Globe-Union, Inc.

National Labor Relations Board - Board Decisions

Sep 21, 1979

245 N.L.R.B. 145 (N.L.R.B. 1979)

GLOBE-UNION. IN('.
Globe-Union, Inc. and Local 1116, International
Union of Electrical, Radio and Machine Workers,
AFL-CIO. Case 17 CA-8166
September 21, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY. AND TRt:ESDAI.E
On May 24, 1979, Administrative Law Judge
James M. Fitzpatrick issued the attached Decision in
this proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(bh) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its athor-
ity in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,t and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
'The Charging Party has excepted to certain credibility findings made bS
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Drv Wall Products. Inc., 91
NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
In sec. III, D. of his Decision the Administrative Law Judge states that no
general distribution of the third contract booklet has been made The record.
however, indicates that union officials eventually distributed the btxoklet to
its 230 members in 1978. The Administrative Law Judge's error. however.
does not affect the result of our decision
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge: This
is about a typing mistake in a collective-bargaining agree-
ment which 2 years and one contract later the Company
endeavored to correct. I find that effort is not an unfair
labor practice.
Procedurally the case originated with charges filed
March 10, 1978. by Local 1116. International Union of
Electrical, Radio and Machine Workers. AFL-CIO (the
Union) against Globe-Union, Inc.. (Respondent or Corn-
pany). Based on these charges a conmplaint issued April 19.
1978. alleging that Respondent had engaged unfair labor
practices within the meaning of Section 8Xa)( I) anll (5) o1
the National abor Relations Act. as amended (the Act) b,
altering the terms of' its collectise-bargaining agreement
with the Union without notice to. or consullttion with. the
Union. Respondent answered, denying it had altered the
agreement or committed unitir labor practices, hut adiit-
ting all other allegations of the cornplaint. F'he matter wkas
tried belore me in Kansas ('it', Kansas. on August 29.
1978.
Based on the entire record. including m,s observation ofI
the witnesses and consideration of the hriefs filed h the
parties. I make the lollowing:
}:]Nl)tN(is [)| F." I
1. II n( ()'vPAN'
Respondent. a corporation, operates a plant at St.
Joseph. Missouri. for the manufacture of automobile hat-
teries. It annually purchases goods and services valued at
ov er $50,000 directl, trom sources outside Missouri Re-
spondent is an emploer engaged in commerce within the
meaning of Section 22). (6), and (7) of the Act.
II. tilt tNION
The Union is a labor organization within the meaning of
Section 2(5) of the Act. It is the exclusive representative for
collective-bargaining purposes within the meaning of the
Act of all Respondent's production and maintenance em-
ployees.'
In early 1974 the Board certified the Uinion as the em-
ployee representative. Ihereattcr the Union and the Conm-
pany negotiated three successise collective-bargaining
agreements. the first covering the period Jul, 25. 1974.
through July 13, 1975: the second July 14. 1975. through
July 15, 1977: and the third. which currentl in effect, July
18. 1977, to Julny 5. 1980.
Ill. tIli AI. :(itl-) t NI-AIR I ABOR PRA( I (tS
A. The Iethod of .Negoltiaing Sutwcc.s iive (otlralcls
In negotiating their first agreement for 1974 75. the par-
ties bargained and agreed upon all provisions of the con-
tract. In negotiating their second agreement. however, the,
negotiated only as to revisions and additions to the first
agreement. Provisions of the first contract which were not
changed in any way were simply incorporated into the sec-
ond contract. A similar procedure was followed in negotiat-
ing the third agreement fr 1977 1980. Revisions and addi-
tions to the second agreement were negotiated. but those
: The bargaining unit consilss o,f all production and maintenance emplos-
ees employed by Respondent at its St Joseph. Missouri. aclit,. including
group leaders. truckdrivers. and Janitors. hut excluding all office clericall em-
ployees. quality control employees, professional emploecse, anllor-atch-
men, guards, and supervisors as defined bs the Act IThis unit is ppropriate
for collective hbargaining slihin he ineaning Ihe Act
245 NLRB No. 27
145
)lI( lsl(\S ()I Ns I ()IO I B()R Rl IO()NS t()ARE)
Itlt1h CI t1 ii 1lc' isIl )be;llllc lpailt 1 tih Ihlill CoI)itl Ct In
Ili t1111C. t 1ll t Il tlhe secI 1ld.
