Coastal Electric Cooperative

National Labor Relations Board - Board Decisions

Jun 30, 1993

311 N.L.R.B. 1126 (N.L.R.B. 1993)

1126
311 NLRB No. 129
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent notes that the judge erroneously found that its
letter advising the Union about drug testing requirements for outside
drivers was dated December 20, 1990, when in fact the Respond-
ent’s letter was dated December 20, 1991. The record reflects that
the letter in question was dated in 1991, as the Respondent asserts.
Thus, we correct this error by the judge.
2 The parties agreed at the first bargaining session on the first
paragraph of the Respondent’s management-rights proposal, which
contained a general statement, but were in disagreement over the
second paragraph, which specifically set out the terms and conditions
of employment over which the Respondent wished to reserve con-
trol.
3 It is undisputed that at no time did the Respondent seek a no-
strike clause.
Coastal Electric Cooperative, Inc. and Local Union
485, affiliated with International Brotherhood
of Electrical Workers, AFL–CIO, CLC. Cases
11–CA–14320 and 11–CA–14880
June 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On September 18, 1992, Administrative Law Judge
William N. Cates issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings, and conclusions only to the extent consistent
with this Decision and Order.
On a charge filed on March 18, 1991, as amended
on April 23, 1991, the General Counsel issued a com-
plaint in Case 11–CA–14320 on May 1, 1991, alleging
that the Respondent had violated Section 8(a)(5) and
(1) of the Act by failing to bargain in good faith with
no intent of reaching agreement. On July 23, 1991, the
Union filed a charge in Case 11–CA–14528 alleging
that the Respondent had violated the same section of
the Act by unilaterally granting merit wage increases.
The Regional Director approved an informal settlement
agreement executed and entered into by the parties in
both cases on October 15, 1991. On February 19,
1992, the Union filed a charge in Case 11–CA–14880,
amended March 24, 1992, alleging bad-faith bar-
gaining in violation of Section 8(a)(5) and (1) of the
Act. Thereafter, the Regional Director set aside the set-
tlement agreement in Cases 11–CA–14320 and 11–
CA–14528 because of the alleged violations of the
agreement disclosed in Case 11–CA–14880. On March
24, 1992, the Regional Director issued an order con-
solidating cases, consolidated complaint, and notice of
hearing in all three cases. At the hearing, the judge
granted the General Counsel’s unopposed motion to
sever Case 11–CA–14528 and remanded that case to
the Regional Director for the purpose of approving the
Union’s withdrawal request.
The judge found that, although the Respondent’s ne-
gotiators appeared regularly at the bargaining table and
that the parties’ negotiations resulted in agreement on
a number of subjects, the totality of the record evi-
dence established that the Respondent, in violation of
Section 8(a)(5) and (1) of the Act, was not bargaining
in good faith with a view toward trying to reach a col-
lective-bargaining agreement. The judge therefore also
found that the parties’ settlement agreement had been
properly set aside. The Respondent excepts to these
findings. We find merit to the Respondent’s excep-
tions. Accordingly, we find that the Respondent did
not violate the Act as alleged and therefore we shall
reinstate the settlement agreement.
The pertinent facts are fully set forth in the judge’s
decision.1 In summary, subsequent to the Union’s cer-
tification as exclusive representative of a unit of the
Respondent’s craft employees, bargaining began on
July 16, 1990, for an initial agreement. The parties
held a total of 10 bargaining sessions between July 16,
1990, and January 28, 1992. The parties agreed on a
number of subjects, including dues checkoff. However,
it became apparent that the parties were in disagree-
ment on three or four key issues, including manage-
ment rights,2 employment-at-will, just cause, arbitra-
tion,3 seniority, and wages. The parties sought the help
of mediators in November 1990, who met with the
parties at three sessions. At the last of these sessions,
on March 11, 1991, the parties were still unable to
reach agreement on the open items. The parties met
face-to-face and the Respondent’s negotiator declared
that the parties were at impasse on certain core issues,
specifically noting that the Respondent would not sign
an agreement without employment-at-will language
and that the Union would not sign an agreement with-
out a just cause provision. The union negotiator, in re-
sponse to a question as to whether he would ever agree
to employment-at-will, initially expressed some uncer-
tainty but concluded that at that point he would have
to say no. The session ended with the mediators offer-
ing their assistance in the future. Subsequently, the Re-
spondent’s negotiator sent a letter to the Union detail-
ing its impasse position.
As discussed previously, the Union filed an initial
unfair labor practice charge alleging that the Respond-
ent had bargained in bad faith with no intent of reach-
ing agreement, and this charge was settled in October
1991. The parties then resumed negotiations on No-
vember 18, 1991. At that session, the parties reached
some agreement on several items, but the parties held
to their respective positions on the core issues noted
above.
The parties held their last bargaining session on Jan-
uary 28, 1992. The parties reached agreement on a
drug testing program and a wage increase for a proba-
tionary employee, but there was no movement on the
1127COASTAL ELECTRIC COOPERATIVE
4 There appears to be some dispute in the record as to whether the
parties made any progress during the final session. While the
Union’s negotiator indicated generally to the contrary, the Respond-
ent’s witness stated that there was some movement on two core
issues at the last session. The Respondent’s attorney testified that
some discussion occurred narrowing down the Union’s objections to
the Respondent’s outstanding management-rights proposal and that
there was some movement on its part with respect to merit pay be-
cause it was willing to discuss a combination of merit and seniority-
based pay. The judge concluded that the latter did not reflect that
the Respondent had abandoned its insistence on merit pay. We find
that this conflict in the testimony does not affect our decision.
