Southwestern Bell Telephone Co.

SOUTHWESTERN BELL TELEPHONE COMPANY 43 Southwestern Bell Telephone Company and Communi- cations Workers of America, AFL-CIO. Case 17- CA-5615 June 26, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 25, 1974, Administrative Law Judge Jennie M. Sarrica issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting 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 at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order.' ORDER 20, presenting allegations that Southwestern Bell Tele- phone Company, hereinafter referred to as the Respon- dent, committed unfair labor practices within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. The Re- spondent filed an answer denying that it committed the violations of the Act alleged. Upon due notice, the case was tried before me at Kansas City, Kansas, on November 20 and 21. Representatives of all parties were present and participated in the hearing. Based on the entire record, including my observation of witnesses, and after due consideration of briefs, I make the following: FINDINGS AND CONCLUSIONS I JURISDICTION Respondent is a corporation engaged in the operation of facilities providing intrastate telephone service and inter- state long distance telephone service in the United States, and which are connected to interstate and international telephone lines of other telephone companies. In the course and conduct of its business operations, the Respondent's annual gross volume of business exceeded $100,000. Re- spondent admits, and I find, that Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent , Southwestern Bell Telephone Company, Kansas City, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ' The, Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F.2d 362 (C.A. 3) We have carefully examined the record and find no basis for reversing her findings Respondent's request for oral argument is hereby denied as the record, exceptions, and brief adequately present the issues and the positions of the parties DECISION STATEMENT OF THE CASE JENNIE M. SARRIcA, Administrative Law Judge: This is a proceeding under Section 10(b) of the National Labor Rela- tions Act, as amended (29 U.S.C. § 151, et seq.), hereinafter referred to as the Act. Based on charges filed on May 3, 1973,' as thereafter amended, a complaint issued September i Unless otherwise indicated, all dates are in 1973. II THE LABOR ORGANIZATION Respondent admits, and I find, that the Charging Party, Communications Workers of America, AFL-CIO, herein- after called the Union, is now, and has been during all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICE A. The Issues The asserted Section 8(a)(1) violations herein are based on allegations that on two occasions Respondent suspended employee Larry Tripp, a cable splicer, thereafter reclassified him as a lineman, and failed and refused to reinstate him to his former position as cable splicer, all because Tripp engaged in the protected concerted activity of asserting rights as a member of the collective-bargaining unit and under the collective-bargaining agreement. The evidence presented in support of these allegations raise the following questions: 1. Whether the so-called Smith-Hubbard oral agreement was part of, or an adjunct of, the existing collective-bargain- ing agreement. 2. Whether Tripp was seeking to invoke the provisions of that agreement. 3. Whether under the provisions thereof or under Section 7 of the Act Tripp had a protected right to refuse to carry out a job assignment. 212 NLRB No. 10 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Whether Tripp was, in fact, suspended. B. Agreements between the Parties The Respondent and the Union are parties to successive collective-bargaining contracts and certain other agree- ments under which their bargaining relationship is facilitat- ed. The current "Agreement of General Application" and the 1971 "Departmental Agreement" covering the employ- ees here involved both carry a term of from July 18, 1971, until July 18, 1974. Both specifically superseded certain specified prior agreements and continued in effect certain other specified agreements.2 The general agreement con- tains grievance and arbitration provisions which allow spe- cial handling of complaints or grievances involving conditions which in the opinion of the Union constitute "serious and immediate threat to the health or safety of an employee ..." 3 and the departmental agreement contains language which suggests that procedures other than the for- mal ones set forth therein may be used to dispose of griev- ances.4 During the early part of 1969, when Donald L. Smith was brought by assignment to Kansas City, at first as area man- ager and later as vice president in charge, he engaged in several conferences with Stanley G. Hubbard, then area director, and currently administrative assistant to the vice president of the Union for the district involved. As a result of these conferences they devised, agreed to and instituted a procedure, hereinafter referred to as the Smith-Hubbard agreement, under which immediate and expedited evalua- tion would be made of the safety factors involved in a job assignment whenever the employee declined to carry out the assignment because he believed that hazardous conditions made it unsafe for one person to work the job. This modus operandi for on-the-spot handling of "one man in a man- hole" complaints was an oral one but both Smith and Hub- bard, as witnesses herein, were in agreement as to its content 5 and Intent.' Employees were advised of this agree- 2 Notable in particular is art XIV of the departmental agreement 3 Art IV, unusual grievances Art. XIII, secs 2 , 3, and 8 Sec 8 reads as follows Any complaint which is not delivered in writing by the Union as speci- fied in Sections 2 and 3 above shall be handled by the Company as an informal complaint on an informal basis , provided, however, that noth- ing in this Article shall preclude the