Boland Marine and Manufacturing Co. Inc.

824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boland Marine and Manufacturing Company, Inc. and International Brotherhood of Boilermakers Local 37, a/w International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Help- ers. Case 15-CA-5874 August 4, 1976 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER On May 13, 1976, Administrative Law Judge Jose- phine H. Klein issued the attached Decision in this proceeding. Thereafter, the Charging Party filed ex- ceptions and a supporting brief, the General Counsel filed limited exceptions and a supporting brief, and a brief in support of the Administrative Law Judge's Decision, and the Respondent filed cross-exceptions and a brief in support of cross-exceptions and an- swering 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 briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge to the extent consistent herewith. The Administrative Law Judge found that the Re- spondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act by uni- laterally promulgating safety rules and rules gov- erning employees' conduct and instituting a discipli- nary system for its employees, by implementing such disciplinary system, and by refusing to bargain with the Union about the rules and disciplinary provi- sions. Based on these violations, the Administrative Law Judge ordered the Respondent to cease and de- sist from engaging in such action without bargaining with the Union. A proviso was added to section 1(c) of the Administrative Law Judge's recommended Or- der, however, which provided that the rules involved in the instant case "may be implemented upon the end of the notice-posting period hereinafter provid- ed, unless at that time the matter is the subject of current collective bargaining." The affirmative action portion of the Administrative Law Judge's recom- mended Order was limited to the removal of all disci- plinary warnings issued since July 1, 1975, from the 1 In adopting the Administrative Law Judge's Decision, we note that in the Remedy section of her Decision she inadvertently referred to the Pipefit- ters instead of the Boilermakers However, this minor inadvertent error does not affect our conclusions herein personnel files of employees who are represented by the Union for the purposes of collective bargaining. The General Counsel argues that the Respondent should be ordered to bargain upon request with the Union about the revision, expansion, promulgation, and/or enforcement of safety rules, work rules and/ or disciplinary rules, or procedures governing em- ployees represented by said Union. In addition, the General Counsel contends that the Respondent should be required to cancel, withdraw, and rescind the July 1, 1975, safety rules, work rules , and discipli- nary rules and/or procedures in effect as to employ- ees represented by the Union. The Charging Party contends that the Administrative Law Judge erred by failing to provide in her recommended Order for re- instatement of any employees discharged pursuant to the Respondent's rules found to have been illegally promulgated and enforced, and by failing to make whole such employees and other employees suspend- ed or otherwise denied work opportunities due to the enforcement of the Respondent 's rules and regula- tions. We find merit in both the General Counsel's and the Charging Party's exceptions. While the Administrative Law Judge stated that her recommended Order was adapted from the or- ders in General Electric Company, 192 NLRB 68, 72 (1971), enfd. 466 F.2d 1177 (C.A. 6, 1972); Murphy Diesel Company, 184 NLRB 757 (1970), enfd. 454 F.2d 303 (C.A. 7, 1971); and Amoco Chemicals Cor- poration, 211 NLRB 618 (1974), enfd . 454 F.2d 427 (C.A. 5, 1976), the remedy prescribed in her Decision is the one prescribed in the General Electric Co., su- pra. While the remedy therein did not provide for the abrogation of the company's new code of conduct because "of all the opportunities for bargaining over changes in the code" which were available to both parties, the Board in that case found merit in the General Counsel's alternate request for relief; name- ly, that the company should "fully restore to the sta- tus quo ante any employees who have been disci- plined or who have suffered any losses by reasons of Respondent's unlawful action . Unit Drop Forge Divi- sion, Eaton Yale & Towne, Inc., 171 NLRB [600, 6021." Unlike the situation in the General Electric Co., supra, where the opportunities for bargaining over changes in the code were available to both par- ties, no such opportunity was available to the Union herein. Thus, we see no reason to limit the relief sought by the General Counsel and the Charging Party in this case, and shall, therefore, consistent with Section 8(d) of the Act, broaden the Adminis- trative Law Judge's recommended Order to include bargaining , and to provide that the Respondent should fully restore the status quo which existed at the time of its unlawful actions by rescinding all dis- 225 NLRB No. 113 BOLAND MARINE AND MANUFACTURING COMPANY, INC. 825 ciplinary actions resulting from violation or failure to comply with the unilaterally promulgated safety and employee conduct rules, to provide further that the Respondent offer all employees discharged, suspend- ed, or otherwise denied work opportunities solely as a result of the unilateral promulgation of said rules immediate and full reinstatement to their former po- sitions or, if they are not available, to substantially equivalent ones, without prejudice to their seniority or other rights and privileges, and to make whole those employees who are either discharged, suspend- ed, or otherwise denied work opportunities solely as a result of the unilateral promulgation of said rules.2 In all cases of lost pay and/or benefits, the amounts shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with in- terest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Boland Marine and Manufacturing Company, Inc., New Orleans, Louisiana, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Revising, expanding, promulgating, and there- after enforcing safety rules or work rules or discipli- nary procedures governing employees represented by International Brotherhood of Boilermakers Local 37 a/w International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, without bargaining with said Union. (b) Refusing on request of the aforesaid Union to discuss and negotiate with it about the revision, ex- pansion, promulgation, and/or enforcement of safety rules or work rules or disciplinary procedures gov- erning employees represented by said Union. (c) In any like or related manner interfering with the efforts of the aforenamed Union to bargain col- lectively on behalf of the employees it represents. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Cancel, withdraw, and rescind the July 1, 1975, safety rules, work rules, and disciplinary rules and/or procedures in effect as to employees represented by the aforesaid Union. (b) Remove all disciplinary warnings issued since July 1, 1975, from the personnel files of employees who are represented by the aforesaid labor organiza- tion for the purpose of collective bargaining. (c) Offer all employees discharged, suspended, or otherwise denied work opportunities solely as a re- sult of the unilateral promulgation of said rules im- mediate and full reinstatement to their former posi- tions or, if they are not available, to substantially equivalent ones, without prejudice to their seniority or other rights and privileges. (d) Make whole all employees who were dis- charged, suspended, or otherwise denied work oppor- tunities solely as a result of the unilateral promulga- tion of the above rules in the manner set forth in the text preceding this Order. (e) Upon request bargain with the Union about the revision, expansion, promulgation and/or en- forcement of safety rules, work rules, and/or discipli- nary rules or procedures governing employees repre- sented by said Union, and embody in a signed agreement any understanding reached. (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order respecting rescission of all disciplinary actions. (g) Post at its facilities in New Orleans, Louisiana, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Re- gional Director for Region 15, after being duly signed by Respondent's representative, shall be post- ed by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cusomarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (h) 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 here- with. 2 See Murphy Diesel Company, supra 3 In the event that this 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 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 WE WILL NOT revise, expand, codify, or pro- mulgate rules concerning safety or employee 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct or disciplinary measures applicable to employees represented by International Brother- hood of Boilermakers Local 37 a/w Internation- al Brotherhood of Boilermakers, Iron Shipbuild- ers, Blacksmiths, Forgers and Helpers, without affording said Union the opportunity to bargain over such action. WE WILL cancel, withdraw, and rescind the July 1, 1975, safety rules, work rules, and disci- plinary rules and/or procedures in effect as to empioyees represented by the aforesaid Union. WE WILL remove all disciplinary warnings is- sued since July 1, 1975, from the personnel files of employees who are represented by the afore- said labor organization for the purpose of collec- tive bargaining. WE WILL offer all e_np loyees discharged, sus- pended, or otherwise denied work opportunities solely as a result of the unilateral promulgation of said rules immediate and full reinstatement to their former positions or, if they are not avail- able, to substantially equivalent ones, without prejudice to their seniority or other rights and privileges. WE WILL make whole all employees who were discharged, suspended, or otherwise denied work opportunities solely as a result of the unila- teral promulgation of the above rules. WE WILL, upon request, bargain with the Union about thQ revision, expansion, promulga- tion, and/or enforcement of safety rules, work rules, and/or disciplinary rules or procedures governing employees represented by said Union, and embody in a signed agreement any under- standing reached. BOLAND MARINE AND MANUFACTURING COMPANY, INC. DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Administrative Law Judge: Pur- suant to a charged filed by International Brotherhood of Boilermakers Local 37, a/w International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers (the U.uon or Boilermakers) on September 25, 197 5,1 a complaint was issued against Boland Marine and Manufacturing Company, Inc. ,Respondent or Boland), on December 2, alleging that on or about July 1 Respondent unilaterally promulgated safety, work, and disciplinary rules and regulations and since then has enforced said rules and has refused to bargain with the Union about them, in contravention of Section 8(a)(5) and (1) of the Act.' I Except as otherwise stated , all dates herein are in 1975 Pursuant to due notice, a hearing was held before me in New Orleans, Louisiana, on February 4 and 5, 1976. All parties were represented by counsel and were afforded full opportunity to present oral and written evidence and to examine and cross-examine witnesses. The parties waived oral argument. Postheanng briefs have been filed on behalf of the General Counsel, the Charging Party, and the Re- spondent. Upon the entire record,3 together with careful observa- tion of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS Respondent, a Louisiana corporation with its principal office and place of business in New Orleans, Louisiana, is engaged in the repair and refitting of nautical vessels and related items. During the past year, a representative period, Respondent, in the course and conduct of its business op- erations, purchased and received goods and materials val- ued in excess of $50,000 directly from points outside Loui- siana. During the same period Respondent, in the course and conduct of its business operations, performed services valued in excess of $50,000 for instrumentalities of the United States Government, including the United States Navy, which instrumentalities are engaged in commerce within the meaning of the Act by virtue of the magnitude of their operations. Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. It. THE UNFAIR LABOR PRACTICES A. The Issues Under date of July 1, Respondent issued safety rules and rules of employee conduct, with a specified disciplinary procedure, without prior notice to or consultation with the Union, which represents the boilermakers employed by Respondent, or any of the six other unions which represent Respondent's remaining production and maintenance em- ployees. Respondent has further enforced and implement- ed such rules, rejecting the Union's demands for bargain- ing concerning them. Respondent maintains that under its collective-bargaining agreement, and previous similar agreements in effect since around 1940, Respondent has the reserved right unilaterally to promulgate safety and work rules and attendant disciplinary procedures. Respon- dent also contends that the July 1 rules do not constitute any change in the terms or conditions of employment. 2 National Labor Relations Act, as amended (29 U S C Sec 151 et seq ) 7 The General Counsel's unopposed motion to correct the transcript is hereby granted There are numerous additional errors in the transcript However, since they are, in the main , self-evident and not crucial , no further corrective order is being issued. In quotations from the transcript appearing in this Decision, obvious errors have been corrected BOLAND MARINE AND MANUFACTURING COMPANY, INC. 827 B. The Facts Respondent is, and for many years has been, a member of the Manufacturers & Repairers Association of New Or- leans (the Association), consisting of five employers. Be- ginning around 1940, the Association, on behalf of its members, collectively bargained with a group of seven unions, representing the employees in various craft bar- gaining units. Historically the Association bargained with all the unions at the same time. Although separate con- tracts were executed by the Association with each union, the substantive terms were essentially the same in all the contracts 4 Sometime around 1960 the Machinists Union withdrew from the point negotiations and thereafter bargained sepa- rately with the Association. About 5 years later the Boiler- makers also withdrew from the group bargaining. Since then renewal contracts have been negotiated in three sepa- rate, but essentially simultaneous, negotiations-one with the Machinists, one with the Boilermakers, and one with the remaining five unions representing the various craft bargaining units. Bargaining for the current contract began around the end of 1974. At the outset Joseph R. Moity, business man- ager and secretary-treasurer of the Union, and Maurice Cazaubon, union counsel, presented an entirely new form of contract to replace the existing form, which they be- lieved was outmoded and contained obsolete or archaic provisions. Raphael H. Morvant, executive director and chief bargaining representative of the Association, main- tained that there was no time to negotiate an entirely new contract; that it had taken some 35 years of bargaining to arrive at the existing contract and any total rewrite would undoubtedly take another 30 years or more. Unlike the existing contract, the Union's proposal con- tained a management rights and a discharge provision. Ca- zaubon testified that he had included the management rights clause as a bargaining tactic, i.e., as at least some counterbalance to the rest of the proposed contract, which was entirely favorable to the Union. The Union's proposals were: MANAGEMENT RIGHTS. The management of the company, its operations, the hiring, the discharge of its employees, the maintenance of discipline and efficien- cy of its employees, the promulgation of rules are re- served exclusively to the company, provided, however, that the exercise of these functions shall not be applied to or discriminate against union or non-union employ- ees as such, nor conflict with the provisions of this agreement. DISCHARGE AND DISCIPLINE. The management of the company, the supervision of the working forces and the right to discipline or discharge for just cause shall rest exclusively with the management of the com- pany. Any discharge of an employee is subject to grievance procedures in accordance with the terms of this agreement. In at least one of the bargaining sessions, the Union's proposed contract was reviewed article by article. In an off-the-record discussion,5 Morvant explained his objec- tion to the management rights clause as stemming from his view that, in the absence of any such provision, the em- ployers had reserved complete and untrammeled manage- ment rights. Thus, according to Morvant, any express man- agement rights provision could not expand, but could only restrict, the employers' existing "common-law" rights. Morvant said that, no matter how generously written in the present proposal, any management rights clause would be a constant subject of future attempts by the Union in bar- gaining to restrict management's prerogatives. Cazaubon disavowed agreement or disagreement with Morvant's view as to the employers' existing rights. Eventually the Union's entire proposal was dropped. The negotiations proceeded, with a contract finally reached in the existing form on Feb- ruary 16, 1975, to run through February 15, 1978.6 Morvant had been employed by Boland around 1946 