Communications Wkrs., Loc. 1122

COMMUNICATIONS WKRS., LOC. 1122 97 Communications Workers of America , Local 1122 and New York Telephone Company. Case 3-CB-2565 September 23, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On May 18, 1976, Administrative Law Judge El- bert D. Gadsden issued the attached Decision in this proceeding. Thereafter, General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed a brief in answer to the exceptions. 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 only to the extent consistent herewith. The complaint alleges, inter alia, that Respondent violated Section 8(b)(3) of the Act by institution of an unlawful ban against its members' acceptance of temporary supervisory positions and by implementa- tion of the ban by filing intraunion charges against a union member who accepted the temporary position; that the filing of intraunion charges against the mem- ber who accepted the temporary supervisory position is an attempt to enforce conduct violative of Section 8(b)(3) ' aid is therefore itself violative of Section 8(b)(1)(A); and that - the ban violates Section 8(b)(1)(B) in that it restrains and coerces the Compa- ny in the selection of supervisors who accept and adjust grievances. The Administrative Law Judge found Respondent had not engaged in any unlawful activity and dismissed the complaint in its entirety. We disagree. Our review of the record reveals that the Administrative Law Judge's findings of fact and conclusions of law are not supported by the record. The Communications Workers of America (CWA), AFL-CIO, hereafter the National Union, has had a number of ' collective-bargaining agree- ments with the New York Telephone Company, hereafter the Company, since 1961. These collective- bargaining agreements,,, including the current one which runs from July 118, 1974-July 6, 1977, have recognized the National Union as the exclusive col- lective-bargaining representative of approximately 30,000 of the Company's employees. These employ- ees are in a single statewide unit and all, of the collec- tive-bargaining agreements have been negotiated on a statewide basis by the National Union. Throughout the State, there are 22 locals of the National Union which have bargaining unit employees as members. The constituent locals have no authority to negotiate collective-bargaining agreements with the Company, and any modification of the existing contract must be in writing and signed by the parties to the contract themselves? The Respondent, Communications Workers of America, Local 1122, is 1 of these 22 locals, and its members are employed in bargaining unit positions in the metropolitan Buffalo, New York, area. Prior to the onset of the collective-bargaining rela- tionship between the Company and the National Union, the Company had an established practice of assigning unit employees to act as temporary supervi- sors. In the subsequent collective-bargaining agree- ments between the parties, this practice was estab- lished as a formal contract right. In the current contract, article 8, Transfers, provides: The Company may transfer or assign, tempo- rarily or permanently, any employee from an oc- cupational classification to another, or from one assignment to another within the same occupa- tional classification, or from an occupational classification to a position outside of the bargain- ing unit either as a step in force adjustment or for other purposes. [Emphasis supplied.] The overtime provisions of the contract also, by in- ference, recognize the Company's right to make such assignments. It provides: An employee temporarily promoted to a man- agement job shall be charged with the average overtime of his unit during the entire period of his absence from his unit on the acting assign- ment. [Emphasis supplied.] In a similar manner, the dues-deduction clause im- plies the Company's right to make temporary super- visory assignments. It provides: An employee's written authorization for such deduction shall be cancelled automatically by the Company when the employee is transferred, except on an acting basis, to a position wherein he is no longer covered by the terms of this Agreement. The Company will notify the Union of all such permanent transfers. [Emphasis sup- plied.] t The request for oral argument by the Charging Party is hereby denied as 2 The collective-bargaining agreement contains a waiver clause that re- the record and briefs adequately present the issues and positions of the - quires any modification to the collective-bargaining agreement to be explic- parties. itly set forth in writing and to be signed by both parties to the contract 226 NLRB No. 7 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the negotiations for the 1968 contract, the National Union submitted a contractual proposal which sought to limit the Company's right to appoint temporary supervisors. The Company, however, re- jected this proposal and the National Union has not sought to reintroduce a similar proposal during sub- sequent negotiations for the 1971 and 1974 contracts. Based on the above, we find the contract clearly grants the Company the right to assign temporary supervisory positions to unit employees. Notwithstanding -the National Union's failure -to achieve any contract limitations-on the Company's right to make assignments of temporary supervisory positions, Local 1122, the Respondent, unilaterally instituted a ban on all such assignments in June 1969. From June 1969 to August 1972, the Company did not contest Local 1122's ban in the Buffalo area, and no temporary supervisory assignments were made in that area. However, elsewhere within the statewide unit, the Company continued to make such assign- ments.' Beginning in August 1972, the Company again began' to make temporary supervisory assign- ments within the Buffalo area. Although the ban re- mained in effect, Local 1122 made no effort to op- pose the Company's renewed application of its contract rights. However, in July 1975, Local 1122's chief steward signed an intraunion charge against a union member, Richard Macvie, who had accepted a temporary supervisory assignment,in June 1975.4 Section 8(b)(3) The Administrative Law Judge found that the ban imposed by the Respondent did not violate Section 8(b)(3) because the Company's abstention from uti- lizing temporary supervisors from 1969-72 "consti- tuted an implied agreement by the Employer to re- frain from doing so, and/or its acquiescence in the Respondent's demand that the practice be terminat- ed." We disagree. We find no merit to the finding that the Company's temporary acquiescence in the ban constituted an "implied agreement" by the Com- pany to refrain from such assignments. As previously mentioned, the contract contains a waiver clause which requires any modification of the collective- bargaining, agreement to be explicitly set forth in writing and to be signed by both'parties to the con- tract. There is no evidence of any such waiver signed by the Company and the National Union. Accord- 3 The Company made no assignments anywhere in the State between July 14, 1971, and February 18, 1972, during which period the entire unit was on strike 4 Since the collective-bargaining agreement designates the chief steward to be a representative of the Local, we find that the intraunion charges were filed by an agent of Respondent on behalf of Respondent. 'ingly, we find the Company at no point agreed to the bans We also find no merit in the Administrative Law Judge's finding that the Company's temporary ab- stention of utilizing action supervisors constituted an acquiescence in the Respondent's demand that the Company cease making such assignments. As point- ed out above, the collective-bargaining agreement covers a statewide unit and was negotiated by the National Union. The Respondent is merely a consti- tuent local of the authorized collective-bargaining agent, and absent a-specific provision, it has no right to make any demands' modifying the collective-ba'r- gaining agreement.' The Company's temporary ab- stention from appointing acting supervisors between 1969 and 1972 was therefore voluntary and did not constitute acquiescence in Respondent's demand that the contract be modified. Accordingly, we find that Respondent's attempts to ban the Company's appointment of temporary supervisors constitutes an unlawful attempt to alter the collective-bargaining agreement in violation of Section 8(d) and 8(b)(3) of the Act.' Section 8(b)(1)(A) In similar fashion, the Administrative Law Judge found that since Respondent's ban did not violate Section 8(b)(3), the intraunion charge against a mem- ber who violated that ban was,a permissible effort to protect legitimate union interest and did not violate Section 8(b)(1)(A).