Union and the Company from using any other mutually satisfactory and proper method of presentation, discussion and disposition of grievances A June 13, 1969 intra-union memorandum, written by Hubbard and received in evidence, was declared by Smith, with one caveat not relevant here, to constitute an accurate representation of their oral agreement This memorandum reads in part as follows Subject One Man In a Manhole-Local 6330-Arbitration Request- Request for Strike Approval It was agreed, however, if a man believes he has a hazardous job that cannot be worked safely by one person he is not to start the job but to call his supervisor immediately They should discuss the job and try to find a mutual solution If it is agreed thejob is unsafe, the Company will take whatever steps are necessary to bring about correction If they cannot mutually agree on a solution, the job is not to be started and should be immediately moved up for review by first the District Con- ment and the procedure Involved? C. Prior Applications of the Smith-Hubbard Agreement The procedures thus established have been applied on a number of occasions since they were instituted, with various results. On the prior occasion when Ernie Collier was his foreman, cable splicer Larry Tripp, raised safety questions about working alone in the same manhole involved herein without voice contact with someone on the outside. On that occasion the Union steward and the Local president came to the manhole and discussed it with Collier who then as- signed another man to work with Tripp. Three other instances involving the application of the Smith-Hubbard agreement each of which reached the re- spective levels of Simth and Hubbard, include incidents occurring both before and subsequent to the execution of the current collective-bargaining agreements. In none of these instances was the complaining employee suspended or struction Foreman, secondly, the Division Construction Foreman, third- ly, the Division Plant Superintendent, forth the General Plant Manager, and fifth the Vice-President and General Manager If one of the supervi- sion levels mentioned is not available, it shall be moved right on to the next level The job is supposed to be reviewed by persons with the titles mentioned, and this work shall not be delegated to others It is believed that by expeditions handling all reviews necessary can be completed within a few hours or at least in a single day. This plan was discussed with Frank Mailloux who in turn discussed the matter with John Gieseke, and all are agreeable that this was a satisfactory settle- ment and arrangement The same day then I called Robert Pollock and told him to cancel our request for arbitration on this matter 6 The record establishes that neither Smith nor Hubbard were parties designated to negotiate or amend the existing collective-bargaining agree- ments, and it was not their intention to do so They viewed their efforts solely as a method for handling safety issues promptly and expeditiously, without loss of time, work and pay Both recalled they agreed there was to be no disciplinary action and during the operation of the agreement both antici- pated that through this procedure the matter could be disposed of within a few hours or at most a 24-hour period without developing into a grievance dispute Both were aware that their agreed-upon procedure would not correct every situation but they were concerned that more than one person should evaluate a claimed hazardous condition and this should be done by the individuals designated, bypassing if necessary, but not delegated except at their respective levels when either was not immediately available Hubbard indicated that the Union was trying to end the suspension of employees in these circumstances on the sole judgment of the first line supervisor He admitted there was no discussion of what the employee was to be doing in the interim but observed that while the procedure was being carried out the manhole would have to be opened for inspection and the area blocked off so, reasonably, the employee would be present tending to these matters Melvin Kleypas, division plant superintendent who was briefed on the agreement immediately after accord was reached and was involved in its application, also indicated his evaluation that during the implementation of these procedures there would be no question of the status of the employee involved because inspecting officials would be there much of the time and the employee would not be in the manhole alone He emphasized the impor- tance of an employee remaining at the manhole so that he could demonstrate the claimed hazard and be present to participate in testing the equipment 7 The August 1969 meeting notice by Local Union President John Gieseke, advised members that There is an agreement that no one will be sent home for refusing a work assignment because of S FETY and a procedure has been set up to de- termine the merits of each instance This was reached by Mr Smith, Vice President for the Company and Mr Hubbard for the Union The matter has to be more fully discussed at the meeting SOUTHWESTERN BELL TELEPHONE COMPANY 45 any disciplinary action taken. In one the employees (this involved more than one manhole with an employee assigned to each) continued to perform the job while the Smith- Hubbard procedures were being implemented. When the employees were not satisfied with the changes offered, and the procedures had been exhausted, they left and were placed on unexcused absence while the management per- sonnel performed the work. In another which reached the same stage without satisfaction, a union employee was sta- tioned outside the manhole while the job was completed. In still another, employees were on unexcused absence after they left the jobsite, but returned and completed the job after a union employee was posted outside the manhole to maintain a watch while the work was being performed. D. The Events Involved Credited testimony