United Telepnone Co. of the West

UNITED TELEPHONE COMPANY OF THE WEST 779 several%States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices I shall recommend that the Respondent be ordered to cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Having found that the Respondent discriminated with regard to the hire and tenure of employment of Price Dry, I shall recommend that Respondent offer him immediate and full reinstatement to his former or a substantially equivalent position is without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay suffered by him as a result of the discrimination, by payment to him of a sum of money equal to the amount he would have earned from June 1, 1954, the date of his discriminatory discharge to the date of the offer of his rein- statement less his net earnings 19 to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Earnings in one particular quarter shall have no effect upon the back-pay liabilities for any other such period. It will also be recommended that Respondent make available to the Board, upon request, payroll and other records to facilitate the checking of back pay due. As the unfair labor practices committed by Respondent were of a character striking at the roots of employees' rights safeguarded by the Act and disclose a propensity on the part of Respondent to continue , although not necessarily by the same means, to defeat self-organization of its employees, it will also be recommended that Re- spondent cease and desist from infringing in any manner upon the employee rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of facts, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent has engaged in and is engaging in unfair practices within the meaning of Section 8 (a) (1) and (3) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Is The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 19 Crossett Lumber Company, 8 NLRB 440, 447-498; Republic Steel Corp. v. N. L. R. B., 311 U. S. 7. United Telephone Company of the West and United Utilities, In- corporated and International Brotherhood of Electrical Work- ers, Local No. 843, AFL. Case No. 30-CA-381. May 18,1955 DECISION AND ORDER On January 28, 1955, Trial Examiner Eugene E. Dixon issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter the Respondents and the General Counsel I filed exceptions to the Intermediate Report and sup- porting briefs. i The General Counsel agreed with the Trial Examiner 's conclusion that the Respondents, by changing the overtime schedule of one of their departments , had violated Section 8 (a) (5) and ( 1) of the Act, but excepted to the failure to find that certain other aspects of the same action constituted additional violations as alleged in the complaint. 112 NLRB No. 103. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and finds merit in the Respondents' exceptions. The Trial Examiner found that the Respondents had modified their contract with the Union without complying with the requirements of Section 8 (d) (1) of the Act, and that this constituted a violation of Section 8 (a) (5) and (1) of the Act. The Respondents contend that their action did not contemplate or effect any modification of the terms of the contract, and, therefore, that Section 8 (d) is inapplicable. They contend further that the only issue herein, resulting from the parties' dispute as to the correct interpretation of their contract, should be resolved by further negotiations or should be submitted to the courts rather than to the Board. Inasmuch as the issue of construction of the contract is now pending before a court of apparent jurisdiction no valid reason exists for the Board to enter this controversy. Under the circumstances we agree with the Respondents' contentions. The contract, which is effective until June 1956, provides, as set forth in the Intermediate Report, for a normal 40-hour week of five 8-hour days, and for payment of time and a half for overtime. All the em- ployees of the Respondents work on the basis of a 40-hour week except those in the plant department, who install and repair telephone lines and equipment. These employees have worked a 48-hour week with 8 hours' overtime pay for 7 or 8 years, because of the demands for new telephone equipment. As these demands had been substantially met, the Respondents in June 1953 announced that the plant depart- ment would be placed on the normal 40-hour week, and would work overtime only when emergencies made it necessary. The Union, which had been the recognized collective-bargaining representative of the Respondents' employees for a number of years, protested the Respondents' announcement, and claimed that the change in overtime violated the clause of the contract requiring that "All rules, schedules, privileges and benefits heretofore in effect which are not spe- cifically mentioned or changed by the provisions contained herein, shall remain unchanged . . . unless changed by mutual consent. .. ." In response to the Union's protest, the Respondents took the position that they had the right to establish the normal 40-hour week for the plant department in accordance with the contract and with the practice in their other departments. Consistent, however, with the pattern of har- monious relations which they had maintained with the Union, they agreed to discuss the matter. At the ensuing conferences, they discussed the Respondents' in- tended action as well as certain counterproposals advanced by the Union. During these discussions, the Union pointed out to the Re- UNITED TELEPHONE COMPANY OF THE WEST 781 spondents that the change from 48 to 40 hours a week meant a substan- tial reduction in earnings for the plant department employees. To make this reduction a gradual one, the Respondents offered to furnish these employees with 44 hours a week for 60 days before putting the 40-hour week into effect. The Union did not agree to this, and the Re- spondents rejected the Union's counterproposals. When the parties were unable to reach agreement, the Union proposed that the dispute be submitted to arbitration under the arbitration clause of the con- tract. The Respondents instead suggested filing a suit for a declara- tory judgment. Although the Union did not agree, the Respondents filed such a suit, which was pending at the time of the hearing herein. The parties nevertheless continued to discuss the possibility of arbi- trating their dispute until the Union filed its charges. Neither party sought to continue the negotiations thereafter. The complaint alleges no violation of the Act other than the one arising out of the parties' conflicting contract interpretations. It is obvious from the conflicting interpretations of the parties that the contract was not sufficiently clear to avoid a dispute over its terms. There is no showing that the