submitting the company proposal to the Union membership. MR. COUGHLIN [union negotiator]: Yes, we would take it out. MR. FAULKNER : You understand, I am sure, that under the Agreement there would be 60 days retro- activity as a maximum. MR. COUGHLIN : Yes, I am aware of that. I was hoping the Company would agree to the retroactiv- ity and the committee would recommend the pro- posal. MR. FAULKNER: What are you talking about, the Company? MR. COUGHLIN: To extend the retroactivity to the time that it took us to get the vote ... . MR. FAULKNER : The 2nd of March is the expira- tion of the 60 days. You say you can't come back by the 2nd of March. MR. COUGHLIN: . . . . I think that would be pretty hard to get back by the 2nd of March or the 3rd of March.... Some of the meetings, like our meeting in El Monte . . . its hard to arrange a hall. It might be possible to get . . . the Carpenters hall if it is available. Sometimes it is not available. Until I check with them , I would not know exactly how fast we could get back . I think it would be helpful in getting the favorable vote on the contract. MR. FAULKNER: Well, I am sure it would be helpful, but again, this 60 days is there for some- thing. We have been working with this for quite a while.. . . Later during the 23 February 1967 negotiation session, the Respondent's negotiation committee agreed to extend the 60-day wage retroactivity limitation so as to give the Union sufficient time to arrange for its members to meet and ratify the proposed agreement. The union member- ship ratified the contract on 15 March 1967 and it pro- vided for a wage increase retroactive for 73 days, to 1 January 1967. In the 1969 contract negotiations Respondent 's 'princi- pal negotiator Faulkner at a 17 February bargaining ses- sion made this statement about wage retroactivity: Another problem I think that stares us in the face, and has stared us in the face in these negotiations historically, is the fact that from what we can ascer- tain, a sizable group of your people out there are not interested in any settlement until April or May when they get a nice big retroactivity check, in their minds that will take care of trips, vacations and so forth. I don't think they are being realistic when they, in fact, assume that they are going to get this, because at least recently we did not apply retroactivity as the field people thought we were going to do it. I don't think that by any means there is any assurance people should feel that regardless of how long this thing goes it is going to be retro- active. The contract provides for 60 days and that is all there is an agreement on is 60 days of retroactiv- ity, which runs out two weeks from today. Later during that negotiation session , after further discus- sion, Respondent's negotiation committee offered to make the wage increase fully retroactive if the Union could obtain ratification of Respondent's contract pro- posal by 17 March 1969. On 14 March 1969 the union membership ratified the contract, which provided for a wage increase retroactive to 1 January 1969, 72 days of retroactivity. SOUTHERN CALIFORNIA EDISON CO. 211 9. The 1971 and 1973 contract negotiations In the 1971 contract negotiations at a 4 February ne- gotiation session the Respondent was notified that the union membership had rejected Respondent's last con- tract offer, at which point Respondent's principal negoti- ator Faulkner remarked: I am not very impressed, if you will pardon me. At least our past history has been such that when there is still some retroactivity left why, the apparent pat- tern is to vote it down and send it back and "see if there is in it just a little bit more that we can get. We haven't got anything to lose . And retroactivity goes to March, so let's send them back in and try to get a little bit more." This has been done every two years for fifteen , twenty years, I guess, at least since '53. . . . I do see a retroactivity problem coming up the first few days in March , and I want to assure you that it is a problem. We are in a position of having insisted on that retroactivity in a prior case. In case the people feel we are a pushover and retro- activity won't be assisted [sic] on, I think you better take another real good look , because I don't think we are in the same position that we may have been in years past in backing off this retroactivity. Thereafter, at a 25 February 1971 negotiation session Re- spondent offered to make the money items contained in its new contract proposal fully retroactive , if the Union obtained its memberships ' ratification of that proposal by approximately 19 March 1971 . The membership ratified the proposal on 22 March 1971, which provided for a wage increase retroactive to 1 January 1971, 80 days of retroactivity. In the 1973 contract negotiations Respondent proposed to delete article XVI(C)'s retroactivity provision. Re- spondent's negotiators explained that Respondent felt the parties should be free to negotiate the question of retro- activity without any limitations staring them in the face. When Respondent's negotiation committee advanced this proposal at a 2 November 1972 bargaining session, the following discussion took place: MR. FAULKNER [Respondent negotiator]: Section C: Delete sixty day retroactive provisions. Now we intend here to provide for the effective date of the agreement to be subsequent to the date of signing; and that depends upon the agreement reached between the parties at the time of reaching the agreement . So we feel that a stigma attaches to the 60-day provision, and sometimes that serves to delay the parties reaching an agreement , by looking at the 60-day provision, and feeling-"well, why should we rush into signing something? We've got a few more days-or weeks . Let's go back and see what else we can get." And we feel that the parties could negotiate their own settlement , without having the 60 days staring them in the face, to, the advantage or disadvantage of either party. MR. COUGHLIN [union negotiator]: It might work the other way, mightn't it? You may just drag out to see if you could beat a guy out of part of his money by taking up unreasonable positions on your side, that we could not accept them, and we'd-lose six months' wages. MR. FAULKNER: We can do that now, with more than 60 days. MR. COUGHLIN: You have got at least 60 days you're obligated on, under the present agreement; see? The Union proposed that the parties agree to make the Respondent's proposed wage increase fully retroactive no matter when a contract was settled , but, in the ab- sence of such an agreement , the Union resisted deletion of the 60-day retroactivity provision. The parties did not agree on either proposal, and the 60-day retroactivity provision remained in article XVI(C). The 1973 contract negotiations concluded on 11 May 1973 when the union membership ratified a contract pro- posal which provided for a wage increase retroactive through 1 January 1973, 129 days of retroactivity. On the subject of retroactivity the parties' negotiators at a 12 March 1973 bargaining session engaged in this dialogue: MR. FAULKNER: The other thing we haven't spoken of is the problem of retroactivity and we tried to withdraw this thing this year and didn't make that one. I think that the general feeling that we have got something in the contract we ought to abide by it. We have all known it was there. We have all been aware of what it said. We started out these discussions early in life here and we've now gone beyond the time, I guess the cutoff was about the 2nd of March, I haven't figured it out exactly, but on that basis every day that we don't reach agreement means that the retroactivity effect on the wage situation particularly moves away from Janu- ary 1st. Today the retroactive date of the agreement would be, I believe, approximately the 10th of Janu- ary. We would certainly like to get some way to get this wrapped up before it moves any further and takes any more out of the paychecks of your. mem- bers. MR. COUGHLIN : Well, I obviously think that the money, the changes should be retroactive to the first of the year and I have always felt that we should take that section out of the contract and make it clear that we are going to make it retroac- tive to the first of the year... . 10. The 1976 and 1978 contract negotiations During the 1976 contract negotiations Respondent again proposed to delete article XVI(C)'s retroactivity provision and to leave the issue of retroactivity open for negotiations with the other items. The Union proposed replacing it with a provision making any agreed-upon wage increase fully retroactive. On 15 January 1976 Re- spondent withdrew- its proposal- to delete article XVI(C)'s retroactivity provision. By 19 February 1976, the parties had begun talking about wage retroactivity beyond the 60-day limitation set forth in article XVI(C). During the 19 February negotia- tion session, Simpson, a spokesperson for Respondent, 212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD explained Respondent's position on this subject, as fol- lows: I think [the matter of retroactivity] should be taken quite seriously by your membership, because those provisions on retroactivity in the Agreement, they have been in the Agreement for many years. The fact that we are both confronted with here , is that retroactivity provisions do exist in the contract. I am the first to agree with ' you, Mike [referring to the Union's negotiator Mike Kelly], and the first to concede the fact that over the years and the first to agree that arrangements have been made over the course of negotiations that have softened and other- wise modified the strict requirement. . . . Let me say this that there are two things different this year in connection with the retroactivity issue. One of the things that is different is that the conditions are different, economic conditions are different. .. . That is a fact for which we have to continue