- However, as a corollary to our finding that Respondent's ban violated Section 8(d) and 8(b)(3), we find the intraunion charge against Richard Macvie,,the union member who ignored the ban, also violated Section 8(b)(1)(A). In Scofield v. N.L.R.B., 394 U.S. 423, 432 (1969), the Supreme Court pointed out that the enforcement of a union rule may be handled as an, internal union matter and 5 We find no merit in Respondent's claim that the Company had estab- lished a practice of meeting with the Respondent and making oral modifica- tions to the collective-bargaining agreement between the National Union and the Company. The examples cited by Respondent concerning local practices involving switchmen's tours,; upgrading of fobs, vacation schedul- ing, and lunch hour durations are all rooted in contract provisions or were voluntary privileges granted by the Company to comply with practices es- tablished prior to the collective-bargaining relationship with the National Union . We find no evidence of any arrangement or contract provisions providing for local negotiations concerning the assignment of temporary supervisory positions In fact the National Union opposed attempts by its constituent locals to ,unilaterally modify the contract by banning the assignment of temporary supervisory positions. In a 1973 letter (the Administrative Law Judge incor- rectly reported 1975 as the date of this letter) the National Union notified locals that an attempt to ban the Company's assignment of temporary su- pervisory positions was contrary to the National Union's constitution and therefore was impermissible 'Communications Workers of America, AFL-CIO Local 1170 (Rochester Telephone Corporation), 194 NLRB 872 (1972), enfd 474 F.2d 778 (C A 2, 1972) ,COMMUNICATIONS WKRS., LOC. 1122 99 not necessarily violate Section 8(b)(1)(A) of the Act "unless some, impairment of= a statutory labor policy can be shown." In the present case, the intraunion charge does -not stem from the violation of a lawful union rule dealing with internal union affairs, but rather, as found elsewhere in this decision, the in- traunion charge is an attempt to enforce conduct vio- lative of the Act. Such conduct, of course, constitutes the type of "impairment of a statutory labor policy" referred to by the Supreme.Court. Accordingly, we find that Respondent's attempt to unilaterally alter -an existing collective-bargaining agreement in viola- tion of Section 8(d) and 8(b)(3)- also constitutes re- straint and coercion in violation of Section 8(b)(1)(A) when it attempts to enforce that unlawful action through intraunion charges. Section 8(b)(1)(B) The Administrative Law Judge also dismissed the 8(b)(1)(B) allegation, finding, inter alia, that perma- nent supervisors-and temporary supervisors did not possess the authority to adjust grievances. Our exam- ination of the record reveals no support for such a finding. On the contrary, the record contains an abundance -of evidence establishing that supervisors (including temporary supervisors) possess the author- ity, and in fact accept grievances, process grievances, and participate in the adjustment of grievances. Fur- ther, specific 'evidence was also introduced which clearly establishes that temporary supervisors have the authority to hear and resolve employee problems and complaints which have not ripened to formal grievances, and they have in fact adjusted such mat- ters. Accordingly, it is clear, and we so find, that Respondent's conduct in instituting the ban on ac- ceptance of temporary supervisory positions and its subsequent enforcement of that ban constitutes re- straint and coercion of the Company in the selection of supervisors in violation of Section 8(b)(1)(B) of the Act. THE REMEDY Having found that Respondent has engaged in cer- tain unfair labor practices in violation of Section 8(b)(3), 8(b)(1)(A), and 8(b)(1)(B), we direct Respon- dent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the pol- icies of the Act. Having also found that Respondent filed intraun- ion charges against unit employees who violated the ban, we direct that Respondent expunge from its rec- ords all actions taken against unit employees who violated the ban and cancel, withdraw, rescind, and reimburse any penalty which has been assessed against any such employee-- We further direct that Respondent make whole any unit employee who had accepted and then was forced to relinquish=a tempo- rary supervisory position because of the ban. The reimbursement of any assessed penalties and the backpay due any unit employee who was forced to relinquish a temporary supervisory position because of the ban will be determined in accordance with the formula set forth in F. W. Woolworth Company, '90 NLRB 289 (1950), and 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, Communications Workers of America, Local 1122, Buffalo, New York, its officers, agents, and represen- tatives, shall: 1. Cease and desist from: (a) Instituting, maintaining, or enforcing any ban or embargo against the acceptance by-unit employee union members of assignments to positions as tem- porary supervisors, without affording the Company a timely opportunity to bargain within the meaning of Section 8(d) of the Act. (b) Restraining or coercing employees in the exer- cise of their rights guaranteed in Section 7 of the Act, by threatening to impose penalties upon employees, or bringing charges against employees or penalizing employees for accepting assignments to positions as temporary supervisors in violation of Respondent's ban against such action. (c) Restraining or coercing New York Telephone Company in the selection of representatives for the purpose of collective bargaining or adjustments of grievances by engaging in the conduct set forth in (a) and (b) above. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Cancel, withdraw, and rescind-the ban or em- bargo and-immediately notify the Company, in writ- ing, that such action has been taken. (b) Cancel, withdraw, and expunge from Re- spondent's records all action taken against Richard Macvie and any other unit employee because of the ban and immediately notify such employees by per- sonal letter that such action has been taken. (c) Cancel, withdraw, and rescind any penalty which has been assessed against Richard Macvie and any other unit employee because of the ban or em- bargo and reimburse any such employee for any pen- alty which has been assessed for such reason. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Make whole Richard Macvie and any other unit employee who had accepted appointment as temporary supervisor and who was forced to relin- quish such position by reason of the ban, or the threat of imposition of penalty, should they remain as temporary supervisors during the existence of the ban. Such employees shall be. made whole in accor- dance with the manner set-forth in the section of this decision entitled "The Remedy." (e) Post at its business office and-meeting hall cop- ies of the attached notice marked "Appendix." 8 Cop- ies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's authorized representative, shall be posted 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 members are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material, (f) Furnish the Regional Director for Region 3 with signed copies of said notice for posting by New York Telephone Company, if willing, in places where notices to_ employees are customarily posted. (g) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 8 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 AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL cancel our ban against employee union members in the appropriate units set forth below accepting assignments to temporary su- pervisory positions for the Company and WE WILL NOT enforce that ban against such unit em- ployees. WE WILL NOT institute, maintain, or enforce any ban or embargo against the acceptance by unit employees of assignments to positions as temporary supervisors, without first affording the Company 'a timely opportunity to bargain within the meaning of Section 8(d) of the Act. The appropriate bargaining unit consists of the following: Included: All plant, network operations, cus- tomer services, technical services, engineering, and facilities employees of New- York Tele- phone Company whose occupational classifi- cations are listed in the craft, building and supplies, clerical and miscellaneous appearing in article 31; all employees in the Empire City Subway Company (Limited); it being under- stood that the certified unit shall include, only those employees employed in occupational classifications which were included in the cer- tified unit under the previous collective-bar- gaining agreement. Excluded: All guards, watchmen, professional employees, supervisors as defined in the Na- tional Labor Relations Act, as amended, and employees regularly performing confidential labor relations duties. WE WILL NOT restrain or coerce the Company in the selection of representatives for the pur- pose of collective bargaining or the adjustment of grievances. WE WILL NOT in any like or related manner restrain or coerce -employees in the exercise of rights guaranteed by Section 7 of the Act. WE HAVE advised all employees who have been charged by the Union for accepting assign- ments to temporary supervisory positions that these charges have been canceled. WE WILL reimburse those employees for any penalties which they have been required to pay because of such charges. WE WILL make whole those unit employees who were forced to relinquish temporary super- visory positions they were holding at the time we instituted the ban for any loss of earnings they may have suffered as a result of our conduct. COMMUNICATIONS WORKERS OF AMERICA, LOCAL 1122 DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge: Upon a charge filed on July 24, 1975, by New,York Telephone Company, the Charging Party, herein called the Employer, a complaint was issued by the General Counsel of the Na- tional Labor Relations Board on September 30, 1975, against Communications Workers of America, Local 1122, herein called the Respondent. The complaint alleged that the Respondent unilaterally imposed a prohibition against Employer's longstanding practice of utilizing union mem- bers to act as temporary supervisors (foremen) which it COMMUNICATIONS WKRS., LOC. 1122 101 sought to enforce in violation of Section 8(b)(1)(A), 8(b)(1)(B), and 8(b)(3) of the Act. The Respondent filed an answer admitting the imposition and its efforts to enforce a prohibition against its members accepting appointments to acting supervisory positions, but denied that such conduct on its part constituted a violation of the Act. The hearing in the above matter was held before me in Buffalo, New York, on January 19 