Rust Craft Broadcasting of New York, Inc.

RUST CRAFT BROADCASTING OF NEW YORK, INC. 327 Rust Craft Broadcasting of New York , Inc.' and Na- tional Association of Broadcast Employees & Tech- nicians, AFL-CIO. Case 3-CA-6221 June 29, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On February 11, 1976, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and the Respondent filed a brief in support of the Decision of the Admin- istrative Law Judge. 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, as herein modified, and to adopt his recommended Or- der. The record shows that in September 1975 the Re- spondent, without notice to the Union,2 installed timeclocks which unit employees were required to use in recording their time at work. Previously, em- ployees were required to enter their working time manually on printed cards which contained separate columns for each day of the week and, within each column, two boxes apiece for morning, afternoon, and overtime hours "in and out." Each employee was required to total his hours daily and enter his total hours over his signature at the end of each week. However, as the evidence shows, for some time be- fore September 1975 a number of employees had fall- en into the habit of simply transcribing their sched- uled hours of work onto the timecards at the end of the week. For example, in at least one instance, a timecard showed only the total number of hours worked, including overtime, with no entries for time of arrival and departure. As noted, this practice changed in September 1975 with the installation of timeclocks. At that time, the As amended at the hearing National Association of Broadcast Employees & Technicians, AFL- CIO, herein called the Union The Union represents the Respondent's radio and television technicians and engineers and has been party to successive bargaining agreements with the Respondent over the past 10 years None of these agreements, including the parties' current contract, contains any pro- vision regarding the manner in which employees shall record their working time Nor has this matter been a subject of discussion during negotiations Union was processing grievances clairrung sick pay for two employees, whom the Respondent asserted had already been paid the maximum 10-day sick pay allowable under the contract. It appears that as a result of these grievances the Respondent generally reevaluated its timekeeping practices and, noting the haphazard manner in which some employees were normally recording their hours, decided that more accurate records must be kept. Thus, after one of the grievance meetings Respondent's general manager told Union Official Joseph Mazzaferro that "You're having to punch a time clock because you filed a grievance . . . a sick pay grievance . . . . We're not sure if the sick days are being paid. When we put the time clocks in, you'll come to work and get paid and if you don't, you won't." We agree with the Administrative Law Judge that the Respondent did not violate Section 8(a)(5) of the Act by unilaterally initiating a more dependable method of enforcing its longstanding rule that em- ployees record their time "in and out." In the circum- stances of this case, it is clear that while the change to a mechanical procedure for recording working time marked a departure from the previous practice, more importantly the rule itself remained intact. And to those employees who had conscientiously followed this rule in normally marking their timecards, the new timeclock procedure would have been inconse- quential. Therefore, the General Counsel's reliance on Murphy Diesel Company,3 and similar cases, is misplaced. For in Murphy we found that the respon- dent employer initiated new and more stringent rules which represented a "material, substantial, and a sig- nificant change" from prior practice. We find no such radical change in the circumstances of this case. See Wabash Transformer Corp., Subsidiary of Wabash Magnetics, Inc., 215 NLRB 546 (1974). While there is some evidence that the Respondent was lax in enforcing its rule, we cannot say that such inattentiveness raised the former normal procedure to the level of a term and condition of employment which the Respondent was required to bargain over before changing. For absent discrimination, an em- ployer is free to choose more efficient and dependa- ble methods for enforcing its workplace rules. In the circumstances of this case, we find that the Respondent's introduction of the timeclocks was but a part of the day-to-day managerial control which it was free to exercise. The General Counsel further contends that the record supports an inference that the change in time- keeping practices was discriminatorily motivated as retaliation for the filing of the sick pay grievances. We disagree. For, standing alone, the remarks of the ' 184 NLRB 757 (1970) 225 NLRB No. 65 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's general manager, on which the Gener- al Counsel relies , merely manifest the Respondent's unquestioned need to find a more