Electrical Workers Local 2326 (Vermont Telephone)

National Labor Relations Board - Board Decisions

Dec 18, 2006

348 N.L.R.B. 1278 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
348 NLRB No. 91
1278
International Brotherhood of Electrical Workers,
Local 2326, AFL–CIO and Vermont Telephone
Company. Case 1–CB–10497
December 18, 2006
DECISION AND ORDER
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
On July 24, 2006, Administrative Law Judge Martin J.
Linsky issued the attached decision. The Charging Party
filed exceptions, a supporting brief, a reply brief, and a
motion to reopen the record. The Respondent filed an
answering brief. The Charging Party and the Respondent
jointly filed a motion for expedited review.
The National Labor Relations Board has delegated 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, 1 and conclusions and
to adopt the recommended Order.2
ORDER
The recommended Order of the administrative law
judge is adopted, and the complaint is dismissed.
Thomas J. Morrison, Esq., for the General Counsel.
Alfred Gordon, Esq. (Pyle, Rowe, Lichten, Ehrenberg & Liss-
Riordan, P.C.), of Boston, Massachusetts, for the Respon-
dent.
Pamela J. Coyne and Peter B. Robb, Esqs. (Downs, Rachlin,
Martin PLLC), of Brattleboro, Vermont, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On August
3, 2005, the charge in Case 1–CB–10497 was filed against the
International Brotherhood of Electrical Workers, Local 2326,
AFL–CIO, Respondent or Union herein, by the Vermont Tele-
phone Company, Charging Party, or Employer herein.
On December 13, 2005, the National Labor Relations
Board, by the Regional Director for Region 1, issued a com-
plaint alleging that the Respondent Union violated Section
8(b)(3) of the National Labor Relations Act, herein the Act,
when it failed and refused to honor the Employer’s request to
execute a written contract embodying the complete agreement

1 The Charging Party has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We find it unnecessary to pass on the Charging Party’s motion to
reopen the record to admit a letter sent by the Respondent to the Charg-
ing Party on November 8, 2006, because consideration of the letter
would not change the result in this case.
it had reached with the Employer on the terms and conditions
of employment.
Respondent filed an answer in which it denied that it vio-
lated the Act in any way.
A hearing was held before me on March 28, 2006, in Bos-
ton, Massachusetts.
Upon the entire record in this case, to include post hearing
briefs submitted by counsel for the General Counsel, counsel
for Respondent, and counsel for the Charging Party and giving
due regard to the testimony of the witnesses and their de-
meanor, I make the following
I. FINDINGS OF FACT
At all material times, the Employer, a corporation, was a
public utility incorporated in the state of Delaware, providing
telephone and related services to retail and commercial custom-
ers in Vermont.
Respondent Union admits, and I find, that at all material
times, the Employer has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Union admits, and I find, that at all material
times the Respondent Union has been a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Overview
The Union has represented for many years a unit of employ-
ees who work for the Employer.
The bargaining unit which the Union represents and which
has approximately 50 employees in it is as follows:
All bargaining unit employees of the Company excluding all
supervisory personnel, professional employees, including en-
gineers, departmental secretaries and clerks performing confi-
dential duties for the Employer, and guards.
The Union and the Employer had entered into a number of
collective-bargaining agreements, the most recent of which was
effective from October 18, 2001 to October 18, 2004.
The unfair labor practice in this case centers on the negotia-
tions for a successor collective-bargaining agreement to the
2001–2004 agreement.
The two major issues during negotiations were employee
health insurance and wages, and employee health insurance
was, according to the Union and not contradicted by the Em-
ployer, the most significant issue in the negotiations. The nego-
tiations on employee health insurance focused on the plans to
be offered and the employee contribution to the cost of the
insurance.
Two witnesses testified before me. Patricia M. Sabalis, an at-
torney, who was the chief negotiator for the Employer, testified
in the General Counsel’s case. Harold Lichten, an attorney,
who was the chief negotiator for the Union, testified in the
Union’s case.
I found both Sabalis and Lichten to be intelligent and honest
witnesses and am convinced that both told the truth. They were
VERMONT TELEPHONE CO. 1279
both credible witnesses with a great deal of experience in nego-
tiating collective-bargaining agreements.
The disagreement between the Employer and the Union cen-
ters on some language that had been in the 2001–2004 collec-
tive-bargaining agreement but had not been in prior collective-
bargaining agreements between the parties. Suffice it to say two
health plans were offered to employees in the 2001–2004 col-
lective-bargaining agreement as well as in the successor collec-
tive-bargaining agreement i.e., the NTCA AAA Plan1 and the
MVP Health Plan.
The language that was in the 2001–2004 agreement but not
in prior agreements was as follows:
. . . as outlined in the summary plan description for those
plans as modified from time to time by the plan provider.
The intent of that language is that if the provider changes or
modifies its plan during the terms of the contract then the plan,
as modified, will apply to unit employees.
It is the position of the General Counsel and the Employer
that the above language was agreed to by the parties and was to
be included in the agreement reached on October 27, 2004.
It is the position of the Union that the Employer and the Un-
ion reached an agreement on health insurance that did not in-
clude the above language.
The parties had four negotiating sessions and negotiated on
health insurance for many hours. The parties discussed the 3
plans offered by NTCA, i.e., the single A plan, the double AA
plan, and the triple AAA plan. The NTCA AAA plan was the
best plan.
The parties also discussed the MVP plan and whether to add
dental coverage.
The cost of the NTCA AAA plan was going up rather dra-
matically in cost and the cost to the employees was a subject
the parties spent a lot of time negotiating.
The parties never discussed the critical 20 words. The Em-
ployer thinking that only changes to Article 27.3 were being
negotiated and the Union thinking that so much time was spent
on Article 27.3 that the “TA,” or tentative agreement, reduced
to writing and executed by the parties was the parties’ complete
agreement on health insurance.
Article 27 of the 2001-2004 agreement covered “benefits.”
Article 27.3 covered health insurance and provided as follows:
“27.3 All eligible employees, spouses and dependents
may participate in either the NTCA AAA Plan, which in-
cludes medical and dental coverage, or MVP Health Plan
(“MVP”), a health maintenance organization, as outlined
in the summary plan description for those plans as modi-
fied from time to time by the plan provider. Eligible em-
ployees, spouses and dependents who elect MVP will also
be eligible for NTCA dental coverage. Individual cost of
employee contribution to health care insurance premium
will be as follows:
Contract YearSingle
Weekly
Contribution Family

