Ibew Local 412

National Labor Relations Board - Board Decisions

Feb 5, 1987

282 N.L.R.B. 1068 (N.L.R.B. 1987)

1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IBEW Local 412 and Kansas City Power & Light
Company
IBEW Local 1613 and Kansas City Power & Light
Company
IBEW . Local 1464 and Kansas City Power & Light
Company. Cases 17-CB-2924, 17-CB-2925,
and 17-CB-2939
5 February 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 9 September 1986 Administrative Law Judge
Richard L. Denison issued the attached decision.
The Respondents filed exceptions and a supporting
brief, and the Charging Party filed a brief in sup-
port of the decision.
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, and
conclusions as modified and to adopt the recom-
mended Order as modified.'
We agree with the judge that employee pension
benefits are a mandatory subject of bargaining and
that the parties here did not waive their right to
bargain on this issue. In addition to the factors the
judge discussed in concluding there was no waiver,
we note that the Trust Agreement establishing the
pension plan specifically authorizes the Employer
and the Unions to modify or terminate the Trust
Agreement at any time. Thus, section 1.07 defines
the Trust Agreement as "this Agreement and any
amendments or modifications thereof'; section 4.03
provides that "The cost of any future improve-
ments and supplements agreed to in subsequent col-
lective bargaining negotiations shall be determined
by actuarial studies"; section 5.01 states that "The
Trust may be terminated at any time by the unani-
mous consent of the Employer and the Unions";
and section 7.01 states that "Subject to the limita-
tions herein set forth, this Trust Agreement may be
modified, altered or amended at any time by joint
action of the Employer and the Unions." Far from
establishing a waiver, these provisions show that
the parties reserved the right to bargain over
changes in pension benefits.
In ruling on the Respondents' contention that the
Labor Management Relations Act (LMRA) and
1 We have modified the judge's recommended Order to add the stand-
ard language requiring the Respondents to embody any agreement
reached in writing.
the Employee Retirement Income Security Act
(ERISA) require pension benefits under this Trust
Agreement to be controlled by the Trustees rather
than the collective-bargaining process, the judge
stated that he was not empowered to resolve any
conflicts among Federal Statutes as such questions
are reserved for the courts. We note, however, that
the Respondents have not shown there is any con-
flict between ' the provisions of the National Labor
Relations Act and the requirements of LMRA and
ERISA.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents, IBEW Local 412, IBEW Local 1613,
and IBEW Local 1464, each of Kansas City, Mis-
souri, their officers, agents, and representatives,
shall take the action set forth in the Order as modi-
fied.
Substitute the following for paragraph 2(a).
"(a) Each of the Respondents shall notify Kansas
City Power & Light Company that it will, on re-
quest, meet and bargain with regard to changes in
the type of pension plan in effect between the Em-
ployer and the Unions and concerning future pen-
sion fund benefit levels and, if an agreement is
reached, embody such understanding in a signed
written agreement."
Richard Auslander, Esq., for the General Counsel.
Michael C Arnold, Esq. (Yonke, Shackelford & Arnold,
PC), of Kansas City, Missouri, for the Respondent.
Stanley E. Craven, Esq. (Spencer, Fane, Britt & Browne),
of Kansas City , Missouri , for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD L . DENISON, Administrative Law Judge.
This consolidated proceeding was heard at Kansas City,
Kansas, on 22 and 23 July 1985. The amended consoli-
dated complaint, issued 14 March 1985 , alleges that the
Respondents, IBEW Local 412, IBEW Local 1613, and
IBEW Local 1464, violated Section 8(b)(3) and (d) of the
Act by failing and refusing to negotiate with the Charg-
ing Party, Kansas City Power & Light Company, con-
cerning changes in the type of pension fund plan in
effect between the Charging Party and the Respondents,
and about future pension fund benefit levels.
