Brotherhood of Locomotive Firemen and Enginemen

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN 677 Brotherhood of Locomotive Firemen and Enginemen and Office and Professional Employees Interna- tional Union, Local 425, AFL-CIO. Case 8-CA-4429 December 5, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA 3. The address and telephone number for Region 8, appearing at the bottom of the Notice attached to the Trial Examiner's Decision, is amended to read: Federal Office Building, Room 1695, 1240 East 9th Street, Cleveland, Ohio 44199, Telephone 522-3738. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On June 19, 1967, Trial Examiner John G. Gregg issued his Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended , and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner 's Deci- sion. Thereafter, the Respondent and the Charging Party filed exceptions to the Decision, and support- ing briefs , and the Respondent filed a brief in answer to Charging Party's cross-exceptions. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision , the exceptions and briefs , and the entire record in the case, and hereby adopts the findings, conclusions , and recommenda- tions of the Trial Examiner. I ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, Brotherhood of Locomo- tive Firemen and Enginemen, Cleveland, Ohio, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recom- mended Order, as herein modified: 1. In paragraph 2(d), in line 3 thereof, substitute for the words "to be furnished" the words "on forms provided ...." 2. Substitute, in the first and last paragraphs of the Appendix attached to the Trial Examiner's Decision, "Local 425" instead of "Local 424." ' We do not agree with the Respondent that, in the circumstances of this case, the Board should in the exercise of its discretion decline to assert ju- risdiction herein in favor of arbitration JOHN G. GREGG, Trial Examiner : This proceeding, in which the charges were filed on December 1, 1966, and the complaint issued on January 12, 1967, involves al- legations that the Respondent , Brotherhood of Locomo- tive Firemen and Enginemen , violated Section 8(a)(1) and 8(a)(5) of the National Labor Relations Act, as amended, 29 U.S.C., Sec. 151 et seq. On March 9, 1967, a hearing was held at Cleveland, Ohio, at which the Respondent, the Charging Party, and the General Counsel were represented by counsel . Briefs were filed by the Charging Party, Respondent , and General Counsel and have been carefully considered. Upon the entire record and my ob- servation of the witnesses , I make the following: FINDINGS OF FACT I. THE EMPLOYER Respondent is an unincorporated International labor organization, with headquarters located at 15401 Detroit Avenue, Cleveland, Ohio. Annually, in the course and conduct of its business operations, Respondent receives revenues from dues and assessments in excess of $50,000 directly from points located outside the State of Ohio. The Respondent, Brotherhood of Locomotive Firemen and Enginemen is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE UNION The Office and Professional Employees International Union, Local 425, AFL-CIO, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint herein states that on or about October 31, 1966, and continuing thereafter, the Respondent uni- laterally, and without notifying or consulting with the Union, changed the existing terms and conditions of em- ployment of the employees in the bargaining unit by assign- ing the auditing work which was previously performed by the employees in the unit to individuals who are not in- cluded within the unit, and that by such acts the Respond- ent interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed in Section 7 of the Act, thereby violating Section 8(a)(l) of the Act, and that by such acts the Respondent refused to bargain collectively with the representatives of its employees thereby violating Section 8(a)(5) of the Act. 168 NLRB No. 93 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent denies any violation, claims that au- diting work has never been part of the normal work of the bargaining unit; that the assignment of the work does not change the terms and conditions of employment of the employees in the unit and does not result in any detriment to them; and that in any event the Union was notified, bargained, and waived its right to bargain over the matter for the contract term. The Respondent asserts addi- tionally that the Board should decline jurisdiction in view of the failure of the Union to comply with an existing mandatory grievance and arbitration provision in the col- lective-bargaining agreement. A. The Background All office employees in the Respondent's Grand Lodge office in Cleveland, Ohio, excluding chief clerks in the president's and general secretary and treasurer's depart- ment, the secretaries to the president, assistant president, general secretary and treasurer, the editor and manager, the chief accountant-cashier, the supply clerk, the public relations director and investment clerk, temporary em- ployees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. On August 12, 1966, a majority of the employees of Respondent in the unit described above, by a secret-bal- lot election, designated and