Western Electric, Inc.

326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Western Electric, Inc. and E. J. Barber and J. D. Braggs and International Brotherhood of Electrical Workers, Local Union No. 2188, AFL-CIO. Cases 15-CA-4007-1, 15-CA-4007-2, and 15-CA-4053 September 28, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On January 27, 1972, Trial Examiner Maurice S. Bush issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. The Charging Parties filed limited exceptions and an answering brief. The General Counsel filed limited exceptions, a brief in support thereof, and a reply 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 to the extent consistent herewith. The Trial Examiner found the Respondent viola- ted Section 8(a)(5) and (1) by unilaterally altering the plantwide movement of personnel provided for in ar- ticle 28 of the parties' collective-bargaining agree- ment,2 and thereby caused a change in the established working conditions of the employees in the unit. In so finding, the Trial Examiner rejected the Respondent's claim that the dispute should be resolved by an arbi- trator under the contract's grievance procedure. The collective-bargaining agreement contains a grievance and arbitration procedure culminating in final and binding arbitration,' and the Respondent i The Respondent filed a motion to reopen the record to take additional evidence with respect to the issue of deferral to arbitration The General Counsel's reply brief includes an opposition to the Respondent's motion. In our opinion the record herein adequately presents the deferral to arbitration issue and the parties' positions thereon. Accordingly, the Respondent's mo- tion is hereby denied The Charging Parties' request for oral argument is likewise hereby denied since in our opinion the record in this proceeding , including the exceptions and briefs, adequately presents the issues and positions of the parties. 2 The contract does not provide for plantwide movement of personnel as the Trial Examiner implies throughout his Decision. Rather, it provides for movement of personnel within the manager 's organization with respect to labor grades 35 and up. The essence of the dispute herein is what was intended when movement of personnel was limited by contract to the manager's organization 3 The Trial Examiner found that the present controversy should not be deferred to arbitration because there is no obligation to submit contract disputes to arbitration and the contract does not provide for final and bind- ing arbitration with respect to the dispute involved herein We disagree. It is clear to us from our examination of the contract that a dispute is arbitrable, upon request, after the exhaustion of the earlier steps of the grievance proce- and Union have agreed to submit disputes over the meaning and application of the collective-bargaining agreement to that procedure. This case involves alleg- ed unilateral changes in the existing movement-of- personnel provisions of the collective-bargaining agreement and centers on the meaning of those provi- sions and whether Respondent has gone beyond them. Thus, the dispute here involved involves the interpretation of a provision of the collective-bargain- ing agreement 4 and is a matter which the parties have voluntarily agreed to resolve by means of the griev- ance procedure.' For these reasons, we shall not consider the merits of the dispute at this time but shall defer to the parties' grievance procedure.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board orders that the complaint be, and it here- by is, dismissed; provided, however, that: Jurisdiction of this proceeding is hereby retained for the limited purpose of entertaining 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 settlement in the grievance procedure or submitted promptly to arbitration, or (b) the grievance or arbitration proce- dures have not been fair and regular or have reached a result which is repugnant to the Act. MEMBER FANNING, dissenting: For the reasons set forth in my dissent in Collyer Insulated Wire, 192 NLRB No. 150, I think the Board neither can nor should require the issue of violation of Section 8(a)(5) of the Act to be determined by an arbitrator instead of this Board. Therefore, I would proceed to the merits of the case. Without passing on the merits of the case, except generally, one observation appears appropriate here- in. The Respondent contends and the Trial Examiner dure, and the use of the term "may" merely refers to the option to request or not request arbitration Cf. Tulsa-Whisenhunt Funeral Homes, Inc, 195 NLRB No 20, where ad hoc agreement of both parties was required before arbitration could be invoked. 4 The Trial Examiner concedes the issue is solely one of contract interpre- tation (third full paragraph of the Trial Examiner's Decision). 5 In fact, this matter has been the subject of two grievances which were not taken to arbitration by the Union as it presumably chose to file the instant charges and a contract action in Federal distract court Moreover, on Feb- ruary 19, 1971, the Respondent at the Union's request proposed that the precise issue involved herein be referred to an arbitrator; the Union without explication declined to agree to arbitration. Wrought Washer Manufacturing Co, 197 NLRB No. 14; Coppus Engineer- ing Corporation, 195 NLRB No. 113, Collyer Insulated Wire, A Gulf and Western Systems Co, 192 NLRB No. 150 See also Western Electric, Inc., 199 NLRB No 45, decided this day, in which the Board adopted Trial Examiner A. Norman Somers' recommendation that it defer a, similar contract dispute to arbitration. 199 NLRB No. 49 WESTERN ELECTRIC, INC. 327 apparently concedes that the issue here is one of con- tract interpretation. Assuming this case is one of pure contract interpretation, solely from a practical point of view we should dismiss it on the merits and be done with it. All of the parties including the Board have already expended great amounts of time and money on this case; yet rather than decide the case, we send the parties away empty handed to expend more time and money on an arbitration proceeding which in itself may not be final in view of the Board's retention of jurisdiction for limited purposes. Moreover, we should not overlook the possible lengthy disruption of what appears to be an otherwise stable bargaining relationship that may result until this issue is resolved. I emphasize that this is a purely practical and second- ary consideration; my primary objection to the Board's abdication of its statutory authority is set forth in my dissent in Collyer. r Vickers, Incorporated, 153 NLRB 561; National Dairy Products Corpora- tion, Detroit Creamery Division, 126 NLRB 434. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE AND ISSUES MAURICE S. BUSH,Trial Examiner: Respondent Western Electric, Inc., has operated its Shreveport, Louisiana, plant under successive collective-bargaining agreements with the above-named Union since 1966. From February 22, 1966, when the Company entered into its first contract with the Union, until October 1, 1970, when the Company was in its fourth contract with the Union, the employees in appropn- ate unit here involved were under the management of a single overall company manager in charge of manufacturing and his assistant managers except for temporary brief peri- ods in 1970 when there were two managers as shown below. During that 4-year period, the up to 3,300 employees in the unit had plantwide movement of personnel in such matters as grade promotions, downgrading, lateral transfers, and bumping rights in layoffs. In the latter part of 1970 during the midterm of the then outstanding collective-bargaining agreement, the Company took certain actions affecting the movement of personnel as shown below. On October 1, 1970, after notice to the Union, the Respondent divided the appropriate unit for manage- ment purposes into two sections and placed one section under the management of the man who had theretofore been manager of the entire unit and the other section under another manager, each with their own respective assistant managers. This division of the unit into two sections under separate managers did not immediately affect the move- ment of personnel which as before remained plantwide. However, on November 3, 1970, the Company by unilateral action, after unsuccessful bargaining with the Union and against its protest, restricted the movement of personnel of the employees in the unit to that within their own manager's supervisory jurisdiction. The effect of this change was that the employees in the unit in upper grades no longer had plantwide movement of personnel as formerly enjoyed. Thus, as stated in Respondent's brief, from and after No- vember 3, 1970, " ... any promotion in the higher grades ... and bumping were restricted to the employee's own manager's organization . . . ." After the change, a senior employee in point of service in one of the two manager's organizations could lose his job in a layoff while a junior employee in the other manager's organization would be retained. The principal issue in the case is whether the Respon- dent by its above-described unilateral action of November 3, 1970, altered the provisions of the collective-bargaining agreement between the Respondent and the Union by changing the established working conditions of the employ- ees in the unit in violation of Section 8(a)(1) and (5) of the National Labor Relations Act as alleged in the complaint. This in turn involves an interpretation of the rights of the Company and its unit employees under the collective-bar- gaining agreement with respect to "Movement of Person- nel" as set forth in article 28 of the agreement.' While Gen- eral Counsel admits the Company's right to add new manager's organizations for the management of the unit as it sees fit under the management clause of the contract, he and the Charging Parties contend that the "Movement of Personnel" provision of the agreement as reflected by the intent of the contracting parties and by past history required the Company to continue the status quo of the plantwide movement of personnel for the duration of the contract and that no restrictions on the free plantwide "Movement of Personnel" as theretofore enjoyed by the employees in the unit could be made in midterm of the agreement. The Com- pany, on the other hand, contends that the "Movement of Personnel" section of the collective-bargaining agreement by its very terms gives the Company the right to unilaterally restrict movement of personnel during midterm of the con- tract to each separate manager's organization the Company sees fit to create within the unit during the life of the con- tract. However, Respondent's initial defense to the com- plaint herein is that the contractual dispute as set forth above should be referred to the "final and binding arbitra- tion" provisions of the collective-bargaining agreement and that therefore the complaint should be dismissed without a determination of the contractual issue by the Trial Examin- er. This issue will be given first consideration below al- though accorded secondary space by Respondent in its brief. The consolidated complaint herein was issued on March 8, 1971, pursuant to charges filed in Cases 15-CA- 4007-1 and 15-CA-4007-2 on January 14, 1971, and pur- suant to a charge filed in case 15-CA-4053 on March 8, 1971. The case was tried before the Trial Examiner on May 18 and 19, 1971, at Shreveport, Louisiana. Briefs filed by counsel for the General Counsel and the Respondent on July 19, 1971, have been carefully reviewed and considered. Similarly, the supplement to Respondent's brief filed on September 7, 1971, calling attention to the Board's recent decision in Collyer Insulated Wire, 192 NLRB No. 150, on the matter of deferrals to arbitration, has also been condi- dered. 1 The collective-bargaining agreement is reflected in Joint Exh. I It con- s,sts of 69 pages and about an equal number of pages of related appendices and exhibits. 