Bell Atlantic Corp.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1076 Bell Atlantic Corporation and Communications Workers of America, AFL–CIO. Case 2–CA– 32010 November 30, 2001 DECISION AND ORDER BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND WALSH On April 5, 2000, Administrative Law Judge Michael A. Marcionese issued the attached decision. The General Counsel and the Charging Party filed exceptions and supporting briefs and the Respondent filed an answering brief. The General Counsel and the Charging Party filed reply briefs. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings,1 and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dismissed. Olga C. Torres, Esq., for the General Counsel. Charles P. O’Connor, Esq., and Gregory R. Talbot, Esq. (Vic- toria E. Houck, Esq. (Morgan, Lewis & Bockius LLP), on brief; and Ronald G. Burden, Esq., for the Respondent. Gabrielle Semel, Esq. (Semel, Young & Norum), for the Charg- ing Party. DECISION STATEMENT OF THE CASE MICHAEL A. MARCIONESE, Administrative Law Judge. This case was tried in New York, New York, on October 6, 7, 8, and 29, 1999. The Communications Workers of America, AFL–CIO (the Union) filed the charge on February 23, 1999, and the complaint issued on June 28, 1999. The complaint al- leges that the Respondent, Bell Atlantic Corporation, violated Section 8(a)(1) and (5) and Section 8(d) of the Act by closing, and permanently transferring bargaining unit work, from facili- ties in Manhattan and Brooklyn, New York, to locations in Upper Darby, Pennsylvania, and Braintree, Massachusetts, respectively, without affording the Union sufficient notice and an opportunity to bargain regarding this decision. The Respon- dent filed its answer to the complaint on July 14, 1999, denying the commission of any unfair labor practice and asserting, as an affirmative defense, that the Union waived its bargaining rights by inaction and by contract. The Respondent asserted, alterna- tively, that it had satisfied whatever duty it had to bargain with respect to this decision.1 1 The General Counsel and the Charging Party have excepted to some of the judge’s credibility findings. The Board’s established pol- icy is not to overrule an administrative law judge’s credibility resolu- tions unless the clear preponderance of all the relevant evidence con- vinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care- fully examined the record and find no basis for reversing the findings. On the entire record,2 including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, the Charging Party, and the Respon- dent, I make the following FINDINGS OF FACT I. JURISDICTION Telesector Resources Group, Inc., doing business as Bell At- lantic Network Services, is a Delaware corporation, with a principal place of business in New York, New York, engaged in the business of providing management services to New York Telephone Company and other Bell Atlantic Operating Tele- phone Companies. New York Telephone Company, doing business as Bell Atlantic-New York, is a New York corpora- tion, with a principal place of business in New York, New York, engaged in the business of providing telecommunications products and services. Telesector Resources Group, Inc. and New York Telephone Company are indirectly wholly owned subsidiaries of the Respondent and shall be collectively referred to as the Respondent. The Respondent annually derives gross revenues in excess of $500,000 and purchases and receives at its New York facilities equipment and other goods and materials valued in excess of $50,000 directly from suppliers located outside the State of New York. The Respondent admits and I find that it is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent is the successor, through various mergers and acquisitions, of the New York Telephone Company whose employees have been represented by the Union for many years. The most recent change in corporate identity occurred in Au- gust 1997, when Bell Atlantic merged with NYNEX. The Un- ion represents the Respondent’s employees in a number of separate bargaining units represented by different local unions. Collective bargaining for contracts covering the different units is coordinated regionally by the International Union with com- mon issues such as wages and benefits negotiated at one table and local issues, such as job upgrades, work assignments, etc., negotiated at another. Each local union has its own contract incorporating terms and conditions of employment negotiated at the regional and local bargaining tables. The unit involved in this proceeding consists of all accounting financial clerks and accounting operations clerks employed in the New York met- ropolitan area. Local 1100 of the Union is the designated col- lective-bargaining representative of this unit. The current col- 1 The Respondent’s affirmative defense premised on Sec. 10(b) of the Act was withdrawn at the hearing. 