to take into consideration when addressing this matter of retroactivity. The other thing which is different is that never before in the history of the negotiations . . . have we gone this long without giving you a general wage increase offer... . On 1 March 1976 Respondent proposed to make its proposed wage increase fully retroactive, if the Union could obtain its memberships' ratification of Respond- ent's "best offer" by 1 April 1976. If the Union went past that date, there would have to be further discussion be- tween the parties about wage retroactivity. The Union was unable to get its members' ratification of Respondent's "best offer" and at a negotiation session held 8 April 1976, Simpson, on behalf of Respondent's negotiation committee , made the following remarks con- cerning the subject of retroactivity: We did not get that [ratification referring to the ratification by the union members of its "best offer" by 1 April] and I guess I can't think that I would be less than candid with you if I did not suggest that that whole subject is on the table. By the end of March we are certainly by the 1st of March which is where the retroactivity stops under the provisions of the Agreement . As a matter of fact, what is your view of the applicability of the retroactivity , even if we go past the 1st of March in our discussions here? We have had some questions raised on our side that if we agree within those first 60 days of the year, changes can be made retroactively to the first of the year. But there is one interpretation of our contract provision which is possible and that is if we go past the 1st of March, then there is not any retroactivity at all. In response the Union's principal negotiator Kelly stated: Of course that is a contested interpretation. . . . We have always discussed retroactivity at one time or another and it is probably more discussed than any other single item in the contract every year. I can't think of one that gets more attention . From that standpoint, I guess we are in a position to negotiate whenever we can negotiate at the time we get at the end of our discussions . . . . If we never have agreement on a package retroactivity is really not an important question . We have to reach agreement some place. That is where we think we should spend all of our efforts to try to get agreement and let retroactivity discussions go to the end. Simpson, for Respondent, responded by stating in perti- nent part: I just want to make the point that the members of the Company's committee considered this whole matter of retroactivity as a serious issue and an issue which is on the table and an issue which will have to be resolved. The last thing I would want either of us to do is to underestimate the importance of this issue at this time in our negotiations. After some further discussion by the parties on other issues, Simpson brought up the subject of retroactivity for one last time, stating: I did want to make the point about this retroactivity item. I will mention this then get off of it. . . . I want to mention the point that we have those pro- visions in the contract. The paragraphs in the con- tract which stand there and I . . . think I speak for every member of the committee that all of us are troubled and concerned about the applicability of 'those paragraphs. There certainly is not any easy solution. We are by the time for the application of those paragraphs . And through all of this, whatever stimulation it may be to . your discussion and for whatever effect it may ultimately have upon the agreement that we are able to reach here, we do have that issue on the table to deal with. During a 15 April 1976 negotiation session, the nego- tiators resolved the question of wage retroactivity, inso- far as it applied to any wage increase agreed upon by the parties, in the following manner: MR. KELLY [union negotiator]: Well, our com- mittee discussed your proposal and your offer. We came to a conclusion. If you make that offer retro- active to January 1, 1976, that we would recom- mend the package for acceptance of the member- ship. MR. SIMPSON: Well, we are delighted to hear that. On behalf of the Company, let me say that ... so far as the money items in the package are concerned we are willing to make the proposal ret- roactive to January 1, 1976. Thereafter, the union membership ratified the Company's proposal on 7 May 1976, which provided for a wage in- crease retroactive to 1 January 1976, 125 days of retroac- tivity. The 1978 contract 'negotiations again went well beyond article XVI(C)'s 60-day retroactivity limitation for wages. During a 27 June 1978 negotiation session the union negotiation committee agreed to take a company SOUTHERN CALIFORNIA EDISON CO. proposal to the membership for ratification, which in- cluded a fully retroactive wage increase . Simpson, Re- spondent's principal negotiator, warned the Union's ne- gotiation committee that if, contrary to the committees' expectations the membership rejected Respondent 's pack- age proposal and the parties had to return to the bargain- ing table for another series of negotiations on the pack- age, that "retroactivity will be an open question," and stated "I cannot tell you . . . that if we have to go through another series of meetings that there will be full retroactivity." The membership rejected Respondent's proposed package and at a 25 July 1978 negotiation session, Re- spondent modified its proposed package and on the sub- ject of wage retroactivity, Simpson, Respondent's princi- pal negotiator, stated: You can respond to this offer ... in any way that you deem appropriate, but we will stop the retroac- tivity clock on August 4th, and after August 5th, there will be one day removed from retroactivity for every day that we go beyond August 5th and following. What that means is that the period of ret- roactivity is frozen at seven months. I. think it freezes retroactivity at seven months plus a very few days. On August 5th, retroactivity would go to January 2nd; On August 6th, retroactivity would go to January 3rd, and so forth. On 4 August 1978 the union membership ratified Re- spondent's contract proposal, which, as described supra, provided for full retroactivity, a little over 7 months, with respect to the wage increase included in that pro- posal. 11. The 1953 through 1979 wage reopener negotiations As I have found supra, since 1953 all but one of the contracts between the Union and Respondent have in- cluded a wage reopener provision identical in all perti- nent respects to article XVI(D), as set forth in the 1984 Agreement, with respect to retroactivity. During the period from 1954 through 1977, Respondent and the Union engaged in wage reopener negotiations pursuant to this contractual reopener provision on 11 separate oc- casions. On each occasion the parties reached agreement and a wage increase prior to article XVI(D)'s 60-day ret- roactivity period, thus no retroactive wage increase of any sort was paid. In 1979, the 1978-1979 contract was reopened for wage negotiations pursuant to article XVI(D), and this resulted in the parties reaching an agreement on or about 20 April 1979 for a wage increase , retroactive to 1 De- cember 1978. This represented the first occasion when the parties failed to reach agreement within the 60-day retroactivity period set forth by article XVI(D). There is no evidence that the parties' negotiators engaged in a discussion during the 1979 reopener negotiations, about retroactivity, other than the fact that when agreement was finally reached, that each agreed that the agreed- upon wage increase would be fully retroactive. 213 12. Respondent's program to roll back retroactivity to the contractual 60-day limit As I have found supra, the parties' 1978 contract nego- tiations were the longest ever, with the contract's ratifi- cation occurring 4 August 1978, and only after Respond- ent had informed the Union that wage retroactivity would not be paid past 4 August 1978, and for each day the negotiations went past that date, Respondent intend- ed to take away 1 day of retroactivity until the contract limit of 60 was reached. The 1979 wage reopener negoti- ations were also protracted and for the first time, as I have found supra, a midterm wage agreement was not ratified by the Union's membership within the 60-day retroactivity limitation period. The agreement was not ratified until 20 April 1979. Respondent's management was concerned about the increasing length of the negotiations, because this had re- sulted in employee overtime boycotts as well as general employee dissatisfaction and unrest. As a result members of management met among themselves . They discussed the trend toward increasingly protracted contract and wage reopener negotiations involving the Union and an- other labor organization and the adverse effect these lengthy negotiations were having upon Respondent's business operation.' This series of management meetings began several months before the start of the 1980 con- tract negotiations and continued while those negotiations were in progress. During the above-described series of management meetings dealing with the problems caused by the lengthy contract and reopener negotiations, management started from the premise that pursuant to the retroactiv- ity provisions of article XVI(C) and (D), Respondent had the contractual right to limit the retroactivity of wage increases to 60 days. But, at the same time, man- agement realized that because in the past Respondent had waived the 60-day limit, that if it abruptly asserted this right during the current 1980 contract negotiations, it could lead to a strike or other labor disruption. Conse- quently, management decided Respondent would gradu- ally roll back the retroactivity date, 1 month at a time, until it became possible to reach agreement in contract and reopener negotiations within the 60-day contractual retroactivity limit without risking a major labor