328 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Company is engaged at its Shreveport, Louisiana, plant (known as "Shreveport Works") in the business of manufacturing electrical components for the communica- tion industry. In the course and conduct of its business the Company's Shreveport plant annually purchases goods val- ued in excess of $50,000 directly from suppliers in States other than the State of Louisiana. Similarly, in the course of its business, the Company's Shreveport plant annually sells and ships goods valued in excess of $50,000 directly from its said plant to enterprises located in States other than Louisiana. The Company at all times here material has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II FINDINGS ON ISSUE AS TO DEFERRAL TO ARBITRATION PROCEDURE As heretofore noted, the Company contends that the question of whether it has the right to restrict movement of personnel at its Shreveport plant midterm under the collec- tive-bargaining agreement from the former plantwide movement to less than plantwide movement as that term relates to upgrading, downgrading, lateral transfers, and layoffs should be deferred to the "Final and Binding Arbi- tration Provisions of the Collective-Bargaining Agree- ment." The general provisions for arbitration of disputes be- tween the Company and the Union are set forth in article 11 of the collective-bargaining agreement under the heading of "Arbitration," but the authority of an arbitrator under article 11 to render a final decision under article 11 is ex- pressly qualified and sharply limited by article 28 of the agreement under the heading of "Movement of Personnel" when the issue involved is movement of personnel. Article 11 under paragraph 1 provides that, "Any dis- pute arising between the Union and the Company with respect to the interpretation of any provision of this agree- ment . . . may be referred . . . to an Arbitrator.... .. (Emphasis supplied.) Article 11 under paragraph 7 further provides that, "The decision of the Arbitrator ... shall be final...... But article 28 on the subject of "Movement of Personnel" under paragraph 1.6 restricts the authority of the arbitrator to issue a decision on any question involving movement of personnel as follows, " ... in any such case the authority of the ARBITRATOR shall be limited to a determination as to whether the COMPANY'S judgment has been unreasonably exercised." (Emphasis supplied.) By letter dated February 12, 1971, the Union through counsel advised the Company that it was "interested in exploring the possibilities of arbitrating" the involved issue, but as it was not sure what the Company deemed the issue to be, asked for a formulation of the issue as the Company saw it, but reserved the right to withdraw from arbitration efforts "in the event that we do not agree to what should be arbitrated .... " (Resp. Exh. 10.) Under letter dated February 19, 1971, the Company in reply through counsel proposed the following issue for arbi- tration: Whether Article 28 (Movement of Personnel) of the Collective Bargaining Agreement effective July 24, 1969, requires the company to permit movement of personnel (upgrading, downgrading, lateral transfer) between the two managers' organizations (the 200 Or- ganization and the 500 Organization) after the date the company reorganized its structure to provide for two managers' organizations rather than one." (Respondent's Exh. 11.) The Union under letter of February 26, 1971, appar- ently because it was not satisfied with the issue as stated, declined through counsel to agree to arbitration, and elected to stand by a lawsuit it had started to block the Company from curtailing the plantwide movement of personnel that the employees in the unit had theretofore enjoyed. (Resp. Exh. 12.) Discussion and Conclusions The difficulty with Respondent's contention that its asserted contract right to unilaterally curtail preexisting movements of personnel should be referred to the "Final and Binding Arbitration Provisions of the Collective-Bar- gaining Agreement" is that the above findings of fact show that there are no final and binding arbitration provisions in the collective-bargaining agreement on issues involving move- ment of personnel. The only determination that an arbitrator can make on such an issue is on "whether the Company's judgment has been unreasonably exercised ." That would not be a final determination because the "finality" feature of the arbitrator's decision under the general arbitration clause of the agreement, article 11 , is superseded by the language of article 28 which states expressly that the "au- thority" of the arbitrator "shall be limited" to a mere deter- mination of whether the Company's judgment on matters of movement of personnel has been unreasonably exercised. Moreover, such a determination by an arbitrator, in the Trial Examiner's opinion, would not be "binding" upon the parties, or even upon the Company, not only because it is not a final decision but also because it is a mere opinion by an arbitrator and not a genuine determination of whether the unfair labor practice alleged in the complaint has been committed and consequently cannot put the alleged unfair labor practice issue finally at rest in a manner sufficient to effectuate the policies of the Board . C & S Industries, Inc., 158 NLRB 454. Another difficulty with Respondent's contention that the contract dispute should be referred to arbitration is that there is no obligatory requirement in the collective-bargain- ing agreement for such referral . The agreement provides machinery for arbitration but the use of such machinery is optional to the parties as the agreement merely states that the parties "may" refer disputes as to the interpretation of the agreement to an arbitrator . Under the collective-bar- gaining agreement, it is not enough that one side to the controversy may desire referral to arbitration ; under the agreement both parties must consent to the arbitration pro- visions before such provisions can come into play. The Board in 1955 in Spielberg Mfg., Co., 112 NLRB WESTERN ELECTRIC, INC. 329 1080, set forth the criteria for deferral to arbitration awards. One of these is that all parties agree to be bound. In Interna- tional Harvester Co., 138 NLRB 923, enfd. sub nom. Ramsey v. N.L.R.B., 327 F.2d 784 (C.A. 7), cert. denied 377 U.S. 1003, the Board stated " . . . that collective-bargaining agree- ments that provide for final and binding arbitration of ... disputes arising thereunder, `as a substitute for industrial strife,' contribute significantly to the attainment of this stat- utory objective ...... (Emphasis supplied.) Although that decision favors referrals to arbitration, it plainly indicates that there can be no such deferral unless the collective- bargaining agreement provides for obligatory final and binding arbitration. The collective-bargaining agreement here involved as shown has no such obligatory requirement for the submission of contract disputes to arbitration. Ac- cordingly, it is found that under the holding in the Spielberg case that the present controversy is not subject to deferral for arbitration because the parties have not agreed to be bound by arbitration of the controversy. In a letter supplement to its brief, Respondent calls attention to the Board's recent decision in Collyer Insulated Wire, 192 NLRB No. 150, which it asserts is relevant to the instant proceeding. In Collyer the Board reiterated and per- haps broadened its policy of deferring to arbitration porce- dure, but here again the Board made it abundantly clear that there can be no deferral to arbitration unless the collec- tive-bargaining agreement provides for mandatory arbitra- tion of contract disputes. This appears from the following language of the Board in the C o l l y e r decision. . . . "the breadth of the arbitration provision makes clear that the parties intended to make the grievance and arbitration ma- chinery the exclusive forum for resolving contract disputes." (Emphasis supplied.) It is this complete absence of any ob- ligatory provision in the collective-bargaining agreement here under consideration for reference to arbitration proce- dure that must necessarily disqualify Respondent's request for referal to arbitration and dismissal of the complaint. Respondent's motion for deferral and dismissal of the complaint is denied. III UNFAIR LABOR PRACTICES As heretofore noted the Company contends that the collective-bargaining agreement by its terms gives it the right midterm to unilaterally curtail the plant's pre-existing plantwide movement of personnel whereas General Coun- sel contends that the contract by the intent of the parties and actual past practice requires bargaining and consent by the Union before the Company can initiate any contraction of the existing plantwide movement of personnel during the life of the contract. The Union's greatest concern is that in a layoff, the Company's midterm unilateral abridgment of the pre-existing plantwide movement of personnel could result in the layoff of a senior employee in one of the Company's newly divided management sections of the unit while a junior employee in the other section would be re- tained. Respondent's basic concern is to retain what it deems to be its managerial prerogative and right under the text of this contract to curtail midterm as it sees fit, the past plantwide movement of personnel. Much of the basic and undisputed facts concerning the principal issue of whether the Company is in violation of Section 8(a)(5) and (1) of the Act by reason of its midterm unilateral action of November 3, 1970, in restricting preex- isting movements of personnel has been set forth in the opening paragraphs of this decision for the purpose of fur- nishing the background necessary for a ready under- standing of the issues in the case. A more complete statement of the facts is set forth below. Western Electric has a total of 21 manufacturing plants throughout the United States. The Company's Shreveport plant here involved and another at Indianapolis, manufac- ture all of the telephone equipment used in the Bell Tele- phone System. The Indianapolis plant manufactures the single line telephone that is used in the home; one of its supervisors, as will be hereinafter noted, became tempo- rarily involved in the supervision of part of the appropriate unit in the present case. The Shreveport plant manufactures multiline desk sets for office and industrial use and wall and coin telephones; it also manufactures innumerable compo- nents for telephones, such as key switches, connector wires, and piece parts for telephone repair. About 65 percent of the Shreveport production is the manufacture of telephones and the balance consists of component parts for telephones. Western Electric's Shreveport Works plant began opera- tions in May 1965 at a pilot plant and moved to its present permanent quarters in November 1967. The Shreveport Works has been operated under successive collective-bar- gaining agreements with the Union since February 22, 1966. The bargaining unit involved in these contracts is the only unit in the plant represented by a union. The appropriate unit here involved consists of all the hourly-rated produc- tion and maintenance employees in the plant's manufactur- ing division, excluding office and plant clerical employees, professional employees, guards and supervisors as defined in the Act. The collective-bargaining agreement in effect at the time of the trial herein is the fourth such contract between the Company and the Union. It became effective July 24, 1969, and was scheduled to expire on July 23, 1971. The Company unilaterally made the change in movement of personnel the Union complains of in midterm of the contract. By stipulation, it is established that all of the three prede- cessor collective-bargaining agreements between the Com- pany and the Union contained paragraphs virtually identical with article 11 on "Management of Business" and article 28 on "Movement of Personnel" as contained in the current agreement here under consideration. The record further shows that such articles 11 and 28 are standard form provisions in virtually all of the collective- bargaining contracts of the Company throughout the coun- try at its other plant locations. This finding is based in large part upon the testimony of Respondent's Shreveport plant manager of industrial and labor relations, Donald W. Cor- liss, who testified extensively herein 2 It is also based on the Trial Examiner's official notice of the allegations of a com- plaint in Case 17-CA-4233 involving one of the Company's plants in Omaha, Nebraska. From a perusal of the allega- tions of that complaint it appears that the collective-bar- 2 There have been only two witnesses in this proceeding, the aforemen- tioned Mr. Corhss for the Company and Melvin W . Horton, a unit employee of the Company and vice president of the Local, who testified in behalf of General Counsel. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining agreement in the Omaha plant case also has an article (numbered 27) therein substantially the same or identical with article 28 of the agreement in the instant case and that the central issue in the Omaha case , as here, is the right of the Company under its contract with the Omaha local to unilaterally restrict movement of personnel in mid- term of the collective-bargaining agreement.' Article 2 of the collective-bargaining agreement here in- volved on "Management of Business" gives the Company the right to direct the work for and operations of the Shreve- port plant as follows: The right to manage the Plant and to direct the work forces and operations of the Plant, subject to the limita- tion of this Agreement, is exclusively vested in, and retained by, the COMPANY. The controversial article 28 on the "Movement of Per- sonnel" in pertinent portions reads as follows: Article 28 - Movement of Personnel 1. General 1.1 All adjustment to the working force through up- grading, downgrading, or lateral transfer, or increases or decreases in the working force in accordance with the provisions of this Article shall be initiated and made by the COMPANY. 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 considera- tion possess substantially the same qualifications need- ed for such vacancy. 1.3 Qualifications as used in this Article shall be determined by the COMPANY based on the employee's experience, demonstrated productive effi- ciency, skill or ability and conduct on the job. 11 1.6 If the UNION objects to any move made in ac- cordance 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 ARTI- CLE 10, GRIEVANCE PROCEDURE, and ARTI- CLE 11-ARBITRATION, provided that in any such case, the authority of the ARBITRATOR shall be lim- ited to a determination as to whether the COMPANY's judgment has been unreasonably exercised. 