2 The transcript of the hearing contains numerous misspellings and typographical errors and often misidentifies the speaker. No party has requested any corrections to the record. To the extent there are signifi- cant discrepancies, I will note corrections in this decision. 336 NLRB No. 113 BELL ATLANTIC CORP. 1077 lective-bargaining agreement covering this unit is effective for the period August 9, 1998, through August 5, 2000. The background to the current dispute begins in 1994 when the Respondent’s predecessor, NYNEX, negotiated the previ- ous collective-bargaining agreement with the Union. The Re- spondent began negotiations with the Union at that time by announcing that, as a result of a plan called “Process Re- engineering” it anticipated a reduction in the work force of 16,000 employees. The parties then proceeded to negotiate a retirement incentive plan to facilitate the Respondent’s efforts to downsize while avoiding as much as possible the involuntary termination of unit employees. The incentive plan negotiated in 1994 became known as the “6 and 6,” a reference to the provi- sion adding 6 years to an employee’s age to make him or her eligible to retire and 6 years to length of service to increase the employee’s pension benefit as an inducement for employees to leave voluntarily. This retirement incentive would be offered to employees in classifications and work areas declared to be sur- plus under the Respondent’s process reengineering. Under the terms of the 6 and 6 negotiated by the parties in 1994, all em- ployees who would be eligible to retire with these enhance- ments who had not been offered the opportunity to do so by the end of the contract would receive an offer at that time, i.e., in August 1998. The 6 and 6 Retirement Incentive plan was incor- porated in the 1994–1998 collective-bargaining agreement at article 36.3 All witnesses agreed that the Respondent’s “Process Re- engineering” was a failure and that, instead of downsizing, the Respondent was required to add employees to meet the rising demand for telecommunications services. As a result, by Au- gust 1998, a large number of employees would be entitled to receive retirement incentive offers under the 6 and 6. Those accepting this offer would then have to leave the Respondent’s payroll within 30 days under the terms of the 1994 collective- bargaining agreement. In the fall of 1997, after the merger of Bell Atlantic and NYNEX was complete, the Respondent be- came concerned about the prospect of a mass exodus of experi- enced employees needed to conduct its business upon expira- tion of the agreement. The Respondent’s representatives ap- proached union representatives with the idea of early negotia- tions for a new agreement with the goal of obtaining relief from the impact of the 6 and 6 plan. The Union agreed and contract negotiations commenced in early January 1998,4 a full 7 months before expiration of the contract. Contrary to the Respondent’s hope for quick resolution of the 6 and 6 issue, the negotiations became protracted. Final agreement on the collective-bargaining agreement, including revisions to the 6 and 6 intended to encourage employees to stay and to delay the departure of those accepting the offer, was not reached until August 11, after a 2-day strike.5 In pertinent part, the parties agreed to extend the offer to all eligible em- 3 The actual terms of the 6 and 6 were set forth in an April 3, 1994 Memorandum of Understanding which is not in evidence. There is no dispute however regarding the substance of the agreement. 4 All dates hereafter are in 1998, unless otherwise indicated. 5 It is undisputed that the strike was not caused by any disagreement over the 6 and 6 offer. ployees, as envisioned by the 1994 agreement, upon the effec- tive date of the new agreement and that employees would have 30 days to elect to take the offer. The parties agreed further that employees electing to take the offer could choose one of six alternative retirement dates (ARDs), at the end of each calendar quarter between September 30 and December 31, 1999. The parties agreed to a quota of employees who could leave on each ARD. If the number of employees choosing to leave on a par- ticular ARD exceeded the quota, the ARD would be assigned by seniority. In addition, to encourage people to stay, the par- ties agreed that employees who did not elect to take the 6 and 6 would have another opportunity to retire with at least the same benefits in calendar year 2001. In addition, the parties negoti- ated wage increases, pension band increases, job upgrades, training pay, and other incentives to encourage employees to stay. It is undisputed that, during the 1998 negotiations, union rep- resentatives advised the Respondent that a majority of employ- ees, including those in the unit involved in this proceeding, wanted to take the 6 and 6 and leave the Respondent’s employ. Gail Murcott, president of Local 1100 of the Union and a par- ticipant in the regional bargaining, testified that she anticipated even before bargaining commenced that 60 percent of the em- ployees in her unit