Murphy Diesel Co.

MURPHY DIESEL COMPANY Murphy Diesel Company and District No . 10, Inter- national Association of Machinists and Aerospace Workers, AFL-CIO. Case 30-CA-1 141 July 31, 1970 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND JENKINS On April 24, 1970, Trial Examiner George J. Bott issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the Act, and recommending that it cease and desist therefrom and take' certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Ex- aminer's Decision and a brief in support of its ex- ceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its 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, brief, and the entire record in this case, and hereby adopts the findings,2 conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Murphy Diesel Company, West Allis, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' The Respondent 's request for oral argument is hereby denied as the record, exceptions , and brief adequately present the issues and the posi- tions of the Respondent ' The Trial Examiner, under sec Ill, A, I of his Decision , inadvertently referred to Charles Cupertino as Carpenter This error is hereby corrected TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE GEORGE J . BOTT, Trial Examiner: Upon a charge 184 NLRB No. 87 757 of unfair labor practices filed by District No. 10, In- ternational Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union , on November 25, 1969, against Murphy Diesel Company , herein called Employer or Respondent , the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on January 29, 1970, in which he alleged that Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the National Labor Relations Act, herein called the Act. Respondent filed an answer, and a hearing was held before me on February 24 and 25, 1970, at Milwaukee , Wisconsin , at which all parties were represented . Subsequent to the hearing, General Counsel and Respondent filed briefs which have been carefully considered. Upon the entire record in the case and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is a Delaware corporation with of- fices and a plant located in West Allis, Wisconsin, where it is engaged in the manufacture and sale of diesel engines. During the year prior to the issuance of the complaint, Respondent sold and shipped, in interstate commerce, products valued in excess of $50,000 to customers located outside the State of Wisconsin. Respondent is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Refusal To Bargain 1. Basic findings The complaint alleges that Respondent violated the Act by revising and expanding work rules governing employee absenteeism and tardiness without bargaining with the Union. In addition, Respondent's implementation of the rules by disciplining employees and withholding holiday pay from four employees, as well as its refusal to process grievances filed as a result of Respondent's withholding holiday pay, are alleged as violations of the Act. Finally, the complaint also alleges that Respondent modified the terms of an existing col- lective-bargaining contract in violation of Section 8(d) of the Act by its actions in denying employees holiday pay and its refusal to process grievances in 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that connection. Respondent, on the other hand, denies the basic allegations of the complaint, and, as an affirmative defense, contends that it had no obligation to bargain about the work rules; that it acted in this area in accord with the collective-bar- gaining contract ; and that the rules and practices complained of have been effective for many years with the knowledge and consent of the Union. Respondent and the Union have been parties to collective-bargaining agreements for almost 30 years. The contract which was in existence at the time the events in this case took place is relatively comprehensive in its coverage, but it contains no provisions relating to work rules or shop rules as such. It does, however, have a brief management rights clause which provides that "except as ex- pressly limited" in the agreement "all management functions are reserved to the Company, subject to the other provisions" of the agreement. The con- tract also contains in article III provisions governing the payment of holiday pay which are invoked by both sides, for the Employer asserts that any denial of holiday pay to the employees in this case was strictly in accord with the contract, but the General Counsel claims that the employees involved would have been paid holiday pay in accord with past practice and the terms of the contract if Respon- dent had not enforced the work rules which he has alleged were unilaterally imposed. Lawrence Lindquist has been Respondent's fac- tory superintendent since approximately June 1968. Lindquist participates in collective bargaining as part of the management team and sits in at the second step of the grievance procedure. He testified that he is "ultimately responsible" for the administration and enforcement of employee work rules but that the rules are enforced in the first in- stance by the six factory foremen under his im- mediate supervision. When Lindquist began to work for Respondent he found a set of "Shop Work Rules"' posted in the factory on Respondent's bulletin board. The docu- ment is only a page and one half long and it had been prepared by Daley, Lindquist's predecessor, who had worked for Respondent for a year or two. As far as attendance and tardiness are concerned, which is all that we are concerned with in this case, the rule in the document is very brief and general, but it does warn employees that any violation of it "will be cause for dismissal." In essence, it states in approximately 75 words that the Employer, because of its relatively small size, is particularly dependent on employees being on time and regular in attendance. It urges employees to notify their foreman or the company nurse if they are going to be absent, and it cautions them that the Company cannot condone either excessive absenteeism or tardiness.' ' So titled in the document 2 It also appears from the testimony of George Cornwall, one of Respon- dent's officials, that some type of work rule has been posted at Respondent After Lindquist became