disrup- tion. The management decision to gradually roll back the retroactivity date was reached after a series of manage- ment meetings which ended in late April or early May 1980. Respondent's manager of labor relations, Mendez, when the decision was made, or shortly thereafter, in- formed one of the Union's principal negotiators, its Busi- 4 Respondent has a collective-bargaining relationship with the Utility Workers Union of America (UWUA) which represents a unit of Re- spondent's employees, who have been covered by a series of contracts which, during all times material, contained retroactivity provisions identi- cal to the ones set forth in art. XVI(C) and (D) of Respondent's contracts with the Union. The decision reached by management as the result of the above-described management meetings, involved Respondent's contract and wage reopener negotiations with the UWUA, as well as the Union In my recitation of the evidence herein , I have not described the contract and wage reopener negotiations between Respondent and the UWUA, because it would add nothing of significant relevance to an already overly long decision 214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ness Manager Dallas Lore, that with respect to the 1980 contract negotiations, which were in progress at that time, Respondent would provide no retroactivity beyond 1 July 1980. There was no evidence Mendez told Lore about Respondent's decision to gradually roll back, in subsequent negotiations , the contractual retroactivity date. However Rae Sanborn , who, during the time material in 1980 was an assistant business manager for the Union and one of the Union's principal negotiators during the 1980 contract negotiations, was notified by Mendez' boss, a Mr. Hathaway, about Respondent's plan to gradually roll back the contractual retroactivity date. Hathaway told Sanborn that Respondent had formulated a 5-year plan designed to shorten negotiations and during this period Respondent intended to decrease the amount of wage retroactivity by 1 month each year . More spe- cifically he told- Sanborn Respondent intended to move back retroactivity by 1 month from the 5 August retro- activity date, the retroactivity date agreed to by the par- ties during the 1978 contract negotiations,5 and intended to move back another month in each of the subsequent years of its negotiations with the Union . Sanborn re- sponded by stating Respondent's position on retroactivity would inflame the bargaining atmosphere and prolong the bargaining process and that it would be the Union's position that the parties' should negotiate a contract and only then negotiate retroactivity . Shortly after this con- versation with Hathaway, Sanborn had an identical con- versation with Mendez. Sanborn testified that his above-described conversation with Hathaway and Mendez about Respondent's inten- tion to gradually roll back the retroactivity date over a period of years, occurred in either 1982 or 1983. I am persuaded they occurred immediately after Respondent's management decided in the spring of 1980 to institute its program of gradually rolling back the retroactivity date. It is improbable that in 1982 or 1983 Hathaway and Mendez would, as Sanborn, testified, tell him that Re- spondent intended to move back the retroactivity date of the contract 1 month at a time during successive negotia- tions starting from the 5 August retroactivity date agreed upon by the parties in the 1978 contract negotiations. For, as I have found supra, in the 1980 contract negotia- tions the parties agreed to a 30 June retroactivity date, thus, I am convinced that if Sanborn's conversations with Hathaway and Mendez took place in 1982 or 1983, Mendez and Hathaway would have used the 30 June ret- roactivity date rather than the 5 August date . In view of this and because it is more probable that Hathaway and Mendez told Sanborn about Respondent's retroactivity roll back decision immediately after that decision was made, rather than waiting for 2 or 3 years , I find that Sanborn's above-described conversations with Hathaway and Mendez occurred in the spring of 1980 during the course of the 1980 contract negotiations. 5 Although the retroactivity date agreed upon dung the 1978 contract negotiations was 4 August, not 5 August, it is plain , when viewed in terms of the whole record , that Hathaway was referring to the retroac- tivity date in the 1978 contract negotiations when he used the date "August 5." 13. The 1980 and 1982 contract negotiations In the 1980 contract negotiations the Union proposed to delete article XVI(C)'s 60-day retroactivity provision in its entirety. Instead the Union proposed that the con- tract's wage agreement be made fully retroactive when- ever reached . Sanborn, the Union's principal negotiator, testified the Union sought the deletion of that provision because of its perception that the provision contributed to protracted, rather than expedited negotiations. Re- spondent rejected the Union's proposed deletion of the provision and at a 11 March 1980 negotiation session, the Union withdrew this proposal . The parties' respective positions on this issue are best summarized by an ex- change of words between their principal negotiators during a 20 February 1980 negotiation session: MR.' SANBORN [union negotiator]: No. 73 is next [referring to the Union's proposal to delete article XVI(C)'s retroactivity provision]. . . . I would still like to remind you that this 60-day retro limit that's in the contract is something that we looked at as a form of coercion . . . . We should negotiate here to get a package that the people are going to buy and once we negotiate that package we should make it effective for the term of that package which is to January 1 of this year and for whatever positive effect that you feel is out there by having this 60- day retroactive limit in the contract, I can assure that there is a negative reaction by many that say if I haven't got it, I can't lose it. They get aggravated when it's even brought up. I don't think it gains anything. If you were to come to the meetings when we're discussing these particular offers and were talking about the wage proposal . . . I think that you would find you aren't helping anything by having that clause in there . We think it ought to be deleted. MR. MENDEZ [Respondent negotiator]: We think it serves a purpose . It hasn't been used very often in the history of the bargaining. It does speed negotia- tions along and provides motivation for all of us to try and keep to the task and do whatever we can to move the things forward . We think it serves a pur- pose and has value. Regarding the applicability of article XVI(C)'s 60-day retroactivity provision to the 1980 contract negotiations, Respondent raised the retroactivity issue during a 12 May 1980 bargaining session , after the union negotiation committee refused to submit Respondent 's "best and final and last offer" to the membership for a ratification vote. Respondent's principal negotiator Mendez, at this time, stated: [W]e must formally raise the issue of retroactivity at this time. . . . Contractually we are obligated to pay 60 days retroactivity. And further, our offer in- cludes taking the wage offer back to December 1, 1979. So we have an obligation . . . to pay 90 days of retroactivity pay. This committee has discussed this subject and it is our decision that the Compa- ny's position with regard to retroactivity is as fol- SOUTHERN CALIFORNIA EDISON CO. 215 lows: That if the contract is not ratified and signed before July 1 , 1980, the retroactivity clock will stop. And for every day starting July 1 that the contract remains unsigned , there will be a one-day loss of retroactivity . What this means is that we go beyond our obligation of 90 days and provide for a seven month period of retroactivity . But beyond that, we will provide for no more... We have an offer on the table that . . . says you have the period from December 1 through July 1. So retroactivity would stop being paid on July 1. It would be a period after July 1 for every day that it was not'signed, the wage rates would return to the old wage rates... . The union negotiation committee objected to Respond- ent's tactic. The eventual outcome of the 1980 contract negotiations was that the union membership ratified Re- spondent's contract proposal on 30 June 1980, and it pro- vided for a wage increase retroactive to 1 January 1980, 178 days of retroactivity. In the 1982 contract negotiations the Union, as was the case in the 1980 contract negotiations, proposed to delete article XVI(C)'s 60-day retroactivity provision in its en- tirety and proposed that the contract wage agreement be made fully retroactive whenever reached. Respondent, as it did during the 1980 contract negotiations, rejected this proposal and, on 4 January 1982, it was withdrawn. During the 1982 contract negotiations ' the parties agreed to reinstate article XVI(D), the wage reopener provision, which had been in all of the parties' previous contracts since 1952, except for the 1980 contract when it was replaced by a cost-of-living adjustment provision. The parties also agreed to include as a part of article XVI(D) the identical 60-day retroactive pay provision which had been attached to that article since 1952. There is no evidence of what, if any, discussion occurred during negotiations about the reinstatement of that provi- sion. Regarding the applicability of article XVI(C)'s retro- activity provision to the 1982 negotiations, the parties' negotiation committees reached agreement on the terms of the contract, subject to ratification by the union mem- bership, and the agreement was ratified by the member- ship on 16 April 1982. The contract provided for a wage increase retroactive from 16 April 1982 to 1 January 1982, 104 days of retroactivity. 