Rochester Telephone Corp.

ROCHESTER TELEPHONE CORP. Rochester Telephone Corporation and Communica- tions Workers of America, AFL-CIO Local 1170, Union. Case 3-CA-4195 April 28, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On January 13, 1971, Trial Examiner Lloyd S. Gree- nidge issued his Decision in the above-entitled proceed- ing, finding that the Respondent has not engaged in certain unfair labor practices alleged in the complaint, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief and the Respondent filed a brief in opposition to the Gen- eral Counsel's exceptions. 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 Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the com- plaint be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LLOYD S. GREENIDGE, Trial Examiner: This case was heard on November 4, 1970, at Rochester, New York, on a complaint issued on September 28, 1970, by the General Counsel alleging violation by Rochester Telephone Corpora- tion, herein called the Respondent or the Company, of Sec- tion 8(a)(5) and (1) of the Act.' At the hearing all parties appeared and were afforded full opportunity to present rele- vant evidence. After the close of the hearing, briefs were filed by the General Counsel and the Respondent. Upon consideration of the entire record in the case, includ- ing the briefs, and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 161 Respondent, a New York corporation, maintains its princi- pal office and place of business in Rochester, New York. In the course of its business operations of providing local and long distance communications and related services as part of a nationwide telephone system during the year 1969, Re- spondent derived gross revenues in excess of $1 million for communication services between the State of New York and other States. Respondent admits, and I find, that it is, and at all times material herein has been, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Communications Workers of America, AFL-CIO, Local 1170 Union, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue in Litigation and Background Facts The essential question presented is whether the Respond- ent was legally justified in making certain changes in the method of its operations affecting the classification of em- ployees known as installers without bargaining with the Un- ion about the changes. In major part, the critical and truly pertinent facts are not in dispute. Sometime in 1968, the Respondent put into operation a management plan for its basic or residential service and, at that time, established a control center to handle the details associated with that work. In November 1969, John Gnan, then manager of plant services at the Central Sub-District (Stone Street) and presently systems planning manager, was assigned to conduct a study of the Company's practices and procedures relative to its complex or business type installa- tion. The result of the effort was the promulgation in January 1970 of a document entitled "Installation Force Management Plan," Section IA 70, which established administrative procedures for complex installations. The "Plan" incor- porated many existing practices and procedures including those for presurvey of complex orders. Later, Gnan drafted and, in July 1970, the Company issued a separate document called "Pre-Survey Complex Orders," issue B . According to Gnan, the procedures for presurvey of complex orders set forth in issue B are nothing more than a revision of a written protocol denominated issue A released by the Company in April 1968 and used by him as a guide in the preparation of the July 1970 directive. The basic allegation of wrongdoing appearing in the com- plaint is grounded upon Respondent's institution of the "Plan," referred to in the complaint as "a time measurement plan." It is argued by the General Counsel that Respondent unilaterally changed existing terms and conditions of employ- ment by implementation of the "Plan" because certain work -presurvey and ordering equipment-previously done by bargaining unit employees was assigned to foremen. Con- trariwise, Respondent contends that prior to implementation foremen and bargaining unit employees presurveyed jobs and ordered equipment and both continue to do this work under the "Plan." ' The complaint is based on a charge filed on July 29, 1970, and duly served on the Respondent by registered mail on the date of the filing. 190 NLRB No. 31 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Relevant Facts 1. The development of the dispute For some years, Respondent has had contractual relations with the Communications Workers of.America as the collec- tive-bargaining representative in a unit of "all Plant Service Department and all Plant Engineering and Construction De- partment employees." The agreement, which is administered by Local 1170 on behalf of its parent organization, was made on October 19, 1968, to run to October 18, 1971. Prior to January 1970, there were about 44 installers, 40 repairmen, and 11 foremen at Respondent's Stone Street location, the facility with which we are primarily concerned. Now, there are about 38 installers,' 43 repairmen, and 13 foremen at that location. Rumors of Gnan's investigation reached the employees and a meeting with management was requested and held about a month or two prior to February 1970. In attendance were 11 members of the telephone crew detailed to Xerox Square, a building complex, Shop Steward Gerald De Mel- senare, Central Sub-District Manager D. Allen and Crew Foreman Tom McGlyn. According to De Melsenare, Allen advised that after the plan is put into effect foremen will do