International Broth. of Elec. Workers, Local 300 v. Enosburg Falls Water & Light Dept., 85-379

• Decision Date: 03 April 1987
• Docket Number: No. 85-379,85-379
• Citation: 527 A.2d 1150,148 Vt. 26
• Court: Vermont Supreme Court
• Parties: INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 300 v. ENOSBURG FALLS WATER AND LIGHT DEPARTMENT

Page 1150

527 A.2d 1150

148 Vt. 26

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 300 v. ENOSBURG FALLS WATER AND LIGHT DEPARTMENT

No. 85-379.

Supreme Court of Vermont.

April 3, 1987.

James W. Spink of Dinse, Erdmann & Clapp, Burlington, and Aaron D. Krakow of Feinberg & Feld, Boston, Mass., for plaintiff-appellee.

Richard A. Gadbois, Enosburg Falls, for defendant-appellant.

Before HILL, PECK, GIBSON and HAYES, ^* JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

HILL, Justice.

This is an appeal by the Enosburg Falls Water and Light Department (Department) from a Vermont Labor Relations Board (Board) decision holding that the Department committed unfair labor practices in violation of 21 V.S.A. § 1726. We affirm.

The International Brotherhood of Electrical Workers, Local 300 (Union) is the exclusive bargaining representative of the nonsupervisory employees of the Department. In June of 1984, the Union notified the Department that the current collective bargaining agreement would expire on August 22, 1984, and that the Union desired to negotiate a new contract. The Union's notification letter contained five nonwage proposals and a wage increase proposal. The parties quickly reached agreement on all proposals except the wage proposal.

The Union and the Department actively negotiated the wage issue for the next few months without any success. ¹ After meeting what the Union considered an impasse in the wage negotiations, the parties participated in an informal mediation session with a federal mediator on October 11, 1984. The parties met individually with the federal mediator during the substance of the session. While they reached no firm agreement, the parties did move closer to settlement on the wage issue. At the conclusion of the session, the Department's attorney, its only representative at the session, informed the Union representatives that he would have to communicate the various offers to the Department commissioners for their approval before his compromise positions could be binding. The Department's attorney thereafter consulted the commissioners, but they were unwilling to move from their pre-mediation-session wage proposal, and so notified the Union, thereby effectively repudiating all proposed compromise wage positions made by their attorney at the session.

The Union then requested fact finding on December 20, 1984. The fact finder's report, issued on February 26, 1985, recommended a wage increase above that requested by the Union. The Union agreed to accept the report but the Department did not. In the wake of the fact finder's report, negotiations continued until April 1, 1985, when the Union went on strike. Later that day, confrontations between Union members and individual commissioners at the Water and Light Department plant led the Union members to believe they had been fired.

On April 2, 1985, the Union filed an unfair labor practice complaint with the Board, alleging that the Department had violated 21 V.S.A. § 1726 by: (1) refusing to bargain in good faith with the Union; (2) discharging Union employees engaged in a lawful strike; (3) conditioning the reinstatement of these employees on agreements to drop union membership; and (4) refusal to resume bargaining.

After a hearing on the merits, the Board issued a decision finding that the Department had committed all of the unfair labor practices alleged in the Union's complaint. The Board ordered the Department to cease and desist from discharging striking employees, refusing to bargain in good faith with the Union, conditioning reinstatement on resignation from the Union, or in any other manner restrain or coerce its employees in the exercise of rights guaranteed them under state law. The Board further ordered the Department to: (1) resume collective bargaining with the Union; (2) offer striking employees immediate and full reinstatement to their former jobs; (3) award striking employees full back pay and benefits; (4) pay the union dues of a striking employee along with any readmission fee; and (5) post copies of the Board's order on Department bulletin boards.

The Department has complied with only affirmative relief order No. 5, and appeals all other aspects of the Board's decision and order.

I.

The Department's main argument is that the Board erroneously concluded that it had committed unfair labor practices. In essence, the Department argues that there was insufficient evidence upon which the Board could base the findings which were made to support the conclusion that the Department committed the various unfair labor practices. The standard we use to review the findings of the Board is well established:

"The prescribed law of this jurisdiction is that findings must stand if there is any credible evidence which fairly and reasonably supports them." Even though the evidence may appear to us, on the basis of the cold record, to preponderate against the findings of the trier of fact, we will not reverse, so long as the finding is supported by a quantity of evidence which is "more than a mere scintilla."

