Southwestern Bell Telephone Co.

SOUTHWESTERN BELL TELEPHONE COMPANY Southwestern Bell Telephone Company and Commu- nications Workers of America, AFL-CIO, and its Local Union No. 6222. Case 23-CA-3902 July 31, 1972 DECISION AND ORDER On August 12, 1971, Trial Examiner Paul E. Weil issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel and Charging Party filed briefs in answer to Respon- dent's exceptions. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions only to the extent that they are consistent with our - Decision herein.1 The Trial Examiner found that Respondent violat- ed Section 8(a)(5) and (1) of the Act, by making certain unilateral changes in working conditions. In its exceptions and brief to the Board, Respondent contends that, under the recent decision in Collyer Insulated Wire,2 any finding as to the alleged violations in the instant case should be deferred pending resolution by the grievance and arbitration provisions set up in the contract. In response to this contention, the Union and the General Counsel argue that the changes come within the contractual exception to the grievance and arbitration provisions, on the ground that they constitute a prospective modification or amendment to the contract. We agree with Respondent's contention that this dispute should be resolved pursuant to the contract and we shall dismiss the complaint. Respondent is engaged in the business of transmit- ting local and long-distance telephone calls in and among the States of Texas, Arkansas, Oklahoma, Kansas, Missouri, and a small portion of Illinois. The Union is recognized by Respondent as the exclusive collective-bargaining representative of its operating 1 The Charging Party requested oral argument . This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and positions of the parties. In a related proceeding brought against the Charging Party under Section 301 of the Act by the Respondent, a Federal district court found that the present dispute is not one which the parties agreed to arbitrate under the terms of their collective-bargaining agreement in the instant case. Southwest- ern Bell Telephone Company v. Communications Workers of America, AFL-CIO, and its Local 6222, 324 F.Supp. 830 (S.D. Tex. 1971). Thereafter, the Court of Appeals for the Fifth Circuit reversed this decision of the district court and remanded the proceeding for further consideration. (454 F.2d 1333 (1971). The court of appeals held at 454 F.2d 1337 that: ... the union's position and the district court finding that the dispute was not within the scope of the contract 's arbitration clause ... cannot stand. . . . fT)he use of the part-time employees with their own seniority schedule requires consideration of the application of the collective agreement's seniority clause . As such, it is a claim which on its face is governed by the contract and is arguably arbitrable. On November 30, 1971, the Respondent filed a motion before the Board 569 employees. The contract in effect when this dispute arose, the 1968 Traffic Agreement and Agreement of General Application, was made effective from July 1968 until July 1971 and thereafter until terminated by 30 days written notice from either party. The contract provides in part that Respondent can assign its employees to "part-time tours, which shall be not less than 3 hours in length." In addition, the contract states that "seniority shall be taken into account in the treatment of employees . . . insofar as the conditions of business and the abilities of the employees permit." The parties also agreed that: If, during the term of this Agreement . . . a difference shall occur, between the Union and management, and continue after all steps in the "Formal Grievance" procedure . . . have been undertaken and completed, regarding (a) the true intent and meaning of any specific provision or provisions thereof (except as such provision or provisions relate, either specifically or by effect, to prospective modifications or amendments of such agreements), then in . . . such event, either the Union or the Management may submit the issue of . . . such matter to arbitration for final decision... . On January 28, 1971, Respondent met with representatives of the Union to explain its decision to operate a new facility with a work force made up of housewives working part time. Respondent an- nounced that the part-time housewives would be assigned to 4-hour tours of duty in both the morning and afternoon, would be considered a separate work force, and would appear on a separate seniority list. Respondent further stated that full-time employees would not have the opportunity to bid on the part- time tours, unless they requested a permanent transfer to part-time employment. Historically, full- time and part-time operating employees at Respon- for leave to file the opinion of the court of appeals . On December 6, 1971, the Charging Party filed a motion for leave to file the "memorandum and order" of the district court and the entire transcript in the same case. We take official notice of the court of appeals decision , and accordingly deny both motions as lacking in merit. The Charging Party also filed a motion to reopen the record for the purpose of receiving (1) evidence that it adduced in the district court proceeding on remand, and (2) the forthcoming decision of that court. After a careful reading of the court of appeals' opinion, we believe that the issue of arbitrability was not remanded to the district court. In our opinion, the court found that the present dispute is arguably arbitrable and remanded the case to the district court for a determination only as to whether a temporary injunction order should be issued pursuant to the requirements of the Supreme Court's decision in Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235 ( 1970). Therefore any evidence presented to the district court on remand is not relevant to the determination of the issue before us. Accordingly, we deny the Charging Party's motion to reopen the record as lacking in merit. 