14. The 1983 wage reopener negotiations During 1982 there was no wage reopener negotiations because, as described supra, the parties' 1980-1981 con- tract called for an automatic midterm across-the-board pay raise based upon the Consumer Price Index. The 1982-1983 contract, however, included a wage reopener in article XVI(D) and pursuant to that provision the con- tract was reopened in 1983 for wage negotiations. In those negotiations, Respondent offered to make a 6-per- cent wage increase fully retroactive if the Union would obtain ratification by 11 March 1983, a date 9 days after article XVI(D)'s 60-day retroactivity limitation. The Union's negotiation committee stated it would be impos- sible to schedule a membership ratification meeting by that time. In an effort to accommodate the Union's ratifi- cation meeting scheduling problem, Respondent's negoti- ation committee offered to make the wage increase fully retroactive if the Union obtained membership ratification of the offer by, May 1983. If the offer was rejected, Re- spondent's negotiation committee stated it would grant only the 60 days of retroactivity that was provided for in the contract. The Union's membership ratified Respond- ent's 6-percent wage offer and the parties on or about 29 April 1983 reached agreement on a 6-percent wage in- crease, with the increase retroactive to 1 January 1983, 118 days of retroactivity. During the above-described ne- gotiations, when Respondent's negotiation committee agreed to make Respondent's wage offer fully retroac- tive to 1 May 1983, Respondent's negotiation committee expressed concern about the length of time it had been taking the parties in the recent past to conclude their collective-bargaining negotiations, and informed the union negotiation committee that this had resulted in Re- spondent paying more than the 60 days of retroactivity required by the contract and that Respondent was work- ing to take the retroactivity date back to the contractual 60 days and hoped that its proposal to make its wage offer fully retroactive from 1 May 1983 would result in a timely and reasonable resolution of the current wage re- opener negotiations. 15. The 1984 contract negotiations In the 1984 contract negotiations the Union proposed that article XVI(D), the wage reopener provision, should be modified to "delete retroactivity limitation." The par- ties expressed their positions concerning this proposal during an 25 October 1983 negotiation session, as fol- lows: MR. SANBORN [union negotiator]: No. 75 would delete the 60-day retro limitation. The same old concept . We believe we should resolve these negoti- ations as quickly as possible and that when we final- ly . . . agree on a wage increase that it should be retroactive to the anniversary date of the contract. ... Certainly the addition of the retroactivity issue into this process [referring to the collective-bargain- ing process] I think inflames it and makes the bar- gaining appear to take on a new dimension and adds hostilities that are not needed . We think that just deleting the 60-day retro limitation and saying that we will bargain and settle the package and it will be retroactive is the way to go. MR. MENDEZ [Respondent negotiator]: ... . This contract provides that retroactivity shall not exceed 60 days, period, and it is very clear. .. . But, unfortunately from our perspective, we let that get entirely away from us. We took the position and really agreed to pay any retroactivity for a long period of time, and some years ago we decided that that is one of the things that really leads to pro- tracted negotiations . . . . So we decided that we would begin slowly over a period of time to use reason and begin work to end the protracted negoti- 216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ations we had been involved in. . . . As a part of that same feature, the Company decided it would begin to invoke the retroactivity clause and we have in fact done that. We did not do it all at one fell swoop and say okay , that is it, because we had a pattern of bargaining on this property that had probably gone on 30 or 35 years with the retro being paid from the time of the agreement. So we began slowly but surely-and have over a period of time-moved that retro date back. . . . We think eventually we will get there-that 60 days retro is all that should be paid if we go retro unless the par- ties got locked into some kind of negotiations where the Company itself was the one that was responsible for holding a settlement up. . . . But we think if we agreed to your proposal it would certainly serve us no interest and in the long run serve the member- ship no interest because I think the outcome of it would be would return to lengthy, protracted nego- tiations. So we very much are not in agreement with the concept that we delete those restrictions. ... So, in summary, we felt very strongly that the current retroactivity limitation should remain in the agreement and that we should continue to work toward the 60-day limitation... . MR. SANBORN:.... As far as the 60-day retro- activity, I think the contract provides that we will try and have it done by the first of the year and it will be retroactive if it is done within 60 days. It in- terests me that you sort of make that sound like a prohibition against going beyond 60 days. Certainly we have always agreed to go beyond 60 days and there is nothing wrong with that . The feeling that you get that it is a prohibition is why we propose to take that out of there and just agree that we will make the retroactivity apply whenever we get it settled and put the focus on working to get the con- tract settled. The Union apparently eventually withdrew its proposal to delete the retroactivity limitation provision from arti- cle XVI(D), inasmuch as article XVI(D) remained un- changed in this respect in the agreement reached by the parties. The applicability to the 1984 contract negotiations of article XVI(C)'s 60-day retroactivity provision was brought up by Mendez, who, at a 11 January 1984 nego- tiation session, on behalf of Respondent's negotiation committee, informed the Union's negotiation committee, that pursuant to Respondent's program of gradually roll- ing back retroactivity until the terms of the contract's 60-day retroactivity provision were complied with, that Respondent during the instant negotiations did not intend to agree to retroactivity past 1 April. In this regard Mendez stated: [W]e have been concerned over a number of years about the length of time that negotiations have taken. . . . We decided a long time ago that it was time that both parties lived up to the contract with regard io retroactivity. So we started back I guess in the 1978 period in an attempt to move that retro- activity date back. Rather than try to do it all in one step, which certainly could cause one hell of a conflict between the parties, we decided that we would do it over a time period, and we did. We moved it back to something like August 7th, then moved it back -to July 1, then moved it back to June 1 and so forth. And as far as the Company is con- cerned, we continue on that situation . Last ' year it was May 1. We are looking at April 1 this year in an attempt to bring that situation into focus. Subsequently, during a 15 February 1984 negotiation session the parties' principal negotiators, Sanborn and Mendez, exchanged the following words about the appli- cability to the negotiations of article XVI(C)'s retroactiv- ity provision: MR. SANBORN:.... If we are going to prolong this thing into future weeks [retroactivity] is going to be a problem and we might as well get into it. ... [T]here are two ways to go, and that is (1) to do something that I have always subscribed to and that is simply not make it an issue, bargain until we resolve the package. The other is if you are intent upon defining it as an issue by April Fool's Day, why then we ought to get on with settling this thing and quit this horsing around. MR. MENDEZ:.... [W]e have said after we got into these long protracted years of bargaining, that as far as retro was concerned we were going to begin to move that retro time back. We could have moved the retro date back to March 2nd in 1978, 1979 or 1980. But we didn't do that. The reason that we didn't do it is pretty straightforward. We had been a party in conditioning the membership to long negotiations and to make that change all in one term would have had what you like to call a train wreck for no reason at all except that we changed the rules in a hurry . So we said to ourselves at that time that we will take it back in gradual steps, a month at a time as we begin to bargain , so we can get this thing into a realistic perspective , we can be able to uphold our end of the contract because the contract says 60 days, be able to get something that we had in the contract and yet not cause a train wreck. And that is what we have done over a period of time. . . . So to put the answer straight to you, no, we are not interested in having retro become an issue, but we are not going to move off the retro date [referring to April 1, 1984]. The eventual outcome of the 1984 negotiations was a contract that the Union's membership ratified on 23 March 1984, which provided for a wage increase retro- active to 1 January 1984, 81 days of retroactivity. 