would take the 6 and 6 as it existed under the 1994 agreement. The record reveals that all but a handful of employees in the Manhattan payroll office and more than half of those in the Brooklyn Revenue Accounting Office (RAO), the two offices at issue here, were eligible to receive a 6 and 6 offer in August 1998. It is undisputed that at no time during the 1998 negotiations did any representative of the Respondent advise the Union that a transfer of work out of the unit was under consideration. B. The Respondent’s Decision Dennis Jacobs is the Respondent’s vice president of finance operations with responsibility for the Respondent’s billing, revenue accounting, payroll, and related functions for its core business in the 13 northeastern States from Maine to Virginia. He has not been a participant in contract negotiations with the Union, although he has occasionally been consulted by indi- viduals in labor relations and human resources regarding issues pending in negotiations. In 1998, he reported to Ellen Wolf, the Respondent’s vice president and treasurer. Reporting to him were Thomas Daley, the Respondent’s executive director of billing operations, and Sherry Hessenthaler, the Respondent’s executive director of payroll operations. Daley had responsibil- ity for the Revenue Accounting offices in Brooklyn and Brain- tree, Massachusetts, and Hessenthaler was responsible for the payroll offices in Manhattan and Upper Darby, Pennsylvania. Jacobs testified that Wolf approached him in early February and asked him to look for ways to take advantage of the 6 and 6 incentive plan to save the Respondent money. According to Jacobs, extension of the 6 and 6 offer to all remaining eligible employees at the expiration of the 1994 agreement would cost the Respondent billions of dollars and leave it with fewer em- ployees to do the work. Jacobs was assigned to find ways to take advantage of the anticipated exodus of employees to re- duce the Respondent’s costs of operations. With input from DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1078 Daley, Hessenthaler, and David White, the Respondent’s direc- tor of remittance processing, Jacobs prepared a memo to Wolf outlining two alternative scenarios.6 The memo is dated Febru- ary 17. Under the first scenario, the Respondent would achieve approximately $2.6 million in annual savings by not replacing all employees who left with the 6 and 6 offer. This scenario did not involve the movement of any work and could be effectuated unilaterally. In his memo, Jacobs advised Wolf that he could immediately commit to implementing this plan. In the February 17 memo, Jacobs described his second sce- nario as “higher risk” because it involved closing the Brooklyn revenue accounting office and moving the work performed there to other offices, including the revenue accounting office in Braintree, Massachusetts. The employees at Braintree are represented by a different union, the IBEW. As part of this scenario, Jacobs also proposed moving some bill print opera- tions from Braintree to Massapequa, Long Island, a facility within the bargaining unit represented by Local 1100. Jacobs projected that the savings from this scenario would exceed $5 million a year, including reductions in management personnel associated with the closure of the Brooklyn office. When com- bined with the savings projected from the first scenario, the total savings to the Respondent would be almost $8 million a year. All of the savings in Jacobs’ memo are based on the wages and benefits saved by reducing headcount. Jacobs pro- jected that the unit represented by Local 1100 would be re- duced from 308 to 197 employees while the IBEW-represented unit would increase by 15 employees. In his memo, Jacobs advised Wolf that his second scenario could not be pursued unilaterally. “It would require substantial support at the officer level because it has major labor relations impact at a critical time.” In pertinent part, he detailed the sup- port requirements as follows: 1. The plan to move work would have to be communi- cated at the time of the CWA 6/6 offer. 2. The labor relations risks would have to be recog- nized. Labor Relations must commit to bargain with both the CWA or IBEW any requirement needed to effect movement of work. 3. The option to extend employees who have accepted the 6/6 would have to be available. Jacobs testified that a movement of work from the Manhat- tan payroll office was not under consideration at the time be- cause the Respondent was already in the process of moving the payroll office to a new location in Manhattan. Instead, Jacobs’ second scenario envisioned using vacancies created by the de- parture of payroll employees accepting the 6 and 6 offer to accommodate employees from Brooklyn whose jobs were moved to Braintree. He described this scenario as follows: 6 Daley testified that he came up with the two scenarios after Jacobs called him and said that Wolf wanted to know whether there was any way the Respondent could take savings out