1 NTCA stands for National Telecommunications Association.
Two Person
1 3 4 5
2 4 5 6
3 7 8 9
provided that:
(a) employees may elect to have contributions de-
ducted without tax, as permitted by law;
(b) employees will not have to make any contributions
to the health insurance premium for any period prior to
October 18, 2002; and
(c) if the blended increase in cost to the Company of
health care premiums for the NTCA AAA and MVP plans,
measured annually by calendar year beginning January 1,
is greater than nine percent (9%) for any calendar year, the
individual cost of employee health care insurance pre-
mium shall be increased by one dollar ($1.00) per week.”
The language involved in the dispute is underlined, i.e., the
language that provides as follows “as outlined in the summary
plan description for those plans as modified from time to time
by the plan provider.”
The parties began negotiations for a successor agreement to
the 2001–2004 agreement on September 23, 2004. The parties
had a total of four negotiating sessions, i.e., September 23,
October 4, 13, and 27, 2004. Sabalis was present at all four
sessions. Lichten was present at all sessions except the first.
The parties reached what they thought was final agreement
on health insurance on October 27, 2004.
It was agreed by the parties that the chief negotiator for the
Employer, Patricia Sabalis, would write out in long hand the
parties “TA” or tentative agreement on health insurance.
The tentative agreement handwritten by Sabalis was as fol-
lows:
“3 year agreement
Article 27 shall be amended as follows:
27.3 All eligible employees, spouses and dependents may par-
ticipate in either the NTCA AAA Plan, which includes medi-
cal and dental coverage, or MVP Health Plan with 223 V
Dental Coverage (“MVP”), a health maintenance organiza-
tion. Individual cost of employee contribution to health care
insurance premiums will be as follows:
“The current HL” NTCA AAA Plan Weekly Contribu-
tion
1/1/2005 Employee pays 10% of premium
1/1/2006 Employee pays 12.5% of premium
1/1/2007 Employee pays 15% of premium
MVP Weekly Contribution
Single TwoPersons Family
1/1/05 8 9 10
1/1/06 10 11 12
1/1/07 11 13 15
Employees may elect to have contributions deducted
without tax, as permitted by law. If NTCA ‘declines to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1280
HL’ offer insurance coverage to VTel,2 VTel is not obli-
gated to provide alternate insurance other than MVP.
Sabalis wrote it out. Lichten looked it over and made a cou-
ple of changes which are underlined and in italics, i.e., he added
the words “The current” and his initials HL before NTCA AAA
Plan and added the words “declines to” and his initials after “If
NTCA” and before “offers insurance.”
The Employer’s negotiating team consisted of Patricia M.
Sabalis, General Manager Norm Koch and Supervisor Moe
Turco. The union negotiating team consisted of Harold Lichten,
Union Business Manager Michael Spillane, and two employees.
All members of both negotiating teams read over the written
“TA” prepared by Sabalis. No one said that the language in the
2001–2004 agreement was missing or that the “TA” was incor-
rect or incomplete and Koch and Spillane signed the “TA.”
The parties also signed off on agreements on long term dis-
ability and wages.
The parties agree that during negotiations neither the Em-
ployer nor the Union ever specifically mentioned the above
language that was in the 2001–2004 agreement but not in the
“TA” signed off on by the parties regarding health plan modifi-
cations.
The General Counsel and the Employer argue that the dele-
tion of that language from the written “TA” prepared by Sabalis
was a “scriveners’ error” and that the language was agreed to
by default because the parties concentrated all their efforts on
the cost of the health insurance to the employees and the health
care plans to be offered.
The Union argues that the “TA” on health insurance as writ-
ten out by Sabalis, signed off on by the parties and later ratified
by the Union is the agreement on health insurance that the par-
ties reached. In the alternative the Union argues that there was
no meeting of the minds regarding Article 27.3 and its wording.
In either case the Union did not violate the Act in refusing to
sign a contract that contained the aforementioned language.
After ratification by the Employer Norm Koch, who had
signed the “TA” on Article 27.3 on behalf of the Employer, told
Patricia Sabalis that the language from the 2001–2004 agree-
ment was not in the agreement being prepared for execution by
the parties.
Sabalis wrote a letter to Harold Lichten on December 17,
2004, in which she refers to the missing language and writes
“Would the Union object if we included that phrase from the
previous contract in the current contract? Please advise.” This
is hardly language that is the same as saying we agreed to in-
clude that language.
Lichten wrote back to Sabalis on December 21, 2004, that he
has sent her letter to the union for review.
On February 10, 2005, Sabalis, not having heard further,
wrote to Lichten again and wrote that Lichten said he was go-
ing to check with the client, i.e., the Union, and Sabalis asks
“Have you had an opportunity to do so and shall we include the
language?” This is not the same as saying we agreed to have
this language in the contract.