superintendent he prepared and, on November 16, 1968, had posted "Shop Work Rules" which covered a number of subjects. The document had now grown to three pages and its treatment of "Attendance" is somewhat but not a great deal more detailed than what he found in the rules posted by his predeces- sor. With respect to the subject we are concerned with it reads: SHOP WORK RULES A. GENERAL: - 1. These rules have been established to cover obvious conditions or situations which would interfere with the orderly, safe, productive operation of the plant. No one could possibly cover all conditions or situations and it may therefore be necessa- ry to add to these rules from time to time. 2. Except where penalties have been specified, violations of these rules will result in disciplinary action which may vary from a warning notice, to disciplinary layoff, and/or to discharge depending on severity and/or frequency. B. ATTENDANCE: 1. All employees' are expected to be at work each scheduled work day. Any absence must be reported by the em- ployees to his foreman or the company nurse by 8:30 a.m. of that day. If the em- ployee wishes to have an absence excused, he must, on his return to work, present proof or information concerning the absence to his foreman for consideration. Unexcused absences will subject the em- ployee to discipline and eventual discharge. A history of excused absences could interfere with an employee's ability to perform in his job classification. 2. All employees are expected to be punc- tual in reporting to work. In order to ob- tain excuse for lateness; the employee must present proof or information to his foreman for consideration. Excessive unexcused lateness will subject the em- ployee to discipline, and eventual discharge. 3. Each employee will punch only his own time card. Violation will result in discharge. 4. Whenever an employee leaves the company premises, except on company business, he must punch out on his at- tendance card. Violation will result in discipline and eventual discharge. Em- ployees leaving the premises on a service for many years prior to the rules which Daley posted, but he was hazy about their content or scope MURPHY DIESEL COMPANY job will also punch out their attendance card. Lindquist described how the November 16, 1968, work rules relating to absenteeism and tardiness worked in practice. Their administration was "rather loose" and "informal" and enforcement was "lax." The previous pattern was followed in that there was no specific person designated to whom employees should report their absence. Em- ployee requests for excused absences were usually oral, often made in a telephone call to the night watchman, the timekeeper, the nurse, and "occa- sionally" to the foreman, and many employees did not call in at all. If an employee planned to be ab- sent from work in the future he was expected to ex- plain the case to his foreman and get his permis- sion . This was the "basic idea," Lindquist said, but he added that it was not always followed. The same procedure was supposed to govern tardiness or leaving the plant early. When an employee returned to work under the November 16, 1968, rules he was supposed to "present proof or information concerning the absence to his foreman for consideration," accord- ing to Lindquist, and this he said was "in some in- stances" required even if the individual had ob- tained advance permission to be away. He readily conceded, however, that the company did not uniformly require the employee to submit any kind of a written form or excuse for his lateness or absence prior to August 15, 1969. With respect to enforcement of the November 16, 1968, rules, Lindquist said that employees who flagrantly violated them were warned and disciplined, but no specific formula or procedure was followed, and the Company attempted to ad- minister them as reasonably and fairly as it could. The circumstances in each individual case were considered and the discipline might range from a verbal warning to a written warning and on to a layoff or discharge depending on the employee's record and the facts in each case. Lindquist testified that problems in production in June 1969 caused him to review a number of fac- tors which enter into productivity . He became aware of a substantial increase in lost hours of production because of tardiness and absenteeism, both excused and unexcused. A weekly survey revealed that the problem was getting worse and it was "decided that something needed to be done to control the amount of absenteeism." Lindquist said he reviewed the November 16, 1968, rules on the subject and noted that they were not only stated in a general fashion but were being administered in a "somewhat lax and informal manner." In his words, he "re-wrote, or reemphasized and clarified and particularized" the rules on absenteeism and tardi- ness and published them on August 15, 1969. It is the publication of these rules without bargaining with the Union which is the basic violation alleged in the complaint. As published, over Lindquist's signature, the rules read: 759 Dated August 15, 1969 From L.L. Lindquist To All Employees SUBJECT TARDINESS AND ABSENTEEISM When an employee accepts a job, one of the conditions of that employment is that he agrees to: (1) Report to work when scheduled and (2) Report to work on time. This is essential if the Company is to operate effeciently. I am therefore taking this means of re-emphasizing the importance of Shop Rules #B-2, dated 11/16/68, which are posted on the bulletin board, and of insisting that each employee comply with the Shop Rules as posted. Each instance of tardiness or absence will be considered as unexcused until the employee in- volved offers an acceptable reason for his tardiness or absence. Forms are available from the foreman on which the employee may state his reason for consideration. A reason must be presented in writing, to his foreman no later than (2) days after his return to work or follow- ing tardiness. Because of the seriousness of the situation, disciplinary action will be taken for repeated unexcused instances of tardiness or absentee- ism. Two instances of unexcused tardiness or absenteeism in a 3-month period will be con- sidered sufficient to institute the disciplinary procedure. Lindquist testified