IBEW Local No. 12

National Labor Relations Board - Board Decisions

Sep 18, 1980

252 N.L.R.B. 245 (N.L.R.B. 1980)

IBEW LOCAL NO. 12
International Brotherhood of Electricau Workers,
Local No. 12 (Commonwealth Electric Compa-
ny) and Raymond Bosche. Case 27-CB-1218
September 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On April 2, 1980, Administrative Law Judge
Roger B. Holmes issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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, find-
ings, 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
DECISION
ROGER B. HOLMES, Administrative Law Judge: The
unfair labor practice charge in this proceeding was filed
on May 1, 1978, by Raymond Bosche, an individual.
The Regional Director for Region 27 of the National
Labor Relations Board, herein called the Board, who
was acting on behalf of the General Counsel of the
Board, issued on June 23, 1978, a complaint and notice
of hearing against International Brotherhood of Electri-
cal Workers, Local No. 12, herein called Respondent.
The General Counsel's complaint alleges that Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(b)(IXA) of the National Labor Re-
lations Act, herein called the Act.
In summary, the General Counsel contends: (1) that
Respondent levied fines on or about March 6, 1978,
against eight members of Respondent, who had worked
for Commonwealth Electric Company, herein called the
Employer, and (2) the strike and the picketing by Re-
spondent since on or about July 18, 1977, were in sup-
port of Respondent's insistence to impasse that the Em-
ployer agree to a nonmandatory subject of bargaining;
i.e., the National Electrical Industry Fund. (See G.C.
Exh. (c) for the specific allegations made by the Gener-
al Counsel and see the arguments set forth in the General
Counsel's brief).
252 NLRB No. 40
Respondent filed an answer to the General Counsel's
complaint and denied the commission of the alleged
unfair labor practices. (See G.C. Exh. (e).)
In summary, Respondent contends that it did not insist
to impasse on a nonmandatory subject of bargaining with
the Employer. The attorney for Respondent stated in his
brief: "There is no dispute that the industry fund is a
nonmandatory subject of bargaining but it may be pro-
posed, even though it cannot be insisted upon as a condi-
tion of entering into a collective bargaining agreement."
Respondent contends that it was agreeable to negotiating
a separate agreement with the Employer, and that it did
not condition agreement on inclusion of industry fund
payments. Respondent further urges that the eight mem-
bers were fined for the reasons set forth in Joint Exhibit
43.
The hearing was held before me on October 26, 1979,
at Denver, Colorado. The time for filing briefs was ex-
tended to December 17, 1979. Both the counsel for the
General Counsel and the attorney for Respondent filed
briefs.
FINDINGS OF FACT
i. THE EMPLOYER
The Employer is a Delaware corporation with an
office and place of business located at Pueblo, Colorado,
where it is engaged in the electrical construction busi-
ness.
In the course and conduct of its business operations
within the State of Colorado, the Employer annually
purchases and receives goods and materials valued in
excess of $50,000 directly from outside the State of Colo-
rado.
Upon the foregoing facts and the entire record herein,
I find that the Employer has been, at all times material
herein, an employer engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section
2(6) and (7) of the Act.
11. THE UNION
It was admitted in the pleadings that Respondent has
been, at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act. Based
upon the pleadings, and the entire record herein, I find
that fact to be so.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Witnesses
In alphabetical order by their last names, the following
three persons appeared as witnesses at the hearing in this
proceeding:
Lawrence C. Farnan has been the district International
vice president of the International Brotherhood of Elec-
trical Workers since April 1, 1976.
Robert D. Grinstead has been for the past 17 years the
business manager and the financial secretary of Respond-
ent.
William Schwartzkopf has been the vice president and
the general counsel of the Employer since July 1977.
245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to that time, he held the position of the general
counsel of the Employer.
B. Credibility Resolutions
In making the findings of fact herein, I have based the
findings on portions of the testimony of each one of the
three witnesses who testified in this proceeding. In addi-
tion, I have relied on the extensive amount of documen-
tary evidence introduced by the parties.