and 20, 1976. Briefs have been received from counsel for the General Counsel, counsel for the Charging Party, and counsel for the Re- spondent, respectively, which have been carefully consid- ered. Upon the entire record in this case and from my obser- vation of the witnesses, I hereby make the following: FINDINGS OF FACT I. JURISDICTION Employer is now, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of New York where it main- tains numerous offices and facilities in cities, villages, and towns throughout the State of New York, and more partic- ularly in Buffalo and the western New York State area. In all of these locations the Employer is engaged in the busi- ness of providing and installing local and long-distance telephone communication and related services in the State of New York. During the past 12 months, a representative period, Em- ployer derived gross revenues in excess of $1 million from its communication services between points within the State of New York and points in other States. During the past year, Employer, in the course and conduct of its business operations, purchased, transferred, and delivered to its of- fices and facilities in New York State, goods, materials and supplies valued in excess $50,000 which were transported to said offices and facilities directly from States of the United States other than the State of New York. The complaint alleges, the Employer admits, and I find that Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Respondent Communications Workers of America, AFL- CIO, Local 1122, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act; and that Communications Workers of America, AFL-CIO, herein called the National Union (CWA), is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background New York Telephone Company, the Employer herein, maintains numerous offices and facilities throughout the State of New York for the purpose of providing and install- ing local and long-distance telephonic communications and related services in the State of New York. Since 1961 the Respondent, Communications Workers of America, AFL-CIO (CWA), herein called the National Union, of which Local 1122 is a constituent has been the collective- bargaining representative for an appropriate unit of Employer's employees throughout the State of New York, and the parties (Employer and Respondent) have negotiat- ed and executed several statewide collective-bargaining contracts including the current one which was executed July 18, 1974; and is to expire July 6, 1977. During the course of their bargaining relationship, Employer has uti- lized on frequent occasions union-member employees as acting or temporary foremen in just about all first-line su- pervisory positions in its business operations throughout the State. However, on or about January 25, 1975, Local 1122 of the CWA voted to impose a ban (prohibition) upon its members accepting acting supervisory positions for the Employer. Subsequently, when one of its member employ- ees accepted such an appointment by Employer, Respon- dent initiated internal union disciplinary charges against the employee for accepting the temporary appointment. Employer now alleges that the imposition of the ban and Respondent's subsequent efforts to enforce it against mem- ber employees constituted a violation of the Act. The Employer contends that since its present, and sever- al of its prior, collective-bargaining contracts provided for its utilization of union employees as acting supervisors, and since such utilization by it was a widespread practice throughout the State, the Respondent did not have authori- ty to modify the contract negotiated and executed with the National Union and, therefore, Respondent's ban, and at- tempted enforcement of the same, constituted a violation of its contract and an unfair labor practice under the Act.] B. Employer's Use of Union Employees As Acting Foremen By stipulation of the parties, Employer and Respondent agreed that the appropriate bargaining unit consists of the following: Included: All plant, network operations, customer Services, technical services, engineering and facilities employees of New York Telephone Company whose occupational classifications are listed in the craft, building and supplies, clerical and miscellaneous ap- pearing in Article 31; all employees in the Empire City Subway Company (Limited;) it being understood that the certified unit shall include only those employees employed in occupational classifications which were included in the certified unit under the previous col- lective-bargaining agreement. Excluded: All guards, watchmen, professional em- ployees, supervisors as defined in the National Labor Relations Act, as amended, and employees regularly performing confidential labor relations duties. 1 The facts set forth above are undisputed and are not in conflict in the record. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The above-described collective-bargaining unit is a state- wide unit consisting of approximately 30,000 employees, for whom all collective-bargaining agreements are negoti- ated by the National Union (CWA) on a statewide basis. Several of the collective -bargaining agreements executed between the parties (G.C. Exhs. 2, 3, 4, 5, and 6) provide as described in article 30, section 30.01: Waiver or Modification This agreement constitutes the entire agreement be- tween the parties, and no waiver or modification shall be effective unless signed by the parties hereto, and no such writing, applicable to any particular instance or instances shall be construed as general waiver or mod- ification, but shall be strictly limited to the extent and occasions specified herein. According to the undisputed and credited testimony of Mr. Nelson C. Becker, an employee of the Employer of 34 years' duration and currently vice president of, Local 1122, Mr. Morton Bahr is vice president of the CWA, District No. 1, which consists of the entire State of New York; and that all of the several Locals over the State including their officers are subordinate to the jurisdiction of the CWA and Vice President Bahr. General Counsel's Exhibit 2 under the topic "Overtime Charging," item 8, provides: An employee temporarily promoted to a management job shall be charged with the average overtime of his unit during the entire period of his absence from his unit on the acting assignment. Article 5, payroll deductions of union dues, paragraph 5.04 (G.C. Exh. 2) provides: An employee's written authorization for such deduc- tions shall be cancelled automatically by the Compa- ny when the employee is transferred, except on an act- ing basis, to a position wherein he is no longer covered by the terms of this agreement. The above-described provisions were included in most of the collective-bargaining agreements executed between the parties in essentially the same language since 1964. Mr. James Hennessy, general manager of the western area of New York Telephone Company since January 15, 1976, was previously assistant vice president of human re- sources in the state region for Employer since September 1974.-He testified as follows: A. The New York Telephone Company is divided into two main parts, New York City Region, consist- mg of three burroughs [sic], New York and all the rest of the State, which we call the State Region, and with- in the State Region, that's-also divided into two parts, the Upstate Territory and the suburban territory. Q. And what is referred by the Upstate territory? A. It includes the western area, Buffalo area, and it includes Niagara Falls, Olean; the central area, Syra- cuse, Binghamton, Watertown, and the northeast area, which includes Albany, Utica and part-way down the Hudson River, and up to Canadian Border, again. Mr. Hennessy stated that the suburban territory included the geographic. area of Long Island, outside the city of New York,,Westchester and Rockford Counties, and an- other- in the outer mid-Hudson , area, south of Albany County. Mr. Hennessy's employment with the Employer dates back to December 1958 when he started as a plant depart- ment trainee and thereafter served in numerous capacities on numerous levels in-and around numerous offices and facilities of the Employer. In the several capacities in which he served, including personnel supervisor, -Mr. Hennessy dealt with second step grievance proceedings as manager of the mid-Hudson area. He continued to testify as fol- lows; - Q. Mr. Hennessy, referring to the period from Oc- tober 1st, 1968 to November 1st,_1971 while you were Division Plant Superintendent in the western area, will you please describe your duties and responsibilities? A. Yes, I was responsible for all of the installation and repair service and assignment facilities in the Western Area, which I mentioned before , including everything from Niagara Falls io Olean . In that capac- ity I was responsible for the efficient effect of produc- tion in those services for employee relations and labor relations activities. Q. During that period, Mr. Hennessy, with respect to labor relation duties, do you deal with any locals of the Communications Workers of 'America? A. Yes, the three locals in the western area, 1117 Niagara Falls, 1115, Hamburg-Olean Area and 1122 in Metropolitan Buffalo. Q. Mr. Hennessy, during that period while you were Division Plant Superintendent in the western area, were union employees used 'to fill Acting Super- visory position?' A. Yes, they were. Q. And under what circumstances were union em- ployees used to fill Acting Supervisory positions? A. Well, under the circumstances that there was a need, because of vacation coverage, because of a fore- man was out ill on' disability , of course it may be ex- panded on a temporary basis. They may be cut over new equipment and need supervision