The Respondents ' answer denies the allegations of
unfair labor practices alleged in the complaint. On the
entire record in this case, including my consideration of
the briefs and some 1100 pages of exhibits , and observa-
tion of the witnesses , I make the following
282 NLRB No. 153
ELECTRICAL WORKERS IBEW LOCAL 412 (KANSAS CITY POWER) 1069
FINDINGS OF FACT'-
I. JURISDICTION AND LABOR ORGANIZATION
Based on the allegations in paragraphs 2 and 3 of the
complaint, admitted in the Respondents' answer, I find,
respectively, that the Charging Party is, and has been at
all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act, and that the Respondents, each, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. AGENCY STATUS
As alleged in paragraph 4 of the complaint , and admit-
ted in the Respondents ' answer, I find that the following
named persons occupied the positions set forth opposite
their respective names, and have been and are now,
agents of the Respondents acting on their behalf within
the meaning of Section 2(13) of the Act: George A.
Svetlecic -business manager and chief negotiator for
Local 412; Joseph E. Evans-business manager and chief
negotiator for Local 1613; and Charles J. Yaeger-busi-
ness manager and chief negotiator for Local 1464.
III. THE UNFAIR LABOR PRACTICES
The,Employer, the Charging Party, is a public utility
engaged in the generation , distribution , and sale of elec-
trical power . Its principal place of business is Kansas
City, Missouri. The Company's approximately 770 pro-
duction department employees, "Unit 1," have been rep-
resented by Respondent Local 412 since its certification
about 5 August 1940.1 The, Employer's approximately
475 clerical and' technical employees, "Unit 2," have
been- represented by Local 1613 since its certification
about 23 June 1949.2 The Charging Party's approximate-
The unit description for unit 1 is-
All of the Employer 's non-supervisory employees in its System
Power Operations Division including Chemist Assistant , Process At-
tendant, Laboratory Assistant, Tool Room Attendant, Scrubber At-
tendant, Clerk, Draftsman, Apprentice Electrician , Journeyman
Electrician, Watch Electrician, Fireman, Head Fireman, Janitor,
Maintenance Helper, Apprentice Machinist , Journeyman Machinist,
Apprentice Mechanic, Journeyman Mechanic, Head Turbine Opera-
tor, Control Operator, Plant Equipment Operator, Switchboard Op-
erator, Scrubber Operator , Assistant Switchboard Operator, Fuel
Equipment Operator, Assistant Fuel Equipment Operator , Turbine
Operator, Water Softener Operator (Grand), Auxiliary Operator,
Relief Operator, Apprentice Painter, Plant Helper, Painter, Appren-
tice Pipe Coverer, Journeyman Pipe Coverer, Relief . Man, Fuel
Relief Man, Storekeeper, Assistant Storekeeper, Storeroom Helper,
Technician, Working Foreman Technician, Timekeeper, Truck
Driver, Apprentice Welder, Watchman and Journeyman Welder, ex-
cluding professional and confidential employees therein.
2 The unit description for unit 2 is
All of the non -supervisory office and clerical employees of the
Employer, including Home Service Advisor, Right-of-Way Agent,
Analyst, Display Artist, Blue Printer , Unit Bookkeeper, Chief of
Party, Accounting Clerk, Data Clerk, Cashier Clerk, Chief File
Clerk, Chief Clerk, Fuels Clerk ; Collection Clerk, Customer Inter-
view Representative , Engineering Records Clerk, Dispatching Clerk,
General Clerk, Industrial Service Clerk , Inventory Clerk, Junior
Clerk, Junior Purchasing & Traffic Clerk, Mail Clerk, Customer
Communications Representative , Operating Center Clerk, Ledger
Clerk, Reports Clerk, Meter Reading Clerk, Record Room Clerk,
Senior Clerk , Real Estate Clerk, Special Accounts & Control Clerk,
Clerk-Stenographer, Senior Purchasing & Traffic Clerk, Internal
Services Clerk, Chief Internal Services Clerk, Unit Clerk , Senior
ly 670"outside physical employees, "Unit 3," have been
represented by Local 1464 since its recognition in 1948
or 1949.3 Since about the dates set forth above, which
mark the advent of their status as exclusive collective-
bargaining representative for the respective units they
represent, each of the Respondents has had an unbroken
succession ' of collective-bargaining agreements with the
Charging Party. The most recent agreements with Local
412 and Local 1613 each expired on 30 June 1984. The
Company's agreement with Local 1464 covering unit 3
'employees expired on 30 June 1982 , but was extended
through 4 October 1982. At that point, a final company
proposal was presented to Local 1464, which was re-
fused. Thus, on 25 ,October 1982, the Company imple-
mented a major portion of its final offer, which consisted
of its work rules and procedures. Thereafter, although
the Company and Local 1464 met from,, time to time in
an effort to reach an agreement, no further comprehen-
sive bargaining occurred until the commencement of the
current negotiations.
