Western Electric, Inc.

344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Western Electric, Inc. and International Brotherhood of Electrical Workers, Local Union No. 1974, AFL- CIO. Case 17-CA-4233 September 28, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On January 14, 1972, Administrative Law Judge I A. Norman Somers issued the attached Deci- sion in this proceeding. Thereafter, General Counsel and Charging Party filed exceptions and supporting briefs, and Respondent filed a brief and an answering brief. 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 au- thority in this proceeding to a three-member panel. 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 and to adopt his rec- ommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions 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; provided, however, that: Jurisdiction of this proceeding is hereby retained for the limited purposes stated in the Remedy section of the attached Decision. MEMBER FANNING, dissenting: For the reasons set forth in my dissent in Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB No. 150, I think the Board should not delegate its authority to the arbitrator . Therefore, I would pro- ceed to the merits of the case. ' The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE that of Section 8(a)(5) and (1) of the Act. The General Counsel asserts that the Company at its Omaha Works had, without prior notice to the Union, split up a production division termed the "400 manager's organization" into two smaller ones, termed the "400" and the "100" organizations, and that this altered the collective-bargaining agreement and changed established working conditions of the employ- ees. The Company's defense, in essence, is that its actions were economically motivated and in conformity with the contract, so that the case at most presents a contract dispute for referral to the contract's grievance-arbitration proce- dures. The parties at various stages of the hearing presented oral argument on the issues and have also filed briefs, all of which have been duly considered. On the entire record and my observation of the witnesses, I hereby make the follow- ing: FINDINGS OF FACT I JURISDICTIONAL FACTS Respondent, a New York corporation, makes communi- cations equipment, such as bacle and telephone apparatus. It has numerous plants or facilities throughout the country, in- cluding one in Omaha, known as the Omaha Works, where it receives materials and ships products across state lines in amounts exceeding $50,000 a year in each category. As is not disputed, Respondent is engaged in commerce within the meaning of the Act. The Union is a labor organization within the meaning of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. Issue The alleged violation of Section 8(a)(5) and (1) of the Act stems from the Company's action, unilaterally taken as claimed, in splitting off from a production division, or "Manager's organization," termed the "400," certain opera- tions, which it established as another manager's organiza- tion, termed the "100," thereby making two such organizations, each smaller than the 400 as it was before. Under article 27 of the collective-bargaining contract, titled "Movement of Personnel" (here reproduced in pertinent part and attached as Appendix A), the outermost range of jobs (or "comdor of movement") available to an employee for upgrading (i.e., promotion to a higher grade), lateral transfer (at the same grade to another kind of work), or demotion (for bumping if "surplused" on his own job), are jobs that are within the employee's manager's organization.' The General Counsel claims that the Company by its unilateral action in thus splitting up the 400 and narrowing the scope of their job mobility altered provisions of the A. NORMAN SOMERS, Trial Examiner: This case, with all parties represented, was tried before me on April 8, 9, and 22, 1971, in Omaha, Nebraska, on the complaint issued by the General Counsel on February 1, 1971, on a charge filed by the Union on March 12, 1970. The violation alleged is ' For promotion and transfer at grades 35 and higher, the job must be in the employee's manager's organization, and at grades 34 or lower , it must be in the employee's assistant manager's organization Art. 27, par 2. 1(c). Dis- placement, or "bumping" rights, of an employee who is surplused on his own job are limited, whatever the grade, to jobs in the surplused employee's own manager's organization. Id, par. 3.11(b). 199 NLRB No. 45 WESTERN ELECTRIC, INC. contract and changed established working conditions. The Union claims this action "diluted" or "diminished" the em- ployees' preexisting seniority rights. It claims that whether or not the Company has the right by such a split to restruc- ture its supervisory setup, it does not thereby have the right during the life of the contract unilaterally to reduce the employees' job mobility to the shrunken dimensions of the two manager's organizations created by the split. The Company, to the contrary, claims that it could do just that under article 27, the Movement of Personnel clause, taken in connection with article 2, the management rights clause .2 It claims, however, that the breadth of these man- agement rights, in all their starkness, are not reached here because of its own self-restraint in their exercise. The Com- pany asserts it did give the Union advance notice of the split (though it had no obligation to do so), and even if it failed to do so, no harm was done, since before any employee sustained any detriment by the limitations of job movement created by the split, it bargained in good faith with the Union concerning its effects under article 27. It claims it reaches the ultimate in the "management rights" it thus possesses under the contract only if it were to be found that it did not thus restrain itself. That is, even if it did not give prior notice, as it claims it did, and even if its negotiations concerning the effects of the split on the employees fall short of meeting good-faith requirements, it is still immune under the Act as long as the actual effects of the limits thus placed on the employees under article 27 are "minimal," which it claims they were here, whatever their potential effects (which it in any event claims were likewise "mini- mal"). Respondent accordingly claims that the case at most involves a dispute over the interpretation of the contract, which calls for relegating the parties to the grievance-arbi- tration clauses of the contract. B. Background: The Practice Preceding the Split of the 400 The Company opened its Omaha Works in April 1956.3 The Union was certified in March 1957 (for a bargain- ing unit of all production and maintenance employees at that Omaha facility). The parties have had continuous contrac- tual relations since May 1957, all contracts having had their effective starting dates in May of 1957, 1960, 1963, 1966, and 1969 (this last being the one during which the split of the 400 was made and which was current at the time of the hearing). Some divisions, or manager's organizations, are engaged in other than unit work, but the supervisory struc- ture, or "chain of command," in all manager's organiza- tions, consists, in descending line of authority, of (a) assistant managers, who head up the "subbranches," or "Assistant Manager's organizations," (supra, fn. 1) within the manager's organization ; (b) the heads of the depart- ments within the assistant manager's organizations ; and (c) the section chiefs under the department heads. 2 It reads as follows. ARTICLE 2-MANAGEMENT OF THE BUSINESS: The right to manage the Plant and to direct the work forces and operations of the Plant, subject to the limitation of this Agreement is exclusively vested in, and retained, by the Company. 