5 We find our recent decisions in Bethea Baptist Home, 310 NLRB
156 (1993), and Western Summit Flexible Packaging, 310 NLRB 45
(1993), distinguishable from the present case. In those cases, unlike
here, the combination of bargaining proposals themselves in conjunc-
tion with the context and manner in which the proposals were prof-
fered, and independent conduct away from the bargaining table, were
sufficient to support findings that the respondents engaged in bad-
faith bargaining with no intent to reach agreement. Specifically, in
Bethea Baptist Home, the Board based its finding of a violation on
the respondent’s use of evasive tactics to avoid providing requested
information, its refusal to put agreements in writing, its pretending
to make concessions while preserving its proposals in other parts of
Continued
key issues of employment-at-will, just cause, and arbi-
tration.4 Once again, the Respondent’s negotiator told
the union negotiator that there would be no agreement
without the Union’s acquiescence to the Respondent’s
maintenance of an employment-at-will policy. In re-
sponse, the Union’s negotiator stated that the Respond-
ent was bargaining in bad faith by insisting on total
control over employees’ working conditions. The Re-
spondent’s negotiator sought to schedule another bar-
gaining session, and the union negotiator stated that he
would get back to him. The Union never responded to
the Respondent’s request to schedule another session
and instead filed the last of the bad-faith bargaining
charges discussed above.
In finding that the Respondent engaged in bar-
gaining with no intent to reach agreement, the judge
properly acknowledged that Section 8(d) of the Act,
which defines the duty to bargain, does not require ei-
ther party to agree to a proposal or to make a conces-
sion. In this regard the judge noted that under Board
precedent a party’s failure to modify its bargaining po-
sition or its adamant insistence on a position is not
itself a refusal to bargain in good faith. He also cor-
rectly stated that to determine whether an employer has
bargained in bad faith it is necessary to examine the
totality of the employer’s conduct, including conduct at
and away from the bargaining table and the substance
of the proposals the parties have insisted on. With re-
spect to the last consideration, the judge quoted the
Board in Hydrotherm, Inc., 302 NLRB 990, 993
(1991), where it noted that an examination of the pro-
posals is not to determine their intrinsic worth but in-
stead to determine whether in combination and by the
manner proposed they evidence an intent not to reach
agreement.
In finding that the Respondent engaged in bar-
gaining with no intent to reach agreement, the judge
relied exclusively on the combination of certain of the
proposals made by the Respondent at the parties’ bar-
gaining sessions. Contrary to the judge, we find that
considering the totality of circumstances here the
record is insufficient to establish that the Respondent’s
bargaining violated Section 8(a)(5).
Although the Respondent insisted throughout on a
broad management-rights clause, it is well established
that insistence on a broad management-rights clause is
not itself inherently unlawful or evidence of bad faith.
See, e.g., Hostar Marine Transport Systems, 298
NLRB 188 (1990); Logemann Bros. Co., 298 NLRB
1018 (1990), and Commercial Candy Vending Divi-
sion, 294 NLRB 908 (1989). Furthermore, the first
paragraph of the management-rights clause that had
been agreed to early on by the parties expressly stated
that management’s reservation of authority was limited
by whatever the parties agreed to elsewhere in their
contract. With respect to the Respondent’s position on
employment-at-will, it is clear that the Union remained
as firm in its basic position on just cause as the Re-
spondent did on its proposal. The same can be said for
the parties’ respective positions on wages, although, as
indicated above, there is some evidence that the Re-
spondent was willing to discuss a mix of merit and se-
niority-based pay at the last bargaining session. Fur-
ther, as to the Union’s just cause proposal, although
the Respondent adamantly refused to agree to any con-
tractual limit or third party review of its actions, it is
undisputed, as noted previously, that it never insisted
that the Union waive its right to strike. Finally, the
record indicates that the Respondent discussed these
proposals in detail and explained its positions on many
of these matters.
In sum, the Respondent’s various positions, although
indicative of hard bargaining, are not inherently unlaw-
ful, and its failure to make concessions, in the absence
of other indicia of bad faith, is not a sufficient mani-
festation of bargaining with intent to avoid agreement.
In this regard, we note that, as the judge readily ac-
knowledged, the Respondent complied with the
Union’s information requests, met with the Union at
reasonable times and places, and reached agreement on
numerous proposals, sometimes after making conces-
sions to address the Union’s concerns. Further, there is
no evidence of animus or conduct away from the bar-
gaining table establishing an intent by Respondent to
frustrate agreement. Thus, when the record is consid-
ered as a whole, the evidence falls short of establishing
bad-faith bargaining. Accordingly, we find that the
General Counsel has not met his burden of establishing
that the Respondent violated Section 8(a)(5) and (1) of
the Act5 and we shall reinstate the settlement agree-
ment.
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the contract, its declaration of impasse at a time when the parties
were not at impasse, and its commission of several unfair labor prac-
tices designed to ensure that the union would have no role in rep-
resenting employees, as well as its insistence on proposals leaving
the union with fewer rights than provided by law without a contract.
Similarly, in Western Summit Flexible Packaging, the finding of
bad-faith bargaining was based on the respondent’s bargaining pro-
posals as well as its general antiunion attitude and various instances
of conduct occurring during the course of bargaining found to be
independently violative of Sec. 8(a)(1) and (5).
1 This charge was amended on April 23, 1991.
2 This charge was amended on March 24, 1992.
3 In deciding this issue, it must also be decided whether the Re-
gional Director properly set aside the previous settlement agreement
referred to earlier in this decision. Under Board law, a Regional Di-
rector may set aside a settlement agreement where independent evi-
dence of subsequent or continuing unfair labor practices reveals a
breach of the agreement. See, e.g., Aurora & East Denver Trash
Disposal, 218 NLRB 1, 9 (1975). If counsel for the General Counsel
ORDER
The complaint is dismissed and the settlement agree-
ment in Case 11–CA–14320 is reinstated.
