Electrical Workers Ibew Local 428 (Kern County Chapter Neca)

National Labor Relations Board - Board Decisions

Nov 12, 1985

277 N.L.R.B. 397 (N.L.R.B. 1985)

ELECTRICAL WORKERS IBEW LOCAL 428 (KERN COUNTY CHAPTER NECA)
International Brotherhood of Electrical Workers
Union, Local No. 428 and Kern County Chap-
ter, National Electrical Contractors Association
and Kern County Electrical Contractors Asso-
ciation
International Brotherhood of Electrical Workers
Union, Local Nos. 47 and 1245 and Western
Line Construction Association , Inc. Cases 31-
CB-4296, 31-CB-4321, and 31-CB-4433
12 November 1985
DECISION AND ORDER
BY CHAIRMAN DOT'SON AND MEMBERS
DENNIS AND JOHANSEN
On 25 February 1983 Administrative Law Judge
Joan Wieder issued the attached decision. The
General Counsel and the Charging Parties filed ex-
ceptions and supporting briefs, and Respondent
Local. 428 filed cross-exceptions and a brief in sup-
port thereof and in answer to the General Coun-
sel's exceptions. '
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, r and
eonclusions2 and to adopt the recommended Order
as modified.3
i The judge inadvertently erred in finding that Respondent Local 428
violated Sec. 8 (b)(l)(B) and Sec. 8(d) of the Act by assertion of the right
to unilaterally rescind and unilaterally rescinding provisions of the par-
ties' collective-bargaining agreements , We conclude that such conduct
violated Sec 8(b)(3) of the Act.
The reference in par. 1 of the judge ' s decision to the charge filed on 23
July by Kern County Chapter, National Electrical Contractors Associa-
tion (NECA) should be to Case 31-CB-4296.
Charging Party Kern County Electrical Contractors Association
(KCECA) has requested oral argument The request is denied as the
record, exceptions , and briefs adequately present the issues and the posi-
tions of the parties.
2 The General Counsel and Charging Parties excepted to the judge's
recommended Order, which included a cease-and -desist and bargaining
order remedy , asserting that restoration of the foreman -call provision to
the parties' current collective-bargaining agreements is necessary to re-
store the status quo ante . We conclude that such remedial relief is inap-
propriate as it would compel the Respondent to agree to a substantive
term of the collective-bargaining agreements concerning which the par-
ties had failed to reach a consensus during contract negotiations. H. K.
Porter Co. v. NLRB, 397 U.S. 99 (1970). KCECA argues alternatively
that the parties' 24 December 1981 and 1982- 1983 collective -bargaining
agreements should be rescinded in order to preserve the statutory right of
employer-members of KCECA and NECA under Sec. 8(b)(1)(B) of the
Act to select their supervisors and grievance adjustment representatives.
Because the right involved is a statutory right, we find that, under the
circumstances of this case, a rescission remedy would have no practical
effect and would not effectuate the purposes and policies of the Act.
8 Charging Party KCECA excepted to the judge's failure to find that
the Respondent violated Sec . 8(b)(1)(B) and (3) of the Act by threatening
to strike to compel deletion of the foreman -call clause from the parties'
collective-bargaining agreements . We conclude that such conduct was
violative of Sec . 8(b)(1)(B) and (3) of the Act and have modified the
judge's recommended Order to remedy this unfair labor practice We also
397
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, International Brotherhood of Electrical
Workers Union Local No. 428, Bakersfield, Cali-
fornia, its officers , agents, and representatives, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
"(b) Refusing to bargain in good faith and insist-
ing to impasse, threatening to strike, and striking
over its demand that KCECA and NECA relin-
quish their contractual rights to request foremen
and general foremen by name, though foremen and
general foremen are members of the unit and must
be dispatched through the Respondent's hiring hall,
thereby coercing or restraining NECA and
KCECA in their selection of representatives for
purposes of collective bargaining or the adjustment
of grievances."
2. Substitute the attached notice for that of the
administrative law judge.
modify the notice to conform with the provisions of the recommended
Order.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States -Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain in good faith
with Kern County Chapter, National Electrical
Contractors Association (NECA) and Kern County
Electrical Contractors Association (KCECA) by
engaging in surface bargaining , insisting to impasse,
and striking to require, as a condition of agreement,
that NECA accept the proposal that all contracts
be sent to the National Office of the National Elec-
trical Contractors Association for approval.
WE WILL NOT unilaterally repudiate contract
provisions setting the time frame for the com-
mencement of negotiations for a new agreement.
WE WILL NOT refuse to bargain with NECA and
KCECA by insisting to impasse, threatening to
strike, and striking to require as a condition of
agreement that NECA and KCECA relinquish
their contractual rights to request foremen and gen-
eral foremen by name , though foremen and general
foremen are members of the unit and must be dis-
277 NLRB No. 48
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
patched through the Union's hiring hall, thereby
coercing or restraining NECA and KCECA in
their selection of representatives for purposes of
collective bargaining or the adjustment of griev-
ances.
WE WILL, on request, bargain collectively in
good faith with NECA and KCECA as the exclu-
sive collective-bargaining representative of the em-
ployees in the appropriate unit and embody in a
signed agreement any understanding reached.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS UNION,
LOCAL No. 428
Richard R. Paradise, Esq., for the General Counsel.
Walter C. Appling, Esq. (Potts & Richman), of Los Ange-
les, California, for the Respondent Union.
Dwight L. Armstrong, Esq. (Musick, Peeler & Garrett), of
Los Angeles, California, for the Charging Party.
Alexander B. Cvitan, Esq. (Reich, Adell & Crost), of Los
Angeles, California, for the Respondent Unions.
Stuart H. Young, Jr., Esq. (Hill, Farrer & Burrill), of Los
Angeles, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. The hear-
ing in these cases was held on August 17, 18, and 19,
1982, pursuant to a notice of hearing.' The initial charge
was filed on July 23 by Kern County Chapter, National
Electrical Contractors Association (Kern County NECA
or NECA) in Case 32-CB-4321 and by Kern County
Electrical Contractors Association (Kern County
KCECA or KCECA) in Case 21-CB-4321.
Thereafter, Western Line Constructors Chapter Inc.,
National Electrical Contractors Association Inc. (West-
ern Line) filed the charge in Case 31-CB-4433. The Re-
gional Director for Region 31 issued various complaints,
amendments, and orders consolidating cases which allege
that International Brotherhood of Electrical Workers,
Local No. 428 (Respondent Union or Local 428) en-
gaged in unfair labor practices within the meaning of
Section 8(b)(1)(B) and (3) of the National Labor Rela-
tions Act (the Act).
On December 31, 1981, the Regional Director for
Region 31 issued an order consolidating cases in a
second amended consolidated complaint. On February
25, 1982, the Regional Director for Region 31 issued a
third amended consolidated complaint alleging that
Locals 428, 47, and 1245 engaged in unfair labor prac-
tices within the meaning of Section 8(b)(1)(13) and (3) of
the National Labor Relations Act. At the trial, Respond-
ent Local 47 and Local 1245 entered into settlement
agreements with the Charging Parties in Case 31-CB-
4433 which were approved by me on the record on
1 Unless otherwise indicated, all dates herein refer to the year 1981.
August 18, 1982. These settlement agreements in Case
31-CB-4433 were proved on the record and, by order
dated August 30, 1982, the charge in Case 31-CB-4433
was to remain outstanding pending compliance there-
with. Those portions of the complaint covered by these
settlement agreements were severed from the complaint
and dismissed . Thus, the only remaining local Respond-
ent is Union Local 428.
The parties were afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses, and
to introduce relevant evidence. The parties waived clos-
ing statements and briefs have been received from all re-
maining parties.
On the entire record, and based on my observation of
the witnesses and considerations of the submitted briefs, I
make the following
FINDINGS OF FACT
1. JURISDICTION
It is undisputed that the employer-members of NECA,
which is an organization composed of employers en-
gaged in electrical contracting in the construction indus-
try, and which exists for the purpose, inter alia, of repre-
senting its employer-members in negotiating and adminis-
tering collective-bargaining agreements with various
labor organizations, including Respondent Local 428,
collectively, annually purchase and receive goods or
services valued in excess of $50,000 directly from suppli-
ers located outside the State of California. Similarly it is
undisputed that KCECA is now, and at all times material
herein has been, an organization composed of employers
engaged in electrical contracting in the constracting in
the construction industry, and which exists for the pur-
pose, inter alia, of representing its employer-members in
negotiating and administering collective-bargaining
agreements with various labor organizations, including
Respondent Local 428; and the employer-members of
KCECA, collectively, annually purchase and receive
goods or services valued in excess of $50,000 directly
from suppliers located outside the State of California.
It is admitted, and I find that the employer-members of
NECA and KCECA collectively are now, and have
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
It is admitted that Union Local 428 is, and has been at
all times material herein, a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Statement of the Issues
The complaint, as amended, raises the following prin-
cipal issues:
1. Whether Respondent violated Section 8(b)(1)(B) of
the Act by insisting to impasse, threatening to strike, and
striking over its demand that NECA and KCECA agree
to delete the provision contained in prior contracts
ELECTRICAL WORKERS IBEW LOCAL 428 (KERN COUNTY CHAPTER NECA)
which granted the respective employer-members the
right to request general foremen and foremen by name.
2. Whether foremen and general foremen are supervi-
sors as defined in the Act.
3. Whether Respondent Local 428 violated Section
8(b)(3) of the Act by failing or refusing to bargain col-
lectively in good faith by: engaging in surface bargain-
ing; denominating proposals as "mandatory" and "imple-
mented"; by insisting to impasse, threatening to strike,
and striking to secure contract proposals concerning non-
mandatory subjects of bargaining; and by repudiating
contract provisions relating to the commencement of ne-
gotiations.
B. Background
NECA and KCECA are lnultiemployer associations
whose members are electrical contractors engaged in the
construction industry, NECA and KCECA exist for the
purpose of representing employer-members and employ-
ers signatory to Letters of Assent in negotiating and ad-
ministering collective-bargaining agreements with labor
organizations, including Respondent Local 428.
Kern County NECA had, in April through July 1981,
approximately 175 employers, including temporary em-
ployers, signatory to the agreement who come into Kern
County, of which approximately 50 are signatories to
Letters of Assent with the remainder signatory to the
NECA agreement. In 1981 KCECA had 10 to 12 mem-
bers, 33 signatories to Letters of Assent A, and approxi-
mately a dozen signatories to Letters of Assent B.2
KCECA is not affiliated with any national body and
there are no other chapters. KCECA was formed by em-
ployer-members of NECA that were dissatisfied with
NECA. KCECA and Local 428 have had a bargaining
relationship since the inception of KCECA in or about
1978. NECA and Local 428 also have had a collective-
bargaining relationship for a number of years.
NECA and KCECA have executed a series of con-
tracts with Respondent and, as here pertinent, they exe-
cuted collective-bargaining agreements for a 1-year term
effective from July 1, 1980, through June 30, 1981,
which covered, respectively, "inside" electrical construc-
tion work, "line" construction work, and "oil field" elec-
trical construction work.3 These various collective-bar-
gaining agreements provide for changes in the terms and
conditions, subject to notification in writing at least 90
days prior to the anniversary date. These contracts fur-
ther provide that negotiation meetings shall start not
later than 1 week after April 1 and shall continue weekly
until completed, unless mutually decided otherwise.
2 A Letter of Assent B is a vehicle by which a contractor becomes
signatory to an agreement between KCECA and the union , but does not
delegate bargaining rights to KCECA The agreement is for a specific
term of years, normally having the same anniversary date as that of the
contract in effect when the Letter of Assent B is signed A similar Letter
of Assent B is used by NECA. NECA had 5 to 10 signatories to Letters
of Assent 3 at the time pertinent herein. Letters of Assent A bind the
signatories to the collective-bargaining agreement , and they do not have
to be renewed each year
3 The parties stipulated as to the appropriate units for the purposes of
collective-bargaining within the meaning of Sec 9(b) of the Act These
units are described in the order portion of this decision
399
C. Union Local 428's Contract Proposals
On March 31, 1981, Respondent, by Ronald L. Crox-
ton, business manager, sent letters to NECA and
KCECA advising them of Respondent's "desire to
change or terminate" and applicable line, oil field, and
inside agreements "as set forth in the enclosed propos-
als."4 As an attachment to these letters, Respondent ap-
pended contract proposals to both KCECA and NECA.
Certain proposals were designated "implemented." Other
proposals were marked with the designation "M." Still
other proposals were marked with a designation "S." At
the foot of the last page of each of these proposals was
the following explanation:
M-IBEW International Office indicates these
sections must be changed.
S-IBEW International Office suggests these sec-
tions be changed.
These designations were insert pursuant to Croxton's di-
rections. Croxton also testified that the designation "M"
stands for mandatory, "S" stands for suggested, and he
understood the term "implemented" as indicating that
those changes so designated had actually been made
without any negotiations between NECA, KCECA, and
Union Local 428. These designations, according to Crox-
ton, were placed on the proposals for the benefit of the
union negotiating committee and were inadvertently re-
tained on the copies sent to KCECA and NECA. How-
ever, Croxton admitted that he did not tell the NECA
and KCECA negotiating committee that these designa-
tions were included on their copies through inadvert-
ence.