16. The 1986 wage reopener negotiations By letter dated 15 October 1985, the Union notified Respondent of its intent to reopen the 1984 Agreement for the purpose of negotiating a general across-the-board wage increase pursuant to the provisions of article XVI(D). In its letter, the Union expressed a desire to SOUTHERN CALIFORNIA EDISON CO. 217 begin the negotiations in the immediate future in an effort to conclude an agreement before the end of the year, stating that "[a]ccomplishing this would, of course, avoid having the bargaining complicated by the unneces- sary interjection of retroactivity as an issue." . In 1985 either prior to the Union's above-described 15 October letter or after the letter, but prior to the start of the negotiations, Respondent's chief negotiator, Mendez, the manager of labor relations, spoke to the Union's chief negotiator, Sanborn, the Union's business manager/- financial secretary, about Respondent's position on retro- activity. Mendez told Sanborn, "[T]his would be the year that the company would adhere to the March 2nd date." Sanborn responded by stating he disagreed with Respondent's application of article XVI(D), that he felt it would inhibit the negotiation process and felt it was the wrong thing to do.6 On 12 November 1985 the parties commenced wage reopener negotiations and between 12 November 1985 and 30 July 1986 held a total of 17 negotiation sessions. Respondent initially offered a 3-percent across-the-board wage increase, raised its offer to 4-percent on 10 Decem- ber 1985, and made its "best, last and final offer" of a 4.5-percent increase on 17 December 1985. On 31 July 1986, Respondent without the consent of the Union uni- laterally implemented its final wage offer of a 4.5-percent across-the-board general wage increase with retroactive payment for the period of 1 January 1986 through 2 March 1986, with interest paid on the retroactive wage increase. The parties stipulated that Respondent "refused to bar- gain on the issue of retroactivity during the 1986 wage reopener" and further stipulated if it is held that Re- spondent's refusal to bargain about retroactivity was not illegal, that "the parties were at genuine impasse on 31 July 1986, when [Respondent] unilaterally implemented its final offer of a 4.5 percent wage increase." As described in detail supra, the 60 days of retroactiv- ity provided for in article XVI(D) of the 1984 Agree- ment ended 2 March 1986. During the above-described 1986 wage reopener negotiations, conducted pursuant to article XVI(D), the parties' bargaining positions concern- ing retroactivity may be briefly summarized as follows. The subject was first raised by Respondent's bargaining committee at a 21 January 1986 negotiation session when they informed the Union's bargaining committee that Re- spondent did not intend to pay retroactivity beyond 2 March 1986, the contractual retroactivity date, and urged the Union's negotiation committee to submit Re- spondent's "best, last and final offer" to the Union's membership for a vote, in order to avoid the retroactiv- ity issue. The Union's committee responded by stating that the Union viewed retroactivity as a company prob- lem, felt the Company was injecting. an artificial issue into the bargaining process, and felt the parties should conclude their efforts on reaching an agreement which was acceptable to both sides. Thereafter, at a 4 March 1986 negotiation session and continuing thereafter for the remainder of the negotiations, Respondent refused to 6 Based on Mendez' testimony. Sanborn did not deny Mendez' above- described testimony. bargain with the Union concerning retroactivity of Re- spondent's wage offer. In this respect, Respondent's ne- gotiation committee explained to the Union's committee that the plain language of article XVI(D) limited Re- spondent's obligation to pay only 60 days of retroactiv- ity. The Union's negotiation committee responded by stating that the Union interpreted article XVI(D) as simply providing for a guarantee of 60 days of retroac- tivity and that the question of whether retroactivity would exceed 60 days was for the parties to negotiate. 17. The 1987 contract negotiations No evidence was presented about what was said, if anything, concerning retroactivity during the 1987 con- tract negotiations. The record reveals, however, that the negotiations resulted in a successor contract which was ratified by the union membership on 27 February 1987, well within ' article XVI(C)'s 60-day retroactivity limita- tion. The contract contains retroactivity provisions in ar- ticle XVI(C) and (D) identical to the ones in dispute in this case and contains a provision for a wage increase which was retroactive to 1 January 1987, the contract's anniversary date, 57 days of retroactivity. B. Discussion 1. Respondent's refusal to bargain with the Union about the retroactivity of Respondent's proposed wage increase During the parties' 1986 wage reopener negotiations, which were conducted during the term of the parties' 1984 Agreement pursuant to article XVI(D) of the agree- ment, Respondent refused to bargain with the Union about the retroactivity of its wage increase offer. Re- spondent took the position, expressed to the Union, that the plain language of article XVI(D), the contract's wage reopener, limited Respondent's obligation to only 60 days of retroactivity, therefore Respondent was not obli- gated to negotiate concerning the Union's request that Respondent pay more than 60 days of retroactivity. Absent article XVI(D)'s provision limiting retroactiv- ity to. 60 days, Respondent was required by Section 8(a)(5) of the Act to negotiate with the Union concern- ing the Union's request that Respondent pay more than the 60 days of retroactivity it was willing to pay. This is so, because the law is settled that the retroactivity of a wage increase is a mandatory subject of bargaining. Public Service Electric Co., 280 NLRB 429 (1986). Ac- cordingly, the essential question presented for decision is whether by agreeing to article XVI(D)'s retroactivity provision, the Union waived its statutory right to negoti- ate during the 1986 wage reopener negotiations for more than the 60 days of retroactivity provided for in article XVI(D)'s retroactivity provision . In this regard, the law is settled that while a union may contractually waive its statutory rights, such waiver may be established only by "clear and unmistakable" evidence that the union inten- tionally yielded its right. Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708, 709 (1983). I find, for the rea- sons set forth hereinafter, that by agreeing to article XVI(D)'s retroactivity provision, the Union waived its 218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD statutory right to negotiate for more than the 60 days of retroactivity provided for in that provision. Article XVI(D)'s disputed language-"Agreement as a result of such reopening shall become effective as of Jan- uary 1, 1986, providing such retroactivity does not exceed sixty (60) days"-limits Respondent's obligation to 60 days of retroactivity . The plain meaning of this lan- guage is that for purposes of the 1986 reopener negotia- tions, insofar as retroactivity is involved, Respondent's sole obligation was to pay 60 days of retroactivity and not a day more, or, stated another way, the language clearly and unambiguously establishes a 60-day limitation on the amount of retroactivity Respondent was obligated to pay if the reopener negotiations went more than 60 days beyond 1 January 1986. The General Counsel contends that article XVI(D)'s retroactivity provision is ambiguous because it merely says there will be 60 days of retroactivity paid and does not specifically state that there shall be no retroactivity paid should bargaining continue 60 days beyond 1 Janu- ary 1986. The Union contends that article XVI(D) merely provides for a "guarantee " of 60 days of retroac- tivity, and that since the post-60-day period is not ad- dressed by the provision, it is therefore subject to bar- gaining as part of the reopener negotiations. The posi- tions of the General Counsel and the Union ignore the actual language of article XVI(D) which provides that for purposes of the wage reopener negotiations , retroac- tivity shall be paid so long as it "does not exceed sixty (60) days." This language plainly encompasses whatever wage reopener negotiations are conducted pursuant to article XVI(D), not just the negotiations for the 60-day period ending on 1-March 1986. Respondent takes the position that if, as I have found, the plain language of article XVI(D)'s retroactivity pro- vision clearly and unambiguously establishes a 60-day limitation on wage retroactivity that Respondent was ob- ligated to pay during the 1986 wage reopener negotia- tions, regardless of the length of the negotiations , that it ends this matter and I should look no further to ascertain the intent of the parties in agreeing to article XVI(D)'s retroactivity provision . In this regard, Respondent argues that considering the plain and unambiguous language of article XVI(D)'s retroactivity provision, the parole evi- dence rule precludes the introduction of extrinsic evi- dence concerning the meaning of the provision . This ar- gument is without merit for the reasons set forth below. The Board, with the approval of at least one court, has occasionally stated that when a contract provision is un- ambiguous, the Board will not consider extrinsic evi- dence in ascertaining the parties' actual intent in negoti- ating the provision. See, e.g., NLRB v. Electrical Workers IBEW Local 11, 772 F.2d 571 (9th Cir. 1985). On other occasions, however, despite the plain meaning of the words of a contract provision , the Board has declined to apply the parole evidence rule to exclude extrinsic evi- dence, but has taken the position that even when the plain meaning of the words support one of the parties' interpretation, the Board will consider extrinsic evidence introduced for the purpose of ascertaining the correct in- terpretation of the disputed provision . See Inter-Lake En- gineering Co., 217 NLRB 148, 149 (1975). Where, as here, the question presented for decision is whether the record contains "clear and unmistakable" evidence that the Union intentionally yielded a statutory right, I am of the view that even though I have concluded that the plain meaning of the words of the disputed contract pro- vision supports Respondent 's interpretation, that extrinsic evidence may be introduced for the purpose of ascertain- ing the correct interpretation of the disputed provision. Inter-Lake Engineering Co., supra, 217 NLRB at 149. Also, no case has been brought to my attention where, in determining whether a labor organization has waived a statutory right by virtue of a contract provision, the Board has held that it would not consider extrinsic evi- dence, if the plain meaning of the words of the provision support one of the parties' interpretation . Moreover, the Court of Appeals for the District of Columbia in Electri- cal Workers IBEW Local 1395 v. NLRB, 797 F.2d 1027 (D.C. Cir. 1986), has enunciated sound reasons why such an approach would be inappropriate . In Electrical Work- ers IBEW Local 1395, the court, after concluding that a contract provision by its language, unambiguously waived the statutory right in question, then went on to state: [T]he words parties use in drafting contracts are only evidence of their intent; the words are not themselves the parties' intent. The Board may not, in the guise of enforcing the "plain meaning" of contractual language, erect an inflexible presump- tion on an issue turning on the parties' actual intent [case cited]. The intent. of the parties to collective bargaining agreements is not to be discerned by ref- erence to "abstract definitions unrelated to the con- text in which the parties bargained [case cited]," es- pecially where bargaining history is crucial to an understanding of that intent." 