Respondents, in carrying out the contract as they did, were acting in bad faith. Furthermore, the Respondents' action was in accordance with the contract as they construed it, and was not an attempt to modify or to terminate the contract. The pro- visions of Section 8 (d) of the Act are therefore inapplicable in this case. Regarding the question of which party correctly interpreted the contract, the Board does not ordinarily exercise its jurisdiction to set- tle such conflicts. As the Board has held for many years, with the ap- proval of the courts: ". . . It will not effectuate the statutory pol- icy . . . for the Board to assume the role of policing collective con- tracts between employers and labor organizations by attempting to decide whether disputes as to the meaning and administration of such contracts constitute unfair labor practices under the Act." 2 Nor do we find merit in the contention that the Respondents' failure to arbitrate this dispute constituted a refusal to bargain within the meaning of the Act. The possibility of arbitration was still under consideration when the negotiations were terminated after the Union filed charges with the Board. In any event, the Board does not hold that a failure to arbitrate a dispute is in itself a refusal to bargain in violation of the Act.' In view of its contractual relations with the Respondents, the Union's recourse in this situation was to exhaust the possibility of settling the overtime question by negotiation, and, failing such settle- 2 Consolidated EIircraft Corp, 47 NLRB 694, enfd 141 F 2d 364 ( C. A. 9). See also 0 own Zellerbacli Corporation , 95 NLRB 753 3 ,McDonnell Aucraft Cor poratton, 109 NLRB 930 ; Textron Puerto Rico (Tricot Divi- sion), 107 NLRB 583 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went, to seek judicial enforcement of its construction of the contract. The Board is not the proper forum for parties seeking to remedy an alleged breach of contract or to obtain specific enforcement of its terms.4 Accordingly, we find that the Respondents have not refused to bar- gain with the Union within the meaning of Section 8 (a) (5) of the Act. We shall, therefore, dismiss the compla int. [The Board dismissed the complaint.] MEMBER LEEDOM took no part in the consideration of the above 1)e- cision and Order. 4 See Association of Salaried Employees v Westinghouse Electric Corporation, 348 U S. 437, footnote 2, in winch the Supreme Court stated : ". It is significant, however, that breach of contract is not an 'unfaii labor practice ' A proposal to that end was contained in the Senate bill, but was deleted in conference with the observation . `Once the parties have made a collective bar ;anung contract the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board ' . .11 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Brotherhood of Electrical Workers, Local No. 843, AFL, herein called the Union, the General Counsel for the National Labor Relations Board, herein called the General Counsel and the Board, respectively, by the Board's Regional Director for the Seventeenth Region (Kansas City, Missouri), issued a complaint dated October 5, 1954, against United Telephone Company of the West (sometimes referred to herein as the Company) and United Utilities, Incorporated, herein referred to as Respondents, alleging that Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Sections 8 (a) (1) and (5) and 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. With respect to the unfair labor practices the complaint alleges in substance that Respondents refused to bargain with their employees and interfered with their rights by (a) concealing their intention to unilaterally discontinue working a 48- hour week ; (b) unilaterally discontinuing a 48-hour workweek ; (c) giving notices of the discontinuance of the 48-hour workweek to the employees directly but failing to give such notice to the Union and the Mediation and Conciliation Service in ac- cordance with Section 8 (d) of the Act; (4) discontinuing the 48-hour workweek in violation of their collective-bargaining agreement; (e) refusing "to attempt, with an open mind, to arrive at an agreement upon the proposals made by the Union" regarding the 48-hour workweek; (f) refusing to submit the question of the discon- tinuance of the 48-hour workweek to arbitration as provided for in the collective- bargaining agreement. The answer of United Telephone Company of the West (adopted by United Utilities, Incorporated, as its answer) admits certain of the facts alleged in the complaint but denies the commission of any unfair labor practices. The answer of Respondent further affirmatively sets forth certain allegations as to the circum- stances surrounding the points at issue herein which appear in the evidence and will be discussed below. Pursuant to notice a hearing was held at Gering, Nebraska, November 4, 1954, before the Trial Examiner duly designated by the Board's Chief Trial Examiner. The General Counsel, the Respondents, and the Union were represented at the hearing and were given full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the controversy. The General Counsel and the Respondents argued the issues orally on the record before me and also filed briefs. Upon the entire record, and from my observation of the witnesses, I make the following- UNITED TELEPHONE COMPANY OF THE WEST FINDINGS OF FACT 783 I THE BUSINESS OF RESPONDENTS United Telephone Company of the West is a Delaware corporation with head- quarters in Scottsbluff, Nebraska. It is a wholly owned subsidiary of United Util- ities, Incorporated, a Kansas corporation which owns the stock of several public utility companies, principally telephone companies, which furnish services to a large number of communities in 12 States of the United States. The operating revenues for 1953 of the companies owned by United Utilities, Incorporated, were in excess of $19,700,000. The president of United Utilities, Incorporated, Alden L. Hart, whose official station is in Kansas City, Missouri, is also president of United Tele- phone Company of the West. J. L. Rose, also located in Kansas City, is vice president and secretary of United Telephone Company of the West as well as comp- troller of United Utilities, Incorporated The vice president and general manager of United Telephone Company of the West, Otto Fuerst, as well as three other officers of that corpoiation I have no official connection with United Utilities, In- corporated United Utilities, Incorporated, apparently operates no lines directly itself, all such operations being performed by its various subsidiaries. Of these subsidiaries, United Telephone Company of the West (which conducts operations in both Nebraska and Wyoming) had total revenues for 1953 of $989,938.28, of which $27,586 57 2 was derived