Durfee's Television Cable Co.

DURFEE'S TELEVISION CABLE CO. 611 Durfee's Television Cable Company and Jack Davis and Local Union No. 968, International Brotherhood of Electrical Workers, AFL-CIO. Cases 9-CA-4689 and 9-CA-4777 February 18, 1969 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA 1968; that Respondent violated Section 8(a)(3) by suspending employee Jack Davis for 2 days on March 15, 1968, and by laying him off on March 27, 1968, because of his union activities. The complaint, as amended, further alleges that Respondent violated Section 8(a)(1) of the Act by the foregoing conduct and by threats of discharge to employees for failure to meet the unilaterally established production standards. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent, I make the following ' On October 31, 1968, Trial Examiner Henry L. Jalette issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a brief in support of its exceptions. The Respondent filed an answering brief to the General Counsel's 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 exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's .findings, conclusions, and recommendations. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed. TRIAL EXAMINER' S DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Trial Examiner- This case was tried in Parkersburg, West Virginia, on September 18, 1968, pursuant to a complaint issued on July 16, 1968, based upon a charge in case 9-CA-4689, filed on April 17, 1968, by Jack Davis, and a charge in Case 9-CA-4777, filed on June 21, 1968, by Local Union No. 968, International Brotherhood of Electrical Workers, AFL-CIO, hereinafter referred to as the Union. The complaint, as amended, alleges that Durfee's Television Cable Company, hereinafter referred to as Respondent, violated Section 8(a)(5) of the National Labor Relations Act, as amended, by unilaterally establishing and/or enforcing production standards on March 15, 1968, and refusing to meet with the Union to bargain with respect thereto on April 4, FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is a West Virginia corporation engaged in the operation of a communication system in conjunction with Trans-Muskingum, Inc., and operates a master television antenna for the transmission of television signals by cable. During the 12 months preceding issuance of complaint, Respondent, in conjunction with its operations for and on behalf of Trans-Muskingum, Inc., had a gross volume of business in excess of $100,000 and during the same period purchased goods and materials directly from points outside the State of West Virginia valued in excess of $50,000. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Unilateral Changes In Working Conditions On June 22, 1966, after an election in which the Union had been certified, and after negotiations, Respondent and the Union entered into -a collective-bargaining agreement effective from May 26, 1966 through May 26, 1968. Article VII, section 9, provided that the company would post company rules so that all employees would be notified and aware thereof. As the Respondent had no written rules, it was necessary for it to prepare some, which it did and which it submitted to the Union with the comment that there would possibly be changes or additions at a later date. The Union voiced no objection. The company rules were then attached to the agreement. The first rule provided that, "Each employee will keep a daily work report showing number of units completed." On July 1, 1967, Respondent posted new company rules. The first rule was unchanged, but, in addition, Respondent posted on the same date the following. NOTICE TO ALL INSTALLERS Minimum work requirements Any installer who has been with the Company and had at least one (1) week training with a veteran installer and a minimum of two (2) weeks experience in the field, will install a minimum of five (5) units per 'Respondent's Motion to Dismiss made at the trial, on which I reserved ruling, is disposed of in accordance with the findings and conclusions herein 174 NLRB No. 98 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day. Should the new man indicate that he is not capable, through either .aptitude or attitude to achieve this minimum requirement, he will be dropped from employment. Any veteran installation man with a years experience is required to average ' a minimum of six (6) units, totally completed, in the course of one (1) day. However, the Company realizes that there are exceptions to each job unit, and there will be days when the minimum requirement may not be attained. Therefore, the daily averages will be figured by the week. Any installer who fails to maintain this minimum average requirement will be warned in writing the first instance, penalized with a two (2) day layoff the second instance. The third instance he will be terminated with the Company. WORK UNITS A. Original installation 1.00 work unit B. Second Tap .75 work unit C. Reconnect .50 work unit D. FM tap installed without TV tap 1.00 work unit E. FM tap .50 work unit F. Cable Change .50 work unit G. Add Cable .50 work unit H. Cable removed completely .50 work unit 1. Delinquent Account Collected .30 work unit J. Pulls .30 work unit K. Time on other work per hours 1.00 work unit All averages these past weeks have exceeded 6 points per man, including new men. The Company does not infer that 6 points per day is a goal, but a minimum. A copy of the notices was given to the union steward, and 1 or 2 days later, he suggested to Superintendent Francis that the period for measuring production should cover a period of 6 months, rather than a week. Superintendent Francis told him the company could not afford subnormal performances for 6 months before it could issue a reprimand. The notices were