1 \ voliX',l.i , o / ic Seo(/ lid t'eri'cI'1l
Ihe Initial algrcenient ctitined no prosisions imitiing
pcrlrnitmnce of unit work b n onuniti personnel. A the
fstltit iLego2iitlitls r the second agreement in April
197 , lilt Ilnion proposed a number t' changes including
le itddition of'a nes secmon to article X in the following
I ili )\cCs e\ctldcd1 11t l tle Ulit ill XrliCIC I SCC-
I. I, l: not f icblnt IcLIaJ wkork of an', rineibei
l tle thdlgltlHLn tlnli.
I 1i ('oilulii did lot ;iCIept tilCe Plrolpos11. lit it shsc-
lICIIllN tIle ;t toutIleirpro!nosl i tle olliis i lgultgie:
SuIper' isis cuxclded front the unit i1 Aiticlc I. Section
1 sh11 lnIt perl ile regular ork ot'tan ilnetiber ot
the h:rgaiting unil. hlis shall not he construed to pre-
scnlt tiheni ftrom perltrilning operlations wshere an emer-
geiln. ;rises for the purpose of inxestigastion or instruc-
Iioin
IhlS II IlaigeC was further re ised ill negotiations bh substi-
tiitll) the , ord '"Inlphces'' ftlr "Supervisors'' in the first
sillltCtc Nies of tle CO11p1lN itcgitiItOs indicateC that
-irecintelt onl tIhis l;lIlgatIi e sas reacliedC oln it 3. 1975
\t that pint thile angug.e read s tollos:
I 1lll)! ces xctllded r'onlm tilh unit in Article 1. Section
1.cxcept for janito' wtchelltil, hall not perform the
iceilai ssork of ans member of the bhagaining unit.
his shall not e Colstrued to precrut them 'roitl per-
trliiiilig opertions ssheic an cemcrgcncN arises for the
purlpos of investigaliol ol instruclltion.
I here is no evidence o' urtlher ilegeotations or discussions
respectinig that provision.
O()n Jul 10(. 1975 the parties reached final agreement on
all of, the revisions for the agreement. But no tped docu-
ment then existed reflecting all of the changes. The com-
pans neg otiatr collated his notes on he agreed revisions
aid irranged or them to he tped and delivered to the
Ilion For atilicalion h its memblhership. In the typed revi-
sions the ssord "not" did not appear in the second sentence
oif section 3 of' article X so that that provision in that docu-
mient read as tIllows:
tmployees excluded from the unit in Article I. Section
I, except or janitor workmen, shall not perform the
regular work o)f an, member of' the bargaining unit.
This shall be construed to prevent them from perfiorm-
ing operations where an emergency arises for the pur-
pose of investigation or instruction.
This documentation of the revisions was then ratified bh the
union membership. On July 14. 1975, representatives of the
tinion and ('ompany signed the document.
2 Norman Graf. now union president but then a member of the union
negotiating teamrn testified in effect that the word "not" in the second sen-
ience was absent from the language considered. But he was not the chief ot
the union team and the weight of Ihe eilcnce indicates the word was in-
cluded
Subsequenls. a hooklet incorporating all the revisions.
inludineI g tile )ne ju1st quoted, plus tle unchangled p1oxl -
sions of tile first agreement as printed and distributed for
geleral use. t lat point no question 'as raised about
the ss ording of the second sentence of aticle X, .section 3.
In ()ctoher 1975, ii re' iewing the printed booklet n ,I
hired lalnt PIersonnel Manager Jhln ( lnlltnlens noted
Mi hen he cnsidered an ambiuity in the second sentence of
arlicle X. section 3. \fter conferring ith higher manage-
nient he contaicted Carl Rouse, then union president, and
also \Merle Arnold. then union ice president. nforming
each that the ord "not" had erroneousl been onlmitted
Iront the contract. Both agreed that an obvious error had
occurred. lowever. nothing was done to clarift the matter
during the balance of the second contract.
('. :'gi'otnlitr olhI/ 7/Third .1grcement
In the negotiations which resulted in the third collective-
bara;iin agreement in July 1977 the parties incorporated
their agreed upon revisions of the second agreement in a
tpewritten document. Ihese revisions were then presented
to. and ratified by. the union membership. Following this
representatives of the parties met. proofread the revisions.
initialled each page. and signed duplicate copies of the
document. These agreed upon revisions did not include an 3
revision of' sectioln 3 of article X. In ftict that provision was
not treated in the negotiations.