of the 6 and 6 program. Daley worked with his staff manager, Joe Osburne, to come up with the numbers used in the memo. Daley was a member of the Respondent’s negotiating committee at the local table in 1998. Of great importance, we do believe we could care for most of our associates and management employees who are displaced in Brooklyn. If the 6 and 6 and the closing of the Brooklyn RAO were announced simultaneously, the acceptance would probably be greater than the estimates shown on the attached. In addition, some employees could fill vacancies that will oc- cur in Massapequa and also in the New York payroll office. Vacancies will be substantial in both of these locations as well as other work locations in Brooklyn, Queens, the Bronx, and Manhattan. Jacobs testified that he met with Wolf to discuss his memo and that they committed to the first scenario unequivocally. She expressed interest in the second scenario but had reservations whether it was doable. According to Jacobs, he and Wolf then held an impromptu meeting with Don Sacco, the Respondent’s senior vice president of human resources responsible for ad- ministering the 6 and 6 plan. Daley was also present for this meeting. After reviewing the two scenarios for Sacco, Sacco agreed that the second scenario was something the Respondent should pursue in connection with the 6 and 6 but that imple- mentation would depend on the outcome of the 6 and 6 negotia- tions taking place simultaneously with these discussions. Daley corroborated Jacobs regarding these meetings. Sacco and Wolf did not testify.7 According to Jacobs and Daley, there was no further discussion of the second scenario until after agreement was reached on the new collective-bargaining agreement. Jacobs acknowledged being asked during the negotiations by company negotiators, whom he did not identify, whether there was “anything in the pipeline like this under consideration.” According to Jacobs, he advised the negotiators that there were “concepts” being considered. Daley did have more regular con- tact with the Respondent’s human resources department, field- ing “what if” questions regarding different proposals for im- plementing the 6 and 6, such as questions regarding the number of accounting department employees who could be allowed to leave the payroll in 1998 and 1999. Daley recalled that the numbers being discussed kept changing over the course of the negotiations. Whenever he asked about the status of negotia- tions on the 6 and 6, he was told nothing was firm, not even with respect to staggering off-payroll dates. Daley admitted that he never apprised any of the negotiators about the second sce- nario he discussed with Wolf and Jacobs in February. According to Jacobs and Hessenthaler, consideration of clos- ing the New York payroll office did not come up until June. As previously noted, in 1998, the Respondent was in the process of planning for the relocation of the payroll office from 1166 Avenue of the Americas to East 30th Street in New York as a result of the Respondent’s decision to sell 1166. Christopher Kelly, the Respondent’s executive director of real estate portfo- lio management, testified that the Respondent did not begin preparation of the new office space on 30th Street until August 1998. According to Kelly, it cost the Respondent $1.6 million to renovate the space on 30th Street to accommodate the New York payroll office. Hessenthaler testified that, in addition to this move within New York, the Respondent was in the process 7 Wolf is no longer employed by the Respondent. BELL ATLANTIC CORP. 1079 of combining the formerly separate Bell Atlantic and NYNEX payroll systems and converting to new software in 1998. In early June, Wolf asked Hessenthaler a question similar to the one she posed to Jacobs in February. In the course of dis- cussing the status of the payroll system conversion and the impact of the 6 and 6, Wolf asked Hessenthaler to look at proc- ess improvements and efficiencies that could be achieved through the 6 and 6. In response, Hessenthaler drafted a memo, which is undated, laying out a proposal to consolidate the Re- spondent’s payroll offices in Upper Darby, Pennsylvania.8 In her memo, Hessenthaler suggested that the Respondent take advantage of the upcoming 6 and 6 offers to close the New York payroll office and consolidate all payroll operations in Upper Darby. She reasoned that, because 95.5 percent of the unit employees in New York were eligible for a 6 and 6 offer, there would be minimal employee displacement. In addition, conversion to a common payroll computer system and new software would reduce the number of employees needed to process payroll. Hessenthaler projected annual savings in ex- cess of $1.6 million from closing the New York office. These savings would result from fewer employees and lower wage and benefit costs in Upper Darby.9 Hessenthaler did not calcu- late nonwage related savings associated with the move, such as lower real estate and utility costs. According to