International Electrical Workers

National Labor Relations Board - Board Decisions

Dec 11, 1972

200 N.L.R.B. 850 (N.L.R.B. 1972)

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union Nos 938, 978, 1082, 1119, 1182, 1376,
1884, 1991 , 2175 and 2235 of the International
Brotherhood of Electrical Workers, AFL-CIO and
Appalachian Power Company Case 5-CB-1207
December 11, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On July 31, 1972, Administrative Law Judge'
Joseph I Nachman issued the attached Decision in
this proceeding Thereafter, the Respondent filed
exceptions and a supporting brief, and the Charging
Party filed an answering brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order
Act, as amended, herein the Act, which alleges, in
substance, that Locals 938, 978, 1082, 1119, 1182, 1376,
1884, 1991, 2175 and 2235, International Brotherhood of
Electrical Workers, AFL-CIO (herein collectively called
Respondents or the Unions), after bargaining collectively
with Appalachian Power Company (herein Company),
reached agreement on the terms of a collective-bargaining
agreement, but thereafter, in violation of Section 8(b)(3) of
the Act, refused to sign the same By answer, the Unions
admitted certain allegations of the complaint, but denied
the commission of any unfair labor practice The sole issue
litigated is, whether in the course of their bargaining, the
parties reached agreement on whether a particular provi-
sion should be included or excluded from the contract For
reasons hereafter stated I find and conclude that the
parties agreed that the particular provision involved should
not be included in the contract, and that Respondents
should be required to sign the contract as agreed upon
At the trial all parties were afforded full opportunity to
participate in the proceedings, to introduce relevant and
material evidence, to examine and cross-examine witness
es, to argue orally on the record, and to submit briefs
Briefs submitted by the General Counsel, Charging Party,
and Respondents, respectively, have been duly considered
Upon the pleadings, stipulations of counsel, evidence,
including my observation of the demeanor of the witnesses
while testifying, and the entire record in the case, I make
the following
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Local Union
Nos 938, 978, 1082, 1119, 1182, 1376, 1884, 1991,
2175 and 2235 of the International Brotherhood of
Electrical Workers, AFL-CIO, its officers, agents,
and representatives, shall take the action set forth in
the Administrative Law Judge's recommended Or-
der
1 The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I NACHMAN, Trial Examiner This case tried
before me at Roanoke, Virginia, on June 13, 1972, with all
parties present and duly represented, involves a complaintI
pursuant to Section 10(b) of the National Labor Relations
1 Issued March 31 1972 on a charge filed January 10, 1972
2 No issue of commerce or labor organization is presented The
complaint alleges and the answer admits facts which establish these
jurisdictional elements I find those facts to be as pleaded
3 No unit questions are presented, nor is there any question concerning
the placement of any employee in any of the 12 separate units Each unit is
described in secs 12 1 through 12 12 of the contract which had an initial
expiration date of September 30 1971 which is an exhibit in this case, and
recognition was granted to a specific Local for the particular unit I find it
unnecessary to copy each unit therein and deem it sufficient to make each
FINDINGS OF FACT2
For many years the Company has recognized the several
Respondent Locals, who bargained with the Company
through a System Council, as the collective-bargaining
representative of certain classifications of its employees in
appropriate units on a geographical basis within the
Commonwealth of Virginia and the State of West
Virginia 3 The last such contract between the parties
became effective October 1, 1968, and was to expire on
September 30, 1971 Section 2 3 of that contract is the
provision which is the center of the controversy here
involved 4 In anticipation of the expiration of the contract,
the Unions requested that the same be reopened, and the
Company responded with a notice of termination and
suggested various changes for a new agreement One of
such changes was a proposal that the phrase "and to be
approved by the International Office of the Union" be
deleted from section 2 3 of the old contract At the first
bargaining session on August 6,5 John Larew, the Compa-
ny's Director of Personnel, and apparently its chief
negotiator, took the position that section 2 3 was illegal
and had to be eliminated from any contract the parties
might agree upon Lucian Bledsoe, Secretary of the System
unit description a part hereof by this reference I find each of said units to
be appropriate
4 The provision referred to reads as follows
This agreement shall be subject to amendment at any time by mutual
consent of the parties hereto Such amendment shall be reduced to writing
stating the effective date of the amendment, be executed in the same
manner as this agreement , and be approved by the International Office of
the Union
5 This and all dates hereafter mentioned are 1971, unless otherwise
,tated
200 NLRB No 125