The Charging Party first, established a pension plan for
its employees on 1 October 1931. From then until 1 July
1956, in addition to the Employer's contribution to the
plan, the employees shared a portion of the costs. There-
after , until late 1966, the Company alone made the con-
tributions required to finance the cost of the plan. How-
ever , the 1966 collective-bargaining agreement between
the Company and the Unions provided for the establish-
ment of a trust agreement and, on 1 January 1967, the
parties entered into an agreement and declaration of trust
whereby retirement benefits for employees represented
by the Unions would henceforth be administered jointly
by six trustees, three designated by the Company and
one designated by each of the three Respondents. Since
that time , the day-to-day administration of the plan, in-
cluding the formal implementation of benefit changes,
has been accomplished by the trustees. The company
trustees are Lou Rasmussen , executive vice president and
chief financial officer; Bill Miller, vice president of ' ad-
ministration ; and J. W. Field, director of employee com-
pensation . The trustees for each of the Respondents are'
George Svetlecic (Local 412), Joseph, Evans (Local
1613), and Charles Yaeger (Local 1464). Each of the
Transmission & Distribution Clerk, Chief Transmission & Distribu-
tion Clerk, Transmission & Distribution Clerk, Operating Records
Clerk, Collector, Stores Clerk, Senior Stores Clerk, Distribution Dis-
patcher, Materials Dispatcher , Drafting & Mapping Technician, As-
sistant , Drafting & Mapping Technician, Substation Estimatoi, Chief
Substation Estimator, Working Meter Reading Foreman , Instrument
Man, Chief Janitor, Janitor, Meter Reader (Auto), Meter Reader
(Walking), Chief Telephone Operator, Console Operator, Calculator
Operator, Senior Punch Machine Operator, Telephone Operator,
Print Shop Operator, Data Processing Equipment Operator, System
Construction Planner, Distribution Construction Planner, Customer
Service Representative , Service Representative, Rodman, Stenogra-
pher, General Stores Storekeeper, Assistant Radio Technician, Radio
Technician, Teller, General Tester, Instrument Tester, Statement
Typist, Building Utility Man, Chief Analyst, exclusive of such em-
ployees in the Production Department and exclusive of all confiden-
tial, professional and administrative employees.
8 The unit description for unit 3 is.
All non-supervisory physical employees exclusive of such physical
employees in the Production Department
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trustees for the Respondents is the business manager and
chief negotiator for his respective local union.
As the time for the opening of the 1984 contract nego-
tiations neared, the Charging Party decided to seek cer-
tain changes relating to the pension plan. At the outset, it
should be noted that the format for the negotiations was
for the Company to bargain separately at separate meet-
ings with each of the three local unions. However, after
the initial sessions, representatives of each of the local
unions were present in an observer capacity during bar-
gaining by its sister local. Accordingly, on 30 April 1984,
90 days before the expiration of each of the labor con-
tracts, the Company met with each of the Respondents
for the purpose,of exchanging written proposals. At this
time, the Charging Party gave the required notice of its
intention to terminate the contract on the expiration date,
and seek changes in a subsequent agreement, as required
by Section 8(d)(1) of the Act. Accompanying the Com-
pany's written proposal was a list of areas in which the
Employer sought bargaining for the purpose of making
changes or departures from the existing agreement.
Among those topics was pension benefits.
What occurred 'thereafter during the bargaining ses-
sions can be succinctly summarized because there is no
dispute between the parties concerning the material facts,
and because the bargaining concerning the pension plan
with each of the three local unions followed almost pre-
cisely the same pattern. Thus, beginning in mid-May, the
parties met weekly for negotiations.