pre-survey work, order materials, make sketches and estimate how long it takes employees to complete assigned tasks. As stated above, Gnan began his investigation of the instal- lation force area in November. He concluded his study and wrote a report in January. On or about February 9, Respond- ent formally adopted the report and instituted a phase of the "Installation Force Management Plan." About a week later, on February 16, representatives of the Union and management met, at the Union's request, for the purpose of having the Company explain the "Plan." The Union was represented by Steward De Melsenare and its treasurer, Thomas Leckinger, an installer-repairman at the Company's Northeast location; and the Respondent was represented by District Plant Superintendent (East) Richard Sayers, District Plant Superintendent (West) G. Roessel, Manager Allen, and Gnan. The meeting was held in Sayers' office and lasted approximately 2 hours. At first, the parties discussed the problems which had led to the preparation of the "Plan," including the ordering of equipment, job layouts, and delays in the completion of assignments. A union spokes- man asked if the "Plan" established a point system and was told that it did not. Leckinger remarked that he understood foremen were doing presurvey work and complained that this was a function of installers.' Sayers then explained that fore- men would do more presurvey work under the "Plan" and stated that, while the "Plan" had only been implemented at Stone Street, it would in time be put into effect at the North and Field Streets locations as well. Elaborating Allen de- clared that if necessary foremen would order equipment and leave sketches for the craftsmen. From about March 2 until May 13, Local Union President Robert Flavin and Respondent's director of industrial rela- tions, Thomas Riley, exchanged a series of letters. In the first of such letters, Flavin requested additional information, inter alia, about the "new measurement plan," the change from a z Richard Sayers, district plant superintendent (East), testified that, as of October 1, 1969, the installer complement at Stone Street totaled 41.Of this number, 3 were promoted and 2 were dismissed for reasons having nothing to do with this proceeding, thereby reducing the total to 36. Later, 2 em- ployees were "moved in" bringing the number to 38. ' Leckinger later acknowledged that, prior to implementation of the "Plan," foremen and installers at the Northeast garage did presurvey work and that both continue to do this work under the "Plan" to the same extent as before. unit measurement to a time measurement system, and the probable effect of the change on the status of the unit em- ployees. In response, Riley by letter dated April 7 explained that the "Plan" is a system of control designed to evaluate operational efficiency and to uncover areas of activity in need of corrective action. Continuing Riley advised that the adop- tion of the "Plan" was a prerogative and a recognized respon- sibility of management.` Two weeks later, on April 21, Flavin directed another letter to Riley this time expressing concern that the Company might use the "system to harass and pressure its employees in an unfair and unjust manner for more work units," and proposing a meeting to "clarify" the area of dispute. Riley answered on May 13 stating that Flavin's apprehen- sions were unfounded, reiterating earlier statements to the effect that the "Plan" was developed to enhance the Com- pany's ability to control and evaluate the work of its em- ployees, and denying any intention to harass the employees. He went on to compare the implementation of the "Plan" to the establishment of a new classification, the assignment of work, or the scheduling of employees, in each instance-in his view-a management responsibility. About 4 months later, Riley by letter dated September 1 invited Flavin to a meeting to "more fully explain the intent and purpose of the Installation Force Management Plan." Initially, Riley stated that a meeting was suggested because "recent events" appear to indicate that the Union entertains a misunderstanding about the "Plan." The parties met on September 3 but apparently there was another misunderstanding, this time concerning the purpose of the meeting. According to an attorney for the Respondent, the Board agent assigned to investigate the charge, filed on July 29, proposed in August that the Company meet with the Union and further explain the import of the "Plan." Such a meeting it was suggested might lead to the withdrawal of the charge. This then was the Company's understanding as to the purpose of the gathering and the understanding is reflected in Riley's letter to Flavin of September 1. In Flavin's version, however, the Board agent "suggested that the Company would agree to cease and desist doing the presurvey work and negotiate it out and it was acceptable to us." At another point, Flavin recalled that the Board agent asked "if the company would stop the practice of presurveying and order- ing of equipment, would it [be] acceptable to the union to negotiate with it" and Flavin replied in the affirmative. Obvi- ously, since the parties were operating on different wave- lengths the meeting was doomed to failure from the start. In any event, the September 3 meeting was attended by Flavin, De Melsenare, and Leckinger on behalf of the Union, and by Sayers, Gnan, and manager of Labor Relations William Cli- fford on behalf of the Company. In the beginning, Flavin offered to withdraw the instant charge if the Company would cease doing presurvey work and ordering equipment and agree to negotiate