IBEW Local No. 12

IBEW LOCAL NO. 12 International Brotherhood of Electricau Workers, Local No. 12 (Commonwealth Electric Compa- ny) and Raymond Bosche. Case 27-CB-1218 September 18, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On April 2, 1980, Administrative Law Judge Roger B. Holmes issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION ROGER B. HOLMES, Administrative Law Judge: The unfair labor practice charge in this proceeding was filed on May 1, 1978, by Raymond Bosche, an individual. The Regional Director for Region 27 of the National Labor Relations Board, herein called the Board, who was acting on behalf of the General Counsel of the Board, issued on June 23, 1978, a complaint and notice of hearing against International Brotherhood of Electri- cal Workers, Local No. 12, herein called Respondent. The General Counsel's complaint alleges that Re- spondent has engaged in unfair labor practices within the meaning of Section 8(b)(IXA) of the National Labor Re- lations Act, herein called the Act. In summary, the General Counsel contends: (1) that Respondent levied fines on or about March 6, 1978, against eight members of Respondent, who had worked for Commonwealth Electric Company, herein called the Employer, and (2) the strike and the picketing by Re- spondent since on or about July 18, 1977, were in sup- port of Respondent's insistence to impasse that the Em- ployer agree to a nonmandatory subject of bargaining; i.e., the National Electrical Industry Fund. (See G.C. Exh. (c) for the specific allegations made by the Gener- al Counsel and see the arguments set forth in the General Counsel's brief). 252 NLRB No. 40 Respondent filed an answer to the General Counsel's complaint and denied the commission of the alleged unfair labor practices. (See G.C. Exh. (e).) In summary, Respondent contends that it did not insist to impasse on a nonmandatory subject of bargaining with the Employer. The attorney for Respondent stated in his brief: "There is no dispute that the industry fund is a nonmandatory subject of bargaining but it may be pro- posed, even though it cannot be insisted upon as a condi- tion of entering into a collective bargaining agreement." Respondent contends that it was agreeable to negotiating a separate agreement with the Employer, and that it did not condition agreement on inclusion of industry fund payments. Respondent further urges that the eight mem- bers were fined for the reasons set forth in Joint Exhibit 43. The hearing was held before me on October 26, 1979, at Denver, Colorado. The time for filing briefs was ex- tended to December 17, 1979. Both the counsel for the General Counsel and the attorney for Respondent filed briefs. FINDINGS OF FACT i. THE EMPLOYER The Employer is a Delaware corporation with an office and place of business located at Pueblo, Colorado, where it is engaged in the electrical construction busi- ness. In the course and conduct of its business operations within the State of Colorado, the Employer annually purchases and receives goods and materials valued in excess of $50,000 directly from outside the State of Colo- rado. Upon the foregoing facts and the entire record herein, I find that the Employer has been, at all times material herein, an employer engaged in commerce and in a busi- ness affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE UNION It was admitted in the pleadings that Respondent has been, at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Based upon the pleadings, and the entire record herein, I find that fact to be so. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Witnesses In alphabetical order by their last names, the following three persons appeared as witnesses at the hearing in this proceeding: Lawrence C. Farnan has been the district International vice president of the International Brotherhood of Elec- trical Workers since April 1, 1976. Robert D. Grinstead has been for the past 17 years the business manager and the financial secretary of Respond- ent. William Schwartzkopf has been the vice president and the general counsel of the Employer since July 1977. 245 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Prior to that time, he held the position of the general counsel of the Employer. B. Credibility Resolutions In making the findings of fact herein, I have based the findings on portions of the testimony of each one of the three witnesses who testified in this proceeding. In addi- tion, I have relied on the extensive amount of documen- tary evidence introduced by the parties. Of course, in evaluating the testimony, I have given consideration to the positions occupied by the witnesses, and their potential interests in the outcome of the litiga- tion. There are some minor variations in the testimony, but these are not truly significant in resolving the issues presented by the pleadings. For example, the recitals re- garding the conversation between Schwartzkopf and Farnan in September 1977 varied to a minor degree, but those accounts are not directly in conflict. I will set forth herein the facts which appear to me to be more credible. Not surprisingly, the witnesses view the facts from dif- ferent perspectives, and they would draw different con- clusions from the facts as they see them. For example, the question of whether the Employer and Respondent were bound