2. Filling Job Vacancies 2.1 When a vacancy occurs, employees of the COM- PANY who have qualifications for the vacancy will be considered in successive steps in the following order until the vacancy is filled: 3 The findings as to the allegations of the complaint in Case 17-CA-4233 are based strictly on the allegations thereof themselves. The hearing in that case before another Trial Examiner has been completed and is pending decision. The present Trial Examiner has no knowledge of the facts in that case as developed at the hearing thereof before another Trial Examiner. The decision in the instant case will be issued without reference to that in the Omaha case, should that decision precede the decision herein. (c) Graded employees in successively lower grades from within (1) the Assistant Manager's organization having the job vacancy for vacancies in grade 34 and lower, or (2) the Manager's organization having the vacancy 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. D 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, ... An employee selected as surplus or an employee who becomes sur- plus by displacement shall be considered for placement in the order of the following successive steps: 3.11 Graded Employee (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 previous expe- rience to be able to perform the assignment efficiently within a limited training period of two weeks, and fur- ther, provided the surplus employee has at least three (3) months more TERM OF EMPLOYMENT than the employee to be displaced. If the employee 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. Summarized, the Company has the right (under par. 1 of article 28) "to initiate the adjustment of the workforce," to wit, the unit here involved, through "upgrading, down- grading, or lateral transfer,4 or increase or decreases," sub- ject, however, to union objections (under par. 1.6 of article 28) which may be processed through grievance and arbitra- tion procedures. In such adjustments to the working force of the appro- priate unit, term of service must be given most weight (under par. 1.2 of article 28) in the selection of an employee to fill a vacancy when two or more employees under considera- tion possess substantially the same qualifications needed for such job vacancy. The Trial Examiner finds that the re- quirement that superior term of service be given the most weight when two or more equally qualified employees are considered for a vacancy is a basic seniority provision in the collective-bargaining agreement, notwithstanding the fact that between two or more candidates of equal seniority but 4 A "lateral" transfer is shown by the record to be a transfer of an employee from one job to another job assignment without a change of grade or, put another way, at the same rate of pay. WESTERN ELECTRIC, INC. 331 of unequal qualification the Company has the right to choose the employee with the superior experience, produc- tive efficiency, skill or ability and conduct on the job for the vacancy .5 Laclede Gas Company, 173 NLRB 243. Further summarizing, article 28 provides for the filling of job vacancies in higher grades (promotions) based on seniority, provided the employee has the qualifications, as follows: 1. For promotions "within an Assistant Manager's Organization" to Grades 34 or lower. (Article 28 par. 2.1 (c) (1).) [Emphasis supplied.] 2. For promotions in "the Manager's Organiza- tion" to Grade 35 and higher. (Article 28 at par. 2.1 (c) (2).) [Emphasis supplied.] Further summarizing, article 28 provides that in the event of layoffs due to lack of work, the layoffs shall likewise be based on "Term of Employment" which is another way of saying "seniority." The article designates such candidates for layoffs as "surplus" employees and gives senior surplus employees successive bumping rights on junior surplus employees "in his own Manager's organi- zation." (Article 28, par. 3.11 (b).) (Emphasis supplied.) As noted, article 28 employs the phrases, "the Assistant Manager's Organization," "the Manager's organization," and "his [employee's] own Manager's organization." There is a clear distinction between a "Manager's Organization" and "Assistant Manager's Organization." A "Manager's Organization" is a reference to a group of employees who work under a designated overall manager or supervisor. An "Assistant Manager's Organization" is a group of employ- ees within a Manager's organization who work under the supervision of an assistant manager to the Manager. From February 26, 1966, until October 1, 1970, the em- ployees in the appropriate unit consisting of all of the plant's production and maintenance personnel, worked under a sin- gle manager or supervisor. During the whole of that period the entire unit was called and known as the "200 Manager's Organization" under company nomenclature.6 That period embraced three successive collective-bargain- ing agreements and most of the term of the fourth successive bargaining agreement between the Union and the Company here under consideration. At all times here pertinent the manager or supervisor of the "200 Manager's Organization," to wit, the manufac- turing department, was G. Lee. There are a number of coor- dinate managers at the plant of other groups of employees 5 Respondent's contention that article 28 on "Movement of Personnel" "is not a semonty provision" is wholly without meat. It is based on the argument that the Company under the contract can pick and choose the better qualified man for a vacancy from two or more employees of equal terms of service. However, the Company concedes in its brief, that, " where the qualifica- tions of two or more employees are substantially equal . seniority comes into the picture for promotions." This is an admission that article 28 is essentially a seniority provision. Mr Corhss , Respondent's manager of indus- trial labor relations , testified that "We had seniority, the organization being a single manager's organization." The Trial Examiner is of the opinion that the collective-bargaining agreement here under consideration would give the Company the right to select the best qualified man between two or more men of equal service even ifthe agreement was completely silent on the Company's right of selection under such circumstances. 6 The figure "200" is purely an arbitrary designation and has no reference to the number of employees in the Manager 's organization. This is also true of all other numbers that appear in front of other manager's or assistant manager's organizations in other departments, but Lee's "200 Organization" was the only organized unit in the plant as well as the largest unit in terms of numbers of employees. Lee in turn has a number of assistant managers working under him who under com- pany nomenclature as shown in the noted footnote also bear arbitrary number identifications such as the "200 Assistant Manager" in charge of production control, the "250 Assist- ant Manager" in charge of sub and final assemblies of tele- phone sets, etc. In March 1970, the Company temporarily split the original "200 Manager's Organization" into two sections, one of which retained the title of "200 Manager's Organiza- tion" and the other was given the title of "500 Manager's Organization." Each was placed under a separate manager of coordinate authority. The "500 Manager's Organization" was formed as a new temporary management organization to help solve some production problems the Company was having in its coin telephone manufacturing operations such as large back orders, extensive overtime requirements, and poor quality. The employee staff of the new temporary "500 Manager's Organization" was formed by transfers of the coin telephone production employees from the original "200 Manager's Organization" and by transfers of the employees plant's engineering department known as the "300 Manager Organization." The employees transferred from the latter were and are nonbargaining employees. After the split of the original "200 Manager's Organiza- tion" into two management groups, Mr. Lee remained man- ager of the truncated "200 Manager's Organization" and a Mr. Todd, a manager of the Company's aforementioned only other telephone manufacturing plant at Indianapolis, became temporary manager of the new temporary "500 Manager's Organization." Prior to the split, the Company gave the Union ad- vance notice of its intentions to temporarily split the appro- priate unit for management purposes into two management groups as above described and gave the Union the assur- ances it wanted that the split would not affect the existing plantwide "Movement of Personnel" or, in other words, that the unit employees would continue to have plantwide movement of personnel as in the past with respect to promo- tions, downgrading, lateral transfers and bumping rights in the event of layoffs. Upon receipt of such assurances,' the Union raised no objections to the split. Mr. Todd, the temporary manager of the "500 Manag- ers Organization" having accomplished his mission of mak- ing the Shreveport's coin telephone operation more effi- cient, left the Shreveport plant on or about September 15, 1970, and returned to his permanent post at the Company's Indianapolis telephone manufacturing plant. The record also reveals another instance where a group of some 25 unit employees under a separate coordinate manager known as the "714 Manager's Organization" en- joyed plantwide movement of personnel along with the great bulk of the unit employees in the "200 Manager's Organization" prior to the split of October 1, 1970, under the terms of the collective-bargaining agreement here in- volved as applied by the Company. 7 These assurances were given the Local's president by the plant's Labor Relations Manager W D Corliss who testified herein, "I told him that was my intention, to retain a single avenue for the movement of personnel." 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 29, 1970, the Company through its aforementioned industrial and labor relations manager, Corliss, notified the Local's acting president, W. R. Saddler by telephone of the Company's intention to make the tem- porary split of the original "200 Manager's Organization" permanent as of October 1, 1970. Saddler was also notified that any change in thepast plantwide movement of person- nel practices in connection with the permanent reorganiza- tion of the original "200 Manager's Organization" would be deferred until November 1, 1970, in order to give the Union the opportunity to discuss the reorganization and the effect it might have on the employees in the unit. This notification was confirmed in a letter dated September 30, 1970, by Corliss addressed to R. D. Myers, President of Local 2188, who could not be reached by telephone the day before. The concluding two paragraphs of the letter read: While the above reorganization will become effective 10/ 1 /70, the Company will not implement any change in past movement of personnel practices until 11 / 1 /70. This is in order to provide the Union full opportunity to review these changes. I am, of course, available to discuss this reorganization and any effect it might have on employees you repre- sent. (Resp. Exh. 5). In accordance with its notice to the Local, the Company's temporary split of the appropriate unit for man- agement purposes became permanent as of October 1, 1970, but a proposed restriction on the unit's existing plantwide movement of personnel to movement solely within each of the two manager's organizations was deferred until Novem- ber 1, 1970, pending discussion and bargaining thereon with the Union. Under the permanent split of the appropriate unit, Lee remained manager of the now diminished "200 Manager's Organization" and J. J. Scott became coordinate manager of the now permanent "500 Manager's Organiza- tion." Just prior to the permanent split of October 1, 1970, there were 2,486 employees in the original "200 Manager's Organization." On October 1, 1970, 857 of these employees, mostly employees engaged in coin telephone production, were transferred to the new permanent "500 Manager's Or- ganization." On the same date approximately 65 employees in the "300 Manager's Organization" were transferred to the new permanent "500 Manager's Organization"; these ap- proximate 65 employees consisted of some 35 professional engineers and some 30 technical employees. From the beginning the Union vigorously protested and objected to the Company's proposed restrictions on the plantwide movement of personnel on the ground that it was contrary to the "intent" of the parties under the terms of the collective-bargaining agreement and contrary to established usage under the agreement. The Company with equal vigor maintained that it had the absolute right to restrict move- ment of personnel midterm under the literal terms of the contract and that the Union was aware of the Company's position on this when it negotiated the collective-bargaining agreement here involved and agreed to it by the literal terms of the agreement. A total of eight joint