from interstate toll service business, its lines at several points being tied into the Bell System No contention is made by Respondents that they are not engaged in commerce within the meaning of the Act nor that they come within any of the areas in which the Board as a matter of policy will not exercise its jurisdiction. I find, therefore, that considered either as a single entity or as separate entities the Respondents are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act 3 II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local No 843, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. III THE UNFAIR LABOR PRACTICES A. The issue There is only one issue in this case. It involves the question of whether or not under the facts herein the discontinuance by Respondents or, perhaps more ap- piopriately stated, the cutting down by Respondents of the amounts of overtime to be worked by their plant department employees constituted a refusal to bargain within the meaning of Section 8 (a) (5) of the Act B. The contractual provisions involved Before getting into the events perhaps it would be well to set forth the pertinent provisions of the collective-bargaining agreement upon which the contentions of the parties are based. In 1953 a collective-bargaining agreement between the Company 4 and the Union was effective June 1, 1953, for a 3-year period, subject to the following wage re- opening clause as provided in part in article I, subsection 2: Either party on sixty (60) days written notice immediately prior to June 1 of any year, may serve notice of desire to adjust wage rates only . . . with- out nullifying or affecting the other provisions of this agreement i Vernon Allan, assistant treasurer and assistant general manager, James L Antrim, treasurer and auditor. and Geraldine Dop, assistant secretary 2 Although these figures ai e exact, the proportion of interstate business is in approxima- tion based on estimates supplied by the Respondents and accepted by the General Counsel a Hanford 13roadcastuip Company (KNGS), 110 NLRB 1257. The Greenwich Gas Com- pany and Fuels, Incorporated, 110 NLRB 564. A The Company at that time was known as the Platte Valley Telephone Corporation It was subsequently taken over by United Utilities, Incorporated, and its name changed to United Telephone Company of the west. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Article III entitled "Method of Negotiation" provides: 1. The Company and the Union agree to meet and deal with each other through their duly accredited officers and committees on matters relating to hours, wages, and other definite conditions of employment of the employees of the Company covered by this agreement, and the interpretation and applica- tion thereof Should any differences arise affecting this agreement, the Com- pany's delegated representative, or someone appointed by this representative, to represent him, and the Business Manager of the Union or someone appointed by the Business Manager to represent him, both of whom may be accompanied by employees of the Company, shall meet and endeavor to settle such differences; and in case of failure to fully agree, any matter remaining in dispute shall be submitted at the request of either party to an Arbitration Board to be selected in a manner as specified hereinafter. Article IV entitled "Method of Arbitration" provides: 1. If a controversy or grievance arising through an alleged misapplication, or a question of interpretation, of any of the specific provisions of this agreement are not adjusted and settled between the parties hereto, the same shall be promptly submitted at the written request of either party to a Board of Arbi- tration to be selected as follows: [Then follow the provisions for appointment of arbitrators, the binding effect of majority awards, and the allocation of costs] The pertinent provisions of article V entitled "Working Regulations and Practices" appear as follows 2. 40 hours, consisting of 5 8-hour days shall constitute a normal workweek; the workweek to run on a calendar weekly basis. The Company may schedule each employee any 5 days during this period. 4. The schedule of hours and shifts to be worked by employees of the Traffic Department shall be determined by the management of the Company and may be changed from time to time to meet traffic requirements, and when practicable, in the assignment of hours and shifts, preference shall be given to operators with more seniority. 5. Hours worked in excess of 8 in any one workday, or on a Sunday, shall be paid for at time and one-half of the regular rate of pay. Hours worked in excess of 40 in any one regular workweek shall be compensated for at a rate of time and one-half of the regular rate; except that for computing this 40 hours those hours worked on Sunday and those worked outside the normal 8 hour day shall not be counted. . . . At the end of the contract either as part of article XII or separately,5 appearing under the heading of "General," appears the following: 1. All rules, schedules, privileges and benefits heretofore in effect which are not specifically mentioned or changed by the provisions contained herein, shall re- main unchanged during the life of this agreement, unless changed by mutual consent of the authorized representatives of the parties hereto. C. The circumstances For several years the Union has represented the Company's plant, traffic, and accounting department employees in collective bargaming.6 According to a stipu- lation, "since 1946 the Company has regularly made available to employees in the- plant department, which at the time of the hearing employed a total of 27, excepting one employee located at Mitchell and two employees located at Oshkosh, 48 or more hours of employment per week including eight or more hours of overtime. Approximately one-third of the eight or more hours of overtime was spent in attend- ing the emergency interruptions in service." Notwithstanding the possible implication of the words "made available" in the stipulation that the 8 hours' overtime was work that the employees could elect to perform or not as they desired, it is clear and I find from Assistant General Man- 6The numbeiing of the paragraphs under article XII would seem to indicate that the general provisions of the agreement iweie not part of article XII I mention this simply because the beefs of both parties at tunes refer to the general clause as being part of article TIT So as there can be no misunderstanding herein, any reference to article XII of the "Genci al Clause" shall identify the general clause quoted herein 6 The Union's i epiesoutative status and the unit appropriateness of the above employees, excluding supervisors as defined in the Act, is admitted by Respondents. UNITED TELEPHONE COMPANY OF THE WEST 785 ager