General Telephone Co., of Ohio

94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Telephone Company of Ohio and Interna- tional Brotherhood of Electrical Workers, Local Union No. 986, AFL-CIO. Case 8-CA-12051 March 4, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On October 26, 1979, Administrative Law Judge Bernard Ness issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. I Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, General Tele- phone Company of Ohio, Marion, Ohio, its offi- cers, agents, successors, and assigns, shall take the action set forth in said recommended Order, except the attached notice is substituted for that of the Administrative Law Judge. I Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the brief adequately present the issues and the positions of the parties. 2 Member Penello reaffirms his adherence to the principles of Spielberg Manufacturing Company, 112 NLRB 1080 (1955), and to his previously expressed views on the propriety and desirability of both post- and pre- arbitration deferral by the Board. See, e.g., Member Penello's dissenting opinion in Suburban Motor Freight, Inc.. 247 NLRB No. 2 (1980), and cases cited therein. For reasons stated by the Administrative Law Judge in the attached Decision, however, Member Penello agrees that deferral to the arbitral award at issue in this case would be clearly repugnant to the Act and consequently inappropriate under the Spielberg doctrine. I We have modified the Adminstrative Law Judge's notice to conform with his recommended Order. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively in good faith with International Brotherhood of Electrical Workers, Local Union No. 986, 248 NLRB No. 10 AFL-CIO, by unilaterally modifying General Instruction 3.15 or any collective-bargaining contract entered into with the bargaining rep- resentative of our employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their rights under Section 7 of the Act. WE WILL bargain collectively, upon request, about any modification or change in General Instruction 3.15 or any collective-bargaining agreement entered into with the aforesaid labor organization. The appropriate bargaining unit is: All employees in the exchanges and geo- graphic area described in the collective-bar- gaining agreement with the Union in the Service, Engineering and Construction, Supply and Transportation Department reg- ularly scheduled for more than 85 hours per month in the following classifications includ- ing but not limited to: operators, operator service clerks, lineworkers, equipment oper- ators, senior lineworkers, cable splicer's helpers, cable splicers, storekeepers, install- er-repairers, station equipment installer-re- paisers, frameworkers, switchworkers, cen- tral office installer-repairers, test desk opera- tors, senior test desk operators, facility loca- tor-assigners, storeroom attendants, but ex- cluding all draftpersons, engineers, service observers, confidential employees, profes- sional employees, guards and supervisors as defined by the Act. WE WILL rescind the June 19, 1978, modifi- cation of General Instruction 3.15 as applied to the employees in the aforesaid bargaining unit. WE WILL make whole all employees in the appropriate unit described above for any loss of earnings suffered by them by reason of the unilateral change in General Instruction 3.15 made effective June 19, 1978, together with in- terest. GENERAL TELEPHONE COMPANY OF OHIO DECISION STATEMENT OF THE CASE BERNARD NESS, Administrative Law Judge: Upon a charge filed on June 23, 1978, by International Brother- hood of Electrical Workers, Local Union No. 986, AFL-CIO, herein called the Union, the General Counsel issued a complaint, as amended at the hearing, on July 26, 1978, alleging that General Telephone Company of Ohio, herein called the Respondent, committed unfair - ----- GENERAL TELEPHONE COMPANY OF OHIO 95 labor practices in violation of Section 8(a)(1) and (5) of the Act. The Respondent has denied the commission of any unfair labor practices. A hearing was held before me on January 10, 1979, at Marion, Ohio. Upon the entire record,' including my observation of the witnesses and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is an Ohio corporation with its princi- pal place of business in Marion, Ohio. It is engaged in the installation and servicing of telephone communica- tions systems. In the course and conduct of its business operations, it derives gross revenues in excess of $500,000 from its operations, and recieves at its Marion, Ohio, facility goods valued in excess of $50,000, directly from points outside the State of Ohio. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES At issue is whether the Respondent failed to bargain in good faith when it unilaterally, without any bargaining with the Union, changed the language of its General Instructions on June 19, 1978, to conform to its interpre- tation of the earlier language but contrary to the inter- pretation of such earlier language by an arbitrator. The Union and Northern Ohio Telephone Company, a sister affiliate of the Respondent, had a bargaining rela- tionship prior to the 1974 merger of Northern Ohio with the Respondent. After the merger, the Respondent adopted the collective-bargaining agreement then in effect. The contract involved in this proceeding between the Respondent and the Union ran from November 23, 1975, through November 25, 1978. The bargaining unit consisted of the Respondent's employees in the service, engineering and construction, and supply and transporta- tion departments, excluding all draftspersons, engineers, service observers, confidential