Communications Workers of America

COMMUNICATIONS WORKERS OF AMERICA 625 Communications Workers of America, AFL-CIO and New York Telephone Company. Case 29-CB-702 November 17, 1970 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed by New York Telephone Comany, herein called the Company, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 29, issued a complaint dated November 3, 1969, against Commu- nications Workers of America, AFL-CIO, herein called Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(b)(3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, the complaint, and notice of hearing before a Trial Examiner were duly served upon the Company and Respondent. Pursuant to the provisions of Section 3(b) of the Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. With respect to unfair labor practices, the complaint alleges, in substance, that since on or about October 29, 1969, Respondent has engaged in a strike, work stoppage, and embargo on all overtime work per- formed by the Company's employees, except normal posted rotational overtime assignments, notwith- standing the fact that the collective-bargaining agreement between the parties provides for the assignment by the Company of such overtime work, and for the performance of such work. In its answer Respondent admits it has engaged in an embargo on all overtime work and as an affirmative defense alleges that the Company has violated Sections 8(a)(5) and 8(d) of the Act by failing to notify Respondent 60 days prior to the date of its intended modification of the collective-bargaining agreement and failing to notify the Federal Mediation and Conciliation Serv- ice or the New York State Board of Mediation of the existence of a dispute. On December 18, 1969, Respondent, the Company, and the General Counsel submitted a stipulation by which they waived a hearing before a Trial Examiner and agreed to submit the case to the Board for findings of fact, conclusions of law, and an order based upon a record consisting of the charge, complaint, and notice of hearing, and the answer, together with certain portions of the record of the related proceeding before the Federal District Court, Eastern District of New York in Kaynard v. Communi- cations Workers of America, AFL-CIO, 69-Civil- 1372, and the stipulation . On the same date all parties petitioned the Board to transfer the proceedings to the Board . On December 24, 1969, the Board issued an Order transferring the case to the Board and permitting the parties to file briefs. Thereafter, Respondent, Company, and General Counsel filed briefs.' Upon the entire record in this case , the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company admits and we find that it is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of New York, maintaining its principal office and place of business in the City and State of New York, with various other places of business in the City and State of New York, where it is, and has been at all times material herein, engaged as a public utility in providing telephone communications and related services. During the past year, which period is representative of its annual operations generally, the Company, in the course and conduct of its annual operations, derived gross revenues therefrom in excess of $500,000. During the past year the Company, in the course and conduct of its business, purchased and caused to be transported and delivered to its New York State and City places of Business, various equipment and other goods and material valued in excess of $50,000, of which goods and material valued in excess of $50,000 were transported and delivered to its places of business in interstate commerce directly from States of the United States other than the State in which it is located. The Company is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Unit At all times material herein Respondent has been and is now the recognized exclusive representative of I Respondent's request for oral argument is hereby denied, as in our opinion, the record submitted, including the briefs, adequately presents the issues and positions of the parties 186 NLRB No. 91 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all the employees in the following unit for the purposes of collective bargaining: All employees in the Plant Department of the New York Telephone Company (including all trunk facilities employees), in the Engineering Depart- ment of the New York Telephone Company in the Upstate Territory, and in the Empire City Subway Company (Limited), exclusive of all guards, watchmen, professional employees and supervi- sors as defined in Section 2(11) of the Act, and employees regularly performing confidential labor relations duties. B. Background On May 22, 1967, Respondent and the Company entered into a collective-bargaining agreement which was thereafter amended on July 29, 1968, pursuant to a provision providing for reopening as to wages, wage differentials, and wage practices once by either party giving written notice at least 60 days prior to August 26, 1968. The amended agreement remains effective until July 28, 1971, with automatic renewal for periods of 1 year in the absence of notice of termination. This amended contract contains the following provisions relevant to this proceeding: 7.03 Employees may be hired at rates above the lowest rates shown in Article 31 for their occupa- tional classification and wage zone. 7.04 The Company may once during the term of this Agreement propose adjustments in the wage rates (other than the maximum rate ) in any wage progression table and/or modifications in the wage progression tables to retain or reduce but not increase the overall length thereof . Such proposals shall not be effective unless agreement is reached within thirty (30) calendar days after notice of the Company's proposal is given to the Union. [This provision replaced the provisions under which the contract was reopened on July 29, 1968.1 11.01 It is agreed that neither the Company, its representatives and supervisors, nor the Union, its locals, representatives and the employees it repre- sents, will attempt to bring about the settlement of any issue by means other than the grievance provisions and, where applicable the arbitration provisions of this Agreement. 17.03 Any employee may be assigned to work overtime at any time. 17.06 During the months of January through May, and September through December, an employee will not be assigned to work overtime and/or on a non-scheduled day in excess of an aggregate of fifteen ( 15) hours in any payroll week , except in cases of emergency or where the employee consents to such agreement. Pursuant to article 7.04, the Company notified Respondent of its desire to propose adjustments by telegram of October 2, 1969. Respondent , by telegram of October 4, 1969, agreed to meet on October 8, 1969. At the meeting of October 8, the Company presented a $6.9 million package proposal to increase wage rates (other than maximum rates) by specified amounts. Respondent rejected the Company offer and presented four counterproposals: (1) increases in maximum wage rates ; (2) an end to "premium hiring" permitted by article 7.03; (3) reduction in the wage progression tables ; and (4) an increase in the overall amount of money in the package. The Company informed Respondent that its pro- posals to increase maximum rates and eliminate "premium hiring" were outside the scope of article 7.04. The parties met again on October 15, 23, and 27, but were unable to reach agreement . Although the Company offered to discuss the "premium hiring" question and the demanded increase in the top rates, both of which it urged were outside the scope of article 7.04 