for a short peri- od of time, and those were the primary reasons there would be a need for an Acting Foreman. And of course always it provides us an opportunity to see craft people in a different role, in a managerial role for a short period of time. Mr. Hennessy said union employees were appointed to or rather assigned to and served in various titles of line foremen positions such as service foremen,-'central office foremen, and bureau foremen. The union employee is se- lected as a result of a recommendation by his foreman to the second-line supervisor who would either approve or disapprove of the recommendation . If the recommendation were approved the offer would then be made to the indi- vidual union employee to act as temporary foreman. The immediate foreman of the employee would advise him that he had been selected to serve as acting foreman . The duties of first-line supervisors involve planning the workload and assigning the work to individual craftsmen to perform, COMMUNICATIONS WKRS., LOC. 1122 checking to make sure that the work is done productively and up to standards and quality, insuring that employees complied with the attendance and tardiness standards, coaching and training individual employees, and-determin- ing needs for overtime work and assigning it to individual employees as required; and receiving and hearing grievances as well as settling any informal problems that arise. Also, while serving as division plant' superintendent of the western area, Mr. Hennessy said first-line supervisors had authority to discipline employees or they could recom- mend disciplinary action which had to be approved by a higher level supervisor. The acting supervisors had essen- tially the same authority the permanent supervisors had. Acting supervisors were given an increase in salary of 6 percent of the permanent supervisors top salary for that area. The Employer utilized the union employees as acting supervisors in the same manner in other areas and loca- tions where he (Mr. Hennessy) has worked since he was employed by the Employer in 1958, except the pay formula was reduced from 10 percent to the current 6 percent of top salary basis during the acting period. Mr. Hennessy then identified and explained General Counsel's Exhibit 16, a compilation of data from official company (employer) business records describing times, the number of individuals, and the kinds of supervisory posi- tions for which various local union employees were utilized by Employer as acting supervisors during the years 1962 through 1975 in the upstate area. The practice of utilizing such union employees was- widespread and consistent throughout the State. Upon his orders, Mr. Hennessy said similar data was compiled for the suburban territory part of the state region and the New York City region from the official business records of the Employer on the 200 to 300 district offices of the Employer throughout the State of New York. The data involved union employees of Locals 1102, 1103, 1107, and 1108 for the years 1961 through 1975.2 2 These data, which comprised G.C Exhs 17 and 18, were conditionally admitted into evidence over the objection of counsel for the Respondent because such data corresponded with, and complemented, data in G.C. Exh. 16, which was previously examined by counsel for the Respondent and to which he stipulated admission . G.C Exhs. 17 and 18 were also admitted because to require Employer to pull and produce all of the timecards and payroll records from all of its many district offices throughout the hereto- fore described regions would be imposing an undue and burdensome obli- gation on Employer, especially so since such data is only supplementary to the data in G.C. Exh 16, which was deemed accurate and established that the utilization of union employees by Employer as acting supervisors was a general, longstanding, widespread and consistent company (employer) prac- tice throughout upstate New York; because the data therein was compiled in like manner and is essentially the same in composit.on to the data in G.C Exh. 16, because Respondent has not advanced or offered any reason which it believed reasonably questions the accuracy or authenticity of the data in question ; that counsel for Employer had advised counsel for the Respon- dent in advance of this proceeding that such data had been requested and was being prepared, and that the preparation of the subject data was not completed until a few days before the date of this proceeding (January 19 and 20, 1976); that these data were prepared between early December and late December 1975 and presented to counsel for Employer, Mr Yager, in late December or early January 1976 Such data is a strong inference of the truth when it is considered along with Mr. Hennessy's testimony on the same and the data compiled in G C. Exh. 16, that I had Employer and its counsel to promise on the record that its records supporting the data in G C. Exhs. 17 and 18 would remain available for examination by counsel for the Respondent after the close of this proceeding to allow him an opportunity 103 C. The Supervisory Nature of The Function of An Acting Foreman In an effort to support the testimony of Mr. Hennessy to the effect that acting supervisors have the authority to par- ticipate in accepting and adjusting grievances, Employer (through Mr. Hennessy) ordered the compilation of data extracted from the grievance minutes allegedly taken by unit employees acting supervisors which constitutes Gen- eral Counsel's Exhibit 19. To further support General Counsel's Exhibit 19 that acting supervisors participate in the first-step grievance procedure, counsel for the General Counsel submitted General Counsel's Exhibits 23, 24, 25, 26, 27, and 28 from the western area of New York to com- plement the summary data in General Counsel's Exhibit 19. In view of counsel for the Respondent's consistent ob- jection to the admission of General Counsel's Exhibit 19 and thereafter, to General Counsel's Exhibits 23-28, the General Counsel submitted copies of the actual grievances (G.C. Exhs. 29-47), in further support of General Counsel's Exhibits 19 and 23-28. The Administrative Law Judge admitted all of General Counsel's exhibits (19 and 23-47) in the order in which they were introduced over the strenuous objection of counsel for the Respondent, in or- der to afford himself an opportunity to thoroughly exam- ine and evaluate each document in light of the purpose for which it was submitted.3 The language in the position or job descriptions (Resp. Exhs. 2-16) indicate that a permanent supervisor has the authority to: participate in first-step union grievances, ad- minister the union contract, and participate in grievance discussions in handling first-step hearings. Counsel for the Respondent points out that such language was omitted from the position descriptions outlined in General Counsel's Exhibit 19, as well as (a) "preparation of the minutes, (b) postmg overtime records, and (c) the prepara- tion of certain reports, as outlined in Respondent's Exhib- its 2-16 4 to examine said data before the time for the submission of briefs (March 1, 1976) herein, and I advised counsel for the Respondent to avail himself of the opportunity to inspect such records during such period and advise me if his examination revealed anything which indicated that the data was incor- rect, inadequate, or unauthentic so that I could reopen this proceeding and/ or exclude the data comprising G.C. Exhs. 17 and 18. Not having received such a motion from counsel for the Respondent G.C. Exhs 17 and 18 are hereby unconditionally received as a part of the record herein 3 While an examination of G.C Exh 19 represents only a compilation of data extracted from official company records, indicating the names of vari- ous unit employees acting as supervisors in upstate New York who were also involved in grievances of other unit employees , G.C. Exhs. 23-28 repre- sents copies of reports of first-step grievances signed by such acting supervi- sors in the western area during the year 1963-75. However, G C Exhs. 29- 47 represents copies of the actual grievances which show the names of unit employees, as acting supervisors, attending and participating in first-step grievances which in some instances they signed as acting foreman (supervi- sor) Consequently, when the foregoing cumulative documentary evidence is considered in totality along with Mr Hennessy's undisputed testimony, which I credit, the evidence is more than sufficient to support the conclu- sion, and I so find, that Employer's widespread practice of utilizing unit employees as acting supervisors also, on occasion , included their receipt of and their attendance and participation in first-step grievances of other unit em4ployees While this mere omission itself may not, ipso facto, constitute sufficient proof that Employer's supervisors and acting supervisors do not have the authority to adjust grievances, when such onussion is considered along with Continued 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties stipulated that the negotiations of all collec- tive-bargaining agreements (G.C. Exhs. 2, 3, 4, 5, and 6) of the subject unit employees since 1961, have taken place on a statewide basis between the National Union and the Em- ployer. General Counsel's Exhibit 7, section 4(a), provides as follows: Membership in the Union shall be terminated when any member shall accept a position which would ren- der him ineligible for membership, except that a mem- ber who temporarily assumed such a position may re- tain membership for a period not to exceed thirty (30) days, provided during such period such member shall not hold any office within the Union. The above document is entitled "Communications Work- ers of