about how the August 15, 1969, absenteeism and tardiness rules' statement has been administered. First, as the announcement states, forms on which the employee can state the reason for his absence for his foreman's considera- tion have been supplied to the foreman. The "clarification" of August 15 specifies that two in- stances of absenteeism or tardiness in a 3-month period will be considered sufficient to start discipli- nary procedure, and Lindquist explained how that works at present. After the second absence or late arrival in the stated period Lindquist writes the em- ployee's supervisor, notes the facts, and alerts him that the absences or tardiness were unexcused. It seems that the foreman then warns the employee orally. After a third unexcused episode, Lindquist sends another note to the foreman. After a fourth, the foremen warns the employee in writing, and after a fifth, a disciplinary layoff of 2 days is im- posed. The sixth instance results in a 3-day layoff, and after 7 unexcused absences or hours lost by ar- 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD riving late or leaving earlier the employee is discharged. Lindquist said that a disciplinary procedure in "general form" existed prior to Au- gust 15, 1969, but he conceded that the seven-step procedure just outlined was new. The form which the employee may obtain from his foreman contains space for his reason for absence and a line for his signature. It also contains spaces where the foreman may approve or not ap- prove the absence and make relevant remarks. The form has lines for the foreman's and the superinten- dent's signatures. Such forms were never used in the past. Respondent maintains yearly attendance records for each employee. If nothing appears in the blank space for a particular day it means that the em- ployee worked that day. If the employee was absent all or a part of a day a symbol is entered in the space to indicate the reason for nonattendance. What is significant in this case is that the letter "E" entered in the space means that the absence was excused as far as the Respondent is concerned. Lindquist's secretary makes a determination about what symbol to enter based on the forms filled out by the employee. The forms "quite plainly indicate whether it's sickness, or whether it's excused or not," Lindquist said, and therefore it is a fairly mechanical operation for the secretary to deter- mine whether she should mark the absence excused or not. If there is nothing in writing from the em- ployee, the absence is unexcused, regardless of whether the employee may have discussed his absence with his foreman. Exceptions to this rule occur in extended illness cases, for example, and in such cases a doctor's certificate is acceptable. The August 15 bulletin with reference to absen- teeism and tardiness states that the employee must present a reason in writing to the foreman "no later than (2) days after his return to work or following tardiness." If nothing is submitted by the employee in writing within the stated period the absence is unexcused. As indicated earlier, written evidence of the reason is a new requirement, and the 2-day limitation also did not exist in the past. Lindquist cited examples where employees had been listed as "unexcused" because the form was submitted late even though the foreman had approved it and although the excuse was otherwise acceptable. Since August 15, 1969, a substantial number of verbal and written warnings have been issued and employees have been disciplined by 2- and 3-day layoffs for failure to comply with the directions contained in the bulletin on absenteeism and tardi- ness issued on that date. Generally this was true, according to Lindquist, "because we had no infor- mation as to why they were absent" even though the employee may have discussed the reason for his absence with his foreman. Lindquist said he knew of no case where an employee's absence had been ruled excused where he had not completed either the excuse form or submitted something in writing from a doctor. After August 15, many employees refused to complete the excuse form supplied by the company and in each case his absence was determined to be "unexcused."3 Warnings and disciplinary actions remain recorded in employee personnel files permanently. Employees Bell, Gertz, Wind, and Hoots did not receive all or part of holiday pay for Labor Day 1969 and they did not work the day before or after the holiday as required by article III of the labor agreement. In each case Lindquist made the deci- sion not to make the payments. He said Gertz left the plant early on the day before; Bell was absent the day before, attending a summons from his draft board, but this information was only " gossip"; Hoots was late the day before the holiday; and Gertz was "unexcused." In each case the basic reason for denial, regardless of what may have been the true facts, was that the Company had no infor- mation about the absences because the employees had submitted nothing in writing to the Company. A group of employees, some of whom had worked for the Company for many years, testified about their experiences since the August 15 an- nouncement about the rules and the practice and their treatment before that time. Their testimony is not substantially in conflict with Lindquist's or Cornwall's, and I credit it generally, although I find that one or more of them were in error about the existence, prior to November 1968, of some rules in the area we are exploring. Harold Blunke, employed for 24 years, recording secretary of Local 339 for 14 years, and now shop committeeman, testified that all employee contacts with the Company regarding absences or tardiness were on an oral basis, usually, in his case, with his foreman. Nothing in writing was ever required of an employee, except in the case of an extended illness. Since August 15, however, he has been required to ask his formen for a form to fill out when he returns to work. He gave examples of cases where he had dental appointments and has been excused by his foreman before he left, but since he failed to complete the required form on his return, he was marked "unexcused." Blunke also testified credibly and with no contradiction by the foreman involved that Foreman Banse told him that