meetings of union and company officials were held between October 5, 1970, and November 3, 1970, on the Company's proposed restriction on move- ment of personnel. Upon failure of the Company to secure the Union's approval of the proposed restriction, the Com- pany unilaterally put it into effect on November 3, 1970. Under the restriction, movement of personnel was restricted to that within each of the two manager's organizations or "corridors," to use the word the Company employs in its brief. More specifically, after the restriction was put into effect, the employees in the reorganized "200 Manager's Organization" under Manager Lee had movement of per- sonnel on promotions, downgrading, lateral transfers, and layoffs only within Mr. Lee's corridor of management and the employees in the new permanent "500 organization" under Manager Scott had the same movement of personnel only within Mr. Scott's comdor of management. The parties are agreed that in a layoff under the newly restricted move- ment of personnel it is possible for a senior employee in Mr. Lee's comdor to suffer a layoff while a junior employee in Mr. Scott's corridor could be retained, or vice versa. It will be shown below that this restriction applied only to employ- ees in grade 35 and higher. The "intent" of the parties to the collective-bargaining agreement on the right or lack of right on the part of the Company to restrict movement of personnel under article 28 of the collective-bargaining agreement is in large part reflected in the minutes kept by the Union and Western Electric of the eight bargaining sessions they had on the Company's then proposed restriction of movement of per- sonnel insofar as these minutes show the prior history of negotiations and prior understandings between the Union and the Company on the rights of the contracting parties under article 28. The minutes of the eight meetings as kept by the Company and the Union are in evidence as General Counsel's Exh. 2 (a) to (f), and Respondent's Exhibits 6 (a) to (h), respectively. The Company' s minutes are complete as they contain minutes for each of the eight meetings; the Union's minutes are less complete as its minutes for the first two bargaining sessions, if kept, are not in evidence. The two separate sets of minutes of the meetings are in remarkable agreement as to what occurred at the meetings of the Union and the Company on the latter's proposed restriction of movement of personnel. 8 The company min- utes for the first meeting 9 Of October 5, 1970, in pertinent part read as follows: Union by its representative: I asked Bill to set up this meeting when I got word that the Company was tampering with movement of personnel. When activity of plant is being reduced, this is a violation of our agreement. By doing this, you change the whole intent of the movement of personnel article as it was negotiated. When you developed Dept. 201 [this obvious error should read Dept. 5001, you said it was due to engineer- ing problems. The Union was given assurance there be no change in movement of personnel ... [Emphasis supplied.] Company by its representative: There is no question about what happened last spring when he brought in Todd. We said there would be no change in movement of personnel since he was here on a temporary basis. WE thought when he left we would maintain our for- 8 Counsel for General Counsel and Respondent also appear to agree that the two sets of minutes are substantially smular. 9 There are no union minutes of record for this meeting WESTERN ELECTRIC, INC. 333 mer position. Now it was decided we would make the permanent change. J. Scott. We also brought piece part manufacturing into this new branch . The rest will stay with George Lee. This we envision as a permanent change. Union: Doesn't this clash with what you told us last spring? Company: I think you can recognize that any or- ganization will change. There are changing manufac- turing conditions. We feel strongly that we have the right to do this under management of the business. Realign our own management . We realise that this will have an effect on movement of personnel for people 35 grade and up. Union: It affects everyone in plant on a layoff. Company: Okay, it affects all employees on a lay- off. But there will be no change in sub-branches. We tried to keep the effect to a minimum. The only change here is a new manager. Because this will effect move- ment of personnel, I told Bill we will hold off until November 1 so we would have a change to discuss. Union: We feel this is a unilateral move on the part of the Company. The Company can reorganize its own management, but when you affect movement of per- sonnel, you must bargain. Company: You must recognize when bargaining a contract that there will be organizational changes as business changes. Union: Our minutes will reflect that we never talked about more than one manager. [Emphasis supplied.] Company: We did not anticipate another one at that time ... [Emphasis supplied.] the work force. Company: The possibility or reorganization was no secret. I know your people have discussed what would happen when new manager's organization is made. We've done it at assistant manager level. Union: Do you agree that this changes condition of employment. Company: I don't think it will have that much effect. Movement of personnel at 35 grade and above is within manager's organization, but it won't affect- lower grades. Union: It will affect employment rights. Company: It will affect displacement rights on force reductions. Union: It will cut it directly in half. Movement of piece parts too. You told us you would keep work flow in harmony. We feel this is disharmony. Company: This is a judgment . We feel this move is proper. Union: Let's make one thing very clear. We don't care who reports to who . We're concerned with move- ment of personnel. You can make any change you want. The Company's minutes for the second meeting with the Union held on October 14, 1970, read in pertinent part as'follows: Company (with reference to the new temporary "500 Manager's Organization): ...We told you we were setting up temporary organization. We told you no change in movement of personnel at that time. We anticipated that it would only be temporary. n s • s s s s Company: You do recognize the Company's right to run the business? Union: No. We don't feel you have the right to make a move of this magnitude under the management right clause. We feel you have gone beyond your rights. Company: With all the changes that take place, we cannot lock into any assistant manager's or manager's organization . We know it will change. Union: Do you feel this is a non-negotiable item? Company: Obviously not or we would have just done it. We want to hear any problems you might have. We feel we need to make changes . [Emphasis supplied.] Union: You've heard the Union's position. Do you plan to make any changes? We feel this was a unilateral move. Company: We feel this move was well advised. We don't intend to move these people back to one manager's organization. Union: Even though this move was outside the contract? Company: We don't feel it was outside the con- tract. We never gave any guarantee, implied or ex- pressed, that this organization would not be changed. Business conditions change. Union: This doesn't make sense with a decrease in s Union: Let me straighten one thing out. We do have plantwide seniority now and we don't want this to change. Company: We do not have plantwide seniority. Union: Why are you bargaining now? Company: Because a new manager's organization will effect movement of personnel. Union: Do you consider this a change in employ- ment rights? Company: Change. Union:... We have written proposal we'd like to present at this time. Company: May we review it now. In third para- graph, you propose one manager's organization and no others. Movement of personnel be limited to a single manager's organization. s s s s The third paragraph of Union's written proposal dated October 14, 1970, referred to in the above company minutes reads as follows: The Union proposes that the channels of movement negotiated in the General Agreement between the par- ties dated 24th July, 1969, which involves one 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manager's organization not be effected by this pro- posed reorganization ; or any future reorganization concerning manager's organization, Shreveport Works, without agreement between the parties. In subsequent meetings the Company made various proposals to the Union under which they offered to restore in increasing degrees the loss of preexisting plantwide move- ment of personnel the Company was proposing to take away under its management reorganization of the unit, but always under the condition that there would be a cut off date on such restorations of existing plantwide movement of personnel rights some 3 or 4 months prior to the expiration of the then outstanding collective -bargaining agreement sched- uled by its terms to expire on July 23, 1971.10 The reason offered at the trial by counsel for Western Electric for the Company's refusal to extend its offers of restoration of the preexisting plantwide movement of personnel for the life of the contract " ... was that so it [the Company] would not go into the ... contract bargaining ... in a position worse than that which it had under the words of the agreement as negotiated and written ." The Union rejected the Company's offers of restoration of plantwide movement of personnel for a period short of the duration of the agreement because it believed the Company's proposal was something less than "we felt we already had," that is , plantwide movement of personnel for the duration of the collective -bargaining agreement. Of the minutes kept by the Union on its bargaining sessions with the Company, only two bear on the issue of the "intent" of the parties under article 28 of the collective- bargaining agreement on the Company's right or lack of right to curb midterm the preexisting plantwide movement of personnel . The first of these, the Union's minutes of the meeting of October 19, 1970, reads in pertinent part: Company: We have met several times on this sub- ject and at our last meeting you presented us a propos- al. Union: Our proposal concerns only the Movement of Personnel. Company: We cannot totally go along with your proposal as it changes the contract as we see it. Union: We know that other locations have worked our Agreement on plantwide placement in an effective lack of work situation. Company: Only two (2) locations have this form the '69 bargaining. Union: Our intent was never to have it where jun- ior people are on the roll while senior people are laid off. How many contracts have we bargained here? Company: Four. Union: Don't you agree the intent has always been one manager? [Emphasis supplied.] 10 The details of these successive proposals by the Company to the Union are shown in the Company's brief as follows: 1. Permit employees to cross Manager lines once in upgrading situ- ations, within six months. 2. Permit employees to cross Manager lines once in upgrading situ- ations, and an unlimited number of bumping situations , within six months. 3. Permit unlimited upgrading and downgrading across Manager lines for six months 4. Permit unlimited upgrading and downgrading across Manager lines for seven months. Company: Yes, but no one has said we would al- ways have just one. [Emphasis supplied.] Union: I don't recall us ever bargaining about this. Company: Well as we grow you can understand the need for changes. s The other union minutes which bears on the issue is on the meeting of October 29, 1970, which inlpertinent part reads: Union:... we negotiated only one manager's organi- zation last year. [Emphasis supplied.] Company: Do you think any future meetings would be fruitful? Union: I don't know, we feel that our proposal is reasonable and don't feel this is an extension of the contract. s a Company: Your last position is that movement be the same for the life of the agreement. Union: Yes. s s s • 11 At the trial, counsel for the Company in his direct examination of the plant's aforementioned Labor Relations Manager Corliss, directed his attention to that part of the Union's minutes of October 19, 1970, as set forth above which reads: Union: Do you agree the intent has always been one manager? Company: Yes, but no one has said we would al- ways have just one. [Emphasis supplied.] Company counsel then asked Corliss whether he recalled that question and answer. Corliss did not deny the question and "Yes" answer but merely stated "Well, I don't recall the exact words" and then sought to avoid the impact of the answer "Yes" to the question by elaborating at length on the "no one has said we would always have just one." From the above-quoted minutes, from Corliss' testimony, and from the record as a whole, the Trial Examiner finds that Corliss as spokesman for the Company at the bargaining meeting of October 19, 1970, did make the admission attributed to the Company in the union minutes of that meeting as shown above. In all the previous collective-bargaining negotiations since 1966 leading to the four successive collective-bargain- ing agreements between the Union and the Company, the subject of whether the parties, under the standard