1 Besides being ill-suited for the interpretation of collective-bar- gaining agreements, the so-called "plain meaning" rule has fallen from favor in the realm of general contract law While it may be presumed that parties use words in their ordinary sense, this "pre- sumption" does not govern where the parties ' mutual intent to the contrary is demonstrated [citation] . A court may properly consider extrinsic evidence of the parties' intent even where the contractual language may seem unambiguous [citation]. Accord: Electrical Workers Local 803 v. NLRB, 126 LRRM 2065, 2075 fn. 24 (3d Cir. 1987). It is for the reasons set forth by the Board in Inter- Lake Engineering and the court in Electrical Workers IBEW Local 1395, that Respondent's objection to my re- ceipt of extrinsic evidence relating to the interpretation of article XVI(D)'s retroactivity provision, is without merit. In order to ascertain the intent of the parties when they negotiated article XVI(D)'s retroactivity provision and to ascertain whether the parties ascribed a meaning to this provision, other than its plain meaning, I have considered, as set forth hereinafter, the circumstances which resulted in the parties' incorporating that provi- sion into their contracts and the collective -bargaining history of the parties insofar as it involves that provision and its applicability to negotiations. SOUTHERN CALIFORNIA EDISON CO. 219 An examination of the parties' 1945 collective-bargain- ing negotiations which resulted in article XVI(D)'s 60- day retroactivity limitation language provides further evidence that the parties' intent in using this language was to limit retroactivity to 60 days regardless of the length of negotiations.' As described in detail supra, the transcript of those negotiations reveals that when Com- missioner Malcolm suggested to the parties' negotiators that, as a compromise to full retroactivity and no retro- activity, they include the 60-day retroactivity limitation provision in their contract , that it was his intent, which he expressed to the parties, that the Union be guaranteed 60 days of retroactivity , but that if the negotiations con- tinued for more than 60 days past the contract anniversa- ry date, Respondent would not have to pay more than the 60 days of retroactivity guaranteed to the Union. In this regard, Malcolm proposed to the parties' negotiators that they agree to "limit" retroactivity to 60 days and in support of this proposal stated,"[i]f your negotiations go ... more than 60 days beyond the expiration date, then your retroactivity would only be 60 days" and explained to them that this would have the tendency to compel the parties' negotiators to "get in there and pitch " in order to conclude the negotiations . Malcolm also told the par- ties' negotiators that if they agreed to a provision provid- ing for full retroactivity or one providing for no retroac- tivity that either the Union or Respondent would be ac- cused of stalling negotiations , but that "if you [referring to the parties' negotiators] say that any increase in wages negotiated would be effective as of the anniversary date, provided -it is not more than 60 days, then you are limit- ed to 60 days," and that this "has a tendency to help [ne- gotiations] move along [and] makes for a very healthy situation." Based upon Commissioner Malcolm's above-described explanation to the parties ' negotiators for his proposal that retroactivity be limited to 60 days, the parties must have realized that by incorporating Malcolm 's 60-day limitation provision in the contract that they were not merely guaranteeing the Union 60 days of retroactivity, but were also agreeing that if negotiations went for more than 60 days past the contractual anniversary date, Re- spondent would not have to pay more than the 60 days of retroactivity guaranteed to the Union . This conclusion is reinforced by this colloquy between the parties' nego- - 7 I recognize that during the 1945 contract negotiations the parties dis- cussed the 60-day retroactivity limitation in the context of art. XVI(C) and it was not until 1953 that art. XVI(D) was included in the parties' collective-bargaining contracts. However, what the parties said about the 60-day retroactivity limitation language while discussing art. XVI(C) during the 1945 contract negotiations and other subsequent contract ne- gotiations is relevant to an evaluation of the parties' intent and purpose in agreeing to include that language as a part of art . XVI(D). This is so for the following reasons : The language of art. XVI(C)'s 60-day retroactivity limitation provision is identical to art . XVI(D)'s; the parties have histori- cally treated art. XVI(C) and art. XVI(D) as one and the same when dis- cussing the 60-day retroactivity limitation language ; in 1953 the 60-day retroactivity limitation language contained in art XVI(C) was simply carried over to art . XVI(D), apparently without any discussion; and, Mi- chael Mendez, Respondent's manager of personnel and employee rela- tions, who, dung the time material was Respondent's principal collec- tive-bargaining negotiator, testified that "the intent and purpose of the sixty day language," as set forth in art . XVI(C) and art. XVI(D), "was the same and is the same." tiators, Kenyon and Keeton , which took place immedi- ately after Malcolm's explanation for his proposal: MR. KENYON [Respondent spokesperson]: In other words, if we argues on this lower line on into June or July, we would have 60 days of retroactiv- ity only? MR. KEETON [union spokesperson]: That's right. I have considered that when Commissioner Malcolm explained his proposal to limit retroactivity to 60 days, he made the additional comment : "If you can't reach an agreement in 120 days, then you can't reach an agree- ment at all." Counsel for the General Counsel argues this remark indicates that in agreeing to Commissioner Mal- colm's proposal, the parties contemplated that negotia- tions would be concluded no later than 60 days after the contractual anniversary date . I disagree. Viewed in con- text this remark and. Commissioner Malcolm 's similar remark, ."[i]f you can't negotiate a contract in 120 days, why, you don't want a contract" cannot be taken literal- ly. Rather it is clear that Malcolm was merely using a figure of speech to indicate to the negotiators that in most cases 120• days was a sufficient amount of time to negotiate an agreement and that because of this it would be of no practical consequence that his proposal limited retroactivity to only 60 days. The record also establishes that the Union 's negotia- tors did not believe that the plain language of the con- tract provision limiting wage retroactivity to 60 days re- gardless of the length of the negotiations had been modi- fied by Commissioner Malcolm's overly optimistic belief that this limitation would in all probability never have to be applied to a situation where negotiations went beyond the 60-day limitation period . Thus, following the incor- poration in 1945 into the contract of the contract provi- sion limiting wage retroactivity, when the retroactivity issue was first raised in subsequent negotiations , during 1947, the Union's negotiators did not challenge the plain meaning of the provision . Rather, as I have described in detail supra, the Union's negotiators assumed that be- cause of the contract provision which limited retroactiv- ity to 60 days, Respondent was not obligated to pay more than the 60 days of retroactivity when negotiations lasted beyond that 60-day period. I recognize that at no time during the 1947 contract negotiations, when speak- ing about retroactivity , did the Union's negotiators ex- pressly state they understood the provision in the con- tract limiting retroactivity to 60 days meant that retroac- tivity was limited to 60 days regardless of the length of the negotiations. But when the statements made by the Union's negotiators about retroactivity are examined in the context in which they were expressed, it is clear that their statements were based upon their understanding that when, in the last contract negotiations, the parties agreed upon the provision limiting retroactivity to 60 days, that it was the intent of the parties to impose the 60-day limitation on retroactivity even when negotiations went beyond the 60-day period. Also relevant in determining the parties' intent when they agreed to include a contract provision limiting wage change retroactivity to 60 days, is the way in 220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD which the parties have administered the provision. As described in detail supra, during numerous