selected the Union as their representative for the purpose of collective bargaining with Respondent, and on August 19, 1966, the Union was certified as the exclusive collective-bargaining representative of the employees in said unit and has been and is now the exclusive representative of all employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Prior to the certification of the Union herein, the office employees of the Respondent were representated by the Grand Lodge Employees Association, hereinafter referred to as the Association, which had executed a prior collective-bargaining agreement with the Respondent. After the certification of the Union herein, the parties began to negotiate a collective-bargaining agreement. The Respondent offered a proposal to exempt certain classifi- cations from the coverage of the agreement, one of the classifications which it sought to exempt being that of au- ditors. Subsequently and after the execution of the agreement the Respondent selected two employees, Spangler and Foster, granted them leave from the unit, and appointed them as general organizer-auditors to perform audits full time. The Union promptly objected. On November 1, 1966, the Union notified the Respond- ent of its grievance, to which Mr. Gilbert, the Respond- ent's president, replied essentially that the assignment of auditors rested with the International president and that if there were any grievance it would have to be against the International president. The Union next notified the Respondent advising the Respondent of the Union's wish to suspend the grievance until resolution of charges, which were prepared to be filed with the Board. Following this, the Respondent advised the Union that the time for processing the alleged grievance had expired under the grievance procedure. Subsequently, the charges were filed by the Union on December 1, 1966. In view of the foregoing it would appear that the Respondent is estopped from seeking a refusal to assert jurisdiction by the Board and its request is so treated . In any event the remedies are not mutually exclusive . N.L.R.B. v. C & C Plywood Corporation, 385 U.S. 421. B. The Auditing Work The Brotherhood of Locomotive Firemen and En- ginemen is a labor organization, international in scope, representing the engineers and firemen, hostlers and hos- tler helpers, on a majority of the railroads in the United States and Canada. The Grand Lodge is the headquarters of the organization, with about 1,200 subordinate units referred to as local lodges, general grievance committees, and legislative and educational boards. The subordinate units are audited by the Grand Lodge pursuant to authori- ty granted to the International president through the con- stitution of the Brotherhood. The audit involves an in- vestigation of the moneys received and the expenditure of funds to ascertain whether they have been legally col- lected and expended. The auditor goes from the Grand Lodge out to the field, conducts his audit without supervi- sion, then makes a report of audit. According to the Respondent, for many years prior to October 31, 1966, nearly all of the auditing work per- formed by the Respondent was done by several em- ployees taken from the job classifications within the bar- gaining unit. The Respondent asserts that until 1966 the auditing work was conducted by various employees on a sporadic basis but that commencing in 1966 the necessity for increased audits, occasioned among other reasons by the increased recordkeeping requirements of the Labor- Management Reporting and Disclosure Act of 1959, and mergers of units, necessitated the creation by the Re- spondent of the classification of full-time auditor. There was testimony of record by H. E. Gilbert, pre- sident of the Respondent, that normally an employee from one of the classifications in the unit was selected-to perform field auditing work and that this employee would be paid at no less than the rate of statistical clerk. If his normal classification called for a rate higher than that of statistical clerk he would be paid at the higher rate. All audits, with one exception involving a supply clerk ex- empted from the unit, were thus performed prior to 1966, at which time the Respondent commenced using its new classification of general organizer-auditor. Gilbert testified that the direction to perform an audit always came from the International president who would tell the general secretary and treasurer to send out an au- ditor, leaving always to the discretion of the general secretary and treasurer the naming of the individual who would actually perform the audit. The secretary-treasurer would then solicit the cooperation of the employee prior to assigning the audit. If the employee did not accept, another employee would have to be solicited until a willing one was found. Gilbert testified that from his first association with the Respondent as an official, which began around 1937, the secretary-treasurer of the legislative and educational board assigned the general organizer and auditor to per- form audits and he did all the auditing work. He did not know when this practice stopped: Q. From 1942 - to the present time, you don't know of any particular case where an international president has