Allan's somewhat reluctant admission that the employees were expected to work the full 48 hours each week and that the same rules of attendance applied to the 8 hours' overtime as to the regular 40-hour week provided for as the normal work- week in the collective-bargaining agreement.? In the spring of 1954, pursuant to the reopening clause, wage negotiations took place. Meetings were held on April 22 and May 5 and 18 with an agreement providing for wage increases being reached on the latter date. This agreement was approved by the Union's international president in Washington, D. C., on June 1, 1954. No mention was made during the 1954 wage negotiations or the 1953 con- tract negotiations regarding the subject of overtime.8 Indeed, prior to and during the 1954 negotiations it was the Company's intention (as soon as a signed wage agreement had been obtained from the Union) to unilaterally discontinue the 8 hours' overtime which had been for so many years a part of the employees' wage structure. No mention of this intention was made to the Union. A few days after the Company had received from the Union the signed wage amendment of the contract it announced the discontinuance of overtime work for the plant employees as a standard practice. This was done by means of the follow- ing letter sent directly to each of the employees of the plant department. 9 UNITED TELEPHONE COMPANY OF THE WEST Post Office Box 1112 Scottsbluff, Nebraska MR ROBERT G. BENNETT June 8, 1954. Scottsbluff, Nebraska TO ALL PLANT EMPLOYEES OF THE UNITED TELEPHONE COMPANY OF THE WEST Effective June 16, 1954 we will discontinue the working of 48 hours per week. After the above date only regular eight hours days from 8 A. M. to 12 M gtom [sic] 1 P. M. to 5 P. M. unless otherwise assigned shall be worked. Five 8 hour days shall constitute a normal work week. Over time shall be worked only when emergency conditions make work necessary to restore service wherever interruptions may have occurred. All such over time must be approved by the plant department supervisors. Yours very truly, (Signed) Orro FUERST, Vice President and General Manager. Garrity learned of the Company's purpose the evening of June 8 by means of a telephone call from Bennett. On the following day Garrity called Vernon Allan, the Company's assistant general manager and a member of its negotiating committee, and protested the Company's action pointing out that it would result in approximately a 25-percent reduction in pay for the plant employees Allan's position was that the Company had the right to cut the overtime and pointed out that the traffic employees were working only a 40-hour week. Garrity asked that the Company suspend its June 8 order and requested a meeting "with the committee (to) thrash this matter out." Allan promised to explore Garrity's requests with Kansas City and call him back. This conversation of June 9 between Garrity and Allan gave rise to at least 2 other telephone conversations between those 2 prior to June 17, which was the date set 7 Notwithstanding this finding, I further find that the 8-hour day and the 40-hour week was the standard upon which vacation pay and similar pay such as holidays not worked was computed 8111 the 1951 or 1952 negotiations the subject did arise. The Company then mentioned that at some future date a curtailment of the 8-hour weekly overtime would have to be considered. According to the undenied credited testimony of the Union's international repiesentative, Garrity, who had seived Local No 843 and participated in its collective bargaining with the Company in 1947, 1951, 1952, and 1954, lie then informed the Company that ^i hen such curtailment occur ed the Union would seek a age increase to compensate for the loss in remuneration. fl Robert G Bennett was president of the Union Whether his name appeared on all the letters or whether the navies of the other individual employees appeared is not shown in the record 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for a meeting between the Company and the Union on the overtime question. In one of these conversations Allan informed Garrity that the Company was prepared to "make available" to the Union a 44-hour workweek for a period of 60 days in order to soften the employees' adjustment to a reduction of overtime work. Garrity did not agree to such a proposal and contended that any unilateral action on the matter violated the collective-bargaining agreement. The Company's position then (as it has remained to the present) was that it had no obligations to bargain on the subject. On June 17, as arranged, the bargaining committees of the Union and the Com- pany met in the company offices at Scottsbluff in an hour long conference on the problem.1o The Company proposed the 60-day 44-hour week proposition that Allan had previously mentioned over the telephone to Garrity. The Union unequivocally rejected it and made two counterproposals. One called for a guaranteed 44-hour week plus a 10-percent wage increase, the other would have guaranteed the em- ployees 400 hours of overtime a year to be allocated on the basis of 100 hours a quarter. Both these proposals were discussed in this meeting 11 but final decision by the Company as to them was deferred until they could be explored with the Kansas City officials. Allan indicated that he would call Garrity after he had dis- cussed the matter with Kansas City. It was also agreed that the Company would get certain information for the Union in connection with its 400-hour proposal. On June 21 or 22, Allan called Garrity and transmitted the information which the Union had requested.12 Allan also informed Garrity at this time that neither of the Union's counterproposals were acceptable to the Company and further stated "that the only thing that they could do was to grant the employees a 44-hour work- week until August 16. . . . .. At no time did the Union agree to it. This conversation between Allan and Garrity was followed by other telephone con- versations on the subject between the two. But at no time did the Union ever request a further meeting with the Company about the matter. Nor is there any contention that the Company had taken a position that it would not meet further with the Union on it. The subsequent conversations apparently centered on the Union's re- quest for arbitration of the question in accordance with the collective-bargaining agreement. Such a request was formally made to the Company by means of a letter dated June 7 from Garrity to Allan. It named the Union's 2 choices for arbitrators and asked that they and the 2 arbitrators to be selected by the Company meet at Scottsbluff July 15 to see if agreement could be reached by the 4 representatives of the 2 sides If such agreement could not be reached, it was the Union's suggestion that the