perma- nent provisions of article 28 of such contracts, "intended" the movement of personnel to continue to be plantwide as WESTERN ELECTRIC, INC. 335 it has been from the beginning, came up for express discus- sion only once. In 1968 while negotiating the 1968 contract, the Union sought a change in the language of article 28 to more clearly and expressly preserve for the employees in the bargaining unit the plantwide movement of personnel that they had historically enjoyed under a single manager since 1966. Under the language of section 2.1 (c)(2) of the con- tract, vacancies in grades 35 and above are filled in "the Manager's organization having the vacancy ... " and "from within the Manager's organization having the vacancy." Fearful that the Company might at some future date under its right of management article in the collective-bargaining agreement (article 2) put on additional coordinate supervi- sors or managers of the bargaining unit and then claim the right to restrict movement of personnel from the former plantwide movement to that strictly within each manager's organization or corridor, the Union sought a change in the language of article 28 to make vacancies in grade 35 and above fulfillable not from the ranks of "the Manager's or- ganization" as the article reads but from the ranks of bar- gaining unit throughout the "Shreveport Works" which is the designation the Company's plant is given in the collec- tive-bargaining agreement. The Union was gravely con- cerned that in the event the Company chose to add another coordinate manager to the management of the bargaining unit and a massive layoff thereafter took place, a senior employee in one of the two management organizations could find himself out on the street without a job while a junior employee in the other manager's organization would be retained. The union officials expressed this fear many times to the company officials during the two meetings in 1968 in which the Union sought the described change in the language of article 28. Corliss, replying for the Company, denied the Union's requested change in the language of article 28, but gave the Union firm assurances that he "did not contemplate addi- tional manager's organizations." Notwithstanding this as- surance, Corliss told the Union officials at the meeting that the single management of the unit "could possibly change." With the Company's assurances that it did not contemplate any changes in the single management of the bargaining unit, the Union did not press for the language change in article 28 and it remained the same as it had been since 1966. From the testimony of record 11 on the 1968 negotia- tions as they relate to article 28, the Trial Examiner infers and finds that the Union did not consciously yield or waive its claimed right to plantwide movement of personnel for the duration of the 1968 collective-bargaining agreement as contended by the Company. As heretofore indicated, the single manager of the bar- gaining unit from 1966 to November 2, 1970, had a number of assistant managers working under his supervision. Just prior to the split 12 of November 3, 1970, Mr. Lee, as manag- ii The only testimony of record on the 1968 contract negotiations with respect to article 28 was received from the plant's Labor Relations Manager Corhss. The only other witness in this proceeding, the Local's vice president, Horton, did not testify with respect to the 1968 negotiations on article 28 as he was not a participant thereto. He did not become a union officer until 1969. i2 After the split, Lee had only four assistant managers under him and Scott as the other coordinate manager of the bargaining unit had three assistant managers. er of the original "200 Manager's Organization," or bargain- ing unit, had seven assistant managers working under his supervision who were in turn in charge of the various phases of the manufacture of telephone sets and component parts. Each assistant manager had a numbered title such as "220 Assistant Manager" (in charge of production control and merchandise functions) and "250 Assistant Manager" (in charge of sub and final assemblies of telephone sets). Although the language of article 28 of the collective- bargaining agreement on the movement of personnel on the filling of job vacancies within "the Manager's Organization" for vacancies in grade 35 and higher and on the filling of vacancies within "the Assistant Manager's Organization" for vacancies in grade 34 and lower, are literally identical, histori- cally the movement of personnel has at all times been differ- ent for employees in grade 35 and higher under "the Manager's Organization" than for employees in grades 34 and lower under an "Assistant Manager's Organization." From February 22, 1966, to November 2, 1970, the filling of vacancies in the single manager's organization in grades 35 and higher has always been on a plant wide basis. On the other hand, the filling of vacancies in an assistant manager's organization in grades 34 and lower has always been solely within the assistant manager's organization and never on a plantwide basis. The Company in 1967, during the life of the 1967 col- lective-bargaining agreement, unilaterally split one of the assistant manager's organizations, known as the "250 Assist- ant Manager's Organizations" under Manager Lee into two assistant manager's organizations, one of which retained its original "250" designation and the other was named the "260 Assistant Manager's Organization." Sim- ilarly in 1969 during the pendency of the 1968 contract, the Company unilaterally split the aforementioned new 260 as- sistant manager's organization into two, thereafter known as the 260 and 280 assistant manager's organizations, re- spectively. It is established by stipulation of the parties that these splits were made after prior oral notice to the Local and that the Local did not seek to bargain with the Compa- ny on its then proposed actions or the effects thereof on the movement of personnel. It is to be noted that these were splits of assistant managers' organizations, not of the single manager's organization of the entire bargaining unit. From the bare bone record of the above stipulated facts on the Company's unilateral prior splits of management on the assistant managers' level the Examiner finds that the Union's failure to challenge those splits was not a conscious waiver of its right to challenge the Company's unilateral fragmentation of the preexisting plantwide movement of personnel on the single manager's level as the Company appears to contend. The November 3, 1970, split of Manager Lee's "200 Management Organization" did not affect the movement of personnel of all of the employees in the bargaining unit, but only'of employees in grade 35 and higher. Under article 14 of the collective-bargaining agreement, the Company main- tains 10 job grade levels at its Shreveport plant, numbered 32 to 41, inclusive, with 32 being the lowest level at which employees are employed and 41, the highest. As of July 24, 1969, the hourly wage rate for employees in the unit ranged from $2.10 for grade 32 to $3.75 for grade 41. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Before the split, the movement of personnel of employ- ees in the lower grades 32 through 34 with respect to promo- tions, downgrading, and layoffs, had always been restricted to that within the assistant manager's organization in which suchl lower grade employees worked. After the split, the movement of personnel for grades 32 through 34, as in the past, continued to be restricted to that within the assistant manager's organization in woich such graded employees worked. As this continued restriction on the movement of personnel for grades 32 to 34, after split did not in any way change the preexisting working conditions of such lower grade personnel, General Counsel does not contend that the coninuation of the restriction of movement of personnel for employees in grades 32 to 34 after the split to that within their assistant's management's organization is in violation of Section 8(a)(5) of the Act. Such continued restriction of movement of personnel for grades 32 to 34 isthus not an issue in the case. Before the split of the original "200 Manager's Organi- zation," the movement of employees in grades 35 and higher was plantwide. After the split of the old 200 organization into the diminished 200 and the new 500 organization, the movement of personnel for such grades 35 and higher em- ployees was no longer plantwide (with certain exceptions not deemed of sufficient importance for detailing here) but restricted to that within the 200 to 500 organization in which such employees worked. This was an actual change in the preexisting working conditions of such higher graded em- ployees, whether or not such a change is authorized by the terms of the collective-bargaining agreement which is the issue to be decided herein. The record does not reveal the number of employees in the bargaining unit with grades of 35 and higher. However, the testimony of the plant's Labor Relations Manager Cor- liss shows that there are "many, many" employees in grades 35 and higher in both the truncated 200 and the new 500 organization. It is inferred from Corliss' testimony and from the fact that there are seven grades of 35 and above as against only three grades below 35 that at least half of the bargaining unit consists of employees who are in grades 35 and above and that accordingly at a minimum one-half of the unit could have their preexisting working conditions adversely affected by the new restriction on the movement of personnel in layoffs, promotions and downgrading. It is established by stipulation that since November 3, 1970, the Company has not permitted movement of person- nel in grades 35 and higher between the 200 and 500 organi- zations regardless of the relative qualification of employees. It is also established by stipulation that since November 3, 1970, the Company "in all cases, without regard to qualifi- cation, has not considered employees in one manager's or- ganization for upgrading or downgrading into ... the other manager's organization," except in hardship cases. In the summer of 1970 the bargaining unit was reduced by layoffs due to lack of work from about 3,200 employees to about 2,500 employees. This figure of 2,500 was roughly the number of employees in the unit on November 3, 1970, when the Company implemented its split of October 1, 1970, by restricting movement of personnel to that solely within each of the two coordinate manager's organizations. The uncontradicted testimony of the Local's vice president , for determination under the Board's compliance procedures. Horton shows that if a similar reduction of force took place after November 3, 1970, "The potential effect of the split could be every employee in the unit." The Respondent's minutes of the bargaining confer- ence of October 5, 1970, on the Company's then proposal to restrict movement of personnel as above described shows that the Company "realized that this will have an effect on movement of personnel for people 35 grade and up." From and after the effective date of the new restriction, the Com- pany could go to the street to fill a 35 and higher vacancy in one of its two manager's organizations although there could be many qualified candidates for such vacancies in the other manager's organization within the bargaining unit. The Company's minutes for the same meeting also acknowl- edge that its then proposed restriction of movement of per- sonnel would "affect all emplovees in a layoff." In the 7-month interval between the effective date of the new restriction on the movement of personnel and the trial of this case, 10 grievances have been filed by the Union in behalf of employees in the unit whom the Union claims have been adversely affected by the new restrictions on the movement of personnel. These grievances are in various stages of development under the grievance and arbitration procedures of the collective-bargaining agreement. Two of the involved grievants complain that they have been down- graded and the other six complain that they have not been upgraded for promotions, all because of the adverse affect upon them of the Company's new restriction on the move- ment of personnel. In addition the record shows illustra- tions of several other employees who were likewise adversely affected by the restriction but did not file griev- ances as the Local felt that the prototype grievances it had already filed would control the cases of such other employ- ees. Counsel for the Company admits that there are some 10 to 14 employees who may have been affected by the new restriction but who have not filed grievances. In the same 7-month interval between the effective date of the new restriction of personnel and the trial of this case, a combined total of about 50 promotions of unit employees took place in the two manager' s organizations. The promo- tions in each of the two manager's organizations took place without investigation or consideration of whether any of the employees in the other manager's organization had superior seniority and qualifications for such promotions. The described 7-month period has been a relatively stable period in terms of employment in the bargaining unit. In that 7-month