assigned a general organizer to do au- diting work? A. I would not try to identify the time it stopped but I do know for years and years and maybe George BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN 679 Weldon who served as general organizer was the au- ditor in the Brotherhood. Q. He did all the auditing work? A. All that it was possible for him to do, yes sir. Q. When, to your knowledge, when did it start that the employees in the Grand Lodge started doing the auditing work? When did this begin? A. I could not identify that date Mr. Finley. Q. It began before you became international pres- ident? A. Oh yes, I think that is accurate. Yes sir. In testimony in an earlier proceeding before the Board in Brotherhood of Locomotive Firemen and Enginemen, 145 NLRB 1521, Mr.Bryant, secretary and treasurer of the Respondent, testified, as follows, relative to the statistical clerk: In addition to this, and this is why I stated previ- ously that the statistical clerk doesn't really cover the title of his duties, he is also our auditor. He performs auditing work in the field. When we feel it is necessa- ry to have an audit performed of a subordinate unit Mr. Murray is sent to that subordinate unit whether it be a Local Lodge or General Committee, General Grievance Committee. He audits their books, and naturally during the period of an audit he has asked many questions regarding the policy of our depart- ment concerning completing financial forms, and anything else that might come before him. Testimony by Joseph Whitely, an employee of the Respondent employed as utility clerk in the bargaining unit, indicated that he performed field audits while an em- ployee in the unit, was trained to perform such audits by William Murray, a unit employee, and in turn he trained Spangler to perform audits. Whitely testified that Atkin- son, who was not a unit employee, had performed an audit in 1964, that this had become the subject of discus- sion during contract negotiations between the Respond- ent and the Association in August 1965 when the Respondent explained why it had used a nonunion em- ployee to perform an audit using training as its reason. Statistics of record in this proceeding establish clearly that the audits were performed by the employees in clas- sifications included in the unit and there is no serious question as to this fact. According to uncontradicted statistics of record there were 21 audits performed in 1966; 10 in 1965; 25 in 1964; 9 in 1963; and 25 in 1962. It is not disputed that almost all of these were performed by individuals in classifications included within the bar- gaining unit. The record establishes additionally that the audits had been parcelled out by management on a selec- tive basis to six individuals in 1962, two individuals in 1963, four individuals in 1964, four in 1965, and five in 1966. C. The Negotiations The first negotiating session was September 8, 1966. At this meeting the wage commission on behalf of the Respondent, submitted a proposal to the union bargaining committee. The proposal contained the following as arti- cle I, (a), (1): In the office of the general secretary and treasurer eliminate the classifications "Assistant Tabulation Clerk" and "Insurance Acturial Clerk" from the schedule. We also propose an agreement from the OPEIU providing for exempted positions in the General Secretary and Treasurers Department as follows: "Programmer" "Insurance Underwriting Supervisor" "Auditors" Wade McCool, an employee of the Respondent and local steward of the president's department who was a member of the union negotiating committee, testified that this proposal was withdrawn on September 20, 1966, prior to the reaching of agreement by the parties on that date. McCool testified that the contract, as ultimately ex- ecuted by the parties, contained a provision relating to the payment of auditors, reading as follows: "An employee performing the work customarily performed by the statistical clerk will receive no less than the rate of the statistical clerk when such service is performed at other than the Grand Lodge Office." This was the same provi- sion, word for word, contained in the prior agreement. McCool testified that when the parties met on Sep- tember 8, they exchanged proposals and that no further proposals were submitted thereafter, the subsequent ses- sions were concerned with redefining and alternatives. The proposal for three exempt positions was presented by the Respondent orally and in writing and was a major item of discussion along with wages, job evaluation, and educational requirements at the meetings of September 8 and September 20. These matters were resolved in the six meetings commencing September 8 and ending Sep- tember 20. The proposal to exempt the three classifica- tions was mentioned every day the parites met, and throughly discussed on 2 or 3 days. According to Mc- Cool, the Respondent's position essentially was that to do effective auditing work and to assure the confidential aspect of the audit the Respondent had to have the right of selection of the auditor. The Union's position was es- sentially that the Respondent could appoint anyone from within the unit and assign him auditing work, the rate being established under the existing