Of course, in evaluating the testimony, I have given
consideration to the positions occupied by the witnesses,
and their potential interests in the outcome of the litiga-
tion. There are some minor variations in the testimony,
but these are not truly significant in resolving the issues
presented by the pleadings. For example, the recitals re-
garding the conversation between Schwartzkopf and
Farnan in September 1977 varied to a minor degree, but
those accounts are not directly in conflict. I will set forth
herein the facts which appear to me to be more credible.
Not surprisingly, the witnesses view the facts from dif-
ferent perspectives, and they would draw different con-
clusions from the facts as they see them. For example,
the question of whether the Employer and Respondent
were bound to the Colorado Statewide Line Agreement
is one issue which separated the parties. Thus, I am not
suggesting that there are no factual issues between the
parties. However, as indicated above, I found the testi-
mony by all three witnesses to be believable. Therefore,
I have relied upon portions of the testimony from each
one of them. Additionally, the documentary evidence of-
fered at the hearing forms the basis for numerous find-
ings of fact.
C. Joint Exhibit I and Joint Exhibit 42
Paragraph V of the General Counsel's complaint was
admitted to be true. It states as follows:
At all times material herein, the Respondent has
been the representative for the purposes of collec-
tive bargaining of a unit of outside electrical work-
ers employed by the Employer, which is appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act, and by
virtue of Section 9(a) of the Act the Respondent
has been at all times material, and is now, the exclu-
sive collective bargaining representative of all said
employees.
Introduced into evidence as Joint Exhibit I was a doc-
ument which is entitled "Letter of Assent-B." That doc-
ument is between the Employer and Local 969 of the
IBEW. The document provides, among other things, that
the Employer will comply with all of the terms and con-
ditions of employment contained in the Colorado
Statewide Line Agreement between the Western Line
Constructors Chapter, Inc., and Local 969 of the IBEW.
Joint Exhibit I is dated April 26, 1976, and it provides
that it would remain in effect until October 31, 1976,
which is described as the "termination date."
A copy of the Colorado Statewide Line Agreement
was introduced into evidence as Joint Exhibit 42. The
document states that it is an agreement between the
Western Line Constructors Chapter, Inc., N.E.C.A. and
Local Unions No. 12, 111, 113, and 969 of the IBEW.
The document further states: "It shall apply to all firms
who sign a letter of assent to be bound by this agree-
ment." (See J. Exh. 42.) The effective dates of Joint Ex-
hibit 42 are contained in section 1.1 of article 1 of the
document. It provides: "This Agreement, amended, shall
take effect on November 1, 1976, and shall remain in
effect through October 31, 1977. It shall remain in effect
from year to year thereafter from November 1, through
October 31, of any year unless changed or terminated in
the way provided herein."
The explanation why there was no Letter of Assent-B
between the Employer and Respondent in this case was
stated in a letter from Business Manager Grinstead to the
International president of IBEW, as follows: "By virtue
of this Company being signatory to the Colorado
Statewide Line Agreements by another Colorado Local,
we did not feel it was necessary to further bind them to
the same Statewide agreement."
While Vice President and General Counsel Schwartz-
kopf expressed the opinion at the hearing that the Em-
ployer was bound to the Colorado Statewide Line
Agreement with Respondent herein, he acknowledged
that an extensive search of the Employer's files revealed
no letter of assent dated after Joint Exhibit 1. He further
acknowledged that the Employer had not signed Joint
Exhibit 42.
Grinstead also stated at the hearing that he had
checked Respondent's records, and that Joint Exhibit 1
was the only document which Respondent had. Grin-
stead further stated that he had also made inquiries with
the other three local unions of the IBEW in Colorado
and also with the International office of the IBEW, and
that no agreement was produced which had been signed
by the Employer.
The main difference between Letter of Assent-B and
Letter of Assent-A was explained by Vice President
Farnan as being one which related to the effective dates
of the document. Letter of Assent-A is an ongoing
agreement, whereas Letter of Assent-B has a fixed termi-
nation date.
The Employer had been involved in the construction
of a transmission line in Colorado, which was described
as the Bayfield Pagosa Project. The work was conducted
during July, August, September, October, and Novem-
ber, 1976. The project was shut down on December 10,
1976, by agreement with the United States Forest Serv-
ice and the Bureau of Land Management, which agencies
managed or owned the lands on which the Employer
was primarily working.