case be submitted to the jointly chosen fifth member on briefs.13 In a telephone conversation between Garrity and Allan on July 12 concerning the Union's request for arbitration, Allan suggested that it would be cheaper to go into court and ask for a declaratory judgment. This conversation was followed by a letter from Allan to Garrity dated July 20 on the same subject 14 The letter formally acknowledged the Union's demand for arbitration but stated that the Company as then advised could not "concede that [the overtime question] is a matter that is subject to the arbitration clause " Allan again suggested that a declaratory judgment be sought and ended with the statement that "while we have not definitely made up our minds, we are rather inclined to think that we will bring such a suit even though you do not withdraw your request for arbitration." Three days later, 10 Pi esent for the Union besides Garrity were Bennett , Schrader, and Johnston Allan and Fuerst represented the Company u On fin act examination Gaiety testified that the 44 -hour 10-percent wage increase pro- posal of the Union was iejected by the Company without discussion From his cross- examination it appeals tliat it was discussed . From Bennett's testimony it further appears that it was Allan 's intention to discuss both of the Union 's proposals with his superiors in Kansas City 12This information involved the number of oNeitmie hours worked by various employees during a pieceding 12-month period i. No procedural guiles are set foith in the arbitration provisions of the collective-bar- gaining agicement Any contention of Respondent that the Union 's suggestion that the matter be presented on briefs absolved Respondent of the obligation to comply with the arbitration clause of the contiact would seem to be ii ithout merit Apparently more than 1 telephone conversation between the 2 took place about the matter of arbitration from the July 7 request of the Union to the July 20 reply by the Company Thus. the Company 's letter to Garrity refers to "conversations." It also shows that the Union Daily requested that the proposed July 1d arbitration meeting be set over to July 27 UNITED TELEPHONE COMPANY OF THE WEST 787 on July 23, the Union was served in the court action for declaratory judgment brought by the Company in the district court of Scottsbluff, Nebraska. A few facts complete the picture. A registered letter dated August 17 from Garrity to Allan reiterated the Union's demand "that the disputed question concerning overtime be arbitrated in accordance with the terms of the agreement" between the Union and the Company. The letter further stated that the Company's refusal to arbitrate would be considered by the Union as a refusal by the Company to bargain collectively in good faith. On the same date, August 17, Garrity executed refusal- to-bargain charges against the Company which were filed with the Board 2 days later. In the meantime, according to a stipulation between the General Counsel and the Respondent, from June 16 15 to August 16, 1954, the Company regularly made available 44 hours of employment a week including 4 hours of overtime, but there- after regularly made available 40 hours a week plus whatever overtime it deemed necessary.16 D. The contentions of the parties As already indicated in the Statement of the Case above, the complaint shows the General Counsel's contentions to be that seveial of Respondents' acts (or omissions to act) with respect to this overtime question constitute violations of Section 8 (a) (5) of the Act. Respondent relies on three main contentions 17 (1) ". . . that the contract of May 7, 1953, specifically provided for a 40-hour week consist- ing of 5 8-hour days and for the payment of overtime at one and one-half the reg- ular wage for work in excess of the 40-hour week and having so specifically pro- vided, the question of when overtime should be worked was entirely for the Com- pany to determine and it was not necessary to have the consent of the Union to do away with overtime work.", (2) in any event the Company never refused to bargain and did bargain on the subject; and (3) nor did it refuse to arbitrate. But if it could be found to have so refused such refusal was merely a br°ach of contract but could not be considered a refusal to bargain within the meaning of the Act. In my opinion the disposition of this matter turns on an interpretation of the contract between the Union and Respondents and the effect in connection therewith of Section 8 (d) of the Act. The pertinent parts of that section of the Act provide as follows where there is in effect a collective-bargaining contract . . . the duty to bargain collectively shall also mean that no party to such contract shall ter- minate or modify such contract, unless the party desuing such termination or modification- (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification; (2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications, (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time, and (4) continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period le According to the testimony of Allan the 44-hour week had not yet been put into effect as of June 17 when the meeting between the Company and the Union was held Appar- ently, howeiei, it was put into effect that same week 16 it is clear that notwithstanding any Imutalioms placed by the Company on the amount of overtime it would regularly permit, it would and does work all of the emergency ovor- tinie that sound opeiations demand Thus dining the period between Tune 16 and August 16 some employees did woil; in excess of the 44 hours then being permitted as a matter of couise Also after August 10, some employees did work more than the standard 40-hour week The Coupanys letter of June 8 to the individual emplo3ees presupposes this approach 17 In addition, Respondent appaicntly takes the position that since the policy of the Fair Laboi Standaids Act, as amended, is to penalize the working of overtime in oidei to spread won: action by in employer to effectuate that policy is not illegal. Such contention is without inel it 360028-36-vol 112-31 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later: . and the duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract... . Respondents take the position that article V, section 2, of the contract providing for a normal workweek of 40 hours forecloses any question as to the length of the workweek ; that work in excess of 40 hours per week may or may not be required purely as a management prerogative and apparently that no scheduled 48-hour work- week existed.18 In support of its management prerogative position Respondent relies inter alia on The Timken Roller Bearing Company, 70 NLRB 500, where the Board held that certain unilateral action by the employer