INTERNATIONAL ELECTRICAL WORKERS
Council, and chief negotiator for the Unions, responded
that the constitution and bylaws of the International
required the submission of all such matters to the latter for
approval, and that there was "no way" that the Unions
could agree to the Company's request 6 The parties held
subsequent bargaining sessions, but no agreement having
been reached by September 30, the parties agreed that the
then current contract would continue in effect until
November 13 In the meanwhile another bargaining
session was held on October 20, but no agreement was
reached
The parties met again on November 8, with the
Company presenting in written form what it designated as
a "Final Offer" for concluding a contract Paragraph 1 of
this "Final Offer" proposed that the parties agree to
"Delete the present language of sections 2 1, 2 2 and 2 3 [of
the old contract] and substitute the following " There then
followed proposed substitute language for sections 2 1 and
2 2, but the proposal contained no proposed substitute
language for section 2 3 Both Company Negotiator Larew
and Union Negotiator Bledsoe testified that there was no
discussion of the proposal regarding Section 2 3 at the
November 8 meeting Larew additionally testified, without
contradiction, that, although Bledsoe stated at this meeting
that the Unions rejected the November 8 proposal, the
mediator present at this meeting urged Bledsoe not to
reject the proposal "out of hand," but to think about it
overnight and that Bledsoe agreed, but when the parties
met the following day, he again stated that the November 8
proposal was rejected No further meetings occurred until
December 2 In the meantime the contract, which had been
extended to November 13, expired, and on the last-
mentioned date the Unions went on strike
At the December 2 meeting, the discussion opened with
Larew asking Bledsoe what it would take to settle the strike
then in progress Bledsoe replied that the Company's offer
of November 8, which it had withdrawn after that meeting,
was basically satisfactory, and referring specifically to item
1 of that proposal, which dealt with sections 2 1, 2 2, and
2 3, he remarked that some dates which dealt with when
the proposed contract was to become effective would have
to be changed, but he "didn't see any problems with the
balance of it "7 The following day (December 3), the
Company presented its so-called "Revised Final Offer,"
which, to the extent that it related to sections 2 1, 2 2, and
2 3, was identical with the November 8 proposal, except
that different dates are stated as to when the proposed
contract would become effective When this offer was
presented, Bledsoe stated that he was familiar with and
understood the November 8 proposal, and asked in what
way the December 3 proposal differed from it Larew
testified that he then explained the December 3 proposal
6 The Company s position in this regard appears to be based on the
contention that as the International was not recognized by the Company or
certified by the Board as the collective-bargaining representative of the
employees involved, the provisions of sec 2 3 of the contract constituted a
nonmandatory subject of bargaining The Unions contend that it was the
International that was initially certified, and that in any event the subject
matter of sec 2 3 of the contract was a mandatory subject of bargaining I
deem it unnecessary to consider or pass upon any of these contentions
7 Bledsoe admitted that he made this statement but claims that he was
referring only to the effective date of the proposed contract I do not regard
this as raising a credibility issue requiring resolution
851
and answered some questions, but both he and Bledsoe
testified that there was no discussion concerning section
2 3 Some other matters were discussed, but the December
3 meeting adjourned without agreement having been
reached
During the evening of December 5, Bledsoe telephoned
Larew stating that the men wanted to return to work, and
had voted to accept the Company's offer of December 3
After some discussion about when the men could report for
work, Bledsoe and Larew agreed that the Company would
prepare the contract in final form, as well as a temporary
memorandum of agreement, and that arrangements would
be made for the parties to meet and sign these documents
On December 7, Larew wrote the Unions that the
Company was agreeable to meet on December 10 " in
order to sign the [interim] Memorandum of Agreement
following your acceptance of the Company's Revised Final
Offer of December 3, 1971 " Apparently by prearrange-
ment, the parties met on December 9, and executed the
Memorandum Agreement which, to the extent here
material provides
The terms of the aforesaid collective-bargaining agree-
ment for the period of December 3, 1971 through
March 31, 1974, shall be as set forth in the "Revised
Final Offer" of the Company dated December 3, 1971,
(a copy of which is attached hereto and incorporated
herein by reference)
Under date of December 13, Larew wrote the Unions
suggesting that the parties meet at the Company's office on
December 16 to sign the formal contract, a copy of which
was enclosed with the letter When the parties met at the
appointed time and place, some of the union representa-