The items designated "implemented" in the March 31
communications included the deletion of that provision
which required negotiations to commence "not later than
one (1) week after April L" Another item designated as
"implemented" required that the agreements negotiated
and in effect for 1980 and 1981 were amended to provide
that any new agreement negotiated thereafter would re-
quire the approval of "the national office of NECA." Fi-
nally, the missive designated as "implemented" a change
in article 6 of the various 1980-1981 agreements which
deal with the administration of fringe benefit payments
made by employers under that section.
Thomas Alexander, the chief negotiator for KCECA,
as here pertinent5 objected to the modifications designat-
ed since they were never negotiated or the subject of
agreement. Alexander detailed his objections to the vari-
ous changes in a letter dated April 10 addressed to Crox-
ton. Croxton replied in a telephone call about April 20
and, according to Alexander, stated that the language
designated "implemented" dealing with NECA and an
arbitration group to which NECA, but not KCECA, is a
party,6 was language mandated by the International
4 Both NECA and KCECA sent the Union opening letters about the
same time , March 31, 1981
6 Alexander is secretary-treasurer of KCECA and a member of
KCECA's board of directors
6 Called CIR
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and implemented or "red-lined." Croxton said he
would write a letter to the International vice president
requesting that changes be made to the 1980-1981 agree-
ment in light of KCECA's lack of affiliation with NECA
and CIR. Alexander informed Croxton that it was
KCECA's position that any changes to the 1980-1981
agreement had to be negotiated at the local level, that
KCECA would not accept unilateral insertions in the
agreement. Croxton then replied he would send out cor-
rected copies. The following day KCECA received cor-
rected copies reflecting the contract as negotiated. The
corrected copies still did not exactly reflect the original
negotiated agreement. However, Alexander, recognizing
the imminence of a new round of negotiations and the
expiration of the current agreement, merely detailed in a
letter in mid-June the discrepancies he noted between the
negotiated agreement and the submitted agreement. Ac-
cording to Alexander during the discussions of
KCECA's objections to the language designated as "im-
plemented" in the 1980-1981 agreement, Croxton noted
that NECA was protesting the same unnegotiated
changes.
According to Croxton, after having negotiated the
1980-1981 agreements with KCECA and NECA, they
were sent to the International office of the IBEW for ap-
proval. The documents were not returned for a long
period of time and, when they eventually arrived, the
above-noted changes were included by the International
without any further negotiations being conducted. The
International told Coxton those changes were implement-
ed. Croxton replied that they might be implemented but
he was going to have problems in getting NECA and
KCECA to agree to these modifications without negotia-
tions.
Under article XVII, section 7 of the IBEW Interna-
tional constitution, the International organization wrote a
letter dated April 10, which was received by Respondent
Local 428 on April 13. This letter referred to the provi-
sion which requires the International to occasionally
make corrections in agreements negotiated between
Local unions and NECA chapters; and noted that the
Kern County NECA chapter as well as other local
NECA chapters had indicated a lack of awareness of
those provisions that the International office does not
permit the local parties to "deviate from or to modify."
The letter further indicated that the International Union
met with the national NECA to discuss the matter and
agreed that both the local unions and each NECA chap-
ter would be furnished a listing of actual agreement lan-
guage which could not be altered or changed by local
negotiators. The letter also indicated that there were two
categories, one containing provisions jointly recommend-
ed by the International and the national NECA, and
those recommended by the International IBEW but not
recommended by the national NECA. There is not
showing that the national NECA has the authority to
bind Local chapters of NECA and in fact Chilko testi-
fied to the contrary, without refutation. There is nothing
in the union constitution article XVII, section 7 which
would empower the International IBEW to insist on al-
terations in negotiated agreements without further nego-
tiation.7 This April 10 letter from the International
IBEW indicated that the management-rights clause was
jointly approved by both the national NECA and the In-
terntional Union. There is no contention that this provi-
sion is unlawful or that it abrogates Local 428's ability to
negotiate with employers or employer organizations such
as NECA and KCECA. There is no indication or con-
tention that NECA and KCECA could be bound by na-
tional NECA's agreements with the International, that
national NECA is in any way signatory to the agree-
ments effective prior or subsequent to June 30, 1981, or
were to become prospective signatories to the contracts.
The items contained in the March 31 proposal desig-
nated as "mandated" included a change to article II, sec-
tions 2.05 and 2.06 of the contract which altered the defi-
nition of an applicant or employee who is also a contrac-
tor. A second item designated as "mandated" included
modifications of the union-security clause changing the
time frame when individuals had to tender fees to
become members from 8 days under the 1980-1981
agreement to 31 days under the proposed 1981-1982
agreement, eliminating the requirement that an individual
can tender his fees for union dues but not become a
member by making it mandatory to become a member
after the 31st day of employment. The provision desig-
nated "mandated" which created the greatest difficulty
for NECA and KCECA was the deletion of that subsec-
tion of section 4 which permitted employers to request
foremen by name, hereinafter called the "foreman call
clause."g Foremen and general foremen are members of
the unit. Vaughn Wiggins, an employee of A-C Electric,
which is a member of KCECA, stated that this proposal
was the subject of "much discussion" and was character-
Art. XVII, sec 7 reads as follows.
L U's [Local unions] are empowered to make their own bylaws
and rules, but these shall in no way conflict with this Constitution
Where any doubt appears, this Constitution shall be supreme All
bylaws, amendments and rules, all agreements, jurisdiction, et cetera,
of any kind or nature, shall be submitted in duplicate form to the I P.
[International president] for approval In the case of agreements,
however, additional copies are required by the 10. [International or-
ganization] Therefore, six (6) signed copies of construction trades
agreements or amendments and five (5) signed copies of all other
agreements or amendments shall be submitted to the I.P No L U
shall put into effect any bylaw, admendent, rule or agreement of any
kind without first securing such approval. All these shall be null and
void without I.P. approval. The I P has the right to correct any
bylaws, amendments, rules or agreements to conform to this Consti-
tution and the policies of the I B.E.W.
Approval of L U collective-bargaining agreements by the I.P
does not make the International a party to such agreements unless
the I.P. specifically states in writing that the International is a party
to any such agreement
7
The foreman call provision of each agreement provides as follows-
(b) When an employer requests to employ a particular Journeyman
applicant . . . as Foreman or as General Foreman, to take charge of
a particular job or project, of appreciable duration or size, requiring
supervisory personnel, he shall notify the Dispatching Office, by
letter of the name of the applicant desired, and the classification
"Foreman" or "General Foreman" and give full particulars of the
job. The Dispatcher, upon receipt of such request, shall refer the ap-
plicant at that classification (Foreman or General Foreman) to the
employer providing applicant's name appears on the availability list,
and all other requirements are satisfied. The employer shall not
reduce this classification for a period of at least one year of continu-
ous employment.
ELECTRICAL WORKERS IBEW LOCAL 428 (KERN COUNTY CHAPTER NECA)
ized as very crippling , having a dramatic impact on their
members.
D. Negotiations Between Respondent Local 428 and
NECA
1. Commencement of negotiations
According to James Chilko, the manager of NECA
and the individual in charge of the chapter , prior to re-
ceipt of the Union 's proposals on March 31, there were
no discussions with any representatives of Respondent
regarding the contractual provisions that require negotia-
tions to start in early April . The day after receiving the
Union 's proposals , Chilko called Croxton to ascertain
when they wanted to commence negotiations. According
to Chilko, Croxton said he did not want to meet until
June. Chilko inquired why they should wait until June,
and Croxton replied, "Well , we're not under any pres-
sure to meet any sooner ." Chilko then inquired about the
section of the agreement that required negotiations to
commence the first week after April 1 and Croxton as-
sertedly replied , "Well, that 's not applicable any more.
That's not in the agreement any more. " Chilko asked
why that provision was not in the agreement and Crox-
ton replied that that clause had been deleted, stating that
the proposals sent as attachments to the opening letter
had the word "implemented" adjacent to the pertinent
article 1 language which deleted that section of the
agreement requiring the commencement of negotiations
within a week after April 1.9 Chilko told Croxton he did
not have the power to implement new provisions absent
negotiations and that the NECA committee wanted to
commence negotiations - consonant with article 1.03. 10
Chilko did recall Croxton telling him that commencing
negotiations as early as April 1 was a waste of time and
not much was accomplished until the expiration of the
agreement . Chilko did not agree with that statement.
9 Art 1 03, subset (b).
10 Croxton admitted that the applicable agreements required negotia-
tions between the local and Kern County NECA to commence not later
than I week after April 1 and that negotiations did not occur until May
27 Croxton also recalled having discussions with Chilko prior to the be-
ginning of negotiations concerning the timing of the commencement of
negotiations. He believes the conversation occurred in Croxton 's office
during a conversation with Chilko who was visiting in the normal course
of business Croxton told Chilko that commencement of negotiations in
April had been fruitless in the past There was no need to start negotiat-
ing that early Chilko did not disagree with him Croxton did not recall
how they finally agreed to commence negotiations or when such negotia-
tions had been reached He did recall Chilko telling him that he wanted
to commence negotiations because rumors were going around that
NECA was dragging its feet There were also discussions with Chilko
concerning daytime versus nightime meetings Croxton ' s version of how
it was decided to commence negotiations , and the basis therefor, is not
credited Croxton admittedly did not have a clear recollection of many of
the events involved in these negotiations Croxton testified that he had
made a concerted attempt to try to forget these events, that they were
unpleasant memories for him Croxton was not candid His testimony was
not inherently consistent and was unsubstantiated Similarly, Croxton's
contention that he never took the position that sec 1 03 (b) had been de-
leted from the agreement and did not tell Chilko that the provision was
no longer in effect similarly is not credited The code , on the March 31
communication , clearly indicated that the material was implemented and
Croxton 's position and statements to Cbiilko , as well as the failure to com-
mence negotiations until late May , clearly indicated that he felt that the
provisions of that section did not have to be followed or adhered to
401
Chilko never made a written demand on Local 428 to
commence negotiations ; however, it is unrefuted that
Chilko made several attempts to commence negotiations
in response to rumors that Chilko heard that NECA was
dragging its feet in beginning negotiations ; that he unsuc-
cessfully tried to insist both telephonically and in person
in April and May that negotiations begin A meeting had
been scheduled on April 20 at 7 p.m. but the Union
failed to appear at the meeting site. Another meeting was
set for May 12, 1981, and again the Union did not honor
that meeting date. As to the April meeting , Croxton
merely advised Chilko he would not be able to be
present . He did not advise him why he would not be
able to be present Croxton has no present recollection
regarding the incident but does not dispute the accuracy
of Chilko's testimony . The second meeting , which was
scheduled during a workday , was called off, according
to Chilko, because Croxton indicated he was having dif-
ficulty getting the Union's negotiating committee to
agree to meet during workdays because some would be
missing work . It was finally agreed to commence negoti-
ations and the first meeting occurred on May 27,
Chilko stated that there was some diffuculty schedul-
ing meetings because the NECA committee was insisting
on having daytime meetings equal in number to evening
meetings . Croxton had indicated that the union negotiat-
ing committee preferred evening meetings. I i Croxton, in
trying to work out a meeting schedule, did agree to meet
on some Saturdays and Sundays during the day, which
Chilko rejected . Croxton further offered to meet on the
fourth Friday, which is a scheduled nonworkday for all
journeymen and supervisors under the terms of the col-
lective-bargaining agreement . Chilko rejected the pro-
posal . The parties finally agreed to commence negotia-
tions on May 27.