employees, professional employees, guards, and supervisors as defined in the Act. In December 1974, a dispute arose between the Re- spondent and the Union over interpretation of article 7, section 7.10 of the collective-bargaining agreement, a provision which provided for transportation, board, and lodging or a reasonable allowance in lieu thereof for em- ployees requested to work away from the home station. In settlement of the grievance without-arbitration (the Gill grievance), the Respondent and the Union agreed in I The counsel for the General Counsel, with her brief, has offered as a post-hearing exhibit the Respondent's brief in an earlier arbitration hear- ing before Howard A. Cole, furnished to the General Counsel by Re- spondent's counsel subsequent to the hearing herein. I shall receive said exhibit as G.C. Exh. 3. January 1975, that Gill would be paid a certain sum of money. The parties further agreed that the Respondent's General Instructions, section 3.15, which had been in effect in the Respondent's other geographic areas would become applicable to the area covered by the employees in the bargaining unit involved herein. Section 3.15 is that portion of the Respondent's "Personnel and Proce- dures" relating to board and lodging expenses for non- management employees. In 1977, an arbitration hearing was held before Howard A. Cole involving grievances relating to mile- age expenses for travel to and from work outside the Re- spondent's reporting center. The dispute involved the in- terpretation of subsections of article 7, section 7 of the contract as implemented by General Instruction 3.15. In dealing with the issue of options in using company- pro- vided transportation or using personal cars with allowances in lieu thereof, the arbitrator in his decision, dated June 15, 1977,2 considered the language contained in section 7 of the contract and also General Instruction 3.15. In referring to the Gill grievance, Cole stated that the resolution of the grievance included a union accep- tance of the General Instruction reserving to itself the right to grieve, not on the General Instruction itself, but on its interpretation and application. A subsequent arbitration proceeding was held before Roger I. Abrams in February 1978. The arbitrator's deci- sion issued on April 21, 1978.3 He dealt with the issue of whether a mileage allowance was due an employee for transportation both to and from the worksite away from his regularly assigned exchange on the first day of the work assignment. In refusing to grant a mileage allowance for both ways, the Respondent relied on pro- visions in General Instruction 3.15. The arbitrator ob- served that "General Instruction 3 was the product of negotiation between the parties in settlement of the Gill grievance." We now turn to the third arbitration proceeding which, in turn, led to the Respondent's action co'-,nded by the General Counsel to be unlawful. The a ration hearing was held on February 9, 1978, before Cnarles F. Ipavec. His award issued on May 18, 1978. 4 The issue in- volved was whether the grievants should have traveled on a Friday afternoon from an outlying jobsite to their homes, and on the following Monday morning from their homes to the jobsite, on company time, when such Monday and Friday was not the beginning and ending of the job, and when the Company did not require the em- ployees to return to their reporting center. The earlier arbitration proceedings concerned mileage allowances. This last arbitration proceeding concerned travel time- company time or employees' own time. The Union's po- sition was that employees should be allowed to return to their home reporting centers every Monday and Friday on company time, rather than on their own time, even though the job on which they were working was not as yet completed. The Union relied upon its interpretation of certain provisions of General Instruction 3.15 and the 2 Jt. Exh. 4 3 Jt. Exh. 5 Jr. Exhs 6A and 6B 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective-bargaining agreement. The Respondent main- tained that where the job lasts more than I week, as was the case involving the subject grievances, the employees were required to travel on their own time on Fridays and Mondays which intervened between the first and last day of the job. The Respondent relied on its interpreta- tion of sections in General Instruction 3.15 as well as contract provisions. The arbitrator found that the lan- guage contained in paragraph 3.4 of General Instruction 3.15 was clear and supported the Union's position in the grievance although the language contained therein may not have conveyed the Respondent's intent. The arbitra- tor went on to say as follows: However, the arbitrator cautions the parties that this award is not to be construed as placing the Company's General Instruction 3, Section No. 15, in the same status as the Agreement between the parties; because, whereas the Agreement between the parties resulted from arms length negotiations, General Instruction 3, Section No. 15 resulted by a unilateral action on the part of the Company, and the Union's acceptance of such General Instruction, does not elevate the General Instruction to the level of the Collective Bargaining Agreement. What the arbitrator has ruled in this case, is that the existing rules and regulations of the Company, specifically paragraph 3.4 of General Instruction 3, Section No. 15, the Company has, by unilateral action, made a commitment to employees choosing such alternate arrangement when assigned to work on a project in an outlying area; and, such rule of the Company is that on Monday, the employee will drive