contract provision. Mr. Bryant, secretary and treasurer of the Respondent, testified that at the negotiations in which he participated in 1965 resulting' in a contract effective September 1, 1965, the Respondent took the position that discussion over a proposal to pay the statistical clerks' rate to em- ployees in the unit performing outside audits was in- tended to and was understood to cover not full-time audi- tors but part-time auditing, performed by unit employees so as to provide additional pay for such employees when so engaged. Prior to this time, according to Bryant, these part-time auditors would receive the rate of pay of their classification even though it was lower than that of statistical clerk. According to Bryant, during 1966 negotiations when the Respondent queried the Union as to whether the proposal to exempt auditors from the unit had been sub- mitted to the employees to see whether or not they wanted it, R. V. Frencel, president of the Union, made the remark that "we would rather have this work farmed out to outside people than to have any more exempted positions." At this time Mr. Whitely, who was a member of the negotiating committee, was not present and Mr. Frencel was acting in Whitely's stead. Gilbert, the Respondent's president, testified that when Frencel made this statement Gilbert took it to include all three proposed exempt positions. In his testimony concerning the negotiations, Gilbert 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pointed out that while some issues at the bargaining table were being settled with actual withdrawals in some in- stances, the matter of the proposal for exempt positions was not withdrawn in the specific sense but was merely dropped and not discussed further. According to the testimony of McCool, at the negotiat- ing session of September 20, 1966, when the proposal to exempt certain positions came up for discussion, Mr. Phipps, chairman of the wage commission, went over the proposals which were still pending, withdrawing some and granting others. Phipps stated, according to McCool, that he agreed to withdraw the proposal for exempt posi- tions. McCool testified that after a discussion McCool directed a specific question to the committee whether this meant that the committee had withdrawn their request for exempt jobs, to which Mr. Gilbert answered, "Yes." In his version, Gilbert did not directly deny the question and answer as stated by McCool but recounted a version in- dicating that no withdrawl was effected at the meeting of September 20. In so testifying Gilbert relied on shorthand notes which he made at the session in question, conceding that the notes were not verbatim, and that they did not cover all that transpired at the meeting. Based on my observation of the witness McCool as he testified I credit his statement concerning the question and answer and I find that the Respondent did withdraw its proposal for exemption of the position of auditors at the meeting of September 20, 1966. Gilbert testified that there had never been a provision in the contract concerning auditors as such, that on July 26 the employees proposed, "Employees in the bargain- ing unit assigned to audit the accounts of any lodge, com- mittee or board will receive no less compensation for such services than the rate applicable to classification of statistical clerk." The contract language finally agreed on was "an employee performing the work customarily per- formed by the statistical clerk will receive no less than the rate of the statistical clerk when such service is per- formed at other than the Grand Lodge Office." This was included in the 1965 and 1966 agreements. Gilbert stated that it was always the Respondent's position that the question of auditors rests solely with the International president and it is not nor has ever been the subject of an agreement between the Respondent Brotherhood and the Union herein. D. Concluding Findings This record establishes the existence of a long-standing practice of performing field audits through employees in the bargaining unit who were assigned part time to such duties and paid when performing audits as a minimum the rate of the statistical clerk. This provided employees in the unit not only the opportunity to earn more over a period of time but additionally the opportunity of widen- ing their scope of experience and opportunity for ad- vancement through participating in work requiring inde- pendence of judgement and operation and the opportunity to broaden their knowledge of the Respondent's opera- tions. I am convinced and I find that the performance of this work has become an integral part of the terms and conditions of their employment within the meaning of the Act, and within the scope of mandatory bargaining. Richfield Oil Company, v. N.L.R.B., 231 F.2d 717; Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203. I find and conclude from the testimony of record that the Respondent and the Union did in fact bargain over the matter of the method by which auditing was to be per- formed, that the Respondent urged its performance through the establishment of a classification of auditor which would be exempt from the bargaining unit, that the Union vigorously opposed this, and that prior to the