to the Colorado Statewide Line Agreement is one issue which separated the parties. Thus, I am not suggesting that there are no factual issues between the parties. However, as indicated above, I found the testi- mony by all three witnesses to be believable. Therefore, I have relied upon portions of the testimony from each one of them. Additionally, the documentary evidence of- fered at the hearing forms the basis for numerous find- ings of fact. C. Joint Exhibit I and Joint Exhibit 42 Paragraph V of the General Counsel's complaint was admitted to be true. It states as follows: At all times material herein, the Respondent has been the representative for the purposes of collec- tive bargaining of a unit of outside electrical work- ers employed by the Employer, which is appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, and by virtue of Section 9(a) of the Act the Respondent has been at all times material, and is now, the exclu- sive collective bargaining representative of all said employees. Introduced into evidence as Joint Exhibit I was a doc- ument which is entitled "Letter of Assent-B." That doc- ument is between the Employer and Local 969 of the IBEW. The document provides, among other things, that the Employer will comply with all of the terms and con- ditions of employment contained in the Colorado Statewide Line Agreement between the Western Line Constructors Chapter, Inc., and Local 969 of the IBEW. Joint Exhibit I is dated April 26, 1976, and it provides that it would remain in effect until October 31, 1976, which is described as the "termination date." A copy of the Colorado Statewide Line Agreement was introduced into evidence as Joint Exhibit 42. The document states that it is an agreement between the Western Line Constructors Chapter, Inc., N.E.C.A. and Local Unions No. 12, 111, 113, and 969 of the IBEW. The document further states: "It shall apply to all firms who sign a letter of assent to be bound by this agree- ment." (See J. Exh. 42.) The effective dates of Joint Ex- hibit 42 are contained in section 1.1 of article 1 of the document. It provides: "This Agreement, amended, shall take effect on November 1, 1976, and shall remain in effect through October 31, 1977. It shall remain in effect from year to year thereafter from November 1, through October 31, of any year unless changed or terminated in the way provided herein." The explanation why there was no Letter of Assent-B between the Employer and Respondent in this case was stated in a letter from Business Manager Grinstead to the International president of IBEW, as follows: "By virtue of this Company being signatory to the Colorado Statewide Line Agreements by another Colorado Local, we did not feel it was necessary to further bind them to the same Statewide agreement." While Vice President and General Counsel Schwartz- kopf expressed the opinion at the hearing that the Em- ployer was bound to the Colorado Statewide Line Agreement with Respondent herein, he acknowledged that an extensive search of the Employer's files revealed no letter of assent dated after Joint Exhibit 1. He further acknowledged that the Employer had not signed Joint Exhibit 42. Grinstead also stated at the hearing that he had checked Respondent's records, and that Joint Exhibit 1 was the only document which Respondent had. Grin- stead further stated that he had also made inquiries with the other three local unions of the IBEW in Colorado and also with the International office of the IBEW, and that no agreement was produced which had been signed by the Employer. The main difference between Letter of Assent-B and Letter of Assent-A was explained by Vice President Farnan as being one which related to the effective dates of the document. Letter of Assent-A is an ongoing agreement, whereas Letter of Assent-B has a fixed termi- nation date. The Employer had been involved in the construction of a transmission line in Colorado, which was described as the Bayfield Pagosa Project. The work was conducted during July, August, September, October, and Novem- ber, 1976. The project was shut down on December 10, 1976, by agreement with the United States Forest Serv- ice and the Bureau of Land Management, which agencies managed or owned the lands on which the Employer was primarily working. D. The Employer Withdraws from the Western Line Constructors Chapter of N.E. C.A. By letter dated January 27, 1977, from the president of the Employer to Respondent, the Employer advised Re- spondent that it was resigning from the Western Line Constructors Chapter of the National Electrical Contrac- tors Association. A copy of the letter was introduced into evidence as Joint Exhibit 2. In pertinent part, it pro- vides: 246 IBEW LOCAL NO. 12 We enclose a copy of our letter of this date resign- ing from the local chapter of the National Electrical Contractors Association which has an agreement with your local union. As a result of such with- drawal such local chapter is henceforth without au- thority to act for Commonwealth Electric Compa- ny in any matter. This withdrawal in no way affects any existing agreement with your local union. Commonwealth Electric Company will continue to recognize your local union as the exclusive bargaining representa- tive of its employees covered by the agreement. Commonwealth Electric Company will not be bound by any