Patricia L. Timmins, Esq., for the General Counsel.
Stephen T. Savitz, Esq. (Gignilliat, Savitz & Bettis), of Co-
lumbia, South Carolina, for the Respondent.
E. Hans Massey, Rep., of Monroe, North Carolina, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. I heard
these cases in trial in Walterboro, South Carolina, on July 8,
1992. Local Union 485, affiliated with International Brother-
hood of Electrical Workers, AFL–CIO, CLC (the Union),
filed unfair labor practice charges against Coastal Electric
Cooperative, Inc., (the Company) in Cases 11–CA–143201
and 11–CA–14528 on March 18 and July 23, 1991, respec-
tively, alleging violations of Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act). Thereafter on Octo-
ber 15, 1991, the Regional Director for Region 11 of the Na-
tional Labor Relations Board (the Board), approved an infor-
mal settlement agreement entered into by the Company and
Union. The settlement agreement provided for the posting of
a ‘‘Notice to Employees’’ by the Company covering allega-
tions related to the Company’s unilaterally, without prior no-
tice to and consultation with the Union, granting merit wage
increases to bargaining unit employees. The agreement also
called for the Company to, on request, bargain in good faith
with the Union as the exclusive bargaining representative of
certain of its employees in an appropriate unit.
On February 19, 1992, the Union filed a charge in Case
11–CA–148802 alleging violations of Section 8(a)(1) and (5)
of the Act. On March 20, 1992, the Regional Director for
Region 11 of the Board set aside the settlement agreement
in Cases 11–CA–14320 and 11–CA–14528 because of the al-
leged violations of the settlement agreement discovered in
Case 11–CA–14880, namely that since on or about August
21, 1990, and more particularly October 15, 1991, and at all
times thereafter the Company negotiated with the Union in
bad faith with no intention of entering into any final or bind-
ing collective bargaining agreement, and that since on or
about May 15, 1991, the Company, without notice to or bar-
gaining with the Union, granted its bargaining unit employ-
ees merit wage increases. On March 24, 1992, the Regional
Director issued an order consolidating cases, consolidated
complaint and notice of hearing (the complaint), alleging the
Company violated the Act by unilaterally granting its bar-
gaining unit employees merit wage increases and by refusal
to bargain with the Union in good faith.
The Company, in a timely filed answer, admits its oper-
ations are in and affect commerce, that the Board’s jurisdic-
tion is properly invoked and that the Union is a labor organi-
zation within the meaning of the Act. The Company denies
having bargained with the Union in bad faith and that it has
violated the Act in any manner.
At trial, I granted counsel for the General Counsel’s unop-
posed motion to sever Case 11–CA–14528 from the other
cases and I remanded that case to the Regional Director of
Region 11 for the purpose of approving a withdrawal request
executed by the Union. The parties consider the prior settle-
ment agreement to have adequately remedied the issue re-
lated to the merit wage increases.
All parties were afforded an opportunity to call, examine,
and cross-examine witnesses, and to present relevant evi-
dence. I have considered the entire record, including briefs
filed by counsel for the General Counsel and counsel for the
Company. I carefully observed the demeanor of the three
witnesses as they testified. Based on the above, and more
particularly on the findings and reasons set forth below, I
will conclude that the Company violated the Act essentially
as alleged in the complaint.
FINDINGS OF FACT
I. JURISDICTION
The Company is a South Carolina corporation with a facil-
ity located at Walterboro, South Carolina, where it is en-
gaged in the business of distributing electrical power to
members. During the 12 months preceding issuance of the
complaint here, which is a representative period, the Com-
pany received at its Walterboro, South Carolina facility
goods and raw materials valued in excess of $50,000 and
during this same representative period, derived gross reve-
nues in excess of $1 million. It is alleged in the complaint,
the parties admit, the evidence establishes, and I find the
Company is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
It is alleged in the complaint, the parties admit, the evi-
dence establishes, and I find the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. ISSUES AND A BRIEF OVERVIEW
The principal issue raised by the pleadings is whether the
Company has violated Section 8(a)(5) and (1) of the Act by
failing and refusing to bargain in good faith with the Union
regarding terms and conditions of an initial collective-bar-
gaining agreement.3
1129COASTAL ELECTRIC COOPERATIVE
can establish postsettlement violation(s), the Regional Director’s set-
ting aside of the settlement agreement will be sustained and a reme-
dial order for all violations found will issue. On the other hand, if
counsel for the General Counsel cannot establish postsettlement vio-
lation(s), the settlement will be reinstated and the complaint dis-
missed without regard to whether presettlement violations are found.
Evidence underlying the settled allegations can be used as back-
ground to support the allegations to be litigated. Stated differently,
in deciding whether postsettlement conduct was unlawfully moti-
vated, counsel for the General Counsel may rely on presettlement
conduct. Copper State Rubber, 301 NLRB 138 (1991), and Laborers
Local 185 (Joseph’s Landscaping), 154 NLRB 1384 fn. 1 (1965),
enfd. 389 F.2d 721 (9th Cir. 1968).
4 The Union requested, and the Company provided, various pieces
of information before the Union made its initial proposal to the
Company.
A secret-ballot election was conducted by the Board’s Re-
gional Office on January 8, 1990, among certain of the Com-
pany’s employees more specifically described below:
All craft employees performing all overhead and under-
ground distribution work, substation and right-of-way
work, including linemen, apprentice linemen, operators,
truckdrivers, substation workers, right-of-way workers,
and groundman employed at the Company’s Wal-
terboro, South Carolina, facility; excluding staking tech-
nicians, janitors, power use advisors, warehousemen,
office clerical employees, professional employees, and
guards and supervisors as defined in the Act.