3 All references to the Company or Respondent are to the Omaha Works plant or facility, unless otherwise indicated 345 In May 1957, the only manager's organization com- prised of employees doing unit work was the 200. The entire working force of the Omaha facility, then located at the Company's "pilot plant," consisted of a few hundred em- ployees, performing simple operations at the lowest grades (supra, fn. 1) of 32, 33, 34 (as distinguished from the addi- tional higher grades, from 35 and above, ibid., which came in the wake of later expansion of the Company's opera- tions). The unit work at this stage consisted of crossbar work, which, stated most generally, is work done on cables and wires that have already been made. Article 27 of the contract has existed in substantially its present form from the time of this first contract in 1957. That clause, as stated (supra, fn. 1), limits the "Movement of Personnel" to jobs within the manager's organization for grades 35 and higher and within an assistant manager's organization for grades 34 and lower. (Id., par. 2.1(c).) That is to say, although under paragraph 1.2, seniority is given "most weight" when two or more employees "under consid- eration" are equally qualified (under par. 1.3) for the post, nevertheless the post must be in the manager' s organization (at grades 35 and higher) or assistant manager's organiza- tion (at grades 34 or lower) if the employee is to be "under consideration" at all for it. Id at par. 2.1(c). And in the event of a force reduction, the surplused employee's bump- ing rights are limited to such jobs within the manager's organization (whatever the grade, equal to or lower than his) for which he is deemed qualified by previous experience. Id. at par. 3.11(b). The Movement of Personnel clause, as it has existed from the outset, was included in this first contract of 1957 over the Union's objection, in which it had urged, unsuccessfully, for movement of personnel based on seniority (and other requi- site qualifications) on a plantwide basis across organizational lines. The Umon thus realized that the Company intended to create more than the one manager's organization then -ex- isting.a By January 1, 1959, with the expansion of operations, the Company moved from the "pilot plant" to the "permanent plant" (supra, fn. 4). The 200 was by then engaged also in actually making wires and cables. This is a more highly skilled operation than crossbar work, which, as stated, is work done on the wires and cables after they are made. The Company then removed the crossbar work from the 200 and established it as a new manager's organization, the 400. Apparently, this split was not preceded by prior notice to the Union. And after the split was made, the Union, al- though it has the right, under paragraph 1.4 of article 27, to ° Confirming this were two witnesses who had participated in the 1957 negotiations on behalf of the Union. Howard Iske, who is now part of management as a section chief, had in 1957 been the Union' s president. He testified "both sides knew that when the permanent plant was occupied, that there would be more Managers, or at least assistant managers." Frank R. Vondra, who is now an IBEW International representative , had, while an employee in the Omaha Works, participated on behalf of the Union in all the contract negotiations from 1957 on, including the one in 1969, when he was then the president. He was its president also in November 1969, when the Company split the 400. In describing the meetings between Union and Company about that split after it was made (infra, In 10), Vondra admitted that the Union had known from the beginning what art. 27 meant Vondra also admitted that in 1960, 1963, and 1966, the Union again asked for plantwide job mobility and was again unsuccessful. 346 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD object to any move made by the Company under article 27, raised no such objection in this instances From then on until November 15, 1969, these were the only two manager's organizations, each in their own sep- arate buildings, the "Cable" and the "Crossbar." Such splits as the Company made thereafter were of assistant manager's organizations within these two manager's organi- zations. The Union's witnesses testified that in each in- stance the Company gave it "prior" notice of these splits.6 The Union filed no prior objections to these splits before their effective dates. After these splits, those in which the Union raised objections under article 27 (supra, fn. 5) and which involved extended negotiations, were two of the four splits made in subbranches-or assistant manager's organi- zations, within the 400-namely, one made on December 1, 1960, and the other on March 1, 1966 7 While these griev- ances based on the effects of the splits were pending, the Company, by arrangement with the Union, maintained a single corridor of movement for the employees (at grades 32, 33, and 34, supra, fn. 1) in the two subbranches (the 420 and the 450), who had had similar work experience. The single corridor of movement was applied for the two sub- branches in combination as if there had been no split, even though, for the Company's supervisory purposes, each sub- branch was headed by a separate assistant manager. When the 420-450 grievances were settled, the Company, by ar- rangement with the Union on November 11, 1966, contin- ued the single corridor for these employees that had been hired before November 11, 1966, for still 3 more years until November 11, 1969. The arrangement is embodied in what is termed the "Interpretive Contract Guide. "8 The guide states that after that cutoff date of November 11, 1969, the employees involved in the 420-450 dispute "shall no longer be considered for single corridor treatment" and "[h]ence- forth all movement of personnel will be in accordance with the contract." C. The 400-100 Split and the Ensuing Meetings Concerning It 1. Absence of prior notification The split on November 15, 1969, of an entire manager's 5 Under par. 1.4 objections to a move under art. 27 (if filed within 10 days) may be processed under the grievance and arbitration procedures of, re- spectively, art 5, 9 and 10 of the contract. The pertinent portion of art. 10, the arbitration clause appears infra, fn. 18 6 J. O. Bosworth, manager of the labor relations division , and the Company's designated "Bargaining Agent for the Omaha Works," testified it was but a "courtesy" extended to the Union about the same time that the Company announced the splits to the supervisors of the assistant manager's organizations there involved. The four splits of assistant manager's organizations in the 400 occurred on April 15, 1959, December 1, 1960, March 1, 1966, and September 1, 1969 After these splits, no objections were made under art. 27 in respect to the earliest one of April 15, 1959 The fourth one, occurring September 1, 1969, was followed by an objection involving one or two employees, which was immediately settled, and did not entail the extended negotiations in respect to the effects under art. 27 of the second and third such splits , those made on December 1, 1960, and March 1, 1966, discussed in the text. 8 The "Interpretive Contract Guide" (which is attached to the contract of 1969), covers all 40 articles of the contract. At the hearing, the parties agreed that the guide covering art. 27 concerns the specific situation there dealt with and neither controls nor is a binding precedent in respect to future situations. However, insofar as a future situation may have elements in common with those embodied in the guide, they may as the parties also agree , be referred to for whatever bearing they may have on the parties' course of practice. organization, the first one in the nearly 11 years since the 400 was established, was a jolting one to the Union in view of its massiveness (reducing the size of the 400 from about 4,000 to a little under 2,500) and its suddenness, since the Union had had no inkling of any such thing even being under consideration.9 Officials of the Union testified the Union learned of the split near Thanksgiving Day (or about November 25), when a union steward mentioned it to Mi- chael Quinlan, then the Union's executive board chairman. Quinlan (who is now the Union's president) testified he "nosed around" among some section chiefs, who confirmed it, and he then relayed this to Vondra, then the Union's president (supra, fn. 4). Vondra testified that he was sur- prised because he had discussed union matters with Bos- worth, the Company's "Bargaining Agent" (supra, fn. 6), as recently as November 21, who had said nothing about it. Vondra testified he then called Bosworth, who confirmed the split had been made. Vondra said he was "highly dis- turbed" by it, and the two then arranged for a meeting of the parties on December 1, to discuss the matter.1° Bosworth, on the other hand, testified that