As with tile prior agreement. the ompany undertook to
collate the new revisions with the old unrevised provisions
into a printed booklet fr general distribution. Two or 3
weeks after agreement was reached on the third agreement.
but prior to the printing of the booklet. C('lemmens in a
conversationl with L:nion Presidentt Norman Graf and inter-
national representative Ra! Stader. stated that the typo-
graphical error in sectioln 3 f article X would be corrected
in the printed booklet. (irat said. "I wondered when you
were going to bring that up." According to Graf. whom I
credit. he also stated that Clemmens had better not change
anything that had been agreed to: that he had failed to
bring up that article in negotiations. which were over, and
that if he was going to bring it up he should have brought it
up then and not after negotiations were finished.
Around the end of October or the first of November 1977
the contract booklets were printed and delivered to the
plant offices. An office secretary informed Graf of this and
he picked up a bundle of 10 of the booklets that same day
for proofreading by union officials. During the next few
days G(raf completed his proofreading and noted that the
word "not" had been inserted in the second sentence of
section 3 of article X so that that section in the booklet read
as follows:
Employees excluded from the unit in Article I. Section
I. except for janitor- watchmen, shall not perform the
regular work of any member of the bargaining unit.
his shall not be construed to prevent them from per-
forming operations where an emergency arises for the
purpose of investigation or instruction.
This was the same language agreed to by the negotiators of
the second collective-bargaining agreement on July 3. 1975.
(I ()1[i-t NI(IN. IN('
U!pon discocring whli he considered to he an n;iccii-
rac, in the printed hooklet in the fori of lthe insertion ot
the word "not" ill the second sentence of section 3 of arlticle
X, Graf in the first part of' Novenlher. telephoned John
Allen. acting personnel manager of' the plant. telling him of
the claimed error in the booklet. Allen said he would check
into it. At Gratrs request he agreed not to distributi the
booklet. So far as the record shows thex remain udllistrih-
uted.
The ('oempan gave li) response to the ITnilonl' clainl of
inaccuracy until Januar\ 31. 1978. when M1analger of' I.ahor
Relations 'dward Ross wrote Ironm corporate heafquarters
in Milwaukee to international representa;ive Ra,, Stader.
with a copy to (;raf' as president of the I.ocal. eplailling
that the first contract contained no clause litil ting the per-
formance of'"bargaining unit work". that such a cla use wkas,
negotiated into the second contract and that through a tsp-
ing error the word "not" was omitted: and finall! that al-
though his notes reflected no discussion of the point during
negotiation of the third contract. he was sure the point \was
mentioned because the mistake was obvious. This explana-
tion amounts to a reassertion that the word "not" should be
included in the third contract as well as the printed booklet
thereof.
Not long after receiving the letter Stader. Gratf and an-
other union representative conferred with Plant Manager
Sheldon Strand. (raf asserted that the version in the
printed booklet was not what had been agreed upon and
that the subject w;as not discussed during the negotiations
of the third contract. He further asserted that if ans
changes were to be made they should be made in negotia-
tions, but neither party had the right to insert something
that was not agreed upon by both parties. Strand asked i'
he wanted the booklets reprinted or if he wanted a flyer put
in them or just what did he wish. Graf' indicated all he
needed was an acknowledgment in writing from the Com-
pany that the word "not" in the printed booklet was an
error so that he could post something on the bulletin board
for the information of employees. Strand indicated he
thought things could be worked out and he would get back
to Graf.
It was, however, not worked out on that basis. On Febru-
ary 23, 1978, Acting Personnel Manager Allen wrote to
Graf in a manner plainly indicating the controversy still
existed and suggesting that the Union submit it to arbitra-
tion. Graf informed Allen he did not agree with the Compa-
ny's position. On March 9. 1978. he wrote to the Company
reviewing the history of section 3 of article X and demand-
ing that the printed booklet be changed to conform with the
language of the prior contract. He further demanded that
the parties execute two copies of the complete agreement.
He concluded by stating that the matter was not appropri-
ate for arbitration; that unless the Company was willing to
immediately execute the agreed upon contract, charges
would be filed with the Board. The Company has not re-
sponded to the March 9 letter.