America, AFL-CIO, a constitution, as amended, June 1974." In attempting to establish the extent to which several locals of the National Union went in an effort to try to implement an effective ban against union employees ac- cepting temporary or acting supervisory roles with the Em- ployer, counsel for the General Counsel submitted an in- ternal memorandum (G.C. Exh. 8) from the vice president of the National Union to all district staff members which read as follows: September 10, 1975 To: All District One Staff From: Morton Bahr, Vice President Subject: Constitution Interpretation A number of Local Unions have adopted or are considering adopting By-laws provisions that would make it a violation of the By-laws if a member accept- ed a temporary management job. Following is the ex- act proposal that was adopted by Local 1127. Effective January 31, 1969, no Local 1127 member may accept or enter into a temporary or acting management assignment . Should any Local 1127 member accept or enter into such an assignment, he or she shall be subject to charges in accordance with the Local 1127 By-laws and CWA Constitution. Should any Local 1127 member be found guilty by a duly Authorized and constituted Local 1127 Trial Court of violating the aforesaid rule, the Trial Court shall set a penalty, the minimum of which shall be a $50 fine and suspension of all rights of membership [pending payment]. John Carrol who is chairman of the Constitution Committee has advised me that the Local 1127 pro- posal cannot be approved since it is in conflict with Article V, Section 4(a) of the, CWA Constitution which reads as follows: (a) Membership in the Union shall be terminated when any member shall accept a position which the total evidence of record, it becomes obvious that it was not coincidental- ly an oversight, but rather, a clear intent of Employer not to delegate or not to specify such authority would render him ineligible for membership, except that a member who temporarily assumes such a po- sition may retain membership for a period not to exceed thirty (30) days, provided during such period such member shall not hold any office within the Union. To accomplish what Local 1127 wants to accom- plish would require a constitutional amendment to eliminate acting or temporary management jobs from the meaning of that section of the Constitution. This matter should be brought to the attention of your Lo- cals.' MB/pd cc: G. Cramer M. B. D. Local 1122s Resolution Prohibiting Its Members From Accepting Acting Supervisory Positions Mr. Paul M. McGavis, a past president and current vice president of Local 1122, testified that early in 1969 its Tri- Local Council (composed of representatives from Locals 1122, 1115, and 1117) had agreed to ban employees from accepting acting foreman positions with the Respondent; that on April 16, 1969, Mr. Hennessy of the Employer asked Local 1122 if the western area Locals 1122, 1115, and 1117 would consider withholding their action banning union employees from accepting acting foreman positions in return for Employer's promise to limit and reduce the utilization of such acting positions in the western area; and that if they were willing to make that an upstate agreement, Employer would not assign acting foremen to supervise their own work groups. He further stated that the Tri-Local proposal was put on their Tri-Local tape which was avail- able to Employer and the entire Tri-Local membership prior to April 16, 1969. Mr. McGavis said he then told Mr. Hennessy that as a representative of Local 1122, he would take, Mr. Hennessy's proposal back to the first local executive board meeting for consideration. The board decided to have fur- ther discussion with the Employer on the proposal but Mr. McGavis said he did not have further discussions with Em- ployer because he was awaiting the results of a survey on the matter from Locals in the upstate. Eventually, he said he learned some of the locals were receptive to the proposal but others were not. Consequently, at the May 9, 1969, membership 'meeting the members by vote rejected Employer's proposal and instead voted to invoke the origi- nal proposal to ban unit employees from accepting acting 5 This exhibit was admitted into evidence over the objection of counsel for the Respondent because while it does not represent a document pre- pared or disseminated by Local 1122, it nevertheless represents an internal document prepared and distributed by Local 1122's superior, the National Organization, with respect to the authority of locals to implement a prohibi- tion against union'employees accepting acting supervisory positions . In this regard, the document is relevant, from the National Organizations's point of view, to the crucial issue in this case, as to whether or not the efforts of Local 1122 to impose and enforce such prohibition is without legal jurisdic- tion to do. This is so even though vice president of Local 1122, Nelson C Becker, denied knowledge of receipt or filing of the above -described docu- ment (G.C Exh 8). COMMUNICATIONS WKRS., LOC. 1122 foreman positions. This resolution was never rescinded by Local 1122 and the action was published in Local 1122's newspaper which was distributed to all members and third- level management of the Employer, including Mr. Hennes- sy. Subsequently, pursuant to union contract, a copy of the resolution (G.C. Exhs. 9 and 10) was posted on the bulletin boards on June 15 and 17, 1975, respectively, where notices addressed to employees are customarily posted. In fact Mr. McGavis said Local 1122 and the other locals actually re- jected Mr. Hennessy's proposal. The parties stipulated that during the negotiations which took place July 1-9, 1968, the Union proposed that "any employee promoted to management shall lose all seniority as to the choice of vacations, promotions, selection of tours, and transfers, upon his return to the bargaining unit, for the length of time he was promoted to management." When management asked whether the Union was trying to restrict its right to promote people to acting management, the response was "yes." When Employer asked was the Union trying to put some sort of pressure on people, em- ployees to refuse to accept these acting management jobs, the response was "yes." However, the Employer rejected the proposals and the matter was not thereafter discussed in negotiations. According to the credible testimony of Mr. James Hen- nessy and Mr. Paul McGavis, Mr. Hennessy did meet with the bargaining committees of Locals 1122 (representing 1,000 unit employees), 1115 (representing 400 unit employ- ees), and 1117 (representing about 600 unit employees) on April 17, 1969, when the use of acting foremen (supervi- sors) was discussed in Buffalo, New York. Mr. McGavis further testified that Local 1122 had a lo- cal oral and unsigned agreement with Employer regarding "switching tours" which was negotiated in 1964 but the Union did reduce the oral agreement to writing. On cross- examination Mr. McGavis read article 30, section 30.01, of the current collective-bargaining agreement which provides as follows: Article 30 Waiver or Modification 30.01. This Agreement constitutes the entire Agreement between the parties, and no- waiver or modification shall be effective unless signed by the parties hereto, and no such writing, applicable to any particular instance or instances, shall be construed as any general waiver or modification, but shall be strictly limited to the extent and occasion specified herein. Mr. McGavis then acknowledged that the above-cited provision in the last collective-bargaining agreement was negotiated and signed by the International Union of the CWA. He also admitted that the agreement the Respon- dent contends it had with the Employer prohibiting unit employees from accepting appointments to acting supervi- sor positions was not ever signed by the Employer and Local 1122. He further admitted that pursuant-to General Counsel's Exhibits 2 and 6, the collective-bargaining agree- ment, the Employer has appointed unit employees to tem- porary management or acting supervisor positions since 1964. On cross-examination when Mr. Hennessy was asked to explain why there were not any appointments for acting 105 supervisors during the year 1.-971, he replied that half of the year 1971 the bargaining unit was on strike and he believed the absence of any such appointment during the other half of 1971 was due to the effectiveness of Local 1122's ban on its employees accepting such positions. However, he readi- ly admitted that he did not know as a fact whether such positions were offered to the unit employees or whether unit employees declined to accept such offers during 1971. Mr. Hennessy also admitted on cross-examination that no union employee under the jurisdiction of Local 1122 was appointed to supervisory positions following June 1969, until 1973, and that is true for Local 1122 as well as Locals 1117 and 1115. He conceded to counsel for the Respondent that this was a significant reduction in the use of temporary supervisors following June 1, 1969. Mr. McGavis further testified that subsequent to Local 1122's ban on union employees accepting acting supervisor positions, Employer promoted a substantial number (50- 60) of unit employees to permanent foremen within a peri- od of 6 months, as contrasted to what normally had been 15 or 20 employees. Mr. Roy A. Jordan, in the employ of the Respondent for 23 years and now division construction superintendent, outside plant maintenance, western area, is responsible for maintenance and repair of outside plants, poles, anchors, cables, underground conduits, etc., and he responds to the second-step grievances of employees. He deals with all three locals, 1122, 1115, and 1117. He testified that in his early