future agreements or any amendment to existing agreements negotiated by such local chapter. Schwartzkopf explained the reason for the withdrawal from the Western Line Constructors Chapter as being the creation of a National Electrical Industry Fund by N.E.C.A. and IBEW. Schwartzkopf stated that the Em- ployer withdrew from that organization because "we were completely opposed to the fund and as a result, we withdrew from N.E.C.A." Schwartzkopf explained that contributions to the National Electrical Industry Fund would have increased monetary costs to the Employer. The Employer is a plaintiff in a lawsuit against N.E.C.A. regarding that fund. E. The Letter to Respondentfrom the IBEW International President Introduced into evidence as Joint Exhibit 4 was a copy of a letter dated March 3, 1977, to Respondent from Charles H. Pillard, International president of IBEW. In pertinent part, it stated: We have received numerous copies of letters from Commonwealth Electric Company to IBEW Local Unions advising that the Commonwealth Electric Company is terminating Letters of Assent to the Local Union Construction Agreements. Even though our records indicate that we have no current Assent in our file between your Local Union and Commonwealth Electric Company, we do have a copy of a letter dated January 27, 1977, from Commonwealth Electric Company sent to Local Union 12, IBEW, advising that they have withdrawn from NECA, therefore, no longer rec- ognizing that organization as their collective bar- gaining representative. However, they will continue to recognize your Local as the exclusive bargaining representative for its employees under the existing agreement. Apparently, this employer is anticipating work in your area or is performing work in your area and you have not submitted the Assent to this office for processing. The Letter of Assent "A" (Form 302) requires the employer to give written notice to the Chapter and the Local Union at least 150 days prior to the then anniversary date of the current approved labor agreement. The Letter of Assent "B" (Form 303) differs from the Letter of Assent "A" wherein it contains a definite termination date. Where the employer ter- minates its agreement (Letter of Assent), it has no agreement with the Local Union or the IBEW. The Commonwealth Electric Company states in its letters that it is their intent to continue to abide by the Local Union agreement with one exception, the Industry Fund payments that go to NECA, and states that, "Industry Funds are clearly, under the law, a voluntary subject of bargaining." This is true, but has no bearing on the legality of the IBEW-NECA Agreement providing for an In- dustry Fund. The IBEW and NECA mutually agreed to this Industry Fund. All employers signa- tory to Letters of Assent are expected to abide by the agreement in its entirety and no employer may unilaterally change the collective bargaining agree- ment. Where Commonwealth Electric Company termi- nates agreements (Letters of Assent), it has no agreement with the Local Union or the IBEW. IBEW Local Unions are not, of course, under any obligation to furnish men to any contractor without an agreement. The Local Union must, if requested by Common- wealth Electric Company, enter into separate nego- tiations with the Commonwealth Electric Company and must, in accordance with Section 8(bX3) of the National Labor Relations Act, as amended, bargain in good faith. The Local Union must bargain for a complete agreement and may not simply insist, on a "take-it-or-leave-it" basis, that the Commonwealth Electric Company accept all of the terms of the Local's agreement with the Chapter or sign a new Letter of Assent. The Local may, however, request and bargain for all items the Local Union has tried to secure from NECA or other electrical contrac- tors as proposed by the members of the Local Union, such as wages, a shorter workday, double- time, paid holidays, vacation, health and welfare, pension, travel time, general foreman ratio, etc. Local Unions may negotiate for better terms and conditions; however, they need not settle for lesser terms and conditions. F. Respondent's Letter Dated March 8, 1977, to the Employer Introduced into evidence as Joint Exhibit 6 was a copy of a letter dated March 8, 1977, from Grinstead to the Employer. In pertinent part, it stated: In reply to your letter of January 27, 1977, and the enclosed copy of your Company's resignation from N.E.C.A., please find enclosed Letters of Assent "B" for the various Colorado Line Agree- ments. As you are probably aware, the Colorado Line Agreements do cover the entire State, and four Local Unions are parties to the agreements; Locals 12, 111, 113 and 969. 