I). Discusionl
The gravamen of the complaint is that in mid-November
1977 the Company altered a term of the collective-hargain-
Iling algrlecilll ;ltd Illcrlc % tulillllic . ilx t.i;tl lgCd 1 cl ii .tl
Col0lillol o!Cli' I llS illl ot il c'illplt5 -Cs
B3ut tlhe (tiieFral (ISCc1l 1.ils l t11 sli II 1ail\ 11 ll. iIll
thile ellplo,lllClll i t ti Cli lpoc,.!)lIcc. S1ll i III, I'cold
sh'IlAs tile pertorllctice (orl iollpeltoll lti.nce) f1 t1lil \oil
h , nionulit pelsilit i el co intllC I lOe i i g tel llc 1in ll ill. l ,
befhtre. he oln recenlt chlg so,,in. il ld tlis i Il i
chinlge Ill the emplo nlenit of' the cilplose. 1 s li (oin Ollpil-
seetlO O' art icle o ils pritlltIn o' ie Lhl c-t ltF,
boiiklet and its lsisetllnc thatt I thlcl.s clrc Id I iil.li
tellt tnilstaike rllC i 1975. It has done Ioll/ ti ig lhl il
the ml;tter. No genleil dislrllitl 11111 lof il hooklelt h11s- l cerl
Ill.ie. No cotllllllllCtIll o f t he (' Oill lls l posltlll 11a,
hbeci alltinlpled to unit cnpllloc.e ()il thie toiitrlr\. the
printed booklet cntiai1ting the cll i hi ii . itllh ted tilst
to tunion offtticials tir appri xl. I h t Lioi d.ips -
proved ailld nothing further his beei donic. W 'hateXcr its
real terms are. the colirtact is susceptible of ch;ligec ni h
the mutual assent of the parties. It is possible for olce pIlIr
to) itate an agreeent.lel It is not possible lor tIl ;Igl''ellticiI
to be unilalterall, altered. I ind. theretfre. that not orl hi1
the ('onipans not altered a term ;andlt condition ol crnpoll -
meit as alleged. but that It has not acted unilatcrll
Instead of a unilateral change in a teri and coiidition tl
emploinelit. this recoid rcals a presenlt dlisalg-ieemlt be-
tween the parties as to whether "not" should be Hticlutided I
section 3 of article X. But that disagreenenit has nt ;tl;lai,
existed. The weight of credible evidenlce shows that te lail-
guage on which thes reached agreemen min 1975 included
"nol" and that its ommission from the draflt rex isions signed
at that time was an inadvertent error in i[pin. Fromn theni
until the present disagreement the parties lied xid th the
mistake unchanged. In the 1977 negotiations the maltter
was not even discussed. It can he argued from tis that the
parties therehb inferentials agreed on the pre-exisitinig al-
beit erroneous, language. It seems to me more reasonlbhle to
conclude that through mere neglect the pairties left the pre-
vious mistake undisturbed.
In these circumstances. I find that Respondent's attempt
to correct the error in typing inadvertentl, made 2 ears
before is not a violation of the Act. In pache Poider (ort-
pun,. 223 NLRB 191 (1976) the Board observed "that re-
scission fr unilateral mistake is. for obvious reasons a
carefulls guarded remedy reserved fior those instances
where the mistake is so obvious as to put the other part on
notice of an error." I find that is the situation here. he
mistake is obvious. The Company has been careful to notit'
the Union of the error both before and after printiig the
most recent contract booklet and has taken no further ac-
tion. In my view there has been no violation of the Act and
the complaint should be dismissed.
Cot ( I t SitNS t)I Lx
1. Respondent is an emploier within the meanine of Sec-
tion 2(2) of the Act and is engaged in commnerce within the
meaning of Section 2(61 and i(7 of the Act.
2. The Uinion is a labor orgallniltion ithin the nicanlng
of Section 2(i) o' the Act.
I I
I)ECISIONS 01: NATIONAL LABOR RELATIONS BOAR[)
3. Respondent did not in mid-November 1977 violate
Section 8(a)(5) and (1) of the Act by inserting the word
"not" in section 3 of article X of its printing of the collec-
tive-bargaining agreement between the parties.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act. I hereby issue the following recommended:
ORDER'
The complaint is dismissed in its entirety.
'In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommend Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings. conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes.
148