2 Negotiations with NECA
Negotiating sessions were held on May 27, June 19
and 24, and July 8. At the first meeting , May 27, 1981, it
was agreed that Ron Croxton would act as chairman and
Jim Chilko would act as secretary, and take notes which
both he and Croxton would initial and date. The notes
from the first negotiating session indicated discussions
about the dates and times of future negotiating sessions;
wages; the annuity plan; whether a portion of the salary
increase should be devoted to the health and welfare
fund ; increasing pension contributions ; and several of the
other union proposals including the deletion of that pro-
vision which permitted employers to call foremen by
name. According to Chilko, whose testimony is credited
based on his candor, clarity of recall, inherent consisten-
cy in testimony , the similarity of the events experienced
during the NECA negotiations and those discussed here-
inafter regarding KCECA, and admissions by Croxton
" Chilko indicated that the insistence on daytime meetings was pursu-
ant to a suggestion by a mediator made prior to the commencement of
these negotiations based on the history of difficulties experienced by the
NECA negotiating team with quarrelsomeness on the part of union nego-
tiators who worked in the Bakersfield area where summer temperatures
commonly exceed 100 degrees Farenheit during the day and then and to
negotiate at night
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he did try to forget the events regarding these nego-
tiations, that he understood that if the did not successful-
ly negotiate a contract as required by the International,
that the International would take over the local, includ-
ing its funds, causing great concern in obtaining an
agreement with the provisions designated "implemented"
or "mandated" by the International. Croxton told
NECA's negotiating committee that the International
Union wanted the foreman call language removed from
the agreement, that it viewed that section of the agree-
ment as discriminatory. There was no explanation how
they felt the provision operated in a discriminatory
manner or against whom it discriminated. In fact, the
record indicates that Croxton merely parroted the Inter-
national's view which he did not understand. For exam-
ple, the other members of the Union Local 428 negotiat-
ing team, John Beauchamp and Tom Fraser, joined
Croxton in indicating to the NECA negotiating commit-
tee12 their belief that the employer should have the abili-
ty to select his foremen by name, but the proposal was
something that the international desired and the union
negotiating committee was not in a position to discuss it
any further. The union negotiating team informed the
NECA negotiating team that the section of the agree-
ment permitting employers to call foremen by name
("foremen call clause") would have to be deleted. It was
during this first negotiating session, according to Crox-
ton, that the Union gave a clear indication of their posi-
tion on those sections designated "implemented" and
Croxton never indicated to Chilko or advised the
NECA negotiating committee during the course of the
negotiations that the felt he had the capability to negoti-
ate any of the items designated as "implemented" or
"mandatory." Chilko further testified, "He [Croxton] did
at one point in time tell me [Chilko] that what he wanted
to do as business manager was get the agreement to the
position where he was in compliance with all the da-
mands of the International. Once he got the agreement
to that point, that he would feel free to negotiate then
. . .. feel free to negotiate other matters But that we
had-in order to accommodate his International, we
must accept these other changes."13
Chilko did not know at the time he was negotiating
the terms of the agreement that the National NECA had
agreed to three items, including the deletion of the "fore-
man call clause." It was only after the negotiations failed
that he learned that the National NECA and the Interna-
tional had so agreed. According to Chilko's uncontro-
12 The negotiating committee for NECA included Jim Chilko, Steve
Lewis, Ernie Maurmo, Lowell Milton, and Charles Reed
13 Chilko, in an affidavit dated July 28, 1981, stated, "I understood
that all red lines referred to the `M' proposals and the blue lines referred
to `S' proposals " His statement in the affidavit further provided. "Prior
to the meeting with Croxton, I was unaware of the International imple-
menting new contract provisions Croxton, at this meeting and on other
occasions, told me that by stating that certain changes had been imple-
mented, he would be satisfying the International and could go on from
there and negotiate as he wished " In explaining this statement, he indi-
cated that the mandated terms were also included in Croxton's represen-
tations that the changes required by the International, if agreed to, would
permit further negotiations "as he [Croxton] wished " This statement,
given shortly after the events considered herein, is further corroboration
of Chilko's testimony
verted testimony, Kern County NECA has an identity
independent from the national NECA. There is no in-
strument that requires Kern County NECA to transmit
collective-bargaining agreements to the national office
for their approval before they enter into a binding agree-
ment. The National NECA office does not have the
power to direct the Kern County chapter to enter into
any particular type of collective-bargaining agreement or
to adopt a particular position. The National organization
has no authority or power to direct negotiations of any
chapter or require agreement to any particular provision.
The National association has nothing to do with Chilko's
hiring or firing, has no control over the chapter's assets,
and the only provision relating to the National is that the
chapter has agreed to supply them four copies of the col-
lective-bargaining agreement subsequent to its negotia-
tion and execution.
A second negotiating session was conducted on June
19 for the purpose of exploring the possibility of some
NECA proposals being exchanged for those items desig-
nated by the Union as "implemented" or "mandatory."
This effort was made even though the NECA committee
was told during the first meeting that the "implemented"
and "mandatory" items were not negotiable; they had to
be accepted. Chilko further testified that he understood
that the local unions were the negotiating instrumental-
ities and submitted understandings to the International
for approval "and what we were faced with here was
that the union was intractable. They would not-they
did not even want to discuss it. There was no flexibility
in their position at all." NECA therefore met with
KCECA contractors and agreed that the best approach
was to offer a reasonable wage package and ask for no
further changes. In that context, NECA prepared a letter
dated June 24 which was hand-delivered to the Union's
committee on that date. The offer did extend to the
Union a wage and fringe benefit package wherein the
wage and fringe benefit package was broken into two in-
crements of $1.25, each with the first being applicable on
July 1, 1981, and the second on January 1, 1982. The
letter further provided:
This offer is extended with the further condition
that no other changes will be made in the present
agreements.
We ask that this offer be presented to the mem-
bership of the union at their next meeting.
Approximately 2 days later, Chilko talked with Crox-
ton and was informed by Croxton that initially the
NECA proposal had been accepted by the membership
but some member whose name could not be recalled had
gotten up on the floor and indicated to the membership
that, in accepting the offer, the International would come
in and take over the local union. At that point, Croxton
said "things changed." The membership rejected the pro-
posal and demanded that the management agree to all
"red line items," those designated mandated and imple-
mented, and also a $3-wage package broken into two
$1.50 increments. Chilko asked Croxton to put in writing
exactly what he related regarding NECA's offer but he
never received any written documentation.
ELECTRICAL WORKERS IBEW LOCAL 428 (KERN COUNTY CHAPTER NECA)
On July 1, 1981, Croxton sent a letter to Kern County
NECA stating that the Union's position as related in the
letter of March 31 prevailed and that Local Union 428,
consonant with article 1, section 1.02(d) of the collec-
tive-bargaining agreement, was serving NECA with a
10-day notice of termination of the applicable agree-
ments. On July 6, 1981, Local 428, by Croxton, ad-
dressed a negotiations update to all IBEW Local Union
428 members referring to the proposals concerned there-
in as I.O. mandated language.l4
On July 7, while Chilko was in Croxton's office, Crox-
ton gave him a copy of the union proposals. The propos-
als were the same originally made in the March 31 letter
but the designations "M" and "S" in the left-hand
column next to some of the proposals had been removed
and the changes in article 1, designated originally as an
"implemented" item, were designated on July 7 as pro-
posal number 2.
On July 8, Kern County NECA, by Chilko, sent a
letter to the attention of Croxton presenting the NECA
negotiating committee's proposals, which they asked to
be presented to the membership, wherein they agreed to
almost all the proposals made by the Union designated as
"1.0. mandated" or "implemented" with the exceptions
of the "foreman call clause" deletion. Also on July 8,
there was a fourth negotiating meeting. The minutes of
the meeting contain the following notation: "Discussion
was held on those items which the Union must obtain in
these negotiations."
The union membership held a meeting on July 9 and
voted to reject the contract proposals offered by NECA
14 The negotiations update reads as follows
TO ALL IBEW LOCAL UNION 428 MEMBERS
Your IBEW Negotiating Committee met with the KCECA Nego-
tiating Committee on June 29 , 1981, and presented them with the
counter proposals which, at the last Union meeting , the Local Union
members voted to offer the employers , as follows
10 mandated language in Article I, II, IV and VI , Inside, Oil-
field and Line Agreements.
$3 00 wage offer , $ 1 50 per hour effective July 1, 1981, plus
$1 50 per hour effective January 1, 1982
After discussion , it appears the Employers are extremely con-
ceined over the deletion of Section 4 13, subsection (b) of Article IV
(Foreman call-out clause) While the Employers did not turn this
offer down , there seemed to be very strong opposition to taking this
section out of the agreement
The International Office is taking this position.
"With reference to this policy the International Office will no
longer permit any variation or alteration to the standard recom-
mended Referral Procedure. Therefore , approval has been with-
held from Section 4 13, subsection (b), and this language must be
omitted "
The KCECA Negotiating Committee took the proposal back to
their general body and on Monday , July 6 , 1981, we will have a
reply.
The IBEW Negotiating Committee will meet Wednesday , July 8,
1981, with the NECA Negotiating Committee and present them wish
the exact offer previously presented to the KCECA Negotiating
Committee We hope to have a counter proposal from NECA for
our consideration at the regular Union meeting
Please plan to be present at the Union meeting on Thursday, July
9, 1981, to vote for accepteance or rejection of the counter proposals
from the NECA and the KCECA Negotiating Committees
We are coming to the end of the ten day coolling-off [sic] period
If our negotiations are not settled by Friday , the 10th , we will
expect to be out on strike on Monday, July 13, 1981 , or if you are
scheduled to work Saturday , July 11, or Sunday , July 12, you will
be on strike at that time
403
on July 8. On July 10, 1981, Croxton wrote Chilko, in-
forming him of the results of the vote. The letter also
stated:
We are re-submitting our previous counter pro-
posals, specifically:
1. Acceptance , WITHOUT EXCEPTION, of
all IBEW International Office mandated lan-
guage.
2. An increase in Journeyman wages of $3.00
per hour (in two $1 . 50 increments).
If you feel a negotiating meeting would be benefi-
cial, contact this office and we will cooperate to the
utmost in setting up a mutual agreeable date and
stime.
3. Poststrike negotiations with NECA
On July 16, 1981, after meeting with KCECA and
agreeing to pay the money requested by the Union and
to accept all the other union proposals with the excep-
tion of the "foreman call language, " in an attempt to iso-
late the issue over which the strike was occurring,
Chilko, on July 16, 1981, prepared a letter which was
hand-delivered to Croxton. The letter stated:
With the exception of your demand to remove from
the agreement our ability to call for a Foreman or
General Foreman by name, we accept the demands
in your letter of July 10th to conclude negotiations.
KCECA sent a similarly worded letter to Croxton
signed by Bartenstein, president, and Thomas J. Alexan-
der, secretary.
On July 17, 1981, Croxton informed both NECA and
KCECA that the proposals dated July 16, whereby all
union proposals with the exception of the "foreman call
clause" were accepted, had been rejected by the local
union and enclosed the local's current proposals. The
proposals attached to the July 17 letter are exactly the
same as those contained in the March 31 submission by
the Union with the exception that all the proposals origi-
nally designated as "implemented" or "`mandated" were
not similarly designed, but all "mandated" or "imple-
mented" proposals were still demanded by the Union.
The Union had not withdrawn a single "mandated" or
"implemented" proposal.
On July 22, in reply to Croxton's July 17 letter,
Chilko, on behalf of Kern County NECA wrote:
With the exception of your demand to remove from
the agreement our ability to call for a Foreman or
General Foreman by name, we accept the demands
in your letter of July 17 to conclude negotiations.
It is our request that this proposal be presented
and read at the Thursday, July 23rd general mem-
is It is noted that a similar letter was forwarded to W F Bartenstein,
president of KCECA The Union struck on July 13. Subsequently, all
members of NECA and other signatories to the NECA agieement indi-
vidually signed interim agreements with the Union There was no formal
notification of the termination of the strike.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bership meeting of the local. So that the local
IBEW electricians, those directly affected by the
negotiations, strike and agreement, have an opportu-
nity to review and act upon it.
KCECA wrote a similar letter on July 22 to Croxton
signed by Bartenstein , president, and Alexander, secre-
tary. On July 28, Croxton, by letter, advised Kern
County NECA and KCECA that the membership of
Union Local 428 at the meeting of July 23 saw no reason
to change the negotiation proposals and, hence, the July
2 proposals of NECA and KCECA were rejected. The
missive also advised the employer groups that the local
union's proposals remained the same as those hand-deliv-
ered on July 17, 1981, which contained the same "man-
dated" and "implemented" items demanded on March
31.
On July 30, Chilko wrote a letter to Croxton as fol-
lows:
We have received your letter of July 28, 1981,
which we believe rejects our offer of July 22, 1981
and continues your demands of July 17th, ad nau-
seum.
We are also taking this opportunity to reject you
offer of July 22nd to end the strike if we would
submit the issue of deletion of the foreman call
clause to the Council on Industrial Relations for our
industry. We submit this rejection on the grounds
that it is a non-mandatory subject of bargaining.16
No other union proposal had been presented to NECA
after July 28 relative to the 1981-1982 agreement. Nego-
tiations recommended in November and resulted in an
executed collective-bargaining agreement between
NECA and Local 428 which ran until June 30, 1982.
The request of the local to have the date negotiations
commenced altered; and proposal 3, dealing with the
definition of contractor and employee for the purposes of
the agreement , did not get into the agreement negotiated
in November. The fate of that portion of the proposal
which would have required the parties to submit an
agreement to the National office of NECA is undis-
closed. Proposal 5 dealing with section 2.37, stating
when union stewards can be discharged and under what
terms, was not included in the agreement even though it
was denominated as "mandated." Proposal 6 relating to
section 301, which deals with the worker having the
fourth Friday as a day off and the rates of pay for work-
ing that Friday, was not included in the new agreement.
It was not denominated as "mandatory." 17
Following the execution of the November agreement
in January 1982, which expired in June 1982, there had
been negotiations for another collective- bargaining agree-
ment. The "foreman call" provisions were deleted from
i B It should be noted that the Council of Industrial Relations [CIR] has
members from both the IBEW and NECA , but there is no representation
from KCECA. KCECA was not willing to permit the CIR to consider
the matter
17 Further, proposals 7, 8, 9, 10, and 11, which were not denominated
as "mandated ," also did not get into the agreement negotiated in Novem-
ber. Proposal 14, including both "mandated" and "implemented" provi-
sions, was included in the new agreement.
the agreements reached with the local by NECA in Jan-
uary 1982 but with the reservation that if the pending
litigation, which is in issue in this proceeding , resulted in
NECA and KCECA prevailing , they would have the
clause restored. According to Chilko, this is reflected in
aletter of understanding that in return for the deletion of
the foreman call clause in the contract negotiated,
NECA and KCECA would be permitted to pursue these
proceedings.18
While Croxton testified that all provisions in the pro-
posal initially submitted March 31 to KCECA and
NECA were negotiable and suggested that perhaps the
Union had taken a hard line, he also admitted that Mark
Cook, an International representative who visited Local
428 from time to time to assist in negotiating with em-
ployers or to give the local advice or directives, did tell
Local 428 that the officers of the Local Union would
possibly be removed if they did not have in the contract
the provisions marked "m" and "implemented ." 19 Crox-
ton, recognizing that the "foreman call" provision was a
stumbling block, offered to enter into an oral understand-
ing with Chilko that he would continue to honor em-
ployers' requests for foremen names. Chilko refused. In
his testimony, Chilko explained that the provision was
very important to employers and that, if Croxton was no
longer an officer, they would have no enforceable agree-
ment to preserve their right to call foreman by name.
