Laclede Gas Co.

LACLEDE GAS CO 243 Laclede Gas Company and Oil , Chemical and Atomic Workers International Union, Local No. 5-6, affiliated with Oil, Chemical and Atomic Workers International Union, AFL-CIO. Case 14-CA- 4411 October 22, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On April 30, 1968, Trial Examiner Arthur M. Goldberg issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices 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 Examiner's Decision and a brief in support thereof, and the Charging Party filed an answering brief to the exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, 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 Respondent's exceptions and brief, the brief of the Charging Party, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified below. The facts are not in dispute and are fully set forth by the Trial Examiner. Briefly, the Respondent has bargained with the Union for many years as the representative of employees in its operating depart- ments, and their most recent contract had an expira- tion date of July 31, 1967. Insofar as is relevant here, that contract provided that in the event of a need to reduce the working force in any department because of lack of work, the layoff should be in inverse order of seniority within the department, with a limited right to "bump" employees in other departments with less than 1 year of service with the Employer. The parties were in the process of negotiating a new agreement, but as of the expiration date of the contract there were a number of unsettled matters, more fully set forth by the Trial Examiner. However, the layoff procedures had neither been discussed nor been in issue during the bargaining. The prior contract was extended three times by the parties. On August 4, at the end of the third extension, the Respondent began laying off street department employees who worked on the con- struction crews. These layoffs concededly were made without regard to departmental seniority and not- withstanding the fact that there were employees in other departments with less than 1 year's service. No notice was given to the Union of the Respondent's desire or intention to disregard seniority, and no discussion was had concerning this. The employees were told they were laid off because no work was available. The complaint alleges that the Respondent acted unlawfully in effectuating its decision to lay off because it laid off employees without regard to the contractual seniority and layoff provisions and with- out any discussion with the Union concerning this departure from prior practices. The Trial Examiner concluded that this action by the Respondent vio- lated Section 8(a)(5), whether or not an impasse had occurred in the negotiations, because even if there were such an impasse it did not occur over any negotiations looking toward modification of seniority or layoff procedures. While we agree with the Trial Examiner's conclusion that the Respondent violated its statutory obligation, we are of the view that our reasons for so finding should be clarified. The Respondent argues that because it did not select employees for layoff purposes in order to discourage union membership or to disparage the Union but, rather, made its selection by the type of job the employees performed, and, because the layoff was temporary and did not amount to a permanent change of layoff policies, no violation of the Act resulted. Further, the Respondent contends that because the parties had reached an impasse in the negotiations, it had the right temporarily to lay off employees out of seniority, in order to carry on its business and in order to strengthen its hand at the negotiating table.' However, we are aware of no holding or principle which permits an employer, with impunity, to modify existing conditions of employ- ment, whether temporarily or otherwise, without notice to and discussion with the employees' desig- nated bargaining representative at some time during the negotiations. For notwithstanding the expiration of a contract, absent an impasse, an employer may not unilaterally make changes in employment condi- tions, such as seniority, previously established by the I The Respondent requested that the Board take note of its recent decision in Darling and Company, 171 NLRB No 95, in which the Board (Member Brown dissenting on the facts ) found a lockout prior to impasse valid under the test of American Ship Building Co v. N L R B , 380 U S 300, because there was no evidence of unlawful motive and the lockout was neither inherently prejudicial to union interests nor devoid of significant economic justification However, in the instant case there is no issue concerning the legality of the lockout, while in the above-cited cases the conduct in question was not attacked on the specific ground that it was unilateral action. 