establishes that on April 16 Tripp, who had been employed by Respondent as a cable splicer for approximately 9 years, was teamed with cable splicer Gary Wheelhouse, performing work identified as "tagging pairs" on a 600-pair open splice, while activating a new line of cable in a manhole outside Respondent's Antioch office utilizing what is known as an automatic tagging machine located inside the office some 50 to 75 feet away. When they reported to their work dispatch center on April 17, their immediate supervisor, Cable Splicing Foreman Norman L. Purdy, who made the work assignments, called Wheelhouse into the office. Tripp proceeded to prepare his truck for departure. In the office Purdy advised Wheelhouse that he and Tripp were to continue on the same job they had worked the day before until they completed 100 pairs at which time Wheel- house was to proceed to another job assignment and Tripp was to remain in the manhole and continue to work on the open splice cable.8 When Wheelhouse told Tripp about their work assignment for that day, Tripp voiced to Wheelhouse concern about the safety of working alone in the manhole, and together they sought out the Local Union Steward, William Hufford. The three proceeded to the office to dis- cuss the matter with Purdy. Tripp could not recall the exact words that Hufford said to Purdy, but testified that in substance Hufford said they would not work the manhole as he had assigned it, whereup- on Purdy asked Tripp and Wheelhouse to proceed to their work assignment, and they left.9 Purdy testified that when 8 Purdy's demeanor as a witness, his reluctance to supply candid observa- tions regarding the type of work most frequently assigned by him to seven cable splicers, and certain inconsistencies in his testimony impressed me unfavorably. Therefore, I have accepted his version of events only to the extent that it is consistent with the testimony of credible witnesses or stands uncontradicted. Wheelhouse was not presented as a witness. Therefore, I accept Purdy's testimony that when he gave the assignment Wheelhouse objected, commenting "that will mean one man in the manhole " Purdy stated "Yes, it will." Wheelhouse said, "You will have to talk to Hufford about that." Purdy replied, "No, I won't have to talk to Hufford about that." Wheelhouse then commented, "Maybe Hufford will have to talk to you about it," and Purdy observed, "That is his privilege." I do not credit Purdy's testimony that he then went out to Tripp's truck and told him personally of the assignment and that Tripp said, "that will mean one man in the man- hole." Instead I credit Tripp's denial that Purdy came to the truck and spoke to him about the assignment on this occasion. the three entered his office, Hufford said, "What is this I hear about working one man in a manhole" and he replied, "Yes, that is the assignment for the day." Hufford said he would have to contact the Local Union President, Gieseke, about this and Purdy indicated this was all right with him. Purdy testified that Hufford did not say why he had to talk to Gieseke and Purdy did not ask.1° They did not use the automatic tagging machine but in- stead Wheelhouse did the tagging in the office while Tripp handled the adjustments in the manhole. This is considered voice contact and acceptably safe. When they had complet- ed 100 pairs Wheelhouse and Purdy came to the manhole and, at Purdy's direction, Tripp helped Wheelhouse load his equipment on his truck. When Wheelhouse left the site, Tripp told Purdy that he did not want to work in the man- hole by himself. Purdy replied, "No one wants to work a manhole by himself, but there are some things that we don't want to do that we have to do." Tripp repeated his protest and Purdy stated, "that is your job assignment. Are you refusing your job assignment?" Tripp replied, "Under these conditions I am refusing my job assignment. I would like to have union representation." Purdy said, "You can have all the union representation you want. Get your personal gear off the truck." Tripp repeated his request for union repre- sentation but Purdy made no reply, so Tripp removed his personal property and locked the truck, closed the manhole, and accompanied Purdy to the conference room at the work dispatch center. There Tripp again stated his request for union representation but, without responding to this, Purdy directed Tripp to turn over his hard hat, safety gauges, ID card, and truck keys. Tripp complied. Purdy checked the time, then told Tripp, "As of now you are suspended; when you can carry on a normal work assignment, then you can call me and come back to work." Tripp then left the Respondent's premises." Purdy admitted he did not ask Trip why he did not want to work this manhole by him- self. 2 That evening both Tripp and Hufford reached Gieseke 9 In this respect Purdy testified that he and Hufford followed the other two out of his office-they left in their trucks, Hufford went to the telephone and he proceeded to his vehicle, thence to a meeting he was to attend in the central office At another point in his testimony Purdy testified that after Hufford and the cable splicers spoke with him he called his supervisor, Richard W. Wright Wright verified he received a call from Purdy around 8 a.m reporting his confrontation with Hufford and the two splicers Wright testified he asked whether they had given safety as a reason for refusing the job and Purdy had stated they only mentioned "one man in a manhole." 10 On cross-examination Purdy testified that he could not remember the exact words he used on May 17. However, as Tripp, the only other witness to testify with rpect to this confrontation could remember only the charac- ter of the conversation which is not clearly inconsistent with Purdy' s testimo- ny, I accept the latter as a reasonable facsimile of what occurred. 