period there have been no layoffs at the plant and employment in the unit increased from 2,500 to 2,700 employees. For this relatively short and quiet period, the Trial Examiner finds and determines that the dozen or so known employees who appear to have been adversely affected 13 by the new restriction on the movement of per- sonnel and the undetermined number of employees who might have had some of the 50 promotions made in the period if these promotions had been made under the former plantwide seniority enjoyed by the employees rather than within manager's organizations, represent a substantial, if 13 No findings are intended here on the rights of such employees , but left WESTERN ELECTRIC, INC. 337 fractionally small, number of employees who appear to have been adversely affected by the new restriction on movement of personnel. Considered individually, the re- striction seriously affects each affected employee in terms of wages when downgraded,14 and in chances for promotion and dangers of a layoff. But potentially in the event of a massive layoff of 500 or more employees such as occurred in the summer of 1970, the Examiner finds from the evidentiary findings above that the new restricted movement of personnel has every likeli- hood of resulting in the layoff of senior employees in one of the two manager's organization while junior employees are retained in the other manager's organization. Similarly, under the new restriction on movement of personnel, a seri- ous drop of business in one of the manager's organizations has the strong potentially of resulting in the downgrading of higher grade senior employees in that manager's organi- zation while junior employees in the same grade postiions in the other manager's organization retain their grade posi- tions. But the effect of the split is potentially far more perva- sive than the mere layoff of senior employees in one of the two manager's organizations while junior employees in the other manager's organization are retained. Because of the chain reaction,. each employee who is downgraded or bumped out of turn because of the split would be affected. This is because the intermediate steps of "successive" bumping prior to reaching the end result (i.e., the last em- ployee to be downgraded or the last employee to be laid off) would affect any number of employees. The testimony of the plant's labor relations manager, Corliss, shows that while there is a certain amount of spe- cialization on the part of the unit employees in each of the two manager's organizations, "there are no clearcut lines where only one job is done in one or the other ...... Corliss' testimony further shows that "there 's some degree of trans- ferable skills" between the two manager's organizations. The Company claims the right under acticle 2 of the collective-bargaining agreement entitled "Management of Business" to add additional manager's organizations to the bargaining unit as it sees fit. General Counsel does not contest this claim. The Examiner finds that under the con- tract the Respondent had the right to split the original "200 Manager's Organization" into two manager's organizations as it did on October 1, 1970. The Respondent also claims that there was an eco- nomic justification for installing an additional manager's organization to the theretofore single management of the bargaining unit. General Counsel does not appear to contest this claim. From the evidentiary findings above, the Exam- iner finds that Respondent had economic justifications for adding a second manager to the unit. The Respondent also claims the right under the terms of Article 28 of the collective-bargaining agreement for the unilateral action it took on November 3, 1970, in restricting 14 Although employees who are downgraded received , under the collec- tive-bargaining agreement, the same wage per hour in their downgraded grade as they had in their higher grade, their periodic wage increases under the contract is governed by their grades; the higher grades receive higher periodic wage increases than do the lower grades Thus a downgrading generally results in a loss of the higher instep raises for higher paid positions the pre-existing plantwide movement of personnel to that within each of the two manager's organizations under its management reorganization of October 1, 1970. This is the central issue in the case; it will be discussed and determined below in the next section of this Decision. Counsel for the Company do not claim any economic justification for the restriction but rely solely on the Company's right to restrict movement of personnel under the terms of the contract as appears from the following statement of one of Re- spondent's counsel at the trial: "Respondent is not contend- ing that the reason that employees were restricted after this decision [i.e., the decision to divide the single management organization into two organizations] was made, in terms of movement of personnel, was because of economic reasons. That is not our contention. It was restricted because of the content [i.e., of Article 28 of the collective-bargaining agree- ment]." In view of this admission by Respondent's counsel that the restriction was not put into effect for economic reasons, the Trial Examiner asked Corliss, the plant's said Labor Relations manager, why the Company was so ada- ment in insisting upon putting into force the new restriction on movement of personnel despite the strong and unwaver- ing opposition of the Union. He answered that if the cross- ing of manager's lines were allowed under the reorganized management of the unit "we might be involved in additional, training." From the evidentiary findings above showing that there are not clear cut lines "where only one job is done in [one] or the other" of the two manager's organizations, and that there is some degree of transferrable skills between the two manager's organizations, the Trial Examiner finds and concludes that the chances that the Company "might be involved in additional training" if the crossing of manager's lines were allowed for promotional purposes is minimal. It is inferred and found from the record as a whole that the Company would normally be involved in more training of new employees hired by the Company from off the street than in the training of employees already on its payroll desiring to transfer from a job in one of the two manager's organizations to a job in the other. Summarizing the record shows and the Trial Examiner finds that prior to November 3, 1970, the unit employees in the Company's Shreveport plant in grades 35 and above had plantwide movement of personnel with respect to promo- tions, downgrading, lateral moves, and in layoffs, but that from and after November 3, 1970, their movement of per- sonnel was limited and restricted to the manager's organiza- tion to which they were assigned and in which they worked. Discussion and Conclusions The ultimate decision for resolution here is whether the Company had the contractual right under the terms of the collective-bargaining agreement to unilaterally restrict the preexisting plantwide movement of personnel during mid- term of the agreement. From the evidentiary findings set forth above and the record as a whole, the Trial Examiner finds and concludes that it was the intent of the parties under article 28 of the collective-bargaining agreement that the movement of personnel in grades 35 and higher should at all times be and remain plantwide during the life of the 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract as it had been under the three previous successive collective-bargaming agreements. Accordingly the Trial Examiner finds and concludes that the Company's unilateral action of November 3, 1970, restricting the rights of the employees in the bargaining unit with respect to promotions, downgrading, lateral transfers, and layoffs to that within one or the other of the two manager's organizations to which they were assigned under the management reorganization of October 1, 1970, altered article 28 of the collective-bargaining agreement and consti- tuted a change in their established working conditions in violation of Sections 8(a)(1) and (5) and 2(6) and (7) of the Act. As stated in Respondent's brief, "the basic issue in this case turns upon the proper interpretation of Article 28" of the collective-bargaining agreement. The Company con- tends that the literal language of article 28 gives it the right to restrict movement of personnel to that within each of the two manager's organizations and thereby to prohibit the movement of personnel across manager's organization lines. In support of its contention the Respondent points to the language of article 28 which provides that vacancies in grade 35 and higher shall be filled in "the Manager's organi- zation having the vacancy" and that vacancies in journeymen's occupations shall be filled "from within the Manager's organization having the vacancy." (Emphasis sup- plied.) Respondent also points to other language of article 28 dealing with successive bumping rights senior employees have in the event of widespread layoffs due to lack of work. In such situations article 28 provides that an affected em- ployee has displacement rights "in his own Manager's organi- zation." (Emphasis supplied.) From these quoted phrases in article 28, the Company argues that article 28 "authorizes the Company to restrict movement of personnel from one manager's organization to another, no matter how many manager's organization there may be." (Emphasis sup- plied.) While it is true that the literal language of article 28, if not directly15 at least impliedly, supports Respondent's con- tention that the contract authorizes restrictions on the movement of personnel from one manager's organization to another, the record is otherwise overwhelming that this was contrary to the intent and understanding of the parties at the time the 1969 collective-bargaining agreement here in- volved was negotiated and that the real intent of the parties had been that there would be a continuation of the status quo of plantwide movement of personnel under a single manager as in the past under three previous successive col- lective-bargaining agreements, all of which contained arti- cles identical with or wholly similar to article 28. This intent was admitted by the Company at one of the 15 The contract would have avoided the present controversy if it had direct- ly stated that while the bargaining unit has always been under the manage- ment of a single manager, the parties agree that the Company may at any time during the life of the contract add additional managers to the manage- ment of the unit and that in connection therewith the Company would have the right to restrict movement of personnel from one manager's organization to another. Instead the Company relies on inferences to be drawn from such phrases in article 28 as read that vacancies shall be filled in "the Manager's organization having the vacancy" as giving it the authority to put on addi- tional managers and restrict movement of personnel to the corridors of each manager's organization. eight bargaining sessions it held with the Union on its pro- posal to restrict movement of personnel from the previous plantwide movement. As the findings above show, this ap- pears from the Union's minutes of the meeting of October 19, 1970, in which the following colloquy took place: Union: Don't you agree the intent has always been one manager? Company: Yes, but no one has said we would al- ways have just one. (Emphasis supplied.) Union: I don't recall us ever bargaining about this. Company: Well as we grow you can understand the need for changes.... At the earlier meeting of October 5, 1970 (the first meeting), the minutes of the Company show that when the contract here under c consideration was negotiated in 1969 the parties negotiated under the understanding that there would be only a single overall company manager of the bargaining unit as appears from the following excerpt from the minutes: Union: Our minutes 16 will reflect that we never talked about more than one manager. Company: We ,did not anticipate another one at that time. Any review of the minutes of the parties on their post- contract bargaining sessions of the Company's postcontract proposal to impose limits on the existing plantwide move- ment of personnel clearly shows that the involved 1969 contract had been negotiated with the intent that the bar- gaining unit would remain under a single overall company manager under whom the employees would continue to have plantwide movement of personnel as in the past. At the time the 1969 contract was negotiated the Company had no plans or present thoughts of splitting the single management of the unit into a dual management. The only time article 28 came up for direct discussion was in connection with the negotiations for the 1968 con- tract, not the 1969 agreement, when the Union, in order to avoid any future misunderstanding, requested changes in the language of article 28 to expressly provide for plantwide movement of personnel to conform with the actual practice under all preceding articles 28 in all previous collective- bargaining agreements. The Company declined to make the changes on the ground that the presently existing single management of the