2 VTel is Vermont Telephone Company, the Employer in this case.
On March 3, 2005, Sabalis sent to Lichten for execution a
copy of contract which contained the language from the 2001–
2004 agreement but which was not in the “TA” executed by the
parties on October 27, 2004.
The Union since March 3, 2005, has failed and refused to
execute the contract with the contested language in Article 27.3
and by letter of July 26, 2005, reiterated that it would not sign
the contract with the additional language in Article 27.3 be-
cause that was not the agreement of the parties.
B. Analysis
The Employer filed a charge with the National Labor Rela-
tions Board, which issued a complaint alleging that the Union
violated Section 8(b)(3) of the Act when it failed and refused to
sign the agreement agreed to by the parties.
Section 8(b)(3) of the Act provides as follows:
It shall be an unfair labor practice for a labor organiza-
tion or its agents to refuse to bargain collectively with an
employer, provided it is the representative of his employ-
ees subject to the provisions of section 9(a).
Section 8(d) of the Act provides, in part, as follows:
(d) [Obligation to bargain collectively] For the pur-
poses of this section, to bargain collectively is the per-
formance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable
times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment, or
the negotiation of an agreement or any question arising
there under, and the execution of a written contract incor-
porating any agreement reached if requested by either
party, but such obligation does not compel either party to
agree to a proposal or require the making of a concession
. . . . [Emphasis added.]
If a party refuses to execute an agreement reached by the
parties it violates the Act. HJ Heinz Co., 311 US 514 (1941).
The question that leaps to mind is why would Sabalis in writ-
ing up the “TA” or tentative agreement on Article 27.3 leave
out the language she left out. Having heard and observed Saba-
lis I am convinced she thought the language she left out was
supposed to be part of the agreement. She left it out by mistake
because the negotiations on health insurance had centered on
the plans and the cost to the employees and she focused on that
and when writing out the “TA” she used as a model a copy of
Article 27.3 that did not contain the language she left out of the
written “TA” on Article 27.3.
Did the Union take unfair advantage of the Employer? I
don’t think so. Lichten, during the negotiations focused on the
plans and the costs of each plan, i.e., NCTA AAA or MVP, to
the employees the Union represented. There was considerable
back and forth. The “TA” written up by Sabalis, slightly modi-
fied by Lichten, signed off on by both the Union and the Em-
ployer, and ratified by the Union was the agreement that Lich-
ten thought the parties had reached.
By way of background the NTCA AAA Plan was the gold
standard but was going up considerably in cost. The MVP plan
was an HMO to which dental coverage was added. The MVP
VERMONT TELEPHONE CO. 1281
plan was much cheaper than the NTCA AAA Plan. Under the
2001–2004 agreement the overwhelming majority of employ-
ees elected the NTCA AAA Plan and only a few selected the
MVP Plan because the NTCA AAA Plan was better than the
MVP Plan and the cost to employees was the same. However,
with the cost of the NCTA AAA plan going up so much the
Union thought more employees would opt to go to the lower
cost MVP plan. Accordingly, Lichten credibly testified if he
knew the language missing from Article 27.3 would be in the
contract he would have adjusted his negotiating approach dif-
ferently to account for it.
Since I credit both Sabalis and Lichten this is not a case
where the parties agreed on the language of the contract but
disagreed as to what it meant. See, Windward Teachers Assn.,
346 NLRB 1148 (2006) and case authority therein. This is a
case where the parties did not agree on the language.
Accordingly, I conclude that there was no meeting of the
minds and since there was no meeting of the minds the Union
did not violate Section 8(b)(3) of the Act when it failed and
refused to execute the collective bargaining agreement sent to it
by the Employer, which contained the language which was in
the 2001–2004 agreement, but not in the tentative agreement
signed off on by both parties on October 27, 2004.
CONCLUSIONS OF LAW
1. The Vermont Telephone Company is an employer en-
gaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Respondent Union, International Brotherhood of Electri-
cal Workers, Local 2326, AFL–CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent Union did not violate the Act as alleged
in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The complaint is dismissed in its entirety.

3 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.