from the Reporting Center to the work location, and on Friday, the employee will return to the Reporting Center, both trips to be on Company time. Said paragraph 3.4 contains the directive that the em- ployee will drive from the Reporting Center on Monday and to the Reporting Center on Friday. The reason that both trips must be on Company time, is because the Company has opted, by its own rules and regulations, to require an employee who is assigned to a project at an outlying location, to report to the Reporting Center on Monday, and to report to the Reporting Center on Friday. The arbitrator then ordered that the grievants be made whole for lost wages on each of the occasions they were precluded from traveling on company time on the Mon- days and Fridays "to apply from the time of the assign- ment of the three grievants to a project at an outlying location, which gave rise to the within grievance, and continuing as long as the pertinent paragraphs of General Instruction 3, Section No. 15, continue to contain essen- tially the language quoted herein." On June 15, 1978, Business Representative Arbogast was told by Jospeh Minnich, the Respondent's director of labor relations, that the Respondent was going to change the language in General Instruction 3.15 to con- form to its own interpretation rather than Arbitrator Ipa- vec's interpretation of the rules. Arbogast stated this was a matter subject to mandatory bargaining but Minnich refused to do so. Minnich testified,"[M]y position was it was a company rule and we had the right to change it." The revised language of the pertinent provisions of Gen- eral Instruction 3.15 were put into effect on June 19, to reflect the Respondent's interpretation which was reject- ed by the arbitrator, and a copy was given to the Union. Discussion The issue submitted to the arbitrator was whether under the collective-bargaining contract and General In- struction 3.15, the employees were required to travel on their own time rather than on company time under the circumstances described above. This was the sole issue presented to the arbitrator. The arbitrator interpreted the langugage contained in General Instruction 3.15 contrary to the position maintained by the Respondent. He specifi- cally found that under the clear provisions of General Instruction 3.15 the employees were entitled to travel on company time under the particular circumstances. The Respondent complied with the award by making whole the three grievants involved. The Respondent thereafter unilaterally changed the language of General Instruction 3.15 to conform to its interpretation, rejected by the arbi- trator. Thus, the Respondent changed the hours and wages of employees from that found to exist by the arbi- trator under his interpretation of General Instruction 3.15. But for the Respondent's unilateral modification of the language in General Instruction 3.15, the Respondent would have been required to permit travel on company time under similar circumstances. The Respondent argues that its actions conformed to the arbitrator's award and that its modification of the rule, described in General Instruction 3.15, was permit- ted by the arbitrator's award. The Respondent contends the award was limited to the specific grievants involved for only so long as General Instruction 3.15 remained un- changed. It argues the arbitrator found the Respondent could unilaterally change the rule. The Respondent fur- ther contends that the arbitration award should be given binding effect in accord with the Spielberg doctrine.5 The General Counsel argues the Respondent's action in revising General Instruction 3.15 constituted a unilat- eral change in the terms and conditions of employment and the Respondent thereby violated Section 8(a)(5) and (1) of the Act. The General Counsel further contends the Union did not waive its right to bargain over this matter and the Respondent was not privileged to unilaterally effect the changes. The General Counsel also takes the position the Respondent's action is not an appropriate ve- hicle for deferral to arbitration under the Spielberg doc- trine. In the arbitration proceeding the parties agreed to be bound, they participated fully in the proceeding, and the proceeding was fair and regular. There is no contention that the arbitrator's award to the three grievants based on his interpretation of General Instruction 3.15 was re- pugnant to the policies and purposes of the Act. Arbitrator Ipavec's interpretation of General Instruc- tion 3.15 and his award to the three grievants was within the scope of his decisional responsibility. However, I do 6 Spielberg Manufacturing Company, 112 NLRB 1080 (1955). GENERAL TELEPHONE COMPANY OF OHIO 97 not find the Respondent was free thereafter to unilateral- ly alter the language of General Instruction 3.15 to con- form to its interpretation thereof, contrary to the inter- pretation placed on it by the arbitrator. The interpreta- tion of the provisions of the collective-bargaining con- tract and General Instruction 3.15 were presented to the arbitrator for resolution. He found that employees were permitted to travel on company time rather than on their own time under the circumstances extant. His award was based on his interpretation of General Instruction 3.15 and the parties were bound by such award. To this the parties are in agreement. However, the arbitrator indicat- ed in his decision that the Respondent would be free to change such provision unilaterally because the applica- tion of General Instruction 3.15 to the employees in the bargaining unit was a unilateral action by the Respon- dent and not a result of negotiations