11 Purdy's version does not differ significantly from that of Tripp, supra He related that he told Tripp, "You refused yourjob assignment. I have no alternative but to suspend you," then he requested delivery of the compa- ny property and ID card, which is normal procedure when suspending an employee. 1 Wright testified he received another call from Purdy advising that Tripp had worked up to the point when Wheelhouse left, then refused to perform the balance of the assignment. Wright specifically inquired and was told by Purdy that the latter still had been given no reason other than that Tripp did not want to work in the manhole by himself Wright asked Purdy details about the condition of the manhole involved. Wright reported the matter to his superior who directed him to inspect the hole for safety. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by telephone and informed him of the occurrences of that day. Early the next morning Gieseke called Purdy. Gieseke testified he asked Purdy why he had not afforded Tripp union representation and why he had not followed the Smith-Hubbard agreement 13 that no one was to be sus- pended prior to union-company discussions regarding the safety of the manhole. According to Gieseke, Purdy replied that he was not aware of the Smith-Hubbard agreement, but that he told Tripp he could not come back to work until he accepted this job assignment. Gieseke advised that he was going to contact Wright." When Gieseke met with Wright around 8 a.m. on April 18, he raised the same questions he posed to Purdy. Wright did not reply to his questions directly but offered to visit the manhole with him. Gieseke declined. The two did discuss various conditions and characteristics of that manhole and disagreed as to its safety for a one-man assignment. Wright said he did not believe there was a safety problem but that he was going to go to the manhole and inspect it.15 Wright told Gieseke that Tripp had a job-all he had to do was work that assignment. Gfeseke placed a call to the next supervisor in line, Charles Cunkler, division construction superintendent,16 then contacted Union Area Director Jack C. Lovett 17 and the next higher company official, Kleypas. Kleypas testified he did not invite Gieseke to inspect the manhole because Gieseke had declined the invitation of Wright and Cunkler, and had emphasized the representa- tion complaint rather than safety. He recalled that Gieseke did, however, refer to some communication problem and the blower system, and that they discussed various asserted- ly unsafe features of this manhole. It was in this conversa- tion that Kleypas first learned that a suspension was involved. Therefore, after he inspected the manhole, Kley- pas questioned Purdy and Wright concerning the suspen- sion and any denial of union representation. Later Kleypas 13 Described more fully, supra There is some indication that although the procedures established by this agreement were well known, it was not neces- sarily by this label The local union publicity had referred to it as relating to "Safety " 14 On direct examination by Respondent, Purdy testified Gieseke called the next morning and advised he was going to contact Wright about the matter On cross-examination Purdy indicated that he could not recall what was said by Gieseke in this telephone call Still later he denied that Gfeseke mentioned safety or asked him to implement the Smith-Hubbard agreement I credit Gieseke 15 Wright testified that in their discussion Gieseke brought up the Smith- Hubbard agreement and asked why Tripp had been suspended before the Smith-Hubbard procedure had been followed, and that he stated no one had asked that the Smith-Hubbard procedure be carried out Wright indicated that Gieseke emphasized denial of union representation rather than any specific safety factor 16 Geiseke's recollection was that Cunkler was out of town Cunkler testi- fied he received a long-distance call from Wright advising of Tripp's suspen- sion and he directed Wright to investigate the safety of the manhole 17 Lovett in turn contacted Smith who, on hearing of the claimed failure to implement the Smith-Hubbard agreement, advised that he was unaware that Tripp had been suspended Smith promised to investigate Later Chester L Todd, general plant manager, called Lovett and advised that the Smith- Hubbard agreement had not been implemented because there was no claim concerning safety and that Hufford had been present when Tripp was sus- pended Todd recalled the conversation with Lovett. brought about by a call from Smith on April 18 He agreed with the content of that conversation related by Lovett and further testified that it was not until a meeting on April 23 that a union representative specifically asserted and indentified the safety problems involved in the Tripp case called Gieseke to advise that he had found nothing wrong at the manhole. On instructions from Gieseke, Tripp reported to work on Monday, April 30.18 Purdy came to the truck and gave Tripp the same job assignment as had been given to Wheel- house on April 17. Tripp told Purdy he did not want to work that manhole by himself. Purdy asked Tripp to give him a good reason why and Tripp told him it was unsafe. Purdy asked him what about the manhole was unsafe and Tripp specified certain features and conditions. Tripp then con- tacted Gieseke reporting what had occurred and asked whether he should refuse the job at that time. Gieseke told him to go with Wheelhouse to the job and proceed to work to the point that Wheelhouse left the site. Tripp did so. When Wheelhouse left for another job Hufford was at the manhole and Gieseke arrived shortly thereafter. Purdy and Wright also came to the manhole. Tripp told Purdy he did not think it safe for him to work in that manhole alone. He was told this was his work assignment and he again refused it. Purdy did not at this point ask him why he thought it unsafe. The Company placed a wooden ladder into the hole (one of the safety objections Tripp had raised to Purdy that morning). Tripp indicated he still believed the manhole