173 NLRB No. 35 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract.' And, while it is well settled that "after bargaining to an impasse, that is, after good-faith negotiations have exhausted the prospects of con- cluding an agreement, an employer does not violate the Act by making unilateral changes that are reasonably comprehended within his pre-impasse pro- posals,"3 it is also settled that a unilateral change with respect to a matter which was not within the area of negotiations during the bargaining sessions is not a permissible act even after an impasse.' Accordingly, the critical question in the instant case is whether seniority and layoff procedure were reasonably within the area of the negotiations be- tween the parties. In resolving this issue, we assume, without deciding, that the parties here had bargained to an impasse, since this is the view most favorable to the Respondent. It is clear, however, that the seniori- ty provision and layoff procedure were never in issue nor a subject of discussion during the course of the bargaining sessions. It therefore seems patent to us that the Respondent was not privileged to alter the requirements of those provisions without prior dis- cussion with the Union, notwithstanding the absence of any illegal motive for the layoff. We are not persuaded by the Respondent's argument that a temporary change is permissible although a perma- nent modification would not be lawful. The layoff provisions are themselves intended to deal with and relate specifically to temporary cut-backs in opera- tions and the Respondent thus was failing to apply the established practice to the very situation for which it was adopted. In addition, to adopt the Respondent's view in this respect would permit an employer, at any time in the hiatus period between contracts to eliminate all the contractually established protections and working conditions and substitute its unilaterally adopted practices, so long as the change was said to be temporary. Such a rule would virtually overrule all the Board and Court decisions which have dealt with the rights of the parties during negoti- ations. Although the testimony at the hearing does not appear to support the contention, the Respondent argues in its brief that the layoff was a partial lockout designed to " . . . strengthen its hand at the negotia- ting table." The Respondent contends that such a lockout, even though partial, is a permissible exercise of employer power in a bargaining situation under the doctrine of American Ship Building Co v. N L R B., 380 U.S. 300, and that the right of lockout neces- sarily carries with it the right to deviate unilaterally from existing seniority practices as a temporary measure, without abridging Section 8(a)(5). We need not consider that contention because the evidence does not support the premise upon which the Respondent builds its "lockout" argument. For while the Respondent now contends that the layoff was an affirmative bargaining stratagem, the evidence points to a finding that the layoff was actually necessitated by the exigencies of the business opera- tion. The Respondent's officials anticipated a strike by the Union and found that operating on the basis of daily contract extensions was difficult, unproductive, and potentially dangerous to the public. According to the testimony of Robert Hebeler, vice president in charge of the Respondent's operating department, nonessential construction was terminated because it "could not work efficiently or expeditiously." All of the evidence as to the reason for the carefully selective layoff indicates that it was motivated by a desire to eliminate those operations which negotia- tions had rendered tentative and to protect the Respondent from over-extending itself at a critical moment. A layoff for these essentially defensive purposes does not justify a unilateral departure from the accepted layoff seniority practices of the Re- spondent. If, as the evidence indicates, the layoff was simply dictated by considerations of efficiency and apprehension of the effects of a strike, it seems quite apparent that the employees would have to be laid off in accordance with the regular method of layoff unless the Respondent has satisfied its obligation to bargain with the Union before changing that pro- cedure. As we have concluded that the Respondent was not privileged to ignore the seniority and layoff provisions of the expired contract in laying off its employees in the absence of prior discussion with the Union, we find that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. Accordingly, we shall adopt the order recom- mended by the Trial Examiner. 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 orders that the Respondent, Laclede Gas Company, St. Louis, Missouri, its officers , agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. MEMBER BROWN , concurring: I agree with my colleagues' conclusion that the Respondent herein violated Section 8(a)(5) of the 2 Bethlehem Steel Co. (Shipbuilding Div.) v N.L.R B., 320 F.2d 615 (C.A. 3), enfg. in relevant part 136 NLRB 1500, cert . denied 375 U.S. 984, FrontierHomes Corporation, 153 NLRB 1070, 1072-73, enfd. 371 F.2d 974 (C.A 8). Of course, an employer does not violate the Act if it ceases to give effect to other types of contract provisions, such as clauses requiring that employees join the union 30 days after hire and providing for checkoff of union dues . Bethlehem Steel Co (Shipbuild- ing Div. ), 133 NLRB 1347 and 136 NLRB 1500. 3 Taft Broadcasting Co , WDAF AM-FM TV, 163 NLRB No 55. 4N.L R B. v Intracoastal Terminal, Inc., 286 F.2d 954 (C.A 5), enfg. as modified in other respects 125 NLRB 359. LACLEDE GAS CO 245 Act. However, I would so find whether the employees were laid off or locked out. Thus, even if a partial lockout occurred after an impasse,' as the Respon- dent contends, it is clear that the seniority and layoff practices had not been at issue in the negotiations prior to such impasse. Therefore, the Respondent was not privileged to take unilateral action with respect thereto. By temporarily departing from the establish- ed practices, the Respondent violated Section 8(a)(5) of the Act.' 5 There is no allegation that the Respondent violated the Act by its lockout, as such. Accordingly, I assume the validity of a partial lockout as a privileged offensive economic weapon to strengthen the Respond- ent's hand at the bargaining table. 