unit and, with it the plantwide move- ment of personnel, "could possibly change," but gave posi- tive assurance to the union officials that the Company had no present thoughts or plans to put on additional managers to the unit. With these assurances the Union did not press for the requested changes in the language of article 28, but there is nothing in the record to suggest or indicate that the Union consciously yielded or clearly and unmistakenly waived its interest in the matter as is required under well established authority for proof of a waiver of the right to bargain on such vital matters of employee concerns as pro- motions, downgrading, and seniority rights in layoffs.17 Be- 16 Neither the Union nor the Company offered in evidence the minutes they kept of the negotiations leading to the 1969 collective-bargaining agree- ment here under consideration , presumably because they showed no discus- sion on the text of article 28 17 See cases collated in In. I I and 12 of the Trial Examiner's Decision in Rockwell-Standard Corp, 166 NLRB 124 enfd , 410 F 2d 953, at In 2 (C.A. 6), as well as text of the Trial Examiner's Board adopted decision at p 132 WESTERN ELECTRIC, INC. cause of the assurances that no present changes in the existing plantwide movement of personnel were contem- plated, the changes the Union asked for in the language of article 28 became academic and not worthy of prolonged discussion and negotiation." But is quite apparent from the fight the Union put up when the Company proposed the present curtailment of the preexisting plantwide movement of personnel as culminating the instant proceeding that the Union did not in the negotiations for the 1968 contract deliberately and knowingly waive its right to bargain and even strike for the preservation of the preexisting plantwide movement of personnel had since 1966. The preservation of this plantwide movement of personnel was and is of vital importance to the Union because a division of such plant- wide movement of personnel under separate managers could among other adverse effects lead to senior employees losing their jobs in one manager's organization during a massive layoff while junior employees retain their equiva- lent positions in the second manager's organization. This was the ever present concern of the union officials at the eight bargaining sessions held with the Company before the Company unilaterally and without union consent imposed the new restriction on the plantwide movement of person- nel. The Trial Examiner further finds and concludes from the above evidentiary findings that the Union did not waive its right for bargaining on the effect the splitting of the single manager's organization would have on the movement of personnel by its failure to request bargaining on the Company's past actions under prior collective-bargaining agreements in splitting assistant manager organizations as contended by Respondents. As heretofore found, historical- ly the movement of personnel for employees in grade 34 and below has always been within the assistant manager's organ- ization to which such employees happen to be assigned whereas the movement of personnel for employees in grade 35 and above prior to November 3, 1970, has always been in the manager's plantwide organization. Up until October 1, 1970, the manager's organization has always been plant- wide whereas all assistant manager organizations at all times both before and after October 1, 1970, have always been only designated sections within the single manager's plant- wide organization. Thus historically the movement of per- sonnel on an assistant manager's level has always been within the assistant manager's less-than-plantwide organi- zation for employees in grades 34 and below whereas histor- ically the movement of personnel for employees in grades 35 and above had always been until the Company's unilat- eral action of November 3, 1970, within the single manager's plantwide organization. For this reason, it fol- lows that the failure of the Union to request bargaining on the splitting of assistant manager's organizations was not a conscious and deliberate waiver of the Union's right to contest the splitting of the single manager's organization insofar as it affected the traditional working conditions of on requirements for a "waiver " See also Unit Drop Forge Division, Eaton Yale & Towne Inc., 171 NLRB No. 73 18 The Union's decision not to become involved in prolonged negotiations about the academic possibility that the Company might put on an additional manager in view of company assurances that it had no present plans or thoughts of doing so turned out to be a sound judgment as the Company did not in fact put on any additional managers of the unit during the life of the 1968 contract. 339 employees in grade 35 and above as enjoyed by them since the beginning of the contractual relationship in 1966 be- tween the Union and the Company. The latter involving the rights to promotions and job security on a plantwide basis are of such vital interest to the employees in the unit that it cannot be assumed that there has been a waiver thereof in the absence of clear and positive proof of such waiver. That element is lacking in the instant case. If history sustains the right of the Company under article 28 to contain movement of personnel for employees in grades 34 and lower to that within their assistant manager's organization, then history under article 28 also sustains the right of employees in grades 35 and above to plantwide movement of personnel within the original single manager's plantwide organization for the duration of the life of the collective-bargaining agreement here involved. Another argument advanced by the Company is that its unilateral imposition of the rule against the movement of personnel across manager's organizations should in any event be allowed to stand on the ground that the restriction has had only what it deems a nonsignificant impact on the bargaining unit in the 7 months the restriction has been in effect, under a line of cases involving unilateral subcon- tracting. Westinghouse Electric Corp., 150 NLRB 1574; American Oil Co., 151 NLRB 421; Allied Chemical Corp., 151 NLRB 718. In these cases the Board held that the employers were not in violation of the Act by their unilat- eral acts of subcontracting work out because the subcon- tracting did not involve any significant impact on unit employees' job interests. But it is obvious from any perusal of these subcontracting cases that the Board weighed the Employer's economic ad- vantages from such subletting as established by long prior practice against the adverse impact of the subcontracting on the employees in the unit in arriving at a decision of whether there had been a violation of the Act and that where the record historically showed strong economic advantage to the Company and no significant adverse impact or det- riment to the employees, the Employer has been found not to be in violation of the Act. The instant case does not involve any subcontracting but even if the holdings of the Board in the above-cited cases are deemed applicable, the record here fails to show any economic advantages to the Company for the substitution of its rule against the movement of personnel across manager's organizations for its former long established practice of allowing plantwide movement of unit personnel. A sharp distinction must be drawn between the economic advantages to the Company in the splitting of the original unitary management organization of the unit into two and its new rule limiting movement of personnel to that within each of the two manager's organizations. This is because the record shows definite economic justification for the splitting by reason of increased efficiency, but no economic benefits, or virtually none, accruing to the Company from its new restriction on the former plantwide movement of personnel. While the plant's labor relations manager, Corliss, claimed some economic disadvantages in allowing the crossing of manager's organization after the split as "we might be in- volved in additional training," 19 counsel for the Company 19 It would appear that it would be quicker and easier to train a present continued 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD openly conceded that the Company was not claiming any economic advantages from the new restriction on the move- ment of personnel, as it places its sole reliance on the lan- guage of Article 28 for the authorization of the new restriction. (But as shown above, Article 28 interpreted in the light of the intent of the parties shows that the parties intended the preexisting plantwide movement of personnel under article 28 to continue for the life of the contract.) Thus by the Respondent's failure to show any signifi- cant economic benefits to itself from its new restriction on the movement of personnel, the Respondent's unilateral imposition of the restriction is a violation of the Act enven under the Board's holdings in the cited subcontracting cases upon which it relies. However, even if the "significant impact" test of the cited subcontracting cases is applied here, the record shows that the Company's new restriction on the movement of personnel does have a significant present and potential im- pact on the employees in the bargaining unit. The Company's minutes of . the midterm bargaining sessions with the Union on its then proposed new restriction on the movement of personnel shows that the Company was aware that it would have an affect on employees in grade 35 and above and that "It will affect displacement rights on force reductions. "20 The above findings of fact further show that in the relative short and stable period of employment of 7 months since the new restriction on movement of personnel was put into effect there are a dozen or so known employees who have filed grievances and appear to have been adversely affected by the new restriction and an undetermined num- ber of employees who might have had some of the 50 pro- motions made in the period if these promotions had been made under the former plantwide seniority enjoyed by the employees prior to the new rule. In addition there are some 10 to 14 employees who appear to have been affected by the new restriction but who have not filed grievances. Consider- ing the brevity of the elapsed time and stableness of the employment situation therein, the Trial Examiner finds and concludes that this evidence shows strong indications that the new restriction has had a significant adverse impact on the employees in the unit. A much more widespread and serious impact on the unit would take place if the Company had another massive layoff due to lack of work such as it did in the summer of 1970 before the new restriction went into effect when more than 500 employees were laid off. In that situation the record shows a very strong potentiality that quite a number of senior employees in one manager's organization could be laid off while junior employees in equivalent positions are retained in the other manager's organization. In review the record shows that the collective-bargam- ing agreement here involved and its three predecessor agree- ments were all executed under the present reality of a single manager of the bargaining unit inextricably tied in to a plantwide movement of personnel. So firmly fixed and es- employee in one manager's organization for an open position in the other manager's organization than to train a new employee brought in off the street, especially in view of Corhss' admission that there is some degree of transferrable skills between the two manager 's organization. 