un- safe to work alone. Wright told Tripp he was placing him "in limbo"-on the payroll but not paid. Gieseke requested that Tripp be excused "on union business." Wright agreed. Tripp did not work for the remainder of the week.19 Smith- Hubbard procedures were followed on April 30 and May 1, with subsequent continuing company-union discussions. Tripp returned to work on Monday, May 7, at Gieseke's direction. They, together with Wright and Kleypas, met in the conference room where management officials asked Tripp if he would work the manhole as assigned. They gave him the choice of doing so or becoming a lineman. Tripp accepted lineman work 2° E. The Contentions Presented The General Counsel's contention is that, in refusing to perform the assignment, Tripp was engaged in an effort to initiate the provisions of the Smith-Hubbard procedure, an adjunct of the applicable collective-bargaining agreements between the Union and the Respondent, and that in so doing he was not acting solely on his own behalf but for the mutual aid and protection of other employees; that in fact, Tripp did not act alone but was, from the outset, joined by fe It is stipulated that local union members engaged in an unauthorized work stoppage and picketing which brought about discussions and eventual agreement that all employees including Tripp would return to work on April 30 19 Company records received in evidence show Tripp was carried on "unexcused absence" for the remainder of the week Wright explained his "in limbo" statement as attempting to explain that Tripp was not suspended but in an unpaid, unexcused absence status from which he could return any time he wanted to 20 This work paid less than he earned as a cable splicer In July, Tripp was promoted to exchange repairman through successful bidding procedures When Tripp was informed of exchange repairman duties at an interview by Management Officials Don Kilmore and M J Treadwell, he was told that an exchange repairman might have to go into a manhole by himself Tripp told them, to his knowledge each hole is different and he would go into a manhole by himself if he felt it was safe, a decision which he felt should be a joint decision Treadwell told Tripp he would not have to work alone in an unsafe manhole but that safety was a management decision SOUTHWESTERN BELL TELEPHONE COMPANY 47 employee Wheelhouse and Union Representative Hufford in invoking the agreement. Therefore, the General Counsel asserts that by suspending Tripp for his refusal to carry out the job assignment, on April 17 and on April 30, and by demoting Tripp on May 7, Respondent interfered with his right to engage in protected concerted activity and demon- strated to other employees the futility of attempting to im- plement, or assert the protection afforded by, an existing contract. Respondent contends that the Smith-Hubbard procedure is not a part of the collective-bargaining contract between the parties, as it was never reduced to writing and was formulated in 1969 before the latest collective-bargaining agreements of 1971, which are explicit in identifying the prior agreements remaining in effect. Respondent argues that as the Smith-Hubbard agreement was merely an "infor- mal practice," failure to follow its procedure cannot become the basis for an unfair labor practice finding.21 Further, Respondent contends, that Tripp's refusal to perform the work assigned was for his own individual motive and per- sonal benefit and that Tripp hadino reasonable basis for a belief that unsafe working conditions existed; therefore, Tripp was engaged in unprotected activity for which he was lawfully suspended.22 Finally Respondent contends that the current agreement contains provisions for the resolution of disputes and that some five grievances related to various phases of the dispute arising out of the Tripp incident were filed and considered through certain stages of the contract procedure before they were abandoned by the Union; therefore, the issues should be considered as having been decided under the grievance procedure and binding on the Charging Party. F. Findings and Conclusions With respect to whether there should be deferral of the issues raised herein to the contract grievance and arbitra- tion procedure, it is noted that Respondent's only conten- tion is that the matters were covered in grievances which have been filed and, thereafter, forfeited by failure of timely appeal; therefore, those procedures bar the Board's consid- eration of the issues and any unfair labor practice finding based on the conduct involved herein. Respondent does not request that the Union now be required to pursue the griev- ances through arbitration. Respondent's contention that the filing of the grievance which was abandoned by the Union before exhaustion of the contractual steps therein bars this proceeding is clearly without merit. The Board's practice of deferral is a policy 21 Respondent cites no authority for this argument, nor does the General Counsel cite specific authority for his contention that the Smith -Hubbard Agreement is an adjunct or part of the collective-bargaining agreement af- fording the same blanket of protection. 22 Respondent also asserts that Tripp was not suspended (action categor- ized as disciplinary in nature) either from April 17 to 30 or May I through 4 because he was told that he could return to work at such time as he so desired, and because from May I through 4 he was earned on the payroll as being on unexcused absence. Respondent argues that an employee's vol- untary removal of himself from the performance of his assigned job cannot be found to constitute a disciplinary suspension . There is no record support for the assertion that there was no other cable splicing work available for Tripp. - matter based upon its determination that such action will further the policies of the Act and the national policy. When the agreed upon procedures for settling labor disputes have been exhausted, the Board will then consider whether the proceeding itself meets the Board's standards of fairness, whether the result reached is repugnant to the objectives of the Act, etc., and on such -bases determine whether it will dismiss the unfair labor practice proceeding.23 But where the contract procedure has not been exhausted, the Board will evaluate the circumstances to determine whether it will withhold decision on the merits while the parties pursue their agreed upon method for settling disputes. 