6 Bethlehem Steel Co (Shipbuilding Div ) v. N L.R B , 320 F.2d 615 (C.A. 3), enfg. in relevant, part 136 NLRB 1500, cert. denied 375 U S. 984, N.L.R.B v. Intracoastal Terminal, Inc., 286 F.2d 954 (C.A 5), enfg. as modified in other respects 125 NLRB 359. TRIAL EXAMINER'S DECISION same time it locked out its production and maintenance employees was motivated by any consideration other than its own convenience. Accordingly, the legality of the Company's action in laying off the affected employees is not before me for decision and no view is expressed herein as to the correctness of the General Counsel's action. Additionally, the question of impasse con- cerns me only as it would be a defense to the allegation that the Company's change of the established seniority system, without prior notice to the Union or bargaining in connection with its modification of the procedure, was a violation of Section 8(a)(5) and (1) of the Act. All parties participated at the hearing in St. Louis, Missouri, on February 12 and 13, 1968, and were afforded full opportunity to be heard, to introduce evidence, to examine and cross-examine witnesses, to present oral argument, and to file briefs. Oral argument was waived and briefs were filed by the General Counsel, the Respondent, and the Charging Party Upon the entire record in the case, my reading of the briefs, and from my observation of the witnesses and their demeanor, I make the following STATEMENT OF THE CASE ARTHUR M. GOLDBERG, Trial Examiner: Upon a charge filed on August 4, 1967,1 by Oil, Chemical and Atomic Workers International Union, Local No. 5-6, affiliated with Oil, Chemical and Atomic Workers International Union, AFL-CIO (herein called the Union or the Charging Party), the complaint herein issued on November 21. The complaint alleged that Laclede Gas Company (herein called the Company or the Respondent), failed in its bargain obligation under the National Labor Relations Act, as amended (herein called the Act), when it failed to follow the established seniority system in selecting employees for layoff during a reduction in force. Respondent denied all the material allegations of the com- plaint. The Union's charge had alleged as well that the reduction in force was a lockout designed to discourage membership in or activities on behalf of the Union and a violation of Section 8(a)(1) and (3) of the Act. This aspect of the charge was dismissed by the Regional Director and his action was sustained on appeal by the General Counsel's Office of Appeals. In denying the Union's appeal the General Counsel held that. the evidence in its entirety established that at the end of the last bargaining session prior to the lockout the parties were at impasse on two substantial issues, i.e ., wages and the performance by foremen of unit work. See American Shipbuilding Co. v. N.L.R.B., 380 U.S. 300. It was noted that after many years of refusal, the Company had made a major concession by offering to include a clause placing restrictions on the performance of unit work by foremen, but that the Union had refused to make the major concession on wages on which the Company's offer was conditioned. The contention on appeal that the Company's action was motivated by Tibb's testimony before a U.S. Senate Committee was not supported by substantial evi- dence. In this connection there was no showing that the Company's failure to lock out clerical employees at the I Unless otherwise noted all dates herein were in 1967. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Laclede Gas Company, is, and has been at all times material herein, a Missouri corporation with its principal office and place of business in St. Louis, Missouri. In addition, Respon- dent maintains other installations and construction sites in the State of Missouri. Respondent is engaged in the manufacture, sale, and distribution of natural petroleum gas and related products as a public utility company. During a representative 12-month period Respondent, in the course and conduct of its business operations, manufac- tured, sold, and distributed at its several installations products valued in excess of $250,000, of which products valued in excess of $50,000 were furnished to enterprises each of which manufactured, sold, and delivered, directly from its plant or plants in the State of Missouri to points in other States, goods and materials valued in excess of $50,000. Respondent is, 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, and meets the Board's standards for asserting jurisdiction. II. THE LABOR ORGANIZATION INVOLVED Oil, Chemical and Atomic Workers International Union, Local No. 5-6, affiliated with Oil, Chemical and Atomic Workers International Union, AFL-CIO, 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 Background The Company, a public utility, supplying gas to the St. Louis, Missouri, metropolitan area and the Union have maintained a bargaining relationship for many years. The 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union represents approximately 1,400 employees who work in the Company's operating departments.2 A sister local of the Union, Local 5-194, represents Respondent's 400 clerical employees The two locals have historically conducted joint contract negotiations with the Company. The bargaining unit represented by the Union is broken down into departments of which the Street department, with 700 employees, is the largest Although the