Croxton, in his testimony, suggested that foreman could
be treated like other electricians who have special skills.
Since the electricians, when they sign the out-of-work
lists, specify their own skills, and foremen and general
foreman receive additional pay, possibly many journey-
men would list foreman as a special skill. Hence, it did
not appear likely that employers would be able to select
foremen of their choice using the special skills provisions
of the contract. Croxton did not have a viable alternative
means to preserve the employers' prior negotiated rights
to choose foremen by calling for them by name.
is As part of the agreement , the letter of understanding provides:
Therefore, nothing in those agreements or this Understanding shall
prevent, nor be construed to prevent , the Chapter from pursuing any
and all legal remedies to retain the Foreman Call Clause, including
but not limited to pursuing in entirety the charges now pending in
Case No. CB-4296. ... The Union agrees that had the Chapter not
entered into this Understanding the Union would have struck the
Employers commencing on or about Monday, January 4, 1982, to
secure the deletion of the Foreman Call Clause and the parties
hereto entered into the Understanding to prevent the occurrence of
any such strike.
is Croxton testified concerning this:
Q. Well, what did he tell you would happen to you personally if
the "M" provisions and the "implemented" provisions were not ob-
tained?
A. Indirectly , he had indicated that the officers of the local union
would possibly be removed.
Q. How did he indirectly indicate that?
A. At a meeting we had with the officers that I had called so that
he could communicate with them over this particular issue
Q. And he said in some sort of an indirect fashion, "You guys are
going to be out of your jobs if you don't get these provisions in this
contract," right?
A Using the term "indirect," yes.
ELECTRICAL WORKERS IBEW LOCAL 428 (KERN COUNTY,CHAPTER NECA)
E. Negotiations With KCECA
On or about March 31, pursuant to the terms of the
then applicable agreement requiring 90 days' notice of
intent to reopen the collect ive-bargaining agreement for
negotiations, Local 428 notified KCECA of its desire to
change or terminate the parties' 1980-1981 collective-
bargaining agreements. Attached to the March 31 letter,
Local 428 submitted the same written contract proposals
to KCECA that were submitted to NECA, including
provisions marked "implemented," "M" and "S" with
the same explanation of the purport of the designations
as discussed above. The March 31 letter similarly noti-
fied KCECA that, in the event successive collective-bar-
gaining agreements were not consummated by the June
30 anniversary date of the existent agreements, Local 428
intended to serve KCECA with a 10-day written notice
of termination of all the agreements. Croxton testified
that as of March 31 he understood those provisions de-
nominated "implemented" had actually been changes
made by the International without submission to NECA
or KCECA. Croxton subsequently testified that the items
marked "implemented" were subject to negotiation.
Croxton's affidavit, taken during the investigation of the
charges filed in this proceeding, further stated that the
term "implemented" indicated that those sections so ref-
erenced were not open to negotiations with KCECA.
Croxton further stated that the agreement had been "red-
lined" by the International. Croxton defined the term
"red-lined" as follows: "That the local union and the as-
sociation or contract organizations negotiate items into
the agreements, that once submitted to the International
i'or approval and they disagree or have reasons to make
changes necessary, they will red-line items and paste
over alternate wording or working changes." This is
done after the parties successfully conclude negotiations.
Prior to the commencement of negotiations, Thomas J.
Alexander, secretary-treasurer of KCECA, a member of
the board of directors of KCECA and general manager,
vice president and treasurer of A-C Electric Company,
the situs of KCECA, received modified copies of the
1980-1981 collective-bargaining agreements containing
unnegotiated modifications thereto which coincided to
those proposals made by the Union on or about March
31 that had been designated in the proposals as "imple-
mented." Although Alexander had informed Croxton in
April that KCECA discovered the variances in the
copies submitted to them of the 1980-1981 collective-bar-
gaining agreements and demanded corrected copies be
provided, he was unclear whether the modifications
made in the 1980-1981 agreement were considered im-
plemented by the Union when the negotiations com-
menced for the 1981-1982 agreement.
In response to KCECA's demand for return to the ne-
gotiated 1980-1981 agreement, Croxton, about April 20,
advised Alexander that certain of the modifications to
the 1980-1981 agreements had been implemented or
"red-lined" by the International organization which had
expressly mandated such variations. As previously indi-
cated, Charles Pillard, the IBBEW International president,
told Croxton that the Local was to obtain those items
designated "implemented" and "mandated" in the pro-
posal submitted on March 31. Mark Cook, an Interna-
405
tional representative who comes to Croxton's office from
time to time to assist in negotiations with employers or
give advice or directions, "also told [Croxton] Local 428
that they must obtain in the 1981-1982 agreement those
proposals designated `M' and `implemented."' According
to Croxton, Cook stated, "You guys are going to be out
of your jobs if you don't get these provisions in the con-
tract." Cook and Pillard did not appear and testify.
Croxton admittedly perceived the statements by Cook
and Pillard as "real threats." The three agreements with
KCECA, as is the case with NECA, are devoid of any
provisions making the International Union a party there-
to; the term "union" is defined therein as Local 428.
NECA and KCECA were aware that, after the contracts
had been negotiated, they would be forwarded to the
International for its approval but the International could,
not unilaterally modify the terms of the negotiated agree-
ments, just disapprove of the terms and seek further ne-
gotiations by the Local and the employers or their repre-
sentatives.
Also on March 31, KCECA notified Local 428 that it
wished to change or amend the collective-bargaining
agreements . Prior to this notification, KCECA had a
membership meeting on March 25 in which to develop
the proposals contained in the letter of March 31. The
members of KCECA expressed a need for more control,
more authority, and more leeway regarding the work as-
signed foremen and they wished to accomplish this goal
by recognizing the foremen as the company's representa-
tives on the job. The KCECA members were seeking the
ability to name individuals as foremen regardless of crew
size; when the foremen stopped working with tools,
when he could devote all his time to administrative
duties, handle materials, the number of workmen he
would direct and assign duties generally in a manner
consonant with that of a management representative. Ac-
cording to Alexander, the KCECA members were al-
ready treating foreman as management representatives
but there were restrictions under the existing contract
that limited when a foremen could work with his tools
or direct other workmen.
About April 21 KCECA received what were designed
as corrected copies of the 1980-1981 collective-bargain-
ing agreements from Local 428 which substantially con-
formed to the agreements negotiated and executed by the
Local and KCECA. The corrected copies did not con-
tain the fully executed signature pages., the International
organization's approval stamp, and Alexander' s initials at
the right-hand corner of each page of the agreements.
In preparation for the commencement of negotiations,
the KCECA membership met about June 16 and re-
viewed the Union's proposals contained in the March 31
letter. This preparatory meeting focused on the items la-
beled "mandated," particulary the deletion of the "fore-
man call" provision. According to Alexander, whose tes-
timony is undisputed, it was the consensus of the
KCECA membership that they wanted the clause re-
tained, even expanded.
The first negotiating session between KCECA and the
Union was held on June 17, 1981, at 6:45 p.m. Ron Crox-
ton was appointed chairman and KCECA Representive
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alexander was designated to keep the minutes of the
meetings. They devised three separate committees to dis-
cuss items peculiar to the inside, outside (line), and oil
field agreements . The parties also agreed to withdraw all
prior proposals other than those dealing with wage rates
and to confine negotiations initially to acceptable adjust-
ments in wages . KCECA proposed increases in wage
rates of $1.25 per hour effective July 1 and an additional
wage increase of $1.25 per hour effective January 1,
1982. The Union agreed to present the KCECA wage
proposal to the membership on June 25.
On June 29 , a second negotiating session was held.
Croxton announced that KCECA's wage proposal was
rejected. Vaughn Williams, an employee of A-C Electric
and a member of KCECA bargaining committee, stated
that he had heard from some workmen that the union
membership initially accepted the employer 's proposal
but, subsequently, someone had, under a "good-for-the-
union" resolution, raised the problems which might be
created with the International organization . Hence, a
second vote was taken in which the KCECA proposal
was rejected. Croxton indicated that the report to Wig-
gins was accurate but that the union negotiating commit-
tee had not done anything to bring about the second
vote; it was an action of the membership. According to
Croxton, all the members of the union negotiating com-
mittee had received copies of the Union's proposal with
the designations "implemented" and "M." Additionally,
the April 10 letter from the International to the local
unions was distributed to the union negotiating commit-
tee.20
20 The International's April 10 letter provided in part
Recently, it has come to our attention that both the Local Unions
and the NECA chapters have indicated that they ware not aware of
the agreement provisions that the International Office does not
permit the local parties to deviate from or to modify. .
The agreement provisions come in two (2) categories Category
(1) contains provisions jointly recommended or adopted over the
years by the two national organizations Category (2) contains provi-
sions recommended by the IBEW but not recommended by national
NECA In addition , two IBEW policy positions concerning over-
time and the variations of the workday starting times are included
for your guidance and information
The above jointly adopted language provisions are considered
standard agreement language by this office and , therefore , no devi-
ation or change will be permitted. Local agreements that do not cur-
rently contain the jointly recommended language should be amended
no later than the next negotiations so that the local agreements are
brought into conformity with this language If the agreements have
not been accomplished by the opening date of the next negotiations,
the jointly recommended provisions are to be included in your open-
ing letter requesting changes in the agreement
All NECA Chapters are being furnished with similar information
by the National Office of NECA [It is noted that there was no
showing or contention that the national office of NECA so informed
Kern County NECA or had any communications with KCECA ]
Therefore, all IBEW Construction Local Unions NECA Chapters
will have Copies of the agreement provisions which are not to be al-
tered by negotiators (category 1) Any variations from the jointly-
recommended provisions will not receive approval However, the
local parties will be given ample opportunity to renegotiate these
items. Effective immediately, the International Office Agreement
Approval Department will use the attached procedure in processing
agreements Signed , Charles H Pillard , International President
The items in the Union's proposal to NECA and KCECA designated as
"implemented" or "mandated" are those designated as a category one ap-
parently The letter speaks in terms different from those contained in the
Respondent 's contract proposals
Alexander corroborated Croxton's testimony. Accord-
ing to Alexander, Croxton represented that neither he
nor his negotiating committee attempted to influence the
membership on the "good-of-the-union" motion to reject
KCECA's proposal. The membership was informed that
the "good-of-the-union" proposal had to go through; if
the "mandated " and "implemented " language was not
adopted, Croxton would be replaced. Croxton further in-
dicated that the International takeover was the same as
replacing the officers. There was some confusion in Al-
exander's understanding as to whether there was an indi-
cation that the International organization would take
over the local or whether they would replace the offi-
cers or both.
Croxton then proposed as the Union's counteroffer
that wages be increased $1.50 per hour effective July 1,
1981, and $1.50 per hour effective January 1, 1982, and
that all "IO [International Organization ] language" from
their original March 31, 1981 proposal be implemented in
the appropriate agreement. KCECA then requested that
the term "IO language" be clarified. The parties then
went over the three agreements to discern which was
the "IO mandated language."2 a KCECA also withdrew
serveral proposals from its March 31 submission.
KCECA requested they be allowed to study the counter-
proposal, to review the counterproposal with their mem-
bership, and to consider modifying some of KCECA's
orginal proposals and place some of KCECA's other
proposals back on the table for negotiation.
KCECA, with one exception, did not agree to any of
the "mandated" language. That exception was the pro-
posal which dealt with specificity with NECA and re-
ferred specifically to NECA having to refer agreements
to the national office of NECA. After all the "10 man-
dated language" was identified, Alexander asked Crox-
ton, "Will we be able to negotiate these items?" Accord-
ing to Alexander, whose testimony is credited based on
his demonstrated superior recollection , candor, and in-
herent consistency, "Croxton indicated that they must be
accepted without deviation."22
According to Alexander, both Croxton and another
member of the Union's negotiating team, Phil Harring-
ton,23 indicated that they did not like the International
organization mandating particular language any better
than KCECA, "but that's the way it is." Alexander
could not recall whether it was Croxton, Harrington, or
another member of the union negotiating team, Tom
Fraser, who did most of the talking but during the nego-
21 The proposals designated as "mandated" include the amendment of
the effective date of the agreement , the change in the definition of em-
ployee, the modification of the union -security clause which relates to the
the referral procedures, particularly the right of the employer to request
a particular journeyman as foreman or general foreman , the changing of
the name of the National Employees Benefit Board to a secretary -treasur-
er as the personage authorized to receive certain fringe benefits, and
modification or deletion of the provisions dealing with the Kern County
Electric Co vacation fund
22 Croxton denied using the phrase "without deviation", however, as
previously indicated, Croxton 's denial is not credited It is also noted that
the above-quoted April 10 letter to the Union from the International used
the phrase "no deviation "
23 Harrington did not appear and testify This testimony of Alexander
was not disputed.