4 In circumstances where no party is urging deferral by the Board while they pursue their contract procedures, the Board has regarded deferral as inappropriate 25 Further, the Board has held that where the alleged unlawful conduct involves discipline for invoking the very grievance proce- dure the Respondent would have the Board defer to, the Board will not entrust the matter to that forttm.26 Finally, it is unmistakably clear that Respondent is not tendering grievance-arbitration procedures as an alternative method of resolving the issues on their merits, but would on the contrary resist any recourse to such procedures as having been debarred by the time limitations specified in the con- tract 27 These considerations lead me to conclude that this is not a case in which the Board would apply its deferral policy. Accordingly, I also -find it unnecessary to de- termine, under the arbitration clause of the contract which appear to cover some types of grievances, leave some types to the election of the Union, and does not cover still other types, whether or not the issues herein would be subject to arbitration or whether that is an issue which should be deferred to an arbitrator under the terms of the contract. Although Tripp was the only individual directly affected by the immediate assignment he cannot be said to have been acting solely on his own behalf for his personal benefit 26 On the contrary, I find that both in his initial complaint in concert with Wheelhouse, voiced through Union Steward Hufford, and in his protest to Foreman Purdy at the man- hole, Tripp was attempting to invoke the Smith-Hubbard procedure. The fact that Purdy, initially, may have been ignorant of the existence of such procedure does not deprive the employee of any protection flowing therefrom. More- over, I cannot conclude that Purdy was, in fact, ignorant of that procedure at the time he administered the suspension. For, admittedly, Purdy had, earlier that day, reported Hufford's protest to his immediate supervisor, Wright, who raised the question of whether a safety factor was in- volved.29 As the complaint concerning the assignment was 23 See Spedberg Manufacturing Company, 112-NLRB 1080, and subsequent cases. 24 Titus-Will Ford Sales, Inc., 197 NLRB 147. See Collyer Insulated Wire, etc, 192 NLRB 837; National Radio Company, Inc., 198 NLRB No. 1. 25 See Nedco Construction Corp., 206 NLRB No 17; Salt River Valley Water Users Association, 204 NLRB No 26. 26 See North Shore Publishing Co 206 NLRB No. 7; Joseph T. Ryerson & Son, Inc., 199 NLRB 461; Gateway Transportation Co., 193 NLRB 47. 27 See Pate Manufacturing Co, 197 NLRB 793. 28 Cf. C & I Air Conditioning, Inc, 193 NLRB 911, cited by the General Counsel and the decision of the Circuit Court of Appeals for the Ninth Circuit, denying enforcement on precisely this factual basis, 486 F.2d 977 (1973). Also cf Snap-on Tools Corp., 207 NLRB No 31. 29 Nor do I find merit in Respondent's contention that management offi- (Continued) 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD initially registered in conjunction with Wheelhouse and through the union steward, there can be no question but that the protest concerning the assignment was concerted and, since it was not in conflict with the Union's position in administering the current contract,30 an attempt to com- pel unlawful conduct,31 or a violation of that contract,32 it was protected. It is clear from the past applications of the Smith-Hub- bard Agreement that the parties regarded this procedure as a desirable one in handling safety issues as these arose. By applying the Smith-Hubbard procedures both before and after the most current contract, the parties have demonstrat- ed that the 1971 contract did not displace the procedure even though it was not among those agreements listed as being continued in effect. Consequently, it might be said that this agreed upon procedure become the modus operandi through which the parties administered parts of their con- tract, specifically grievances at the informal stage involving issues of safety in `.one man in a manhole" assignments. As such, I find that the Smith-Hubbard agreement was an ad- junct of the contract, not as an addendum thereto, but as an accepted method and a preliminary step in administering that agreement.33 It would follow that an employee who seeks to invoke such procedure by voicing a complaint is thereby instituting a grievance under the collective-bargain- ing agreement and is engaging in protected concerted activi- ty.34 However, the extent to which employees may go in invok- ing rights under their contract is circumscribed by various considerations including agreement by the parties them- selves through no-strike clauses. The Second Circuit Court, in Interboro, supra, pointed out that the unfair labor practice proceeding is "to enforce the right of an employee to present complaints . . in connection with the agreement, not to enforce the agreement itself " When Tripp refused to per- form the work assignment did he step over this boundary? The answer to this question would seem to be governed by the bargaining agreement and any special circumstances present. The General Counsel has not claimed that Tripp was protected in refusing to undertake the work as assigned because of "abnormally dangerous conditions" under Sec- tion 502 of the Act and has not attempted to establish the existence of such conditions through objective standards.35 Respondent now argues that