negotiations in the approximately 40 years in which this provision has been included in the parties' contracts, the Union has successfully bargained with Respondent for additional days of retroactivity when negotiations went beyond the contract's 60-day limitation, and during the 1976 contract negotiations, as described in detail supra, Respondent's principal negotiator conceded that "over the years .. . arrangements have been made . . . that have softened and otherwise modified the strict requirement [of the contract provision limiting retroactivity to 60 days]." On the.other hand, as described in detail supra, the record establishes that during this same 40-year period Respond- ent's negotiators have consistently indicated to the Union that Respondent's position with respect to the contract's retroactivity provision was that its obligation to make a negotiated pay raise retroactive was limited to no more than 60 days and that while it was willing to waive the 60-day limitation imposed by the contract in the interest of reaching an agreement with the Union, that its waiver of the contract limitation should not be construed by the Union as creating a precedent. Respondent's conduct, in this respect, was consistent with - the "waivers" provision included in each of the parties ' successive collective-bar- gaining contracts which, as set forth in detail supra, in effect provides that any waiver by either party of the contract provision limiting retroactivity "does not consti- tute a precedent for any further waiver of such . . . con- dition." In view of the foregoing circumstances, Re- spondent's voluntary relinquishment in past negotiations of its contractual right to insist that wage increase retro- activity be limited to no more than 60 days, does not de- tract from the plain meaning of that contract provision and the circumstances surrounding the parties ' agreement on that provision, which establish it was the parties' intent to limit retroactivity to 60 days , regardless of the • length of negotiations. I have also considered the General Counsel 's further argument that since the Union during past negotiations, prior to the 1986 wage reopener negotiations , successful- ly bargained with Respondent for additional days of ret- roactivity when negotiations went beyond the contract's 60-day limitation, that Respondent during the 1986 wage reopener negotiations was "equitably estopped - from as- serting a right which it has so consistently ignored in the past." The evidence is insufficient to support such a theory. As I have already noted, while prior to the 1986 wage reopener negotiations, the Union on many occa- sions successfully bargained with Respondent for addi- tional days of retroactivity when the negotiations went beyond the contract's 60-day limit, Respondent at the same time consistently indicated to the Union that de- spite its conduct it believed its obligation to make a ne- gotiated pay raise retroactive was. limited to no more than 60 days and that although it was willing to waive the contract's 60-day limit for the sake of reaching an agreement, the Union should not consider Respondent's waiver of the contractual retroactivity limitation as set- ting a precedent. In view of this and because, as de- scribed supra, the parties' contracts have always included a waiver provision which in effect alerted the Union that it could not treat Respondent's past conduct as a prece- dent for the 1986 wage reopener negotiations , the doc- trine of equitable estoppel is not applicable to this case. Furthermore, it would be particularly inappropriate to invoke the doctrine of equitable estoppel because long before the start of the 1986 wage reopener negotiations, the Union was placed on notice by Respondent that Re- spondent intended during that negotiation to adhere to the contract provision which limited the retroactivity of any negotiated wage increase to no more than 60 days. As described in detail supra, during the 1980 contract ne- gotiations Respondent informed the Union it would not grant wage retroactivity beyond 1 July 1980; even if ne- gotiations went beyond that date . Respondent also ex- plained to the Union that this was being done pursuant to Respondent's recently adopted plan to shorten the parties' contract and wage reopener negotiations by gradually rolling back retroactivity 1 month during the subsequent successive contract and wage reopener nego- tiations. As a matter of fact, during the subsequent con- tract and wage reopener negotiations Respondent imple- mented and acted consistently with its announced roll back program and periodically reminded the Union that it was in the process of implementing that program. During the 1983 wage reopener negotiations Respondent reminded the Union it was in the process of moving back the retroactivity date to the contractual 60-day limita- tion. And during the 1984 contract negotiations Re- spondent advised the Union that pursuant to Respond- ent's program of gradually rolling back retroactivity until the terms of the contract's 60-day limitation were complied with, that Respondent did not intend to agree to retroactivity past 1 April 1984, 1 month beyond the contract's 60-day retroactivity date, even if negotiations went beyond 1 April. Thus, long before the 1986 wage reopener negotiations, the Union had been placed on notice that during the 1986 reopener negotiations Re- spondent intended to adhere to the provision in the par- ties' contract which limited retroactivity to 60 days re- gardless of the length of negotiations . So, it should not have been a surprise to the Union when immediately prior to the start of the 1986 wage reopener negotiations Respondent notified it that this was the year Respondent intended to adhere to the contract provision limiting ret- roactivity to 60 days regardless of the length of negotia- tions. This circumstance plus the circumstances discussed previously have persuaded me that this case is not an ap- propriate one for the application of the doctrine of equi- table estoppel. Lastly, in determining the parties' intent in negotiating the contract provisions which limit the retroactivity of negotiated wage changes to 60 days, I have considered that during the contract negotiations of 1980, 1982, and 1984, which were conducted contemporaneously with Respondent's announced decision to gradually roll back retroactivity until the terms of the contractual retroactiv- ity provisions were complied with, the Union proposed to delete those provisions and in their place proposed that negotiated wage changes be made fully retroactive whenever reached. As I have described in detail supra, when it made these proposals, the Union acknowledged SOUTHERN CALIFORNIA EDISON CO. that the contract's retroactivity provisions "limited" ret- roactivity to 60 days, and during the 1984 contract nego- tiations the Union's principal negotiator, as described in detail supra, admitted that one of the reasons the Union was proposing to substitute full retroactivity for the 60- day limitation was in response to Respondent's intention, as expressed by its "roll back plan," to adhere to the 60- day limitation prescribed by the current contract. Under these circumstances the Union's proposals in 1980, 1982, and 1984 to delete the contract provisions which limited retroactivity to 60 days, reinforces the inference drawn from the plain meaning of those provisions and the cir- cumstances surrounding . the negotiation of those provi- sions, that it was the parties ' intent that those provisions limit retroactivity to no more than 60 days regardless of the length of the negotiations. Considering the plain and unambiguous language of ar- ticle XVI(D)'s retroactivity provision; considering the contract negotiations which resulted in the parties' agree- ing to the retroactivity provision ; considering the parties' history in administering the retroactivity provision; con- sidering the Union's unsuccessful efforts in 1980, 1982, and 1984 to delete the retroactivity provision from the contract; for the reasons set forth previously, when all of these considerations are viewed in their totality, they es- tablish the parties' intent in agreeing to article XVI(D)'s retroactivity provision was to limit retroactivity to no more than 60 days regardless of the length of the negoti- ations. 8 This constitutes clear and unmistakable evidence that when the Union agreed to include this provision in its contract with Respondent that it intentionally yielded its statutory right to bargain about retroactivity beyond the 60-day period provided for by the contract. I have considered that article XVI(D) does not ex- pressly state Respondent was not obligated to bargain with the Union about retroactivity if negotiations went beyond the 60-day limitations set by article XVI(D)'s ret- roactivity provision. I have also considered it was not until the 1986 reopener negotiations that Respondent ex- pressly stated that the contract's retroactivity provision gave Respondent the right to refuse to bargain about ret- roactivity if negotiations went beyond the 60-day limita- tion set by the contract. However, as I have found supra, the parties' intent in negotiating article XVI(D)'s retroac- tivity provision was to limit Respondent 's obligation to pay retroactivity to only 60 days, regardless of the length of negotiations. In these circumstances, it would have been superfluous for article XVI(D), or the parties in their discussion about the applicability of that provi- sion, to have specifically mentioned Respondent was privileged not to bargain with the Union concerning the subject of post-60-day retroactivity . In other words, it is perfectly clear that the parties' agreement that Respond- ent was obligated to pay no more than 60 days of retro- activity, even though negotiations went beyond those 60 days, encompasses the further agreement that Respond- B In the alternative, I find that the parties' collective-bargaining histo- ry, including the negotiations which resulted in the disputed retroactivity provision and the parties' history of administering that provision, does not establish that the parties ascribed a meaning to that provision, other than its plain meaning, which is to limit wage retroactivity to no more than 60 days regardless of the length of the negotiations. 