dependable time- keeping procedure and thus avoid future disputes with the Union. In sum, we find, as did the Administrative Law Judge, that the General Counsel has not shown, by a preponderance of the evidence , that the Respondent violated the Act by installing timeclocks without no- tice to the Union . Accordingly, we shall dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge: A hearing was held in this proceeding on January 5, 1976, at Roches- ter, New York, on complaint of the General Counsel against Rust Craft Broadcasting Company, herein called the Respondent or the Company. The complaint issued on October 31, 1975, on a charge filed on September 15, 1975, by National Association of Broadcast Employees & Tech- nicians, AFL-CIO, herein called the Union, or Nabet. The sole question in the case is whether the Respondent violat- ed Section 8(a)(5) of the statute by replacing a handwriting system of recording hours worked with a mechanical time- clock without prior consultation with the Union. Briefs were filed by the General Counsel and the Respondent. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT ployees & Technicians, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE This case involves about 30 technicians and engineers working for the Respondent's television and radio station in Rochester; they have for upwards of 10 years been rep- resented by the Union, Nabet, under successive collective- bargaining agreements . It has long been the Company's practice to have them record their arrival and departure on individual timecards, which call for each man to sign him- self in and out, to the hour and the minute , including time out for lunch. The men are all covered by the Fair Labor Standards Act, and the Union contract contains very pre- cise provisions for overtime pay; it also provides for a number of penalties, or premium payments, in special cir- cumstances when the urgency of work assignments de- prives a man of his ordinary lunch hour, or otherwise ne- cessitates that he work unpredictable hours. Because the overall function they serve is integrated with television and radio broadcasting, some of them start work as early as 6 a.m., and some must stay on the job until 1:30 or 2 o'clock at night. As to what method the Company should or should not use for recording the hours worked by the employees, the collective-bargaining agreement has always been silent, and the matter was never a subject of discussion during contract negotiations. There came a time, in August and September 1975, when the Company, concededly without discussing its decision at all with the Union, simply installed a timeclock to take the place of the old handwritten cards. According to the testimony of Ralph Becker, a vice president of the Respon- dent, the reason for the change was because of "the possi- bility of error in reporting the time." The theory of com- plaint is that this was a change in conditions of employment, made unilaterally by the Employer, and therefore a flouting of the statutory duty to negotiate about conditions of employment with the employees' chosen bar- gaining agent. The defense is essentially that there was no change in employment conditions-indeed that it is now less work, even more convenient and desirable to them, for the employees to punch the clock instead of having to write anything out in longhand themselves . There is another de- fense. 1. THE BUSINESS OF THE RESPONDENT Rust Craft Broadcasting Company does business in a number of States and operates radio and television broad- casting stations in a number of cities . Included among its operations is a television and radio station located in Rochester, New York, the sole location involved in this case. During the past year the Respondent received reve- nues in excess of $1 million in the course of its business, including the purchase and sale of goods across state lines valued in excess of $200,000. I find that Respondent is an employer engaged in commerce 11. THE LABOR ORGANIZATION INVOLVED I find that the National Association of Broadcast Em- Pertinent Facts- Conclusion I shall recommend dismissal of the complaint. Labor Board cases under this statute are concerned with sub- stance, human experience , not words . If from the prior Board decisions cited in the General Counsel 's brief as per- suasive precedent supporting this complaint , the word "change" be lifted completely out of context, so that words take the place of substance, it would have to be said the Respondent here made a change. Nothing could illustrate more clearly the disregard of substance in this case than the General Counsel's objection at the hearing to the ques- tion-why did you decide to go to the timeclock?