Lindquist knew that employee Gertz planned to be absent on his honeymoon and that he (Banse ) knew that Gertz had to have a blood test the day before the Labor Day holiday. Despite Gertz' honeymoon and Respondent's knowledge of it, he was "unexcused," and he also lost part of holiday pay because he was absent part of the time before Labor Day. Blunke has now begun to utilize the forms supplied by 3 Numerous records in evidence state in effect or literally that an em- ployee's absence is "unexcused " because "we did not receive an absentee or tardy report for those days" involved MURPHY DIESEL COMPANY Respondent . Recently he merely wrote "personal business" in the space supplied for an excuse and his absence was excused by the Company. Carpenter's testimony about a foreman 's authori- ty to grant time off and excuse absences on an oral basis in the past was in accord with Blunke's. He was also involved in attempting to process grievances for Bell , Wind , Gertz , and Hoots for their loss of holiday pay for Labor Day. In Bell's and Wind 's cases, he said that Foreman Boccaccio said that he expected them to be paid because both men had informed him that they would be in- capacitated on the days in question and that Corn- wall, a company official , knew about Wind 's case. Carpenter also said that Foreman Kerstein told him that he expected Hoots to be paid because he had given him permission to be off work because he had been subpenaed as a witness in a proceeding. Gertz had a written excuse from his doctor , Carpenter said . In his discussions with foremen or higher offi- cials about grievances , no one suggested to Car- penter that the men lost pay because no doctor's certificate or other written evidence had been presented to the Company . Carpenter's testimony about his conversations with foremen is undenied, for they were not called as witnesses. Employee Gertz testified that Foreman Banse cleared his absence with Lindquist for the week in September when he took his honeymoon and also let him off work to have a blood test required for a marriage license . Nevertheless , his absences were determined to be unexcused , and he lost holiday pay because he was away a few hours for the blood test, even though he showed his foreman a note from the clinic. Employee Jones had been absent prior to August 1969 on a number of occasions and had not been warned or disciplined . It was his practice when 'he was ill to have his wife telephone an office em- ployee and report it . Nothing was required of him on his return . In one case since August 1969, even though the company nurse arranged an appoint- ment for him at a medical clinic and he remained under treatment until released on December 1, he did not receive holiday pay for Thanksgiving because his December 1 absence was considered unexcused , despite the fact that the foreman saw the doctor 's release . When he protested to Foreman Banse , Banse told him, after checking in the office , that if he would sign "one of these ex- cuse slips" the Company would consider paying him. Employee Brooks left the plant early in October 1969 to keep an appointment with a doctor which had been arranged by Respondent 's nurse . He also appeared at his draft board for his physical on Oc- tober 24 . In both cases his foremen had approved his absences, but in both instances they were recorded as unexcused by Respondent because it had not received an absentee report from the in- dividual. Employee Pointek testified that he had 761 been absent prior to August 15, 1969 , because of a leg injury , but was not warned verbally or in writing even though he had supplied the Company with no written information to support his excuse. Since that time , however , in essentially identical situa- tions, his absences have been considered unexcused although the company nurse had sent him home. Records in evidence show that Lindquist wrote Banse to the effect that Piontek's absences or early departure were unexcused because "we did not receive an absentee report " from the employee. Employee Behringer has had similar experiences. After having been marked as unexcused , despite his foreman 's permission to leave, he asked his foreman how to avoid receiving warning notices from Respondent . The foreman told him to fill out "one of those excuse forms." Lindquist testified that the "criteria" for deter- mining whether an employee 's absence or tardiness should be excused have not changed over the years. The decision is basically the foreman's, and he said he has advised his foremen to satisfy themselves about the validity of the excuse before they ap- prove the excuse slip . Lindquist, in line with Respondent 's defense of past practice , stated that employees have always been warned or disciplined about absences and he identified certain records which established that warnings had been issued and discipline imposed prior to August 15, 1969, in certain cases . With respect to the employees who did not get holiday pay for Labor Day, Lindquist maintained that this had happened to other em- ployees on other holidays, that it was strictly in ac- cord with the contract, and that the criteria for determining whether a man should be paid in ac- cord with the contract have never changed. In the cases of the individuals who did not get Labor Day pay, he said that the Company had no information from them to sustain a determination that their absences fell within the exceptions in article III, which governs holiday pay in the contract. Lindquist conceded , however, that if the men were at draft boards , had doctors' appointments, or had been subpenaed, these would otherwise have been good excuses. There is no question about Respondent 's failure to advise the Union before it posted the August 15 bulletin or to consult with it about whatever changes in practices flowed from it. There is also no dispute about its refusal to meet and discuss the matter thereafter upon the Union 's request. Lindquist testified that after he became concerned about loss of production in June 1969 and con- tinued to survey hours lost through tardiness or ab- senteeism he did not discuss the matter with the Union at any time before the August 15 procedure was adopted because he ,"looked on this as purely a problem of managing the operation of the plant." He agreed that this "general attitude has (been) maintained constant and the same since that time," and is still the Respondent 's policy. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent did not bargain with the Union be- fore it posted the November 16, 1968, work rules and, although the Union did not file a grievance about it, the Union objected to them orally in its first monthly meeting with the Company in January 1969,4 and Lindquist recalled that the Union had indicated that it did not like the rules . As found above, in the negotiations for the last contract there was no discussion at all about work rules and their enforcement or about Respondent's right to make them. Immediately following the posting of the August 15, 1969, bulletin Blunke and the Union's shop chairman met with Lindquist and objected to the posting. Lindquist indicated to the Union that he thought the issue was not grievable, but promised to check on it. When the Union heard nothing from Lindquist, it wrote the Respondent on September 5, 1969, noted the posting, objected to it, and advised the Company that it would "be pleased to discuss the matter with you at your convenience, as we feel that any change in working conditions at your Company is a matter for negotiations." The Respondent replied over Assistant Secretary Corn- wall's signature that the "matter referred to is and has been considered a management prerogative and function." On November 11, 1969, the Union again wrote Respondent and, after noting its prior objections to the posting of work rules without first negotiating with the Union, advised the Company that it would refuse to recognize the work rules until " negotia- tions are completed." The Union also requested Respondent to discontinue issuing "reprimand forms" to employees in the unit until the Union was "in a position to recognize these Work Rules...." The Company replied the next day and told the Union that its position remained unchanged. On November 10, 1969, Cupertino, shop com- mitteeman , filed a grievance claiming a violation of contract in the denial of holiday pay to employees Bell, Wind , Gertz, and Hoots. Cornwall wrote Cu- pertino on November 21, 1969, and told him that the subject of the grievance was "not a grievable matter under the collective bargaining agreement." During the hearing in this matter, Respondent's counsel stated more than once that he would stipu- late that "the company will not bargain on these work rules because of the existing law and because of the existing facts and records in this case." 2. Analysis, additional findings, and conclusions Plant rules, particularly where penalties are prescribed for their violation, clearly affect condi- tions of employment and are mandatory subjects of collective bargaining.5 When, therefore, Respon- ' According to Blunke's credited testimony , the rules were distributed to employees as they returned to work after a strike, and the January meeting was the first meeting after the strike s Miller Brewing Company, 166 NLRB 1822, enfd 408 F 2d 12 (C A 9), dent on August 15, 1969, posted work rules governing employee absenteeism and tardiness, ad- mittedly without prior notice and bargaining with the Union, it violated the Act unless the posting was a mere statement of existing rules or unless the Union had waived its right to bargain about the subject. Contrary to Respondent's position, I find that the August 15, 1969, publication was not just a restatement of existing company policy and prac- tice and that the Union had not in any way con- sented to permit Respondent to act unilaterally in this area. It may be accepted that when Superintendent Lindquist joined Respondent he found posted on the Employer's bulletin board a set of shop rules, but it stated only that the Company could not con- done either excessive absenteeism or tardiness on pain of dismissal. It is logical, and I accept Corn- wall's testimony, that employees had been disciplined in prior years under this rule and Respondent's policy, but what was' "excessive" tardiness or absenteeism was never defined, and there were no detailed provisions for reporting absences or any enforcement machinery main- tained. The narrowness and simplicity of any rule that did exist made the plea contained in it almost hortatory. As described by employees and admitted by Respondent, any rule on the subject before Lindquist became superintendent was loosely en- forced and the practice remained essentially the same after he drafted and posted another set of rules on November 16, 1968, without consulting with the Union which represented the employees. These published rules had more in them than those that existed before. Absences were supposed to be reported to the foreman or the company nurse on the day the employee was away. When an employee returned to work he was supposed to "present proof or information concerning the absence to his foreman for consideration." But again, admittedly and in accord with employee testimony, employees, in individual cases, reported off to their foreman, the nurse, the timekeeper, and even the night watchman or a girl in the office if they unexpec- tedly were unable to report for work. If they knew they would be away they obtained their foreman's permission, and whether absent, late, or leaving the plant early, once permission was granted by the foreman they rarely, if ever, submitted anything to him on their return, either in writing or orally, ex- cept in the case of extended illnesses . The system was "loose" and "lax" in all its stages, including en- forcement through warnings or discipline. Although I credit Respondent's testimony that under the November 16, 1968, rules employees were warned and disciplined because of excessive absences, it is The Little Rock Downtowner, 145 NLRB 1286, 1304-05, Timken Roller Bearing Company, 70 NLRB 500, Tudee Products, Inc, 176 NLRB 968, Donna Lee Sportswear, 174 NLRB 800 MURPHY DIESEL COMPANY clear from Lindquist's testimony that discipline was usually imposed in only "flagrant" cases on a case- by-case basis and according to the circumstances in each case. The rule itself did not provide any specific penalties or disciplinary procedure for in- fractions, although it stated generally that violations would