Street department is in turn divided into operating divisions3 the collective-bar- gaining agreement provides for departmental seniority for purposes of layoff. The last contract between the parties, which expired on July 31, contained the following provision on seniority for layoff Article V Section 2 .... In the event it becomes necessary to reduce the working force in any department because of lack of work, em- ployees in such department shall be laid off in inverse seniority order, that is, the employee with the least departmental seniority shall be the first laid off. Family status shall be given consideration when seniority is equal In addition the contract provides for a limited company- wide seniority to be applied in the event of a layoff. Under this procedure men with less than 1 year of service with the Company must stand aside if senior employees slated for layoff in other departments seek to bump into the junior man's department, Robert C. Tibbs, Jr., business manager of the Union, testifed that the last major layoff of company employees had occurred in 1952. It was Tibbs' understanding that the 1952 layoff was handled in accordance with the contractual provi- sions by inverse order of seniority and with employees bumping into other departments where there were employees with less than 1 year of seniority. In addition, Tibbs testified that when an employee in a department assigned to one type of work runs out of tasks to do, he is reassigned to other existing work There are provisions, Tibbs stated, for lateral assignments and upgrading and downgrading of employees. During vacation periods personnel of construction crews are interchanged. Robert Hebler, company vice president and general manager, testified that, while to a great extent crews work together during the year on the same type of work, personnel are moved from crew to crew. Hebler stated that employees in lower classifications will work in a higher classification on a temporary basis without bidding for the work. In the past, collective-bargaining negotiations looking to- ward new contracts have led to strikes on a number of occasions. Francis R. Leonard, company vice president for industrial relations, testified to this history as follows: In 1956 there was a strike lasting approximately 14 days, in 1960 a 2-day strike; 1962 a 9-day strike, the 1964 agreement was reached without a strike after the Union had worked for one-half day without a contract, and, in 1965 there had been a 32-day strike. Leonard recalled that in 1962 and in 1965 there had been extensions of the agreement after its expiration and before the strikes. B. The Negotiations The 1967 negotiations began on July 10. Leonard, the Company's vice president for industrial relations, testified that after that date, the Company and Union met almost every day except for a 1-week period when he was unavailable because of surgery. Even during that period some meetings were held in his absence. As of July 31, the contract's expiration date, the following matters were still unsettled wages, the Union having started with a demand for an increase of 40 cents per hour, a union proposal for a contract provision limiting performance of bargaining unit work by foremen or supervisors, the length of the new contract; and, the addition of Christmas Eve and New Year's Eve as full holidays. In addition, two open items affecting Local 5-6 only were a proposal that meters be read by a remote reading device and the granting of additional Saturdays off for service and installation department person- nel. On the afternoon of July 31, the Company offered a wage increase of 5 cents per hour after the Union had reduced its demand to 35 cents Thereafter, the Union dropped its request to 30 cents per hour and the Company raised its offer to 8 cents. The Union had a scheduled membership meeting for 6 p.m. at which time the Company's proposal was submitted to and rejected by the membership. After that meeting, at the Union's suggestion, negotiations were resumed and at or about midnight the parties agreed to extend the contract for 24 hours The following day, August 1, negotiations resumed in the office of the Federal Conciliator who met separately with company and union negotiators. The Conciliator informed the Company that he found the failure to agree on language restricting foremen from doing bargaining unit work was the biggest stumbling block to an agreement between the parties. The Company had constantly refused to restrict foremen in the work they could do, although this had been a union demand since 1960 The Conciliator then presented to the Company a proposed clause performance of bargaining unit work by supervisors. This suggested contract clause was rejected by Respondent's negoti- ators.5 During negotiations on the following day, August 2, the Union submitted directly to the Company a revised proposal to limit foremen and supervisors in their performance of 2 The complaint alleged, the answer admitted , and I find that the following constitutes an appropriate bargaining unit the employees in the following departments of the Company. gas supply and control department , service and installation department , street department, meter reading department , meter department , transportation depart- ment, and in the storeroom and building service departments , excluding office clerical employees, professional employees, guards and supervi- sors as defined in the Act. 3In the Street department there are nine divisions, three street divisions , three equipment divisions, and three leak divisions . There is no provision whatever for divisional seniority. 