D. The Employer Withdraws from the Western Line
Constructors Chapter of N.E. C.A.
By letter dated January 27, 1977, from the president of
the Employer to Respondent, the Employer advised Re-
spondent that it was resigning from the Western Line
Constructors Chapter of the National Electrical Contrac-
tors Association. A copy of the letter was introduced
into evidence as Joint Exhibit 2. In pertinent part, it pro-
vides:
246
IBEW LOCAL NO. 12
We enclose a copy of our letter of this date resign-
ing from the local chapter of the National Electrical
Contractors Association which has an agreement
with your local union. As a result of such with-
drawal such local chapter is henceforth without au-
thority to act for Commonwealth Electric Compa-
ny in any matter.
This withdrawal in no way affects any existing
agreement with your local union. Commonwealth
Electric Company will continue to recognize your
local union as the exclusive bargaining representa-
tive of its employees covered by the agreement.
Commonwealth Electric Company will not be
bound by any future agreements or any amendment
to existing agreements negotiated by such local
chapter.
Schwartzkopf explained the reason for the withdrawal
from the Western Line Constructors Chapter as being
the creation of a National Electrical Industry Fund by
N.E.C.A. and IBEW. Schwartzkopf stated that the Em-
ployer withdrew from that organization because "we
were completely opposed to the fund and as a result, we
withdrew from N.E.C.A." Schwartzkopf explained that
contributions to the National Electrical Industry Fund
would have increased monetary costs to the Employer.
The Employer is a plaintiff in a lawsuit against N.E.C.A.
regarding that fund.
E. The Letter to Respondentfrom the IBEW
International President
Introduced into evidence as Joint Exhibit 4 was a
copy of a letter dated March 3, 1977, to Respondent
from Charles H. Pillard, International president of
IBEW. In pertinent part, it stated:
We have received numerous copies of letters
from Commonwealth Electric Company to IBEW
Local Unions advising that the Commonwealth
Electric Company is terminating Letters of Assent
to the Local Union Construction Agreements.
Even though our records indicate that we have
no current Assent in our file between your Local
Union and Commonwealth Electric Company, we
do have a copy of a letter dated January 27, 1977,
from Commonwealth Electric Company sent to
Local Union 12, IBEW, advising that they have
withdrawn from NECA, therefore, no longer rec-
ognizing that organization as their collective bar-
gaining representative. However, they will continue
to recognize your Local as the exclusive bargaining
representative for its employees under the existing
agreement.
Apparently, this employer is anticipating work in
your area or is performing work in your area and
you have not submitted the Assent to this office for
processing.
The Letter of Assent "A" (Form 302) requires
the employer to give written notice to the Chapter
and the Local Union at least 150 days prior to the
then anniversary date of the current approved labor
agreement.
The Letter of Assent "B" (Form 303) differs
from the Letter of Assent "A" wherein it contains a
definite termination date. Where the employer ter-
minates its agreement (Letter of Assent), it has no
agreement with the Local Union or the IBEW.
The Commonwealth Electric Company states in
its letters that it is their intent to continue to abide
by the Local Union agreement with one exception,
the Industry Fund payments that go to NECA, and
states that, "Industry Funds are clearly, under the
law, a voluntary subject of bargaining."
This is true, but has no bearing on the legality of
the IBEW-NECA Agreement providing for an In-
dustry Fund. The IBEW and NECA mutually
agreed to this Industry Fund. All employers signa-
tory to Letters of Assent are expected to abide by
the agreement in its entirety and no employer may
unilaterally change the collective bargaining agree-
ment.
Where Commonwealth Electric Company termi-
nates agreements (Letters of Assent), it has no
agreement with the Local Union or the IBEW.
IBEW Local Unions are not, of course, under any
obligation to furnish men to any contractor without
an agreement.