Tripp had no reasonable basis for believing that the manhole was unsafe But an cials thought this was an attempt at "featherbedding" even though there may have been a prolonged disagreement between the parties concerning compa- ny practice of assigning one man in a manhole and the Union may be pressing its position on that issue in legislative and governmental administra- tive areas 70Cf The Emporium, 192 NLRB 173 71 Cf ABC Prestress & Concrete Co, 201 NLRB No 119 32 Cf Alliance Manufacturing Co, 200 NLRB No 112 33 See Bunney Bros Construction Company, 139 NLRB 1516 34 See Interboro Contractors, Inc, 157 NLRB 1295, enfd 388 F 2d 495 (C A 2, 1967), Hartwell Company, Inc, 169 N LRB 412, 414-415, Hunter Saw Division ofAsko, Inc, 202 NLRB No 30, Chas inc Co, 203 NLRB No 82, Town House Restaurant, 203 NLRB No 134 35 See Redwing Carriers inc , el al , 130 NLRB 1208 Therefore, at the hearing, testimony bearing on objective standards of safety in the manhole offered by Respondent was rejected See Anaconda Aluminum Company, 197 NLRB 336 employee's reasonableness is not the measure of his protec- tion.36 There must be bad faith, knowledge of falsity, intent to harass, or similar improper motives attributable to the employee before he must suffer loss of his protection in concerted activity,37 and none of these are present here.38 Respondent also attempted to establish that Tripp had not invoked the Smith-Hubbard procedure because both he and Hufford before him failed to specify a particular condi- tion or characteristic of the manhole that made it unsafe for a cable splicer to work in it alone without at least voice contact with someone outside . I reject this contention. It is clear from the record that the safety factor was the one remaining issue of the "one man in a manhole" problem that was still being dealt with by the parties on a day-to-day basis within their bargaining relationship. Significantly, each management official, as he was alerted to the "one man in a manhole" dispute either questioned what safety factors were being raised, took the initiative to go and in- spect the manhole for safety, or ordered a subordinate to do so. I conclude that the safety issue and the procedures desig- nated were adequately identified by Tripp and Hufford and understood by management officials. As I have previously indicated, even Purdy was made aware that a Smith-Hub- bard problem had been raised, at least before he suspended Tripp, when his own supervisor raised the safety question to him. I can only conclude that Purdy and Wright were "shadow boxing" with "magic words," something that the originators of the procedure specifically eschewed as con- trary to their intent "to solve problems, not to create them." This jostling with semantics was further aggravated by Purdy's failure immediately to grant Tripp's request and summon a union representative to the manhole when Tripp first indicated he did not wish to enter the manhole alone after Wheelhouse was sent away. Had Purdy called a union representative to the scene, or at least permitted Tripp to do so, the emergency procedure could have been under way immediately. By taking the steps that he did to remove Tripp from the site, and by proceeding to suspend Tripp, Purdy effectively foreclosed immediate and expedited ap- plication of the Smith-Hubbard procedure, contrary to its intent and purpose.39 36 N L R B v Washington Aluminum Company, 370 U S 9, 16 (1962) 37 See Detroit Farming, Inc, 204 NLRB No 30 Accordingly, I reaffirm the ruling that I did not deem myself called upon to evaluate the safety of the manhole Therefore, testimony relating to specific safety features mentioned at various stages of the discussions by union and company officials are omitted, it being sufficient to note that safety was a subject of discussion and infer that participants were aware that the Smith-Hubbard safety procedures were at issue 3E 1t has been suggested by some company officials that Tripp must have developed some phobia about entering a manhole alone and, indeed , assert- edly on this basis management concluded that Tripp could no longer carry out his duties as a cable splicer and offered him a lob which carried a lower rate of pay Yet the testimony is uncontradicted that on a prior occasion at this very manhole , Tripp questioned its safety for a one-man operation and successfully invoked the Smith-Hubbard procedure This experience alone would lend support to Tripp's conviction that the manhole was unsafe to work alone, and underscores the sincerity of his motive 39 I do not view consideration of the timing of the request for a union representative as a circumscription of the General Counsel's refusal to issue a complaint based upon the alleged refusal of union representation In my view these requests by Tripp were part and parcel of his attempt to invoke the Smith-Hubbard agreement , that being the first step in such procedure It is noted that the 1971 general agreement provides , inter aha, that the Union may not order or sanction a work stoppage because of a grievance or SOUTHWESTERN BELL TELEPHONE COMPANY Finally, I reject Respondent's contention that Tripp was not suspended from April 17 to April 30 as contrary to the fact. Purdy specifically testified that he suspended Tripp on April 17, following the normal procedures required for such action, and set the conditions under which the suspension could be lifted. The fact that Tripp could have terminated the suspension by capitulation does not change the discipli- nary nature of the action taken by Purdy. Nor does the fact that the suspension was later terminated by higher Respon- dent officials remove the fact that the suspension was ad- ministered. As I have found that Tripp was engaged in pursuing a complaint or grievance in accordance with the agreed-upon procedures under the applicable collective-bargaining agreement, that he was thereby engaged in protected con- certed activity, and that he was suspended