and 1947. He then started his own business as a labor rela- tions consultant. In 1949 he became executive director of the Association, while continuing his broad practice as a labor relations consultant. In July or August 1974, Boland retained Morvant as its labor relations consultant. Within a short time after being so retained, Morvant recommend- ed that Boland formally issue and distribute to all its em- ployees a complete set of safety rules and rules of conduct. Wilie J. Rucker, Jr., Respondent's vice president and gen- eral manager, approved Morvant's proposal and directed Morvant and Peter Sears, Jr., Boland's personnel and in- dustrial relations director, to study the matter fully and draft a complete set of rules. In execution of this mission, Sears set about to collect all the written rules that the Com- pany had ever issued. In addition, through meetings with supervisory personnel, Morvant and Sears collected all "oral" rules. The rules prepared by Morvant and Sears were approved by Rucker and prepared for distribution under the date of July 1, 1975. The documents consisted of two pages of "Safety Rules and Regulations" and two pages headed "Re-issue of Company Rules and Regulations." The first page of the latter rules contains 12 numbered rules, under the heading: "ANY EMPLOYEE VIOLATING THE FOLLOWING COM- PANY RULES SHALL BE DISCHARGED"; the second page lists 14 rules under the statement: "ANY EMPLOYEE VIOLATING THE FOLLOWING RULES SHALL BE GIVEN A WRITTEN WARNING." The rules are followed by the statement: Written warnings will be issued to you by your imme- diate Supervisor and a copy placed in your personnel file and retained therein for One (1) year. Any em- ployee receiving a second written warning within One (1) year of the first shall be disciplined with a lay-off of Three (3) Work Days. Any employee receiving a ° The terms of the agreements with the Teamsters differed to some extent from those in the agreements with the craft unions Such differences are not relevant to the present case Morvant had a court reporter present for the negotiations e The Machinists did not reach agreement at that time and went on strike, which lasted some 2 months The other crafts honored the Machinists picket line for about 2 weeks 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD third written warning within a one-year period shall be subject to discharge. RECEIPT ACKNOWLEDGED: Employee Signature, Date The rules were distributed to the employees on or about July 10. Albert M. Catyb, who had recently become the Union's business manager and secretary-treasurer, learned about them through telephone calls from two stewards. Ca- tyb told the stewards to advise the boilermaker employees not to sign the rules, as they had been requested to, until he had had an opportunity to review them. After reading the rules, which he received from one of the stewards, Catyb telephoned Sears and complained that the rules had not been discussed with the Umon. Catyb asserted that they had to be negotiated. He indicated that he had no objec- tion to the safety rules but there were other rules which he "just couldn't abide by" and which "should have been ne- gotiated." At the time Catyb did not specify any particular rules to which he objected, but he did express his objection to the institution of the written warning system. Sears was adamant that the rules had been issued, they would re- main, and they would not be negotiated. A problem developed about the inadequacy of the gate and parking facilities at one of Boland's installations. A meeting was called around the middle of August to discuss this problem. The meeting at the Boland offices was at- tended by representatives of the Association and Boland, and representatives of the Metal Trades Council and some of its constituent unions. Catyb and Louis Robein, Esq., represented the Boilermakers. After the gate and parking problems were discussed, Catyb and Robein tried to initi- ate discussion of the rules with Sears and Morvant. How- ever, they refused to discuss the matter, repeating Respondent's position that the rules were nonnegotiable. Kaneckta, president of the Metal Trades Council, inter- vened, insisting that, as stated by the Company's represen- tatives, the sole purpose of the meeting was to solve the gate and parking problems. The Metal Trades Council, some of whose constituent unions do not have collective- bargaining agreements with Boland, did not want to get involved in the matter of Boland's rules for employees. On or about August 5, Respondent issued written warn- ing notices to 49 boilermakers for allegedly having engaged in unlawful work stoppage. In a grievance concerning these warnings, the Union said, inter alia: "These warning no- tices were never negotiated in the agreement between the Boilermakers and the Manufacturing and Repairers Asso- ciation and the Union does not recognize these warning notices." The next day Boland denied the grievances, say- ing, "The rules and regulations of Boland Marine & Mfg. Co., Inc., are not in violation of the current agreement and are not subject to negotiation." This grievance was consid- ered at a subsequent grievance meeting, when the Compa- ny again rejected the Union's request that the rules be ne- gotiated. At the third step of the grievance procedure, before the Joint Labor-Management Committee, Respon- dent again rebuffed the Union's attempt to discuss the rules. The mass grievance was not taken to arbitration be- cause, as Union Counsel Robein testified, "there was no question that the people did walk off the job," and thus were apparently in violation of the collective-bargaining agreement, wholly apart from the July 1 rules. On September 18, Respondent lodged a grievance against the Umon for allegedly having "engaged in a con- certed effort to harass the Company." Among the four en- umerated types of "harassment" was "constantly demand- ing that