reaching of agreement by the parties on a contract on September 20, 1966, the Respondent withdrew its proposal and subsequently executed a written collective- bargaining agreement containing a provision for the pay- ment of auditing services when performed by employees within the unit at a rate of pay as a minimum comparable to the pay of the statistical clerk. By so doing I find that the parties have by unmistakable implication proceeded on the premise that the past practice of performing audits through the part-time use of unit employees was to be continued for the term of the contract. Essentially then, when the Respondent, subsequent to the execution of the agreement and soon after its term began, took the uni- lateral action complained of herein, it in effect sought to and did modify during the life of the existing contract terms and conditions of employment of the employees within the unit. C & S Industries, Inc., 158 NLRB 454; Anaconda Aluminum Company, 160 NLRB 35. That the Respondent's action may have been founded on valid economic reasons rather than on any union animus is not material; for the Union has nonetheless been deprived of its right to bargain over the matter. As the Board has stated heretofore, "Experience has shown ... that candid discussion of mutual problems by labor and management frequently results in their resolution with attendant benefit to both sides. Business operations may profitably continue and the jobs may be preserved. Such prior discussion with a duly designated bargaining representative is all that the Act contemplates. But it commands no less." Town and Country Manufacturing Company, Inc., 136 NLRB 1022. It is well settled that an employer violates his duty to bargain in good faith within the meaning of Section 8(a)(5) of the Act when he unilaterally changes the terms and conditions of employment of his employees without discussion with their representatives or before an impasse is reached. N.L.R.B. v. Katz, 369 U.S. 736. Having found hereinabove that the assignment of the performance of auditing work outside the unit is a matter within the statutory phrase "terms and conditions of em- ployment," and thereby a matter concerning which the Respondent is required to bargain in good faith, and hav- ing found that the Respondent, unilaterally and without discussion or negotiation with the duly certified collective-bargaining agent of the employees, changed the terms and conditions of employment of its employees by assigning auditing work formerly performed by em- ployees in the unit to employees not included within the unit, I find such unilateral action by the Respondent a failure to bargain in good faith and thereby a violation of Section 8(a)(5) of the Act, and that such action interferes with, restrains, and coerces the employees of the Re- spondent and is accordingly a violation of Section 8(a)(l) of the Act. The Respondent contends that Fibreboard, by its ex- plicit terms, does not expand the scope of mandatory bar- gaining, and is limited only to the situation as considered in that case, and that since none of the adverse con- sequences present in Fibreboard can be found in the case at hand the requirement to bargain over the "subcontract- ing" or "contracting out" is merely permissible. I do not BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN 681 agree , for as discussed hereinabove, I do find adverse consequences flowing from the unilateral action of the Respondent herein, perhaps not as obvious as those presented in Fibreboard, but nonetheless adverse. I am simply not persuaded by the Respondent's argument that the unilateral action herein has been shown to be benefi- cial to the unit employees, nor do I find it on this record. The Respondent also urges the application of Kennecott Copper Corporation (Chino Mines Division), 148 NLRB 1653, to the case at hand, pointing out that there it was held that the unilateral action resulted in no significant deteriment to the employees in the appropriate unit. (Emphasis supplied.) The Respondent would draw an analogy here in that the Respondent has had a long- standing practice of seeking volunteers from the unit to perform the auditing work; the unit employees benefit since those who chose to do the work received higher wages while so employed; there have been promotions of employees within the unit to fill the vacant positions; and an additional employee has been included within the unit. On the contrary I find on this record evidence which con- vinces me that under the current method instituted by the unilateral action of the Respondent, pursuant to which two employees are given leave from the unit and assigned to full-time auditing outside the unit, there is no assurance that these jobs will continue to be filled in the future through assignment of unit employees; once the em- ployee is assigned to the full-time auditing he is in fact no longer included in the unit; the work of the unit is clearly diminished to this extent; and the opportunity to share in the benefits provided by participation in work carrying higher pay and wider opportunity is lost to the employees in the unit. I find sufficient significant deteriment in- volved in this action to take it outside the ambit of Kennecott. In any