ELECTRICAL WORKERS IBEW LOCAL 428 (KERN COUNTY CHAPTER NECA) 407
tinting session it was repeated several times that if the
union negotiating committee did not get the "ID mandat-
ed" language, the International would take over the
Union, The KCECA negotiating team inquired what the
purport of a takeover was, and the union committee ex-
plained that the International comes in, replaces the offi-
cers, and takes over the assets of the local. Croxton then
passed a letter around that the KCECA negotiating com-
mittee was just able to skim, which referred to mandated
language. Croxton and the others said they could show
the KCECA committee other letters which utilized
stronger language indicating that the 10 was requiring
that the mandated language be placed into the agree-
ment. At one point in the negotiations-Alexander is not
clear on the date-Croxton did advise KCECA that one
of the reasons he insisted upon the inclusiono of the
items denoninated as "ILO mandated" was because his
membership had voted and instructed him to make sure
that the provisions so denominated were included in the
agreement.
Alexander's testimony was corroborated by Wiggins
who testified that the Union's position regarding IO lan-
guage remained the same as in the first negotiating ses-
sion, i.e., that there was not going to be any deviation
from that language. The mandated provisons had to be
inserted, and if not, the International would remove the
local's officers and take over the local.
According to Wiggins, the KCECA negotiating team
received a very clear message from the Union that the
items denominated "IO mandated" were not negotiable.
Frequently the KCECA negotiating team members asked
the union negotiating team if the IO language was nego-
tiable, and they were continually told by the members of
the Union negotiating team, no, it was not. At the June
29 meeting, only the language denominated "IO man-
date" was identified. The negotiators did not receive an
explanation of why the International sought to get the
language into the agreement or to have certain language
deleted.
On or about July 1, Local 428 served KCECA with
the 10-day written notice of termination of the agree-
ments similar to the notice sent to NECA. Croxton, the
drafter of the letter, understood it to state that if NECA
and KCECA did not agree to the Union's terms there
would be a strike.
The third negotiating session between KCECA and
Local 428 was held on July 6.24 Several days prior to
the July 6 negotiating session, KCECA had a meeting
wherein the members directed the negotiating committee
to resist deletion of the "foreman call clause" and to as-
certain the Union's reasons for the other proposal. For
example, according to Alexander, no one understood the
basis For the change in the union-security provision.
During the July 6 meeting, KCECA did ask the Union
to explain the logic behind the "IO mandated" provi-
sions. Alexander, whose testimony, as previously indicat-
ed, is credited, stated that a comment was made during
24 As previously noted, also about July 6, Local 428 distributed to its
members a "Negotiations Update" quoted above indicating an intent to
present the exact offer previously presented to KCECA and NECA and
of the intent to strike in the event that negotiations were not fruitful by
Friday, July 10.
the meeting on each one of the "mandated" or "imple-
mented" items, and in some cases "the explanation was
merely `this mandated' or `this has been red-lined' or `this
has been implemented."' An example given by Alexander
is that the KCECA committee tried to point out that the
proposal to modify the day negotiations commenced was
not actually implemented, that the Union only attempted
to implement it previously but that KCECA objected to
that attempt and did not consider it implemented. At the
July 6, 1981 negotiating session, Croxton used the terms
"mandated," "red-lined" and "standardized" about half a
dozen times to explain the various "mandated" and "im-
plemented" proposals of the International Union. It was
determined to continue negotiations the following
evening. A negotiating session was held on July 7.
At the July 7 negotiating session, KCECA offered to
accept all of Local 428's original contract proposals, as
modified, on June 29 25 With the exception of the pro-
posal requiring deletion of the "foreman call clause" and
a proposal to increase wages by $2.50 per hour rather
than the $3-per-hour increase sought by the Union.
There was an in-depth discussion regarding KCECA's
concern about the deletion of the "foreman call clause."
As noted above, the Union proposed submitting the issue
of the deletion of the "foreman call clause" to CIR, an
arbitration instrumentality that was a creation of NECA
and the International. Alexander could not recall when
this proposal was made but it was found unacceptable
since KCECA had no representation on the committee
that would arbitrate the issue. The July 7 negotiating ses-
sion terminated without resolution of the disputes over
the hourly wage and the IO mandated language dealing
with the "foreman call clause."
Croxton, on July 10, addressed a letter to Bartenstein,
president of KCECA, informing him that at a meeting of
the membership held July 9, the Union voted to reject
the contract proposals offered by the Association at the
July 7 session. The letter further provided:
We are re-submitting our previous counterpro-
posals, specifically:
1. Acceptance, Without Exception, of all IBEW
International Office mandated language.
2. An increase in Journeyman wages of $3 per
hour (in two $1.50 increments).
On July 13, a strike commenced against all employer-
members of KCECA. The strike lasted until about the
end of July. The KCECA members individually signed
interim agreements after July 13. However, neither
KCECA nor NECA received formal notification from
the Union that the strike had been terminated.
1. Poststrike negotiations with KCECA.
As noted above, KCECA, like NECA, wrote the
Union on July 16, stating that they would accept all the
proposals of the International office with the exception
25 As indicated above, the Union did agree to delete from its March 31
proposals certain items that could not pertain to KCECA or were not
designated as "implemented ," "M," amd "S "
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the deletion from the agreement of the employer's
ability to call for a foreman or general foreman by name.
As was the case involving NECA, Croxton, on July
17, 1981, informed KCECA that the hand-delivered
counterproposals dated July 16 had been rejected by the
local union and they submitted their original proposals
for KCECA's approval. KCECA, on July 22, renewed
its written counteroffer of July 16 and requested it be
submitted to the membership of the Union. Croxton, on
July 28, 1981, stated that KCECA's proposal was dis-
cussed at a regular meeting of July 23 but was not ac-
cepted. A letter further advised KCECA that the local's
proposals remained the same as those delivered July 17,
1981, which are essentially the same IO "mandated" and
"implemented" provisions delivered March 31,26 with
the exceptions previously noted.
2. Interim agreements
The interim agreements entered into by the NECA
and KCECA members with Local 428 had a term which
ended December 31. The signatories to the interim
agreements and the Local had an understanding that the
strike would recommence on or after December 31 in
the event new agreements had not been reached. There
was a continuation of negotiations between KCECA an
NECA and the Local Union to reach a new agree-
ment.27 As indicated above, NECA and the Union, on
January 4, 1982, entered into a letter of understanding
whereby NECA reserved the right to challenge the dele-
tion of the "foreman call clause" in a new agreement and
indicated that its entry into the new agreement with Re-
spondent Local 428 was to avoid a strike. KCECA did
not sign a similar agreement and consented , at a KCECA
meeting held on December 14, to acquiesce to the dele-
tion of the "foreman call clause" proposed by the Union
if it was necessary to avert a strike. All through Decem-
ber, the Local continued to submit the original contract
proposals of June 29 which were previously designated
"mandated" or "implemented." The Union did make
some concessions to the employees including proposals
regarding showup time and a 10-mile free zone. There-
fore, KCECA decided not to insist on the maintenance
of the "foreman call clause" and understood that if
KCECA prevailed in the instant proceeding that their
"foreman call clause" would become operative. The
record is not clear whether the Union continued to
honor requests for foreman or general foreman called by
name.
On March 1982, KCECA proposed that the current
agreements that were in effect from December be ex-
26 Croxton stated that KCECA's offers to accept all proposals from
the Union except the "foreman call clause" was not acceptable to the
Union because KCECA would not accept all the 10 mandated language.
The basis for this position was unexplained , particularly in light of Crox-
ton's failure to dispute the representations that he was willing to continue
honoring the practice as long as it was deleted from the contract. This
fact adds credence to the testimony of both Chilko and Alexander and
further disputes Croxton's contention that he was willing to negotiate all
items designated as "IO mandated or implemented "
27 KCECA met with the Union on December 1 and 9. KCECA indi-
cated they would agree to the Union's proposals and permit the resolu-
tion of the foreman call-by-name issue in the instant proceeding to re-
solve the matter
tended through June 30, 1983, without modification. In
March 1982 , the Union submitted written notification to
KCECA of its desire to change or terminate the Decem-
ber 24, 1981 collective-bargaining agreements. In the
event successor agreements were not consummated on
the June 30, 1982 anniversary date, the Union intended
to serve KCECA with a 10-day written notice terminat-
ing the current agreements . The parties met on April 27
to explore KCECA's proposal to extend the terms of the
December 24 agreement and did eventually agree to
such an extention until June 30, 1982 , without modifica-
tion.
3. Foremen and general foremen as supervisors
Section 2(3) of the Act excludes from the definition of
the term "employee" "any individual employed as a su-
pervisor." Under Section 14(a) of the Act, an employer
cannot be required to bargain about the working condi-
tions of supervisors. Section 2(11) of the Act defines "su-
pervisors" as follows:
The term "supervisor" means any individual
having authority , in the interest of the employer, to
hire, transfer, suspend, lay off, recall , promote, dis-
charge, assign , reward , or discipline other employ-
ees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such
action, if in connection with the foregoing the exer-
cise of such authority is not of a merely routine or
clerical nature, but requires the use of independent
judgment.
It is well recognized that the listing of supervisory indi-
cia is to be considered in the disjunctive, but that each
indicia requires that a supervisor exercise independent
judgment in performing the enumerated functions. See
NLRB v. City Yellow Cab Co., 344 F.2d 575, 580 (6th
Cir. 1965); NLRB v. Wilson-Crissman Cadillac, 659 F.2d
728, 729 (6th Cir. 1981).
In addition to the testimony of Wiggins and Alexander
for KCECA and Chilko for NECA, two other manage-
ment representatives who are members of NECA testi-
fied regarding the duties of foremen working for their
companies. These company representatives are Bud
Perry, president of United Electric Company, and Steve
Lewis, president of Cal -State Electric. Almost all these
employers ' business are subcontracts acquired by bid.
These company representatives testified without contra-
diction that their foremen are the companies ' representa-
tives at the jobsite and are the onsite managers . The em-
ployers do have job superintendents who visit the job-
sites, hopefully once a day, but only long enough to be
sure that work is progressing in a manner consonant with
the contract . On the day when the job superintendent
does not appear or during the times when the job super-
intendent is not present , the foreman is the sole manage-
ment representative on the jobsite. The superintendent
must by contract speak to the employees through the
foreman; he cannot speak to the employees directly. The
foreman is the usual conduit for dissemination of infor-
mation and instructions . These companies' customers rec-
ognize the importance of the foreman and at times re-
ELECTRICAL WORKERS IBEW LOCAL 428 (KERN COUNTY CHAPTER NECA)
quest the company to supply a particular foreman. As
Bud Perry indicated, in many contracts used by the gen-
eral contractors United Electric deals with, there is a re-
quirement to have supervision on the job at all times and
that supervision must be acceptable to the owner.211 A
clause in the contract between United Electric and Supe-
rior Forming provides:
The CONTRACTOR will keep on the Work at all
times during its progress a resident superintendent
satisfactory to the CM. The Superintendent shall
not be replaced without the consent of the CM
except under extraordinary circumstances. The su-
perintendent will be the CONTRACTOR'S repre-
sentative at the site and shall have authority to act
on behalf of the CONTRACTOR. All communica-
tions given to the superintendent shall be as binding
as if given to the CONTRACTOR.
In these cases, the superintendent was the foreman.
The foremen, prior to assignment to a job if they com-
mence their employment prior to the initiation of par-
ticular subcontract, meet with company representatives
and are informed as to the basis for the company's bid
and its expectations of how the project is to be complet-
ed, including such factors as the height of the building or
whether and how job specifications may impact on the
performance of the job. At times, foremen are brought
into the estimating of a job for bid. The profitable com-
pletion of a job, according to all management representa-
tives who testified, rests in the ability of the foremen.
The foreman or general foreman, as the case may be,
is responsible for the first step in the grievance adjust-
ment procedures provided for in the applicable contracts
here under consideration. This is recognized in the
IBEW manual for beginning steward which provides:
When you are working on a job, the foreman is
your boss. But when the two of you meet on offi-
cial union business, you both share equal rights and
responsibilities. As a union representative, you have
every right to express yourself on a problem under
discussion. As a company representative, he has the
same right. Both of you are key people in Step
Number One.. . .
The foreman's authority often varies from com-
pany to company and sometimes even from depart-
ment to department within the same company.
Early in your stewardship you should determine if
the foreman can: (1) Reinstate a discharged employ-
28 One contract placed into evidence was between United Electric and
Tosco which provided.
Contractor shall keep on the work, during its progress, a competent
superintendent and any necessary assistants , who shall be in charge
of the work, all satisfactory to the Company Representative Conti-
nuity of supervision shall be maintained as necessary for efficient and
diligent prosecution of the woik Such superintendent or assistant
shall have the full authority to supply immediately men, material,
equipment, and labor, and shall have full authority to proceed with
the prosecution of the work and every part thereof in conformity
with this contract. Conractor shall, upon request, furnish Company
the names and resumes of the experience of supervisory personnel
prior to assignment on the work.