20 See quotations from Company's minutes of the meeting of October 5, 1970, as set forth in the findings of fact above. tablished was this right of the unit employees to plantwide movement of personnel that the Company' s minutes of its initial negotiating session with the Union of October 5, 1970, shows that it recognized that its then proposed re- striction on the existing movement of personnel was a "ne- gotiable" item.21 But even before this when the Company first split the 200 manager's organization into two separate and independent manager's organizations on a temporary basis the Company recognized the inviolable nature of the preexisting plantwide movement of personnel by its abso- lute assurances to the Union that the movement of person- nel would not be disturbed by the temporary split. It was only after the Company decided to make the split perma- nent that it took its present position that the collective- bargaining agreement "required" it to prohibit the move- ment of personnel across manager's organizations. The fact that the Company for an undisclosed period of time prior to October 1, 1970, allowed a group of unit employees in a then separate and independent "714 Manager's Organiza- tion" the same free plantwide movement of personnel as was had by the unit employees in the "200 Manager's Or- ganization" shows that there is nothing in the collective- bargaining agreement according to the Company's own prior understanding of the document which "requires" it to restrict movement of personnel across manager's lines. As the record shows that virtually no economic benefits flows to the Company from its new restriction of the former plantwide movement of personnel, it appears that the Re- spondent is engaging in a mere power struggle with the Union for the right to impose the restriction as opposed to the Union's genuine concern that the vital interests of the unit employees in the matter of promotions, downgrading, lateral transfers, and layoffs be preserved as in the past on a plantwide basis for the remaining life of the collective- bargaining agreement. It is well established that a unilateral alteration by an employer of a bread and butter provision of a collective- bargaining agreement is a violation of Section 8(a)(5) and (1) of the Act. C & S Industries, Inc., supra, The Standard Oil Co., 174 NLRB No. 33; General Electric Co., 177 NLRB 401; Unit Drop Forge Division, Eaton Yale & Towne, Inc., 171 NLRB No. 73; Wisconsin Southern Gas Company, Inc., 173 NLRB 480; Brotherhood of Locomotive Firemen and Engine- men, 168 NLRB 677. The present case falls within the ambit of these Board decisions by reason of Respondent's unilat- eral alteration of the preexisting plantwide movement of personnel under article 28 of the collective-bargaining agreement during the life of the contract and is accordingly in violation of Section 8(a)(5) and (1) of the Act. However, it is found that Respondent's unilateral split of the "200 Manager's Organization" per se and without reference to the Company's followup restriction of the movement of personnel across manager's lines of authority, was within the Company's authority under article 2 on the "Manage- ment of the Business." Accordingly insofar as the complaint alleges a violation of the Act by reason of the Respondent's unilateral split of the "200" organization per se it will be dismissed. 21 The Company's minutes for that meeting shows that the Company, in answer to the Union's inquiry, "Do you feel this is a non-negotiable item [i.e., the Company's then proposed restriction on the existing plantwide move- ment of personnel]?" replied, "Obviously not or we would have just done it." WESTERN ELECTRIC, INC. 341 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. All hourly-rated production and maintenance em- ployees in the Manufacturing Division of Respondent's Shreveport, Lousiana plant, but excluding office and plant clerical employees, professional employees, guards, and su- pervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times herein material, International Brother- hood of Electrical Workers, Local Union No. 2188, AFL- CIO, has been the duly recognized collective-bargaining representative within the meaning of the Act of all employ- ees in the above-described appropriate unit. 4. At all times herein material there has been a collec- tive-bargaining agreement in effect between the Respon- dent and the Union covering the above-described appropri- ate unit, effective from July 24, 1969, until July 23, 1971. 5. Article 28 of the aforesaid collective-bargaining agreement by the intent of the parties thereto provides for plantwide movement of personnel for all employees in grades 35 and higher in the above-descnbed appropriate unit. 6. Respondent on November 3, 1970, unilaterally, with- out agreement with the Union, altered the plantwide move- ment of personnel provided for in said article 28 and thereby caused a unilateral change in the established work- ing conditions of the employees in the unit during the life- time of its collective-bargaining agreement with the Union. 7. The said unilateral change in the established working conditions without agreement of the Union indicates signif- icant adverse affects on the employees in the unit and car- ries with it a strong potential for future adverse significant affects on the unit employees. 8. The Union at no time waived its contractual right to retain the plantwide movement of personnel they have had under collective-bargaining agreements since 1966. 9. The Respondent has engaged in unfair labor prac- tices in violation of Section 8(a)(5) and (1) of the Act by its unilateral act of November 3, 1970, limiting the preexisting plantwide movement of personnel resulting in unilateral changes in established working conditions for the unit em- ployees. 10. The collective-bargaining agreement here involved does not provide for a deferral to final and binding arbitra- tion on the question of whether article 28 thereof on the "Movement of Personnel" gives the Respondent the right to initiate unilateral restrictions on the preexisting plantwide movement of personnel. 11. The contract dispute between the Respondent and the Union over the Respondent's right under said article 28 to limit the preexisting plantwide movement of personnel is not deferrable under the provisions of the collective-bar- gaining agreement to final and binding arbitration. 12. Respondent's unfair labor practices in unilaterally changing the established working conditions of unit em- ployees on such mandatory bargaining subjects as promo- tions, downgrading, and layoffs through restrictions on the preexisting plantwide movement of personnel is not subject to deferrals to arbitration under Board decision. 13. The described unfair labor practices are unfair la- bor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. IV THE REMEDY It having been found that the Respondent engaged in certain unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. It having been found that Respondent's action of No- vember 3, 1970, restricting plantwide movement of person- nel for employees in grade 35 and above is a violation of Section 8(a)(1) and (5) it will be recommended that the Respondent be ordered to retroactively revoke and rescind said rule as of November 3, 1970, and that it simultaneously restore as of the same date the plantwide movement of personnel thereto enjoyed by such unit employees. Under the November 3, 1970, restriction on the former plantwide movement of personnel some unit employees may have lost promotions, some may have suffered down- grading, some may have been denied lateral transfers, and some may have been laid off while less senior employees were retained, all of which adverse personnel actions they may not have suffered under the old plantwide movement of personnel. The identity of these employees and the extent of their detriment can only be determined in the compliance stage of this proceeding. As it is Board policy to restore the preexisting status to employees who have been adversely affected by an employer's unilateral action,22 it will be rec- ommended that the Company restore the status quo ante to all unit employees who have been adversely affected by the restriction on the former plantwide movement of personnel as determined in the compliance stage of this proceeding, to progress them to the status they would have had if there had been no change in the pre-existing free plantwide movement of personnel, to reinstate senior employees who have been laid off 23 while equivalent junior employees were retained, and to make all such affected unit employees whole for any loss they may have suffered by reason of the change, as prescribed in F. W. Woolworth Company, 90 NLRB 289, with interest at 6 percent per annum as required under Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner issues the following recom- mended:24 22 This will be in accordance with the Board's policy to restore the status quo ante to employees who have been adversely affected by an employer's unlawful unilateral action Beacon Journal Publishing Co, 164 NLRB 1187 and Supplemental Decision in 173 NLRB 1187 23 There have been no layoffs at the Company's plant between the effective date of the new restriction on the movement of personnel and the date of the trial herein some 6 months later . Compliance proceedings would show if there have been prejudicial layoffs since the teal. 24 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Section Continued 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Respondent Western Electric, Inc., its officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Making any unilateral changes in the preexisting plantwide movement of personnel at its Shreveport, Loui- siana, plant affecting promotions, downgrading, lateral transfers, layoffs, and any other terms and conditions of employment of its employees in the above-described appro- priate unit during the unexpired term of its collective-bar- gaining agreement with the above-named Union without first reaching agreement with the Union concerning such changes. (b) In any like or related manner interfering with, re- straining, or coercing employees at its Shreveport, Louisia- na, plant in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the policies of the Act. (a) Forthwith revoke and rescind, retroactive to No- vember 3, 1970, its unilateral decision and action of that same date limiting and restricting the movement of person- nel of unit employees in grades 35 and above at its Shreve- port, Lousiana, plant to movement solely within the manager's organization to which 1 they are attached. (b) Forthwith restore the rights of unit employees in grades 35 and above at its Shreveport, Louisiana, plant to the plantwide movement of personnel they had prior to November 3, 1970. (c) To forthwith restore to their status quo ante all of its Shreveport plant employees adversely affected by the Company's restriction on the former plantwide movement of personnel; to advance such employees to the status they would have had if there had been no curtailment of the Company's former practice of plantwide movement of per- sonnel; to reinstate senior employees who may have been laid off in one manager's organization while junior employ- ees in equivalent positions in the other manager's organiza- tion have been retained; and to make all such affected unit employees whole for any loss of pay they may have suffered by reason of the restrictive change on the former plantwide movement of personnel, in the manner set forth in the sec- tion of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pro- motion, downgrading, lateral transfer, and layoff records, all payroll records, social security records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this order and for the restoration of affected employees to their status quo ante under the original plantwide movement of personnel. (e) Post at its plant at Shreveport, Louisiana, copies of the attached notice marked "Appendix."25 Copies of said no- tice, on forms provided by the Regional Director for Region 15, after being duly signed by an authorized representative of 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. the Respondent, shall be posted by the Respondent imme- diately upon receipt thereof, and be maintained for 60 consec- utive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 15, in writ- ing, within 20 days from the date of the receipt of this Order, what steps the Respondent has taken to comply here- with.26 IT IS ALSO ORDERED that the complaint be dismissed inso- far as it alleges violations of the Act not specifically found. 25 In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 26 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read - "Notify the Regional Director for Region 15, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX, NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL immediately revoke and rescind as of this date our rule of November 3, 1970, restricting move- ment of personnel for employees in the bargaining unit in grades 35 and above to movement of personnel sole- ly within the manager's organization to which such employees are assigned and attached. WE WILL immediately restore as of this date to all of our employees in the bargaining unit in grades 35 and above the former plantwide movement of personnel they had prior to our November 3, 1970, restriction thereof. WE WILL NOT hereafter unilaterally, without the agreement of the Union, make any changes in the preex- isting plantwide movement of personnel or in any other way change the established working conditions of the employees in the bargaining unit during the lifetime of a collective-bargaining agreement with the Union. WE WILL forthwith restore to all of our Shreveport plant employees, adversely affected by our restriction on their former plantwide movement of personnel, the status they had before the restriction was put into effect and advance such employees to the status they would have had if the restriction had not been put into effect. WE WILL reinstate any senior employees who may have been laid off in one manager's organization while junior employees in equivalent positions have been re- tained. WE WILL make all unit employees adversely affect- ed by the aforementioned restriction on the preexisting plantwide movement of personnel whole for any loss of pay they have suffered by reason of the restriction. WESTERN ELECTRIC, INC. The bargaining unit is: All hourly-rated production and maintenance em- ployees in the manufacturing division of Western Electric, Inc., at its Shreveport, Louisiana, plant, but excluding office and plant clerical employees, professional employees, guards, and supervisors as defined in the Act. WESTERN ELECTRIC, INC (Employer) Dated By (Representative) (Title) 343 This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, T 6024 Federal Bldg. (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361.