career he served as an acting -foreman 2 or 3 weeks, and on another occasion for 9 months as a cable splicer during which time he earned 10 percent more than his sal- ary. Generally when he served in such capacities he per- formed substantially the same duties as the permanent su- pervisor for whom he was acting. He further testified that union employees can decline to accept appointments to acting supervisors and that he knew of employees who were selected and had accepted acting first-line supervisor positions. Acting supervisors have the authority and re- sponsibility to resolve complaints on a daily basis and also resolve and/or process grievances. Mr. Jordan supported his testimony in this regard by identifying and explaining General Counsel's Exhibits-20 and 21 with respect to the number of persons and the number of times such employ- ees have served as acting supervisors. He said acting crafts- men do not fill out a timesheet unless they are acting for 2 days or less (G.C. Exh. 22). The resolution of Local 1122 is published in the Union's newspaper (G.C. Exh. 17) which was distributed to the membership and to second-level management of Employ- er. Mr. McGavis further testified as follows: Q. When referring to Tri-Local Council, in what ar- eas? A. 1115, 1117, 1122, membership, executive mem- bership of three locals at that time. Q. Can you be more specific about what the pro- posals were that Mr . Hennessy stated to you he'd be willing to negotiate, hopefully for Upstate , but if not, for three locals? A. I recall them specifically . First they would limit 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the numbers of employees in our bargaining unit who would be considered for acting foremen. They would be willing to agree to 3 percent pool of the same; that they would reduce this percentage of the bargaining unit pool of the available acting foremen during the summer vacation period to even less than that; that they would not assign acting supervisors so selected to supervise their own work groups. That in addition to that they would provide an additional assignment of the field dispatcher and senior frame man titles which were craft titles, but if a lead man acted in that capaci- ty within the contract that we felt could be better uti- lized prior to that time. In addition to that they of- fered to limit, or in fact fully restrict any transfers between our areas and other areas of acting supervi- sors, either within or without our western area, if we agreed to a Western Area agreement. If it was a Up- state Agreement, it would be confined to people used in regard to the. pool to that area. Mr. McGavis'also said that Local 1122 also had a lunch hour duration agreement with Employer which predated the existence of Communications Workers of America, which agreement was not consistent with the contract but nevertheless continued in force and effect since 1961, even though such agreement was not in writing. Mr. Roy I. Bert Youngberg, who was employed by the Employer 23 years and was president of Local 1115 from 1966 to 1970, testified that during his tenure as a union official, and prior to April 16, 1969, Local 1115 and Em- ployer did negotiate the subject lunch duration and sche- duling of vacations, which if they were unsuccessful the Local would have filed a grievance. However, negotiations were always successful and they negotiated or discussed other matters involving the adequacy of summer hirees. The parties stipulated that the strike of the CWA com- menced 'July 14, 1971, and terminated February 18, 1972; and that Local 1103's jurisdiction is the Westchester Coun- ty area of the State. On July 2, 1975, Respondent charged one of its mem- bers, Richard Macvie, with violating Local 1122's rule pro- hibiting its members from accepting an "acting supervi- sion" assignment; and that Macvie was "acting" from June 8 to 14, 1975, and from June 29, 1975 to the present time (July 2, 1975) (G.C. Exh. 11). In a letter dated July 3, 1975, Respondent advised its union member, Richard Macvie, as follows (G.C. Exh. 12): You have been formally charged with violation of the Local's rule against accepting "Acting Supervi- sion". The Local Executive Board has not met since the receipt of this charge to formally review it and select a teal court for the trial. You will be so advised. I have included a copy of the rule notice which is posted at your work location as well. In addition to other reasons against accepting "Acting," such as eliminating the need for more permanent foremen, we are aware of the company's excess permanent foreman situation especially in Construction and the rumored downgrade of some of them back into craft where they would fill senior positions on vacation lists etc. as well as the possibility of actually causing layoffs of junior construction workers. Any "Acting" would certainly contribute to allow- ing greater numbers of these permanent foreman downgrades. I ask you to immediately return to your craft posi- tion. Macvie was subsequently advised by Local 1122 that he would be notified as to the time and date for his trial (G.C. Exh. 13). Analysis and Conclusions It is well established by the evidence of record that it has been a long-standing (1964-April 1969) and widespread (New York State) practice of Employer (New York Tele- phone Company) to appoint union-member employees to acting (temporary) supervisor positions with the coopera- tion and blessings of the Communications Workers of America (CWA), of which the Respondent (Local 1122) is a constituent, until April 1969 when Respondent imposed a ban against its members accepting such temporary ap- pointments. Five of the six successive collective-bargaining contracts executed between the Employer and the CWA contain provisions essentially the same as presently consti- tuted under paragraph 8 of General Counsel's Exhibit 2, and article 5, subparagraph 5.04, of General Counsel's Ex- hibit 2, respectively, which provide as'follows: An employee temporarily promoted to a management job shall be charged with the average overtime of his unit during the entire period of his absence from the unit on the acting assignment. An employee's written authorization for such deduc- tions shall be cancelled automatically by the company when the employee is transferred, except on an acting basis, to a position wherein he is no longer'covered by the terms of this Agreement. Employer contends that Respondent's union is bound to honor and comply with the acting supervisor practice by its current collective-bargaining contract, and that Respon- dent's enforcement of a ban against the practice constitutes a breach of contract and a violation of Section 8(b)(3) of the Act._ None of the five collective-bargaining agreements execu- ted between Employer and the CWA, by which Respon- dent (Local 1122) is bound, contained any specific provi- sions compelling Employer to authorize, or compelling any union-member employee to consent to, the practice of uti- lizing unit employees 'as acting supervisors. However, each contract nevertheless does recognize the practice by provi- sions governing matters ancillary to the practice iteself. That is, the language in both of the above-descnbed provi- sions presupposed that Employer has offered a union- member employee such an appointment and the employee has accepted the appointment. It is further observed that the language in neither of the above-cited provisions is mandatory with respect to initiating or continuing the practice of utilizing acting supervisors. In fact the Employ- er testified that any union-member employee who is of- COMMUNICATIONS WKRS., LOC. 1122 fered such an appointment is free to decline acceptance. Correspondingly, it's clear from both the language of the heretofore cited contract provisions and the evidence of the practice itself that, while Employer may not be legally bound by the contract to make or to cease from making such appointments, it nevertheless did make frequent and widespread acting supervisory appointments prior to April 16, 1969. The Respondent admits and concedes that it ac- quiesced in Employer's practice of using acting supervisors. Under these circumstances, the mutual recognition of the practice as supported by the ancillary contract provisions by which the practice was actually carried out became a term and condition of employment by which the parties (Employer and Respondent) were obliged to bargain. The record shows that as early as 1967 Local 1103 of the CWA had imposed a ban against its members acceptance of acting supervisory appointments and that the Employer had knowledge of such ban. During one of its occasional meetings with- Respondent the Employer requested the three locals, 1115, 1117, and 1122, which had demanded abolition of the acting supervisor practice, to delay impos- ing a ban upon its employees accepting acting supervisor positions. In consideration of such forebearance, Employer promised to limit the duration of such future appointments to 30 days and to refrain from assigning such acting super- visors to supervise their own work group. The Locals took Employer's offer back to its executive board which submit- ted it to the full membership for vote. The membership rejected Employer's offer and in turn voted to impose a ban upon its membership accepting Employer's appoint- ments to acting supervisor positions. Employer was ap- prised of the membership's action and did not make any further demands upon the three named locals, but never- theless did refrain from appointing any union-employees to supervisory positions from April 16, 1969, until 1971. When the Employer was asked why were there no appoint- ments of acting supervisors during the year 1971, the latter replied that Local 1122 was on strike for