therefore on April 17, I conclude that Respondent thereby violated Sec- tion 8(a)(1) of the Act. In agreement with Respondent, however, I find that Tripp was not under suspension during the period from May 1 through 4, but was on "unexcused absence," the status normally assigned employees who refused to work a job assignment for safety reasons and absented themselves during or after the application of the Smith-Hubbard proce- dure. The evidence establishes that on April 30, when Tripp returned from suspension and was given the same assign- ment as that made on April 17, he again protested the nature of the assignment and at the appropriate juncture refused to carry it out at which time the Smith-Hubbard procedure was instituted and the appropriate union and company rep- resentatives followed it through as contemplated. Tripp's "unexcused absence" status during the time he was not present or not on duty at the manhole was consistent with past practice in the application of this procedure. The char- acterization of his status as "in limbo" by a management official does not alter this conclusion. Finally, although Tripp's demotion to lineman grew out of his invoking the Smith-Hubbard agreement, I do not find sufficient evidence herein to establish that it was in retalia- tion for his having exercised protected rights. The demotion took place at the final conference of the union and company officials in the Smith-Hubbard procedure and the issues between them had not been resolved to Tripp's satisfaction. Presumably the next step would be the filing of a formal grievance. The Company was not obligated to assign Tripp to other cable splicing work while he was refusing to per- form the cable splicing work previously assigned him. That would require capitulation by the Company on the issue before them. The Company gave Tripp the choice of per- forming the assigned work or accepting work as a line- man-a lower paying job not requiring manhole work. Theoretically, Tripp could have chosen to continue as a cable splicer and could have remained on "unexcused ab- complaint which is subject to the grievance procedure while the matter is being processed. On the other hand the undisputed procedure established in the Smith-Hubbard agreement contemplated that the assigned employees would not undertake thejob assignment being questioned on safety grounds and would not be suspended for such refusal. This factor alone makes the no-strike contract provision inapplicable to Tripp's refusal to undertake the job assignment. 49 sence" throughout the processing of the formal grievance. He accepted the lineman work. In these circumstances I find no violation in Tripp's demotion to lineman as alleged in the complaint. Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employ- ees in the manner found herein, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent did not violate the Act in any other manner alleged. THE REMEDY For the purpose of effectuating the policies of the Act, it will be recommended that Respondent be ordered to cease and desist from engaging in the unfair labor practices found, and from in any like or related manner interfering with, restraining, coercing, or discriminating against its em- ployees. Further, it will be recommended that Respondent be or- dered to expunge the suspension from Larry Tripp's record and to make Tripp whole for the loss of earnings suffered because of and for the period of Respondent's payment to him of a sum of money equal to that which he normally would have earned, absent the suspension, with backpay and interest computed under the established standards of the Board, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of facts, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER40 The Respondent, Southwestern Bell Telephone Compa- ny, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Suspending Larry Tripp or any other employee for invoking the grievance and complaint procedures of the existing collective-bargaining agreement. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed under Section 7 of the National Labor Relations Act, except to the extent such rights may be affected by an 40 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 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. 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Expunge the suspension from the record of Larry- Tripp and make him whole for any loss of earnings he may have suffered by reason of the suspension, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, and reports, and all other records necessary for determination of the amount of backpay due under the terms of this recommended Order. (c) Post at its places of business, in the Kansas City, Missouri, area the attached notice marked "Appendix." 41 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in con- spicuous places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 17, in writ- ing, within 20 days from the receipt of this Order, what steps Respondent has taken to comply herewith. 41 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the Order of the Board and abide by the following: WE WILL NOT suspend employees because they have engaged in concerted activities for their mutual aid or protection by invoking grievances and complaint pro- cedures of our collective-bargaining agreement. WE WILL remove the suspension from the record of Larry Tripp and give him lost pay, with interest. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights. All employees are free to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Our employees are also free to refrain from any or all such activities, except to the extent that such right maybe affected by the provisions in Section 8(a)(3) of the Act. Dated By SOUTHWESTERN BELL TELE- PHONE COMPANY (Employer) (Representative) (Title) 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, 616 Two Gateway Center, Fourth at State, Kansas City, Kansas 66101, Telephone 816-374- 4518.