the Company negotiate their Rules & Regulations which are in no way prohibited by the labor management agreement." At a meeting in which the Company's griev- ance was considered, Respondent reiterated its steadfast position that its rules were nonnegotiable. That grievance was dropped after the Union denied it. Between the issuance of the July 1 rules and the present hearing, 200 written warnings were issued, some of them apparently given to boilermakers. It was stipulated that before promulgation of the July 1, 1975, rules "the company did not have a formal warning system. In certain instances written warnings might be giv- en to employees but these would be isolated situations de- pending upon the facts of the particular case but not the formalized system embodied in the rules." Morvant testi- fied that "on occasion" notes of verbal reprimands were placed in employees' personnel files. No specifics were ad- duced. There is no evidence that before July 1975 any for- mal written warnings were given to any boilermaker em- ployees. Respondent generally obtains its boilermakers through the Union. Frequently the Union referred employees who were unacceptable to Respondent because of misconduct or unsatisfactory performance in the past. To avoid such problems in the future, sometime around the end of No- vember 1974, Respondent, on agreement with the Union, adopted the practice of sending the Union copies of all memoranda of disciplinary action against any boilermak- ers. There are 14 such memoranda in the record recording discharges or suspensions of boilermakers between March 21 and July 1. With the issuance of the July 1 rules, Re- spondent discontinued the practice of notifying the Union of disciplinary action. However, it appears that Respon- dent then adopted the practice of having union stewards present at disciplinary interviews whenever practicable. Respondent did not give the Union any notice of or oppor- tunity to bargain about this change in practice. As previously noted, Respondent's witnesses maintained that in preparing the July 1 rules they collected all written rules which the Company had ever previously issued. There are in the record some 16 "rules" or sets of rules dated from January 22, 1962, through June 24, 1975. Some of these documents had been posted on Respondent's bulletin boards while some had been distributed only to superviso- ry personnel, who presumably were to pass them on orally to the employees under them. Some of the "rules" in the record were applicable only to specific situations and were not generally disseminated. The evidence establishes that employees frequently remove posted matter from the bulle- tin boards. As Sears testified, "This is a constant thing to see that these things remain and you are constantly replac- ing them. . . . you can put a rule or a safety notice or anything on the bulletin board and either one hour or two or the next morning everything is gone. This is typical in our type of industry.... For some reason they dust take BOLAND MARINE AND MANUFACTURING COMPANY, INC. off all the goodies that are on our bulletin board." Boiler- makers, like most of the other craft employees, are general- ly hired on a day-to-day rather than a "permanent" basis. Thus there is considerable turnover among the employees. It therefore follows that it cannot be found what, if any, written rules were in effect just before July 1975 or that the employees had any way of knowing from time to time what wntten rules governed their conduct. Respondent further maintains that the July 1 formalized rules embraced "oral" rules then in effect, as gleaned by Sears' and Morvant's consultation with plant supervisory personnel. The evidence as to such purported "oral rules" was sketchy and conclusionary. Morvant described such oral rules as representing dust "good management practic- es," which anybody would understand as inherent in an employment relationship and essential to efficient opera- tion of a business. But the evidence does not completely support Morvant's view. For example, one of the violations calling for discharge under the July 1 rules is "Smoking in prohibited area." Employee O. B. Broadhead credibly tes- tified that before the July 1 rules were promulgated "you could smoke anywhere you want," with no prohibited ar- eas that he was aware of. Another type of misconduct call- ing for discharge is "the use of abusive or profane language towards a fellow employee or supervisor." Employee Broadhead testified, again credibly, that he had never heard about any prohibition of profanity and, while he would not address profanity to a superintendent, such con- duct was not unusual toward foremen and other employ- ees. There is no evidence of any prior rule prohibiting pro- fanity toward fellow employees on penalty of discharge. While "gambling on company property" calls for a written warning under the July 1 rules, Broadhead testified that he had never previously heard of any such company rule. Nei- ther profanity nor some forms of gambling can be said to be universally condemned among groups of employees. One of the July 1 rules calls for the issuance of a written warning for "tampering with the company bulletin board." As heretofore observed, such conduct has apparently been widespread, with no evidence that employees had been dis- ciplined for it. Under the July 1 rules, an employee is to receive a wntten warning if he "fails to report for overtime after accepting overtime." Broadhead testified that in the past "the foreman generally handled that." At least one foreman handled the problem by denying overtime to the offending employee on the next occasion. Jean Laffargue, who had worked for Respondent for some 14 years, 9 of them as a foreman, testified that: "Al- most every different foreman they would have out there would have a new set of rules. I would say they had six or seven general foreman that come through. And