the arrange- ment for the first meeting was initiated by a call he made to the Union's office the morning of Friday, November 14, in which he informed Vondra of the split. As earlier stated, the Company deemed itself under no obligation to give such prior notice and, as Bosworth testified (supra, fn. 6), the notices given during these earlier mentioned splits (in the subbranches) were a "courtesy" extended to the Union about the time that the Company announced them to the respective supervisory staffs. The weight of the evidence supports the testimony of Vondra.... not extend the Union even that "courtesy." Bosworth's claim that he did so is undermined by the affida- vit he filed on April 8, 1970, before a Board agent, after the Union filed its charge. He then stated that on November 15 (which at the hearing he corrected to November 14, since the 15th was on a Saturday, a nonworking day), the Compa- ny "announced" the split (which, at the hearing, he ex- plained meant an "announce[ment]" in writing to the supervisory staff). The only reference to the Union was the statement that "union members were informed of the change on November 15, 1969." The affidavit makes no reference to any communication to gither Vondra or any other officials of the split." 9 Bosworth (supra, fn 6) testified the Company had long been considering the supervisory level at which to handle a continuing increase in the quantity of the work orders and the size of the working force of the 400. Though this was already under consideration during the contract negotiations in May 1969, Bosworth admittedly said nothing about it to the Union during these negotiations and, as later appears, when he was asked during the negotiations whether the Company contemplated a change, the answer though not explicit conveyed the negative. Bosworth testified that by September 1969 the split of the 400 was definitely in contemplation and that the final decision to make the split was reached about a week before its effective date , i.e., about a week before November 15, 1969, and about the time of the expiration of the lengthy "single corridor" arrangement concerned with the earlier split, previ- ously described, of two assistant manager's organizations, the 420 and 450. 10 There were five meetings in all Three were held on December 1 and 8, 1969, and February 18, 1970 (before the Union filed its charge) Two later ones were held on November 19 and December 3, 1970 (before the complaint issued). 11 On redirect examination 2 weeks later (the hearing having been post- poned because of other commitments of various counsel), Bosworth attrib- uted this omission to the fact that the Board agent had not asked him whether he informed Vondra or other union officials of the split . This was a singular WESTERN ELECTRIC, INC. 347 Bosworth also testified that in that same talk he claimed he had with Vondra the morning of the 14th, he informed him that the split was only "administrative" ( i.e., for ordering materials, scheduling operations, and making products) but that its "implementation" on the employees under article 27 was being suspended for 3 months. Vondra testified he had not been informed of such a distinction and that when the subsequent meetings began, although he and the union officials knew of no instances in which any em- ployee had yet concretely felt the impact of article 27, there was nothing in what Bosworth told him which indicated that the split was other than in effect for all purposes. Respondent's own minutes of that first meeting, held De- cember 1, as well as of the second one, held December 8 (supra, fn. 10), show that the suspension of implementation or a "grandfathering" of the employees was a proposal by the Company, and not something which it had already insti- tuted the same time as the split. Bosworth testified, however, as he indeed told the Union at these meetings, that the operations split off from the 400 had a different "experience factor" from the operations retained in the 400, so that, even if each manager's organization had a separate corridor of movement, the actual impact, or specific consequences, on the employees would be "minimal." Indeed, by the end of these 3 months, i.e., on February 18, 1970, the Union could point to but one instance in which an employee had during these 3 months been deprived of a promotion he would otherwise have gotten but for the fact that the job was outside his manager's organization. That lone instance in- volved R. I. Beardsley, an employee in the 400, who on February 9, 1970, was bypassed on a job in the 100 in favor of an employee in the 100 over whom he had more seniority and at least equal qualifications. The Company a few days before the hearing finally sustained Beardsley's grievance, and at the hearing attributed the bypassing of Beardsley within those 3 months to an "inadvertence." This last is found to be an afterthought; the proposal for a 3 months' suspension had been rejected by the Union, and the bypass- ing of Beardsley is found to have been the result of the 3 months' suspension not being then regarded as in effect.12 self-imputation of innocence on the part of one of Bosworth 's responsibility and knowledge in the field. His affidavit dealt with the Union's charge, which abounds in the accusation that the Company acted "unilaterally" in making the split The statement in the affidavit that "union members were informed" of the split the day the Company "announced " it to the supervisors was thus intended as the Company 's maximum means of having the information of the split reach the Union. i2 The job for which Beardsley had been bypassed on February 9, 1970, was a grade 36 crane operator's job in the 100 It went to one O'Donnell, an employee in the 100, over whom Beardsley had more seniority and at least equal qualifications (Beardsley having had 5 years ' experience in operating a crane and O'Donnell, so far as appears, none) Thus, under par. 12 of art 27, the job would have gone to Beardsley , except that he was barred from it under par. 2 1(c), which requires that to be upgraded to a job at grade 35 or higher, the job must be in an employee 's manager's organization Supra, In I By February 18, 1970, the grievance on behalf of Beardsley (which had been filed February 9, 1970, the day of the bypassing), had gone through four of the five steps prescribed by the contract. These four steps were at all four supervisory levels of the 100 from the section chief up to James Dunn, the manager of the 100. In each instance the grievance was rejected under par. 2.1(c). The fifth, or final step, before Bosworth, as the Company's "Bargain- mg Agent," reached him in writing on March 3, 1970. Later meetings of the parties, held November 19 and December 3, 1970 (supra, In 10), show Bos- worth to have been fully aware of that grievance and to have offered to "settle" it only if the Union relented on three alternative deman&s later As appears from the meetings later discussed, the Union insisted that the employees be grandfathered from the ef- fects of the split under article 27 for the duration of the contract and rejected the 3-month moratorium as proposed by Bosworth. Further, the Company, after the first 3 months had passed, was asserting that during the first 3 months it had suspended putting article 27 in force on the employees and that it was in full effect on the employees from then on. 2. The meetings The split in an entire manager's organization, the first, as stated, in the nearly 11 years since the 400 was estab- lished, with not a word concerning it of the kind that had been given it when there had been splits in merely assistant manager's organizations, evoked deep anxiety, which the Union voiced at that first meeting, concerning what was now in store for the employees. Bosworth told the Union that the effects would be "minimal" because the operations transferred from the 400 to the 100 had different "expe- rience factors" from those retained in the 400. See infra, fn. 17. The Union was not inclined to accept Bosworth 's fore- cast on faith and inquired about what was in store for older employees in the event of a reduction in force (since their bumping rights, based on jobs in which they had had prior experience, were limited to those in their own manager's organizations, supra, fn. 1). Bosworth stated that article 27 would