Hessenthaler, there were no meetings or any other discussions regarding her memo before negotiations concluded. The only followup she had was to talk to Daley about it because Jacobs told her that he was considering a similar plan for the revenue accounting op- erations. Hessenthaler had no involvement in contract negotia- tions. On July 31, Hessenthaler sent Jacobs an e-mail in response to an inquiry from him regarding the impact of the 6 and 6 on payroll operations. Her e-mail assumes the continued presence of the New York payroll office. Hessenthaler reported to Jacobs that she anticipated that all 60 employees eligible to receive a 6 and 6 offer would accept it and that 57 of these would be re- placed in the New York office. She anticipated further that the employees’ departures would be equitably spread out over the next five quarters, through calendar year 1999. Hessenthaler indicated that these projections were “arbitrary” and depended on resolution of the 6 and 6 negotiations, the timing of the of- fers, and the relative seniority of payroll employees compared to other accounting department employees accepting the 6 and 6 offer. Jacobs, Daley, and Hessenthaler denied being aware of the terms of the parties’ agreement to extend the 6 and 6 until after the contract was settled on August 11. However, a memo to the Respondent’s managers dated July 9, 1998, updates the status of negotiations, including the negotiations over the 6 and 6. The memo’s description of the Respondent’s 6 and 6 proposal on the table at that time is identical to the agreement ultimately 8 The Respondent had three payroll offices at the time. Upper Darby and Princeton, New Jersey, handled the payroll for the premerger Bell Atlantic offices south of New York. Hessenthaler’s memo indicates that there was already a plan to consolidate these offices into the Upper Darby office by late 1999–early 2000. 9 The record indicates that the employees in Upper Darby are repre- sented by a different local of the Union. reached on August 11. The only open question was the number of employees in the various bargaining units who would be permitted to leave on any given ARD. This is consistent with the testimony of the witnesses who were present at the regional bargaining table where the 6 and 6 issue was discussed, i.e., that the 6 and 6 had been substantially resolved by July 1998. Jacobs, Daley, and Hessenthaler would presumably have re- ceived this memo because they occupied positions at and above the director level. Hessenthaler’s July 31 e-mail to Jacobs indi- cates that she was at least aware of the staggered ARDs being negotiated in order to spread out the departure of employees accepting the 6 and 6. In his direct testimony, Daley conceded that the 6 and 6 extension with staggered ARDs was not a “total surprise.” According to Daley, the only aspect of the agreement that was a surprise was the 30-day time period for employees to elect to take the offer. In any event, all three witnesses testified that, upon learning the details of the agreement after August 11, they discussed among themselves whether the Respondent should go forward with the proposed relocations and decided to convene a meeting with representatives from labor relations and human resources. On August 18, Jacobs, Daley, and Hessenthaler met with John Hann from labor relations, and John Abeles and Anna Shuster from human resources. Osburn, Daley’s staff manager, was also present. Jacobs testified that this “meeting” was via conference call. Daley recalled that it was a face-to-face meet- ing. Neither Hessenthaler nor Hann testified one way or another regarding the type of meeting. No other participant testified. The minutes of this meeting prepared by Jacobs are in evi- dence. Two “initiatives” were discussed at this meeting. The first was a modification of Jacobs’ and Daley’s second scenario laid out in the February 17 memo. Instead of retaining some of the Brooklyn office’s revenue work in New York, the plan was to move all of it to Braintree. This initiative still included movement of bill print work from Braintree to Massapequa. The second initiative was Hessenthaler’s proposal to consoli- date payroll operations in Upper Darby. At the meeting, the participants discussed a number of “issues/concerns” related to the proposal. Daley asked about rumors that Larry Mancino, a vice president of the Union, had said after negotiations were concluded that, “there will be no geographical movement of work.” Hann reported that, “nothing happened in bargaining that would support” Mancino’s comment. The participant’s then discussed the terms of the merger agreement between Bell Atlantic and NYNEX limiting the amount of work that could be moved between the two formerly separate companies. Hann was assigned to determine whether the payroll move would exceed the limit. There was also discussion of the impact of announcement of these moves on contract ratification, which had not yet occurred. Hann advised that he did not think it would affect ratification. The minutes of the meeting and the testimony reflect that the participants at the meeting also dis- cussed contractual requirements of 6-months notice to the Un- ion of such moves and the requirement for collective bargaining over the decision. Daley also expressed concerns about “exter- nal intervenors.” From past experience with the Union, he an- ticipated that the Union would enlist public figures to intervene in an attempt to stop the movement of work. It was decided that DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1080 the Respondent’s officers should be prepared to respond to such overtures. Jacobs’ minutes also reflect that someone raised the possibility that the Union might ask for an extension of the deadline for employees to respond to the 6 and 6 offer so em- ployees could think about the new initiatives. Hann is reported to have advised against this, indicating that an extension of the deadline could make the 6 and 6 process “unmanageable. After discussing these issues/concerns, the participants at the meeting were assigned various individuals in upper manage- ment to brief. A timeline for making a decision and announcing it was prepared, which anticipates that the various approvals would be obtained by August 24, and that Daley and Hessen- thaler would inform the executive board of Local 1100 and the affected unit employees on August 25. Jacobs’ minutes also include savings and cost figures. According to the minutes, the movement of work from Brooklyn and Manhattan to Braintree and Upper Darby, respectively, would cost the Respondent approximately $4.4 million in 1998 and 1999. This includes the cost of training employees, site preparation, equipment and personnel relocation costs and capital expenditures. By calen- dar year 2000, after the move was completed, the Respondent would save in excess of $7 million a year in wages and benefits alone. Following the August 18 meeting, according to the Respon- dent’s witnesses, the meeting participants carried out their re- spective assignments to investigate and close down the open issues and concerns related to the proposed move. For example, Hann testified that he checked with Jim Dowdall, the Respon- dent’s vice president of labor relations, regarding the applica- tion of the merger agreement to this move.10 According to Hann, Dowdall told him that the 0.5-percent figure was a per- centage of all work done by CWA-represented employees, not individual bargaining units. Hann testified that Dowdall did not see any reason not to proceed with the move. Daley testified that there were two significant open issues after the August 18 meeting, EEO concerns because the employees whose work was being moved were disproportionately female and minority class members, and regulatory concerns. These issues were discussed with the Respondent’s EEO counsel and with Paul Crotty, the Respondent’s group president, external affairs, who is in charge of regulatory matters, and Pat Mulhearn, the Re- spondent’s vice president, corporate communications, who was responsible for the public relations aspects of the move. The managers who met on August 18 had further discussions among themselves, via conference calls, during the period August 18 through 24, as issues and concerns were resolved. After the final briefing with Crotty and Mulhearn on August 24, Jacobs, Daley, and Hessenthaler met briefly with Wolf and made the decision to go forward with the two moves. Daley and Hessen- thaler were assigned to meet with the executive board of Local 1100 and the affected employees in Brooklyn and Manhattan, respectively, to inform them of the decision.11 Daley and Hes- 10 Under the terms of a premerger agreement with the Union, the Re- spondent could not move more than 0.5 percent of bargaining unit work from north (NYNEX) to south (Bell Atlantic) and vice versa. 11 The minutes of the August 18 meeting indicate that Daley was also assigned to meet with the IBEW regarding the aspects of the move senthaler prepared “talking points” to use in their meetings with the employees. These “talking points” are in evidence. C. Respondent Announces its Decision The Respondent first notified the Union of its decision by a telephone call from Daley to Murcott at approximately 4 p.m. on August 24. Hessenthaler was also on the line. According to the undisputed testimony of Murcott, Daley told her he was going to give her some information and asked if she could keep it confidential until the Respondent was ready to divulge it. When Murcott agreed, Daley told her that the Respondent was going to close the Manhattan payroll office and move the work to Upper Darby, Pennsylvania, and that the Respondent was going to close the Brooklyn office and move the work to Brain- tree, Massachusetts. Daley also informed Murcott that some work was being moved from Braintree to the Massapequa of- fice represented by her Union. In response to this news, Mur- cott, who was admittedly angry, said that they had just negoti- ated