247 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since your letter states in part, "This withdrawal, (from N.E.C.A.), in no way affects any existing agreement with your Local Union(s)" we will ap- preciate the prompt return of the enclosed Letters of Assent B. We do anticipate additional amend- ments to these agreements during the specified dates in the Letters of Assent B, and are therefore curious as to the last sentence in your letter. Please advise us if you choose not to sign the en- closed Letters of Assent, because without these, your Company is not signatory to the I.B.E.W. in Colorado for Line Construction work. G. The Employer's Response The Employer responded to Joint Exhibit 6 by a letter dated March 14, 1977. (See Jt. Exh. 8.) Enclosed with Joint Exhibit 8 were copies of "Letter of Assent-B" As indicated in Joint Exhibit 6, Grinstead had previously signed those documents. Paul C. Schorr III, as the presi- dent of the Employer, executed the documents on behalf of the Employer. However, at the direction of Schwartz- kopf, a sentence was added to the documents above the signature of Grinstead. The addition to the documents stated, "Except that amendments or provisions providing for payments to the National Electrical Industry Fund or any other equivalent or similar fund shall not apply to the undersigned employer." (See Jt. Exh. 9.) The foregoing prompted still another letter from Grin- stead to the Employer. A copy of that document dated March 22, 1977, was introduced into evidence as Joint Exhibit 11. In pertinent part, it stated: We received the altered Letters of Assent B back yesterday, and I do not mind telling you I was very upset that you would alter these documents after I had signed them. Needless to say, they are unaccep- table to us with your typed in exclusions for your Company. I have enclosed additional sets of the Letters of Assent B for your signature, "without altering them." We cannot allow Employers to write in ex- clusions for themselves for items that they do not happen to be in agreement with. If you will not sign these Letters of Assent, with- out altering them, this leaves your Company with- out I.B.E.W. Line Agreements in Colorado, and I would suggest that you make the necessary arrange- ments to commence negotiations with the four Local Unions in Colorado in an effort to consum- mate an agreement that is mutually compatible. Thereafter, there followed an exchange of correspond- ence between the Employer and the Union in which both parties set forth their respective positions. In this connection, see the Employer's letter dated March 28, 1977, which was introduced into evidence as Joint Ex- hibit 12; the Union's letter dated April 4, 1977, which was introduced into evidence as Joint Exhibit 13; the Employer's letter dated April 27, 1977, which was intro- duced into evidence as Joint Exhibit 14; the Union's letter dated May 6, 1977, which was introduced into evi- dence as Joint Exhibit 15, and the Employer's letter dated May 13, 1977, which was introduced into evidence as Joint Exhibit 16. H. The Conversation Between Schwartzkopf and Golf As a result of the exchange of letters between the Em- ployer and Respondent, Roland Golf, an International representative of IBEW, contacted Schwartzkopf at his office in Lincoln, Nebraska, and suggested that the two persons meet to resolve the matter. The next day Schwartzkopf and Golf met. Schwartz- kopf told Golf that the Employer had no argument or disagreement with Respondent or with any of its em- ployees. He said that the Employer's only objection was to anything relating to the National Electrical Industry Fund. Schwartzkopf said that the Employer had no desire to pay into that fund, and the Employer felt that it was signatory to an agreement which did not contain provisions for the fund. He further stated that the Em- ployer did not want to execute a modified letter of assent which would, in effect, bind the Employer to pay into the industry fund. Schwartzkopf stated at the hearing that Golf was sympathetic, but that Golf wanted an un- modified letter of assent. I. The conversations involving Grinstead, Frame, and Schwartzkopf Grinstead offered to enter into a separate contract with the Employer on several occasions. He stated that he had invited David Frame, the Employer's northwest area manager, to sit down with him and try to arrive at an agreement. Regarding the National Electrical Indus- try Fund, Grinstead told Frame, "I didn't particularly care if they paid them or didn't pay them, I wasn't con- cerned about this." Grinstead stated at the hearing that he had made every effort to point out to Frame that the National Electrical Industry Fund was not a condition of bargaining. Schwartzkopf acknowledged during his cross-examina- tion by the attorney for Respondent that Grinstead had requested that Schwartzkopf come to Colorado and sit down and bargain with him. He also acknowledged that Grinstead had submitted a proposed contract to the Em- ployer without the requirement of contributions to the National Electrical Industry Fund. The following took place during Schwartzkopf's testimony: Q. Did Mr. Grinstead ever request you to come to Colorado and sit down and to bargain with him? A. He made statements, some to that and some in his correspondence, yes. Q. Did Mr. Grinstead send you a proposed con- tract? A. Yes, he did. Q. Did that proposed contract have any require- ments that dues be paid by you to the National Electrical Industry Fund? A. No, it did not. Q. Isn't it a fact that Mr. Grinstead advised you that he would execute and requested you to negoti- ate a separate agreement and there would be no re- 248 IBEW LOCAL NO. 12 quirement that you pay into the National Electrical Industry Fund? A. He did, and in response to that we forwarded him a draft agreement. J. The Exchange of Contract Proposals By letter dated July 26, 1977, Grinstead submitted a proposed contract to the Employer. A copy of that