regarding overtime did not violate the bargaining requirements of the Act . That case is clearly distinguishable and af- fords no support to Respondents ' position here. There, under somewhat similar contractual provisions 19 the Company offered overtime work ( 8 hours a week mak- ing a 48-hour workweek) to about 50 percent of the employees on a voluntary basis with no penalty for their refusal to work the overtime offered . At first about 60 percent of those offered the overtime work accepted but within 2 weeks the per- centage of acceptance dwindled to about 2 percent . Under those facts the Board, disagreeing with its Trial Examiner, refused to find that the employer "effectuated a change in the length of the workweek " and dismissed refusal-to-bargain charges in connection therewith. The Board reasoned that the requirement in the contract of payment of time and one-half for hours worked in excess of 40 in any 1 week made it clear that it was contemplated that from time to time individual employees would be expected to work overtime . Such individual offers of overtime work did not amount to a unilateral change in the workweek nor did they require prior consultation with the Union . The distinguishing facts of the case at hand are obvious. Here there had been in effect a required , scheduled workweek of 48 hours covering sub- stantially all the employees of the plant department which was unilaterally reduced to 40 hours by Respondents. The General Counsel would interpret the general clause of the contract , requiring that "All rules, schedules , privileges and benefits heretofore in effect which are not specifically mentioned or changed by the provisions contained herein, shall remain unchanged during the life of this agreement , unless changed by the mutual consent of the authorized representatives of the parties hereto," as covering and including the 48-hour workweek here in question . I agree. It seems to me that the clause on its face encompasses the 8 hours ' overtime as a "schedule " which must be maintained unless mutually changed. Moreover the 8 hours' overtime would also seem to be covered by the general clause under the category of "privileges and benefits" when it is considered that the difference between the 40-hour and the 48-hour week amounts to almost 25 percent less in pay. Significant to this interpretation of the general clause is the special reservation in the contract to the Company of the right to change the hours of the traffic employees .20 Such specific reservation in the contract of that right lends weight to the conclusion that the general clause covers the plant em- >a The latter position was repeatedly averred in Respondents ' answer As will be recalled, notwithstanding Respondents ' apparent reluctance to concede that prior to June 16, 1954, its workweek was on a 48-hour regularly scheduled basis , Allan's testimony so showed and I so found "The contract there provided that (a) "The normal hours of work shall be eight (8) per day and forty (40) per week . . ." and ( b) "There shall be no change in the daily hours of work unless such change be first mutually agreed upon between the Company and the Union " 20 Subsection 4 of article V of the contract provides that "The schedule of hours and shifts to be worked by the employees of Traffic Department shall be determined by manage- ment of the Company and may be changed from time to time to meet traffic require- ments . " Any contention that the tern " schedule" here is restricted in meaning "to the time of going to work" is negatived by the use of the term "shifts " with "hours" in the phrase Since shift schedules would govern the time of going to work, obviously "schedule of hour,," must relate to the number of hours worked It would thus seem that the term "schedules" in the general clause would include the number of hours to be worked as well the "tune of going to work"-the latter being the interpretation placed upon the term by Respondents' counsel. UNITED TELEPHONE COMPANY OF THE WEST 789 ployees' schedule of hours otherwise "not specifically mentioned" or changed in the contract. Having concluded that the 1953 collective-bargaining agreement between the parties by its terms required the 48-hour work schedule to be maintained unless changed by mutual consent, the next question is what effect this interpretation and Respondents' conduct produces under the provisions of Section 8 (d) of the Act. Or, narrowed to its component parts, it is resolved into two questions: (1) Does the general clause of the contract here bring Respondents within the requirements of Section 8 (d) of the Act? and (2) Did Respondents fail to comply with any of those requirements? With respect to the first question the pertinent portion of Section 8 (d) reads .. the duties so imposed [by Section 8 (d) (2), (3) and (4)] shall not be con- strued as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the pro- visions of the contract." This clause was interpreted by the Board in Allied Mills, Inc., 82 NLRB 854, 862, and in Tide Water Associated Oil Company, 85 NLRB 1096, 1099, to refer: to terms and conditions which have been integrated and embodied into a writing. Conversely it does not have reference to matters relating to "wages, hours and other terms and conditions of employment," which have not been reduced to writing. As to the written terms of the contract either party may refuse to bar- gain further about them, under the limitations set forth in the paragraph [em- phasis supplied], without committing an unfair labor practice. With respect to unwritten terms dealing with "wages, hours and other conditions of employ- ment," the obligation remains on both parties to bargain continuously. Subsequently, the Board again had occasion to reexamine the question in Jacobs Manufacturing Company, 94 NLRB 1214. In this case it approved by a divided de- cision the above doctrine apparently modified however to the extent that it would now bar compulsory bargaining on subjects which were "fully discussed" and "con- sciously explored" in negotiations and which constituted "part of the contempora- neous `bargain' " although not reduced to writing and not specifically mentioned in the written contract.2i Under the above cases, I am aware that it might be argued that the contract here, not specifically referring to the 48-hour workweek, and only being covered by inter- pretation of the so-called general clause would not be subject to the limitations of Section 8 (d). Indeed, the General Counsel apparently feels that the rule of the Jacobs Mfg. case, supra, will come into play only if it be concluded that the general clause of the contract does not cover the subject of the 48-hour week. If such con- clusion be indulged the applicability of the Jacobs rule of course is obvious. But, in