On January 11, 1990, the Board certified the Union as the
exclusive collective-bargaining representative of the employ-
ees in the above unit.
The Company and Union met on July 16, 1990, for the
first of 10 bargaining sessions. Prior to the first negotiating
session, the Union gave the Company a copy of its proposed
collective-bargaining agreement and the Company presented
its proposed agreement at the first meeting.
In addition to the July 16, 1990 meeting, negotiating ses-
sions were held on August 21 and 22, September 25 and 26,
November 12, and December 19, 1990; March 11 and No-
vember 18, 1991; and January 28, 1992.
Counsel for the General Counsel contends the Company
negotiated with the Union during the above-noted sessions in
bad faith with no intention of entering into any final or bind-
ing collective-bargaining agreement. Counsel for the General
Counsel asserts the Company’s insistence on the inclusion of
an ‘‘employment at will’’ provision in any collective-bar-
gaining agreement taken in conjunction with the impact such
a provision would have on seniority, promotions, and layoffs,
along with the Company’s broad management-rights clause
and its insistence on a merit pay proposal made it impossible
for the parties to arrive at an agreement. The Company, on
the other hand, asserts it entered into the negotiations and
bargained with the Union in good faith. The Company con-
tends the parties made great strides in the negotiations and
agreed to various provisions of a collective-bargaining agree-
ment. The Company asserts the Union’s insistence on a ‘‘just
cause’’ provision that included arbitration and its own posi-
tion on ‘‘employment at will’’ was what precluded the par-
ties from arriving at a collective-bargaining agreement. In
support of its position, the Company notes the State of South
Carolina is a right-to-work state that has recognized the prin-
ciple of employment at will.
IV. THE FACTS
The Company, having reviewed the Union’s proposed con-
tract before the first bargaining session,4 submitted its pro-
posal for an agreement at the first negotiating session on July
16, 1990.
A comparison of the two proposals in conjunction with the
testimony of the Union’s chief negotiator, Hans Massey
(Union Representative Massey), and the Company’s chief ne-
gotiator, Attorney Julian Gignilliat (Attorney Gignilliat), re-
flects the parties reached agreement rather quickly on a num-
ber of issues. For example, the parties’ initial proposals con-
tained virtually identical language for a dues-checkoff provi-
sion which provision was immediately agreed to. Union Rep-
resentative Massey described the first negotiating session:
What had happened when we initially started our ne-
gotiations. We both had similar language in many . . .
sections . . . [s]o, when we went through those items,
we didn’t have any problem because we both initially
had the same language.
. . . .
Things like the recognition clause, the first paragraph
of the managements rights clause, some language con-
cerning what the work week would be, vacation lan-
guage—or the vacation allowance, the language in holi-
days—it was just numerous—probably I guess even the
dues deduction language was granted the first day. . . .
At the end of the contract—about the term of the agree-
ment, the language was the same except the beginning
and expiration dates.
Attorney Gignilliat described the parties’ early negotiating
sessions:
By virtue of the fact that we had adopted a lot of the
Union’s language in our first proposal, those things
were naturally resolved when we first got together. And
we fairly rapidly moved through a number of other
issues, proposals, sections of the contract reaching
agreement on large numbers of those things.
At each negotiating session, the parties ‘‘would generally
start at the beginning of either the Union’s proposals or [the
Company’s proposal] and go through and see what was still
open.’’ Attorney Gignilliat stated the parties also fairly
quickly discovered ‘‘three or four core issues’’ that they dif-
fered on. Gignilliat testified
The Union . . . was insisting upon just cause for termi-
nation and discipline, and an arbitrator to decide wheth-
er just cause existed. The Co-op was proposing to
maintain it’s stated employment at will policy. The
Union sought a pay plan which was a lock step, auto-
matic increase based on length of service. The Co-op
sought a pay plan which was predominantly merit ori-
ented. There was some other proposals by the Union—
what I will call penalty pay proposals with regard to
such things as daily overtime—with which the Co-op
1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Massey testified Attorney Gignilliat told him the Company was
not interested in a no-strike clause but that if the Union really want-
ed one, they could have it ‘‘but as far as he was concerned, there
would not be any need for it because if [the Union] didn’t like what
the coop manager did, the employees [could] go ahead and hit the
street and he would replace every damn one of them.’’
did not agree, and there was dispute about the second
paragraph—the management’s rights clause.
Union Representative Massey suggested in November that
the parties seek help from a mediator in ‘‘working out some
of the language’’ they differed on and to see if a mediator
could help them move ‘‘a little bit closer together on some
of these items’’ they were having problems with.
Federal mediators met with the parties at their November
12 and December 19, 1990; and March 11, 1991 negotiating
sessions. The mediators asked both sides to list the issues
they considered open or in dispute. Both sides did so. Union
Representative Massey provided the mediators and the Com-
pany a list of open issues on December 19, 1990. The Union
listed as open items management rights, employment at will,
employment status, seniority, leaves of absence, disciplinary
action, hours of work, sick leave, work boots, arbitration, no
strike/no lockout,5 classification structure, and wages.
Gignilliat provided the mediators and the Union, the Com-
pany’s list of open items which, as of December 19, 1990,
included management-rights, employment at will, employ-
ment status, seniority, leaves of absence, wages, and hours
of work.
It would appear the parties were, as of December 19,
1990, in agreement on certain articles or language for a col-
lective-bargaining agreement, namely, recognition article,
portions of a management-rights article, vacation language,
language on holidays, dues deduction, duration of the agree-
ment, union activities language, a pledge of no discrimina-
tion, and perhaps some understandings on other matters.