event, it has been stated before that the preser- vation or diversion of work usually performed in a bar- gaining unit represented by a duly constituted exclusive bargaining agent is the subject matter of mandatory bar- gaining under the Act. Service and Maintenance Em- ployees' Union, Local No. 399, AFL-CIO (Superior Souvenir Book Co.), 148 NLRB 1033. However, the Respondent contends that the Union herein waived its right to bargain over the issue since it was given the op- portunity to do so and chose not to. While the Board has recognized that the statutory right of a union to bargain about changes in terms and conditions of employment may be waived by the union, such waiver will not lightly be inferred. The relinquishment to be effective must be clear and unmistakeable. As stated in Proctor Manufac- turing Co., 131 NLRB 1166, "The Board's rule applica- ble to negotiations during the contract term with respect to a subject which has been discussed in precontract negotiations but which has not been specifically covered in the resulting contract, is that the employer violates Section 8(a)(5) if, during the contract term, he refuses to bargain or takes unilateral action with respect to the par- ticular subject, unless it can be said from an evaluation of the prior negotiations that the matter was `fully discussed,' or `consciously explored' and that the Union `consciously yielded' or clearly and unmistakable waived its interest in the matter." In the case at hand, based on the testimony of record and my crediting of the testimony of witnesses as in- dicated hereinabove, I do not find that the Union con- sciously yielded or clearly and unmistakably waived its interest in the matter. On the contrary it vigorously op- posed the proposal and did not yield. In this connection I am very much persuaded by the argument of counsel for the Charging Party herein that in view of the Union's firm resistance to the proposal, Frencel's remark should be in- terpeted as a reiteration of the Union's strong position that there would be no more exempt positions even at the cost of permitting subcontracting away of bargaining work, a position that the Union was hardly likely to agree to upon actual negotiation of that question. Accordingly, I find no waiver by the Union of its right to bargain over the matter of the assigning of audit work previously performed by unit employees to individuals not included in the unit, and I find that by its unilateral ac- tion of assigning such work to employees not included in the unit the Respondent changed the terms and condi- tions of employment of the employees in the bargaining unit in violation of the Act. N.L.R.B. v, Katz, 369 U.S. 736; N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217. In so finding I am not unmindful of the recent expres- sion of the Board in Sucesion Mario Mercado Hijos d/b(a Central Rufina, 161 NLRB 696, wherein the Board pointed out that the Respondent was not seeking to gain an economic advantage at the expense of its employees or of the union, but rather was faced not only with the ina- bility to operate efficiently because of matters beyond its control but with the inability to operate at all. In the case at hand there is no evidence of the inability of the Respondent to operate, no evidence that audits were per- formed unsatisfactorily by unit employees, nor that such audits failed to meet the standards and objectives of the Respondent. While the Respondent may quite properly conclude that full-time auditing is now required, the method of its achievement, now closely interwoven with the terms and conditions of employment of the unit em- ployees, is clearly suitable for resolution within the col- lective-bargaining framework. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent as hereinabove set forth, occurring in connection with its operations as described hereinabove, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it be ordered to cease and desist from such conduct. I shall also recommend that it be ordered to take certain affirma- tive action designed to dissipate the effect upon the em- ployees of the illegal conduct found and to effectuate the policies of the Act. The critical act of the Respondent, upon which the findings of violations herein are founded, was its uni- lateral act of establishing a full-time auditing classification of general organizer-auditor, and giving it an exempt status so that it was not included as a classification within the bargaining unit, and then assigning employees from the unit, who were placed on leave of absence status, to perform the auditing work in the exempt classification. I shall accordingly recommend that the Respondent restore 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the status quo ante, by rescinding its act of establishing the new classification as an exempt classification not in- cluded in the unit, and restoring the employees who were assigned to newly established auditing positions to their former status as employees within the unit in their former classifications; and that the Respondent cease and desist from making unilateral changes in the terms and condi- tions of employment of its employees particularly with respect to the matter of the performance of auditing