In re Muzzy, 141 Vt. 463, 470-71, 449 A.2d 970, 973 (1982) (quoting Seaway Shopping Center Corp. v. Grand Union Stores, Inc., 132 Vt. 111, 118, 315 A.2d 483, 486 (1974), and citing Green Mountain Power Corp. v. Commissioner of Labor & Industry, 136 Vt. 15, 21, 383 A.2d 1046, 1049 (1978)) (citations omitted). With this deferential standard of review in mind, we turn to each of the unfair labor practices found by the Board.

A. Refusal to Bargain in Good Faith

The Board concluded that the Department committed an unfair labor practice by refusing to bargain in good faith before the April 1, 1985, strike. Applying a "totality of the employer's conduct" test, ² the Board based its finding of refusal to bargain in good faith on a number of incidents which occurred before the April 1 strike.

The Board correctly stated that the duty to bargain in good faith is an "obligation ... to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement...." NLRB v. Montgomery Ward & Co., 133 F.2d 676, 686 (9th Cir.1943). Accordingly, there must be a "serious intent to adjust differences and to reach an acceptable common ground...." NLRB v. Insurance Agents' International Union, 361 U.S. 477, 485, 80 S.Ct. 419, 424, 4 L.Ed.2d 454 (1960). The Board also correctly stated that employer bad faith bargaining may be manifested in many ways, requiring an analysis of the totality of the employer's conduct within the context in which the bargaining took place in order to determine whether there has been a failure to bargain in good faith. ³ Continental Insurance Co. v. NLRB, 495 F.2d 44, 48 (2d Cir.1974).

The Board made three central findings which, taken together, formed the basis for its conclusion that the Department failed to bargain in good faith. First, the Board found that by failing to send a representative to the October 11, 1984, mediation session with full authority to enter into a binding agreement, the Department committed an unfair labor practice. While we agree that the evidence was sufficient to support the finding that the Department's representative at this session lacked the authority to conclude a wage agreement, we cannot agree that this conduct, in and of itself, constituted an unfair labor practice.

There is "no duty on the part of an employer to be represented at the bargaining table by a person with competent authority to enter into a binding agreement with the employees...." NLRB v. Coletti Color Prints, Inc., 387 F.2d 298, 304 (2d Cir.1967). Rather, use of a negotiator without authority to bind the employer is merely some evidence, to be considered in conjunction with other conduct, of employer bad faith. NLRB v. Advanced Business Forms Corp., 474 F.2d 457, 467 (2d Cir.1973); NLRB v. Fitzgerald Mills Corp., 313 F.2d 260, 267 (2d Cir.), cert. denied, 375 U.S. 834, 84 S.Ct. 47, 11 L.Ed.2d 64 (1963). Accordingly, we hold that that part of the Board's order holding this conduct by itself to constitute an unfair labor practice was erroneous. ⁴

This defect is not necessarily fatal, however, to the Board's conclusion that the Department failed to bargain in good faith. The Board could still consider the Department's conduct in sending a representative to the table without authority to take binding positions as some evidence of bad faith. More importantly, as noted above, the Board made two additional findings in support of its conclusion that the Department failed to bargain in good faith prior to the April 1, 1985, strike. First, the Board found, based on the undisputed evidence, that none of the Department commissioners attended the January 26, 1985, fact finding session. Only the Department's attorney attended, and he lacked the authority to make any binding agreement. We agree with the Board that in practice, fact finding, like mediation, involves an active effort to identify an acceptable compromise settlement to resolve the negotiations dispute. Unified School District # 36 v. Bartlett, 8 V.L.R.B. 77, 79 (1985) (quoting T. Kochan, Public Sector Bargaining, at 182-83 (BNA 1978)). Thus, the commissioners' failure to attend the fact finding session, or send to the session a representative with authority to take binding compromise positions, to the extent that it hindered the overall negotiation process, was appropriately considered by the Board as additional evidence of the Department's refusal to bargain in good faith.

In the third finding made to support its conclusion on the issue of good faith bargaining, the Board found further evidence of the Department's bad faith in an absence of a credible basis for the Department's adherence throughout the pre-strike period to its initial wage offer. There is ample evidence in the record of contradictory statements made at different times by the Department's attorney about the reasons for the Department's inability to...