-put to the Respondent's officer . I suppose there have been techni- cal unfair labor practices found in the past , but it is not RUST CRAFT BROADCASTING OF NEW YORK, INC. 329 argued this is such a case. Certainly, if reason could ever be totally excluded from consideration of any Board proceed- ing, this is not the one. I think it equally revealing of the intransigent character of the prosectuion that the General Counsel even objected to the question put to Joseph Maz- zaferro, the president of the Nabet Local which filed the charge: "What is your objection to the time clock?" My first reason for dismissing the complaint is because this was not a change in conditions of employment, as that phrase has been construed in the past. Deferring for the moment what the employees in fact did with respect to the timecards under the old system, it is a fact that the printed cards called for very precise notations, to be made by each and every employee, in a separate column for each of the 7 days of the week, for each day the hour and the minute "in and out," two such squares for morning, two for afternoon, and two for overtime, totals to be entered by them daily, totals for the week, and a place for the employees' signa- tures. If anything, the punchcards used in timeclocks re- quire less of the employee-he need not calculate total and he need not sign. There was no change worthy of note insofar as a burden upon the employees is concerned. Therefore, whatever "change" took place had nothing to do with their work and nothing to do with their pay. Before considering the evidence relating to the Respondent's other defense-that the old system was not reliable and therefore had to be changed-it is important to note one point, this, if only because the union officer was not permitted to say why he objected to the mechani- cal method of recording his time. It is not a contention of the Union that the men enjoyed the possibility-because of the manual as against the mechanical method-of report- ing more time than they actually worked, or maybe of en- joying an old custom of the Employer knowingly permit- ting overchanges, and therefore that the Employer could not unilaterally deny them a money benefit that had be- come an established practice. There is no claim that the men had been receiving more than the contract calls for-40 hours pay for 40 hours work. It will be time enough to appraise such an argument the day it is actually advanced in a future case.' There is a hint of this idea between the lines in this rec- ord. Becker testified that the Rochester Station-televi- sion and radio-unlike other cities in the chain, was report- ing excessive or abnormally high expenses, and that this was why more reliable recording of time was necessary. This was a conclusionary statement, self-serving and un- supported by objective data. But there is evidence that a grievance over payment of wages while employees were not working did arise at or about this time, and that the deci- sion to install the timeclock was somehow tied in with that dispute. The Union filed the two grievances in July, claim- ing 7 days pay for two men while they were out sick; one man wanted 2 days sick pay and the other 5, although each i The witnesses, for both sides of the case, were very gentlemanly, and avoided direct language suggestive of any cheating by employees under the old system, and, of course, any past conscious approval of improper practic- es in the past Despite both the Company's and the Union's position on this sensitive question, in his brief the General Counsel speaks of prior rules being "laxly enforced " He had no basis for the statement and would have been better advised not to inject the subject had already been paid 10 days sick pay during a year, the maximum called for under the contract. Mazzaferro's statement, at the hearing, is that the Union considered the Respondent had a "moral obligation" to pay these two men anyway. When, after the grievance meetings on the question of extra sick pay, Mazzaferro got into an argu- ment with General Manager Albert Lucero over the reason for installing the timeclock, Lucero answered as follows, according to Mazzaferro's testimony: "You're having to punch a time clock because you filed a grievance-a sick pay grievance. . . . We're not sure if the sick days are being paid. When we put the time clocks in, you'll come to work and get paid and if you don't, you won't." This testimony, from Mazzaferro of what Lucero told him, is strong indication that the two men who wanted to be paid while out sick, had not, on the old handwritten timecards, reported their absences for the days they had missed. With this, Becker's statement that manual re- cording presented "the possibility of error" takes on an unmistakable meaning. I make no finding that either of these two men, or anyone else for that matter, deliberately falsified any entry on his timecard under the old system. But I must agree that the system made possible errors, however unintentional, of all kinds. Indeed, the very open- ing testimony of the local union president himself, the sole witness called in support of the complaint, alone suffices to justify the Respondent's change to the timeclock. The Company prepares a written work schedule for everybody at the start of the week-what hours each man is pro- gramed to work each day. Mazzaferro said: "I filled my