The Local Union must, if requested by Common-
wealth Electric Company, enter into separate nego-
tiations with the Commonwealth Electric Company
and must, in accordance with Section 8(bX3) of the
National Labor Relations Act, as amended, bargain
in good faith. The Local Union must bargain for a
complete agreement and may not simply insist, on a
"take-it-or-leave-it" basis, that the Commonwealth
Electric Company accept all of the terms of the
Local's agreement with the Chapter or sign a new
Letter of Assent. The Local may, however, request
and bargain for all items the Local Union has tried
to secure from NECA or other electrical contrac-
tors as proposed by the members of the Local
Union, such as wages, a shorter workday, double-
time, paid holidays, vacation, health and welfare,
pension, travel time, general foreman ratio, etc.
Local Unions may negotiate for better terms and
conditions; however, they need not settle for lesser
terms and conditions.
F. Respondent's Letter Dated March 8, 1977, to the
Employer
Introduced into evidence as Joint Exhibit 6 was a
copy of a letter dated March 8, 1977, from Grinstead to
the Employer. In pertinent part, it stated:
In reply to your letter of January 27, 1977, and
the enclosed copy of your Company's resignation
from N.E.C.A., please find enclosed Letters of
Assent "B" for the various Colorado Line Agree-
ments.
As you are probably aware, the Colorado Line
Agreements do cover the entire State, and four
Local Unions are parties to the agreements; Locals
12, 111, 113 and 969.
247
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since your letter states in part, "This withdrawal,
(from N.E.C.A.), in no way affects any existing
agreement with your Local Union(s)" we will ap-
preciate the prompt return of the enclosed Letters
of Assent B. We do anticipate additional amend-
ments to these agreements during the specified dates
in the Letters of Assent B, and are therefore curious
as to the last sentence in your letter.
Please advise us if you choose not to sign the en-
closed Letters of Assent, because without these,
your Company is not signatory to the I.B.E.W. in
Colorado for Line Construction work.
G. The Employer's Response
The Employer responded to Joint Exhibit 6 by a letter
dated March 14, 1977. (See Jt. Exh. 8.) Enclosed with
Joint Exhibit 8 were copies of "Letter of Assent-B" As
indicated in Joint Exhibit 6, Grinstead had previously
signed those documents. Paul C. Schorr III, as the presi-
dent of the Employer, executed the documents on behalf
of the Employer. However, at the direction of Schwartz-
kopf, a sentence was added to the documents above the
signature of Grinstead. The addition to the documents
stated, "Except that amendments or provisions providing
for payments to the National Electrical Industry Fund or
any other equivalent or similar fund shall not apply to
the undersigned employer." (See Jt. Exh. 9.)
The foregoing prompted still another letter from Grin-
stead to the Employer. A copy of that document dated
March 22, 1977, was introduced into evidence as Joint
Exhibit 11. In pertinent part, it stated:
We received the altered Letters of Assent B back
yesterday, and I do not mind telling you I was very
upset that you would alter these documents after I
had signed them. Needless to say, they are unaccep-
table to us with your typed in exclusions for your
Company.
I have enclosed additional sets of the Letters of
Assent B for your signature, "without altering
them." We cannot allow Employers to write in ex-
clusions for themselves for items that they do not
happen to be in agreement with.
If you will not sign these Letters of Assent, with-
out altering them, this leaves your Company with-
out I.B.E.W. Line Agreements in Colorado, and I
would suggest that you make the necessary arrange-
ments to commence negotiations with the four
Local Unions in Colorado in an effort to consum-
mate an agreement that is mutually compatible.
Thereafter, there followed an exchange of correspond-
ence between the Employer and the Union in which
both parties set forth their respective positions. In this
connection, see the Employer's letter dated March 28,
1977, which was introduced into evidence as Joint Ex-
hibit 12; the Union's letter dated April 4, 1977, which
was introduced into evidence as Joint Exhibit 13; the
Employer's letter dated April 27, 1977, which was intro-
duced into evidence as Joint Exhibit 14; the Union's
letter dated May 6, 1977, which was introduced into evi-
dence as Joint Exhibit 15, and the Employer's letter
dated May 13, 1977, which was introduced into evidence
as Joint Exhibit 16.
H. The Conversation Between Schwartzkopf and Golf
As a result of the exchange of letters between the Em-
ployer and Respondent, Roland Golf, an International
representative of IBEW, contacted Schwartzkopf at his
office in Lincoln, Nebraska, and suggested that the two
persons meet to resolve the matter.