a contract with job upgrades that had gone to the member- ship without one word from the Respondent about any move- ment of work. Daley asked her to set up a meeting with the executive board for the following morning, which she agreed to do, The following day, at 8 a.m., Daley and Hessenthaler met with Murcott and most, if not all, members of the Union’s ex- ecutive board at the Union’s office. Murcott and Gloria Gadz- inski, Local 1100’s secretary, testified for the General Counsel about this meeting. Gadzinski’s minutes of the meeting are also in evidence. Daley testified for the Respondent. Hessenthaler merely testified that she agreed with Daley’s testimony regard- ing this meeting. There is not much dispute regarding what happened at the meeting. Murcott testified that Daley did most of the talking and re- peated his announcement about the two moves. Gadzinski, in her testimony and in the minutes of the meeting, indicates that Daley and Hessenthaler referred to the 6 and 6 and the high number of employees eligible to retire under this offer as a key factor in the decision. Murcott and the members of the Board expressed anger at the announcement and its timing so soon after negotiations had concluded. They expressed disbelief that the Respondent did not know about this move during the nego- tiations. Murcott expressed her feeling that the Union and the members had been deceived by the Respondent. Murcott also told Daley and Hessenthaler that she believed the movement of work from New York to Upper Darby violated the merger agreement. Daley told the Union that he and Hessenthaler had scheduled a meeting with the affected employees for 11 a.m. that morning to announce the decision. Murcott requested a caucus to try to reach the Union’s vice president, Mancino. However, Murcott was unable to reach Mancino. Murcott and Gadzinski testified that, after the caucus, Murcott asked Daley and Hessenthaler to hold off announcing the decision until she had time to reach Mancino. Daley refused, telling the Union that the employees had a right to know about this while they affecting the Braintree office. Hann testified that he and Daley met with the IBEW in Braintree to announce the decision. According to Hann, the Respondent then engaged in collective bargaining with the IBEW over the move there. BELL ATLANTIC CORP. 1081 were considering the 6 and 6 offer.12 Daley’s testimony was in agreement with that of Murcott and Gadzinski in all but two respects. Although Daley recalled Murcott asking him to delay the announcement to the employees, he did not recall her pro- viding any reason for this request. He admitted refusing to postpone the announcement because of the 6 and 6 deadline. Daley also testified that he asked Murcott and the Union’s ex- ecutive board if they were going to attend his meeting with the employees. He could not recall any response, but testified that it was clear to him they were not. According to Daley, it is not uncommon for union representatives to attend such meetings with employees and to hold their own meeting with the em- ployees on company premises after the Respondent is finished meeting with the employees. Murcott and Gadzinski denied being asked by Daley to attend the Respondent’s meeting with the employees. Murcott acknowledged that it was not uncom- mon for the Union to meet with employees immediately after the Respondent held meetings with them. There is no dispute that after meeting with the executive board Daley went to Brooklyn and Hessenthaler to Manhattan to make the announcement to the affected employees, as planned at the August 18 meeting, of Respondent’s decision makers. Daley and Hessenthaler testified about their respective meetings. Cora Batties, a personnel staff director who had re- tired and was working as a consultant for the Respondent at the time, also testified about the Brooklyn meeting. The Respon- dent also placed in evidence the written “talking points” they prepared for use at this meeting. Daley and Hessenthaler ac- knowledged that they did not read from the talking points, us- ing them instead as a guide. The General Counsel offered the testimony of Venice Booker and Louise Thomas regarding the meeting in Brooklyn and Evelin Mendoza and Peggy Corley regarding the meeting in Manhattan. All are long-term employ- ees who were eligible for the 6 and 6 offer. Booker and Men- doza were also union representatives in their respective offices. Booker and Thomas testified that Daley told the employees in Brooklyn that the building would be closing and their work was being moved to Braintree, Massachusetts. Daley also told the employees that any employees who did not take the 6 and 6 would be placed in other jobs. Both witnesses recalled that there was a lot of grumbling after the announcement and that employees asked many questions, including why the Respon- dent didn’t tell the employees before the new contract was ne- gotiated. Booker recalled that someone asked when the work would be moved and Daley