letter was introduced into evidence as Joint Exhibit 27. The parties stipulated that Joint Exhibit 36 is the contract proposal referred to in Joint Exhibit 27. In pertinent part, the letter stated: Enclosed are seven (7) copies of an agreement between Commonwealth Electric and the four I.B.E.W. Line Locals in Colorado. Please disregard the Letter of Assent A that we mailed you last week. You will note that the same provisions that were offered in the Letter of Assent A, "No Industry Fund, and a separate wage schedule," are in this agreement, and all references to N.E.C.A. are de- leted except the Standard Language in the N.E.B.F. section and the Apprenticeship section. You will also note in Article 1, Sec. 1.1 the agreement is dated July 1, 1977 through June 30, 1978 and con- tinues in effect from year to year thereafter. We were advised this would be the proper way to consummate an agreement with you, rather than write exclusions on the Letter of Assent A, which incidently would again assign your Bargaining Rights to N.E.C.A. and I am assuming that you would object to this. If you have any questions regarding the agree- ment please contact me. Please return six (6) executed copies to this office, after these agreements are signed and ap- proved I will forward you an approved copy. When he was questioned at the hearing as to whether the National Electrical Industry Fund was a condition for entering into any collective-bargaining agreement with the Employer, Grinstead answered, "Obviously not. I offered them a contract without the industry fund in it." By letter dated August 1, 1977, Schwartzkopf submit- ted the Employer's contract proposal to Respondent. A copy of the letter of transmittal of that proposal was in- troduced into evidence as Joint Exhibit 29. In pertinent part, the letter stated: Pursuant to your request that we negotiate a new contract rather than sign a Letter of Assent B to the existing contract, we enclose herewith our proposed agreement. We have previously offered, and in fact have tendered to you executed Letter of Assent B's assenting to all portions of the agreement that con- cern men, Local Union 12 and the International Union. The only part of the agreement we have ever taken issue with is the Industry Fund, a fund that is paid exclusively to and for the benefit of the National Electrical Contractors Association. You have refused these Letters of Assent and have re- quested that we negotiate a new contract. The at- tached document is submitted pursuant to this re- quest. The Employer's proposal enclosed with Joint Exhibit 29 was found to be unacceptable to Respondent. At the hearing, Grinstead gave several examples of matters, which in his opinion made the proposal unacceptable. They were: the absence of a union-shop clause; the alter- ation in the scope of the work; the 2-year duration of the agreement, instead of 1 year; no change in the wage rates; no approval of the agreement by the International office of the IBEW; the absence of binding arbitration procedures; a "most favored nation" clause; the transfer of employees clause; the deletion of an age discrimina- tion clause; a change in the safety clause, and the elimi- nation of time for the conducting of business by union stewards. The foregoing, of course, represents the views stated on the record by Grinstead, and what he perceived to be the differences between Respondent's contract proposal and the Employer's contract proposal. In this connec- tion, see Joint Exhibit 30, which is a copy of a letter dated August 5, 1977, from Grinstead to Schwartzkopf in which Grinstead outlines his objections to the Em- ployer's proposed contract. In response to Joint Exhibit 30, Schwartzkopf wrote to Grinstead on August 19, 1977. See Joint Exhibit 31 for the contents of that docu- ment. Additional correspondence between Schwartzkopf and Grinstead are shown in Joint Exhibit 33, which is a letter dated September 19, 1977, by Schwartzkopf; Joint Exhibit 34 which is a letter dated September 21, 1977, by Grinstead; and Joint Exhibit 35 which is a letter dated September 27, 1977, by Schwartzkopf. K. The Events in July and August 1977 Regarding the Bayfield Pagosa Project On July 18, 1977, work resumed on the Bayfield Pagosa Project. As indicated earlier, the jobsite for that project was within the geographical jurisdiction of Re- spondent. The parties stipulated that in July 1977 there was a re- quest by the Employer for a referral of persons to the jobsite. The parties further stipulated that the request was refused by Respondent, and that no one was re- ferred to work for the Employer on that jobsite on or after July 1977. The parties also stipulated that Respondent engaged in a strike against the Employer, and that Respondent en- gaged in picketing of the jobsite from August 11, 1977, to August 19, 1977. Respondent's picket signs read, "Commonwealth Electric has no agreement with IBEW Local No. 12, 111, 113 and 969." (See Jt. Exh. 45). Work at the Bayfield Pagosa Project ended in October 1977. The Employer moved its equipment off of the pro- ject and completed miscellaneous tasks in November 1977. 