2 192 NLRB No. 150. 198 NLRB No. 6 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent's facilities had been considered a single work force, all of whom appeared on a single seniority list. Representatives of the Union replied that Respon- dent's new plan would destroy seniority and could not be accepted. Respondent's representatives stated that they called the meeting to explain the new plan and not to negotiate about it. On February 26, 1971, Marvin Collins, Houston- San Antonio director of the Union, in accordance with the grievance provision of the contract, request- ed a meeting to discuss the new plan. However, the Union later decided not to pursue the grievance procedure, and instead placed pickets outside the new facility. Based on these facts, the Trial Examiner found that Respondent violated Section 8(a)(5) and (1) of the Act by instituting unilateral changes in working conditions. In response to Respondent's argument that the dispute should be resolved by the grievance and arbitration provisions set up in the contract, the Trial Examiner found that "the contract does not deal with these issues" and that under the terms of the contract "the dispute is not one which either party is bound to arbitrate." The Trial Examiner viewed Respondent's new plan as a modification of the agreement, and therefore within the express exclusion from arbitration. We find merit in Respondent's contention that this dispute arguably arises from the collective-bargain- ing agreement between the parties and that it should be submitted for resolution under the grievance and arbitration provisions set out therein . The contract provisions demonstrate that the parties intended to allow Respondent some flexibility in its use of part- time employees . If the Union felt that Respondent took action that was outside the contract, it could invoke the grievance procedure . Initially, the Union took such action, even though it later decided not to pursue that action to completion. In our view, the recent decision in Collyer is applicable to this case . Therefore, we conclude that the dispute over Respondent's new plan must be submitted to the grievance and arbitration proce- dures agreed on by the parties . We shall, accordingly, dismiss the complaint in the present case, but shall retain jurisdiction to entertain an appropriate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this Decision, either been resolved by amicable settle- ment in the grievance procedure or submitted promptly to arbitration, or (b) the dispute has been duly found by the arbitrator not to be arbitrable, or (c) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed ; provided, however, that: Jurisdiction of this proceeding is hereby retained for the limited purposes indicated in our Decision herein. MEMBERS FANNING AND JENKINS, dissenting: On January 28, 1971 , Emil C. Rust, traffic personnel supervisor of Respondent in the Houston, Texas, area, called a meeting at his office to announce to officials of the Union the introduction of new system of allocating daytime work to part- time employees at the Alabama Building in Houston. Contrary to previous practice, part-time and full- time employees, although technically in the same appropriate unit, would be carried as entirely separate work forces, with separate seniority and separate work schedules. To transfer from full-time work to part-time work or vice versa an employee would have to file an application for a transfer and wait for a vacancy. The number and scheduling of part-time "tours" was within the exclusive discretion of the Respondent. Rust asserted that the Respon- dent's purpose was to induce housewives in the Houston area to take part-time tours while their children were in school . Concerned that senior full- time employees would be deprived of tours during the desirable daytime hours, which the Respondent for the first time was reserving for part-time employees, many of them newly hired, the Union protested that this procedure would destroy seniority and ultimately the Union . Rust stated that he would not negotiate with respect to the plan^and was there merely to explain it. On February 26 the Internation- al Union filed a grievance and on the same day the Local began picketing at the Alabama Building. The General Counsel contends that Respondent's conduct, set forth above, constituted a unilateral change in conditions of employment in violation of Section 8(a)(5) and (1) of the Act. Respondent defends on the grounds , inter alia, (1) that its contract with the Union gave it the right to assign employees to "part-time tours, which shall be no less than 3 hours in length;" and (2) that, in any event, the contract's grievance and arbitration procedure