with the Un- ion about the "measurement system." Clifford rejected the Union's proposal stating that the Company would not stop its practice of having foremen do this work. Responding to another inquiry from Flavin, Sayers related that there had been a substantial increase in productivity at Stone Street and attributed the increase to greater operational efficiency under the "Plan." He went on to say that the improvement in operational performance had permitted the Company to reduce from 25 to 10 days the time interval between the receipt of a work request and the Company's reponse thereto. ' The basic concept of the "Plan," as set forth in paragraph 1.01 therein, is the belief that "management is responsible to evaluate orders and build installers' daily work loads." ROCHESTER TELEPHONE CORP. 163 Sayers also advised that the "Plan " had not been instituted companywide but added that it would be put into effect throughout his district. About this point, Flavin made four proposals, repeating the one voiced at the outset of the meet- ing, and adding the following : (1) a joint committee of union and company representatives to be established to review the "time increment allocated to different job functions," (2) complaints predicated on the failure of employees to meet productivity requirements to be processed under the griev- ance and arbitration provisions of the contract, and (3) all craftsmen to be advised of the existence of the "Plan." Cli- fford refused to accept the proposals and he and Sayers stated that the Company would not negotiate about the "Plan." 2. The substance of the change Before the "Plan" was instituted on February 9, there was no focal point in the Company's operation where information received from field foremen with regard to its complex service could be coordinated for scheduling purposes . The "Plan" formalized many preexisting practices and in addition estab- lished a central point , in a control foreman, for the receipt and consolidation of this information . Thus, pursuant to the "Plan," field foremen transmit information concerning work on hand to the control foreman who , among other things, (a) prepares a daily and weekly force availability projection, (b) initiates and coordinates presurvey evaluations , and (c) mat- ches man-hours available against work hours and, as re- quired, deploys the work force or changes offered dates. As reported above, one of the preexisting practices formal- ized and incorporated into the "Plan" is that with regard to presurvey of complex orders . The "Plan" has two essential elements-preevaluation and presurvey. Preevaluation means examining an order and estimating the time required to complete a job. Presurvey contemplates , in part, a visit to a jobsite for the purpose of verifying a customer's work re- quest and ordering whatever materials may be required to start a job. Gnan testified that "Pre-Survey Complex- Orders", issue B, July 1970, is nothing more than a revision of a document entitled "Issue A" released by the Company in April 1968 and that the duties of foremen under issue B are essentially the same as they were under issue A. Continu- ing Gnan averred that, prior to February 1970, both foremen and craftsmen made on-the-job visits and that the samc is true today. Referring to subparagraph (a), paragraph 2.03 in the Pre-Survey Complex Orders directive of July 1970, Gnan declared in a pretrial statement to the Labor Board that "Part (a)-In which the supervisor makes intial contact with the subscriber eliminates a lot of headaches for the journeyman who previously made the initial contact." However, he went on to satisfactorily explain in the same statement that "the only change from the old system is that the foreman now perform these functions by a field visit more frequently than he used to. The craftsman also performs these functions. He has done so under the new as well as the old system." In a like vein, Sayers related that now as before either a foreman or craftsman presurveys a job. Further, that when a foreman makes an on-the-job visit he orders just enough material to permit the craftsman to start the job and, there- after, the craftsman requisitions whatever additional material may be necessary to complete the job . Moreover, like Gnan, Sayers readily acknowledged that foremen do more presurvey work today and estimated the number of jobs currently pre- surveyed by foremen to be from 40 to 50 percent of the totals Sayers was unable to say how much higher the present per- ' According to Flavin, Sayers advised the group at the September 3 meeting that 90 percent of the work at Stone Street was being done on a presurvey basis . He contined to say that Sayers also advised that foremen were doing 90 percent of work or all of it . I do not accept this testimony centage is above the percentage of jobs presurveyed by fore- men prior to the introduction of the "Plan." The theme of the absence of any significant change in past practices at Stone Street, voiced by Gnan and Sayers, was echoed by Robert Rinck, a service foreman at that location.6 3. The impact of the change It is undisputed that no employee was laid off, transferred, or discharged as a result of the implementation of the "Plan." However, the General Counsel placed in evidence a chart which shows a decline in the amount of overtime worked by PBX installers at Stone Street during the period January 18 through August 23, 1970, compared with a similar period in 1969. Respondent has two types of overtime-"premium" or customer requested and regular or company initiated. The figures in the chart, prepared by De Melsenare from the Respondent's