4 Art. VI, sec. 5 When lay-offs occur in any department due to lack of work, such employees laid off shall be given preference over new employees in other deparments with less than one (1 ) year's service. It is understood that an employee in order to exercise such preference must have more seniority than the employee he replaces. 5 The proposed contract clause presented by the Conciliator on August I and rejected by the Company reads as follows Work presently performed by bargaining unit employees shall remain in the bargaining unit and shall be performed by regular bargaining) unit employees . Supervisors shall be allowed to perform work only of an instructional or emergency nature. LACLEDE GAS CO. 247 bargaining unit work .6 The Company rejected the Union's suggested language and for the first time in its dealings with the Union submitted, on August 2, a proposal to satisfy the Union's demand for a contractual limitation on foremen doing the work of bargaining unit employees.? The Company conditioned its proposal on the Union dropping all contract requests other than that for a wage increase, and as to that item the Company called upon the Union to revise downward its demand which then stood at 30 cents per hour Following the 24-hour contract extension agreed to at midnight July 31, there were two additional extensions, one of 32 hours and another of 24 hours There was conflicting testimony as to which of these two extensions was first agreed upon and as to whether Company, Union, or Conciliator had suggested the extensions. I do not find it necessary to resolve these conflicts. During the negotiations of August 3, the Union submitted a revised counterproposal to the Company's suggested language limiting work by foremen.8 The Company counterproposed language and at the same time raised its offer on wages to 12 cents per hour plus 1.8 cents per hour in fringe benefits, a total wage offer of 13.8 cents per hour.9 The mediator reported back to the Company that the Union had rejected its latest offer and had suggested that the union and company lawyers meet in an effort to work out acceptable contract language. This meeting was held at dinnertime that evening. Later that evening, August 3, the mediator brought back to the Company new language which the Union had suggested to cover limitation on foremen working At the same time the Union reduced its wage demand to 28.9 cents per hour from its prior 30-cent-per-hour request.10 The mediator also advised Respondent that the Union had offered to continue work on a day-to-day basis without a contract. The Company rejected the Union's offer as unacceptable and made no further proposals The mediator informed the Union of the Company's rejection of its proposals at which time the Union told the mediator that its members would remain at work and that it stood ready to resume negotiations at any time. At no time during the negotiations did either of the parties make any proposal in any way affecting the seniority provisions of the collective-bargaining agreement which ex- pired on July 31. The Company did not inform the Union that it wished to change the seniority system or that it did not intend to follow the established seniority system in fur- loughing employees. During the course of the negotiations, when extensions of various lengths were proposed by the Union, the Company took the position that the Union was seeking to extend the contract so that it would expire during the heating season when a strike would be more effective The Company's suggestions for contract extension were of a length to bring the expiration date beyond the heating season. While negotiations were in process, Tibbs, the Union's business manager, testified before a committee of the United States Senate chaired by Senator Magnuson at which time Tibbs stated that there would be no strike by the Union because "public necessity and welfare" would not permit such action. Following the Company's rejection of the Union's pro- posals made during the evening on August 3, the collective- gaining agreement expired at 8 a.m., August 4. C. The Layoffs As noted, at the end of the third extension, the contract expired at 8 a.m. on August 4. At that time the Company began laying off employees in the Street department who worked on construction crews Also, at approximately the same time, the Union prepared and was distributing to its members a report on the status of negotiations with instruc- tions to the employees that they remain at work even though the contract had expired. The only employees laid off were 6 The Union's August 2 proposal read as follows. The following language is not intended by the Union to exclude Foremen or Supervisors from performing such incidental work which has been their practice to perform ; nor is it the intent of the Company to remove such work from the bargaining unit. Foremen and Supervisors shall not be permitted to perform any work normally performed by the employees covered by this agreement except for the purpose of instructing employees, includ- ing demonstrating proper methods and procedures for performing work operations, or in the course of an emergency. 7 The Company's August 2 proposal reads as follows It is not intended by the Union to exclude the Foremen or supervisors from performing such work as it has been their practice to perform, nor is it the intent of the Company to remove such work from the bargaining unit. Other than as stated in the foregoing paragraph , Foremen and Supervisors shall not be permitted to perform any work normally performed by the employees covered by this agreement except for the purpose of instructing employees, including demonstrating proper methods and procedures for performing work operations, or to assure proper performance of work or in the course of an emergency. 