discussed at a regular meeting of members on the third Monday of July 1967. On July 24, 1967, Union Representative Nolte sent a letter to Respondent's president, Charles Erickson, advising him that the Respondent's establishment of a work standard had been brought to his attention, that he had searched the agreement and could find no provision in there for the Respondent's right to unilaterally establish a work standard,2 and that from his recollection of past negotiations he did not know that there had ever been any discussion of a wage settlement based on the amount of output of any employee. Nolte therefore requested that if Respondent felt a standard was now necessary that it sit down in a conference to work out the details. The letter concluded with a suggestion that these matters should be discussed and requested a reply as to the possible time and place.' 'Article 1, section 7 of the agreement provides. Article I. Section 7 The employer shall have the right to hire, determine qualifications, lay off, or discharge for just cause, as defined in article V, section 4, manage the operation of the company to its best interest and reserves the right to direct the work assignment of all employees , so long as it is not in violation of any other provision of this agreement. 'Although Nolte also adverted to another new rule, the only issue raised in the complaint with regard to the new rules is Respondent's promulgation of a rule fixing production standards and the penalties for Respondent did not reply to the letter, and its only explanation for its failure to-do so was inadvertence. According to Nolte, the first time that he received any indication that the production standards were being enforced was on March 17, 1968, when employee Jack Davis informed him that he had received a disciplinary layoff of 2 days. I do not attach any weight to this testimony. It is undisputed that on August 17, 1967, the Respondent had notified Jack Davis by letter that for the week ending August 11 his production had fallen below the minimum weekly average of six work units and that a repetition of such failure would call for a disciplinary layoff. On October 13, 1967, Respondent had again notified Davis by letter that for the week ending October 6, his average production had again fallen below the minimum weekly average of six work units. The letter proceeded to discuss Davis' excuse for such failure, and in acknowledgement thereof Respondent stated it was not taking any disciplinary action at this time. The letter concluded by stating that the next time Davis did not attain the required average for the week he would be given a mandatory layoff of 2 days without pay. On March 15, 1968, Respondent sent a letter to Jack Davis notifying him that he was being laid off for 2 days, March 18 and 19, because of his failure to maintain the minimum weekly average of six work units for the week ending March 15. On March 21, Davis filed a grievance over the 2-day suspension on the grounds that it was levied against him on the basis of a production schedule which had never been a part of the working agreement. On March 22, the Respondent replied that Davis had been notified on August 17 and October 13, 1967 and January 8, 1968, of his substandard work production and that he had been advised if such continued there would be a disciplinary layoff. Accordingly, Respondent felt that it was justified in suspending him for 2 days. On April 4, a grievance meeting was held which was attended by Union Representatives Nolte and Mees, Steward Gant and Unit President Hemingway. Respondent was represented by Erickson and Superintendent Francis. Union Representative Mees testified that he stated if Respondent ". . . so desired work units that I felt that we could get together at the bargaining table and work this out . . According to Nolte, he told Erickson he felt the disciplinary action was unjust because based on standards about which he had written to the company and about which he had offered to sit down and negotiate. Nolte stated that if work standards were still necessary the Union would be willing to try to work out something However, he did not specifically request bargaining on the subject, nor did he request a meeting. On April 16, the Union advised Respondent by letter that in accordance with the provisions of the collective-bargaining agreement it wished to proceed to arbitration on the grievance. Respondent did not reply and no further action was thereafter taken to bring the matter to arbitration. Union Representative Nolte testified, however, that he understood that the Union could not pursue an arbitration and an unfair labor practice at the same time. Shortly before the May 26 expiration date of the contract, Respondent and the Union met and negotiated a not meeting the standards Accordingly, there is no need to set forth any of the other rules DURFEE'S TELEVISION CABLE CO. 613 new contract which was made effective from May 26, 1968 through May 26, 1971. Unlike the first contract, this contract had no company rules attached thereto although it contained the same provision as before for the posting of company rules (Article VII, Section 9) with the added language ". . . and the Company shall notify the Union of any changes in Company rules for possible discussion prior to posting." Union Representatide Nolte did not know why the company rules were not attached to the contract and the only testimony offered with regard to the additional language in Article VII, Section 9 was Nolte's testimony that "if the Company was going to establish further rules in the future, that we would at least sit down and discuss what the Company felt was necessary prior to any posting and so forth." The Union did not request discussion of the production standards