is available to the Union and should be utilized in lieu of the Board's processes . As to (1), the Union does not object to the establishment per se of part-time tours at the Alabama Building. The issue in this case relates to the Respondent's change in its employees' conditions of employment , whereby part-time tours for the first time are scheduled during regular SOUTHWESTERN BELL TELEPHONE COMPANY 571 daytime hours and are reserved exclusively for employees listed separately in a part-time working force. As to (2), the Trial Examiner found that arbitration of this grievance was not available to the Union because Respondent, in effect, had modified the contract and such modifications were specifically excluded by the contract from its arbitration provi- sions. In a companion proceeding under Section 301 of the Act the Court of Appeals for the Fifth Circuit has concluded that the use of part-time employees with their own schedule was "arguably arbitrable" under the seniority provisions of the parties' 1968 contract. The court's opinion follows United Steel Workers of America v. American Manufacturing Company, 363 U.S. 564, wherein the Supreme Court admonished lower courts not to weigh the merits of a particular grievance submitted to arbitration on the ground that "even frivolous claims may have therapeutic value ...." In dismissing the complaint in the instant case the majority relies upon its recent decision in Collyer Insulated Wire, supra. There Respondent alleged that specific provisions of its contract gave it the right unilaterally to make certain changes in a skill factor increase and adjustments in individual rates. Al- though the majority set forth the contractual basis for the Respondent's position, it refused to decide the merits of the alleged unfair labor practice, holding that the issue should be resolved by an arbitrator. We dissented in that case on the ground that Congress mandated the Board in Section 10(a) of the Act to prevent persons from committing unfair labor practices and directed that the Board's "power shall not be affected by any other means of adjustment or prevention that has been or may be established by law, agreement, or otherwise. . . ." We dissented again from the majority's more recent decision in Appalachian Power, 198 NLRB No. 7, holding that Section 7 rights of an employee must be similarly determined by an arbitrator and in which the majority ignored a long line of Board and court decisions establishing the principle that a waiver of statutory rights in a contract must be stated in clear and unmistakable terms, citing, among other cases, Whitin Machine Works, 108 NLRB 1573, enfd. 217 F.2d 593 (C.A. 4), cert. denied 349, U.S. 905; The Item Company, 108 NLRB 1634, enfd. 220 F.2d 956 (C.A. 5); Boston Herald Traveler Corporation, 110 NLRB 2097, enfd. 223 F.2d 58 (C.A. 1). No provision of the contract in the instant case specifically grants management the unilateral right to change the established practice of assigning employ- ees to regular tours during daytime weekday hours. Whatever the language of section XIX of the contract may be construed to mean with respect to seniority rights of employees, that provision does not clearly and unmistakably waive the Union 's right to bargain about any changes in the assignment of employees to tours, whether full-time or part-time, on the basis of unitwide seniority. In the absence of a specific waiver of this nature it is clear from the cases cited above and in our dissenting opinion in Appalachian Power, supra, that an employer violates Section 8(a)(5) of the Act when he refuses to bargain about a mandatory subject of bargaining , such as seniority and shift changes affecting conditions of employment . Surely, a contrary decision of an arbitrator cannot overrule these Board and court decisions that have been approved by the Supreme Court and have been part of the warp and woof of labor law for more than 20 years . Yet this is the basic premise of the Board's Collyer doctrine as applied in these cases. Should an arbitrator decide that the Respondent, indeed, had a contractual right to make unilateral changes in seniority assignments and part- time tours, presumably the majority is prepared to accept his determination on the ground that he has "special skill and expertise." This, despite the legally established law of waiver and the line of cases beginning with N.L.R.B. v. Katz, et al., 369 U.S. 736, in which the Supreme Court held that unilateral changes in conditions of employment violate Section 8(a)(5) of the Act, as defined in Section 8(d). Obviously, the Board's cases, such as Central Illinois Public Service Company, et al., 139 NLRB 1407; Westinghouse Electric Corp., 141 NLRB 733; Smith Cabinet Manufacturing Company, 147 NLRB 1506; American Fire Apparatus Company, 160 NLRB 1318; Leeds & Northrup Company, 162 NLRB 987, are entitled to no greater weight. We cannot agree with this new "developmental step" in the majority's refusal to decide unfair labor practice cases on the merits if the parties have a contractual relationship. It seems to us the Board is in the process of throwing out the baby with the bath. There are too many cases on the books defining the rights of parties to engage in mandatory subjects of bargaining, even during the terms of valid contracts, for the Board to say, "No. This is no longer our function under the statute . You take your dispute to an arbitrator first. Then we will see what we will see." We cannot emphasize too often that the National Labor Relations Act was established by Congress to be administered by this Board with its own staff in the public interest to protect public rights in the stability of collective bargaining. It does not effectu- ate that purpose or serve that interest for the Board to appoint other parties to decide unfair labor practices in its stead. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION mined that the building would house certain functions of its traffic department including one or two directory assistance units, starting with a complement of 92 employees. After canvassing the various traffic department installa- tions in and around Houston, Respondent ascertained that 88 presently employed operators wished to transfer to the new facility (hereinafter called the Alabama Building) and that 4 new employees would be hired. Respondent also determined that in order to tap a source of potential employees which it believed to exist, housewives prepared to work parttime, it would schedule shifts of 4 hours' duration during the morning and afternoon hours, a practice not theretofore followed in the Houston area. On January 281 representatives of Respondent headed by Houston Area Traffic Personnel Supervisor Rust met with the officers of Local 6222 and an International staff representative of the Charging Party to advise it of the plans for the Alabama Building. Rust and Frank Pyle, a division traffic supervisor, explained the physical attributes of the facility, including the parking and lunchroom facility, disclosed its starting plans and informed the Union of the result of the Respondent's canvass for employees from the other facilities and of the potential use of the building. Rust then informed the union representatives that Respondent proposed to man the facility on an experimen- tal basis with part-time employees to a greater extent than was customary. He also stated that the part-time employ- ees would work in 4-hour shifts during the morning and early afternoon and that these shifts would be reserved to part-time employees. To accomplish this end Rust stated that part-time employees would be considered as a separate work force with separate seniority so that part- time employees would compete only with other part-time employees for these shifts. In response to questions from the union representatives, Rust stated that full-time employees would not be permitted to bid on these full-time shifts nor to transfer into the part-time work force except on the basis of a formal transfer, granted only under the circumstances that an opening existed in the part-time force. Rust stated that Respondent could not be definite with regard to the number of part-time employees who would be used as there was no way to ascertain the availability of part-time applicants, but he mentioned a figure as high as 50 percent of the work force. Local 6222 President Gunn protested that Respondent's plan would destroy seniority and ultimately destroy the Union and that the Union could not accept it. Rust answered that he understood the Union's disagreement but he was there to explain the system and would not negotiate on the plan. During his explanation Rust stated that the employees who desired to transfer to the facility would have to lose the vacation they had already selected on the basis of their seniority in the facilities from which they worked and moved and compete again on the basis of their relative seniority in the new facility. To this the Union also took exception and Rust stated that he would consider the matter further. It appeared that sometime later Rust STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner: On March 5, 1971, the Communications Workers of America and its Local Union No. 6222, hereinafter jointly called the Union, filed a charge with the Regional Director for Region 23 of the National Labor Relations Board, hereinafter called the Board, alleging that Southwestern Bell Telephone Compa- ny, hereinafter called Respondent, violated Section 8(a)(1) and (5) of the Act by unilaterally changing certain working conditions and refusing to bargain thereupon. The Region- al Director, on behalf of the General Counsel, on May 3, 1971, issued a complaint and notice of hearing alleging the refusal to bargain on the part of Respondent. By its answer, duly filed, Respondent admitted the jurisdictional facts alleged in the complaint and that the Union was a labor organization but denied the commission of any unfair labor practice. Respondent further alleged affirma- tively that the Union has engaged in an unlawful strike in violation of the collective-bargaining agreement between the parties and that it is and has at all times been willing to meet in accordance with the grievance procedure con- tained in the collective-bargaining agreement between the parties. On the issues thus joined, a hearing was held before me in Houston, Texas, on June 17, 1971. All parties were represented by counsel and were afforded an opportunity to produce relevant and material evidence, to argue orally on the record, and to file briefs. Briefs have been received from all parties. Upon the entire record and in consideration of the briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is a Missouri corporation with its principal office in St. Louis, Missouri, engaged in the business of transmitting and receiving telephone messages in and among several States in the Southwestern portion of the United States including the State of Texas. Respondent, in the course and conduct of its business operations, annually provides services for which it receives an amount exceeding $100,000. Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE Background In the late fall of 1970 the Respondent announced in an employee newsletter the purchase of a building which was to be put into service as soon as possible in the city of Houston. During the ensuing months Respondent deter- I All dates hereinafter are in the year 1971. SOUTHWESTERN BELL TELEPHONE COMPANY informed the Union that the transferring employees can retain their vacations previously selected. Rust informed the Union at the January 28 meeting that the Alabama Building was to open on March 1 and the employer contemplated instituting the use of the new part- time employees as soon after as it was feasible to do so. On February 26, Marvin Collins, the Houston-San Antonio director for the International Union, addressed a letter to Superintendent Pyle advising that the Union wished to meet and discuss a grievance under the terms of article XX of the current traffic department agreement between the Company and the Union based on the Company's determination to proceed with the scheduling of part-time employees. It is obvious from Collins' letter, although the record does not otherwise explicate the fact, that communi- cations with regard to the issue had been had between the parties. Collins' letter, for instance, recites that the Company's plans are to be put into effect on or about March 8 at the Alabama Building and that a meeting on the grievance had already been confirmed as of the date of writing for Monday, March 1. On the same date as the grievance letter by Collins, Local President Gunn caused picketing to commence at the Alabama Building. At this time, February 26, no unit employee was scheduled to work there. It appears that if any of Respondent's employees were then employed they would have been technical employees engaged in installing equipment. Subsequently, four or five unit employees have been assigned and refused to cross the picket line. The picketing has continued to the time of the hearing. The Alabama Building had not to that time been opened as a facility of the Company. Discussion and Conclusions The General Counsel contends that the institution of the "new" plan by Respondent is a substantial change in working conditions of the employees in that prior thereto, at least in the Houston area, part-time employment was available only in the evening and night hours and not during the morning and early afternoon periods which were normally covered by full-time 8-hour shifts. Further the General Counsel and the Union contend that the institution of a separate or new seniority list for part-time employees pursuant to which the rights of senior employ- ees to bid for part-time assignments would be lost was a further innovation in the established working conditions. The General Counsel and the Union argue that Respon- dent's announcement of the unilateral change without bargaining and its announced intention to implement the changes without further negotiating constitute a unilateral change in working conditions and, accordingly, a violation of Section 8(a)(5) and (1) of the Act. Respondent, on the other hand, contends that the announced manning procedure for the Alabama Building is no change in working conditions at all, that throughout its system part-time employees had been used without complaint of the Union and that no separate seniority other than that presently existing is contemplated by the plan. Furthermore, Respondent contends that the dispute is cognizable under the terms of the collective-bargaining agreement between them and that the Union's appropriate 573 recourse must be under the grievance and arbitration provisions of the agreement. Finally, Respondent argues that the strike by which the Union arrested Respondent's implementation of the plan is in violation of the no-strike clause of its contract. Accordingly, Respondent contends it is not guilty of any refusal to bargain and is under no duty now to bargain because of the unlawful strike. The Respondent also contends that it had a right under the terms of the contract to make and implement the part-time use of employees as set forth above, because in previous bargaining the matter had been negotiated resulting in a contractual provision permitting its contemplated use of part-time employees and it was doing no more than acting within its rights. The 1968 Traffic Agreement between the Union and Respondent provides in article IV that part-time tours, which shall be not less than 3 hours in length, may be assigned. Article V of the same agreement provides that, insofar as the service requirements will permit, employee preference in order of seniority shall be taken into account in the assignment of hours. The same article further provides that part-time employees shall accumulate senior- ity on the basis of one-half of full seniority provided such employees work no more than 20 hours' work per week. Employees working over 20 hours but less than 40 hours per week accumulate seniority on the same basis as full- time employees. In the operation of these provisions heretofore in the Houston area Respondent has not established part-time tours during the hours between 8 a.m. and 3 p.m. and the chief source of part-time employees has been school girls working after their school day's comple- tion. On a few occasions in the past grievances have been filed by the Union with regard to scheduling of part-time employees. One such grievance dealt with the attempt by the Union to support a full-time employee who wished to work part time during the daylight hours. The employer refused the grievance on the basis that this was not permissible under the Company's interpretation of the contract. The other grievance related to the institution of hours for part-time use during the day and as a result of the grievance the part-time tours were taken off this schedule. It appeared therefore that at least in the Houston area the assignments of part-time tours during the normal working day is a new departure not previously within the contemplation of the parties. With regard to the prior negotiation claimed to have been engaged in, Respondent provided a transcript of a negotiating session in 1947 that dealt with the question of Respondent's use of temporary and part-time employees with the Union proposing that a limitation be made of Respondent's use because the Union felt that too many temporary and part-time employees were used by Respondent and that full-time employees were being displaced thereby. The response of the Company's negotiator at that time was that part-time employees are used only in the evening shifts and occasionally to relieve full-time employees on weekends and that there was no problem in existence. Rather than establishing the employer's point it appears to me that the transcript established the General Counsel's point that at least as of 1947 the Company denied the use of part-time employees under the circumstances that they proposed to 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD use them in the Alabama Building and stated at that time that it had no intention of using part-time employees under those circumstances. There is no provision in the contract providing for separate seniority for part-time persons or limiting the rights of employees to transfer into a part-time classifica- tion if their seniority permitted it. The evidence of Mr. Gunn that Mr. Rust stated that such transferring would not in the future be permitted at the Alabama Building is uncontradicted. I find that this too is a considerable change in working conditions even though Respondent contends it is unlikely that any large number of such transfers would be sought. I further find that the bargaining in the past with regard to part-time employees has not dealt with the issue raised in the instant situation which appears to have been raised in Houston for the first time.2 A potentially troublesome aspect of this case is the fact that there is no evidence of an overt demand to bargain by the Union with regard to the proposed change. The General Counsel contends that a demand is unnecessary because the unfair labor practice was completed on January 28 when the change was announced as a fail accompli. The Respondent indicates that over 30 days remained for the accomplishment of any bargain and points out that normally the complete negotiation of a contract takes less than 30 days. Accordingly, plenty of time existed before the implementation of the new plan to conduct any negotiations necessary. I find that at the time of the announcement of the proposed change to the Union on January 28 Respondent had finally decided on the change. The announcement by Rust was the announcement of a decision finally made3 and his statement that he was there to explain the decision not to negotiate it was, I am convinced, revelatory of Respondent's refusal to bargain thereupon. In the light of this fact the Union was under no duty to demand bargaining. This conclusion is supported by the testimony of Pyle and by the position of the Respondent at the hearing that no duty to bargain existed at that time both because of the contractual provision permitting Respon- dent to assign part-time tours of not less than 3 hours in length or under the belief that if a dispute was cognizable at all it was cognizable only under the contract grievance procedure. I have found above that the imposition of part-time tours during the daylight hours and of separate seniority lists for part-time employees such as was contemplated by the Respondent at the Alabama facility have not heretofore been the subject of negotiation between the parties nor has it been within the contemplation of the parties. I find that the contract does not deal with these issues and that under the terms of the grievance and arbitration provisions of both the 1968 Traffic Agreement and the 1968 Agreement of General Application the dispute is not one which either party is bound to arbitrate.4 Accordingly, I reject Respon- dent's argument that the Board should not take jurisdiction over the dispute here because of its willingness to go through with the grievance and arbitration provisions of the contract. It is well established that an employer before adopting changes in wages and working conditions is required not only to notify the Union but to meet and confer with it and to negotiate in good faith to an accord or an impasse.5 Respondent herein has not satisfied its bargaining duty by announcing to the Union its adoption of a new plan and proceeding to implement it. Respondent is required to consult with the Union before reaching a final determina- tion to effectuate the changes. Inasmuch as Respondent was seeking the change Respondent was required to initiate bargaining to fulfill its collective-bargaining obliga- tion. This it did not do. On the contrary it informed the Union that it was not there to bargain even though it was made aware by the Union at the January 28 session that the Union did not acquiesce in its determination. Under these circumstances I find that the Respondent bypassed the Union and attempted to change the working conditions of its employees without prior consultation with the Union. This constitutes a refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. That Respondent may in good faith have believed that it had the right under its contract to make the changes it proposed is no defense to it. With regard to Respondent's defense that because the Union picketed the Alabama Building and caused a work stoppage in violation of its contract Respondent was relieved of any further duties to bargain I conclude that the defense will not avail it. In the first place it was Respondent's breach of its bargaining duty that gave rise to the picketing. There appears to be no questioning that the picketing was undertaken only to stop Respondent from implementing its new plans. Respondent declined to delay its implementation of the manning and seniority scheme for the new facility until the issue is decided. I find the Union did no more than act in protection of its members' seniority rights in mounting the picket line. Further, as I read the agreement between the parties, the no-strike provision is coextensive with the grievance and arbitration provisions and does not apply to the instant dispute. For this reason I conclude that Respondent's duty to bargain is not vitiated by the Union's picketing. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and 2 The record reveals that in St. Louis as part of a work-education program designed to give on-the-job training to high school students the Union and Respondent by specific agreement, for social purposes, made available certain daytime and weekend part -time shifts. Here again the evidence indicates that the parties considered the issue bargainable and in fact bargained to a conclusion with regard to a limited situation. 3 As the Charging Party points out in its brief, apparently Respondent does not disagree that the decision reached by it prior to the January 28 meeting was final, inasmuch as Respondent has at all times argued that its decision can be reached by the grievance and arbitration clauses in the contracts, which have no application to issues in negotiation. 4 The 1968 Agreement of General Application provides in art . IV, sec. l(a), that prospective modifications or amendments to the agreement are excluded from arbitration. The Respondent's proposal agreement would, in effect, modify the agreement by the establishment of separate seniority as well as by the arrangement of tours and the assignment of hours. 5 Central Illinois Public Service Co, 139 NLRB 1407. SOUTHWESTERN BELL TELEPHONE COMPANY 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. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) and (5) of the Act by unilaterally effecting changes in its employees' terms and conditions of employment without consulting or bargaining with their designated bargaining agent, I shall recommend that it be ordered to cease and desist from engaging in such conduct and from like or related conduct. There remains to be considered the nature of the affirmative remedy necessary to effectuate the purposes of the Act. The record reveals that because of the Union's picketing the actual effectuation of the changes by Respondent has not taken place . It does not appear that the Alabama Building, at least until the time of the hearing, has been occupied. Accordingly, I recommend that the Respondent be ordered to restore the status quo ante that existed prior to its announcement of the changes that it proposed to make and to require Respondent to bargain in good faith with the Union concerning the subject of part- time tours and/or separate seniority for part-time employ- ees prior to the institution of either. Upon the basis of the foregoing findings of fact and of the entire record in this proceeding I make the following: CONCLUSIONS OF LAW 575 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union is the exclusive bargaining representative of the traffic department employees, including traffic operators, senior operators, central office clerks , service assistants, service observers, central office head clerks, head service observers, TBX, TWX and customer instruc- tors, traffic operating employees, lunchroom attendants, cooks and head cooks employed by Respondent, excluding confidential employees, professional employees, guards and supervisors as defined in the Act, a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By unilaterally instituting daytime part-time tours of duty and separate seniority for part-time employees without prior notice to or consultation or bargaining with the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]