tives, including Bledsoe, had not yet received a copy of the
final draft of the contract, and Bledsoe appointed a
committee to proofread it After this was done, and some
changes in phraseology were made,8 the Union stated that
the document, so far as it went, was correct, but that it did
not contain what was section 2 3 of the prior contract
Taking the position that the Unions had agreed to delete
section 2 3, the Company refused to include that provision
in the contract The Unions, taking the position that they
had not agreed to the exclusion of section 2 3, refused to
sign the contract without the inclusion of section 2 3 The
instant charge and complaint followed 9
CONTENTIONS AND DISCUSSION
The sole issue for decision is whether the parties, during
their contract negotiations, agreed that what was section
2 3 of the prior contract should be deleted from the
agreement they were then negotiating If they did so agree,
the authorities are clear that the refusal of the Unions to
8 In addition to some typographical errors the Limon representatives
found they objected to the fact that in a number of places the Company in
drafting the contract had changed District to Division Although the
Company felt Division was the more appropriate word, it agreed to and
did acceed to the Union s demand that the word ` District be restored to
the contract wherever the word Division appeared in the draft and this
was done
9 The findings herein are based on the testimony of Company Personnel
Director Larew and Union Agent Bledsoe , which to the extent here
material is not in conflict and the various documents received in evidence
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sign that agreement violated Section 8(b)(3) of the Act, and
that the Board, as a remedy for that violation, may require
the Union to sign and comply with the contract as agreed
upon Section 8(d) of the Act, United Cement, Line and
Gypsum Workers International Union, 173 NLRB 1390,
International Union of Operating Engineers, Local 525, 185
NLRB No 72, and Huttig Sash & Door Company, 151
NLRB 470, order enfd as modified 362 F 2d 217 (C A
4) 10
What the parties may in fact have agreed upon must be
determined from what they said and did during their
negotiations If the words and acts of one of the parties
have but one reasonable meaning, to which the other party
has assented, a contract will be deemed concluded on that
basis, for as stated in Clark on Contracts, 4th ed. , sect 3, p
CONCLUSIONS OF LAW
1 The Company is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
2 The Unions are labor organizations within the
meaning of Section 2 (5) of the Act
3 By failing and refusing on December 16, and at all
times thereafter, to sign the written agreement, as corrected
by mutual consent of the parties , theretofore negotiated
between the parties, the Unions have engaged in and are
engaging in unfair labor practices proscribed by Section
8(b)(3) of the Act
4 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act4
The law judges of an agreement between
two persons exclusively from those expressions of their
intentions which are communicated between them
And if the words used, judged by a reasonable standard,
manifest an intention to agree, it is immaterial what may
have been his real or unexpressed intention 17 C J S ,
Contracts, Sec 32, p 361, 12 Am Juns, Contracts, Sec
19, p 515
Applying this subjective test to the facts of the instant
case , I must and do find and conclude that Bledsoe, as the
chief spokesman for the Unions, agreed that what had
been section 2 3 of the prior contract would not be a part
of the new agreement, and the parties having admittedly
agreed upon all other provisions of a renewal contract, the
refusal of the Unions to sign the contract so agreed upon
violated Section 8(b)(3) of the Act
There can be no question but that the only reasonable
construction of the Company's "Final Offer" of November
8, and its "Revised Final Offer" of December 3, which
Bledsoe admittedly told Larew the Unions were accepting,
is that section 2 3 of the expired contract was not to be
included in the new agreement In both of the Company's
proposals, the language is plam-"Delete the present
language of sections 2 1, 2 2 and 2 3, and substitute the
following"-and while substitute proposals were made for
sections 2 1 and 2 2, no substitute proposal was made for
section 2 3 This can only mean that if the Unions accepted
this proposal, Section 2 3 would not be a part of the
contract That Bledsoe might not have so understood the
offer, or that he might have misinterpreted it, is beside the
point The fact remains that the Company made a clear
proposal regarding section 2 3 that the Unions accepted,
and all other terms having been agreed upon, a contract
was concluded, which the Unions were obligated to sign,
and their refusal to do so violated Section 8(b)(3) of the
Act I so find and conclude
Upon the foregoing findings of fact, and on the entire
record in the case, I make the following
10 Huttig Sash & Door Company of course, involved the obligation of an
employer to sign an agreed upon contract to remedy a violation of Section
8(a)(5) while the instant case involves such an obligation on the part of a
Union to remedy a violation of Section 8(b)(3) Under Section 8(d) of the