about 6 months of that year and it attributed nonappointments during the re- maining 6 months to the effectiveness of the Union's ban on its membership accepting such' appointments. The Respondent contends, and I find, that Employer's sudden and obvious abstention from utilizing acting super- visors following the Employer-Local meeting in 1969, for a period of 2 years, constituted an implied agreement by Em- ployer to refrain from doing so, and/or its acquiescance in the Respondent's demand that the practice be terminated. The nonappointment of unit employees to temporary or acting supervisor positions during such 2-year period be- came a term or condition of employment by which Em- ployer and Respondent were thereafter obliged to bargain. At this juncture, Employer and Respondent were neither bound by contract nor practice to recognize the utilization of union employees as temporary ,supervisors. The record further shows, and I find, that in 1971 Employer proceeded to utilize union-member employees as acting supervisors, thereby reinstituting the prior practice in derogation of the current practice of 2 years' duration of not making such appointments. When Employer appointed union-member employee Richard Macvie to an acting supervisor position which Macvie accepted, Local 1122 charged Macvie with 107 violating its rule against accepting such appointments and selected a trial court to exact the fine against him. The Employer now contends that the Respondent, by promul- gating and now attempting to enforce its ban against its membership accepting acting supervisor positions, violated Section 8(b)(l)(A) and 8(b)(3) of the Act as the Union did in Rochester Telephone Corporation, infra, and it also violat- ed Section 8(b)(1)(B) of the Act. In this regard, Communications Workers of America, AFL-CIO, Local 1170 (Rochester Telephone Corporation, 194 NLRB 872 (1972), cited by counsel for Employer, is distinguishable from the facts in the instant case. There, unlike ,here, the union was successful in bargaining sessions to have the employer agree to modify the longtime practice by limiting the duration of temporary or acting supervisors to 30 days, and by promising that, whenever possible, such employees selected would not be assigned to supervise their own work group. This negotiated limitation on the practice of assigning temporary supervisors was accepted by the union and was subsequently reaffirmed by the em- ployer in letters to the union and thereby became a part of the contemporaneous bargain in executing the prior con- tract between the parties. Consequently, when the union thereafter adopted an unqualified ban on its member-em- ployees accepting -temporary supervisor positions, the adoption- and enforcement of such ban constituted a modi- fication of extended provisions of its collective-bargaining contract in violation of -Section 8(b)(3) of the Act. Although Local 1122, Respondent herein, met with Em- ployer (Mr. Hennessy) on April 16, 1969, it was neverthe- less unsuccessful in getting Employer to abandon the prac- tice and Respondent rejected Employer's offer to modify the practice. However, the Union herein did not abandon its demand for abolition of the practice as did the union in the Rochester case. In any event, prior to April 16, 1969, common in the instant and in the Rochester case is the apparent right of unlimited reliance of the Employer herein, and the right of limited reliance of the employer in Roches- ter, on the longstanding practice of assigning unit employ- ees to temporary supervisor positions. Subsequent to April 16, 1969, or soon thereafter, the practice of appointing act- ing supervisors was terminated by Employer at the request of the Locals, and a new practice of nonappomtments was substituted therefor by which both parties (Employer and Local 1122) were bound and on which both were entitled to rely. ,Since the prior appointing practice was not in exis- tence Employer nor Local 1122 can unilaterally revive the practice without bargaining. Under these circumstances, Local 11122 could not restrain and coerce Employer in the unlawful unilateral selection of its representatives. Hence, Local 1122's enforcement of its ban against a defunct prac- tice cannot be found violative of Section 8(b)(1)(B) of the Act. Nor can such action by Local 1122 be found a. refusal to bargain in violation of Section 8(b)(3), of the Act since such action occurred during the term of the bargaining contract and no new request to bargain on the matter of acting supervisors has been made by Employer. However, whether or not Respondent's promulgating and enforcing a ban,against its union-member employees accepting acting supervisor positions violated Section 8(b)(1)($) of the Act seems to depend also upon whether 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's ban against the practice and the means of its enforcement are designed to protect a legitimate interest of a labor organization and will not frustrate or tend to frustrate an overriding policy of the Act. In this regard, a careful ex- amination of the appropriate provisions of the Act appears warranted. The Respondent union is alleged to have violated Sec- tion 8(b)(1)(B) of the Act, which section specifically pro- vides as follows: Sec. 8(b)(1) It shall be an unfair labor practice for a labor organization or its agents-to restrain or coerce . . . (B) an employer in the selection of his representatives for the purposes of collective bargain- ing or the adjustment of grievances. ' In Florida Power And Light Company v. International Brotherhood of Electrical Workers, Local 641, 417 U.S. 790 (1974), cited by counsel for the respective parties, the Court held that an analysis of the language and the legislative history of Section 8(b)(1)(B) of the Act reveals that Con- gress was concerned about protecting an employer only against union restraint and coercion in the selection and utilization of his representatives for purposes of collective bargaining or the adjustment of grievances . The Court in Florida Power, supra, went on to say: "Nowhere in the leg- islative history is there to be found any implication that Congress sought to extend protection to the employer from union restraint or coercion when engaged in any activity other than the selection of its representatives for purposes of collective bargaining and grievances adjustment. The conclusion is thus inescapable that a union's discipline of one of its members who is a supervisory employee can con- stitute a violation of Section 8(b)(1)(B) only when that dis- cipline may,adversly affect the supervisors conduct in per- forming the duties of, and acting in his capacity as, grievance adjuster or collective bargainer on behalf of the employer." In further amplification of the authority to ad- just grievances, the court in N.L.R.B. v. Brown and Sharpe Manufacturing Company, 169 F.2d 331 (C.A. 1, 1948), held that supervisors authority to reward or to adjust the griev- ances of their fellow employees, or effectively to recommend such action should entail the use of independent judgment in collecting, evaluating and considering pertinent data for the purpose of determining the validity of the grievance. In measuring the evidence of record against the above- cited language of the Act, and its underlying policy, it is first observed and found that the evidence does not present an issue as to whether a supervisor or acting supervisor acts as representative for Employer for purposes of collective bargaining. However, a crucial question presented by the evidence is whether supervisors, and more particularly act- ing supervisors, have the authority and do in fact adjust employee grievances for Employer within the meaning of the Act. An examination of the documentary evidence in this regard clearly reveals that many acting supervisors re- ceive grievances on behalf of the Employer, assign a num- ber to such grievances, present such grievances to the stew- ard, attend the grievance hearing, and in some instances the records intimate that such acting supervisors heard the grievance. Many of the documents labeled "Report of First Step Grievance Review" were marked "No Disposition," "Disposition pending," "Management's position stated by acting supervisor," and some did not contain any evidence of a disposition. General Counsel's Exhibit 23 which consists of minutes of grievances merely stated what decision was made and in many instances such minutes are signed by the acting su- pervisor. However, the documents do not indicate who made the decision, and to conclude that- the decision was made by the acting supervisor would be merely a specula- tive assumption on my part. In the documents-which were marked "Management's position stated," or "presented," it could not be determined in all instances who stated man- agements position, or more importantly, who resolved the grievance for management. Although General Counsel's Exhibit 32 describes 'what disposition was made of the grievance, it is observed that this routine disposition was made in accordance with established rules governing over- time. Likewise, General Counsel's Exhibits 41 and 42 de- scribe the resolution of complaints, or noncompliance with special procedure outlined to resolve vacation selection. In both of these situations it would appear that the grievances were routinely resolved by an established business policy of procedure, or by a procedural provision of the collec- tive-bargaining contract . In any event these grievances were not shown to have been resolved by an independent exercise of discretion on the part of the supervisor or the acting supervisor. General Counsel's Exhibits 44 and 46 appear to have been resolved by language in the contract, rather than by any exercise of discretion