records, apparently reflect a composite of both types. Foreman Rinck , who receives overtime reports from the installers at Stone Street and prepares weekly schedules therefrom, testified that premium overtime constitutes ap- proximately 90 percent of total overtime and that there was less customer requested overtime in 1970 than in the year previous. Elaborating Sayers related without contradiction, that there was a decline in the level of the Company's activity in 1970 due to adverse economic conditions which neces- sitated an acceleration in its training program to avoid layoffs and also due to a construction strike which affected buildings where unit employees were engaged . I am of the opinion that the chart is of no probative value. This is because it (1) fails to distinguish between premium and regular overtime, (2) neglects to show whether the decline in overtime was limited to Stone Street and whether 1969 was a representative period for the purpose of comparison , (3) overlooks economic fac- tors which might have contributed to the decline and because (4) no attempt was made to relate the drop in overtime to the introduction of the "Plan." In view of the foregoing I am persuaded and thus find that the inference the General Coun- sel suggests, that a logical connection exists between the in- crease in presurvey work being performed by foremen and the decline in overtime work available to bargaining unit em- ployees, is unwarranted.' of Flavin as it conflicts with the credited accounts of Gnan and Sayers and with the testimony of Robert Rinck, hereinafter reported. ' In truth, the only discordant note in the general theme was sounded by Steward De Melsenare who testified that it was not until after the "Plan" was implemented in February that foremen commenced doing presurvey work. I regard the above testimony of De Melsenare as unworthy of reliance and do not credit it for the following reasons : (1) it is contrary to the credited accounts of Gnan, Sayers , and Rinck as to the situation at Stone Street and (2) it conflicts with the testimony of Union Treasurer Leckinger and Fore- man Frank Kase, both assigned to the Northeast garage, to the effect that before and after February 1970, foremen and installers at the Northeast station did presurvey work . In addition, De Melsenare's testimony on this point is pure hearsay. Although attached to Stone Street, De Melsenare's base of operation is Xerox Square . At the latter location, work orders are written by Xerox personnel and referred directly to the telephone crew assigned to that building . Moreover, telephone equipment is stored in the Xerox building obviating the need for anyone in the crew having to requisi- tion equipment from the Company's supply depot. On cross-examination, De Melsenare acknowledged that his testimony was based on reports from six installers and, in effect, admitted that he had no direct knowledge of the presurveying practice at Stone Street or anywhere else at any time material herein. In view of the foregoing, as well as demeanor, I find De Melsenare's testimony to be unworthy of credence. ' As noted above, the record also contains hearsay testimony of no worth by De Melsenare concerning reports from unidentified employees to the effect that they had suffered a diminution in overtime due to the implemen- tation of the "Plan." See Allied Chemical Corporation (National Aniline (Cont.) 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Analysis and Conclusions Under the General Counsel's theory this case involves a simple change in existing terms and conditions of employ- ment by unilateral action-institution of the Installation Force Management Plan-leaving in the wake an erosion in unit work. Respondent's position is equally as definitive for it contends that the institution of the "Plan" did not (a) result in any significant departure from previously established oper- ating procedures, (b) effect a change in the terms and condi- tions of employment of the unit employees, and (c) cause an erosion in unit jobs or a decline in the amount of available overtime and, as a consequence of all of this, that Respondent was not obligated to bargain with the Union about the matter. I agree with the Respondent. I have found that before and after implementation of the "Plan" in February 1970, foremen and installers presurveyed complex orders and ordered equipment. There is no evidence, and the General Counsel makes no claim, that Respondent was at any time motivated by discrimination within the meaning of the Act in instituting the "Plan." On the contrary, it is apparent from the record that Respondent followed an established practice and continued to assign foremen to do this work after the "Plan" was implemented for purely busi- ness and economic reasons and not because of any desire to undermine the Union.8 In a series of cases the Board has had occasion to apply the principles enunciated in its own decisions' and in the Su- preme Court's Fibreboard decision." In this regard, the Board has repeatedly stated that its condemnation of unilat- eral subcontracting with respect to unit work was not cal- culated to lay down hard and fast rules for mechanical ap- plication regardless of the factual situation involved. In Westinghouse, supra, 1576, the Board, holding that an employer did not violate Section 8(a)(5) and (1) by failing to notify and consult with the Union before subcontracting work, said: Thus, it is wrong to assume that, in the absence of an existing contractual waiver, it is a per se unfair labor practice in all situations for an employer to let out unit work without consulting the unit bargaining representa- tive. As the Supreme Court has indicated in a broader context, even where a subject of mandatory bargaining is involved, there may be "circumstances which the Board could or should accept as excusing or justifying unilateral action." Consistent with this view, the Board has identified several recurrent factors which it believes limit the Fibreboard obli- gation; thus, the doctrine has been confined to cases in which some "significant detriment" has occurred," resulting in some "real change" in the terms and conditions of employ- ment of the bargaining unit employees.12 Within Westing- house, the Board declared that, in the cases where violations have been found: .. it has invariably appeared that the contracting out involved a departure from previously established operat- ing practices, effected a change in conditions of employ- ment, or resulted in a significant impairment of job ten- ure, employment security, or reasonably anticipated work opportunities for those in the bargaining unit. A review of the record in this case demonstrates that the criteria established in Westinghouse has been substantially met here." Initially, it is noted that the current collective- bargaining agreement between the Respondent and the Un- ion does not contain a so-called management prerogative clause granting to the Company the right to take unilateral action with respect to unit work without prior notification to and consultation with the Union. Nevertheless, the record establishes that, for some time, foremen and installers have made presurveys and ordered equipment. And, while it is clear that foremen are doing more presurvey work today than was the case in the past, there is no evidence of probative value that the increase in such activity by foremen has had an adverse effect upon the employment interests of the unit employees. More specifically, no adequate showing has been made that the greater volume of presurvey work being done by foremen (1) reflected any determinable qualitative depar- ture from previously set operating practices, (2) changed con- ditions of work at the Stone Street location, or (3) resulted in some "significant detriment" for the Stone Street installers with respect to their job tenure, employment security, or reasonable anticipated work opportunities. The Union's con- cern about the possibility of a gradual erosion of presurvey work available to installers, if foremen continue to do this work without restriction, is understandable but premature and speculative. Accordingly, since the record as made, considered without reference to the challenged unilateral changes, cannot sup- port a finding that the Respondent was duty bound to bar- gain, and since no sufficient showing has been presented that the unilateral institution of the "Plan" was calculated to and did in fact deprive the unit employees of job tenure, employ- ment security, or work opportunities which they could have anticipated reasonably, or otherwise caused a "real change" in the terms and conditions of their employment, I must conclude that the Respondent has not, commencing on or about February 9, 1970, violated its statutory obligation to bargain with the Union by instituting the "Plan," without first affording the Union an opportunity to bargain concern- ing that decision. It is, therefore, found that Respondent has not violated the provisions of Section 8(a)(5) and (1) of the Act as alleged in the complaint and it will, therefore, be recommended that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Respondent, Rochester Telephone Corporation, is, and at all times material herein has been, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Communications Workers of America, AFL-CIO, Local 1170, Union, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. Division), 151 NLRB 718, 721. See McGraw-Edison Company, 172 NLRB No. 178 Westinghouse Electric Corporation (Mansfield Plant), 150 NLRB 1574; Shell Oil Company, 149 NLRB 283; Shell Chemical Company, A Division of Shell Oil Company, 149 NLRB 298; Shell Oil Company, 149 NLRB 305. 10 East Bay Union of Machinists Local 1304, United Steelworkers of America, AFL-CIO, et al. [Fibreboard Paper Products Corp.] v. N.L.R.B., 379 U.S. 203. " See Kennecott Copper Corporation (Chino Mines Division), 148 NLRB 1653, 1654; Central Soya Company, Inc., 151 NLRB 1691, 1692. " See American Oil Company, 151 NLRB 421, 422. " It is recognized that no contract or subcontract for presurvey work is involved in this proceeding. However, the absence of a contract does not render inapplicable the Fibreboard principles because the issue presented is the impact of the change upon the work performed by the unit employees. As the Supreme Court said "we are concerned here only with whether the subject upon which the employer allegedly refused to bargain-contracting out of plant maintenance work previously performed by employees in the bargaining unit, which the employees were capable of continuing to perform -is covered by the phrase 'terms and conditions of employment' within the meaning of Section 8(d)." ROCHESTER TELEPHONE CORP. 165 3. At all times material herein, the Union has been the exclusive representative for the purposes of collective bar- gaining of employees of the Respondent in the following unit within the meaning of Section 9(b) of the Act: All Plant Service Department and all Plant Engineering and Construction Department employees excluding all supervisory employees. 4. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(5) or (1) of the Act by the conduct alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER The complaint is dismissed in its entirety.