On December 20, 1990, the Company advised the Union
in writing that state and Federal regulations required outside
drivers, such as those in the bargaining unit, to have a com-
mercial driver’s license. The Company pointed out to the
Union that part of the requirements for a commercial driver’s
license involved initial as well as random, periodic and
postaccident drug testing. The Company asked the Union
whether it considered such regulations and requirements to
apply to the unit employees and told the Union if it con-
cluded such did not apply to submit to the Company what-
ever authority it was relying on. The Company advised the
Union that if the Union could not persuade the Company that
such testing was not required, the Company intended to
abide by the law and implement a drug testing policy and
procedure.
The parties next met with mediators on March 11, 1991.
According to Union Representative Massey, the parties went
back and forth with the mediators but were unable to reach
agreement on the terms and conditions that were still open.
Thereafter, the mediators brought the parties face to face and
Company Attorney Gignilliat announced the parties were at
impasse on certain core issues. Gignilliat stated the Com-
pany’s ‘‘employment at will’’ position and the Union’s ‘‘just
cause’’ position ‘‘was completely blocking’’ any agreement.
Gignilliat testified ‘‘Mr. Massey made it quite plain that he
was not going to sign a contract that did not have just cause
language in it.’’ Gignilliat testified, ‘‘we had told him that
we wouldn’t sign a contract that didn’t have it in it.’’ Union
Representative Massey testified Gignilliat said the Company
had nothing further to offer if the Union could not accept
their ‘‘employment at will’’ language or at least that concept
in any agreement. Massey said Gignilliat asked if he would
ever agree to ‘‘employment at will’’ language. Massey said
he told Gignilliat he wasn’t sure that they still ‘‘had numer-
ous items . . . open’’ but at that point he would have to say
no. The negotiating session ended with the mediators offer-
ing their assistance in the future if needed or desired.
Certain core issues unresolved as of March 11, in addition
to ‘‘employment at will’’ and ‘‘just cause’’ were manage-
ment rights, progressive discipline with arbitration, layoffs,
seniority, leaves of absence, and wages.
Attorney Gignilliat outlined the Company’s impasse ra-
tionale and position in a letter to the Union dated March 13,
1991. Gignilliat’s letter follows:
MARCH 13, 1991
Mr. E. Han Massey
International Representative
International Brotherhood of
Electrical Workers
201 West Houston Street
Monroe, North Carolina 28110
Re: Coastal Electric Cooperative
Dear Han:
This is to confirm Coastal’s position regarding future
bargaining meetings with the IBEW. I believe that we
reached an impasse quite some time ago. Nothing
which occurred at our meeting at March 11, 1991,
caused me to believe otherwise. Indeed, it became even
more obvious that we have reached a deadlock.
I do not doubt that the Union is willing to move on
the outstanding economic issues. It is even possible that
the Union would make some counterproposal on one or
more economic issues that would cause the Co-op to
change its position on that issue. The reason I think that
further meetings would be fruitless is not that both par-
ties are frozen to their respective positions on every
issue, but rather that they are frozen to their positions
on the central issue: employment at will.
You are aware that the Co-op feels so strongly about
this issue that long before the Union came into the pic-
ture it stamped such language on every single one of
its personnel policies. The Co-op’s bargaining com-
mittee has for hours on end explained its position to
you and for almost as long heard your arguments in
support of your position. We have relayed your feelings
and explanation to the Board of Trustees. My directions
are to stand firm for the Co-op’s existing philosophy.
Employment at will is not just the title of a contract
proposal. It is a concept which causes our differences
of opinion regarding the management rights clause, the
discipline clause, the seniority clause and to the leave
of absence clause, and causes our opposition to your
demand for ‘just cause’ and arbitration.
The Co-op is not adamant regarding the exact word-
ing of clauses which preserve the employment at will
principle. However, it will not agree to a contract
1131COASTAL ELECTRIC COOPERATIVE
6 As also noted elsewhere in this decision the unilateral merit in-
crease allegations were severed out of the cases leaving only the
issue of whether the Company bargained in bad faith.
which does not preserve this principle. The issue has
been fully discussed. It has been more than fully dis-
cussed. Therefore, unless and until the Union informs
the Co-op—preferably in writing—that it agrees to the
employment at will concept at least in principle, the
Co-op will not resume negotiations.
Please note that this action is not a withdrawal of
recognition.
With best personal regards and good wishes, I re-
main,
Sincerely,
/s/ Julian
Julian H. Gignilliat
On March 18, 1991, the Union filed with the Board the
first of its charges (Case 11–CA–14320) against the Com-
pany. In Case 11–CA–14320, the Union charged the Com-
pany with refusing to bargain. The charge was amended on
April 23, 1991, to allege the Company had bargained in bad
faith with no intent of entering into a collective-bargaining
agreement with the Union. On May 1, 1991, the Regional
Director for Region 11 issued a complaint and notice of
hearing charging the Company with bad-faith bargaining
since on or about August 21, 1990. Thereafter, on July 23,
1991, the Union filed the second of its charges (Case 11–
CA–14528) against the Company in which it charged the
Company had granted wage increases without bargaining
with the Union concerning such increases. Thereafter, on
September 4 and October 8, 1991, the Union and Company,
respectively, executed and entered into a settlement agree-
ment in Cases 11–CA–14320 and 11–CA–14528 which set-
tlement agreement was approved by the Regional Director
for Region 11 of the Board on October 15, 1991. The settle-
ment agreement called for the Company to, on request, bar-
gain in good faith with the Union and to refrain from unilat-
erally granting merit wage increases to its bargaining unit
employees.