be applied against them "as it reads," but repeated the effects would be "minimal." The Union then stated that if the effects would indeed be minimal, there should be no objection to the Company's grandfathering the employees for the duration of the contract. Bosworth rejected this un- qualifiedly. This anomaly evoked from the Union the com- ment, as appears in the Company's minutes of the first described, which included a demand that all the employees should be grand- fathered from the effects of the split under art 27 for the duration of the contract instead of the shorter period proposed by the Company A few days before the hearing, the Company finally upheld Beardsley's grievance, and at the hearing attributed the bypassing of Beardsley during those first 3 months to the fact that the placement list, which omitted Beardsley 's name, had been issued some time before the end of these 3 months. It took the Company the 14 months up to a few days before the hearing to conclude that this was an "inadvertence" despite the fact that at all four supervisory levels the grievance had been rejected on the ground that Beardsley was barred from that job under par. 2.1(c). At the hearing Respondent added that the bypassing of Beardsley had been "inadvertent" for the additional or alternative reason that Dunn, the manager of the 100, had thought Beardsley's seniority over O'Donnell to have been overcome by the fact that Beardsley was not as qualified for the job regardless of Beardsley's 5 years' experience and O'Donnell's apparent absence of any experience as a crane operator Dunn, in his memorandum on February 18, 1970 , rejecting Beardsley's grievance, stated "the job vacan- cy was filled with the qualified employee [i.e., O'Donnell] in accordance with paragraph 2 1(c)." (Emphasis supplied ) In his testimony, Dunn, after admit- ting vagueness of recollection stated that by the use of the word "the" he meant he had regarded O'Donnell "much more qualified" than Beardsley at that job, and that he had compared the two men But if that had been so then Beardsley would have been "under consideration " with O'Donnell for that job within the meaning of par. 12 and the rejection of the grievance would have had to be on the ground that he was not as qualified as O'Donnell within the meaning of pars. 1.2 and 13 Yet he rejected the grievance on the ground that he was barred from that job under par. 2 1(c). When the grievance was finally sustained , at the fifth step, the Company offered Beardsley the job in the 100 on which he had been bypassed Beards- ley now declined it because he had interveningly been advanced to a grade 36 job in his own 400 (for which he was qualified) that paid more than the one in the 100 (The job in the 100 was "daytime." The one in the 400 was "incentive ") 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting (supra fn. 10), that the Company "has something up its sleeve." Bosworth denied this and stated that the Company was not likely soon again to split up a manager's organization, but if it did it would "come up with some arrangement." The Union stressed that even assuming the ultimate accuracy of Bosworth's forecast concerning the actual effects of this split on the employees, if the Union were now to acquiesce in a shorter grandfathering than the duration of the contract, it would, as the Company's min- utes of the meeting of December 8, 1969, quote the Union, be "bargaining away what we have already gotten." Bos- worth replied the Company did not "see it that way." Pursuing the same thought, the Union, as quoted in the Company's minutes of the meeting of February 18, 1970, stated that whatever the actual outcome on the employees of this split, if it were now to agree to grandfathering of the employees only for a period short of the duration of the contract, it would "set a precedent [which] could be used as a tool to split the group up into many more pieces." The Union observed that the "[m]atter boils down to [the] inter- pretation of the contract. Manager was [a] convenient de- scription of either Cable or Crossbar shop in general." Bosworth replied, as the Company's minutes quote him (February 18, 1970): We interpret it literally. A Manager is a Manager. We all know what a manager is. The contract is clear. However, the Union at this point reminded Bosworth that, at the negotiations of the 1969 contract in May, he had in answer to a question put to him by Violet Rogers, a member of the negotiating committee, conveyed that the Company did not contemplate a change. The Company's minutes quote Bosworth's response to this to be: I was aware of this being considered-I don't think this question was really asked. Quinlan, now the Union's president, who had been a member of the negotiating committee during the 1969 con- tract negotiations, testified Rogers did ask this of Bosworth and that his answer, though not explicit, clearly conveyed the negative. That point came up again at the meeting of the parties 9 months later after the Union filed the charge in this proceeding. On November 19, 1970, the Union again put the question to Bosworth concerning whether he had not at the 1969 negotiations said the Company contemplated no change. His reply this time, as quoted in Respondent's own minutes, was that in the negotiations he said, "I was not aware at that time of such a move." (Emphasis supplied.) This implied, contrary to what he told the Union on Feb- ruary 18, 1970, that that question had been put to him during these negotiations. And his admission that during these negotiations he told the Union he was not "aware" of any such move confirms Quinlan's testimony that Bosworth conveyed a negative answer during the contract negotia- tions concerning whether the Company contemplated a change. The Union at this meeting of November 19, 1970, accordingly claimed that had the term "manager" intended to be "literally" interpreted it would not have agreed to the contract as it reads.' The interchange in this later meeting 13 In the Company's minutes of the meeting of November 19, 1970, appears the following colloquy between union representatives and J 0. Bosworth. OE[Eby, who had succeeded Vondra as president ]: For the record: We bargained the contract in good faith on the basis of I manager in just quoted (supra, fn. 13) followed the line of the discus- sions at the meetings which preceded the Union's filing of the charge (supra, fn. 10). The Union's insistence on a grandfathering of the employees for the duration of the contract was based on its view that the employees' job mo- bility had been stabilized as of the time the 1969 contract was made, where the only manager's organizations had been the 200 and the 400. At all events, in view of Bosworth's certainty that the actual consequences on the employees would be minimal, the Union continued to press Bosworth concerning why the grandfathering, or "1-manag- er concept" was not extended to the end of the contract, when they could then take up an issue which had not been raised during the 1969 negotiations. The Union compared this with the accommodation the Company had made in the 420-450 situation, involving two assistant manager's organi- zations, where after the split, it maintained a single corridor of movement of the two assistant manager's organizations combined, during the years it took to have the matter ironed out. Bosworth's reply, as he is quoted in Respondent's min- utes of the meeting of December 8, 1969, was, "We had to give up a lot to get the 420-450 straightened out," and then, when asked, "You don't want it an issue in bargaining," he replied, "Yes. Want it settled before bargaining which means now." The groundwork for the futility of the meetings was thus already laid that early. Though the Company was will- ing to extend the moratorium on article 27 beyond the 3 months it had proposed, it resisted extending it to the dura- tion of the contract because of the leverage it might give the Union in negotiations for the succeeding contract.14 The Union made three proposals: (1) that the employees be grandfathered for the duration of the contract; (2) or that they be grandfathered while article 27 is "reopened" for discussion of the effects of the split (in the manner of the "reopening" that occurred when there had been the 420-450 split) or (3) or that the matter go to arbitration. (The perti- nent portion of the arbitration provision, article 10, is quot- ed infra, fn.1 8). Bosworth rejected all three proposals during the three meetings preceding the Union's charge.15 the X-bar building. JOB: That's not so OE- For many years before 1966 you moved between 2 assistant managers as if they were one. JOB. But when we signed the contract we all agreed as to what "Manager's Organization" meant. TH[Tom Hickman, IBEW International Representative] - If that were true, we'd have had this meeting during the last bargaining session instead. OE: I agree with Tom, we'd not have agreed if we had known what you have in mind 14 At the hearing, Bosworth, in explanation of his statement that he "[did] not want it an issue in bargaining," testified (tr. 313): I indicated to the union, that I was unwilling to grandfather the people to the end of the contract because when you set up a precedent and you go into contract bargaining the practice that exists at contract bargain- ing puts an entirely different light on how I get backed into a situation which makes it difficult to rearrange 15 The Company's minutes of the meeting of February 18, 1970, show the following colloquy between Vondra and Bosworth after the reference to the answer Bosworth had given Committeewoman Rogers during the 1969 con- tract: FRV-We want this to be held up- so we can negotiate this into the contract JOB-I think we have already negotiated this into the contract. Will- ing to have "grandfather" for a period. WESTERN ELECTRIC, INC. 349 Bosworth also rejected these three alternatives at the two later meetings held after the charge. (They were held in response to the urgings of counsel to their respective clients that they try to reach a solution.) The two meetings are covered in this instance by minutes of the Union as well as the Company. The minutes of both parties show their orig- inal positions had not changed. By then the Union's com- plaints over the effects of the split went somewhat beyond Beardsley's case previously described (and which was then still pending.) See supra, fn. 12. They concerned occurrences after the expiration of the first 3 months following the split. The Union complained that about 10 employees in the 100 had been promoted from grade 34 jobs to "selector" fobs at grade 35, while there were hundreds of employees in the 400, at grade 34, who had more seniority than the 10 up- graded employees in the 100. Except for two employees (in addition to Beardsley's case) there was no specific indica- tion that these hundreds of employees at grade 34 in the 400 had at least equal qualification for the higher graded jobs to which the employees in the 100 had been promoted (as, for example, the way in which Beardsley, supra fn. 12, had both more seniority than and was at least as qualified for the higher graded job as the employee in the 100 in favor of whom he had been bypassed). Bosworth, as he is quoted in the Company's minutes, stated, "This number is small in proportion to the total number of people involved overall," to which one union representative replied, "One is too many," the point being as further stated by another union representative, "[we] don't feel we have the right to bargain away the 'right' of our people in this matter." Bosworth stated, "we have offered an understanding on these people but it was refused by the Union." The Union regarded the offer as inadequate because it did not take care of employ- ees who might feel the impact of article 27 during the re- maining period of the contract. This was pointed up in the following colloquy as appears in the Company's minutes of the meeting of November 19, 1970: WC: What if we have 4 more Manager Splits? What will you do then? JOB: I've told Tom [Hickman, the International Representative] we'd follow the same route again. WC: You'd implement the program if we couldn't agree anyway. JOB: That's so. WC: We can't accept this type of unilateral move. This is how matters remained before the complaint issued. The fifth and final meeting held December 3, 1970, shows Bosworth summing up, with union acquiescense, the Union's three-point proposal thus: (1) Continue under 1 manager to the end of the con- tract. (2) Re-open contract, or (3) Submit to arbitration. FRV-For the duration of the present contract? JOB-NO!' DEFINITELY NOT!! This is not new to the I.B.E.W. although maybe not at Omaha. FRV-We will contest this if we can't agree. We want only a "reason- able" time. JOB-We think 3 months is reasonable and that period is already past. FRV-We'll let NLRB decide. Bosworth, after a caucus of the Company's negotiators, stated, "We find your offer unacceptable," and in its place offered to "move under the one manager concept to the end of this year [to January 1, 1971]." This was a mere 4 months before the end of the contract and 2 before the start of negotiations for the succeeding contract. The Union found this unacceptable, first because interveningly some employ- ees might still be victimized under article 27 by the present split, and because of the previously mentioned fear of the "precedent" under which the Company could during the life of an existing contract, split that 400 manager's organiza- tion still further and correspondingly narrow the employees' corridors of movement to the shrunken dimensions of each splinter thus newly created by the split. The Company, on the other hand, saw in the Union's demand for a grandfa- thering of the employees for the duration of the contract a leverage the Union might have in negotiating a change in article 27 that would lessen its power under the "literal" language of article 27 as it existed, and instead wanted its own leverage to perpetuate that power. (See Bosworth's previously quoted testimony, supra fn. 14, in explanation of his "don't want it an issue in bargaining" statement to the Union as quoted in the Company's minutes of the meeting of December 8, 1969.) 4. Status as of the time of the hearing In addition to the upgradings of about 10 employees in the 100 who are junior to those in the 400, as mentioned by the Union in the last two meetings of the parties, the Union, on the last day of the hearing, put into evidence the Company's very recent notifications of a surplusing of some 10 employees in the 400, who had more seniority than a corresponding number of employees in the 100.6 Union counsel's suggestion that the split had to that extent reduced the number of jobs the surplused employees in the 400 could have turned to for bumping purposes in the 100 was resisted by Bosworth because there was no indication of what those other jobs in the 100 were, and whether, apart from seniori- ty, the surplused employees met the additional requirement, in respect to bumping, of being qualified by prior expe- rience to fill those jobs in the 100. Supra, fn. 1, art. 27, par. 3.11(b).17 16 The notifications were given the Union under article 34 of the contract, which requires the Company to give advance notification to the Union of varieties of personnel action. Among them are "[l]ay offs due to lack of work" and "[n]ew and rehired employees " (It is on that basis that the Union was able to compare the seniority of the 10 surplused employees in the 400 and of employees in the 100 over whom these surplused employees had seniority. On that basis also the Union knows of the upgrading of employees. The pertinent item there is "[t]ransfers involving changes of an employee status.") 17 Bosworth explained that the operations retained in the 400 were those of wiremen, cable formers, and testers of apparatus , while those transferred to the 100 consisted of punch press, drill press, and screw machine operations and also operations in a subbranch termed "Merchandise and Service." He testified the operations in both organizations had differing lines of expe- rience. However, he admitted that there was some overlapping between the work of the two organizations He testified these overlappings involved "muscular kind of work" such as "material handhngjobs" (which concerned less than 1 percent of the total work force), and work of packers and stock- keepers, which could involve two or three occupations comprised of some 30 or 40 persons (tr. 391) With one exception, the surplused employees in the 400 are all "wiremen" at grade 32 (the lowest of grades) who had been employed during 1970 (after the split) but who, when surplused, had the requisite minimum seniority over persons in the 100 Though the work of Continued 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Analysis and Conclusion 1. The Company's belated proposal for arbitration Although during the meetings of the parties, Respon- dent had rebuffed the Union's overtures for arbitration, now it is the Company that embraces it and the Union that opposes it.18 The issue the Company proposes is whether, when it has split up a manager's organization, the Company is nevertheless obligated by the contract to continue the employees under the single corridor of movement, de- scribed in article 27, as it had existed before the split, or whether the split, when made, creates a separate corridor of movement for each separate manager's organization, with the Company having the option to decide whether and for how long to suspend its implementation on the employees under article 27. That issue has a familiar ring. It sounds much like the one the Union had been proposing during the meetings, and the Company was rejecting. Toward the close of the hearing, Company counsel proposed this issue for arbitration as the basis for disposing of the controversy. Union counsel opposed it first because it does not take care of the Company's alleged violation of Section 8(a)(5) in not having given the Union prior notice of its action and also because the issue the Company proposes is excluded from arbitration under Article 10 as one "related . . . to the exercise of any of the Company's rights of management." Supra, In. 18. Vondra and Quinlan of the Union credibly testified that it was on that very ground of nonarbitrability that Bosworth, at the meetings, had rejected the Union's overture for arbitration. The Company, in its brief, howev- er, explains that at the meetings the Union's proposal did not specify the issue to be arbitrated as required by article 10 (Id. at par. 5), and so it was uncertain whether the Union was then challenging the Company's right to make the split but only its effects, but that at the hearing the Union having now made it plain that it did not challenge the Company's right to make the split but only its effects on the employees under article 27, it is now an eminently arbitrable issue for submission to the arbitrator. What the Company claims the Union made plain at the hearing is not that plain to the General Counsel, for he disputes the Company's right to have split up the 400 manager's organization without previous notice to or con- sultation with, the Union. Neither is it that plain to the wiremen is different from work in the 100 , Harlan (Whitey) Clark, vice president and the main grievance representative of the Union, testified that on the basis of his 7 years' experience in grievance handling, he could state that had there not been the split, these surplused wiremen in the 400 could have bumped such employees on jobs now in the 100, as press operators, material handlers, assembly operators, and "what have you " There was no specification of which employees in the 100 could have been bumped by the surplused employees in the 400, and how under their work as "wiremen" they would have acquired the requisite experience to qualify them for other jobs in the 100 to entitle them to displace employees junior to them. ^s ARTICLE 10: ARBITRATION 1. Any dispute arising between the Union and the Company with respect to the arbitration of any provisions of this Agreement or the perfor- mance of any obligation hereunder, except where the subject matter of the dispute is excluded from Arbitration by other provision of this Agreement, or is related in any manner to the exercise of any of the Company's rights of management may be referred [to arbitration on exhaustion of the grievance procedure under Article 91. Union's counsel, who too sees the Company's unilateral action in malting the split as a precommitment which pre- vented the parties reaching a "meaningful agreement" at the meetings held subsequent to the split. 2 I have treated the facts rather extensively, acknowl- edgedly because the Company's conduct so closely skirts the edges of the good-faith requirement as to invite an effort to seek what could be done about it under the Act. The observation above is made after making full allowance for the fact that the split of the 400 was economically motivat- ed, and that the operations it transferred out of the 400 to the newly formed 100 were calculated to make the applica- tion of article 27 upon the employees "minimal" in their practical consequences even if their eligibility for jobs was now confined to the reduced dimensions of the two manager's organizations resulting from the split. Granting all this, the Company hardly distinguished itself in the manner in which it dealt with the Union con- cerning the power of the Company envisages for itself under a combination of article 2, its "management rights" clause (supra, fn. 2), and article 27, the Movement of Personnel clause. It is a rather awesome one, for the employee's growth, stagnation, or survival hinges on the occupational world the Company delimits for the employees by the manager's organizations it chooses to make. In apparent recognition of such a power when "literally" applied, the Company had in the past softened its impact in various ways. After the first and only prior split in a manager's organization nearly 11 years earlier (which occurred during the first contract when it emerged from its "pilot" stage), it gave the Union "prior" notice of splits in a mere assistant manager's organization at least to the extent of the "courte- sy" preceding the effective date, and when after these splits were made and the Union raised objections, the Company, as exemplified by the splits, involving the 420-450 assistant manager's organization, suspended their implementation under article 27 for the years that these objections were under consideration. In contrast, when the Company split up an entire manager's organization, the first, as stated, in the nearly 11 years before the only preceding one, it gave it no prior notice and left the Union to learn about it through the grapevine. It made the split only 6 months after the execu- tion of the 1969 contract, during the negotiations for which Bosworth told them that no change was "contemplated," even though, as he later admitted to the Union at the meet- ing on February 18, 1970, and to us at the hearing, he was at that time "aware of this [the split in the 400 organization] being considered." Further, in contrast with the kind of accommodation it had made when there had been the split involving the 420-450 assistant manager's organizations, this time it refused to give the employees the single corridor of movement to the end of the 1969 contract, despite their complaint that but for the assurance given them at the nego- tiations in May 1969, they would have resisted signing the contract with article 27 in the "literal" manner he was now advancing, and even though, since Bosworth was sure the actual consequences of article 27 on the employees' were "minimal," the grandfathering of the employees for the du- ration of the contract would not have impaired the WESTERN ELECTRIC, INC. 351 Company's economic purpose in making the split; namely, to insure the efficiency of its supervisory operations. 