Green River Rural Electric Cooperative Corp.

National Labor Relations Board - Board Decisions

Jan 23, 1970

180 N.L.R.B. 897 (N.L.R.B. 1970)

GREEN RIVER RURAL ELECTRIC COOPERATIVE CORP.
Green River Rural Electric Cooperative Corporation
and Local 1701 , International Brotherhood of
Electrical Workers , AFL-CIO. Case 25-CA-3282
January 23, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On August 4, 1969, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Decision together
with a supporting brief, and Respondent filed a brief
in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and
recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in thel
above-entitled proceeding was held before me, the duly
designated Trial Examiner, on June 18, 1969, on
complaint of the General Counsel against Green River
Rural Electric Cooperative Corporation, herein called the
Respondent or the Company. The charge was filed on
November 25, 1968, and the complaint issued on February
28, 1969. The issue presented is whether the Respondent
violated Section 8(a)(5) of the Act. Briefs were filed by all
parties.
Upon the entire record and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
897
The Respondent, a Kentucky corporation, is engaged in
the production, sale, and distribution of electrical power.
Its principal office and place of business is at Owensboro,
Kentucky, and it operates other facilities elsewhere in the
State. During the past 12 months, a representative period,
the Company received gross revenue in excess of $500,000.
During the same period, it received goods valued in excess
of $50,000 transported to its place of business in interstate
commerce directly from States other than the State of
Kentucky. I find that the Respondent is engaged in
commerce within the meaning of the Act and that it will
effectuate the policies of the Act to exercise the
jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
Local 1701, International Brotherhood of Electrical
Workers, AFL-CIO , herein called the Union , is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Issue of the Case
The Respondent is charged with having refused to
bargain with the Union in violation of Section 8(a)(5) of
the Act After an election the Union was certified by the
Board in 1965, and thereafter the parties negotiated and
signed two successive contracts, the last a 2-year
agreement made in 1966 and expiring on September 16,
1968; their relationship was always harmonious During
August and September of 1968 they met a number of
times to discuss the terms of a new contract to follow the
last. The allegation of refusal to bargain is not a literal
one; what the General Counsel means is that what
bargaining took place was carried on by the Company in
bad faith, and that therefore it was going through the
motions while really not bargaining at all.
There is no dispute as to the facts. A very small
amount of oral testimony was received, none of it
contradicted. The record evidence, constituting virtually
all of the proof said to support the complaint, was
received by stipulation of all parties There were six
bargaining sessions; a tape recorder was used, with a girl
also taking notes of what was being said. From all this,
typewritten minutes of each meeting were prepared. The
parties examined them and made corrections and changes
they thought necessary and everybody then agreed they
"are a substantially accurate account of what transpired
at such meetings." To these minutes are attached all the
written proposals or statements exchanged during the
negotiations.
The critical language of the complaint reads that the
Respondent refused to bargain in that:
(i) At all times since August 19, 1968, in the course
of negotiations for a contract, Respondent has
demanded and insisted on naming the Union's
negotiator for the purpose of processing grievances
(to-wit: a Union business representative), and has
refused to permit the Union to designate its own
representative for purposes of processing grievances
(to-wit: a Union steward).
180 NLRB No. 138
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(u) Since August 19, 1968, Respondent negotiated
with the Union in bad faith and with no intention of
entering into any final or binding collective bargaining
agreement.
As to subparagraph (i), the Respondent says simply it
is not true the Company refused to permit the Union to
choose its spokesman, or insisted on selecting an agent for
the labor organization Affirmatively, it defends its
bargaining position with respect to this particular union
proposal on the ground the Union always wanted it to pay
the expenses of a steward, as well as for his time lost from
work when on union business.
Subparagraph (n) is no more than a restatement of the
conclusionary allegation that the Respondent violated
Section 8(a)(5) It states no fact that could be called a
pleading specification, points to nothing definitive that in
its answer the Respondent could admit or deny. Asked at
the hearing to say what part of the evidence, what
particular past act or statement of the Respondent would
indicate the general bad-faith allegation, the General
Counsel did no more than refer to the voluminous
bargaining conference meetings and add ". amongst
these are the making of an offer, a counter offer which we
do seek to say in essence did reduce the desirability or a
proposal below the contract that was in effect."