221 ent was privileged to refuse to bargain further about this subject-the subject of retroactivity pay for more than 60 days-which had already been settled by the parties' agreement. Based on the foregoing, I find that when Respondent- during the 1986 wage reopener negotiations refused to bargain with the Union about the retroactivity of its wage increase offer, that Respondent did not violate Sec- tion 8(a)(5) and (1) of the Act, because the Union had waived its statutory right to bargain about retroactivity.9 I therefore shall recommend that this complaint allega- tion be dismissed. 2. Respondent unilaterally raises the wages of the Union-represented employees On 31 July 1986, after its wage reopener negotiations with the Union reached impasse, 10 Respondent imple- mented its final wage offer and granted the Union-repre- sented employees an across-the-board pay raise and did this unilaterally without the consent of the Union. The wage reopener negotiations were conducted during the term of the parties' 1984 agreement pursuant to the con- tractual wage reopener provision, article XVI(D), which provided in substance that upon proper notice either party to the agreement could reopen the agreement during midterm for the purpose of negotiating a general across-the-board wage change. Citing Robert A. Barnes, Inc., 268 NLRB 343 (1983), and KCW Furniture Co., 247 NLRB 541 (1980), the Gen- eral Counsel and the Union contend that Respondent's unilateral change in the employees' wages violated Sec- tion 8(a)(5) and (1) of the Act, because during the 1986 wage reopener negotiations the Respondent had no right to unilaterally change the wages of the Union-represent- ed employees, even after an impasse in negotiations, inas- much as such unilateral conduct constituted a modifica- tion of the parties' existing collective-bargaining con- tract, the 1984 Agreement, thereby violating Section 8(d) of the Act. During the term of the collective-bargaining contract which had automatically renewed itself, the employer in KCW Furniture unilaterally implemented its final con- tract proposal after having negotiated to an impasse. The existing collective-bargaining contract in that case did not contain a provision allowing the parties to reopen ne- gotiations during the term of the contract and the negoti- B Citing NCR Corp, 271 NLRB 1212 (1984), and Vickers, Inc., 153 NLRB 561, 570 (1965), and their progeny, Respondent argues that it did not violate the Act by refusing to bargain about wage retroactivity during the 1986 wage reopener negotiations, because it had a sound and reasonable basis for concluding its refusal to bargain about retroactivity was privileged by art. XVI(D)'s provision limiting retroactivity to 60 days. I agree Respondent had a sound and reasonable basis for reaching that conclusion. This does not , however, answer the essential question posed by this case, which is whether by virtue of agreeing to art. XVI(D)'s retroactivity provision, the Union waived its statutory right to bargain about retroactivity . See Southern California Edison Co., 284 NLRB 1205 fn. 1 (1987) (Chairman Dotson dissenting). 10 The General Counsel's and the Union's contention that the negotia- tions had not reached a valid impasse because of Respondent's refusal to bargain about retroactivity is without ment . As I have found supra, Re- spondent's refusal to bargain about retroactivity was not an unfair labor practice. 222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ations were not conducted pursuant to such a provision or agreement. In Robert A. Barnes, the facts were identi- cal, and the administrative law judge, whose opinion was adopted by the Board, found that the employer's unilat- eral conduct violated Section 8(a)(5) and (1) of the Act based upon the Board's reasoning in KCW Furniture. In concluding in KCW Furniture that the employer's unilat- eral conduct violated the Act, the Board reasoned as fol- lows: Having found that the contract automatically re- newed itself on April 1, we find that Respondent had no right to make unilateral changes in that con- tract after "impasse" was reached in the bargaining for a new contract. It is well established that an em- ployer is precluded from modifying a contract which is in effect, without the consent of the union. Although an employer may unilaterally institute changes when an impasse occurs during the negotia- tions for an initial bargaining agreement or follow- ing the expiration date of an expiring contract, the employer may not do so when, as here, the contract has not terminated. Accordingly, we find that Re- spondent violated Section 8(a)(5) and (1) of the Act by unilaterally instituting terms and conditions of employment inconsistent with the existing collec- tive-bargaining agreement. Respondent takes the position that when, as here, wages are reopened for negotiations pursuant to a con- tractual reopener provision, the employer is free to im- plement its final wage offer after negotiations have reached impasse. Respondent relies upon Herman Bros, Inc., 273 NLRB 124 fn. 1 (1984), and Kelly-Goodwin Hardwood Co., 269 NLRB 33, 38 fn. 25 (1984), where, as dictum, Chairman Dotson and then-Member Hunter indi- cated if they were faced with such a case they would hold that if a collective-bargaining agreement contained a midterm, wage reopener provision, the employer may, absent any indication in the contract to the contrary, uni- laterally modify wages following a genuine impasse in negotiations. Respondent argues that Robert A. Barnes and KCW Furniture are inapposite because in those cases the employers' unilateral conduct did not occur in the context of a contract reopener provision. For the reasons set forth below, I agree with Respondent. In Robert A. Barnes and KCW Furniture the Board's conclusion that the employers there violated Section 8(a)(5) and (1) of the Act by unilaterally changing the employees' terms and conditions of employment was based upon the legal theory that where there is no re- opener provision in the parties' contract, an employer violates Section 8(d) of the Act and thus also violates Section 8(a)(5) of the Act, by modifying a term of a col- lective-bargaining agreement governing a mandatory subject of bargaining, without obtaining the consent of the union or complying with the statutory notice and waiting period requirements. Chemical Workers v. Pitts- burgh Plate Glass, 404 U.S. 157, 159, 183-188 (1971), citing with approval NLRB v. Scam Instrument Corp., 394 F.2d 884, 886-887 (7th Cir. 1986). However, Section 8(d) insofar as it prohibits either party to a collective- bargaining contract, from individually terminating or modifying the contract during its effective term, by its express language indicates that when, as here, midterm negotiations commence pursuant to a contractual reopen- er provision, that the employer is privileged to imple- ment its final offer after a genuine bargaining impasse. Thus, Section 8(d) provides in pertinent part that neither party to the agreement shall be required "to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modifi- cation is to become effective before such terms and condi- tions can be reopened under the provisions of the contract." (Emphasis added.) The clear implication of this language is that a party to a contract is required to negotiate the proposed modification of an exiting contract, even during that contract's term, when the modification is being proposed in connection with negotiations being held pursuant to a contractual wage reopener provision. It therefore logically follows, if the parties to such nego- tiations reach a bargaining impasse, that the well-estab- lished legal principle that the employer is privileged under such circumstances to unilaterally institute its last offer, is applicable. Furthermore, when a collective-bargaining contract in- cludes a midterm wage reopener provision and following a genuine impasse in the negotiations conducted pursuant to that provision, the employer unilaterally implements its last offer, the employer's unilateral conduct is consist- ent with Section 8(d)'s underlying purpose. In this regard Section 8(d) of the Act, which defines the obligation to bargain, is intended to stabilize the agreed-upon condi- tions of employment during the term of a collective-bar- gaining contract. Steelworkers v. Gulf Navigation, 363 U.S. 574 fn. 3, 578 (1960); NLRB v. General Electric Co., 418 F.2d 736, 747 (2d Cir. 1969). Here, when the parties agreed to include a midterm wage reopener provision in the 1984 Agreement, they did so with the understanding and expectation that during the term of that agreement the contractual wage rates would be modified by the Re- spondent pursuant to midterm wage reopener negotia- tions. Therefore, under the circumstances of this case, Respondent's midterm, change in the employees' wages was in perfect harmony with Section 8(d)'s purpose of stabilizing agreed-upon conditions of employment for the term of an existing collective-bargaining contract. It is for all of the foregoing reasons that I shall recom- mend the dismissal of the complaint insofar as it alleges Respondent violated Section 8(a)(5) and (1) and Section 8(d) of the Act, by unilaterally changing the wages of the Union-represented employees. On these findings of fact and conclusions of law 'and on the entire record, I issue the following recommend- edll ORDER 'The complaint is dismissed in its entirety. 'r 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 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses