Indiana & Michigan Electric Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Indiana and Michigan Electric Company and Local Union 1392, International Brotherhood of Electri- cal Workers, AFLCIO. Case 25-CA-7476 May I , 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On June 24, 1976, Administrative Law Judge Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief to the General Counsel's exceptions. The General Counsel subse- quently filed a motion to reopen the record and remand this proceeding to the Administrative Law Judge for the purpose of consolidating this proceed- ing with that in Case 25-CA-8593, where similar conduct by the Respondent is alleged as an unfair labor practice by the Charging Party here. The Respondent then filed an opposition to the General Counsel's motion,' and the General Counsel filed a response to the opposition. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached 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 Administrative Law Judge concluded that the Respondent did not violate Section 8(a)(5) of the Act by refusing to allow certain employee "travelers" to attend negotiation sessions outside their own bar- gaining units. 2 Rather, the Administrative Law Judge found that the rationale set forth by the Respondent for its decision consisted of valid economic and business reasons and amply justified both its refusal to commence bargaining sessions outside normal business hours and its refusal to approve travelers' requests for leave without pay to attend such sessions. We disagree. The General Counsel alleged that the Respondent violated Section 8(a)(5) and (1) of the Act by (1) refusing to meet with the union representatives outside working hours, and by (2) simultaneously refusing to allow members of the bargaining commit- I After due consideration of the General Counsel's motion, the Respondent's brief in opposition thereto, and General Counsel's response to the Respondent's opposition. the General Counsel's motion is hereby denied. 2 The Respondent and the Charging Party are signatories to four 229 NLRB No. 95 tee leave without pay to travel to and participate in negotiations with respect to units in which they are not employed. The Respondent defended its actions principally on the theory that at least one "traveler" and member of the committee, VanAman, was a troubleshooter whose presence could not be spared for the aggregate of l days requested to participate in these negotiations. The alleged violation was not pinned to one or the other of the Respondent's actions, but resulted from the application of both actions together, which effectively deprived the Union of the assistance of the bargaining representa- tives it desired. We find that the Respondent's refusal to grant members of the Union's negotiations committee uncompensated leave to permit them to engage in bargaining during working hours, while at the same time refusing the Union's request to bargain during nonworking hours, is an unlawful interference with the Union's selection of its bargaining represen- tatives. We do not suggest that an employer is compelled to yield to a union's request for negotiations outside normal business hours. It is free to insist on bargaining during the working day, if it prefers, as the Respondent did here. If it makes this choice, however, it cannot at the same time refuse to allow unpaid time off to union representatives on the bargaining committee because they are employed in another unit. Alternatively, the Employer is free to acquiesce in the Union's request to bargain during nonworking hours in order to reduce the amount of uncompensated leave for travelers and to minimize the effects of the unavailability during their regular working hours of emergency troubleshooters. However, the Respondent cannot have it both ways. That is, if, as here, the Respondent makes the choice to bargain during the working day, it cannot lawfully refuse to allow union employee representa- tives time off. But, if it does refuse to give such employees time off, then it is obligated to make itself available for negotiations at a time-even outside working hours-when the representatives can attend. It is the Respondent's attempt here to have it both ways that constitutes the violation of the Act. In sum then, we find, contrary to the Administra- tive Law Judge, that by refusing to hold bargaining sessions at a time when the travelers who were designated employee representatives could attend them the Respondent violated Section 8(a)(5) and (1) of the Act. collective-bargaining agreements covering employees in four separate units located in three general locations in the States of Indiana and Michigan. Employee "travelers" are employee representatives from one unit who are members of the union bargaining committee at other units. 576 INDIANA AND MICHIGAN ELECTRIC COMPANY CONCLUSIONS OF LAW I. Indiana and Michigan Electric Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union 1392, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. At all times relevant herein, Local Union 1392, International Brotherhood of Electrical Workers, AFL-CIO, has been the exclusive representative of all employees in the four appropriate units set forth below for purposes of collective bargaining with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment within the meaning of Section 9(a) of the Act: (i) All probationary and regular production and maintenance employees of the Respondent under the supervision of the South Bend and Benton Harbor Divisions, having their headquarters within the Respondent's Elkhart, South Bend, Buchanan, or Benton Harbor areas, and all probationary and regular production and mainte- nance employees of the Respondent under the supervision of the Twin Branch Generating Division having their headquarters at the Twin Branch Plant or South Bend, exclusive of all administrative employees, part-time employees, temporary employees, office clerical employees, plant clerical employees, technical employees, confidential employees, guards, professional em- ployees, supervisors as defined in the Act, and all other employees. (ii) All production and maintenance employees in the General Office Transmission Construction and Maintenance Group of the Respondent, including construction employees, Lineman A, B, and C, Linemen-Helpers, and Driver-Ground- men, exclusive of office clerical employees, professional employees, guards, supervisors as defined in the Act, and all other employees. (iii) All regular production, maintenance, and distribution employees of the Respondent em- ployed within its Marion and Muncie Divisions, including meter readers, exclusive of all guards, office clerical employees, technical employees, professional employees, part-time employees, temporary employees, probationary employees, and supervisors as defined in the Act. (iv) All employees of the Respondent's Fort Wayne Division covered by the collective bar- gaining agreement between the Respondent and the Union which bears the effective dates of December 16, 1973, to December 15, 1975. 4. By refusing to hold individual negotiation sessions outside normal business hours while simulta- neously refusing since on or about November 21, 1975, employee travelers' request for leave without pay to attend negotiation sessions outside their own units, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. By engaging in the above-described unfair labor practices, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act by refusing to commence bargaining sessions outside normal business hours while simultaneously refusing employee travelers' request for leave without pay to attend negotiation sessions outside their individual units, we will order that the Respondent cease and desist from engaging in such unfair labor practices and, upon request, bargain collectively with Local Union 1392, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, and its designated agents at times and places mutually convenient concerning wages, rates of pay, hours, and other terms and conditions of employ- ment, as indicated in our Order below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Indiana and Michigan Electric Company, Fort Wayne, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to commence individual negotiation sessions with Local Union 1392, International Brotherhood of Electrical Workers, AFL-CIO, and its designated agents, outside normal business hours, while simultaneously refusing employee travelers' requests for leave without pay in order to attend bargaining sessions outside their own units. (b) In any like or related manner interfering with the efforts of the above-named labor organization to bargain collectively on behalf of the employees so represented. 577 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, meet and bargain with the above-named labor organization and its designated agents as exclusive representatives of all its employ- ees in the appropriate units described above at times and places mutually convenient to all parties with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody it in a written signed agreement.3 (b) Post at its places of business in South Bend, Benton Harbor, Twin Branch, Marion, Muncie, and Fort Wayne located in the States of Indiana and Michigan, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's representa- tive, 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 employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER WALTHER, dissenting: For all the reasons set forth in the Administrative Law Judge's Decision, I would adopt his conclusion that the Respondent's refusal to grant "employee travelers" time off to attend negotiation sessions in units other than their own did not violate Section 8(a)(5) and (1) of the Act. The requested time off would have entailed extensive traveling which-as the Administrative Law Judge found with respect to traveler Lyle VanAman-would have interfered with the Respondent's operations. The Respondent's refusal to accede to the Union's demand is thus based upon valid business considerations. Since the Respondent's action was not shown to be other than 3 In view of the currently effective collective-bargaining agreement between Respondent and the Charging Party, nothing in this Order should be construed to require Respondent to bargain with the Charging Party concerning the alteration of any terms of such agreement prior to the date established therein for the reopening or renegotiation of same. 4 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." for "nondiscriminatory perceived bona fide opera- tional needs," the evidence does not support the majority finding. I agree with the Administrative Law Judge that the complaint should be dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, meet and bargain collectively at mutually convenient times and places with Local Union 1392, International Brotherhood of Electrical Workers, AFL-CIO, and its designated agents as your exclusive representative and, if an understanding is reached, embody it in a written signed agreement. WE WILL NOT in any like or related manner interfere with the efforts of the above-named Union to bargain on behalf of the employees in the relevant units by refusing to commence individual negotiation sessions outside normal working hours while simultaneously refusing to approve requests from employee travelers for leave without pay in order to attend negotiation sessions outside their individual units. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. INDIANA AND MICHIGAN ELECTRIC COMPANY DECISION STATEMENT OF THE CASE STANLEY N. OHLBAUM, Administrative Law Judge: This proceeding under the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein the Act), based upon complaint issued on December 31, 1975, by the Regional Director for Region 25, growing out of a charge filed on October 30, 1975, by Local Union 1392, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, was heard by me in Fort Wayne, Indiana, on March 25-26, 1976, with all parties participating throughout by counsel or other representative and afforded full opportunity to present evidence and arguments, as well as to file briefs, which were received by June 1, 1976, after extension of time upon application of counsel. Record and briefs have been carefully considered. The principal issue presented is whether the Respondent violated Section 8(aX5) and (1) of the Act by refusing to bargain collectively in good faith with the Charging Party within the Act's requirements. 578 INDIANA AND MICHIGAN ELECTRIC COMPANY Upon the entire record and my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION At all material times, Respondent Indiana and Michigan Electric Company, an Indiana corporation with principal office and place of business at Fort Wayne, Indiana, as well as other facilities elsewhere in Indiana and Michigan, has been and is engaged in production, sale, and transmis- sion of electrical energy as a public utility. In the course and conduct of that business during the representative year immediately preceding issuance of the complaint, Respon- dent produced, sold, and transmitted electrical energy exceeding $250,000 in gross value; and, during the same period, Respondent received goods, transported directly in interstate commerce to its Indiana facilities from States other than Indiana, valued in excess of $50,000. Unit Covered South Bend, Benton Harbor, Twin Branch Generating Divisions ("SB-BHI-TB") I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; and that at all of those times the Union has been and is a labor organization within the meaning of Section 2(5) of the Act. 11. ALLEGED UNFAIR LABOR PRACTICES A. Facts The underlying material facts are essentially undisputed. Respondent (a subsidiary of American Electric Power Company), an electricity-generating and distributing pub- lic utility in Indiana and Michigan, has, in connection with the conduct of its business, maintained collective-bargain- ing relationships with IBEW Local 1392, the Charging Party, or its predecessors,' through the four separate units involved in the instant case,2 heretofore certified by the Board or designated without election and recognized as appropriate: Area or Other Coverage Elkhart, South Bend, Buchanan, Benton HIarbor Basis for Rep. Status Certif ication year 1969 Marion and Muncie Divisions ("MA-MU") Fort Wayne Division ("FW,) Marion, Muncie Fort Wayne General Office Trans- mission Construction and Maintenance Group ("Go") In August 1971, the International Union notified Respondent that effective September I, 1971, its Locals 1821 and 1822 (then at Respondent's Marion and Muncie units) and also Local 2292 (then at Respondent's South Bend, Benton Harbor, and Twin Branch units) would merge into Local 1392 (then at Respondent's Fort Wayne unit; Charging Party in the instant case). On August 20, 1971, Respondent informed the Union that, since the merger was an internal union matter, it raised no objection and would recognize Local 1392 as successor to the existing contractual obligations, so long as the separate identity of the four bargaining units was clearly retained. Earlier in 1971 the predecessor locals of Local 1392 had unsuccessfully sought, over the Respondent's opposition, to amalgamate at least some of the bargaining units here into a single bargaining unit. Following the September 1971 merger of the various locals (which had up to then each been tied and limited to one of the four separate bargaining units) into Local 1392, Respondent on several occasions filed formal charges before the Certification Designation- Recognition Certification 1952 1934 1971 Board that Local 1392 was again endeavoring to merge the four separate (including three separately Board-certified) units into a single unit, or, over Respondent's opposition, endeavoring to engage in improper "coordinated bargaining" designed in effect to merge the separate units, but the Regional Director and General Counsel refused to issue a complaint on any of these charges. As is well known, under the Act the refusal of General Counsel to issue a complaint is not subject to review by either the Board or the courts. 2 Respondent maintains power plant facilities in addition to those in the coverage of the four collective-bargaining units here. Respondent also has collective-bargaining relationships with three other unions - United Steelworkers of America, at its South Bend and Benton Harbor facilities; International Association of Machinists and Aerospace Workers at its Breed plant; and Utility Workers of America at its Tanners Creek plant. 579 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union now represents an aggregate of some 720 members (together with additional nonmembers) in these four bargaining units, as well as employees of two utilities other than Respondent. The categories of employees included in each of Respondent's four bargaining units appear to vary.3 Since the foregoing original certifications or recognition without election, Respondent and Union have entered into successive separate collective agreements for each of these four units. The issues presented here arise out of events occurring in connection with the 1975-76 contractual renewal negotiations. Since each of the latest of these collective agreements, each for a 2-year term, expired at or toward the end of 1975, 4 the following initial dates and places were estab- lished by the parties for negotiations: SB-BH-TB - 9-23, 10-8, 10-9, 10-29, 10-30, 10- 31, at South Bend. MA-MU- 10-1, 11-10, ( 11-11), 11-18, at Muncie. FW - 11-17, 12-2, 12-3, 12 10, at Fort Wayne. GO- 11-26, 12-11, 12-12, 12 18, at Fort Wayne. At the initial bargaining session (September 23 at South Bend for the SB-BH-TB unit), according to Respondent's labor relations supervisor and chief company negotiator, Willmore, a new bargaining pattern was demonstrated by the Union. Unlike previous occasions, this time there was an absence of "local" demands relating to the specific unit, as well as an absence of economic demands; and, later, unit demands in the other units were basically the same. Also at that initial bargaining session (September 23), the Union suggested (as it had in the past) that negotiations be combined for all four units, but the Company declined (as it had in the past), as it did again at the ensuing negotiating session on October 1 at Muncie for the MA-MU unit. Between October 9 and 21, 1975 - after several initial bargaining sessions had been held, Lyle VanAman - a member of the FW unit, employed by Respondent at its Fort Wayne facility on its "troubleshooter" service crew there on duty around-the-clock in varying numbers, with a shift rotating from 8 a.m.-4 p.m. to 4 p.m.-midnight to midnight-8 a.m., and a member of the union bargaining committee for all four of the units - submitted to his supervisor at Fort Wayne a request to attend all future bargaining sessions for all four units, as of that date scheduled to be held at the locations above specified, according to his request on October 29 and 30, November 17, 18, and 26, and December 2, 3, 10, 11, 12, and 18 - or, :' Or. at any rate, the definitions of the units are in no two cases worded the same. 4 SB-BH-TB, October 31; MA-MU, November 30; FW, December 15; GO, December 31. 5 The same is true, mutatis muiandis, for several other members of the 9 I l-member union negotiating committee (i.e., Goddard and Alexander from the SB BH TB unit, Hammers and Jannie from the MA-MU unit, and Yocum temporarily only from the GO unit). 6 In prior years. travel by employees for attendance at negotiating sessions had, with one possible exception (Alexander in 1971), apparently been slight and inextensive. 7 Prior to 1975, the maximum number of days of leave requested by any employee to attend negotiation sessions was perhaps 2 days -in contrast to as of that time, 1 sessions scheduled up to that point. As already indicated, VanAman functions as a member of a utilities service "troubleshooter" work crew at Fort Wayne, whose shift hours, meshed with other members of the crew, are rotated (as above described) in the regular conduct of Respondent's public service utility operations. In order for VanAman 5 to attend bargaining sessions for units other than his own at locations other than Fort Wayne, it would be necessary for him to travel to and from those locations, by day or night, and thus - as credibly and without contradiction indicated by Respondent's labor relations supervisor, Willmore - interfere with the operations of his work crew during the period of negotiations as well as two- way travel (and possibly added rest). This was the first year in which any problem arose involving proposed undue travel6 by a union bargaining committee employee mem- ber to attend negotiating sessions of units other than his own.7 The maximum travel distance involved (according to Union Business Manager Herriman) was 170 miles one way (Marion or Muncie to Benton Harbor) or a round-trip distance of 340 miles. Approximate mileages8 between the agreed negotiation sites for the four units in Respondent's different facilities are: Fort Wayne to Muncie - 68 miles Fort Wayne to South Bend - 81 miles Muncie to South Bend - 133 miles Respondent's labor relations supervisor, Willmore, a highly credible witness, thoroughly knowledgeable in his Company's operations, testified and explained that the replacement of VanAman - a utilities "troubleshooter," on call around-the-clock as a member of a service crew on rotating shifts - as well as of Respondent's other four employee-negotiator "travelers," would have been "bur- densome to administer." This testimony was wholly uncontroverted by General Counsel or the Charging Party and is credited, and I so find. On October 21, VanAman was denied the requested permission other than for the four negotiating sessions then scheduled for his own unit at Fort Wayne.9 The other employee "travelers" were similarly denied such permis- sion. The Union thereupon canceled all further meetings of all of the four units (including those to which VanAman or the other "travelers" would not have to travel). On October 23, Respondent informed the Union that it stood ready to the II days plus necessary travel time sought by VanAman (without reference to the others) for the period from October 29 to December 18 alone. I Source: Rand McNally, Standard Highway Mileage Guide, 1973. These are road mileages. No rail or air carrier schedules or data have been provided by the parties. 9 It is to be observed that the permission thus extended to VanAman did not include the four scheduled GO unit sessions, also to be held in Fort Wayne. Negotiating committee employee members Alexander (SB-BH-TB unit) and Hammers (MA-MU unit) were similarly denied permission to absent themselves from work in order to travel to attend negotiating sessions of units of which they were not members. 580 INDIANA AND MICHIGAN ELECTRIC COMPANY continue negotiations "at reasonable times." A further but abortive bargaining session - the fifth 0 - took place on October 29 at South Bend for the SB-BH-TB unit, attended by six union negotiators (including four from the local bargaining committee, but no "travelers"). Since Respondent had declined to permit employee members of the bargaining committee ("travelers") to travel from distant locations (at which they were employed in other plants of Respondent) to that meeting, the Union refused to proceed with the meeting and called off all negotiations until Respondent altered its position. The Union filed its charge herein on October 30, accusing Respondent of failing and refusing "to bargain collectively and in good faith" with it, "in that the employer has refused to meet at reasonable times and places when so requested... . and in addition . . . has prevented certain of the union's bargaining committee members from attending bargaining sessions by refusing said committee members time off work," On November 10, the Union wrote Respondent that by reason of "inflationary pressures" the employee-members of the bargaining committee "can no longer afford to lose time from work in order to negotiate agreements," and that the bargaining committee would be "unable to meet for negotiations, for any of the bargaining units . .. until such time as negotiations are held outside the normal working hours of the employee members of the bargaining commit- tee ... at any reasonable time and place." I" Also on November 10, as well as on November 12, in letters to its employees in the four bargaining units here involved, Respondent pointed out that the "normal date of November I for a new contract has passed" since negotiations had been suspended by reason of the circum- stances which have been described; reminded the employ- ees that there were four "separate and distinct" bargaining units; stated that although the Board had refused a union application to consolidate those units, the Union was continuing its attempts to effect a consolidation "through 0d Previous bargaining sessions had been held on September 23, 1975, at South Bend for the SB-BH-TB unit with 9 union representatives, 4 of whom were travelers: on October 1, 1975, at Muncie for the MA MO unit with 11 union representatives, 3 of whom were travelers; on October 8 and 9, 1975, at South Bend for the SB-BH TB unit with 9 union representatives, 3 of whom were travelers. "Travelers" are committee employee members, present and included in the total number shown, who traveled to the bargaining location from distant plants at which they were employed. Neither "travelers" nor nontravelers were paid by the Company while attending or traveling to and from bargaining sessions: they were merely excused from work. II Although the first two paragraphs of this union communication (G.C. Exh. 6-0) refer to the "normal working hours of the employee members" of the bargaining committee, the final paragraph limits the Union's willingness to meet for negotiations to "any reasonable time and place outside the normal working hours of the commile.c" (Emphases supplied.) The bargaining committee includes members other than employees of Respon- dent. 12 I.e.. 8 a.m. - 5 p.m.. Monday through Friday. It is noted that. consistent with this policy, after the resumption of negotiations (as will be shown), the bargaining session of January 14, 1976, at South Bend was - according to Union Business Manager Ilerriman continued past midnight. 1:i Respondent had similarly orally advised the Union, as well as a Federal mediator. According to Union International Representative Bailey. subsequent to the aborted October 29 negotiating session he asked Respondent's labor relations supervisor. Willmore, to meet on the following Saturday a nonworking day or on any Saturday. Sunday. or evening coordination of negotiations"; insisted on its right to conduct "separate negotiations for each unit"; stated that it did not consider itself legally obligated to excuse employees of one unit from their work assignments to attend negotiations of the other units; stated that it stood "ready to resume negotiations at [the particular plants or places] during normal working hours, the same as in previous years"; and said that it hoped negotiations on substantive matters could be resumed shortly and agree- ments reached. On November 21, Respondent, replying to the Union's foregoing letter of November 10, advised the Union that "Our position on night and weekend meetings is that they are not necessary or desirable except when they are an extension of a meeting held during normal business hours 12 and when a contract expiration date is so near that extended meetings are required. Indiana & Michigan and Local 1392 have adhered to the practice stated above for many years"; that the Company considered it "unreason- able, under the present circumstances, to ask members of the various company committees to devote their nights or weekends to negotiations"; and that "We are ready to resume negotiations in each of the four affected bargaining units at any reasonable place and time." 13 The testimony of Respondent's labor relations supervi- sor, Willmore - an impressive witness who through his long tenure with Respondent and its personnel operations is thoroughly knowledgeable therein - is uncontroverted that regularly scheduled night and weekend negotiations not only by the members of its executive/managerial team involved therein, but also by its five employee-negotiator "travelers," considering their regular full daytime assign- ments, would be deleterious to their performance and morale and to the efficiency of Respondent's operations.t' when VanAman, then assigned to the 4 p.m.-midnight shift., as well as other negotiating committee members (totaling 9-11) would be available to attend. According to Bailey, Willmore declined to schedule such a negotiating session or sessions; according to Willmore, he had acceded to such a request on October 29, but without discussion of attendance by "travelers." It is to be noted that, whatever its validity in terms of company policy and the parties' former practice, work efficiency (fatigue, etc.), expense and inconvenience, executives' as well as employees' morale, etc.. the objection to "distant traveling" relates to off-hour, nonworking day bargaining as well. It is further noted, on the matter of nonworking day and evening sessions, that Respondent's negotiators numbered seven to nine, with one possible exception of all company executives (who not only have company responsibilities all day but also presumably maintain a certain lifestyle into which Respondent may not wish to intrude unduly without compelling reason). 4 Thus, for example, Willmore explained: First of all, we are agreeable and willing to meet at night and on weekends as the policy has indicated. We are agreeable when it is necessary to conclude a negotiation or to reach agreement. We have not in the past refused to meet at night. As a matter of fact, in these particular negotiations, we did just that. The reason for not making it a regular time to meet was one, the fatigue aspect and that has been touched on already here. To anticipate that the members of the company committee as well as the union committee and I am primanly concerned with the company committee but both committees it does not seem to be reasonable to expect them to perform their normal day on an eight hour basis and then make the necessary arrangements to (Continued) 581 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This testimony is substantially'5 uncontroverted, and is credited, and I so find. On January 7, 1976, within a week after issuance by the Regional Director of the complaint herein (December 31, 1975, together with the Regional Director's setting down of the instant hearing for March 25, 1976), Respondent agreed without prejudice to excuse the employees in question from work during regular working hours, so as to permit negotiations to move forward without indefinite delay.' 6 Shortly thereafter negotiations were resumed,17 in consequence of which (with an intervening strike in all four units for the month of February) four separate 2-year collective agreements were concluded. B. Discussion and Resolution Notwithstanding resolution of the parties' differences in the collective agreements successfully concluded for each of the four bargaining units, the contention is here continued to be pressed that the Union had the absolute right, under the circumstances described, to insist on the presence of all of the employee-members designated by it to bargain at all sessions of each of the four widely geographically dispersed bargaining units. Respondent's countervailing position on this particular issue is that it had the right to impose reasonable restrictions for valid reasons consonant with its business needs as an operating public utility. In a way the problem presented arises because the same employer is involved for all four bargaining units. It could hardly be contended, for example, that an employer violates the bargaining obligation by refusing to excuse his employees from work for the purpose of attending bargaining sessions of units other than that of the employees in the employer's own business, even though the employees are members of the bargaining committees of such other units but not of the units themselves (as, indeed, they may be, since bargaining units are not restricted to travel to the various locations for the purpose of conducting night sessions with any meaningful sessions. They would meet for a few hours and then turn around and go back to their respective locations for work the next day. So, that is my consideration as to the reasonableness of that type of an arrangement. Another reason is from the standpoint of proper conduct of the negotiations, I find it necessary on many occasions to contact the office staff to pursue research questions for me or to obtain statistics or answer to some questions that have been raised with regards to negotiations. And in order to have a meaningful and ongoing negotiation, I would endeavor to secure answers. If you are meeting at night, that source of information is not available again without special arrangements or overtime. It is not as available to me nor for that matter are various members of management who are not part of the negotiating team but who are supervisors and management personnel who are available to us when questions come up to have access to them and to call on and check facts on things that are mentioned in the negotiations. If we are meeting at night, their availability is a question. I think that perhaps a primary reason though is there is ample time and a reasonable amount of time during the normal business hours, five days a week, eight to five, to conduct negotiations which is the normal procedure to be followed. is The only testimony which could be considered to the contrary in part, is that of Union Business Manager Herriman, dealing only with the "traveling" employee-negotiators. According to Herriman, such employees could, after completing a full day's work to 4 or 5 p.m., thereafter travel for 3 hours as much as 170 miles to a distant negotiating session, participate in negotiations to perhaps 2 a.m., and then for 3 hours drive back 170 miles to return for an efficient day's work the next morning. I reluctantly am unable to accept so optimistic a view. their own numbers in their selection of bargaining representatives).' 8 At least in the hypothetical situation posed, it would appear that "the cardinal principal [is] that the existing unit ... fixes the periphery of the bargaining obligation." Utility Workers Union of America, AFL-CIO, and its Locals 111, et al. (Ohio Power Company), 203 NLRB 230, 238 (1973), enfd. 490 F.2d 1383 (C.A. 6, 1974). Although it may well be that the rule should be no different where an employer - as here - has more than one, perhaps many, units in geographically widely dispersed plants in its industrial empire,'9 the disposition here reached renders resolution of that issue unnecessary. The basic issue here tendered is the result of the respective parties' attempted simultaneous application of two established principles; viz, (1) the principle that employees are entitled to negotiate collectively through representatives of their own choosing (NLRA, Sec. 7), without employer interference, restraint, or coercion (id, Sec. 8(aX)()), and (2) the principle that employees do not have the right to require that collective negotiations be carried on in such a way as to disrupt or interfere unduly with the conduct of their employer's business.20 Where a clash would result from the application of two statutory or salutary principles such as these, common- sense, respect for the Act's purposes, and deference to the Board's policies and administrative methodologies - including the desirability of withholding a heavy regulatory hand where not called for - require that they be attempted to be reconciled without affront to either or rejection of both. Respondent does not quarrel with the broadly stated proposition that its employees are entitled to designate their bargaining representatives, including representatives who are not members of the particular bargaining units. Although this proposition as a statutory as well as philosophical generality allows of no dispute, it, too, in practical application may be subject to necessary qualifica- i6 In companion explanatory letters of the same date (January 7, 1976) to its employees, Respondent describes the situation, including the Regional Director's refusal to issue a complaint against the Union on Respondent's 8(bX3) cross-charge (later sustained by General Counsel) that the Union was once again attempting to engage in "illegal coordinated bargaining," while at the same time issuing the instant complaint against the Employer on the Union's charge. Respondent has reasserted this contention by way of affirmative defense herein. At the instant hearing, Union Business Manager Herriman - called as an adverse witness by Respondent - conceded that since 1971 it remains an objective of his Union to bargain with Respondent as a single unit, "to keep the Company from whipsawing one union lunit against the other." As stated by Respondent to its employees in the January 7 communica- tion, "Solely in the interest of resuming negotiations, we are agreeing to meet under terms to which we object .... We will pursue our position through legal channels, rather than at the bargaining table. In other words, let's get back to the bargaining table and conclude negotiations while the legal proceedings continue." 1i At least 10 further sessions were preliminarily scheduled between January 14 and February 3, 1976. The agreements were concluded on March 5 (SB-BH-TB unit), March 2 (MA-MU unit), March 4 (FW unit), and March 5 (GO unit). is General Electric Company, 173 NLRB 253 (1968), enfd. 412 F.2d 512 (C.A. 2, 1969); Minnesota Mining & Manufacturing Conmany, 173 NLRB 275 (1968), enfd. 415 F.2d 1974 (C.A. 8, 1969). 19 The parties have not referred me to any such decision. 20 Cf, e.g., Tennessee Chair Company, Inc., 126 NLRB 1357 (1960); Converse Bridge and Steel Company, 49 NLRB 374 (1943). 582 INDIANA AND MICHIGAN ELECTRIC COMPANY tions. Thus, for example, in case of collective bargaining for Unit A, if its employee-negotiators consist of or include all or so many employees of Unit B that the effect of excusing them from work in Unit B for the purpose of participating in (as well as traveling to and from) prolonged Unit A negotiations during working time would be to compel the shutdown of the operations of Unit B, to the substantial economic detriment of the employer (as well as of all employees of Unit B and employees of other dependent segments of the business), the employer would not be required to do so. Similarly - as in this case - a public utility would not be required to suspend its service obligations to the public in order to comply with an inflexible demand to bargain through specified individuals at specified locations which would necessitate such a public service suspension. In such situations, various possible solutions or compromises could be made; for example, modifying the composition of the employee negotiating team,21 or conducting negotiations at times (e.g., evenings or nonworking days) suitable to both sides. The same is largely true with regard to the places as well as times of scheduled negotiations. Thus, even within the framework of deference to the principle that employees are entitled to bargaining representatives of their own choos- ing, an employer could hardly be faulted for hesitating to sanction or accede to prolonged or frequently repeated absences on a continuing basis of a key employee who cannot reasonably be spared repetitively without undue disruption to the employer's productive operations or administrative machinery. Situations such as these are normally resolved by fair and reasonable changes, adjust- ments, and compromises between the negotiating parties. And so they were here, by Respondent, to its credit. Respondent initially (first four negotiating sessions) ex- cused from work those of its employees who in connection with their membership on the union bargaining committee were required to travel to participate in the negotiating sessions of units other than their own; but it later, commencing on October 21, when confronted with Fort Wayne "troubleshooter" crew employee VanAman's re- quest to be excused for no less than 11 more working days,22 limited its permission so as essentially to eliminate attendance at locations to which further travel was required. Whether or not that limitation was under the circumstances reasonable is of no real significance, since Respondent later withdrew the limitation,2 3 thereby per- 2i There have been cases where employer insistence on the presence of a particular negotiator, who because of other commitments interfering with his availability is a roadblock to negotiations or slows their pace to a crawl. has been considered not to meet the Act's good-faith bargaining expecta- tions, and thus to evidence bad faith such as to constitute unfair labor practice. Cf. Radiator Specialty Company, 143 NLRB 350. 369 (1963), enfd. in part only 336 F.2d 495 (C.A. 4, 1964); Solo Cup Company. 142 NLRB 1290, 1295 (1963), enfd. 332 F.2d 447 (C.A. 4, 1964); Insulating Fabricators, Inc., Southern Division. 144 NLRB 1325, 1326-29 (1963), enfd. 338 F.2d 1002 (C.A. 4, 1964); Skyland Hosiery Mills, Inc., 108 NLRB 1600, 1605 ( 1954); "M" System Inc., Mobile Home Division Mid-States Corporation, 129 NLRB 527, 549 (1960); Franklin Equipment Company, Inc., 194 NLRB 643, 645-646 (1971); Pepper & Tanner, Inc., 197 NLRB 109, 121-122 (1972), enfd. in material part 474 F.2d 1256 (C.A. 6, 1973). Undoubtedly the same standard would apply lo a union negotiator. 22 Indeed, possibly more, depending upon travel distances and related physical needs. 23 After issuance of the complaint herein. it is true. mitting the negotiations - stalled by the Union's refusal to proceed unless all of the employee-members of its bargain- ing committee were excused from work during all of the days involved so as to attend all negotiations of all units, regardless of their date, time, locale,2 4 and number, or unless rescheduled for evenings or weekends 25 - to proceed to successful conclusion and execution of collec- tive agreements. In the described situation, to fault Respondent because it initially declined to excuse several of its employees from work for many repeated days to travel to and from and attend each and every one of the numerous sessions of its seemingly rather large negotiating committee, for bargain- ing for units other than their own at geographically distant locations, would not, at this time at any rate, in view of what has transpired, achieve any essential purpose. Respondent itself withdrew the antitravel "modification" it imposed, even though it cannot be said - and is unnecessary here to determine - that that "modification" was under all of the circumstances unlawful. Thus, even assuming Respondent should not have made the "modifi- cation" (i.e., travel restriction) when it did - perhaps particularly since it was made "midstream" during the negotiations, although even so it cannot absolutely be said that the "modification" was utterly uncalled for under the circumstances, much less that it was unlawful - Respon- dent has itself remedied and cured its own lapse, if such it was. It remains to consider the contention pressed herein that a remedial order is nevertheless essential so as to eliminate the possibility of similar action in the future by Respon- dent. While I am familiar with the general principle - again a broad philosophical one - that in labor cases, at any rate, repentance and correction do not erase nor perhaps even mitigate transgression against the Act's command,2 6 the matter is not that simple and does not, in my opinion, require or warrant wooden application of the principle, salutary as it is in situations unlike those here presented. Here, the parties have enjoyed a long 27 and successful2 s collective-bargaining relationship, a byprod- uct of which was Respondent's allowance of time off to employee negotiating committee members in prior years for travel to negotiating sessions of other units - not, it is true, of the order here demanded in 1975,29 but no comparable demand had been presented prior to the 1975- 76 negotiations. Although Respondent maintains that it 24 As distant as 340 miles roundtrip. 25 I am unaware of any absolute right of a party to insist that negotiations be scheduled for and confined to nights. weekends, and nonworking days. nor have I been cited to any authority to that effect. The Union itself appears to have abandoned this position. which it based upon "inflationary pressures," supra. Cf., e.g., N.LR.B. v. Mexia Textile Mills. Inc., 339 U.S. 563. 567 (1950). 27 Since 1934 upwards of 40 years - as shown above. 2" Even if not altogether storm free. See fn. I, supra. 29 E.g., as shown above, at least II extra working days for Fort Wayne "troubleshooter" team member VanAman alone. It is unnecessary to determine whether Respondent's antitravel "modification" was improper insofar as it applied to negotiating committee employee members other than VanAman, in view of the Union's refusal to proceed with negotiations unless all employee-members of its negotiating committee, including VanAman, were excused from work by Respondent in order to attend all of (Continued) 583 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was correct in its antitravel "modification" under the circumstances shown, and that it therefore would have the right to continue that "modification"3 0 in the future under similar (or more aggravated) circumstances if so advised, it is hardly fair to consider this as other than either (1) an understandable disinclination or declination to confess a guilt it does not feel in the instant case, or (2) a no less understandable desire to maintain the integrity and elasticity of its not unreasonable position that it will not commit itself to an advance "blank check" authorization to allow employee absences totally unlimited in quantity, time, and space.3 ' I could not fault Respondent in either eventuality or contingency. More basically, I consider it neither necessary nor advisable - if, indeed, practicable or even possible - to design a master rule as to just how many days, hours, and travel miles should be allowable or allowed for how many employees in how many categories in how many places who may desire to participate in future negotiations between the parties involving units to which they do not belong. The factual permutations and combi- nations are so extensive and the factors involved so numerous and discrete, 32 as to elude precise or practical formularization.3 3 One of the Act's core purposes is promotion of industrial peace through encouragement of collective bargaining. I believe that purpose would be ill served by attempted ritualization here of the methodology of future collective negotiations between the parties. Rather than promoting the policies of the Act, it would seem that such an attempted ritualization, even if it could be achieved, would create an impaction to the desirably supple peristalsis of collective negotiation. As in their 1975-76 negotiations, the parties may, and presumably will, in their future negotiations make such accommodative changes in their positions, views, and bargaining modes as are necessary, appropriate, and, hopefully, reasonable. Imbedded and implicit within the collective-bargaining philosophy is a sort of "fairness doctrine," applicable equally to both sides of the table - labor as well as management - as to the degree of accommodation each side may fairly or reasonably require of the other in order not to derail the bargaining process.34 The parties here those meetings. However, that union condition substantially potentiated the level of its demand. 10 I have been enclosing modification in quotes because it does not seem entirely accurate to denominate the 1975 76 antitravel policy as a real modification, in view of the fact that no comparable situation (i.e., VanAman's requested I or more additional days off in October-December 1975 alone) had occurred in previous negotiations. Thus, no style or policy had developed of permitting unlimited absences, or absences of the extent requested during the 1975-76 negotiations. 31 Thus, while the "nght" of employees to representatives of their own choosing is indeed strong, it is not absolutely immutable. General Electric Company v. N.L.R.B., 412 F.2d 512, 517 (C.A. 2, 1969); N.L.R.B. v. International Ladies' Garment Workers' Union, AFL-CIO [Slate Belt Apparel Contractors Assn.], 274 F.2d 376, 378-379 (C.A. 3, 1960); N.LR.B. v. Kentucky Utilities Company, 182 F.2d 810 (C.A. 6, 1950). General Counsel here has in no way established that Respondent's complained of action was unlawfully motivated or otherwise improper under the Act, or that it was for reasons other than nondiscriminatory, perceived, bona fide, operational needs. 32 They include, for example, the "essentiality" (whatever that is) of the particular employee's task, the reasonable availability of adequate substi- tutes, his "normal" workshift hours and the feasibility of substitutions and adjustments, the size of the negotiating committee, the locus or loci of separate or combined (or of partially combined) negotiations, the distances and reasonable travel times involved, available media of transportation, have successfully surmounted all of their differences in their 1975-76 negotiations, including that arising out of Respondent's antitravel "modification" under the circum- stances described. That "modification" itself could be considered to fall into the category of the many positions and stances, some perhaps ill-conceived and some possibly even technically violative of the Act at any rate if persisted in (e.g., a sorely tried negotiator exclaiming, "I refuse to negotiate with anybody like you" and striding from the negotiating table, only to return the next day to resume negotiations), which are not uncharacteristic of the normal peristalsis of collective bargaining. It may be questioned whether excessive regulatory policing of such matters, which the parties themselves have repaired, subserves the fundamental policies of the Act and is calculated to promote industrial peace, rather than to accomplish the opposite by reopening old sores. As has a number of times been indicated, the antitravel "modification" which stalled the parties 1975-76 negotia- tions was rescinded, enabling the parties to bring their interrupted negotiations to a successful conclusion. Wheth- er or not that or any like "modification" will be suggested, imposed, withdrawn, or relaxed in the future - with or without justification, depending upon a kaleidoscope of possibilities which cannot be dimensioned - is impossible to predict. Since I consider it inappropriate as well as unnecessary at this point, with the problem solved and no outstanding problem now requiring decision, to assume that Respondent, any more than the Union - with their demonstrated long history of successful collective-bargain- ing relationships - has arrived at a fixed purpose not to make reasonable accommodations or to predict with assurance that it will not do so in the future, or now to brand Respondent (who is free from taint of previous record of violation of the Act) as a lawbreaker under the circumstances shown, and for all of the other reasons which have been explicated, 35 I shall recommend dismissal replacements and substitutes (as well as "stand-ins," as on previous occasions herein) on the negotiating committee, and even the "pace" of the negotiations themselves. 33 In an dissimilar context, I had previous occasion to eschew perfor- mance of the service of planning for Board litigants "safe industrial menus" at employers' preelection banquets for employees. Preston Products Company, Inc., 158 NLRB 322, 347 (1966), enfd. 387 F.2d 801 (C.A.D.C., 1967), cert. denied 392 U.S. 906 ( 1968). 34 Thus, for example, as pointed out above, an employer may not employ dilatory tactics such as insisting that it requires the attendance of a particular collective negotiator and no other, when that individual is continually busy with other matters. In such a situation, the employer's nght to representation by the negotiator of its first choice is required to yield to the more important requirement that the normal peristalsis of collective bargaining be permitted to proceed; thus, two seemingly conflicting rights are accommodated to each other, averting head-on clash and the imposition of harsh edict and creation of bad law. It would seem that here, too, it is not unreasonable to expect pliability on both sides in future negotiations, and there is no reason now to assume its future absence. 35 Westinghouse Electric Corporation, 132 NLRB 406 (1961), relied upon by General Counsel, is different. There, unlike here, an employee (Babcock) was president of the union as well as chairman ex officio of its in-plant negotiating committee. There were two units in the plant, a professional unit and a technical-clerical unit. Babcock was a member of the professional unit. There came a time when the professional unit was voted out. Babcock's 584 INDIANA AND MICHIGAN ELECTRIC COMPANY of the complaint.3 6 Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW I. Jurisdiction is properly asserted in this proceeding. offer to resign his union post was rejected by the membership, leaving him as negotiator for the technical-clerical unit. At this point, the employer refused to allow Babcock time off during working hours to participate in negotiations for the technical-clerical unit and at the same time refused to negotiate after Babcock's working hours, but offered to negotiate with Babcock if he would surrender his position as a professional engineer and take a nonprofessional job in the technical-clerical unit. Under these rather unique circumstances, the Board held Sec. 8(a(5) violated, stressing the "drastic" nature of the "alternative offered Babcock, of sacrificing his professional career in order to continue serving his Union" as its only knowledgeable available negotiator, while stating that "each of these restrictions may by itself have been reasonable." (132 NLRB at 407.) Thus, in contrast to the instant case, in Westinghouse. (1) only a single plant, with no distant travel and complex personnel substitutions, was involved; (2) only one, the chief bargaining, representative was involved; (3) the bargaining representative was the key negotiator (and one of only two negotiators); (4) the employer brought rigorously "drastic," unacceptably indecent pressure upon the key negotiator to sacrifice his professional career as to its price tag for making it possible for him to negotiate: (5) no necessity or justification was established for the employer's action; and (6) the employer did not rescind its action; furthermore, (7) the union substituted somebody else for Babcock and an agreement was consummated; and (8) even so, the Board cut back the recommended Order so as to limit it merely to a requirement that the employer bargain with the union "at reasonable and mutually convenient times without regard to a.whether the [u Inion's representatives are employees in the certified [technical-clencal] unit." (Emphasis supplied.) Harley Davidson Motor Co., Inc., AMF, 214 NLRB 433 (1974), where the 2. Under all of the circumstances shown and upon the record as a whole, it has not been established that Respondent has violated the National Labor Relations Act, as amended, and that the issuance of a remedial order herein would effectuate the policies of the Act. [Recommended Order for dismissal omitted from publi- cation.] Board held an employer in violation for refusing to bargain with the union unless the union confined its negotiating team to its elected bargaining committee composed of unit employees plus a single representative of the union's parent international, is likewise a far cry from the situation here. 36 In view of the disposition herein made, it is unnecessary to deal with other important contentions raised by Respondent in its affirmative defense concerning the Union's alleged persistent attempt to change the nature of the certified separate bargaining units, which Respondent asserts constitutes bad-faith bargaining, relieving Respondent from performance strictissimi of its own bargaining obligation or "precludlingl the existence of a situation in which the employer's own good faith can be tested" (Times Publishing Company, Evening Independent, Inc., News Printing, Inc., 72 NLRB 676, 683 (1947)). Cf. Utility Workers Union of America, AFL-CIO, and Locals i11, et al (Ohio Power Company), 203 NLRB 230 (1973), enfd. 490 F.2d 1383 (C.A. 6, 1974); Shell Oil Company, 194 NLRB 988 (1972), enfd. 486 F.2d 1266 (C.A.D.C., 1973). This determination also moots all issues, if any, involving the vacating at the hearing of Respondent's subpoenas duces recum seeking to elicit material to establish the affirmative defense. "Coordinated bargaining" in itself is not unlawful provided it does not comprise unilateral insistence on combining separate bargaining units. Shell, supra, 486 F.2d at 1268; Harley Davidson Motor Co., Inc., supra, fn. 35, and cases cited. The Regional Director's and General Counsel's refusal to issue a complaint upon Respondent's charges so as to permit the litigation of the issues tendered by Respondent's affirmative defense is of course in no way determinative of the possible validity of that defense here, that obviously being a matter forjudicial and not prosecutory determination. 585