Act, the legal obligation in each case, is the same
11 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 recommended Order herein shall as provided in Sec
THE REMEDY
Having found that the Unions have engaged in unfair
labor practices proscribed by Section 8(b)(3) of the Act, I
shall recommend they be required to cease and desist
therefrom and that they take the affirmative action
hereinafter set forth, designed and found necessary to
effectuate the policies of the Act
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
ORDERi1
Each of the Respondent Unions, their respective officers,
agents, and representatives, shall
1 Cease and desist from
Failing or refusing to bargain collectively with Appa-
lachian Power Company regarding the wages, hours, and
other terms and conditions of employment of the employ-
ees in the several appropriate units here involved, failing to
sign the collective-bargaining contract submitted to them
on December 16, 1971, or from engaging in any like or
related conduct in derogation of their statutory duty to
bargain
2 Take the following affirmative action designed and
found necessary to effectuate the policies of the Act
(a) Upon request of Appalachian Power Company,
forthwith execute the contract tendered them by Appalach-
ian Power Company on December 16, 1971, with respect to
the terms of which the parties had reached agreement, and
upon such execution, deliver a signed copy thereof to said
Company
(b) Post at their respective business offices and meeting
halls copies of the attached notice marked "Appendix " 12
Copies of said notice, on forms to be furnished by the
Regional Director for Region 5 of the Board, Baltimore,
Maryland, after being signed by an authorized agent of the
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
12 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notices reading Posted by
Order of the National Labor Relations Board shall be changed to read
Posted pursuant to a Judgment of a United States Court of Appeals
enforcing an Order of the National Labor Relations Board
INTERNATIONAL ELECTRICAL WORKERS
several Respondent Unions, shall be posted by each of Dated
them immediately upon receipt thereof, and be maintained
by them for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are
customarily posted Reasonable steps shall be taken to
insure that notices are not altered, defaced, or covered by
any other material
(c) Mail to the aforesaid Regional Director sufficient
signed copies of the aforesaid notice for posting by
Appalachian Power Company, said employer being will-
ing Copies of said notice, on forms provided by the Dated
aforesaid Regional Director, shall, after being signed by an
authorized representative of each Respondent, be forth-
with forwarded to the aforesaid Regional Director for
appropriate disposition by him
(d) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of receipt of this Decision,
what steps they have taken to comply herewith 13
13 In the event that this recommended Order is adopted by the Board
after exceptions have been filed this provision shall be modified by deleting
the words receipt of this Decision and substituting therefore the words
` this Order
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify you that
WE WILL NOT fail or refuse to bargain collectively
with Appalachian Power Company regarding the
wages, hours, and other terms and conditions of
employment of the employees in the several appropri-
ate units for which we are respectively recognized, by
failing to sign the collective-bargaining contract sub-
mitted to us by Appalachian Power Company on
December 16, 1971, or from engaging in any like or
related conduct in derogation of our statutory duty to
bargain with Appalachian Power Company
WE WILL, upon request of Appalachian Power
Company, forthwith execute the contract it submitted
to us on December 16, 1971, in accordance with our
agreement, and upon such execution deliver a signed
copy thereof to said Company
LOCAL UNION No 938 OF
THE INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
LOCAL UNION No 978 OF
THE INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization)
Dated
Dated
Dated
Dated
Dated
By
By
By
By
By
By
By
853
(Representative) (Title)
LOCAL UNION No 1082 OF
THE INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization)
(Representative ) (Title)
LOCAL UNION No 1119 OF
THE INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization)
(Representative) (Title)
LOCAL UNION No 1182 OF
THE INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization)
(Representative) (Title)
LOCAL UNION No 1376 OF
THE INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization)
(Representative) (Title)
LocAL UNION No 1884 OF
THE INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization)
(Representative) (Title)
LOCAL UNION No 1991 OF
THE INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization
(Representative) (Title)
854
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LOCAL UNION No 2175 OF
THE INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization)
(Representative) (Title)
LocAL UNION No 2235 OF
THE INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Federal Building Room
1019, Charles Center , Baltimore, Maryland 21201, Tele-
phone 301-962-2822