The parties resumed negotiations on November 18, 1991,
at which time they discussed all items that had been left
open or unresolved. Union Representative Massey said ‘‘at
that meeting we felt that finally we might be making some
progress.’’ The parties reached agreement on sick leave
wherein the Company agreed to the Union’s demand that
sick leave commence on the first day of an employee’s ab-
sence due to an illness which had been the Company’s past
practice prior to the advent of the Union. Compromise by
both parties resulted in agreement on a leave of absence pro-
vision. Agreement was reached in favor of the Union’s pro-
posal that called for the Company’s paying 100 percent of
the cost of the employee’s work boots. In so agreeing, the
Company moved from its initial position that it would bear
none of the cost to 50 percent of the cost to 100 percent of
the cost. Full coverage of the employee’s work boots was
consistent with the Company’s past practice. Agreement was
reached on insurance coverage for the employees in that the
Company would, as had been its past practice, pay 100 per-
cent of the coverage for employees. The only difference
under the new agreement reached on insurance was that the
Company would pay a specific amount for employees’ cov-
erage and if the insurance carrier increased the rate for the
coverage during the life of the collective-bargaining agree-
ment, the employees would be obligated to pay the dif-
ference. In the past, the employees had not been so obli-
gated. The Company also agreed to the Union’s proposal that
the Union be notified of any changes the Company made in
its rules or policies with the right to grieve any such changes
if the Union so desired.
It is undisputed the parties held to their respective posi-
tions on such matters as management rights, employment at
will, just cause for discipline, arbitration, seniority, and
wages.
On January 15, 1992, the Company notified the Union in
writing that a particular probationary employee had obtained
the equivalent of a high school diploma and requested the
Union’s agreement on its desire to grant the specific em-
ployee a wage increase.
On January 28, 1992, the parties met for their final negoti-
ating session. At this session, the Union, in response to the
Company’s letter on commercial driver’s licenses for unit
employees, agreed that it was necessary for the Company to
have a drug testing program. The Union insisted that all em-
ployees be tested and that all urine samples be split for pos-
sible subsequent retesting in the event of a positive test. The
Company agreed to the Union’s conditions. The Union
agreed to a wage increase for the probationary employee that
had furthered his education. The Company subsequently
granted the increase. The parties reached agreement on
leaves of absence by ‘‘basic horse trading’’ and agreement
was reached on maximum consecutive working hours. Ac-
cording to Attorney Gignilliat, the parties better understood
and/or perhaps narrowed their differences on management
rights and found some possible common ground on a mixture
of across-the-board and merit wage increases. However,
when it came to the issue of ‘‘just cause’’ versus ‘‘employ-
ment at will,’’ the parties had a parting of the ways without
reaching any common ground. Attorney Gignilliat told Union
Representative Massey that as long as they did not have
agreement on employment at will or at least an agreement
on that concept, there would be no collective-bargaining
agreement. Massey responded to Gignilliat that he felt the
Company was bargaining in bad faith, by insisting on total
and complete control over the employees’ working condi-
tions and rights. Massey told Gignilliat the Company’s posi-
tion on management rights, discipline, seniority, no arbitra-
tion, and employment at will completely defeated the pur-
pose of a contract and that as such the Company was not ne-
gotiating with the intent of arriving at an agreement. Attor-
ney Gignilliat then attempted to schedule another bargaining
session but Massey told him he would have to get back with
him concerning future negotiations. No further bargaining be-
tween the parties has occurred since January 28, 1992.
On February 19, 1992, the Union filed the third of its
charges (Case 11–CA–14880) against the Company alleging
bad-faith bargaining. As earlier noted, the Regional Director
for Region 11, on March 24, 1992, issued an order consoli-
dating cases, consolidated complaint and notice of hearing in
which he set aside the parties’ previous settlement agreement
and outlined the unfair labor practice allegations herein.6
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
V. LEGAL PRINCIPLES
Section 8(d) of the Act requires an employer (as well as
employees’ representatives) to meet at reasonable times and
confer in good faith with respect to wages, hours, and other
terms and conditions of employment. The obligation does
not, however, compel either party to agree to a proposal or
to make a concession. See H. K. Porter Co. v. NLRB, 397
U.S. 99 (1970). In determining whether a party has nego-
tiated in good faith, the Board scrutinizes the totality of the
party’s conduct. See, e.g., Schaeff Namco, Inc., 280 NLRB
1317, 1318 (1986), and Pipe Line Development Co., 272
NLRB 48, 49 (1984). The Board majority noted in Leeds Ca-
blevision, 277 NLRB 103 fn. 2 (1985), an employer’s con-
duct must be ‘‘analyzed as a series of related acts rather than
as singular, isolated incidents.’’ A party’s failure to modify
its bargaining position is not, however, bad-faith bargaining
because an adamant insistence on a bargaining position is not
itself a refusal to bargain in good faith. See Schaeff Namco,
Inc., supra, see also Atlanta Hilton & Tower, 271 NLRB
1600, 1603 (1984). The Board looks not only at the parties’
behavior at the bargaining table but also to conduct away
from the table that may affect the negotiations. Hedaya
Bros., 277 NLRB 942, 944 (1985). In that regard, the Board
examines to see if a party’s conduct away from the table re-
veals a state of mine antithetical to the concept of good-faith
bargaining or whether the party’s conduct away from the bar-
gaining table is absent of any conduct which would suggest
its negotiating positions were taken in bad faith. Because
there is seldom direct evidence of a party’s intent to frustrate
the bargaining process, the Board looks not only at conduct
at and away from the bargaining table but at the substance
of the proposals the parties have insisted on. Hydrotherm,
Inc., 302 NLRB 990 (1991). The Board in Hydrotherm, Inc.,
noted ‘‘such an examination is not intended to measure the
intrinsic worth of the proposals but instead to determine
whether in combination and by the manner in which they are
urged they evince a mindset open to agreement or one that
is opposed to give-and-take.’’ Appearing regularly at the bar-
gaining table and even agreeing to various counterproposals
does not preclude a finding of bad-faith bargaining based on
inferences drawn from the totality of a party’s conduct. Mod-
ern Mfg. Co., 292 NLRB 10 (1988). Stated differently, col-
lective bargaining is more than just formal meetings between
the parties, it presupposes a desire by good faith give and
take to ultimately arrive at a collective-bargaining agreement.