card out once-a-week at the end of the week . . . I would fill in my days off, my hours of work as my operating schedule said." He then added that the following Monday, the supervisor used to "check them against the operating schedule, which is posted, and either okays them or not." Mazzaferro said there were others who also filled in their timecards at the end of the week as he did, and some who made notations on them daily. Becker, the vice president, and Henry Morgan, the Respondent's labor relations man, testified that the most disturbing fact brought to their attention was the extraordi- nary consistency between the worktime recorded on the timecards and the worktime as scheduled in advance of the performance of the work. Becker said that the timecards "reflected the schedules, and not necessarily the hours worked. . . . They should have reflected the specific hours worked." This factual assertion by the management repre- sentatives-that timecards too often parroted the sched- ule-was not contradicted by any employees or union agents. In cross-examination of Mazzaferro, he was asked was it not true that during the sick leave grievances discus- sions company representatives had said they must have "accuracy in the keeping of sick pay records," "accurate record"; he at first avoided a direct answer, and then said he did not remember. While this record does not definitively establish the ex- tent of the practice, it is a fact a number of Nabet employ- ees at the end of the week mechanically transferred to their timecards the originally scheduled hours of work. Four cards for the week ending May 24, 1975, were received in evidence. A look at each one makes absolutely clear it was 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filled in at one given moment and reflects a fixed program. Although offered to support the defense assertion that the cards too often "reflected the beginning of the shift exactly on the hour and conclusion exactly on the hour," the ex- hibits also prove, very pointedly, what Becker called the essential unreliability of manual recording as against me- chanical methods. One card notes 6 a.m. to 2 p.m. straight through the week, and total each day as 8 hours work. Another notes 4:30 to 1:30 (afternoon in and out) straight through for 5 days, and totals each day as 8 hours worked. When was the first man's lunch hour? Maybe he had none. Where was the second man's lunch hour? If he had none, why did he not claim payment for the time? A third card- Dugan's-has no arrival and departure time at all; it shows only totals for time worked each day as 8 hours for 3 days and 9-1/2 hours for 2 other days. What does this mean? And the fourth is incoherent on its face. Smith entered 9 o'clock in-6 o'clock out, 5 days in a row; he put no daily totals, but he did write 46 hours worked for the week. In the Wednesday column he wrote "no lunch." If he wrote "no lunch" for I day it means he did take time for lunch the other 4. If lunch is 1 hour, he worked 8 hours 4 days and 9 hours on Wednesday, or a work total of 41-and the 46 hour total does not fit. If lunch is half hour, he worked 8-1/2 hours 4 days, and again 9 on Wednesday, or a week total of 43 hours-and again the 46 hours does not fit. Now, there may be answers to all these questions-in the minds of the employees, in the minds of the supervisors who okayed the cards a week later, or in the minds of the bookkeeper who then figured out the pay. As Mazzaferro said at the hearing: "When it comes to money, everybody remembers everything." But the truth of the matter is that whatever the facts are, they were not written down, they were not recorded-and that is all this case is about. Mazzaferro said the employer was "morally obligated" to pay certain sick leave; the two grievances on the subject charged the Employer with having violated the contract "in the spirit and intent." Becker said that when he studied these cards, his "instincts" told him "there had to be" error somewhere. I find nothing wrong in a system-old or new-which eliminates questions of morality and instincts, and which reduces the area of disputes in industrial rela- tions. The complaint includes a separate and distinct allegation that the Respondent "discriminated" against these employ- ees by using the timeclock. This is the same as saying its "purpose" was to hurt the engineers and the technicians because they chose to be represented by Nabet. There is no evidence to support the charge. But apart from the lack of supporting proof, the General Counsel effectively with- drew this part of the complaint when he objected to the Respondent's offer to prove its "reason" for making the change. However phrased, the "purpose," the "object," the "reason" for an act cannot be an essential element proving illegality, while simultaneously being an irrelevancy to the same question. ORDER2 I hereby recommend that the complaint be, and it here- by is, dismissed. 2 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 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