8 The Union's August 3 revised counterproposal read as follows Foremen and Supervisors shall not be permitted to perform any work performed by the employees covered by this agreement except for the purpose of instructing employees , including demonstrating proper methods and procedures for performing work operations, or in the course of an emergency , or such incidental work as it has been their practice to perform in the past, such as to add a helping hand where there is an immediate need and only for a period of time to satisfy the immediate need or in the avoidance of an accident. 9 The Company's counterproposal read Foremen and Supervisors shall not be permitted to perform any work performed by the employees covered by this agreement except for the purpose of assuring proper performance of the work, or of instructing employees, including demonstrating proper methods and procedures for performing work operations , or in the course of an emergency , or such incidental work as it has been their practice to perform in the past; or to add a helping hand where there is an immediate need and then only for a period of time to satisfy the immediate need, or in the avoidance of an accident. 10 This union proposal read Foremen and Supervisors shall not be permitted to perform any work performed by the employees covered by this agreement except for the purpose of instructing employees, including demonstrating proper methods and procedures for performing work operations, or in the course of emergency, or such incidental work of an immediate need as it has been the practice of foremen and supervisors to perform in the past, including but not limited to the following examples a. Lighting a lantern which is out; b. Picking up a piece of pipe which is obstructing a driveway or street, c. Shoring up a ditch about to cave in, d. Answer a telephone when employees are tied up on other telephones and unavailable; e. Delivery of small parts that are needed immediately to complete a job and no one in the bargaining unit is available to deliver same. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members of construction crews who work on the installation and construction of mains in the city streets. With them some equipment operators who worked with the construction crews were also furloughed. There were no layoffs of leak crews, leak and dnp inspectors, or corrosion inspectors although such employees are also members of the Street department. There were no layoffs of office employees. Robert Hebler, vice president and general superintendent of the Company, testified that Respondent began its preparations for a shutdown of construction activities about a week or 10 days before the scheduled expiration of the contract on July 31. At that time plans were made to limit excavation and to curtail starts on major projects. Hebler testified that the Company began to consolidate crews so that jobs could be completed before the contract expiration date, deliveries of material to the field were curtailed and a start was made on bringing equipment in the field back to operating centers. It was the Company's hope, Hebler stated, that at strike time there would be as little excavation exposed as possible so as to minimize hazard to the public and to reduce the exposure of company facilities to the danger of sabotage. The construction crews which were laid off following expiration of the agreement construct and maintain under- ground facilities such as gas mains. This work involves digging up and blocking public streets. The crews may be working in the street itself or in the greenways alongside the street. If a job is being worked continuously it is barricaded and lighted or flagged. If the construction work is at or near the traveled part of the road, the work is bridged over and the "spoil pile" is left on the street side and one or two lanes of traffic are blocked, all in an effort to keep traffic away from the ditch line. Industrial Relations Manager Leonard explained that 24- hour extensions of the collective-bargaining agreement were unacceptable to the Company because such a limited period of time did not permit for efficient planning. In explanation, Leonard testified that a company foreman in the circum- stances of a 24-hour contract extension would report for work at 8 a.m , put in a full day's work, go home for dinner and a change of clothes, and then was required to report to an assigned point to be on hand in the event contract negotiations broke down If the contract was extended for an additional 24 hours, word of this agreement would not reach the foreman affected until past midnight at which time he would return home to get what rest was available before reporting back to work again at 8 a.m. Thus, Leonard stated, the 24-hour extension was unworkable. At the time employees were instructed to return home on August 4, they were informed that there was no work available. In the words of Company Counsel Elbert, "We admit we told some people to go home. The only thing they were told was to go home for lack of work. He used the word no work." Company Vice President Hebler testified that if there had been a contract work would have been available for the laid-off men. The Company admits that among the