NLRB v. Insurance Agents, 361 U.S. 477, 485 (1960). The
Board does, however, consider whether there has been co-
operation between the parties at and away from the negoti-
ating table. In Boaz Carpet Yarns, 280 NLRB 40, 44 (1986),
the Board held the employer therein had not bargained in bad
faith and stated:
in analyzing the entirety of the Respondent’s conduct,
we find it noteworthy that its approach to bargaining
was cooperative in that it provided information re-
quested and counterproposals in a timely manner. Sig-
nificantly, it is not alleged, nor is it apparent from the
record, that the Respondent imposed any substantial,
unilateral changes in working conditions during the
course of negotiations. Therefore, it appears that Re-
spondent’s conduct both away from and at the bar-
gaining table does not evince a bad faith approach to
bargaining.
Finally, it must always be borne in mind that good-faith bar-
gaining may be quite hard and still be lawful. Reichhold
Chemicals, 288 NLRB 69 (1988), affd. in pertinent parts sub.
nom. Teamsters Local 515 v. NLRB, 906 F.2d 719, 726
(D.C. Cir. 1990).
VI. DISCUSSION, ANALYSIS, AND CONCLUSIONS
The evidence is unrefutted that the Company provided the
Union the information it requested to assist it in preparing
for and/or presenting its bargaining proposals to the Com-
pany. There is no contention that the Company failed to meet
at reasonable times or places. No evidence was presented in
support of, nor any contentions made, that the Company bore
animus toward the Union. There are no contentions made
that the Company engaged in any conduct away from the
bargaining table that might evince an intention not to arrive
at an agreement with the Union. There is no contention that
any of the Company’s proposals standing alone constituted
bad-faith bargaining. It is undisputed that the negotiations
were conducted in an amicable manner. Simply stated, coun-
sel for the General Counsel’s case that the Company engaged
in bad-faith bargaining rests entirely on the combination of
certain proposals made by the Company at the parties’ 10
bargaining sessions.
Thus, the question here presented is whether counsel for
the General Counsel’s evidence, which consists of the Com-
pany’s bargaining proposals and positions, is sufficient to es-
tablish the Company entered into bargaining with no real in-
tention of concluding a final and binding collective-bar-
gaining agreement with the Union. I conclude it is.
I find it unnecessary to review the complete history of bar-
gaining in order to conclude the Company bargained in bad
faith. In so doing, I am not unmindful that the parties agreed
on numerous provisions to be included in any ultimately ar-
rived at collective-bargaining agreement. Some areas of
agreement between the parties included a recognition clause,
dues checkoff, holidays and vacation language, union activi-
ties language, pledge of no discrimination language, sick
leave language, leaves of absence language, insurance cov-
erage, notification of rules and/or policies changes with the
right to grieve such changes, drug testing, jury duty pay,
work tools and boots, and rain suits.
From the very first negotiating session and continuously
thereafter, the Company insisted on certain contract provi-
sions which it knew were totally unacceptable to the Union
and which unless withdrawn, modified, or offset by other
provisions would preclude the parties from arriving at a col-
lective-bargaining agreement. For example, the Company in-
sisted throughout negotiations on a broad management-rights
clause that reserved to itself sole and exclusive control over
virtually all terms and conditions of employment not specifi-
cally precluded by other contract language. In its manage-
ment-rights clause, the Company would retain sole and ex-
clusive control over the right to move, sell, merge, or close
any part or all of its facilities without any input from its em-
ployees’ bargaining representative. The Company would re-
tain the sole and exclusive right to determine and redeter-
mine the number, locations, and types of facilities it would
operate. The Company would retain sole and exclusive right
1133COASTAL ELECTRIC COOPERATIVE
7 Although the Company explained in negotiations that it needed
this particular right to, for example, continue allowing farmers to
clear powerline right of ways after storms, no assurances were pro-
vided that the Company would not utilize such rights simply to
eliminate the bargaining unit altogether.
8 The fact the State of South Carolina recognizes the principle of
‘‘employment at will’’ does not alter its overall impact on the nego-
tiations here.
9 The Company’s indication during the last bargaining session that
perhaps the parties were getting on the ‘‘same railroad’’ with respect
to merit pay does not reflect the Company had moved away from
its insistence on merit pay.
10 Counsel for the General Counsel established the Company bar-
gained in bad faith after the settlement agreement was entered into
that required it to bargain in good faith. Accordingly, the Regional
Director’s setting aside of the settlement agreement was proper. Ad-
ditionally, no valid impasse existed herein inasmuch as a valid im-
passe cannot be attained by unlawful means.
to subcontract, discontinue, or automate any and all of its fa-
cilities or operations. The Company would retain the sole
and exclusive right to schedule and change working hours
and working assignments, including the right to reduce work-
ing hours in any week and the right to change the terms of
or to eliminate any working conditions or fringe benefits not
expressly provided for elsewhere in the agreement. The
Company would retain the sole and exclusive right to rep-
rimand, suspend, demote, discharge, or otherwise discipline
employees without the need to demonstrate or exercise such
power in a ‘‘just cause’’ or ‘‘reasonable’’ manner. The Com-
pany would in its management-rights clause retain the sole
and exclusive right to select employees for hire, layoff, pro-
motion, or to fill vacancies, and the right to use leased em-
ployees, volunteers, and/or nonbargaining unit members to
perform bargaining unit work and the right to determine the
size and composition of its work force without input from
the Union.7 The Company, by insisting on the above enu-
merated management rights without agreeing to language
(such as just cause/arbitration) that would have limited or
checked such rights, severely hampered, if not completely
destroyed, the Union’s exercise of its duty to represent the
employees.