3 However, though equitable consideration are indeed relevant in many of these matters, pitted against them here for purpose of determining whether the Act has been viola- ted is the hard fact of the contract the parties signed. Thus this case involves the balance or "accommodation," re- ferred to by the Board in its decision in Collyer Insulated,19 "between on the one hand, the statutory policy favoring the fullest use of collective bargaining and the arbitral process, and on the other, the statutory policy reflected by Congress' grant to the Board of exclusive jurisdiction to prevent unfair labor practices." While, as there stated, the Board, in evolving its policy concerning when to defer to the arbitral process, has generally struck the balance at the stage where there has been an actual award, 20 "[i]n those cases in which no award had issued, the Board's guidelines have been less clear." Whatever the prior fluctuations of emphasis con- cerning where the balance is to be struck when there has been no arbitration award, the Board in Collyer Insulated has pronounced the policy now applicable when the parties have a contract containing a grievance-arbitration proce- dure. It is now striking the balance in the manner articulated in Jos. Schhtz Brewing Company, 175 NLRB No. 23. where it was stated that [W]here ... the contract clearly provides for grievance and arbitration machinery, where the unilateral action taken is not designed to undermine the Union, and is not patently erroneous but rather is based on a substan- tial claim of contractual privilege and it appears that the arbitral interpretation of the contract will resolve both the unfair labor practice issue and the contract interpretation issue in a manner compatible with the purposes of the Act, then the Board should defer to the arbitration clause conceived by the parties. As in Schlitz and Collyer Insulated, the dispute here would be "well suited to resolution by arbitration," except that instead of a comprehensive arbitration clause as in Schlitz and Collyer Insulated the arbitration clause here excludes from its scope "subject matter [which'is] related in any manner to the exercise of any of the Company's rights of management." The Company justifies its immunity from an obligation to give the Union prior notification or an opportunity to discuss the split of the 400 manager's organi- zation on the ground that it is a "management right" under article 2 (supra, In. 2). Since this is not encompassed by the arbitartion clause, it would normally be a matter for us to determine. Cf. Zenith Radio Corp., 177 NLRB No. 30. We would then weigh two opposing positions. On the one hand, there is the Company's position that a split in a manager's organization, being a change in supervisory structure, is an exercise of a management prerogative, here butressed by the management right clause in the contract, which an employ- er is free to resort to without a requirement to notify or 19 Collyer Insulated Wire, 192 NLRB No. 150. 20 Subject, however, to the requirement that the procedures be "fair and the results not repugnant to the Act," citing Spielberg Mfg Co, 112 NLRB 1080, 1082 . See also Precision Fittings, Inc., 141 NLRB 1034 discuss it with the Union 21 On the other hand, the position of the General Counsel and the Union is that a manager's organization prescribes the limits of the employee's occupa- tional world and that a split in it narrows its scope for the employee and accordingly changes the employees' condi- tions of employment, and thus the Company is required under the Act to give the Union prior notice or opportunity to discuss it. In the past, the Company gave the Union that prior opportunity in the form of at least a notification or "courtesy" before the effective date of these splits. The fact that the Union made no protest against these splits prior to their being instituted was not, as the Company' s claim it was, a waiver by the Union of its right to be given that prior notice 22 In that connection the General Counsel and the Union bear down heavily on the doctrine in Fibreboard 23 involving the partially analogous conduct of an employer in subcontracting work. There it was held that: [C]ontracting out work "albeit for economic reasons, is a matter within the statutory phrase `other conditions of employment' and is a mandatory subject of collec- tive bargaining within the meaning of Section 8(a)(5) of the Act." [Emphasis supplied.] However,the Company points to a series of cases which qualify the Fibreboard doctrine. These are to the effect that an employer may, without violating its bargaining obliga- tion of the Act, subcontract its operations without previous- ly notifying the union, assuming certain other factors, including also the fact that the subcontracting has not had an actual "significant impact on unit employees' job inter- ests" as distinguished from their potential ones24 In the General Counsel's and Union's briefs, I find no mention of these cases, or so far as I can see, no efforts to distinguish them on the basis above mentioned.25 This matter aside, a failure to give prior notice is not 21 Citing, among other cases, Cessna Aircraft Co, 172 NLRB No 86, Providence Journal Co, 180 NLRB No 103, KONO-TV-Mission Television Corp., 163 NLRB 1005 2 A right under the Act is not deemed waived unless clearly and unequivo- cally expressed. The Timken Roller Bearing Co, 136 NLRB 15, enfd 325 F.2d 746 (C.A. 6) A union's unsuccessful prior efforts to include in the contract a statement of its statutory right to bargain about a change in working conditions is not evidence of a waiver to advance notice to bargain about such a change Cloverleaf Div of Adams Dairy Co, 147 NLRB 1410, 1413, citing Timken, supra. See also T T.P Corp., 190 NLRB No. 48. 23 Fibreboard Paper Products, Inc v N L R B, 379 U S. 203. 24 Westinghouse Electric Corp. (Mansfield Plant), 150 NLRB 1574 ; applied in Allied Chemical Corp, 151 NLRB 718, affd sub nom District 50 UMWv. N L R B, 358 F 2d 778 (C A. 4), American Oil Co, 151 NLRB 421, Shell Oil Co, 149 NLRB 305 Cf. Cities Service Oil Co, 158 NLRB 1204. 25 The General Counsel does cite T T P Corp, supra, fn. 22, which I have included under the general proposition that a waiver of a right under the Act must be clearly and unequivocally expressed before being considered such. There the employer unilaterally terminated its contributions to a retirement plan which the employer had voluntarily instituted 5 years earlier . It was held that the employee's silence about it when it was instituted did not constitute a waiver of the right to bargain about later changes in it The General Counsel attaches to that case still another significance. It relies on the fact that a change in a retirement plan is a change in conditions of employment even though the change does not immediately deprive employees of its bene- fits and that the employees' later entitlement to these benefits involves future contingencies. By parity of reasoning the General Counsel claims that the fact that a split in a Manager's organization does not immediately visit its impact on the employees and hinges upon future events, does not mean that employees' terms of employment have not thereby been changed by a split in a Manager's organization Without laboring the matter, the two are not quite analogous. The T T P Corp case does not deal with the Fibreboard doctrine or with the cases that qualify it 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessarily fatal if the Union is otherwise given the opportu- nity to discuss a change before its implementation. Cf. Hart- mann Luggage Co., 145 NLRB 1572; Holiday Inn Central, 181 NLRB No. 16 (TXD). The Company points to the fact that when the parties met on December 1 and again on December 8, 1969, no employee had felt the impact of the split, and that by proposing a 3-month suspension of imple- mentation of the split and meeting with the Union it gave it full opportunity to discuss both its action in making it and the length of time in which the employees should be "grand- fathered" from the effects of the split under article 27 before taking effect. As it turned out, the effects of the split were "minimal," as indeed Tom Hickman, the IBEW Interna- tional representative, stated at the meetings on February 18, 1970, and again on November 19, 1970. The thrust of these prolonged discussions was basically whether, as the Union claimed, the employees should have a single corridor of movement for the duration of the contract on the ground that the execution of the contract fixed their corridor of movement as of the time of the execution of the contract, or as the Company contended, whether the split in the 400 manager's organization created two separate corridors of movement, the decision resting with the Company concern- ing how long if at all to continue the employees under a single corridor of movement. Although at the hearing, the Union's witnesses at first vacillated between whether they were challenging the Company's right to make the split, they ultimately agreed, as did also union counsel at the hearing, that the nub of the dispute was whether the employees should be "grandfathered" from the "literal" language of article 27 for the duration of the contract. The fact that the Union does not now challenge the Company's