The next day Schwartzkopf and Golf met. Schwartz-
kopf told Golf that the Employer had no argument or
disagreement with Respondent or with any of its em-
ployees. He said that the Employer's only objection was
to anything relating to the National Electrical Industry
Fund. Schwartzkopf said that the Employer had no
desire to pay into that fund, and the Employer felt that it
was signatory to an agreement which did not contain
provisions for the fund. He further stated that the Em-
ployer did not want to execute a modified letter of assent
which would, in effect, bind the Employer to pay into
the industry fund. Schwartzkopf stated at the hearing
that Golf was sympathetic, but that Golf wanted an un-
modified letter of assent.
I. The conversations involving Grinstead, Frame, and
Schwartzkopf
Grinstead offered to enter into a separate contract
with the Employer on several occasions. He stated that
he had invited David Frame, the Employer's northwest
area manager, to sit down with him and try to arrive at
an agreement. Regarding the National Electrical Indus-
try Fund, Grinstead told Frame, "I didn't particularly
care if they paid them or didn't pay them, I wasn't con-
cerned about this."
Grinstead stated at the hearing that he had made every
effort to point out to Frame that the National Electrical
Industry Fund was not a condition of bargaining.
Schwartzkopf acknowledged during his cross-examina-
tion by the attorney for Respondent that Grinstead had
requested that Schwartzkopf come to Colorado and sit
down and bargain with him. He also acknowledged that
Grinstead had submitted a proposed contract to the Em-
ployer without the requirement of contributions to the
National Electrical Industry Fund. The following took
place during Schwartzkopf's testimony:
Q. Did Mr. Grinstead ever request you to come
to Colorado and sit down and to bargain with him?
A. He made statements, some to that and some in
his correspondence, yes.
Q. Did Mr. Grinstead send you a proposed con-
tract?
A. Yes, he did.
Q. Did that proposed contract have any require-
ments that dues be paid by you to the National
Electrical Industry Fund?
A. No, it did not.
Q. Isn't it a fact that Mr. Grinstead advised you
that he would execute and requested you to negoti-
ate a separate agreement and there would be no re-
248
IBEW LOCAL NO. 12
quirement that you pay into the National Electrical
Industry Fund?
A. He did, and in response to that we forwarded
him a draft agreement.
J. The Exchange of Contract Proposals
By letter dated July 26, 1977, Grinstead submitted a
proposed contract to the Employer. A copy of that letter
was introduced into evidence as Joint Exhibit 27. The
parties stipulated that Joint Exhibit 36 is the contract
proposal referred to in Joint Exhibit 27. In pertinent
part, the letter stated:
Enclosed are seven (7) copies of an agreement
between Commonwealth Electric and the four
I.B.E.W. Line Locals in Colorado.
Please disregard the Letter of Assent A that we
mailed you last week.
You will note that the same provisions that were
offered in the Letter of Assent A, "No Industry
Fund, and a separate wage schedule," are in this
agreement, and all references to N.E.C.A. are de-
leted except the Standard Language in the N.E.B.F.
section and the Apprenticeship section. You will
also note in Article 1, Sec. 1.1 the agreement is
dated July 1, 1977 through June 30, 1978 and con-
tinues in effect from year to year thereafter.
We were advised this would be the proper way
to consummate an agreement with you, rather than
write exclusions on the Letter of Assent A, which
incidently would again assign your Bargaining
Rights to N.E.C.A. and I am assuming that you
would object to this.
If you have any questions regarding the agree-
ment please contact me.
Please return six (6) executed copies to this
office, after these agreements are signed and ap-
proved I will forward you an approved copy.
When he was questioned at the hearing as to whether
the National Electrical Industry Fund was a condition
for entering into any collective-bargaining agreement
with the Employer, Grinstead answered, "Obviously not.
I offered them a contract without the industry fund in
it."