249 DECISIONS OF NATIONAL LABOR RELATIONS BOARD L. The Meeting Between Schwartzkopf and Farnan on September 8, 1977 At the request of Farnan, there was a meeting between Schwartzkopf and Farnan on September 8, 1977, in the Employer's office located in Lincoln, Nebraska. Farnan told Schwartzkopf that he wanted to discuss the difficulties which had arisen between the Employer and Respondent. Farnan also testified, "I told him, based on our many years of honorable and compatible associ- ation, especially with Mr. Schorr's father, that I did give him my personal word that were he to sign an unaltered Letter of Assent, that is, Assent A, the IBEW would not pursue the collection of the industry fund." Schwartzkopf asked Farnan to put that assurance in writing, but Farnan said that he could not do so. Farnan said that Schwartzkopf would have to take Farnan's word for it. Schwartzkopf told Farnan that the industry fund was a nonmandatory subject of bargaining. Farnan pointed out that the Employer had already accepted unaltered letters of assent in the several States surrounding the Employ- er's headquarters. However, Schwartzkopf only offered to sign an altered letter of assent at that time with Re- spondent. M. The Fines Levied by Respondent It was admitted in the pleadings that the employees named in paragraph X of the General Counsel's com- plaint had worked behind the picket lines established by Respondent previously referred to. One of those persons named in paragraph X is the Charging Party in this pro- ceeding. The parties stipulated that letters similar to Joint Ex- hibit 43 were sent to the other persons who are named in paragraph X of the General Counsel's complaint. Joint Exhibit 43 is a letter dated March 6, 1978, from the sec- retary of the trial board of Respondent to the Charging Party, and that document advises him of certain fines which were levied against him. (In this connection, see Jt. Exh. 44, which is a copy of the IBEW constitution and rules for local unions.) Respondent admitted that the fines were assessed. Conclusions In its decision in Taft Broadcasting Co., WDAF AM- FM TV, 163 NLRB 475, 478 (1967), the Board has de- scribed a bargaining impasse as follows: Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the ne- gotiations, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of nego- tiations are all relevant factors to be considered in deciding whether an impasse in bargaining existed. Based upon the findings of fact as set forth 5 herein, I conclude that no contract has existed between the Em- ployer and Respondent at least after October 31, 1976. It was established by both the Employer's representative and Respondent's representative that searches of their re- spective files disclosed no document which would bind those parties in a collective-bargaining agreement. Based upon the credited testimony and the documen- tary evidence referred to previously herein, I conclude that Respondent's representative expressed a willingness to the Employer's representatives to meet and bargain with the Employer for a separate contract without the requirement of making contributions to the National Electrical Industry Fund. In this regard, note the con- versations referred to in section herein. I also conclude that Respondent proposed a contract to the Employer, which did not require the Employer to make contributions to the National Electrical Industry Fund, as distinguished from employee benefit funds. See section 12 herein, especially Joint Exhibit 27 and Joint Exhibit 36. As Grinstead testified, "I offered them a con- tract without the Industry Fund in it." Nevertheless, the Employer did not find Respondent's proposal acceptable, nor did Respondent find the Employer's counterproposal acceptable. Significantly, the reasons advanced by Re- spondent for rejecting the Employer's counterproposal did not involve the absence from that proposal of a clause requiring contributions to the National Electrical Industry Fund. Thus, the conversation between Schwartzkopf and Farnan on September 8, 1977, has to be considered in the context of the prior contract pro- posals and discussions among the parties. Considering that conversation in context with those prior events, I conclude that Farnan's actions on that date cannot fairly be characterized as an insistence to impasse on including contributions to the National Electrical Industry Fund. See Taft Broadcasting, supra. Since I have concluded that Respondent did not insist to impasse on a nonmandatory subject of bargaining, I further conclude that Respondent's levying of fines against those persons named in paragraph X of the Gen- eral Counsel's complaint did not violate Section 8(b)(1)(A) of the Act under the theory advanced by the General Counsel. Accordingly, I must recommend to the Board that the General Counsel's complaint be dismissed. CONCLUSIONS OF LAW 1. The Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices which were alleged in the General Counsel's complaint in this proceeding, for the reasons which have been set forth above. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: 250 IBEW LOCAL NO. 12 ORDER' IT IS HEREBY ORDERED that the complaint in this pro- ceeding be dismissed in its entirety. In the event that no exceptions are filed, as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and rec- ommended Order herein shall, as provided by Sec. 102.48 of the Board's Rules and Regulations, be adopted by the Board and shall become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes. 251