everyone had a different set of rules.... When I said the foremen make the rules-they don't come out and say we have a new set of rules. That we want everybody to abide by these rules and what have you. And then they come with a few extra ones of their own." C. Discussion and Conclusions There is no dispute that the July 1 documents were is- sued without prior notice to the Union. And there is also no dispute that, immediately upon learning of the issuance 829 of these documents, the Union demanded an opportunity to bargain about the rules, including the discharge and dis- ciplinary provisions. Indeed, the Union's demands for bar- gaining were so frequent that Respondent filed a grievance alleging that the Union's bargaining demands constituted "harassment." Respondent consistently rejected all the Union's bargaining demands, maintaining that the rules were nonnegotiable. It is well settled that safety rules and rules of employee conduct are mandatory subjects of bargaining. Gulf Power Company, 156 NLRB 622, 625 (1966), enfd. 384 F.2d 822 (C.A. 5, 1967); Miller Brewing Company, 166 NLRB 831 (1967), enfd. 408 F.2d 12 (C.A. 9, 1969); Murphy Diesel Company, 184 NLRB 757 (1970), enfd. 454 F.2d 303 (C.A. 7, 1971); General Electric Company, 192 NLRB 68, 72 (1971), enfd. 466 F.2d 1177 (C.A. 6, 1972). The institution or alteration of a disciplinary system is itself a mandatory subject of bargaining (Amoco Chemicals Corporation, 211 NLRB 618 (1974), enfd. 529 F.2d 427 (C.A. 5, 1976) ), even if the prescribed discipline attaches to matters not them- selves constituting terms or conditions of employment and thus not mandatory subjects of bargaining. (Capital Times Co., 223 NLRB 1499 (1976) ). The cited cases clearly establish that a union does not waive its right to bargain over rules by its conduct in ac- quiescing in the employer's promulgation of rules in the past. As said by the Ninth Circuit in N.L.R.B. v. Miller Brewing Company, 408 F.2d at 15: [I]t is not true that a right once waived under the Act is lost forever. . . . Each time the bargainable inci- dent occurs-each time new rules are issued-the Union has the election of requesting negotiations or not.... In apparent recognition that numerous decisions nega- tive any contention that the Union has waived its right to bargain about rules and disciplinary provisions, Respon- dent presents an attenuated, largely semantic, distinction between "waiver" and "contract interpretation," saying: The issue is not whether or not the Union, by its con- duct at the bargaining table, waived the right to bar- gain over rules. The issue is whether or not, by a con- sistent interpretation of a contract over a period of thirty-five years, the meaning of that contract is clear. But the cases cited above do not turn on the magic word "waiver"; they hold that a union may demand the right to bargain about rules at any time, even though it has not asserted that right on past occasions. Respondent attempts to distinguish Murphy Diesel, su- pra, on the ground that the contract in that case contained a management rights clause, whereas there is none in the contract involved in the present case.? Respondent con- tends that silence in the contract means that Respondent has reserved all management prerogatives, presumably, of course, excluding matters specifically covered by other 7 Respondent says "This case should not be confused with cases in simi- lar situations where, construing an existing management rights clause, the Board found absence of waiver of a union's right to negotiate matters ex- cluded from such clause " 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provisions of the contract. But that is precisely the purport of the Murphy Diesel management rights clause, which reads: "'except as expressly limited' in the agreement `all management functions are reserved to the Company, sub- ject to the other provisions' of the agreement." 184 NLRB at 758. It may be noted that in the negotiations for the current contract the Union offered, but Respondent reject- ed, contract terms which appear to confer on Respondent much of the "reserved" authority it now claims. Respondent seeks to distinguish Miller Brewing Company on the ground that in it "there was no claim of contract right and the issue was neither considered nor passed upon." But one thing is clear, namely, that in Miller Brew- ing it was held that the union retained the statutory right to bargain about rules as terms and conditions of employ- ment. That statutory right remains intact unless and until the union gives it up by clear and unambiguous affirmative action. Respondent disavows any contention that "the Union, by its conduct at the bargaining table, waived the right to bargain over rules." Respondent relies on the Union's "inaction" as constituting an "interpretation" of the contract. But the prior cases cited are decisive against that view. As said in Miller Brewing, 166 NLRB at 832: The Union had never expressly waived any bargaining right in the area and may have thought that the rules existing prior to those published by the Respondent were unobjectionable. Respondent's contention that the rules are not negotia- ble because they merely bring together and codify previ- ously existing rules can be readily disposed of. The record evidence simply does not support any such finding. There had been a hodgepodge miscellany of written rules issued from time to time. But it does not appear how many, if any, were in effect just before the new documents were distrib- uted. The evidence clearly shows that it was virtually im- possible for all the employees to have been aware of all the purported rules since none of them were distributed to the employees individually; some were never posted; few, if any, remained posted for any length of time; and there was rapid turnover of personnel. Additionally, the so-called oral "rules" apparently vaned from supervisor to