employees laid off on August 4 through 10 were a number who were laid off outside of departmental seniority. In all, although the number varies from day to day, approximately 340 Street department employees were laid off. In addition, a number of those who were laid off on Friday, August 4, had thereafter, in the opinion of Robert Rapp, supervisor of Respondent's payroll department, switched to vacation status so as to remain eligible for wage payments. Further, it was stipulated by the parties, during the period August 4 through 10, that there were employees at work in other departments in the bargaining unit who had acquired less than 1 year's seniority with the Company. The laid-off Street department employees were returned to work on August 11 pursuant to a company-union agreement reached with the assistance of the governor of the State of Missouri. Part of this agreement provided that the parties would attempt to reach agreement with the assistance of the conciliators. If by an agreed-upon date this effort was unsucessful, the conciliators were empowered to issue binding recommendations for a new contract. Before that agreed-upon date the parties reached agreement on the terms of a new contract with an expiration date of July 31, 1968. D. Conclusions and Findings 1 i The Board, with court approval, has held that an employer violates Section 8(a)(5) and (1) of the Act when, after expiration of a collective-bargaining agreement, it unilaterally changes the established practice controlling, selection for layoff. Frontier Homes Corporation, 153 NLRB 1070, 1072-73, enfd. 371 F.2d 974 (C.A. 8); Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO v. N.L.R.B., 320 F.2d 615 (C.A. 3), cert. denied 375 U S. 984. This is what Respondent has done here. By disregarding the established requirement that employees be selected for layoff in inverse order of seniority, without notice to the Union and affording an opportunity for bargaining concerning such change of procedure, the Company has failed to meet its bargaining obligation under the Act. Both the expired bargaining agreement' 2 and Tibbs' uncontroverted testimony concerning the 1952 layoff establish that departmental seniority controls for layoff purposes and that this procedure had "become a part of the established operational pattern and thus become a part of the status quo of the entire plant operation." N.L.R.B. v. Frontier Homes, supra at 981. The rationale of the court of appeals in NL.R.B. v. Frontier Homes controls this case• ... since semonty and layoff practices are subjects for mandatory bargaining, the employer is not free to make changes at will. Any change in the established practices requires that the employer notify the bargaining representa- tive and submit the proposed change to negotiation. The unilateral alteration of this established condition of employ- ment is a proscribed refusal to bargain under the Act. Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO v. N.L.R.B., supra." 371 F.2d at 980. 1 t As noted earlier , the propriety of the layoff itself is not before me for decision. 12 See the portions quoted above at page 248 To argue that work would have been available for the laid-off employees had agreement been reached on a new contract and therefore Respondent was not required to follow the established procedure and use inverse order of seniority for layoff "because of lack of work" is a specious postulate. Company counsel stated that the employees were told "to go home for lack of work." In fact , there was no work for the employees to perform. Whether this lack of work was caused solely by an independent decision of the Employer, or forced upon him by real or fancied external economic forces, the lack of work existed. Accordingly , the established procedure applied. LACLEDE GAS Respondent's defense that the parties had reached impasse on August 3, on the items then pending on the negotiating table and that therefore the Company was free to ignore the established layoff procedure misconceives the thrust of its bargaining obligation. It is not necessary here to decide whether, in fact, the Company and Union had reached impasse on the question of a wage increase and of contractual restrictions on supervisory personnel performing bargaining unit work. It is sufficient to find that there was no suggestion of impasse in negotiations looking toward modification of seniority or the layoff procedures which had become estab- lished conditions of employment. Indeed, no issue had been raised during the entire negotiating period concerning this mandatory subject of bargaining Accordingly, absent special circumstances, unilateral action by the Company without prior discussion with the Union amounted to a refusal to bargain in violation of the Act. N.L.R B. v. Katz d/bla Williamsburg Steel Products, 369 U.S 736, 747. Cf. W.L McKnight d/b/a Webster Outdoor Advertising Company, 170 NLRB No. 144. There are no such extenuating circumstances in this case. Company Vice President Hebler testified that Respondent began its preparations for the layoff of Street department employees a week to 10 days before July 31. The layoff commenced on August 4, and it was solely Respondent's refusal to agree to further contract extensions which deter- mined the time and date of the layoffs. Certainly, during this period of almost 2 weeks it would have been possible for the Company to notify the Union that in the event of such a layoff it wished to bypass the established seniority practice. Such notice to the Union would have afforded the bargaining representative an opportunity to negotiate about the suggested change in layoff procedure. On the other hand, assuming that the layoff of construction crew personnel was undertaken by the Company out of a concern to minimize public inconve- mence, nothing has been shown here to establish that this period of almost 2 weeks was insufficient to allow the Company to arrange the layoff of personnel pursuant to departmental seniority. In this connection, I note the uncon- tradicted testimony that during vacation periods personnel are shifted from job to job within the department and that in preparation for this very layoff the Company consolidated construction crews to expedite completion of jobs in process. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several states and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. The General Counsel requests that Respondent be required to make whole its employees who were improperly laid off as a result of the unilateral change in the layoff procedure. I shall recommend that the Company be required to do so, with interest added to moneys due in the manner set forth in Isis CO 249 Plumbing & Heating Co , 138 NLRB 716. In the course of this proceeding voluminous seniority lists and employment records covering the period of the layoff were introduced into evidence. However, in view of the testimony by a company official that it was his belief laid-off employees switched to vacation status so as to continue receiving wages for the period of their layoff, I deem it more appropriate to refer to supplementary investigation and compliance proceedings deter- mination of the identity of those employees who should properly have worked during the days in question had the layoff been scheduled in accordance with the inverse order of seniority as well as the determination of those employees who were entitled to bump into departments other than the Street department to replace employees with less than 1 year of service with the Company Upon the foregoing findings of fact and upon the entire record in this case, I make the following. CONCLUSIONS OF LAW 1. Laclede Gas Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. Oil, Chemical and Atomic Workers International Union, Local No. 5-6 affiliated with Oil, Chemical and Atomic Workers International Union, AFL-CIO, is a labor organiza- tion within the meaning of the Act. 3. All employees in the following departments of the company gas supply and control department, service and installation department, street department, meter reading department, meter department, transportation department, and in the storeroom and building service departments, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act. 4 At all times material herein the Union has been and is the exclusive bargaining representative of Respondent's em- ployees in the aforesaid bargaining unit. 5. By failing to follow the established procedure for selection of employees for layoff and by failing to afford the Union an opportunity to bargain concerning such deviation from the established condition of employment, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER The Respondent, Laclede Gas Company, its officers, agents, successors, and assigns, shall I Cease and desist from refusing to bargain collectively with the Union as the exclusive collective-bargaming represen- tative of its employees in the appropriate bargaining unit found herein or in any related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act- (a) Upon request, bargain collectively in good faith with the Union as the exclusive representative of all the employees in the appropriate unit found above covering all mandatory 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subjective bargaining including seniority and procedures for selection of employees for layoff. (b) Make whole all employees improperly laid off during the period August 4 through 10, 1967, as a result of its unilateral change of the established practice controlling selec- tion for layoff in the manner set forth in the section of this Decision entitled "The Remedy " (c) 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 under the terms of this Recom- mended Order. (d) Post at its facilities in St. Louis, Missouri, copies of the attached notice marked "Appendix."13 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by its authorized representative, shall be posted by Respondent immediately 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 14, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.14 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner 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 employees that. WE WILL NOT fail in our obligation to bargain collect- ively with Oil, Chemical and Atomic Workers International Union, Local No. 5-6, on all of your conditions of employment, including procedures controlling selection of employees for layoff. WE WILL NOT in any like or related manner interfere with the rights of our employees under the law. WE WILL make up the wages of any employee laid off in disregard of his seniority rights. LACLEDE GAS COMPANY (Employer) Date By (Representative ) (Title) 13 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 States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 14 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 14, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " 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 direct- ly with the Board's Regional Office, 1040 Boatman's Bank Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 622-4167.