When the General Counsel rested with no further
explication of his theory of illegality, the Respondent had
no choice but to offer equally conclusionary evidence that
the company representatives are really nice people, honest,
and not persons of "bad faith," as the General Counsel
asserted Towards this end, Mr Miller the Respondent's
general manager, testified, among other things, that he is
"Chairman of the Democratic Party of Kentucky,
Regional Vice Chairman of the Boy Scouts of America "
How much virtue stems from being a democratic
politician may be subject to debate, but it cannot be
denied that a Boy Scout Leader is a man of honor. Be
that as it may, it was not Miller, but his assistants, who
did the bargaining, and the minutes of the conference will
tell the story
The difficulty with this procedure is that the
Respondent was not advised either before, or at the
hearing, what it is that it must defend against. Indeed it
was not until the General Counsel's brief was served, 38
days after the close of the hearing, that it first learned
what the specifications and the charge are really about If
this is proper procedure, the General Counsel can offer
the Trial Examiner the recorded transcript of any
superficially correct collective-bargaining picture and
invite the trier of the facts to express a personal opinion
as to the employer's good or bad faith Possibly the net
effect then would be to place the respondent in the
position of having to justify whatever he did and said, sort
of shifting the burden upon him, as it were, to exculpate
himself
Did the Respondent Unlawfully Insist Upon
Choosing the Union's Bargaining Agent?
The expiring contract set out a grievance procedure, in
which the first step provided that a dissatisfied employee
should reduce his complaint to writing and give one copy
to a management representative and another to the
Union's business manager, the two representatives would
then discuss the grievance and, failing agreement, binding
arbitration would follow In its first proposals for a new
contract, first orally and then in writing, the Union
requested changes in just about every substantive provision
of the old agreement It explained 19 of these at the first
meeting and in its draft for a new agreement, placed in
the Company's hands after that meeting, restated all these
19 demands, and by rewriting the remaining clauses of the
contract, revealed the rest of the demands One of the
proposals was that an employee steward should write up
the grievance and deliver it to management and to the
Union's business manager When this matter was first
discussed, according to the stipulated minutes , the Union's
negotiators made clear they meant the Company was to
pay "A discussion regarding union stewards by Mr Van
Winkle (the union official] followed in which he outlined
the duties of the steward and the fact that the cooperative
would pay his time and transportation while doing his
union duties."
This item was mentioned a number of times in the
course of the six meetings, Guy Harris, who bargained for
the Company, said at the hearing they talked about the
steward "almost every session " How much attention was
given this pinpointed question among the many involved,
the minutes do not show The Company disagreed and
argued its reasons there was no need because no occasion
for any grievance had ever arisen in the 3 years, some
employees, not members of the Union, might not wish to
be foreclosed from independent filing of complaints, the
steward idea was an indirect method for imposing union
shop conditions, a separate Union demand which the
Company was simultaneously resisting The Union
spokesman also tried to persuade an employee steward
would understand complaints better than the business
manager, the business manager lived far away; any
majority representative had a lawful right to select its
agent Most of this talk took place at the third session, on
September 6. All the minutes show is some further
discussion of the stewards at the fifth session on
September 16 There is no indication in the reported
minutes that the Union ever receded from its position that
the Company must pay for the steward's time and
expense. In fact, the following testimony of Harris, who
was present at all meetings, stands uncontradicted "You
had quite a few discussions there but you never had it
was always a paid union steward, paid transportation, and
paid on company time Th'it was our objection."
This aspect of the case can be considered in more than
one light, but however viewed the complaint must be
dismissed on this point In a sense the Union was
proposing a change in the contractually established
method for processing grievances They were to be
handled, if any arose, one way, through the business
manager at the first step, the Union wanted them instead
to go through an employee steward before reaching the
business manager When a union wishes to set out in the
contract a grievance procedure, it raises a bargainable
issue , sometimes called a "mandatory" subject of
collective bargaining, which the employer is obligated to
consider and discuss with it' Here the parties did bargain
about the proposal, each gave its view of the matter, but
no agreement was reached It is not unlawful for either
party to the collective bargaining process to hold firm to
its view on any bargainable issue.' The complaint looks at
the matter differently. It suggests that under the guise of
preferring one grievance procedure to another, the
Company, in effect, was insisting upon the right to decide
who should be the Union's agent to handle grievances, or
'Bethlehem Steel Co , 89 NLRB 341, set aside on other grounds 191
F2d340(CADC)
'N L R B v American National Insurance Co , 343 U S 395
GREEN RIVER RURAL ELECTRIC COOPERATIVE CORP. 899
who should do the bargaining for the employees.