in the negotiations and they were not discussed. The reason given by Nolte for the Union's failure to request discussion was that it felt it was not necessary. Nolte further stated that the Union felt Respondent would not discuss the issue in view of its earlier stated position that the matter was a management right. B. The Alleged Discriminatory Suspension and Layoff ofJack Davis Jack Davis has been employed by Respondent as an installer since 1965. The principal job of an installer is to connect the Respondent's television cables to the homes of subscribers to permit them to receive television signals. Davis was , active in the Union's organization campaign and was union observer at the election which the Union won in 1966. He was a member of the negotiating committee, and after the collective -bargaining agreement was signed he was vice-president of the bargaining unit until February 1967 when he was discharged Pursuant to an arbitration award Davis was reinstated on or about June 24, 1967, and he continues to be employed to this date . There is no evidence that he engaged in any activity on behalf of the Union from the date of his reinstatement and the only protected activity in which he engaged was his filing a grievance on March 21, 1968 because of the 2-day suspension given to him for failure to meet the production standards unilaterally established. On March 27 , 1968, Davis was notified that he was temporarily laid off for lack of work . At that time, except for an employee on military leave, Davis was next to last on the seniority list and the least senior man was similarly notified of his layoff. In addition, a temporary employee chose to terminate his employment when notified that he was being laid off. III. ANALYSIS AND CONCLUSIONS It is undisputed that when Respondent established production standards on July 1, 1967, it acted unilaterally. Had a charge been filed within 6 months of that action, I would find Respondent's conduct violative of its obligations under Section 8(a)(5) of the Act. The question of production standards is clearly a mandatory subject of bargaining. Production standards had not been in existence, nor had they been discussed in negotiations, and no provision of the contract, nor Respondent's statement to the Union in negotiations in 1966 that the company rules attached to the contract were not all inclusive and that it might add to them, could be deemed to establish a clear and unmistakable waiver.' Since no charge was filed with respect to Respondent's action until April 17, 1968, Section 10(b) precludes a finding that the unilateral conduct was violative of the Act. General Counsel concedes this. But General Counsel has alleged in paragraph 8(a) of the complaint that Respondent refused to bargain by: "On or about March 15, 1968 in unilaterally changing the terms and conditions of employment of its employees by establishing and/or enforcing production standards and work units or quotas, without prior notice to or consultation with the Union." Since General Counsel put into evidence the Notice to All Installers dated July 1, 1967, as well as the evidence of its enforcement against Davis on August 17 and October 13, 1967, it is difficult to understand on what basis it is alleged in the complaint that the violation occurred on March 15, 1968. General Counsel appears to have a twofold argument: (1) Respondent had not enforced its rule against Davis in January 1968 when he failed to meet the production standards so that they were dormant and when Respondent invoked the rule on March 15, it was unilaterally departing from the practice established by its inaction in January and unilaterally reinstituting the dormant rules; (2) since the standards were unlawfully adopted, the act of enforcement against Davis was unlawful. The first part of General Counsel's argument is simply not supported by the record. It is abundantly clear that from the time the production standards were posted Respondent expected its employees to comply with them. The written warnings to Davis attest to this fact. The testimony that Davis was given oral warnings on January 3 and in the week preceding his suspension does not evidence that the rule on production standards had been abandoned or that it was dormant; rather, it evidences, like the written warnings, the continuing vitality of the rule. It is true that the Respondent, beginning with the October 27 warning, had not invoked the disciplinary measures described in its July 1, 1967 notice, and the oral warnings were not provided for in the Notice to Installers; nevertheless, it would be a distortion of fact to say that Respondent's failure to adhere strictly to the disciplinary schedule described in the notice established an abandonment of the rule and that the 2-day suspension on March 27 was a re-establishment of the rule and a new unilateral act. If General Counsel is to prevail, it must be on the ground that the enforcement of a unilaterally and unlawfully adopted rule is in and of itself independently violative of Respondent's obligation under Section 8(a)(5) of the Act. In order to sustain such a finding, however, it would be necessary to go back and rely on the time-barred unilateral conduct of July 1, 1967. Both Local Lodge 1424, International Association of Machinists v. N.L.R.B. (Bryan Manufacturing Company), 362 U.S. 411, and Bowen Products Corp., 113 NLRB 731, teach that such an approach is at odds with Section 10(b). The cases cited by General Counsel, as well as all others of which I am aware, in which a violation was found, have one thing in common: the illegality was established by evidence independent of the time-barred conduct, generally, a written provision unlawful on its face. The necessity for such evidence is highlighted in Great Lakes Carbon Corporation, 152 NLRB 988, one of the cases relied upon by General Counsel, where the Board stated, Cloverleaf Division of Adams Dairy Co , 147 NLRB 1410, 1412; The Timken Roller Bearing Co , 138 NLRB 15, enfd. 325 F 2d 746 (C.A. 6). 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The gravamen of the instant unfair labor practices rests upon the Respondent's barring ' of job opportunities to employees Pritchard, Thompson, and Whetstine within the 10(b) period pursuant to superseniority provisions contained in a contract which was executed outside the 10(b) period. Therefore, in order to sustain our findings herein, it is essential that we find, as we do, that independently of the legality of the execution of the contract,' the provisions themselves are discriminatory on their face (Emphasis supplied.) In the footnote, the Board distinguished the Bryan and Bowen Products cases. In the instant case there is nothing discriminatory on the face of the Notice to All Installers and I find the case indistinguishable from Bryan and Bowen Products. Accordingly, I shall recommend that the allegations that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally establishing and/or enforcing production standards be dismissed.' As to the allegation that Respondent violated Section 8(a)(5) and (1) by refusing to bargain about the production standards on April 4, under the circumstances disclosed, a finding of a violation is not warranted. In the first place, it does not appear that the Union effectively sought to bargain about the standards. The April 4 meeting was a grievance meeting and it is clear all that the Union requested was revocation of Davis' 2-day suspension on the ground the production standards had not been agreed to. Coupled with this was a suggestion that the matter could be bargained about. At no time, however, was a request made for bargaining. Although Respondent had taken the erroneous position that the issue was one of management prerogatives, I am not persuaded that it had so expressed itself as to warrant a finding that a request to bargain would have been futile and was therefore unnecessary.6 In the second place, the record as a whole contains substantial evidence that the Union had acquiesced in Respondent's adoption of production standards. This acquiescence is demonstrated by its failure to act from July 24, 1967, when Respondent failed to reply to its timely protest, to the time of the processing of the grievance on April 4, 1968. Thereafter, despite the fact that Davis had been suspended for failure to meet the standards, the Union undertook to negotiate a new contract without mentioning the subject of production standards, content to modify the contract provision on company rules to prevent a recurrence.7 Despite persistent questioning, Nolte was unable to offer any satisfactory reason for the Union's avoidance of the subject in the negotiations. The reason may lie in the statement attributed to Nolte by union members, and testified to by Superintendent Francis, that when Davis brought one of the warning letters to a union meeting, he was told by Nolte "... to get off his tail and go to work...." For the foregoing reasons, I shall recommend that the allegation that Respondent violated Section 8(a)(5) and (1) on April 4 by refusing to bargain about production standards be dismissed., Finally, 'the allegations that Respondent suspended Davis on March 15 and laid him off on April 3 because of his union activities are not supported by the evidence. Davis' union activity occurred long before his suspension and layoff and there is not a scintilla of evidence that the Respondent entertained any animus against him or the Union. It is undisputed that on the occasion of each warning given Davis and on the occasion of his 2-day suspension, he had failed to meet the production standards. While he was the only employee warned or suspended for this reason, he was the only employee who was failing to meet the standards. As to Davis' layoff on March 27, it is undisputed that the layoff was in accordance with seniority and there is no evidence to refute the Respondent's assertion that the layoff was due to a lack of work. No one was hired to replace Davis and no additional overtime was worked. The work performed by technician Delaney, as described by Davis, was not the type of work Davis performed. For all the foregoing reasons, I shall recommend that the allegations that Respondent suspended Davis on March 15 and laid him off on March 27 because of his union activities be dismissed. CONCLUSIONS OF LAW 1. Respondent, Durfee's Television Cable Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Counsel has failed to establish by a preponderance of the evidence that Respondent violated Section 8(a)(5), (3), or (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, it is recommended that the complaint, as amended, be dismissed in its entirety. 'It follows from this conclusion that the allegation that Respondent violated Section 8(a)(l) by threatening employees with layoff or discharge for failure to meet the production standards should also be dismissed 'Cf. Motoresearch Company and Kems Corporation, 138 NLRB 1490, 1493 Of course, no request to bargain on the subject would have been necessary had not 8 months elapsed since the unilateral adoption of the standards. 'Cf Justesen's Food Stores, Inc., 160 NLRB 687, fn. 2 'In his brief, General Counsel states that Respondent's refusal to arbitrate the Davis grievance was violative of Section 8(a)(5) of the Act The complaint does not allege such a violation, the evidence does not support it; and a refusal to go to arbitration as provided by contract is not, in itself, a refusal to bargain. Textron Puerto Rico (Tricot Division), 107 NLRB 583, 584.