Green River Rural Electric Cooperative Corp.Download PDFNational Labor Relations Board - Board DecisionsJan 23, 1970180 N.L.R.B. 897 (N.L.R.B. 1970) Copy Citation 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) Copy with citationCopy as parenthetical citation