my opinion, the Jacobs interpretation of the language of 8 (d) "contained in a contract" does not permit that the general clause here be considered as outside the scope of that language. Having decided that the general clause covers the subject of the continuance of the 48-hour week, I further conclude that it is a term "con- tained in a contract" within the meaning of Section 8 (d) of the Act. To take a con- trary view would be superficially rigid and inconsistent with what I understand to be the more liberal interpretation of Section 8 (d) by the Board in the Jacobs case. Surely, if a subject that has been discussed (whether or not an agreement has been reached regarding it), but which is not mentioned in a written collective-bargaining agreement, can be interpreted as coming within the language "contained in a contract" of Section 8 (d), so also can an unmentioned subject upon which an agreement can be spelled out by other terms of the contract be considered as being "contained in a contract" within the meaning of that section. Moreover, this view is in keeping with the policy of the Act and the congressional purpose of the section in question. As said by the Board in Lion Oil Company, 109 NLRB 680, "The fundamental purpose of [Section 8 (d) ] is to assure that, once n I+oui opinions were written by the five-member Board on this case. Members Houston and Styles and Chairman Herzog constituted the majoiity ; but a difference existed between the chairman and the others of the majority It was the chairinan who would exclude from the Allied Mills doctrine the subject matter covered in negotiations but not reduced to wilting, while Members Houston and Styles would compel bargaining on every matter not specifically written into the contract. Member Reynolds in his dissent took the posi- tion of the Respondent that Section 8 (d) obviated the necessity of bargaining on any otherwise bargainable subject duiing the term of the contract unless the contract provided contiary or the baigaming light was voluntarily waived 'ember Murdock found it unnecessary to consider the Allied doctrine in his disposition of the case 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties have established this bargaining relationship by entering into a contract, sta- bility achieved will not be placed in jeopardy by strikes or lockouts. It is for this reason that the section provides for a waiting period before strike or lockout action by the parties. Clearly Congress was interested in establishing an orderly procedure for contract negotiations and in preventing the industrial unrest that is the natural con- sequence of the failure of the parties to abide by their collective bargaining agree- ments [footnote omitted]." Surely where a logical application of the facts and inter- pretation of any portion of the Act are so obviously in accord with the overall policy of the Act, such application and interpretation should follow as a matter of course. E. The. elect of Section 8 (d) The General Counsel alleges in the complaint that Respondents violated Section 8 (a) (5) of the Act, inter alia, by failure to give the notices to the Union and the Federal Mediation and Conciliation Service required by Section 8 (d) (1) and (3) of the Act. Whether or not it be decided that the Company's letter of June 8 to the individual employees was not notice to the Union within the meaning of Section 8 (a) (5) and 8 (d) of the Act by reason of the Company's bypassing the bargaining rep- resentative of the employees (a matter I do not decide), it is clear that the Company, by changing the workweek from 48 to 40 hours approximately 1 week after it first announced its intention to make that change, did not comply with the period of notice required by Section 8 (d) (1) 22 and, as a result, failed in its duty to bargain within the meaning of Section 8 (a) (5) of the Act.23 As regards the allegation that the Compay failed to notify the Federal Mediation and Conciliation Service as required by Section 8 (d) (3) of the Act, I make no finding. Although, by the nature of Respondents' defense herein 24 (and its failure in its brief and argument to make any contention regarding the point) it seems a logical inference that no notice was given to the Federal Mediation and Conciliation Serv- ice as required by Section 8 (d) (3) of the Act, there is no specific admission nor di- rect evidence in the record to that effect. Because I deem Respondents' failure to comply with Section 8 (d) (1) of the Act sufficient to hold Respondents liable for a violation of Section 8 (a) (5) of the Act and sufficient to support the recommended remedy and order herein, I shall not concern myself further with this aspect of the case. And for the same reason I find it unnecessary to dispose of any of the other allega- tions of refusal to bargain in the complaint. Nor, would a finding that Respondents on June 17 and thereafter did bargain in good faith with the Union about the over- time matter be of any help to Respondents. Regardless how ready, willing, and able Respondents might have been herein to bargain in good faith or how much they actually did so bargain on the matter, it is clear from the language of Section 8 (d) as interpreted by the Board in Lion Oil that to avoid violating Section 8 (a) (5) of the Act Respondents were obligated to continue performance of the contract with the Union at least until its expiration date. Moreover, if the Union was unwilling to accept a modification of the contract before that date (even though it also might have bargained in good faith on the matter with the Company), the Union was under no obligation to agree to or accept any modification of the overtime schedule whatso- ever. F. The liability of United Utilities, Incorporated Among other things alleged in the complaint about United Utilities, Incorporated, is that it "exercises a substantial degree of control over the operation, finances, and labor relations of United of the West." This is denied in the answer which alleges that United Telephone Company of the West "is an independent corporation and that management and control thereof is left to the officers of the corporation who are located in Scottsbluff, Nebraska." 22While Section 8 (d) provides that written notice of a proposed modification of a con- tract be served "sixty days prior to the expiration date" of the contract (here the expira- tion date was not until May 31, 1956-a goodly number of 60-day periods hence), it is obvious from Lion Oil Company, 109 NLRB 680, that the earliest date here (absent con- currence of the Union) that the Company could change the length of the workweek (i. e.