work, without notice to the Union and without providing it with the opportunity of bargaining with respect thereto. While the Respondent urges that such an order would be undesirable to the Union herein inasmuch as it would result in demoting Spangler and Foster, I would rely on the good judgement of the parties herein to achieve a prompt and reasonable accommodation of objectives through the collective-bargaining process. Upon the foregoing findings of fact and upon the entire record in this case I make the following: 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 office employees in the Respondent's Grand Lodge office in Cleveland, Ohio, excluding chief clerks in the president's and general secretary and treasurer's de- partments, the secretaries to the president, assistant pre- sident, general secretary and treasurer, the editor and manager, the chief accountant-cashier, the supply clerk, the public relations director and investment clerk, tempo- rary employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. The Union at all times material has been and is the exclusive representative of all the employees in the aforesaid bargaining unit within the meaning of Section 9(a) of the Act. 5. By unilaterally establishing the classification of general organizer-auditor as a classification exempt from the classifications included within the unit and by select- ing two employees from classifications within the unit, placing them on leave of absence from the unit and assig- ning them to the exempt classification to perform auditing work formerly performed on a part-time voluntary basis by employees within the unit, the Respondent has uni- laterally changed the terms and conditions of employment of the employees within the unit, thereby refusing to bar- gain collectively with the Union as the representative of the employees within the unit and thereby has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(5) of the Act. 6. By its acts as set forth in the preceding paragraph the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed to them by Section 7 of the Act and has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the basis of the findings of fact hereinabove set forth and the foregoing conclusions of law, and upon the entire record in the case, I hereby recommend the is- suance of the following: ORDER The Respondent, Brotherhood of Locomotive Firemen and Enginemen, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from making unilateral changes in the terms and conditions of employment of the employees in the unit described hereinabove, without prior consula- tion with and bargaining with the Union herein, with par- ticular reference to the performance of auditing work. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Rescind the establishment of the classification of general organizer-auditor as a classification exempt from those included within the above-described unit. (b) Restore the two employees, Charles Spangler and Charles Foster, to their former status as employees within the unit in their former classifications included within the unit without prejudice to their seniority or any other rights which they may have been entitled to under the terms of the current collective-bargaining agreement. (c) If requested to do so by the Union herein, bargain collectively without delay with the Union over the sub- ject of the future performance of auditing work formerly performed on a part-time voluntary basis by the em- ployees within the unit. (d) Post at its Grand Lodge office in Cleveland, Ohio, copies of the attached notice marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for Region 8, after being duly signed by a representative, shall be posted by the 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 customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.2 ' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United State's Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 2 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT refuse to bargain collectively with the Office and Professional Employees International BROTHERHOOD OF LOCOMOTIVE FIREMEN Union, Local 424, AFL-CIO, as the exclusive representative of all the employees in the bargaining unit by unilaterally changing the terms and condi- tions of employment of the employees in the bargain- ing unit described herein with respect to the per- formance of auditing work formerly performed on a part-time voluntary basis by employees within the unit in classifications within the unit. WE WILL rescind our establishment of the classifi- cation of general organizer-auditor as an exempt classification not included in the unit. WE WILL restore employees Charles Spangler and Charles Foster to their former status within the unit without prejudice to their seniority or any other rights. WE WILL NOT interfere with the efforts of the Of- fice and Professional Employees International Union, Local 424, AFL-CIO, to negotiate for and AND ENGINEMEN 683 represent the employees in the appropriate bargain- ing unit as exclusive bargaining agent. BROTHERHOOD OF L000MO- TIVE FIREMEN AND EN- GINEMEN (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board' s Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621-4465.