supervi- sor, with no apparent uniformity from time to time or at any given time. Most important is the undisputed fact that the discipli- nary system was entirely new. Respondent was obviously required to bargain as to the new disciplinary system. Amo- co Chemicals Corp., supra, 211 NLRB 618, fn. 2. But the bargaining requirement was not limited to the disciplinary system alone. When the previously informal unsystema- tized disciplinary procedure was replaced by a formalized written warning system, the substantive rules themselves necessarily took on new importance. Rules that are subject to discretionary and flexible enforcement are transformed in nature when subjected to formalized disciplinary proce- dures. Cf. Murphy Diesel Company, supra; Miller Brewing Company, supra.8 8 Miller Brewing Company, 166 NLRB 831, In 1, suggests that an employ- er is required "to bargain with the Union, at the latter's request, about the substance and merits of the rules" even when they are not new or altered In the final analysis, Respondent actually is seeking to have the Board reconsider its established view, adopted by several courts of appeals. At the hearing, Respondent's counsel stated that, although the weight of arbitral deci- sions favors the Company's position, Respondent did not want this case deferred to arbitration under Collyer I be- cause Respondent was "hoping to get the Board to treat the thing the way arbitrators treat them, with recognition of industrial reality." Even if the contractual issue could have been arbitrated,10 the Board could properly resolve the statutory question. N.L.R.B. v. Miller Brewing Compa- ny, 408 F.2d at 16. In this connection it appears appropriate to comment on Respondent's accusing the Union of bad faith in instituting the present unfair labor practice proceeding." The fact is that Respondent had repeatedly and unequivocally refused to negotiate concerning the rules. It can scarcely be deemed an act of "bad faith" for the Union to resort to the statutory forum for vindication of the employees' rights when Respondent arrogantly turned a deaf ear. The Union had a statutory right to recourse to the Board unaffected by its contractual grievance procedure. Miller Brewing Company, 166 NLRB at 832. Respondent's position, as reflected in its brief, is that the Union could not possibly have been acting wisely or in good faith because the rules promulgated by Respondent were so eminently reasonable and fair that they could not be subject to any rational objection. Indeed, Respondent strongly suggests that the July 1 rules, including the for- malized warning system, benefit the employees 1 and that the Union is not serving their best interests.13 The simple 9 Collyer Insulated Wire, A Gulf and Western Systems Co, 192 N LRB 837 (1971) 10 No opinion is here expressed as to how the issue involved could be submitted to arbitration in the present situation. n In a section headed "The Board Should Recognize That the Union's Assertion of a Bargaining Right is Not Made in Good Faith and is An Attempt to Gain Rights Which It Could Not Gain in Collective Bargain- ing," the brief says Boilermakers knew that the Company was insisting that it had the con- tract right to change these rules It at least knew [that] when Morvant informed them of Boland's position at the meeting in August when Catyb, over the opposition of his fellow union, brought up the matter. Robein could easily have written the Company, formalized his demand, particularized the Union's objections, and informed the Company of Boilermakers' intention , absent negotiation, to file the instant charge Thirty-five years of a successful bargaining relationship would make this a logical move , unless Boilermakers wanted, instead, the trial of an unfair labor practice case rather than negotiations to which it had no ideas to bring 12 For example, in its brief Respondent says "Not even Catyb would have had the effrontery to file a charge with the Board stating that, although the company had the right to warn employees, it must do so by word of mouth rather than through a written instrument The warning system is but an assurance that all foremen will be following the same procedure (certainly not a change in employment condition but one that the union would insist upon in arbitrating a case involving disparate treatment )" But the Board has held that "Changing from oral reprimand to written warnings is a change which significantly affects the employees' working condi- tions" Amoco Chemicals Corp, supra, 211 NLRB 618, In 2 And the Fifth Circuit echoed the Board's view, saying that a formalized system of written warnings "contrasted sharply with Amoco's informal oral warning proce- dure in operation for almost a year prior to the election " 529 F 2d at 431 13 Respondent says "It may be that the worst impact on a decision find- ing a violation will fall upon the employees represented by Catyb The BOLAND MARINE AND MANUFACTURING COMPANY, INC. 831 answer is, of course, that the employees have chosen the Union, rather than Respondent, as their agent to protect and further their interests. In bargaining, Respondent can argue the wisdom of its conduct. One cannot assume in advance that bargaining will be fruitless. It may well be that many, if not most, of the rules pro- mulgated by Respondent are unobjectionable. See Miller Brewing Company, supra, 166 NLRB at 832.14 If that is so, the required bargaining will be simplified. But Respon- dent's view as to the reasonableness of its rules does not negate its statutory duty to bargain about them in good faith. Respondent's views are properly to be addressed to the Union at the bargaining table rather than to the Board in an unfair labor practice proceeding. It is, after all, the Company, not the Board, that sets the terms and condi- tions of employment. Ibid. A final note may be added concerning Respondent's ar- gument that "A Finding of Violation in this