result in disciplinary action ranging from warnings to layoff to discharge depending on "severity" and "frequency" of violations. The August 15, 1969, publication of rules governing absences and tardiness was occassioned by Lindquist's determination that production problems were related to excessive lost hours. Ap- parently' the old rules were not effective and something else was needed. Although Lindquist said that he "re-wrote, or reemphasized and clarified and particularized the rules on absentee- ism and tardiness and published them on August 15, 1969," the newly published rules were mote than this because they contained new requirements on their face and radically changed the past prac- tice in their operation. Where the old rules did not require a written ex- planation for excuse for an absence but asked only that the employee supply his foreman with "proof or information" on his return, the new rules pro- vided that the "reason must be presented in writ- ing," and forms for this purpose to be signed by employee and the foreman for Lindquist's final ap- proval were made available. A second change ap- peared in the requirement that the written excuse must be presented "no later than (2) days" after the employees returned to work. A third resulted from the announcement that "two instances of tardiness or absenteeism in a 3-month period will be considered sufficient to institute the disciplinary procedure." There had been no time limit within which an employee needed to present an excuse in the past, and, as a matter of fact, as already found, if prior approval had been obtained or the Com- pany notified in some way about the absence, no further communications of any kind were necessary upon return to work in the usual case. Similarly, there had been no quota of absences or other hours lost or time period in which to count them in the past, but, as indicated in more detail earlier, it was administered on an individual basis. The added requirements found in the August 15 publication were not just appeals for employee cooperation for they were literally enforced. Em- ployee Becker, according to Lindquist, twice had his absences disapproved by Lindquist, even though his foreman had approved the written excuses he had submitted, only because the excuses were presented beyond the 2-day limit. And as found earlier and noted again below in respect to holiday pay, employees who had obtained prior permission from their foreman to be absent or whose absences would have been approved on their merits had their ' N L R B v Miller Brewing Company, 408 F 2d 12, 15 (C A 9), in N L R B v Hilton Mobile Homes, 387 F 2d 7 (C A 8), relied on by 763 absences considered unexcused only because they had submitted nothing in writing to support them. This was true in some cases even though the com- pany nurse had arranged for the employee to obtain medical attention. In short, Lindquist and Cornwall conceded that, except in the exceptional case, if there is nothing in the records in writing from the employee, the absence is automatically and "mechanically" recorded as "unexcused" by cleri- cal employees. Lindquist' also set up a formalized seven-step disciplinary procedure to enforce the new rules, and he admitted that this procedure was new. After a number of offenses of unexcused absences or tardiness after which an employee had been in sequence orally warned, warned in writing, and laid off for 2 days and then 3, he is finally discharged. There was nothing so formal, final, and inevitable in the Company's rules or practices before August 15, 1969, and records in evidence show that Respondent has strictly enforced these revisions and expansions since that time by issuing a great many warnings in all stages of the new procedure and has imposed a substantial number of disciplina- ry layoffs for failure to comply with the changes. All these disciplinary actions remain permanently recorded in the employee's personnel file. Even if the Union had indicated acquiescence by silence when Respondent posted rules or disciplined employees in this area in the past, there would be no waiver in the circumstances of this case, not only because the August 15, 1969, posting made sufficient changes, in Respondent's rules and practices to require bargaining about them, but also because a right once waived is not necessarily lost forever.6 I also find that there is nothing in the labor agreement between the parties which existed at the time the events in this case took place which could conceivably give Respondent the right to take unilateral action on this subject. I find and conclude, therefore, that Respondent made a material, substantial, and a significant change in its rules and practices on and after Au- gust 15, 1969, which vitally affected employee tenure and conditions of employment generally. Since these changes were made without bargaining with the Union, Respondent violated Section 8(a)(5) and (1) of the Act. I also find that Respondent, since August 15, 1969, by issuing verbal and written warnings, and by assessing 2- and 3-day disciplinary layoffs to em- ployees for failure to comply with its illegally im- posed and implemented work rules, violated Sec- tion 8 (a)(5) and (I) of the Act, in that it continued to change the terms and conditions of employment of employees in the unit without consulting or bar- gaining with the Union about the very premise which purported to support these disciplinary ac- tions. Respondent, the change was insignificant and the parties had bargained about it 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although the Union wrote Respondent shortly after the August 15, 1969, rules were posted and asked to discuss the matter on the ground that "changes in working conditions ... is a matter for negotiations ," and although the Company refused, advising the Union by letter of September 8, 1969, that the subject was "a management prerogative and function," there is no allegation in the com- plaint that this refusal to bargain after the Respon- dent had taken unilateral action in posting and im- plementing the rules was also a violation of Section 8(a)(5) of the Act. The issue was thoroughly litigated, however, for the evidence went in without objection and company witnesses were examined about their