Still further and of almost greater significance is the Com-
pany’s adamant insistence on an ‘‘employment at will’’ pro-
vision in any collective-bargaining agreement. Under its
‘‘employment at will’’ provision, the Company retained the
right to terminate employees at any time and for any or no
reason whatsoever. The Company adamantly and
unwaveringly refused to include a ‘‘just cause’’ or any other
standard of fairness as a limitation of its authority. Simply
stated, the Company could at its whim terminate its employ-
ees without recourse on their part. The Company’s ‘‘employ-
ment at will’’ proposal is clearly disruptive of any serious
ability on the Union’s part to represent the bargaining unit
employees.8
That the above Company proposals (management rights
and employment at will provisions) were advanced to pre-
clude the reaching of any agreement is further demonstrated
by the fact the Company would not agree to any provision
that would allow for any independent neutral or outside re-
view of its actions. It is clear when one views the Com-
pany’s proposals on management rights and employment at
will with its adamant refusal to agree to just cause arbitration
that it was seeking to retain absolute power and control over
its bargaining unit employees and to leave such employees
without effective representation by the Union. Under the
Company’s grievance proposal, the final decision on all mat-
ters grieved rested with its manager. Thus, employees were
left with no effective recourse to appeal the Company’s rati-
fication of its own decisions.
In viewing the Company’s proposals on management
rights, employment at will, and its rejection of just cause ar-
bitration in light of its insistence that wage increases be
based on merit,9 one is compelled to conclude that such pro-
posals were designed and advanced to thwart bargaining. For
example, under the Company’s management-rights clause,
the Company retained the sole and exclusive right to deter-
mine which employees would be promoted without any ob-
jective criteria in support thereof. Under the Company’s
merit pay plan, it could determine which employees would
get pay raises without any review of its determinations. Also,
the Company could, in its sole discretion, even grant or with-
hold wage increases without any challenge or input from its
employees’ authorized representative. To make its power
over its employees absolute, the Company would not, as
noted elsewhere in this decision, agree to allow ‘‘just cause’’
to impact any of its decisions. It is clear the Company made
no sincere effort to accommodate the interests of its bar-
gaining unit employees and/or their duly designated bar-
gaining representative.
In light of all the above, I find the Company knew its bar-
gaining proposals on management rights, employment at will,
and merit pay, coupled with its rejection of just
cause/arbitration would assure it that no agreement would be
arrived at with the Union. The Company, by its proposals,
reserved to itself the sole and exclusive right to do just as
it pleased in virtually every area of vital concern to the bar-
gaining unit employees and left the employees’ bargaining
representative with absolutely no authority to effectively
challenge any of these vital matters of concern. Clearly, the
Company’s fixed position on certain of its bargaining pro-
posals was in direct and unequivocal opposition to the
Union’s responsibilities as the employees’ collective-bar-
gaining representative.
In summary, I find, that although the Company’s nego-
tiators appeared regularly at the bargaining table and that the
negotiations resulted in agreement on a number of subjects,
the totality of the record evidence is persuasive that the
Company was not bargaining in good faith with a view of
trying to reach a collective-bargaining agreement with the
Union and as such the Company violated Section 8(a)(5) and
(1) of the Act.10
CONCLUSIONS OF LAW
1. Coastal Electric Cooperative, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Local Union 485, affiliated with International Brother-
hood of Electrical Workers, AFL–CIO, CLC is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. The Union is the certified bargaining agent for the
Company’s employees in the following appropriate unit:
All craft employees performing all overhead and under-
ground distribution work, substation and right-of-way
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work, including linemen, apprentice linemen, operators,
truckdrivers, substation workers, right-of-way workers,
and groundman employed at the Respondent’s Wal-
terboro, South Carolina, facility; excluding staking tech-
nicians, janitors, power use advisors, warehousemen,
office clerical employees, professional employees, and
guards and supervisors as defined in the Act.
4. The Company engaged in conduct violative of Section
8(a)(5) and (1) of the Act by bargaining with the Union in
bad faith with no intention of entering into any final or bind-
ing collective-bargaining agreement.
5. The unfair labor practices found here affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company engaged in the unfair
labor practices set forth above, I recommend it cease and de-
sist from such conduct or any like or related conduct and
take certain affirmative action designed to effectuate the poli-
cies of the Act. I recommend the Company be ordered, on
request, to bargain collectively in good faith with the Union
as the exclusive bargaining representative of its employees in
the above-described unit; and in the event an understanding
is reached to embody such understanding in a signed agree-
ment. I also recommend the Company be ordered to post the
notice attached hereto as ‘‘Appendix.’’
In order to ensure that the employees will be accorded the
statutorily prescribed services of their designated bargaining
agent for the period prescribed by law, I recommend that the
initial year of certification begin on the date the Company
commences to bargain in good faith with the Union as the
bargaining representative of its employees in the above-de-
scribed appropriate unit. Modern Mfg. Co., 292 NLRB 10
(1988).
[Recommended Order omitted from publication.]