Apparently to make the assertion more appealing, the
complaint goes on to suggest a third alternative view, and
this is that the Company was denying the Union the right
to pick an agent of its own choice . This is a play on
words, and , while creating the impression of greater
specificity and multiple offense , adds nothing of substance
to the whole case . The business manager is said to be the
man whom Respondent was forcing upon the Union, and
the proposed employee steward is supposed to be the
Union agent with whom the Respondent refused to
bargain . And again more than one legal principle comes
into play . An employer may not insist that any one, or
any group of persons , do the talking , and the deciding, for
the employee group as a whole . This is the purport of
N.L.R.B. v. Wooster Division of Borg- Warner, 356 U.S.
342, where the Court agreed it was illegal for an employer
to insist the employees , and not the selected agents, make
decisions , on the ground this was a way of "weakening the
independence of the 'representative' chosen by the
employees." If it could be said that what really happened
here was absolute insistence, without quarter to the bitter
end so as to preclude any agreement at all, that the
business manager and only he represent the Union, an
unfair labor practice would be proved. Turning the coin,
as the General Counsel invites, did the Company refuse to
deal with the Union's selected steward in the processing of
grievances? Had such a thing happened here but it did
not it would have been a pure violation of the statute,
for an employer may not refuse to permit a regularly
selected steward to handle grievances.' This is not a case
where, absent an agreed upon method for processing
grievances, a grievance arises and the employer flatly
refuses to talk about it with the employee, or even
nonemployee, chosen by the Union to exercise that
function. There was no grievance, there was no individual
advanced by the Union, there was no refusal to bargain in
fact.
The government's brief does state a correct principle of
law, however, and it is that where an employer conditions
the execution of a contract upon the Union's waiver of the
right to select a given spokesman, it violates Section
8(a)(5) of the Act. And this is true whether the employer
fixes its attention upon a particular union agent and
insists that it be he, and only he, or insists the Union
simply not select any one to act on its behalf.
The affirmative burden of proof rests, as in every case,
upon the General Counsel. It is by no means clear here
that the Respondent was opposed outright to having a
union steward among its employees. The record evidence
shows as much its rejection was aimed at the Union's
request that the suggested agent must be paid by the
employer while engaged in purely union activity. There is
no need to cite precedent for the proposition, that an
employer is in no circumstances obligated in law to bear
such an expense, albeit he may assume it voluntarily. And
this may be sufficient reason of itself for dismissal of this
allegation of the complaint.
It could also be argued, not without considerable
persuasion , that the only disagreement between the parties
on this particular issue in the bargaining , was over what
kind of procedure to establish for processing grievances.
All that the law requires is that during the life of a
contract the employer continue to deal with the union over
3Signal Manufacturing Co., 150 NLRB 1162, enfd . 351 F.2d
471(C.A.1).
questions that arise, that it engage in what is still union
recognition and collective bargaining despite settlement of
conditions of employment in the agreement itself. It must
honestly try to come to terms with the union on the
question of method, or procedure, for resolving continuing
disputes over interpretation and even application of the
agreement, but nowhere is it written that if the employer
cannot agree as to methods, yet is always willing to listen
to and consider grievances, it violates this statute.
The case against this Respondent must fail even if it be
accepted, as the General Counsel contends, that it was the
Union's choice of spokesman which the Company did not
want to stipulate in the contract. Much was said by both
sides, and they gave arguments that were not always
equally convincing. In such a situation any single,
out-of-context phrase appearing in the minutes of
meetings could easily mislead and result in unfair
appraisal of one side or the other. At one point, on
September 6, the Company's lawyer argued the men
themselves were the Union and therefore there was no
reason for him to agree they might have an IBEW
spokesman among themselves. He erred fundamentally on
the law. But it is not unlawful for an employer to propose,
and to argue that the Union select one spokesman instead
of another. Had the Union agreed, as the Respondent
wished, to continue the grievance procedure exactly
provided in the expiring contract, it would have been
perfectly proper to insert such a provision in a new
contract. What is prohibited, and it would have been had
it happened in this case, is for an employer to insist that
there be a contractual elimination of the Union's freedom
to select its own agents, to the point of impasse.' Like
contractual clauses were involved in Borg-Warner, the
lead case on the subject. There the Supreme Court said:
"Each would be enforceable if agreed to by the unions.
But it does not follow that, because the company may
propose these clauses , it can lawfully insist upon them as
a condition to any agreement." And in finding the
employer in that case to have violated Section 8(a)(5), the
Court emphasized the fact that: "On April 21, the unions
asked the company whether the latter would withdraw its
demands for the 'ballot' and 'recognition' clauses if the
unions accepted all other pending requirements of the
company. The company declined and again insisted upon
acceptance of its 'package,' including both clauses."