positions in the matter. Moreover, as set out earlier, Respondent's counsel stipulated that Respondent refused and continues to refuse to bar- gain about the particular work rules governing tardiness and absenteeism involved in this case. I find, therefore, -that by refusing to bargain about work rules on absenteeism and tardiness since Au- gust 15, 1969, Respondent also violated the-Act.' Respondent's denial of Labor Day holiday pay to employees Gertz, Hoots, Wind, and Bell and its refusal to recognize or process the grievance filed by the Union on their behalf over the denial on the ground that "this is not a grievable matter under the collective bargaining contract" was a logical but illegal extension of its position that it had no duty to bargain about rules on absenteeism and tardiness because they involved management prerogatives. Respondent argues that the denial of holiday pay was unrelated to the August 15 rules and governed solely by the criteria for determining holiday pay set forth in the labor contract which it maintains have never changed. The fallacy in this argument is that although the criteria have not changed, that is, to be paid for the holiday an employee must work all or part of the day before or after a holiday un- less his absence is caused by such things,,for exam- ple, as "bona fide illness ... jury duty, being sub- poenaed as a witness, or ... conditions beyond his control . . " the method for substantiating the reason for the absence has changed by reason of Respondent's unilateral action in requiring written proof in each case. Respondent's denial of holiday pay to four men flows from the modified rule, because, as set out earlier, each of the four had a reason for being absent which Lindquist admitted would have qualified them for holiday pay if true. Management representatives knew what the reasons were, and the only action the men had not taken to qualify was to submit written absence ex- cuse forms on their return to work. Since this was r Miller Brewing Company, I I 1 NLRB 831 This is not inconsistent with my position in denying General Counsel 's motion , made at the hearing, to amend the complaint to add an allegation that "Since on or about February 18, 1970, during negotiations for a new collective bargaining agreement, by refusing to bargain with the Union over the subject of employee work rules," Respondent also violated the Act General Counsel appealed by rul- an illegally prescribed condition, the employees had no duty to comply with it. When Respondent refused to consider the grievance filed in connection with the lost holiday pay on the ground that they were not "grievable matters under the collective bargaining contract," it could not and does not claim to have been taking the position that claims for vacation pay were generally not grievable. All that it could have meant was that its actions in the four cases were controlled by the August 15 rule requiring written evidence to support an absence. The men had not complied with the rule, and so their complaints were not "grievable" in Respondent's view because they were the result of an action which Respondent felt fell within its prerogative. This action was not merely a good-faith determination that there was no contractual obligation to process a particular grievance up to and through arbitration, but a re- jection of any obligation to consult, discuss, and bargain about rules on absenteeism and tardiness generally.' By denying holiday pay to the four men, and by failing to process their grievances, Respondent vio- lated Section 8(a)(5) and (1) of the Act, as the complaint alleges. For a number of years prior to August 15, 1969, there had been no requirement that employees must submit written evidence to support an absence in order to qualify for holiday pay under the con- tract. By imposing this condition after the most recent contract was signed, Respondent modified the terms of the labor agreement without the con- sent of the Union in violation of Section 8(d) of the Act, thereby violating Section 8(a)(5) and (1) of the Act. It ought to go without saying after the 35 years that collective bargaining has been the national pol- icy that the duty to bargain does not require the parties to agree, but it is also worth pointing out that the record in this case shows some confusion on both management's and the employees' part about what the new rules really mean, as well as some resentment over and rebellion against their enforcement. This, of course, is not conducive to the best kind of bargaining in the negotiations for a new agreement which are presently taking place and could lead to the kind of industrial unrest which the Act was designed to prevent. It is at least conceivable that if the Union had been or should be consulted about the rules, it might come up with some reasonable suggestions which might help al- leviate some of the confusion and unrest existing in ing to the Board, and the Board denied the appeal General Counsel has renewed his motion in his brief, and I deny it again for essentially the same reasons which I stated on the record at the hearing " Danner Press, Inc , 153 NLRB 1092, 1107, enforcement denied 354 F 2d 230 (C A 6), cf Central Illinois Public Service Company, 139 NLRB 1407, 1417-18, P R Mallory & Co., Inc, 171 NLRB 457 MURPHY DIESEL COMPANY 765 its ranks.9 At least, it seems to me, it is worth a try, and in case this last paragraph of a much too long decision is overlooked, I will recommend that the Board issue an order to that effect. Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is` an employer engaged in com- merce, and the Union is a labor organization within the meaning of the Act 2. The Union is the statutory representative of employees in the following appropriate unit: All employees engaged in production and maintenance of the plant, including stockroom and shipping employees, but excluding foremen, chief inspector, engineering depart- ment personnel, tool design engineers, all cleri- cal or office employees, and plant guards. 