action of having split the manager's organization is again not to be construed as a waiver of its right in the future to challenge a split in a manager's organization which is shown to affect employees' jobs. All that is meant here is that on the facts of this case, the parties' dispute turned on whether regard- less of the split here made, the Company should have never- theless continued the employees under a single corridor of movement for the duration of the contract or whether it had the option to decide upon the extent, if at all, tto which the employees wereto be grandfathered from the effects of arti- cle 27 in consequence of the split. Since the Company now acquiesces in what the Union had itself originally urged and since the basic point of the discussion was a dispute over the interpretation of article 27 as expressed by these two oppos- ing positions, it would seem fair to say that an arbitral decision concerning these opposing positions should termi- nate this particular controversy in the manner indicated in Collyer Insulating. In that respect, we note the following additional observation by the Board in the Collyer case that: [T]he courts have long recognized that an industrial relation dispute may involve conduct which, at least arguably, may contravene both the collective agree- ment and our statute. Where the parties have contrac- tually committed themselves to mutually agreeable procedures for resolving their disputes during the peri- od of the contract, we are of the view that those proce- dures should be afforded full opportunity to function. If the arbitration award should favor the Union, then it would be entitled to full redress on behalf of the few em- ployees who specifically felt the impact of the split in that they would have gotten (as had Beardsley) jobs to which they would have been entitled but for the split. It may well be that the Union feels it does not have sufficient informa- tion on which to determine what grievances to advance in consequence of the split, and whether to press them to arbi- tration. The Company points to article 34 of the contract under which the Union is entitled to information relevant to these matters. During the hearing company counsel stat- ed it provided the Union with all relevant information it sought, including, for example, the information concerning the work experience and qualifications of the hundreds of employees in the 400 at grade 34 that had more seniority than the 10 employees in the 100 who had been promoted to grade 35 "selector" positions. Union counsel stated it did not have "all" such information, but did not specify what items were missing. Until it does, we are in no position to apply the doctrine in N.L.R.B. v. Acme Industrial Products, 385 U.S. 432, which requires the employer to supply the union with information needed to enable it to perform its representative function of deciding which grievances to press or to pursue to arbitration. When and as the Union determines which relevant information the Company is re- fusing to supply to it, the matter can be considered in con- nection with the retention of jurisdiction comparable to the one reserved in the remedy in the Collyer Insulated case. CONCLUSION OF LAW Accordingly, on the basis of all of the foregoing and the entire record, I conclude that it would effectuate the policies of the Act if, "without prejudice to any party and without deciding the merits of this controversy," the parties are relegated to the grievance-arbitration procedures of the contract. REMEDY Applying the language in Collyer Insulated- [J]urisdiction is [hereby retained] over this dispute sole- ly for the purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reason- able promptness after the issuance of this decision, either been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitra- tion or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act. In specific amplification of item (a), the retention of jurisdiction includes the right of the General Counsel or the Union to make an appropriate and timely motion to require the Company to supply such additional information, re- quested by the Union and refused by the Company, which the Union needs in order to perform its representative func- tion within the principle of the Acme Industrial case, of determining which grievances to advance or to pursue to arbitration. On the basis of the entire record, I accordingly issue the following recommended: WESTERN ELECTRIC, INC. 353 ORDER That the complaint herein is dismissed ; provided, how- ever that: Jurisdiction of the proceeding is hereby retained for the purposes stated in the Remedy. APPENDIX A ARTICLE 27-MOVEMENT OF PERSONNEL 1. General 1.2 TERM OF EMPLOYMENT shall be given most weight in the selection of an employee to fill a vacancy when two or more employees under consideration pos- sess substantially the same qualifications needed for such vacancy. 1.3 Qualifications as used in this Article shall be de- termined by the Company based on the employee's experience, demonstrated productive efficiency , skill or ability and conduct on the job. 1.4 If the Union objects to any move made in accord- ance with the provisions of this Article within ten (10) days after the effective date of such move, the matter may be processed in accordance with ARTICLE 9, GRIEVANCE PROCEDURE, and ARTICLE 10, ARBITRATION, provided that in any such case the authority of the Arbitrator shall be limited to a deter- mination as to whether the Company's judgment has been unreasonably exercised. 2. Filling Job Vacancies 2.1 When a vacancy occurs, employees of the Company who have qualifications for the vacancy will be consid- ered in successive steps in the following order until the vacancy is filled: s s s s (c) Graded employees in successively lower grades from within (1) the Assistant Manager's organization having the vacancy for vacancies in grade 34 and low- er, or (2) the Manager's organization having the vacan- cy for vacancies in grade 35 and higher or in the JOURNEYMAN TRADES OCCUPATIONS or JOURNEYMEN from within the Manager's organiza- tion having the vacancy. 2.2 Employees may also be considered as candidates for lateral transfer or upgrading to a vacancy in the order of their TERM OF EMPLOYMENT provided their supervisors have recommended them for consid- eration beyond that provided by the provisions of Para- graph 2.1(c) above. The Company agrees that in order to afford opportunities for advancement to longer service employees where such opportunities are not available under the application of the provisions of Paragraph 2.1(c) above, every effort will be made to apply uniformly this recommendation procedure. 3. Effect of Lack of Work 3.1 When lack of work necessitates decreasing the working force, employees shall be selected as surplus in the inverse order of their TERM OF EMPLOYMENT from the occupation; grade, if applicable; and Depart- ment Chief's organization affected ; except that the Company may exempt from such selection certain em- ployees on the basis that their skill , training or expe- rience is necessary for the efficient operation of the business. An employee selected as surplus or an em- ployee who becomes surplus by displacement shall be considered for placement in the order of the following successive steps: 3.11 Graded Employees s s s s 0 (b) Displace in his same grade in his own Manager's organization another employee who has the shortest TERM OF EMPLOYMENT, provided the surplus employee is considered by reason of his previ- ous experience to be able to perform the assignment efficiently within a limited training period of two (2) weeks, and further, provided the surplus employee has at least three (3) months more TERM OF EMPLOY- MENT than the employee to be displaced. If the em- ployee is not thus placed, then (c) In the next lower grade in accordance with (a) and then (b) above and in the same manner in succes- sively lower grades. (d) A surplus employee who cannot be placed as provided in Paragraphs 3.1 (a), (b) or (c) above, shall be considered outside his Manager's organization for displacement on a job, first in the same grade and failing that in successively lower grades , which he has performed satisfactorily, provided the surplus employ- ee has at least three (3) months more TERM OF EM- PLOYMENT than the employees to be displaced.