between the parties. This observation by the arbitrator was dicta and com- pletely irrelevant to the issue he was called upon to decide. The issue before him was the interpretation of the rule-not whether the Respondent was free to change the rule after the fact. Moreover, his concept of the application of General Instruction 3.15 to the bar- gaining unit employees was completely at odds with the theory advanced by the two arbitrators in the earlier ar- bitration proceedings. They found the implementation of General Instruction 3.15 to be the product of negotia- tions in resolving the Gill grievance. I have no doubt that the agreement between the Respondent and the Union, whereby the provisions of General Instruction 3.15 would apply to all bargaining unit employees, con- stituted a mutual agreement establishing certain working conditions. In effect, this was a supplement to the collec- tive-bargaining agreement. Arbitrator Ipavec's theory that the Respondent was free to change the rule consti- tuted a misinterpretation of the collective-bargaining ob- ligations under the Act and was repugnant to the policies and purposes of the Act. Accordingly, I am not persuad- ed that the complaint should be dismissed on Spielberg grounds. I further find that the Respondent, by revising General Instruction 3.15, unilaterally changed the work- ing conditions of the employees in the bargaining unit and thereby violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All employees in the exchanges and geographic area described in the collective-bargaining agreement between the Respondent and the Union in the service, engineering and construction, and supply and transportation depart- ments regularly scheduled for more than 85 hours per month in the following classifications including but not limited to: operators, operator services clerk, lineworkers, equipment operators, senior lineworkers, cable splicer's helpers, cable splicers, storekeepers, in- staller-repairers, station equipment installer-repairers, test desk operators, senior test desk operators, facility loca- tor-assigners, storeroom attendants, but excluding all draftpersons, engineers, service observers, confidential employees, professional employees, guards, and supervi- sors as defined by the Act, constitute a unit appropriate for the purpose of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. At all times material herein, the Union has been the exclusive representative of the employees in the aforesaid unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. Respondent refused to bargain in good faith with the Union, which is the exclusive representative of its employees in the appropriate unit described above, by unilaterally modifying General Instruction 3.15 on June 19, 1978, as it applied to the employees in the aforesaid bargaining unit in derogation of its bargaining obligations under Section 8(d) of the Act armi it thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent refused to bargain in good faith with the Union by unilaterally modifying General Instruction 3.15, I shall recommend that the Re- spondent rescind such modification, as it applied to the employees in the bargaining unit described above, and make whole those employees for any loss of earnings sustained by them by reason of the unilateral change in General Instruction 3.15, together with interest thereon computed in the manner prescribed in Florida Steel Cor- poration, 231 NLRB 651 (1977).6 Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER7 The Respondent, General Telephone Company of Ohio, Marion, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with International Brotherhood of Electrical Workers, Local Union No. 986, AFL-CIO, as the exclusive representa- tive of the employees in the aforesaid appropriate unit, by unilaterally modifying the terms of General Instruc- tion 3.15 or of any collective-bargaining agreement en- See, generally, Isis Plumbing and Heating (o., 138 NLRB 71th (192) ? In the event no exceptions are filed as prosided h Sec 102 4 of the Rules and Regulations of the National l.abor Relations Board. the find- ings, conclusions, and recommended Order herein shall, as prosided in Sec 102 48 of the Rules and Regulations, he adopted b the Board and become its findings, conclusions. and Order, and all objections thereto shall he deemed waived for all purposes 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tered into with the bargaining representative of its em- ployees. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act. (a) Rescind its June 19, 1978, modification of General Instruction 3.15 as it applied to the employees in the aforesaid bargaining unit. (b) Bargain collectively, upon request, about any modi- fication or change in General Instruction 3.15 or any col- lective-bargaining agreement entered into with the afore- said labor organization. (c) Make whole all employees in the appropriate unit described above for any loss of earnings suffered by them by reason of the unilateral change in General In- struction 3.15 in the manner set forth in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all records nec- essary to analyze the amount of lost earnings due under the terms of this Order. (e) Post at its place of business in Marion, Ohio, copies of the attached notice marked "Appendix."8 Copies of the said notice on forms provided by the Regional Direc- tor for Region 8, after being duly signed by the Respon- dent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 8 In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United Stated Court of Appeals Enforcing an Order of the National Labor Relations Board."