409
ee, (2) Make a rate adjustment, (3) Change work as-
signments between employees, (4) Promote or
demote an employee . The more authority he has,
the more meaningful Step One becomes.
Even if his authority is very limited, do not try
to go over his head to Step Two, because you
should respect the position of the foreman. Further-
more, if you did succeed in going over his head,
management may try to have the grievance thrown
out because the steps in the contract were not fol-
lowed.
Foremen who are called by name are referred as su-
pervisors. See Mobil Oil Co., 147 NLRB 337 (1964). The
applicable contracts which also state that when a fore-
man is required on a job, he or she "then shall act in a
supervisory capacity only" if there are five or more jour-
neymen. Therefore the way in which a foreman works
and his duties are somewhat determined by the contract,
and the foreman cannot work with his tools after five
journeymen are employed on the job. General foremen
are required when there is more than one crew and fore-
man. Contracts also permit the general foremen to act as
a foreman over one of the crews when there are only
two crews. When a third crew is added, then each crew
shall have its own foreman and a general foreman who
acts as general foreman only. The general foreman then
becomes like other supervisors dealing with the crews
and can communicate only through the crew's foreman
with the other employees. The pay of the foreman and
the general foreman is prescribed in the contracts.
According to the company representatives who testi-
fled without dispute, the foreman can effectively recom-
mend increases in crew sizes. In fact, at Cal-State Elec-
tric Company, according to Steve Lewis, where there is
a phone at the jobsite, the foreman can directly tele-
phone the union hiring hall and request that job appli-
cants be sent to the jobsite.
All the company representatives credibly testified that
it was the foreman's duty to discipline employees at the
jobsite for such infractions as lack of diligence, unduly
lengthy breaks, late arrival on the job, and, if the em-
ployee fails to respond to such verbal 'warnings, the au-
thority to return the employee to the main office of the
company with at least an effective recommendation of
termination in some instances and in other instances the
ability to discharge. All the companies testified that the
foremen's recommendations for termination have always
been followed and several of the company representa-
tives stated that the foremen's authority includes the
power to discharge an individual; however, since the fa-
cilities at the jobsite do not pemit the writing of a termi-
nation check and the filling out of termination papers,
that employee is sent to the main office where the me-
chanics of discharge are completed. Unlike the case cited
by Respondent,29 the evidence of record does not war-
rant a finding that whatever supervisory authority is ex-
ercised by employees hired a foremen or general fore-
men is regular and sporadic. The company representa-
29 Central New Mexico Chapter NECA, 152 NLRB 1604 (1965).
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tives testifying here asserted, without contradiction, that
they try to retain their foremen and general foremen
beyond completion of a particular job.
Respondent also cites Laborers Local 341 (Bannister-
Joyce-Leonard), 223 NLRB 917 (1976), to support its con-
tention that foremen and general foremen are not super-
visors. This case is found not to support Respondent's
contention. In Laborers Local 341, supra, the foremen,
unlike in the instant proceeding, were found not to have
the authority to hire, fire, lay off, or discipline employees
or to effectively recommend such action; they lacked in-
volvement in grievance adjustment and did not responsi-
bly direct other employees. Because of these factual dis-
tinctions, the Laborers Local 341 case is found to be inap-
plicable to the facts of this case.
Accordingly, it is found that the evidence in this pro-
ceeding shows that the foremen employed by NECA
and KCECA employers possess the authority to exercise
true independent judgment in the Employer's interest
and are vested with genuine management prerogatives, in
most of the areas listed in the statute. Thus, it is conclud-
ed that the foremen employed by NECA and KCECA
members are supervisors as defined in Section 2(11) of
the Act.
All the company representatives also testified credibly
and without refutation that the foreman has the ability to
determine when the crew size should be decreased and
to select those individuals sent back to the main office
for either reassignment or referral back to the hiring hall.
It is also undisputed that the foreman lays out the work
for the employees and responsibly assigns such work.
Further, the foreman determines how to meet the re-
quirements of the bid including the ordering of materials
off the materials list. There are materials that the fore-
man cannot order at several of the companies whose rep-
resentatives testified at this trial. The ordinary materials
are such items as conduit, wire, and fittings.
IV. ANALYSIS AND CONCLUSIONS
The Act requires that bargaining should be carried on
in good faith by both sides.30 Also, Section 8(b)(1)(B) of
the Act makes it an unfair labor practice for a union "to
restrain or coerce . . . an employer in the selection of
his representative for the purposes of collective bargain-
ing or the adjustment of grievances." In general, the
General Counsel and the Charging Parties allege that
Respondent contravened these sections of the Act.
30 Sec 8(b)(3), 29 U S C 158(b)(3), makes it an unfair labor practice
for a labor organization or its agents "to refuse to bargain collectively
with an employer, provided it is the representative of his employees sub-
ject to the provisions of [section 9(a)(b)]
Sec 8(d), in pertinent part, states
For the purposes of this section, to bargain collectively is the per-
formance of the mutual obligation of the employer and the represent-
ative of the employees to meet at reasonable times and confer in
good faith with respect to wages, hours, and other terms and condi-
tions of employment, or the negotiation of an agreement or any
question arising thereunder, and the execution of a written contract
incorporating any agreement reached if requested by either party,
but such obligation does not compel either party to agree to a pro-
posal or require the making of a concession
Unilateral Rescision of a Provision of the
Collective-Bargaining Agreement
The facts, as detailed above, demonstrate that Re-
spondent, by its actions and written statements, in late
March, April, and May, repudiated article 1.03(b) of the
1980-1981 agreements, particularly with NECA, by des-
ignating as "implemented" unilateral modification of that
contractual provision. Futhermore, the testimony, previ-
ously discussed in detail, 31 requires the conclusion that
Respondent unilaterally rescinded article 1.03(b) which
required the commencement of negotiations within a
week after April 1. Negotiations did not commence until
May 27. Also in late March, KCECA received copies of
its 1980-1981 agreement containing unilateral modifica-
tions similar to these matters designated "implemented"
in the Union's March 31 letter. KCECA noted the unilat-
eral modifications and requested Croxton to correct the
agreements. Croxton replied that with one exception32
that had been "red-lined" by the "10," several items had
been mandated by the "10" and had to remain. Eventu-
ally, the Union did send out corrected copies of the
agreements to KCECA only, deleting the unilateral
changes. Although NECA expressed to Respondent a
willingness to commence negotiations during the week of
March 31, 1981, negotiations did not commence until
late-May 1981.
An assertion of the right to unilaterally rescind certain
provisions of the collective-bargaining agreements and
rescinding that section which deals with the date negoti-
ations for successor agreements are to commence is a
violation of Sections 8(b)(1)(B) and 8(d) of the Act. Elec-
tric Workers IBEW Local 1186 (Pacific Electrical Contrac-
tors), 264 NLRB 712 (1982).
Proposed Elimination of the Foreman Call
Provision
The issue here is whether the Union can negotiate in
good faith and lawfully mandate the deletion of the
"foreman call clause."
It is clear that under most circumstances the "foreman
call provision" is a "permissive" subject of bargaining
since foreean are supervisors, as found above, NLRB v.
Retail Clerks (Safeway Stores), 203 F.2d 165 (9th Cir.
1953); Southern California Pipe Trades District Council 16
(Aero Plumbing Co.), 167 NLRB 1004 (1967): That the
"foreman call provision" is not usually a mandatory sub-
ject of bargaining does not alter the finding of a violation
under the circumstances of this case. Presumably, Re-
spondent could unilaterally require the removal of this
permissive provision from the prospective collective-bar-
gaining agreements.33 However, under the circumstances
31 Respondent's assertion that NECA's failure to make a written
demand to commence negotiations within the week following April 1,
1981, abrogated its rights to assert a violation of the Act is found to be
without merit
32 A reference to the "CIR."
33 See National Fresh Fruit & Vegetable Co, 227 NLRB 2014, 2015
(1977), wherein the Board held
The Respondent's secret intent or meaning cannot be controlling
in determining whether a party has taken an adamant position, and
Continued
ELECTRICAL WORKERS IBEW LOCAL 428 (KERN COUNTY CHAPTER NECA)
of this particular proceeding, the proposal does more
than remove a permissive bargaining provision from the
contract; it removes the right of the employer to select
their own supervisors and first-step representatives for
resolution of grievances.
The basis for this conclusion are the various pertinent
provisions of the applicable contracts.34 For example,
there are provisions for an exclusive hiring hall, as fol-
lows:
(a) On and/or after eight (8) days following the
beginning of employment under this Agreement all
workers employed by the Employer shall, as a con-
dition of employment, upon written demand from
the Union, tender the full and uniform admission
fees to the Local Union.
(b) Workers who may be accepted into member-
ship shall thereafter maintain their continuous good
standing in the Union as a condition of employment,
by paying regular monthly Union fees uniformly
paid by other members of the same classification in
the Union, in order to defray the costs of the Col-
lective Bargaining.
(c) In the event an employee fails to tender the
admission fee, or a member of the Union fails to
maintain membership, the Union shall notify the
Employer in writing and such written notice shall
constitute a request to the Employer to discharge
said individual within forty-eight (48) hours (Satur-
days, Sundays and Holidays excluded).
It is found that the contract includes foremen and gen-
eral foremen in the term "workers." That foremen and
general foremen are included in the unit is the subject of
a stipulation by the parties and is reflected in the terms
and wage discriptions agreed to by the parties, and their
wage rates are prescribed in the contracts. Further, sec-
tion 4.02 of the oilfield agreement" provides that:
Sec. 4.02. The Union shall be the sole and exclusive
source of referral of applicants for employment.
There is no showing that foremen are excluded from this
contract provision. In fact, the contrary is indicated by
the absence of the term "employee" from this as well as
the above-quoted union-security clause and the inclusion
of foremen in the unit. Thus, under the proposal, the
hence the meanings which Chadwick attributes to the words "criti-
cal" and "firm" are irrelevant. Nor is the reasonableness of the posi-
tion taken a relevant consideration. No more persuasive is the Ad-
ministrative Law Judge's subjective belief as to whether it makes
sense to him, that a particular position would or would not be
taken-we must base our findings on the evidence as a whole, even
where, as here, it leads to a conclusion other than that which an Ad-
ministrative Law Judge believes "makes sense " Finally, the events
several months later do not establish what position the Respondent
took at the earlier time, a change of position is not unusual, and in
any event the important thing is the stance which Respondent dem-
onstrated to the Union and the mediator Accordingly, we must look
to the record in light of the Administrative Law Judge's credibility
resolutions to determine for ourselves what transpired and apply the
proper principles of law of those facts
Cr. KONO-TVMission Telecasting Corp, 163 NLRB 1005, 1008 (1967)
34 For example sec 2 33 of the 1981-1982 oilfield agreement
ss The other applicable agreements have similar clauses
411
Union would retain the right of referral of foremen and
general foremen but the employer could name these su-
pervisors. This conclusion is further buttressed by the
provisions of sections 3.23, 3.24, and 3.25 of the oilfield
agreement. 36 These provisions state:
Sec. 3.23. FOREMAN:
(a) On all jobs requiring three (3) Journeymen, of
four (4) workers, one (1) shall be designated as
"Foreman" by the Employer
(b) A Foreman may work with the tools until
five (5) Journeymen, not including himself, are em-
ployed on the job; then shall act in a supervisory
capacity only.
(c) A Foreman shall not be required to supervise
more than ten (10) workers under classifications
covered by this Agreement
(d) On jobs having a Foreman, workers are not
to take directions or orders, or accept the layout of
the job from anyone except the proper Foreman,
unless an immediate decision is necessary.
Sec. 3.24 . GENERAL FOREMEN:
(a) When more than one (1) crew and foreman
are required by this or subsequent articles on any
given job , one (1) shall be designated as General
Foreman. Such General Foreman shall be permitted
to act as Foreman over one (1 ) of the crews.
(b) When a third crew and foreman are added,
each of the three (3) crews shall have its own Fore-
man and the General Foreman shall act as General
Foreman only.
(c) A General Foreman shall not be required to
supervise more than four (4) crews on any one job.
(d) A General Foreman, when functioning as
such, as required by the Agreement, shall not per-
form any work with the tools.
(e) When a General Foreman is required by this
Agreement , the same relationship will apply be-
tween Foreman and General Foreman as between
workers and Foreman.
Sec. 3.25 A Foreman, or General Foreman, shall be
a Journeyman, of proper classification, for the work
to be performed.
Thus, the applicable contracts require that all foremen
be journeymen, when a foreman or general foreman must
be designated and when a foreman may work with his
tools. The contracts also specify which individuals are to
be so designated and administers examinations to qualify
individuals for these classifications. Inasmuch as the fore-
men and general foremen are supervisors and the fore-
men are involved in the first step of grievance resolution,
the deletion of the foreman call provision appears to ef-
fectively constitute a refusal to permit the employers to
select their own representatives in violation of Section
8(b)(1)(B) of the Act. See Bricklayers Local 28 (Sal Ma-
sonry Contractors), 265 NLRB 744 (1982).