By letter dated August 1, 1977, Schwartzkopf submit-
ted the Employer's contract proposal to Respondent. A
copy of the letter of transmittal of that proposal was in-
troduced into evidence as Joint Exhibit 29. In pertinent
part, the letter stated:
Pursuant to your request that we negotiate a new
contract rather than sign a Letter of Assent B to the
existing contract, we enclose herewith our proposed
agreement. We have previously offered, and in fact
have tendered to you executed Letter of Assent B's
assenting to all portions of the agreement that con-
cern men, Local Union 12 and the International
Union. The only part of the agreement we have
ever taken issue with is the Industry Fund, a fund
that is paid exclusively to and for the benefit of the
National Electrical Contractors Association. You
have refused these Letters of Assent and have re-
quested that we negotiate a new contract. The at-
tached document is submitted pursuant to this re-
quest.
The Employer's proposal enclosed with Joint Exhibit
29 was found to be unacceptable to Respondent. At the
hearing, Grinstead gave several examples of matters,
which in his opinion made the proposal unacceptable.
They were: the absence of a union-shop clause; the alter-
ation in the scope of the work; the 2-year duration of the
agreement, instead of 1 year; no change in the wage
rates; no approval of the agreement by the International
office of the IBEW; the absence of binding arbitration
procedures; a "most favored nation" clause; the transfer
of employees clause; the deletion of an age discrimina-
tion clause; a change in the safety clause, and the elimi-
nation of time for the conducting of business by union
stewards.
The foregoing, of course, represents the views stated
on the record by Grinstead, and what he perceived to be
the differences between Respondent's contract proposal
and the Employer's contract proposal. In this connec-
tion, see Joint Exhibit 30, which is a copy of a letter
dated August 5, 1977, from Grinstead to Schwartzkopf
in which Grinstead outlines his objections to the Em-
ployer's proposed contract. In response to Joint Exhibit
30, Schwartzkopf wrote to Grinstead on August 19,
1977. See Joint Exhibit 31 for the contents of that docu-
ment. Additional correspondence between Schwartzkopf
and Grinstead are shown in Joint Exhibit 33, which is a
letter dated September 19, 1977, by Schwartzkopf; Joint
Exhibit 34 which is a letter dated September 21, 1977, by
Grinstead; and Joint Exhibit 35 which is a letter dated
September 27, 1977, by Schwartzkopf.
K. The Events in July and August 1977 Regarding the
Bayfield Pagosa Project
On July 18, 1977, work resumed on the Bayfield
Pagosa Project. As indicated earlier, the jobsite for that
project was within the geographical jurisdiction of Re-
spondent.
The parties stipulated that in July 1977 there was a re-
quest by the Employer for a referral of persons to the
jobsite. The parties further stipulated that the request
was refused by Respondent, and that no one was re-
ferred to work for the Employer on that jobsite on or
after July 1977.
The parties also stipulated that Respondent engaged in
a strike against the Employer, and that Respondent en-
gaged in picketing of the jobsite from August 11, 1977,
to August 19, 1977. Respondent's picket signs read,
"Commonwealth Electric has no agreement with IBEW
Local No. 12, 111, 113 and 969." (See Jt. Exh. 45).
Work at the Bayfield Pagosa Project ended in October
1977. The Employer moved its equipment off of the pro-
ject and completed miscellaneous tasks in November
1977.
249
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
L. The Meeting Between Schwartzkopf and Farnan on
September 8, 1977
At the request of Farnan, there was a meeting between
Schwartzkopf and Farnan on September 8, 1977, in the
Employer's office located in Lincoln, Nebraska.
Farnan told Schwartzkopf that he wanted to discuss
the difficulties which had arisen between the Employer
and Respondent. Farnan also testified, "I told him, based
on our many years of honorable and compatible associ-
ation, especially with Mr. Schorr's father, that I did give
him my personal word that were he to sign an unaltered
Letter of Assent, that is, Assent A, the IBEW would not
pursue the collection of the industry fund."
Schwartzkopf asked Farnan to put that assurance in
writing, but Farnan said that he could not do so. Farnan
said that Schwartzkopf would have to take Farnan's
word for it.
Schwartzkopf told Farnan that the industry fund was a
nonmandatory subject of bargaining. Farnan pointed out
that the Employer had already accepted unaltered letters
of assent in the several States surrounding the Employ-
er's headquarters. However, Schwartzkopf only offered
to sign an altered letter of assent at that time with Re-
spondent.