With respect to the negotiations between the Charging
Party and Respondent Local 412, the Company's bar-
gaining team was composed of Vice President of Admin-
istration Bill Miller, Manager of Labor Relations Larry
Dolci, Director of Labor Relations Robert Robinson,
Vice President of System Power Operations Mike Evans,
and Senior Director of Generating Facilities Charlie
Trask. The Union was represented by its spokesperson
George Svetlecic, President of Local 412 John Meyer,
and seven committee persons. At the 5 June 1984 meet-
ing, when the subject of the pension plan arose, Svetlecic
stated that the Union did not want to negotiate concern-
ing the level of pension benefits. At the 12 June meeting,
Svetlecic stated that the Union was not prepared to dis-
cuss the level of pension benefits. At the next meeting on
19 June between the same negotiators, in the presence of
the Federal mediator and the business managers from
Locals 1613 and 1464, the Company gave Local 412 a
written proposal containing three options for resolving
the pension issue. After reading the document, Svetlecic
asked a few questions and then stated that a discussion of
the level of pension benefits was not an appropriate sub-
ject to be handled at the negotiating table, and that the
Union would not discuss the level of benefits but would
only discuss the level of the Company's contributions.
This remained the Union's bargaining position at the re-
maining meetings with the Company that took place on
25, 27, and 30 June, 7 ,September, 13 November, and 6
December. This position, expressed by Local 412
throughout its negotiations in the presence of the busi-
ness managers and chief negotiators of Local 1613 and
Local 1464, became, in essence, the consolidated bargain-
ing position of all three Respondents.' It was reiterated in
virtually chapter and verse form during the Company's
meetings with Local 1613, that took place on 6, 14, and
21 June, 2 July, 4 September, and 4 December.4 Like-
wise, the same position was repeated in bargaining ses-
sions with Local 1464 on 20 June, 3 July, 4 September,
and 5 December 1984.5
The General Counsel contends that the Respondents'
actions in bargaining concerning the pension plan issue
constitute a blatant violation of their responsibilities
under Section 8(d) of the Act, thereby violating Section
8(b)(3). The Respondents maintain that their conduct at
the bargaining table concerning the pension plan does
not constitute a refusal to bargain in violation of the Act,
although it candidly admits that it refused to discuss the
changes in the pension plan sought by the Charging
Party. The Respondents argue that the changes sought in
the pension plan by, the Charging Party are not mandato-
ry subjects of bargaining because, they maintain, under
the trust agreement these matters are, left to the exclusive
control of the trustees. The Respondents further maintain
that Section 186(c)(5) of the Labor Management Rela-
tions Act and the Employment Retirement Income Secu-
rity Act of 1974, otherwise known as ERISA, are con-
trolling, and these statutes vest complete control over
the administration of the pension fund and the trustees,
thereby, in effect, insulating the Respondents from a
finding of a refusal to bargain under the NLRA. -
I am unable to find any precedent that rules squarely
on the alleged conflict of statutes alluded to by the Re-
spondents. Furthermore, this administrative law judge is
not empowered to make or change Federal labor policy,
or decide questions involving conflicts between Federal
statutes, when and if such conflicts exist. In the area of
the law in which I operate, such questions are reserved
for the Board and the courts. Furthermore, I am obligat-
ed to rule in accordance with established Board and
court precedent. For many years the Board, with specif-
ic Supreme Court approval, has held that pension and re-
tirement benefits, as a part of wages and terms and con-
ditions of employment, are mandatory subjects for col-
lective bargaining. 6 This holding has been " reiterated
over the years in many cases, many of which were
brought by unions which, on seeking to bargain in this
area, were met with various degrees of resistance by em-
ployers. Thus, for a major union to urge that this long-
established precedent be reversed, is, to say the least,
highly unusual, because its concomitant effect on negoti-
ations nationwide would be devastating. It is likewise
well settled under the Act that a right created by statute
can be waived only by conduct constituting a clear and
unmistakable waiver. The record as a whole shows 'no
such waiver. Indeed, the introductory clauses to the trust
4 Joseph Evans, chief negotiator for Local 1464, admitted that he re-
fused to discuss either the level of pension benefits or the type of plan
that might be appropriate with the Company in negotiations, on the
ground that these matters were the sole province of the trustees of the
plan
5 Local 1464's chief negotiator, Charles Yaeger, admitted he refused to
discuss pension benefits, and that his refusal to negotiate was based on his
view that it invaded the duties of the trustees.
6 Allied Chemical Workers Local 'l v. Pittsburgh Plate Glass Co., 404
U S. 157 (1971); Baltimore News American, 230 NLRB 216 (1977)
ELECTRICAL WORKERS IBEW LOCAL 412 (KANSAS CITY POWER) 1071
agreement itself specify that the trust fund is established
,in accordance with the collective-bargaining agreement.