of the contract, in separate meetings, the Respondent demanded that the Company move on all four of its proposals. On October 28, Respondent called "an embargo on all overtime work effective 5 p.m., Wednesday, October 29, 1969, except for work necessary to give normal operating coverage, that is, normal posted rotational overtime assignments." The purpose of the embargo, as stated by Respondent, was to impress upon the Company that Respondent's rejection of the final Company proposal was a total rejection. The Company filed the charge against Respondent on October 30, 1969. C. Contentions of the Parties Respondent contends that the Company violated Section 8(a)(5) and ( 1) of the Act by failing to serve 60-days notice prior to the time it proposed to make the wage modifications , as required by Section 8(d)(1) of the Act. Therefore, urges Respondent, its overtime embargo in protest of the Company's violation of Section 8(a)(5) constitutes protected activity within the meaning of Section 7 of the Act and at worst, argues Respondent, the Union's activity constitutes no more than a breach of contract, and the Board is not the proper forum to remedy it. The Company contends that article 7.04 is not a "reopener" which establishes an "early expiration date" within the meaning of Section 8(d), therefore 60-days notice to Respondent was not required nor was notice to the Federal Mediation service required. COMMUNICATIONS WORKERS OF AMERICA Even if Section 8(d) did apply, it would not prevent the Company from submitting proposals as long as the Company did not thereafter lockout its employees or take unilateral action to affect the proposed changes. Section 8(d) does, however, argue the General Counsel and the Company, prevent the Union from engaging in strike activity unless the filing requirements are met by Respondent. D. Discussion Section 8(d) of the Act provides that "where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract unless the party desiring such termination or modification-( 1) serves a written notice upon the other party to the contract of the proposed termina- tion or modification sixty days prior to the . . . time it is proposed to make such termination or modification . ." (emphasis supplied). The prohibition here is against termination or modifications of the contract. We see nothing in this Section of the Act that would prohibit parties from submitting proposed contractual amendments that would not take effect except by mutual agreement. In the case before us, the Company took no economic action, instituted no unilateral changes, and under Section 8(d)(4), could take no lawful economic action without the consent of Respondent until the expiration date of the contract. We do not view Section 8(d)(1) as requiring 60-days notice before submitting contractual proposals, as the Company did here, where the parties have specifically provided for such proposals to be submitted which would not become effective unless agreement was reached within 30 days. The contract provision involved does not contemplate giving either party a right either unilaterally to modify the agreement or to exercise its economic strength in support of any proposal to modify. In fact, it adds little of substance to the rights either party would have in the absence of any proposal, since it is always possible to amend a contract in mid-term by mutual voluntary consent. The only addition here is a "ground rule" that if the Company makes a certain limited type of proposal, the discussions of that proposal are to be brief, and if no mutual agreement is reached within 30 days the whole matter is to be laid aside and no further proposals or discussions are to be had except at the regular negotiating time. We thus find that the Company did not violate Section 8(d)(1) and 8(a)(5) and (1) of the Act by failing to give Respondent 60- days advance notice of its proposals. We further find the Company did not violate 627 Section 8(d)(3) of the Act by failing to notify the Federal Mediation and Conciliation Service and the New York State Mediation Board of the existence of a dispute. Where, as here, the contract proposals become void unless agreement is reached within 30 days, and the original contract is to remain in effect, notification to the Federal and State Mediation services would serve no useful purpose. It follows, therefore, that the overtime embargo placed upon the employees by Respondent, was unprotected concerted activity violative of Sections 8(d) and 8(b)(3) of the Act. Under section 7.04 of the agreement, Respondent had solely the right to agree or disagree with proposals submitted by the Company. In submitting counterproposals, and seeking to enforce these counterproposals by means of a work stoppage, Respondent had the duty to comply with Section 8(d), not the Company. Having failed to comply with the notice provisions of Section 8(d) and resorting to a work stoppage prior to the expiration date of the contract, Respondent has violated Sec- tions 8(d)(I), (3), (4) and 8(b)(3) of the Act, and we so find. IV. REMEDY Having found Respondent in violation of Section 8(b)(3) of the Act for taking economic action without complying with the provisions of Section 8(d), we shall order it to cease and desist therefrom. CONCLUSIONS OF LAW 1. The New York Telephone Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By taking economic action against the Compa- ny without complying with the provisions of Section 8(d) of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(3) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Communications Workers of America, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from engaging in, calling, or causing the employees of the New York Telephone Company to engage in a strike or work stoppage, the object of which is to renew, modify or amend the collective-bargaining agreement, without first having 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complied with the requirements of Section 8(d) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Terminate the overtime embargo placed on the employees of the New York Telephone Company. (b) Post at its business office copies of the attached notice marked "Appendix". Copies of said notice, on forms provided by the Regional Director for Region 29, shall, after being duly signed by an official representative of Respondent, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Furnish to the Regional Director for Region 29 signed copies of the attached notice marked "Appendix", for posting, the Company willing, at the New York Telephone Company's facilities in places where notices to employees are customarily posted. The notices shall be maintained there for a period of 60 consecutive days thereafter. Copies of said notice, on forms provided by the Regional Director for Region 29, shall, after being duly signed by an official representative of Respondent, be forthwith returned to the Regional Director for such posting. (d) Notify the Regional Director for Region 29, in writing, within 10 days from the date of this Order, as to the steps taken to comply herewith. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT engage in, call, or cause the employees of the New York Telephone Company to engage in a strike or work stoppage, the object of which is to renew, modify or amend the collective-bargaining agreement, without first having complied with the requirements of Section 8(d) of the Act. WE WILL terminate the overtime embargo placed on the employees of the New York Telephone Company. COMMUNICATION WORKERS OF AMERICA, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 16 Court Street, 4th floor, Brooklyn, N.Y. 11201, Telephone: 212-596-3535