-the contract) was May 31., 1956-the termination date of the contract, and only then, of course, provided a 60-day notice had been given prior to that time. Moreover, it is clear from the Lion Oil decision that the period of notice required by the same language of 8 (d) can never be less than 60 days. 23 John W. Bolton & Sons, Inc., 91 NLRB 989, 990. % Chiefly, its insistence that it had and has no obligation under the Act to discuss the overtime question with the Union. UNITED TELEPHONE COMPANY OF THE WEST 791 As indicated in section I, above, Alden L. Hart is president of both companies and J. L. Rose is vice president and secretary of United Telephone Company of the West as well as comptroller of United Utilities, Incorporated Both make their head- quarters in Kansas City. That a substantial degree of control of United Telephone Company of the West's labor relations is exercised in Kansas City is apparent from the invariable reliance on Kansas City by Allan in his negotiations and dealing with the Union Although Rose testified that the officers in Kansas City act in "an advisory capacity" and "as co-ordinators" to the subsidiaries, it would be difficult on the rec- ord herein to avoid the conclusion that "advisory capacity" was synonymous with "final authority." The 1953 annual report of United Utilities, Incorporated, reveals the following: (1) United System management strives to give good service to the public at the least possible cost cCnsistent with its obligations to the owners of the business and its employees. (2) The same pension plans, the same non-contributory sickness and accident insurance, the same non-contributory group life insurance is in effect for United Utilities, Inc. and its subsidiaries. (3) The United System is proud of its employees, whose loyalty and devo- tion to the business manifests itself in many ways. Since, employees, as well as stockholders and customers, are expected to share fairly in the benefits aris- ing from the operation of the business, wage increases and other benefits are granted from time to time as conditions warrant. (4) The United System is able, better than ever before to . . . provide op- portunities for its employees. . . . In view of the foregoing and considering that United Telephone Company of the West is a wholly owned subsidiary of United Utilities, Incorporated, and considering the repeated references by United Utilities in its annual report that the employees of its subsidiaries are its employees, I find that United Utilities, Incorporated, is a proper party herein and that it is an employer of the employees involved herein within the meaning of Section 2 (2) of the Act. I further find that both Respondents named herein are jointly and severally responsible for the unfair labor practice found above.25 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the operations of the Company described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in the unfair labor practices set forth above, I shall recommend that they cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act In addition to recommending the usual remedy that the party guilty of refusing to bargain under Section 8 (a) (5) be required to do so, 1 shall also recommend here that Respondents restore to their plant department employees of United Tele- phone Company of the West the 48-hour workweek which, as found herein, the Company discontiued in violation of Section 8 (d) and 8 (a) (5) of the Act. Moreover, in order to restore as nearly as possible the employees to the position they would have been in but for Respondents' unfair labor practice against them 26 I shall also recommend that Respondents make whole any of the plant department employees for any loss in pay they may have suffered by reason of the discontinuance of the 48-hour workweek.27 25 Ruiner set Classics, Inc, and Alodcr it Mfg Co, Ine, 90 NLRB 1676, 1682 20 Phelps Dodge Corporation v Al L R I3, 313 U S 177, 194 ; N L R B. v Remington Rand, lac, 941` 2d 862, 872 (C. A 2) ; N L R B. v Killoiea, 122 F. 2d 609, 611 (C A 8), cert denied 314 U S 696 27 Cf 1Vestanghonse Pact/to Coast ltralce Company, 89 NLRB 145, 147, where it was ordeied that overtime discilininatorily ieduced be restored and the employees made whole for any loss in pay they suffered by reason of the unfair labor practice against them Although the cited case involves a violation of Section 8 (a) (3) of the Act and the case at hand involves a violation of Section 8 (a) (5), see Bocang Airplane Company, 80 NLRB 447. 455-6 where the remedy of reinstatement and back pay was ordered regarding an 8 (a) (5) violation 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since the record does not reveal any unlawful conduct on the part of Respondents herein except the modification of the contract with the Union , it would seem that no danger exists that Respondents in the future may commit other unfair labor prac- tices unrelated in kind to that found. Therefore the cease and desist order recom- mended herein will be limited to the specific unfair labor practice in question. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, Local No. 843, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All of United Telephone Company of the West's plant, traffic, and accounting department employees , excluding supervisory employees as defined in the Act, con- stitute a unit appropriate for collective bargaining within the meaning of Section 9 (b) of the Act. 3. International Brotherhood of Electrical Workers, Local No. 843 , AFL, was on or about June 1, 1953, and at all times thereafter has been, the exclusive rep- resentative of all the employees in the above described unit for the purposes of col- lective bargaining within the meaning of Section 9 (a) of the Act. 4. By modifying its contract with International Brotherhood of Electrical Work- ers, Local No. 843, AFL, on or about June 16, 1954 , in violation of Section 8 (d) of the Act, the Respondents have refused to bargain with said Union in violation of Section 8 (a) (5) of the Act. 5. By said conduct, the Respondents also interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and have thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] H. N. Thayer Company and Local 154, United Furniture Workers of America, CIO, Petitioner Thayer Company and Local 154, United Furniture Workers of America, CIO, Petitioner. Cases Nos. 1-RC-3920 and 1-I?C-3921. May 18,1955 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a consolidated hearing was held before Sidney A. Coven, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in these cases, the Board finds : 1. The Employers are engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employers. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employers within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The parties generally agree that a production and maintenance unit at each Employer's plant is appropriate. However, the parties 112 NLRB No. 105.