36 Similar provisions are contained in the other contracts
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's assertion , raised for the first time on
brief and, hence, not susceptible to factual controversion
on this record, is that if foremen and general foremen are
supervisors , then "the employees would be free to select
a true supervisor from outside the bargaining unit." This
position , besides being unsubstantiated on the record, is
contrary to the above-quoted provisions of the contract
which precludes selection of foremen from outside the
hiring hall under terms and conditions prescribed by the
employer. The foremen and general foremen had to be
certified by the Union and dispatched from the hiring
hall. Accordingly , this argument is found to be specious
and unsupported by fact. On the contrary, Respondent's
own witnessess and the applicable collective-bargaining
agreements require that a foreman be a member of the
unit, be a journeyman, be dispatched by the hiring hall,
prescribes rates of pay, requires he loin the union, antici-
pates the handling of first-step greivances , and states that
all times he will "act in a supervisory capacity."
The Union's proposals would not delete these provi-
sions from the applicable contracts. If Respondent pre-
vailed in its endeavor to eliminate the "foreman call
clause," the Union would be refusing to permit the em-
ployers to select their own supervisors, including their
representatives in the handling of grievances which, in
itself, would be a violation of Section 8(b)(1)(B). See
Southern California Pipe Trades District Council 16 (Aero
Plumbing Co.), supra, 167 NLRB 1004, 1009 (1967).
Thus, in essence , Respondent was not merely seeking the
elimination of a right held by Employers , it was denying
the employers this right and concomitantly enhancing its
own sway over the selection of supervisors . Insisting
upon such a proviso as a condition of agreement is a vio-
lation of Section 8(b)(1)(B) of the Act. See Honolulu
Star-Bulletin, 123 NLRB 395 (1959), enf. denied on other
grounds 274 F.2d 567 (D.C. Cir. 1959). Cf. International
Typographical Union (Haverhill Gazette), 123 NLRB 806
(1959), enfd. 278 F.2d 6 (1st Cir. 1960), affd. 365 U.S.
705 (1961).
It is also concluded that the efforts to compel exclu-
sion of the "foreman call clause" also violated Section
8(b)(3) for it would result in illegal provisions in a con-
tract which coerced and restrained employers in exercis-
ing their right to select their representatives. See Amal-
gamated Lithographers of America (Ind.), 130 NLRB 985,
991 (1961), enfd. 309 F.2d 31 (9th Cir. 1962), cert. denied
372 U.S. 943 (1963). There is no showing that the em-
ployers have waived their rights to select their represent-
atives. See New York Typographical Union 6, 237 NLRB
1241 (1978); Sheet Metal Workers Local 59, 227 NLRB
520, 521 (1976).
Alleged Surface Bargaining , Threat to Strike if
Employer Associations Refused to Agree to
Implement Proposals Designated "Implemented" or
"M" and Insisting to Impasse and Striking Over
Nonmandatory Subjects of Bargaining
The General Counsel and the Charging Parties assert
that the Union 's threatening to strike and then bargaining
to impasse and striking over its demands is violative of
Section 8(b)(1)(B) and (3) of the Act. Concomitantly, the
General Counsel and the Charging Parties argue that Re-
spondent violated Section 8(b)(3) of the Act by threaten-
ing to strike if NECA and KCECA refused to agree to
the inclusion in the contract of those items denominated
"implemented" and "M."
Initially, it is contended that Respondent failed to bar-
gain in good faith by engaging in surface bargaining. Re-
spondent replies, in sum, that it negotiated in good faith
and did not have to agree to any proposal in, accord with
Section 8(d) of the Act. As previously indicated, there is
no obligation to bargain about permissive subjects.37
However, as the Board noted in Nordstrom, Inc., 229
NLRB 601 (1977), the relationship between mandatory
and nonmandatory subjects must be recognized and that,
once a nonmandatory subject is removed from the table,
there is no compulsion to execute the agreement. Insist-
ence upon removal of the "foreman call clause" under
the unique circumstances presented in this proceeding
would result in employer representatives who are includ-
ed in the unit being referred by the Union , under terms
and conditions set forth in the collective -bargaining
agreement,38 without the employer being able to choose
such representative . This situation raises such "consider-
able relationships . . . between mandatory and nonman-
datory subjects"39 that the demand to exclude the "fore-
man call" provisions constituted refusal to bargain in
good faith. See Southern California Pipe Trades District
Council 16 (Aero Plumbing), supra at 167 NLRB 1004 fn.
1, 1008- 1009, wherein it was found:
For the foregoing reasons and on the record as a
whole, I find that, by insisting upon the standard
agreement containing the nonmandatory provisions
to which Aero objected, the Respondent refused to
bargain in violation of Section 8(b)(3) of the Act. I
further find that, by insisting upon the provision in
the agreement that Aero appoint the Association as
its representative for the purposes of collective bar-
gaining and the adjustment of grievances , the Re-
spondent violated Section 8(b)(1)(B) of the Act.40
If the Union eliminated the "foreman call clause," it
would eliminate the employers' ability to select their
own supervisors , and permit the Union to do indirectly
what it could not do directly. Concomitantly, absent evi-
dence to the contrary, the other portions of the contracts
which deal with the foremen and general foremen are
found to have survived the expiration of the 1980-1981
agreements . Furthermore , the Union 's insistence that
NECA adopt all the specifically denominated demands
"WITHOUT EXCEPTION," presenting the proposals
as a fait accompli, including that relating to approval of
all collective-bargaining agreements by the National
Office of NECA, is violative of Section 8(b)(3) of the
34 KCECA's assertion that Respondent could not lawfully bargain to
impasse over its proposal to delete the "foreman call clause" is rejected
38 As previously noted, the contractual provisions listed above, with
the exception of the "foreman call" provision, appear to be still in effect
as Nordstrom , Inc, supra
40 Cf Olin Corp., 248 NLRB 1137 (1980), and Laredo Packing Co., 254
NLRB I at 18 (1981 ), and Cote Bros Bakery, 259 NLRB 776 (1981)
ELECTRICAL WORKERS IBEW LOCAL 428 (KERN COUNTY CHAPTER NECA)
Act for the demand related to a nonmandatory subject of
bargaining.4 i
NLRB v. Borg-Warner, 356 U.S. 342 (1958). In deter-
mining "good faith" the entire conduct of the negotiating
parties must be scrutinized . NLRB v. Insurance Agents
International Union, 361 U.S. 477 (1960); NLRB v. Ameri-
can National Insurance Co., 343 U.S. 395 (1952). As
noted in NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131,
139-140:
The ultimate issue whether the Company or
Union42 conducted its bargaining negotiations in
good faith involves a finding of motive or state of
mind which can only be inferred from circumstan-
tial evidence. It is similar to the inquiry whether an
employer discharged an employee for union activity
The various means of assessing "good faith" bespeak
the difficulty inherent in determining motive from a
series of communications. Some of the indicia of motive
include, as noted in Graphic Arts Local 288 (James H.
Barry Co.), 235 NLRB 1084, 1094-1095, by Administra-
tive Law Judge Richard Boyce, as including:
. .. "a desire to reach ultimate agreement, to enter
into a collective bargaining contract";25 "a willing-
ness to negotiate toward the possibility of effecting
compromises";26 a "willingness among the parties
to discuss freely and fully their respective claims
and demands and, when these are opposed, to justi-
fy them on reason";27 and "the serious intent to
adjust differences and to reach an acceptable
common ground."28 Good faith is "inconsistent
with a predetermined resolve not to budge from an
initial position"1;29 "requires more than a willing-
ness to enter upon sterile discussion of union-man-
agement differences," yet does not demand that a
party "engage in fruitless marathon discussions at
the expense of frank statement and support of his
position ";30 and is not satisfied by "[t]he mere will-
ingness of one party in the negotiations to enter into
a contract of his own composition."31
41 That NECA, on July 16, accepted all the Union's proposals with
the exception of the "foreman call clause" does not require a different
finding The Union rejected NECA's proposal and stated all "mandated"
and "implemented" provisions, including approval of the agreement by
the National office of NECA, must be included in the contract without
exception Inasmuch as the Union refused NECA's offer, all the propos-
als remained subject to negotiations, including this permissive bargaining
subject. KCECA's argument that the Union's actions regarding the "fore-
man call clause" be similarly treated is rejected for it would normally be
a permissive subject of bargaining and, under normal circumstances, the
Union could state that it did not want to negotiate with regard to that
provision However, in this case, applying the principles announced by
the Board in Nordstorm, Inc., supra, the Union's position would result in
the Union 's acquiring the right to appoint supervisors, in contravention of
the Act, and this could not be considered a permissive subject of bargain.
ing.
42 The Supreme Court, in NLRB v. Insurance Agents International
Union (Prudential Insurance), 361 U S. 477, 4$8 (1960), held that Congress
intended Sec 8(b)(3) to condemn in union spokesmen those attitudes
"that had been condemned in management" by previously enacting Sec.
8(a)(5) of the Act
413
Much of the difficulty with cases such as the
present is that of reconciling the notions of good
faith just cited with the earlier-quoted savings pro-
vision of Section 8(d). The Supreme Court has ob-
served:
Obviously there is tension between the principle
that the parties need not contract on any specific
terms and a practical enforcement of the princi-
ple that they are bound to deal with each other
in a serious attempt to resolve differences and
reach a common ground.32
And this "tension" is compounded by a recognition
that a display of machismo is a "traditional opening
gambit" in bargaining33 or, as otherwise put:
[T]he negotiation of labor contracts is not a
gentle art . . . . What may appear to be an un-
reasonable, obdurate demand may be no more
than the skillful practice of the negotiator's art,
designed to wring concessions from the opposite
side.34
So it is that good faith "is not necessarily incom-
patible with stubbornness or even with what to an
outsider may seem unreasonableness "; 35 a position
"genuinely and sincerely held . . , may be main-
tained forever though it produce a stalemate"; 3 6
and "intransigence of itself does not establish bad
faith."37 But yet, again extracting from N.L.R.B. v.
Reed & Prince Mfg. Co.:
[W]hile the Board cannot force an employer [or
union] to make a "concession" on any specific
issue or to adopt any particular position, the em-
ployer [or union] is obliged to make some reason-
able effort in some direction to compose his dif-
ferences with the union [or employer], if Section
8(a)(5) [or 8(b)(3)] is to be read as imposing any
substantial obligation at all.38
485
25 NLRB v Insurance Agents' International Union supra at
26 Associated General Contractors of America, Evansville Chapter,
Inc v N.L.R.B , 465 F.2d 327, 335 (C.A 7, 19'12)
27 N.L.R B v. George P. Pilling & Son Co., 119 F.2d 32, 37
(C A 3, 1941)
28 Wal-Lite Division of United States Gypsum Co., 200 NLRB
1098, 1101 (1972), enforcement denied 484 F 2d 108 (C A 8, 1973)
29 N.L R.B. v Truitt Manufacturing Co, 351 US. 149, 154
(1956) (separate Frankfurter opinion)
30 N.L R.B. v American National Insurance Co., supra at 402,
404
31 United States Gypsum Co, supra at 1101
32 NLRB v. Insurance Agents' International Union, supra at
486.
33 NL R B v. Almeida Bus Lines, Inc, 333 F 2d 729, 731 (C.A.
1, 1964)
34 United Steelworkers of America, AFL-CIO (Florida Machine
& Foundry Company) v. NL.R.B., 441 F 2d 1035, 1008 (C A.D.C.,
1970).
as N.L.R.B. v Truitt Manufacturing Co., supra at 154, 155 (sep-
arate Frankfurter opinion)
36 N.L.R B v. Almeida Bus Lines, supra at 731
37 United States Gypsum Co., supra at 1100
38 205 F.2d at 134-05
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examination of various written and verbal communica-
tions between Respondent and the Charging Parties re-
quires the conclusion that the totality of Croxton's bar-
gaining conduct establishes that Respondent entered ne-
gotiations with a closed mind and intransigent position
about those bargaining subjects denominated as "manda-
tory" or "implemented" amounting to a take-it-or-leave-
it attitude. Justice Frankfurter, in NLRB v. Truitt Mfg.
Co., 351 U.S. 149, 154 (1956), defined good faith as "in-
consistent" with a predetermined resolve not to budge
from an initial position."
The Board, in Iron Workers Local 103 (AGC of Evans-
ville), 190 NLRB 741 (1971), held that a union is obligat-
ed to enter into negotiations with an open mind and it
violates Section 8(b)(3) of the Act by maintaining an in-
flexible position on bargainable matters, and being un-
willing to consider, seriously, alternatives to its propos-
als. Cf. U.S. Gypsum Co., 200 NLRB 1098 (1972), enf.
denied 484 F.2d 108 (8th Cir. 1973).
As also noted in the U.S. Gypsum case, supra, another
consideration in determining if a violation of Section
8(b)(3) of the Act occurred is the lack of authority of the
Respondent's chief negotiator to bargain meaningfully. In
the instant proceeding, Croxton, Respondent's chief
spokesman, stated repeatedly that he possessed only lim-
ited authority and discretion to bargain about those items
denominated "M" or "implemented," and therefore he
could not fully participate, as necessary, in the give-and-
take needed to negotiate a collective-bargaining agree-
ment. The Union's attitude and communications bespoke
Croxton's lack of authority to compromise on those
items called "mandatory" and "implemented." Croxton's
statement that he would be fired if he agreed to a con-
tract which did not contain those provisions explain both
Croxton's inability to compromise during negotiations
about those items and Respondent's intransigence on
these matters. See Machinists Local 1424 (Bryan Mfg.