Adamant insistence is therefore an essential element of
proof before an unfair labor practice finding can be made.
No such finding is warranted on this record.
The steward item was but one of a great many issues in
dispute throughout the negotiations. Other disputed
proposals consumed by far the greatest portion of the
argument . In the end it was money - the still remaining
gap between the Union's wage demand and the
Respondent's last offer of raises - and the Union's
insistence upon certain union security clauses, that became
the rock upon which negotiations foundered. The Union
asked for a 25-percent across-the-board raise for the first
year of a new contract. The Company's first wage offer
was a 4-percent raise the first year and a further 4-percent
raise the second contract year. Measured against the then
current contract wages this was approximately an average
12-cent per-hour raise for each year. By the time of the
'Compare, Iron Castings, 114 NLRB 739. See also N L.R B v. Roscoe
Skipper, 213 F.2d 793: "For the employer, in the absence of exceptional
circumstances which do not appear here, to have a right of choice either
affirmatively or negatively as to any of those who are to sit on the opposite
side of the table from him would defeat and nullify the law "
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
last bargaining session, the Union had reduced its demand
to across-the-board raises of 40 cents per hour the first
year and 30 cents per hour the second year. The
Respondent had also raised its money offer to 20 cents an
hour the first year and 15 cents an hour the second The
Union's security demand was two-faceted: a straight
union-shop provision making membership compulsory,
and a no-subcontracting clause.
Another way of asking the critical question is what
caused the strike'? The last conference was held on
October 10; 2 days later 15 of the 23 employees quit
work. They were still out in June of 1969, the time of the
hearing. There had been a 14-hour session shortly before
the strike with a mediator trying to bring the parties
together
At the penultimate meeting, on September 16, the
Union said it would accept counteroffers made to four of
its demands, and drop four minor others it had asked. It
then itemized those upon which it still insisted, these
included no less than 16 separate demands. And among
the most important because there was more said about
them than any others was the demand for a union shop
and subcontracting clause. One of the most critical, and, I
am convinced, most determinative stumbling blocks to
settlement, was the Union's insistence to the very end
upon this subcontracting clause It reads as follows:
The Cooperative agrees not to subcontract or sublet
any work covered by this Agreement to any person,
firm or corporation which is not in contractural
relationship with the International Brotherhood of
Electrical Workers or any of its affiliate Local Unions.
In the event that the Cooperative proposes to
subcontract or sublet any work covered by this
agreement, the Corporation shall notify the Local
Union having jurisdiction, of the name of such
subcontractor, his permanent address, and the location
and nature of the work to be subcontracted Such
subcontractor shall not begin work until he is in
contractural relationship with the International
Brotherhood of Electrical Workers or any of its
affiliate Local Unions
It has always been a practice of this Cooperative to
have collateral work, such as erection of a new substation,
performed under contract by independent employers in
order to avoid hiring skilled personnel for whom there
would be no need except for such temporary occupation
The Union conceded throughout the negotiations that
never had any employees in the bargaining unit lost work
because of this outside activity. It stands undisputed that
much overtime work has been performed, and is being
performed by the employees represented by the Union,
and even that during the period of the existing contract
the permanent complement grew "by at least two men and
maybe four." The Union did not equivocate as to the
purpose of the proposed no subcontracting clause. It
wanted more of the work performed in the general area of
Owensboro, Kentucky, to be done by IBEW members,
regardless of the identity of the employer. When the
Company negotiator asked whether anyone had been laid
off because of the subcontracting, Van Winkle, IBEW
International Representative, answered "there has been
too much non-union work going on in this area" and "it
matters to the I.B.E.W." The Respondent then accused
the Union of being as much "interested in unionism in
Daviess County" as it was "interested in the welfare of
the men in this unit." And Van Winkle conceded "he was
not speaking in relationship of what it would cost these
fellows [the bargaining unit employees]." There can be no
question on this record but that the clause was to be- an
indirect device to organize the unorganized It was never
claimed throughout the conferences that preservation of
unit work had any relevance to the dispute over this
clause
At the end the matters of substance that divided the
parties were few. The Union made it a point to stress its
position that while it was considering certain counteroffers
in limited areas it was not thereby agreeing to waive any
of its remaining demands which continued to number
well over ten The question of wages was simply left
totally unanswered; the parties made no effort to reconcile
their differences there. What they did talk about sheds the
best light on the real provocation for the strike. In the