Case Will Have a Chaotic Impact on Bargaining Relations Among All the Unions at Boland." Boland's boilermaker employ- ees have chosen to assert their statutory right to bargain through a representative of their own choosing. That Re- spondent may find uniformity among its various bargain- ing units desirable is not grounds for denying the boiler- makers' rights. It is at least possible that bargaining with the Boilermakers will result in rules and disciplinary proce- dures acceptable to all the unions. This appears particular- ly likely if, as Respondent professes, its rules serve to pro- tect the employees. And, as said by Trial Examiner Bott in Murphy Diesel Company, supra, 184 NLRB at 764: "It is at least conceivable that if the Union had been or should be consulted about the rules, it might come up with some rea- sonable suggestions which might help alleviate some of the confusion and unrest existing in its ranks. At least . . . it is worth a try." And there is nothing to prevent Respondent's asking the other unions to bargain about rules. That Re- spondent may have the final say in the event of an impasse (Miller Brewing Company, 166 NLRB at 832) does not ob- viate the requirement to bargain. Accordingly, I find that, as alleged, Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally promul- gating rules dated July 1, 1975, and thereafter enforcing them and refusing to bargain about them with the Union. The Charging Party requests that I also find that Re- spondent violated Section 8(a)(5) and (1) by discontinuing its practice of notifying the Union of disciplinary action against boilermakers and instituting the practice of having union stewards present at disciplinary interviews. I feel, however, that Respondent was never adequately put on notice to defend against any such allegation and the matter position which he had taken with respect to the rules indicates either a lack of concern for such employees or the inability to understand the impact of the rules" It ill behooves Respondent to indicate now that bargaining will necessarily result in detriment to the employees ""Most of the rules published by the Respondent are seemingly unex- ceptionable and forbid conduct that a rational person would assume to be interdicted, published rule or no Perhaps bargaining as to such prohibitions could be required only to satisfy form "But a bargaining representative is empowered to deal with an employer 'in respect to rates of pay, wages, hours of employment, or other conditions of employment "' was not fully litigated. Accordingly, I deny the Union's request in this regard. CONCLUSION OF LAW By unilaterally promulgating safety rules and rules gov- erning employees conduct and instituting a disciplinary system for its employees, by implementing such discipli- nary system, and by refusing to bargain with International Brotherhood of Boilermakers Local 37, a/w International Brotherhood of Boilermakers, Iron Shipbuilders, Black- smiths, Forgers and Helpers, about the rules and discipli- nary provisions, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has committed unfair la- bor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In view of all the circumstances, I believe that the remedy prescribed in General Electric Co., supra, 192 NLRB 68, is appropriate. Trial Examiner Reel there said (at 75): As to the code of conduct, in the light of all the oppor- tunities for bargaining over changes in the code which are available to both parties, I see no purpose to be served in abrogating the new code. I find merit in General Counsel's alternate request for relief; namely, that the Company should "fully restore to the status quo ante any employees who have been disciplined or who have suffered any losses by reason of Respondent's unlawful unilateral action. Unit Drop Forge Division, Eaton Yale & Towne, Inc., 171 NLRB [600, 602]." On the date on which the Company achieves compliance with this order (not less than 60 days after posting of the notice herein recommended), unless the Union has pending at that time a good-faith bargaining request concerning the code, the Company may be considered free to implement in futuro the new code The order recommended herein is adapted from the or- ders in General Electric Co., supra; Murphy Diesel Co., 184 NLRB 757, 765-766; and Amoco Chemicals Corp., 211 NLRB 618. The present case presents one question not involved in the prior relevant decisions. As previously noted, the rules here in question are applicable to all of Respondent's pro- duction and maintenance employees, in seven separate units, each of which is represented by a different union. So far as appears, only the Pipefitters has objected to the July I rules, although the evidence clearly indicates that none of the unions was given notice of and an opportunity to bar- gain about the rules. Since a charge generally speaking is merely the mechanism for initiating action by the Board, and not primarily a means of vindicating private rights, Board orders normally extend beyond the rights of the charging parties. For example, if an individual files a charge against an invalid no-solicitation rule, the Board 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requires total rescission of the invalid rule. On the other hand, the charge and complaint in the present case concern only Respondent's obligation to bargain with the Pipefit- ters as the collective-bargaining representative of a speci- fied bargaining unit. It may well be that the other unions are satisfied with the July 1, 1975, rules and wish to waive their right to bargain concerning them. Under the circum- stances, it is deemed proper to limit the specific provisions of the Order in this case to the Pipefitters. Needless to say, such limitation in this Order is not to be deemed as an adjudication of Respondent's obligations to any union other than the Pipefitters. [Recommended Order omitted from publication.]