Co.) v. NLRB, 362 U.S. 411, 416 (1960); cf. Art Bridges
Auto Emporium South, 173 NLRB 629, 632 (1968), and
cases cited therein. This lack of latitude to bargain is fur-
ther demonstrated by Croxton's limited role in only
being able to explain and justify the Union's position, he
was impotent to meaningfully negotiate about these mat-
ters. Furthermore, Croxton indicated he did not under-
stand the basis for eliminating the foreman call clause, or
the other items "mandated" by the International, and
also indicated that he recognized that the Union could
not resonably expect the employers to acquiesce to the
"foreman call clause" deletion. Accordingly, it is found
that the Union did not, and believed it could not, "make
some reasonable effort in some direction to compromise
its differences with the [employers]" in violation of Sec-
tion 8(b)(3) of the Act. NLRB v. Reed & Prince Mfg. Co.,
supra, 205 F.2d 131, 134-135. As indicated above, apply-
ing these principles to the instant proceeding requires a
conclusion that the Union bargained in bad faith in viola-
tion of Section 8(b)(3) of the Act.
Respondent's initial and final contract proposals re-
mained essentially unaltered with regard to the items ini-
tially called "implemented" or "mandatory." Such in-
transigence is significant in this proceeding for the pro-
posal and adoption of these proposals would have forced
the employers to relinquish their statutory right to select
their own representatives in violation of Section 8(b)(3)
of the Act.
The elimination of the "foreman call clause" was a
proposal to which the local could not reasonably expect
aquiescence from the employer groups. In fact, Croxton
indicated in several communications that those items des-
ignated "implemented" were not subject to modification
through bargaining, as exemplified by Respondent's fail-
ure to honor the requirements of section 1.03(b) of the
agreement requiring negotiations to commence in early
April, another violation of the Act found hereinabove.
Further, as found above, Croxton and other members of
Respondent's negotiation committee repeatedly stated
that they were required to have those items designated
"implemented" and "M" included in any collective-bar-
gaining agreement negotiated, and the union negotiating
committee was not in a position to modify or eliminate
any of those provisions. The union negotiating team ad-
mitted virtual impotence to negotiate meaningfully about
those "implemented" and "M" subjects. The initial sub-
mission on March 31 stated that there was no latitude to
bargain about those items.43
Even after both employer groups agreed to accept all
the Union's proposals save the foreman call provision,
and genuine bargaining could have occurred on the
issue, Croxton insisted that the March 31 proposal of the
Union "must obtain." This unwillingness to make conces-
sions and the absence of expression of a sincere desire to
adjust their differences in order to reach agreement rela-
tive to the "implemented" and "mandated" proposals in
light of such concessions is indicative of the lack of Re-
spondent's good faith in bargaining. See NLRB v. Stanis-
laus Implemented Co., 226 F.2d 377 (9th Cir. 1955). The
Union did not make any effort in any direction to com-
pose its differences with the employer associations re-
garding the items designated "implemented" or "M."
That the Union was willing to make concessions on
some items not denominated as "implemented" or "M" is
not evidence of its intent to bargain in good faith in this
instance due to the predictable unacceptablity of the pro-
posals, particularly that proposal dealing with the selec-
tion of the individual employer's supervisors. Adherence
to these demands clearly frustrated agreement. The in-
ability to draw from the evidence of record any infer-
ence that the proposals were propounded as a method of
extracting concessions from the other side, the obdurate
position taken by the Union ab initio, the condition of
acceptance of these terms upon exception are factors
warranting the finding of bad faith in violation of Sec-
tion 8(b)(3) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall order that it cease and
43 That the union membership did not ratify the various proposals of
NECA and KCECA is not an exculpatory factor There is no showing
that such ratification was a condition precedent to Local 428's negotiat-
ing committee entering into a binding collective-bargaining agreement or
that such ratification procedures were agreed upon by the parties as a
prerequisite to validate a contract
ELECTRICAL WORKERS IBEW LOCAL 428 (KERN COUNTY CHAPTER NECA)
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
In addition to the standard remedies, the General
Counsel and the Charging Parties seek restoration of the
"foreman call clause" to the current collective-bargain-
ing agreements between Respondent Local 428 and
NECA and KCECA or ordering Local 428 to rescind
the parties 1982-1983 collective-bargaining agreement,
and to engage in good-faith bargaining. KCECA further
argues that because Croxton admittedly offered to main-
tain and honor the "foreman call" procedures contained
in prior contracts and refused to memorialize this offer in
writing, this requires ordering inclusion of the "foreman
call" provision and is consonant with the parties' agree-
ment. This argument is unpersuasive and without merit
for it overlooks the fact that neither employer group ac-
cepted Croxton's offer. In fact, both NECA and
KCECA actually found fault with Croxton's proposal
and explicitly rejected it with the prior knowledge that
Croxton would not include the provision in the contract
or a side letter. Therefore, it cannot be found that the
parties reached agreement on this issue.
As the Board noted in Mead Corp., 256 NLRB 686
(1981), it is mandated under Section 10(c) of the Act to
"take such affirmative action as will effectuate the poli-
cies of the Act.... [I]t is the Board's established policy
to order restoration of the status quo ante to the extent
feasible where there is no evidence that to do so would
impose an undue or unfair burden on the respondent."
In the instant proceeding, as noted above, there was
no agreement, hence ordering inclusion of the "foreman
call clause" in current collective-bargaining agreements
goes further than forcing a party to an agreement to
eradicate an unlawful retraction.
It could be argued that the relief sought is the only
way to eradicate an unlawful retraction even though
under different circumstances the Union may have the
freedom to unilaterally refuse to honor the clause. How-
ever, there are other means by which the parties cold
eradicate the unlawful retraction. For example, the em-
ployers could waive their statutory right to select their
representatives or terminate their voluntary agreement to
include supervisors in the unit. Since there are other
means for restoring the status quo ante apart from the
unusual remedy sought, the request for an order requir-
ing inclusion of the "foreman call clause" in Respond-
ent's current contracts with NECA and KCECA is
denied. There is no showing of any pecuniary losses atri-
buted to the violations found herein.
Having found that Local 428 unilaterally recanted arti-
cle 1.3 of the applicable 1981-1982 contracts, reinstate-
ment of that provision is deemed unwarranted since it is
a permissive subject of bargaining and hence a term
which does not survive the termination date of the
agreements. This violation, as well as the others, can be
remedied by ordering Respondent Union, upon request,
to cease and desist from its unlawful actions and to bar-
gain with NECA and KCECA as the exclusive i epre-
sentatives of the employees in the appropriate unit and, if
an understanding is reached, embody such understanding
in signed agreements.
415
CONCLUSIONS OF LAw
1. Kern County Chapter, National Electrical Contrac-
tors Association is an employer engaged in commerce
within the meaning of the Act.
2. Kern County Electrical Contractors Association is
an employer engaged in commerce within the meaning
of the Act.
3. International Brotherhood of Electrical Workers
Union, Local No. 428 is a labor organization within the
meaning of Section 2(5) of the Act.
4. The following units are appropriate for purposes of
collective bargaining within the meaning of Section 9(b)
of the Act:
(a) Included: All journeymen wiremnen techni-
cian, foremen, cable splicers, heliarc welders, gener-
al foremen and cable splicer foremen employed by
Employer-members of NECA and by other employ-
ers both of whom have voluntarily signified their
consent to be part of the multi-employer bargaining
unit covered by the collective-bargaining agreement
between NECA and Respondent Local 428 effec-
tive July 1, 1980 through June 30, 1981, covering
inside electrical construction work;
Excluded: All other employees employed by
said Employer-members and employers.
(b) Included : All journeymen linemen/jour-
neymen technicians , heavy equipment operators,
foremen, cable splicers, heliarc welders, general
foremen, cable splicer foremen , groundmen, and
truck drivers employed by Employer-members of
NECA and by other employers both of whom have
signified their consent to be part of the multi-em-
ployer bargaining unit covered by the collective-
bargaining agreement between NECA and Re-
spondent effective July 1, 1980 through June 30,
1981, covering line construction work;
Excluded : All other employees employed by
said Employer-members and employrs [sic].
(c) Included : All journeymen oilfield technicians,
foremen, cable splicers, heliarc welders, general
foremen, cable splicer foremen, and groundmen em-
ployed by Employer-members of NECA and other
employers both of whom have voluntarily signified
their consent to be part of the multi-employer bar-
gaining unit covered by the collective-bargaining
agreement between NECA and Respondent Local
428 effective July 1, 1980 through June 30, 1981,
covering oilfield electrical construction work;
Excluded : All other employees employed by
said Employer-members and employers.
(d) Included : All journeymen wireman techni-
cians, foremen , cable splicers, heliarc welders, gen-
eral foremen and cable splicer foremen employed
by Employer -member of KCECA and by other em-
ployers who have signified their consent to be part
of the multi-employer bargaining ; unit covered by
the collective-bargaining agreement between
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
KCECA and Respondent Local 428 effective July
1, 1980 through June 30, 1981, covering inside elec-
trical construction work;
Excluded: All other employees employed by
said Employer-members and employers.
(e) Included: All journeymen linemen/jour-
neymen technicians, heavy equipment operators,
foremen, cable splicers, heliarc welders, general
foremen, cable splicer foremen, groundmen and
truck drivers employed by Employer-members of
KCECA and by other employers who have signi-
fied their consent to be part of the multi-employer
bargaining unit covered by the collective-bargaining
agreement between KCECA and Respondent effec-
tive July 1, 1980 through June 30, 1982, covering
line construction work;
Excluded: All other employees employed by
said Employer-member and employers.
(f) Included: All journeymen oilfield technicians,
foremen, cable splicers, heliarc welders, general
foremen, cable splicer foremen and groundmen em-
ployed by Employer-members of KCECA and
other employers who have voluntarily signified
their consent to be part of the multi-employer bar-
gaining unit covered by the collective-bargaining
agreement between KCECA and Respondent Local
428 effective July 1, 1980 through June 30, 1981,
covering oilfield electrical construction work:
Excluded: All other employees employed by
said Employer members and employers.
5. Since July 1, 1980, and at all times material, Re-
spondent Local 428 has been the lawfully designated ex-
clusive collective-bargaining representative of the em-
ployees of the employers in the units described above in
subparagraphs 4(a), (b), (c), (d), (e), and (f), and since
this date, Respondent Local 428 has been recognized as
such representative by said employers. This recognition
has been embodied in successive bargaining agreements
between NECA and Respondent Local 428, and between
KCECA and Respondent Local 428, the most recent of
which are effective by their terms for the period July 1,
1980, to June 30, 1981.
6. At all times since 1976, Respondent Local 428, by
virtue of Section 9(a) of the Act, has been and is now
the exclusive representative of all the employees in the
units described above in subparagraphs 4(a), (b), (c), (d),
(e), and (f) for the purpose of collective-bargaining with
respect to rates of pay, wages, hours of employment, and
terms and conditions of employment
7. By the totality of its conduct in negotiations with
the above-named multiemployer associations, as found
herein, Respondent engaged in unfair labor practices
within the meaning of Section 8(b)(3) of the Act.
8. By insisting to impasse and striking over its demand
that NECA and KCECA agree to the deletion of a
clause which affords their members and other employers
who have asserted to be represented by them from re-
questing Respondent to dispatch general foremen and
foremen, who remained members of the unit, by name,
Respondent engaged in an unfair labor practice within
the meaning of Section 8(b)(1) and (3) of the Act.
9. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed44
ORDER
The Respondent, International Brotherhood of Electri-
cal Workers Union, Local No. 428, Bakersfield, Califor-
nia, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Refusing to engage in good-faith bargaining with
the representatives of the two multiemployer bargaining
associations, Kern County Chapter, National Electrical
Contractors Association (NECA) and Kern County
Electrical Contractors Association (KCECA) by engag-
ing in surface bargaining, by insisting to impasse and
striking to secure its contract proposals concerning
NECA getting approval from the National Office of the
National Electrical Contractors Association, and by re-
pudiating a contract provision setting the time frame for
the commencement of negotiations for a new agreement.
(b) Refusing to bargain in good faith and insisting to
impasse and striking over its demand that KCECA and
NECA relinquish their contractual rights and request
foremen and general foremen by name though foremen
and general foremen are members of the unit, and must
be dispatched through Respondent's hiring hall.
(c) In any like or related manner restraining or coerc-
ing any employer in the selection of the representatives
for the purpose of collective bargaining or adjustment of
grievances.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) On request, bargain collectively in good faith with
the above-named employers as the exclusive representa-
tive of the employees in the unit herein found appropri-
ate, and embody in a signed agreement any understand-
ing reached.
(b) Post at business offices and meeting halls copies of
the attached notice marked "Appendix."45 Copies of the
notice, on forms provided by the Regional Director for
Region 31, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to members of Respondent are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
44 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
45 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
DRUKKER COMMUNICATIONS 417
(c) Notify the Regional Director in writing within 20 IT IS FURTHER ORDERED that the charge in Case 31-
days from the date of this Order what steps Respondent CB-4433 is severed from the complaint and dismissed.
Union has taken to comply.