Also, the trust agreement empowers the trustees to
amend and modify the pension plan from time to time,
provided that their actions do not violate any provision
of the collective-bargaining agreement between the Em-
ployer and one', or more of the 'Unions. Finally, the labor
relations history between the Unions and the Company
clearly shows that in previous negotiations the parties
did in fact negotiate over the issue of pension benefits,
and on various occasions reached agreement concerning
issues relating to this subject. In sum, I find that there is
nothing in the circumstances presented in this case that
would justify or mandate my departure from the govern-
ing Board precedents that have stood for so long as a
keystone of the law of collective bargaining under the
Act. I therefore find, in accordance with those, prece-
dents, that the Respondents have violated Section 8(d)
and Section 8(b)(3) of the Act, as alleged in the com-
plaint.
CONCLUSIONS OF LAW
1. Kansas City Power & Light Company, the Charg-
ing Party, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. IBEW Local 412, IBEW Local 1613, and IBEW
Local 1464, each, are labor organizations within the
meaning of Section 2(5) of the Act.
3. IBEW Local 412, at all times material, has been,
and is, the exclusive collective-bargaining representative
of the employees in unit 1 , as more completely described
in an earlier portion of this decision.
4. IBEW Local 1613, at all times material, has been,
and is, the exclusive collective-bargaining representative
of the employees in unit 2, as more completely described
in an earlier portion of this decision.
5. IBEW Local 1464, at all times material, has been,
and is, the exclusive collective-bargaining representative
of the employees in unit 3, as more completely described
in an earlier portion of this decision.
6. By failing and refusing to negotiate with the Charg-
ing Party concerning changes in the type of pension fund
plan in effect between the Charging Party and the Re-
spondents, and concerning future pension fund benefit
levels, the Respondents have each engaged in unfair
labor practices within the meaning of Section 8(d) and
Section 8(b)(3) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 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-
ed7
ORDER
The Respondents, IBEW Local 412, IBEW Local
1613, and IBEW Local 1464, their officers, agents, and
representatives, each, shall
1. Cease and desist from
(a) Refusing to bargain with Kansas City Power &
Light Company on behalf of the respective collective-
bargaining units they 'represent, by failing and refusing to
discuss and negotiate with the Employer concerning
changes in the type of pension plan in effect between the
Employer and the Unions, and about future pension fund
benefit levels.
(b) In any like or related manner refusing to bargain
with Kansas City Power & Light Company.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Each of the Respondents shall notify Kansas City
Power & Light Company that it will, on request, meet
and bargain with regard to changes in the type of pen-
sion plan in effect between the Employer and the
Unions, and concerning future pension fund benefit
levels.
(b) Each of the Respondents shall post at its business
office and meeting places, within its territorial jurisdic-
tion, copies' of the attached notice marked "Appendix.""
Copies of the notice, on forms provided by the, Regional
Director for Region 17, after having been signed by each
of the Respondent's authorized representative shall be
posted by each of the Respondents immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondents to ensure that the notices are
not altered, defaced, or covered by any other material.
(c) Promptly after the receipt of copies of the notice
from the Regional Director, return to him, or her, signed
copies for posting by Kansas City Power & Light Com-
pany, if willing, at its places of business, including all
places where notices to employees are customarily
posted.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
THE REMEDY
Having found that- the Respondents, each, have en-
gaged in certain unfair labor practices, I find it necessary
to order that the Respondents, each, cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of theAct.
7 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
B 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 "
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
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 or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Kansas City
Power & Light Company on behalf of the respective
units of employees which we represent, by refusing to
discuss and negotiate concerning proposed changes in
the type of pension plan in effect between the Company
and the Unions, and with respect of future pension fund
benefit levels.
WE WILL NOT in any like or related manner refuse to
bargain with Kansas City Power & Light Company.
WE WILL notify Kansas City Power & Light Compa-
ny that we will, on request, meet and bargain with
regard to proposed changes in the type of pension plan
in effect between the Employer and the Unions, and con-
cerning future pension fund benefit levels, and if an
agreement is reached, embody such understanding in a
written signed agreement.
IBEW LOCAL 412
IBEW LOCAL 1613
IBEW LOCAL 1464