M. The Fines Levied by Respondent
It was admitted in the pleadings that the employees
named in paragraph X of the General Counsel's com-
plaint had worked behind the picket lines established by
Respondent previously referred to. One of those persons
named in paragraph X is the Charging Party in this pro-
ceeding.
The parties stipulated that letters similar to Joint Ex-
hibit 43 were sent to the other persons who are named in
paragraph X of the General Counsel's complaint. Joint
Exhibit 43 is a letter dated March 6, 1978, from the sec-
retary of the trial board of Respondent to the Charging
Party, and that document advises him of certain fines
which were levied against him. (In this connection, see
Jt. Exh. 44, which is a copy of the IBEW constitution
and rules for local unions.) Respondent admitted that the
fines were assessed.
Conclusions
In its decision in Taft Broadcasting Co., WDAF AM-
FM TV, 163 NLRB 475, 478 (1967), the Board has de-
scribed a bargaining impasse as follows:
Whether a bargaining impasse exists is a matter
of judgment. The bargaining history, the good faith
of the parties in negotiations, the length of the ne-
gotiations, the importance of the issue or issues as to
which there is disagreement, the contemporaneous
understanding of the parties as to the state of nego-
tiations are all relevant factors to be considered in
deciding whether an impasse in bargaining existed.
Based upon the findings of fact as set forth 5 herein, I
conclude that no contract has existed between the Em-
ployer and Respondent at least after October 31, 1976. It
was established by both the Employer's representative
and Respondent's representative that searches of their re-
spective files disclosed no document which would bind
those parties in a collective-bargaining agreement.
Based upon the credited testimony and the documen-
tary evidence referred to previously herein, I conclude
that Respondent's representative expressed a willingness
to the Employer's representatives to meet and bargain
with the Employer for a separate contract without the
requirement of making contributions to the National
Electrical Industry Fund. In this regard, note the con-
versations referred to in section herein.
I also conclude that Respondent proposed a contract
to the Employer, which did not require the Employer to
make contributions to the National Electrical Industry
Fund, as distinguished from employee benefit funds. See
section 12 herein, especially Joint Exhibit 27 and Joint
Exhibit 36. As Grinstead testified, "I offered them a con-
tract without the Industry Fund in it." Nevertheless, the
Employer did not find Respondent's proposal acceptable,
nor did Respondent find the Employer's counterproposal
acceptable. Significantly, the reasons advanced by Re-
spondent for rejecting the Employer's counterproposal
did not involve the absence from that proposal of a
clause requiring contributions to the National Electrical
Industry Fund. Thus, the conversation between
Schwartzkopf and Farnan on September 8, 1977, has to
be considered in the context of the prior contract pro-
posals and discussions among the parties. Considering
that conversation in context with those prior events, I
conclude that Farnan's actions on that date cannot fairly
be characterized as an insistence to impasse on including
contributions to the National Electrical Industry Fund.
See Taft Broadcasting, supra.
Since I have concluded that Respondent did not insist
to impasse on a nonmandatory subject of bargaining, I
further conclude that Respondent's levying of fines
against those persons named in paragraph X of the Gen-
eral Counsel's complaint did not violate Section
8(b)(1)(A) of the Act under the theory advanced by the
General Counsel. Accordingly, I must recommend to the
Board that the General Counsel's complaint be dismissed.
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices which were alleged in the General Counsel's
complaint in this proceeding, for the reasons which have
been set forth above.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to the provisions of Section 10(c) of the
Act, I hereby issue the following recommended:
250
IBEW LOCAL NO. 12
ORDER'
IT IS HEREBY ORDERED that the complaint in this pro-
ceeding be dismissed in its entirety.
In the event that no exceptions are filed, as provided by Sec. 102.46
of the Board's Rules and Regulations, the findings, conclusions, and rec-
ommended Order herein shall, as provided by Sec. 102.48 of the Board's
Rules and Regulations, be adopted by the Board and shall become its
findings, conclusions and Order, and all objections thereto shall be
deemed waived for all purposes.
251