of the acting su- pervisor. In a few exhibits, such as General Counsel's Exhibit 45, the document indicates that the grievance might have been heard by the supervisor, rather than the acting supervisor, and disposition of the grievance is labeled "pending." Gen- eral Counsel's Exhibit 47 merely describes the nature of the grievance and indicates that it is to be appealed. The Em- ployer produced only one witness,' Mr. Roy Jordan, who testified that during the early part of his career of 23 years with Employer he had served as an acting supervisor on two occasions and that the duties of an acting supervisor were the same as those of a permanent supervisor . Employ- er did not produce any other witnesses who testified that more currently they had served as an acting supervisor and actually had authority to adjust employee grievances, which in fact they had exercised. Additionally, with respect to the question of'authority of acting supervisors to adjust grievances, it is noted that while the language of the "Job Functions" of supervisors (Resp. Exhs. 2-16) does indicate that supervisors partici- pate in grievance discussions in handling first-step griev- ance hearings, it does not state that such supervisors actu- ally adjust- grievances. Nor does the language in General Counsel's Exhibit 19 show that supervisors actually adjust grievances. When Employer (Mr.' Hennessy) was asked what authority does the foreman 'at first step have to adjust grievances and where is that described, the authority,'he replied as follows: A. They would have the responsibility to adjust grievances themselves on more routine cases. Q. Who describes what is more routine? ' COMMUNICATIONS WKRS., LOC. 1122 A. Who describes what is more routine? Well .... THE WITNESS: They do have the responsibility to adjust the more routine cases, and the more complex cases they would discuss with their supervisor or the labor Relations people. Their authority is not spelled out any place to my knowledge, describing which ones are referred and which ones they handled themselves. Mr. Hennessy also said there is no definition of what is routine and what is not routine and Mr. Roy Jordan, divi- sion construction superintendent for Employer, credibly testified that a search of Employer 's business records in the western area for all jobs did not disclose any data wherein an acting supervisor had adjusted a grievances. Even Em- ployer (Mr. Hennessy) testified that it could not determine from General Counsel's Exhibits 23-28 whether or not the supervisor had settled the grievance on his own initiative or if higher managerial authority directed the acting supervi- sor how to resolve the grievance. Based upon the foregoing analysis of the documentary and testimonial evidence regarding the duties of acting su- pervisors, I conclude and find that while Employer con- tends that supervisors and acting supervisors had and in fact exercised authority to adjust employee grievances, such evidence is grossly insufficient to support a conclu- sion that either supervisors or acting supervisors possessed, or in fact actually exercised, such authority. Since acting supervisors did not have, nor exercised, authority to adjust employee grievances, the Union's (Local 1122) efforts to enforce its ban against its members accepting temporary supervisor positions did not, and could not, have interfered with the performance of representatives selected by Em- ployer for purposes of collective bargaining or the adjust- ment of grievances . In the absence of such interference the union (Local 1122) is free to institute disciplinary action against its members without violating Section 8 (b)(1)(B) of the Act. Florida Power and Light Company v. LB.E.W., Lo- cal 641, 417 U.S. 790 (1974). Employer's allegation in this regard should be dismissed. With respect to the contractual or practice right of Em- ployer to appoint acting supervisors, counsel for the Gen- eral Counsel argued that since the Local herein is not the exclusive bargaining representative as was the union in Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, District Council No. 9 of New York City (Westgate Painting and Decorating Corp.), 186 NLRB 964 (1970), it does not possess authority to affect changes in existing terms and conditions of employment within the unit. While this argument may be available to the National Organization (CWA), which knew about but did not com- plain about the Local's action, I cannot perceive Employer assuming such a position when it was Employer who bar- gained with Local 1122 and thereafter substituted the non- appointing practice for the prior practice of appointing act- ing supervisors . I do not concede, as counsel for Employer contends, that since Employer revived its appoint- ment of acting supervisors in 1973-75, that Local 1122 ac- quiesced in the revival of the practice because it did not file a grievance under the contract or discipline any of its members who had accepted appointments during such pe- riod. Since Local 1122 did not ever retract its opposition to 109 the practice of acting supervisors and continually main- tained its ban upon its membership against the practice, it is clear that it was Employer who unilaterally reinstituted the practice. Although Local 1122 did not file a grievance against Employer or seek enforcement of its ban before now, I do not perceive such delayed action on its part as a waiver of its right to rely on the established nonappointing practice, or as an acquiescence in Employer's unilateral remstitution of the practice of appointing acting supervi- sors. Such delay by the Local may very well have been due to a "wait and see" approach to the problem on its part, since it is observed (G.C. Exh. 16) that Employer's ap- pointments of acting supervisors were not as numerous or as frequent during 1973-75 as they were during the years prior to 1969. With respect to the alleged violation of Section 8(b)(1)(A) of the Act, the Union (Local 1122) expressed its concerns with the tendency of the acting supervisor prac- tice to impede the number and frequency of promoting rank-and-file employees to permanent supervisory posi- tions, the presence or participation of its members in griev- ances, and other concerns comparable to those expressed by the union in Rochester Telephone Company, supra. All of these concerns I find constitute a legitimate interest of a labor organization (national or local). Hence the Union (Local 1122) herein sought to safeguard those concerns through the promulgation and enforcement of a ban against its members accepting temporary supervisory posi- tions. Such a rule is unquestionably an internal rule regu- lating legitimate interests and affairs of the union and its membership . Scofield et al. v. N.L.R.B., 394 U.S. 423 (1969). As further evidence supporting the realism of its concerns, Local 1122 established that subsequent to the promulgation of its ban on union members accepting su- pervisory positions, Employer promoted a substantial number of unit employees to permanent supervisory posi- tions within a period of 6 months. Since the union interest for which the ban on acting su- pervisor positions was designed to protect is legitimate, and the rule (prohibition) itself is enforced solely through "the internal technique of union fines," neither the rule nor its actual enforcement constitutes restraint or coercion so as to be violative of Section 8(b)(1)(A) of the Act, and the allegations that such is the case should be dismissed. Although the unit employees who acted as supervisors for Employer within the jurisdiction of Local 1122 were not supervisors for purposes of collective bargaining and adjusting grievances, there is no dispute that otherwise they possessed and exercised other indicia of managerial au- thority, and while so doing were in fact supervisors within the meaning of Section 2(11) of the Act . Since the union rule (prohibition) was prospective, it was applicable to em- ployee Richard Macvie before he accepted the acting su- pervisor position for which he is now being disciplined by Local 1122. With respect to the alleged violation of Section 8(b)(3) of the Act, I find that Local 1122 did meet with Employer upon the latter's request, when among other things they discussed the acting supervisor practice which the Union (Local 1122) requested be terminated. Employer offered to modify the practice and the Union ultimately rejected the 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offer and demanded abolition of the practice. Although Employer was appraised of the Union's demand it ex- pressed no further response, but instead, responded in ac- tion by not appointing any acting supervisors within the jurisdiction of Local 1122. While the appointing practice of acting supervisors has been changed by negotiating or by acquiescence to a nonappointing practice by the parties (Employer and Local 1122), the issue of the practice itself remains a bargainable issue. Although Employer may ex- perience some impact from the enforcement of the Union's rule, the rule is not designed to externally regulate the man- agerial operation of Employer and therefore, it is not in- consistent with the overriding policy of labor law. See Sco- field v. N.L.RB., supra. Consequently, the alleged violation of Section 8(b)(3) of the Act should also be dismissed. CONCLUSIONS of LAW 1. New York Telephone Company is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 1122 is a labor organization within the meaning of Section 2(5) of the Act, and Communications Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in any unfair labor practices, as alleged, within the meaning of Section 8(b)(1)(A), 8(b)(1)(B), or 8(b)(3) of the Act. [Recommended Order for dismissal omitted from publi- cation.]