3. Respondent refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act since on or about August 15, 1969, by revising and expanding rules governing employee absenteeism and tardiness without prior notice or bargaining with the Union; by refusing to meet and discuss such work rules and the discipline imposed thereunder with the Union on request since Sep- tember 8, 1969; by issuing and continuing to issue verbal and written warnings since August 15, 1969, and assessing 2- and 3-day disciplinary layoffs to unit employees for failure to comply with said uni- laterally promulgated and implemented work rules; by withholding holiday pay from employees Gertz, Bell, Wind, and Hoots as a result of enforcement of new work rules and by refusing to recognize or process a grievance filed on their behalf in connec- tion with said denial; by modifying the terms of the then-existing collective-bargaining contract in violation of Section 8(d) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices , it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally promul- gating and implementing rules on absenteeism and tardiness , it will be recommended that said rules and the procedure devised to enforce them shall be rescinded and withdrawn. It will also be recom- mended that Respondent restore the status quo which existed at the time of its unlawful actions by rescinding all disciplinary actions resulting from violation or failure to comply with the unilaterally revised rules and to make whole those employees who were laid off solely as a result of the uni- laterally revised rules. It shall also be recommended that employees Gertz, Bell, Wind, and Hoots be paid full holiday pay for the 1969 Labor Day holiday.10 In all cases of lost pay the amounts shall be computed in the manner set forth in F. W. Wool- worth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It may be that in cer- tain cases an employee's absence would not have been excused even if he had submitted a written ex- cuse on one of Respondent's forms, however, it will be Respondent's obligation at the compliance stage of this proceeding to disentangle the effects of its own unfair labor practices." RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and upon the entire record in the case, it is recommended that Respondent, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Revising, expanding, promulgating, and thereafter enforcing work rules governing employee absenteeism and tardiness without bargaining with the Union. (b) Refusing on request of the Union to discuss and negotiate with it about the revision, expansion, promulgation, and enforcement of work rules governing absenteeism and tardiness affecting em- ployees in the appropriate unit. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their bargaining rights. 2. Take the following affirmative action to effec- tuate the policies of the Act: (a) Cancel and withdraw the August 15, 1969, rules on absenteeism and tardiness. (b) Cancel and withdraw from employee files all disciplinary actions which resulted from failure to comply with the revised rules and make whole all employees who were laid off solely as a result of the unilaterally imposed rules in the manner set forth in "The Remedy" section of this Decision. (c) Make whole employees Gertz, Bell, Wind, and Hoots for the holiday pay they did not receive for Labor Day' 1969, in the manner set forth in "The Remedy" section of this Decision. (d) Upon request bargain with the Union about "There was no emergency Lindquist studied the problem for many weeks and had ample time to consult with the Union Even if Respondent were acting in good faith and motivated only by legitimate business con- siderations, it was obligated to bargain with the Union before it made the changes in the circumstances of this case N L R B v Katz, 369 U S 736, 743, 747, 748, Murphy Motors, Inc, 178 NLRB 15, The Little Rock Downton ner, Inc , supra at 1304-05 10 Fibreboard Paper Products Corp v N L R B , 379 U S 203, Overnite Transportation Co v N L R B , 372 F 2d 765, 768 (C A 4), cert denied 389 U S 838 ii See N L R B v Remington Rand, Inc, 94 F 2d 862, 872 (C A 2), Bigelow v RKO Radio Pictures, 327 U S 251, 264-265 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the promulgation, content, and enforcement of plant rules governing absenteeism and tardiness af- fecting employees in the bargaining unit and if agreement is reached embody it in a signed con- tract. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and to assist in determining compliance with the recommendation respecting rescission of all disciplinary actions. (f) Post at its plant in West Allis, Wisconsin, co- pies of the attached notice marked "Appendix. 1112 Copies of said notice, on forms provided by the Re- gional Director for Region 30, after being duly signed by an authorized representative, shall be posted by Respondent 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. (g) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.13 12 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 13 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 Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE HAVE canceled and withdrawn the Au- gust 15 , 1969, revision of plant rules governing absenteeism and tardiness. WE HAVE canceled and withdrawn from em- ployee files all disciplinary actions which resulted from failure to comply with the Au- gust 15 , 1969, revised rules. WE WILL make whole any employees laid off solely for their failure to comply with the Au- gust 15 , 1969, revisions in our rules on absen- teeism and tardiness by paying to them the wages they lost by reason for the layoffs. WE WILL pay employees Gertz, Wind, Bell, and Hoots the holiday pay they did not receive for Labor Day 1969. WE WILL , upon request of District No. 10, International Association of Machinists and Aerospace Workers , AFL-CIO, bargain about the posting , content, and enforcement of plant rules governing absenteeism and tardiness. WE WILL NOT adopt or post new rules about absenteeism and tardiness without first bar- gaining with the Union. WE WILL NOT in• any other like or related manner interfere with , restrain , or coerce em- ployees in their right to bargain collectively through the above Union. MURPHY DIESEL COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be de- faced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office , Second Floor , Commerce Build- ing, 744 North Fourth Street , Milwaukee, Wis- consin 53203, Telephone 414-272'-3861.