terminal stages of the last meeting, at one point the union
lawyer offered to drop the subcontracting clause demand
in return for a union-shop provision, promptly Van
Winkle corrected him by saying both had to be won A
recess was then taken and the Union returned with its
final offer; it contained a partial alternative element. The
wage demand of 40 cents and 30 cents remained a must,
on union security it could be either (1) union shop and no
subcontracting clause, or (2) modified union shop
present members to maintain membership and future
employees compelled to join , plus the subcontracting
clause. The union lawyer then said "These are our
alternatives." He then added "The union steward in the
second stage would be included in both of these
alternatives "'
The Company's answer was that in no event would it
agree to any form of union shop, and it was at this point
that it increased its wage offer, among other minor
concessions. No further mention appears about the
steward or any other of the many details still remaining in
dispute
In the circumstances of the moment, of course, there is
no way of telling whether, had the Respondent agreed to
the union shop or the subcontracting clause, the parties
might have come to terms on wages It is clear, however,
that these three were the major subjects in dispute and
which, because they could not be resolved, brought on the
strike. Ultimately every case involving an alleged violation
of Section 8(a)(5) of the Act presents a question of good
or bad faith, and, as has been said of old, the inquiry
courses along a two-way street. Times Publishing Co , 72
NLRB 676. The Union' s insistence to the bitter end upon
its subcontracting clause virtually an unlawful hot
cargo contract requirement contributed much more to
the impasse than any one of the many minor issues, such
as whatever the steward question had been reduced to by
this time. I am convinced the charge in this case is an
afterthought, an attempt to make the minnow swallow the
whale. The total record proves the question of the steward
was a minor matter separating the parties; the impasse
came over other matters It cannot be said the
Respondent insisted upon this particular item so that it
became the sine qua non to execution of any agreement
Without evidence of such insistence there cannot be any
unfair labor practice finding
General Allegation of Bad Faith
For the rest, the complaint states only that. the
Respondent bargained "in bad faith." Nothing specific
'What was meant by the phrase "in the second stage" in connection with
the steward is not explained in the record . Whether this reflected a
modification in the Union's proposal is not shown
GREEN RIVER RURAL ELECTRIC COOPERATIVE CORP.
was charged at the hearing as indicating such a pervasive
attitude. At one point the Company proposed a clause
requiring the Union to post a performance bond. There
was very little talk about it; the union negotiator argued it
was illegal, but he too was mistaken. He then accused the
Company of making the entire contract contingent upon
acceptance of this clause, and the company lawyer replied
he was not taking that position. No one ever spoke about
it again, and it was not mentioned at the end.6 At the
hearing the General Counsel said the bad faith was
evidenced by "the making of an offer, a counteroffer
which we do seek to say in essence did reduce the
desirability or a proposal below the contract that was in
effect." The unspoken but clear implication is that the law
requires an employer to start bargaining negotiations by
giving more than the employee had before, or that if he
begins by trying to help himself somehow he runs afoul of
this statute. The position is not well taken.
After carefully considering everything that was said at
the meetings and all the written proposals that were
exchanged, I conclude it cannot be said the preponderance
of the substantial evidence on the record as a whole
supports this complaint allegation. Company
representatives met with union negotiators whenever
asked, they listened to all arguments and always
responded coherently and logically, even if not to the
Union's satisfaction. The Company made meaningful and
substantial counteroffers in a number of areas - among
901
other things, contraction of the probationary period,
extension of seniority and recall rights, improved
vacations, longer sick leave accumulations, higher medical
insurance benefits, and outright wage increases for each of
the 2 years of a proposed contract. Judgment upon the
broad conclusionary allegation of bad-faith bargaining
demands appraisal of every word that is said during the
negotiations, every iota of proposal and counterproposal,
all the elusive nuances of juxtaposition among the related
ideas discussed. There would be no point in attempting to
explain fully the reasons for my conclusions, because such
a procedure would for the least mean paraphrasing all of
the minutes received in evidence and adding as much
again of whys and wherefores. A reviewing authority will
be better served if left only to examine and consider the
minutes themselves
I also find that the strike, which started in October
1968 and was still in progress at the time of the hearing,
was not an unfair labor practice strike.
RECOMMENDED ORDER
For the foregoing reasons, and in consideration of the
entire record, I recommend dismissal of the complaint.
'Note the distinction between "permissible" and "mandatory" subjects
of collective bargaining with respect to performance bonds in Arlington
Asphalt Co, 136 NLRB 742, enf i 239 F 2d 550 (C.A 4)