responded that he didn’t know yet, that he would have to get back to them. According to Booker, Daley also told the employees that he expected that the Union would be getting in touch with them. Both employees testified that their impression of the announcement was that the decision was final. Thomas explained that she reached this conclusion because Daley told them that he had already met with the Un- ion. Daley and Batties disputed the testimony that the meeting was “chaotic”. According to Daley, he gave the employees a lot of information about the decision, including the reason for the move. He also testified that he told the employees that he had 12 The deadline for employees to accept the 6 and 6 offer, according to the terms of the written offer, was September 6. just met with the Union’s executive board and that the Union was going to fight the move. Daley and Batties testified that employees actually applauded at the end of the meeting. Mendoza and Corley testified that Hessenthaler told the em- ployees in Manhattan that the office would be closed and the work moved to Upper Darby. They both recalled that one em- ployee asked if the employees would be moving with the work and that Hessenthaler responded no, only the work was moving. They also recalled that Hessenthaler advised the employees to take the 6 and 6 offer because, if they didn’t, they would have to find a another job. Hessenthaler disputed this testimony. According to her, she did not recommend that any employee take the 6 and 6 although she acknowledged that there were many questions about the 6 and 6 offer and job placement for employees who chose not to or were ineligible to retire. Hes- senthaler testified that she responded to these questions by tell- ing the employees that she did not know the answers but that she would schedule another meeting with experts who did. Such a meeting was held, according to Hessenthaler, on Sep- tember 1. The four employee witnesses all testified that they had not made any decision regarding the 6 and 6 offer before this meet- ing, but all decided to accept it after the announcement. They acknowledged that, under income protection and job security provisions of the collective-bargaining agreement, they could have continued working by filling jobs in other offices, with no change in their pay or benefits. However, the “green circle” around their rates was only guaranteed through the end of the current contract. Booker testified that, after the announcement, she was concerned about what would happen to the green circle after the contract expired. Murcott testified that the Union has surveyed the employees in the unit and determined that 28 of 60 eligible employees in Manhattan and 19 of 75 eligible em- ployees in Brooklyn would not have accepted the 6 and 6 offer if the offices remained open. The Respondent placed in evi- dence a summary of its records showing that, of the total num- ber of employees in these two offices accepting the 6 and 6 offer, 32 percent in Manhattan and 46 percent in Brooklyn did so before the decision was announced. D. The Union’s Response to the Respondent’s Announcement As noted above, Murcott had been unable to reach Mancino during the Union’s meeting with Daley and Hessenthaler. Ac- cording to Murcott, she finally reached Mancino in the after- noon and informed him of the Respondent’s decision that had been announced to the Union that day. Mancino told Murcott that he would contact the Respondent’s vice president of labor relations, Jim Dowdall, about it. Murcott heard nothing further from Mancino thereafter. Nor did she attempt to contact him. According to Murcott, Mancino had open-heart surgery shortly thereafter and he was out of work for several months. Murcott did talk to Dowdall herself, about a week later during the Inter- national Union’s convention. Dowdall was also at the conven- tion and Murcott asked him why the Respondent was moving work when the unit employees were doing such a good job. According to Murcott, Dowdall told her that he didn’t know much about what was going on, but that he either was having, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1082 or would be having, discussions with someone about it. Murcott testified that she was not “encouraged” by his response. She admittedly did not follow up with anyone else after these con- versations with Mancino and Dowdall. Mancino testified that he received a call from Murcott to- ward the end of August about the Respondent’s planned moves. According to Mancino, he then contacted Dowdall and “vented his frustrations,” reiterating the objections that Murcott had expressed about the Respondent’s failure to notify the Union about the proposed move during contract negotiations. Mancino testified that Dowdall told him that he would look into it and get back to Mancino. Dowdall did not indicate to Mancino that he knew about the Respondent’s decision. Shortly after these calls, the Union had its convention in Chicago. Because of his heart condition, he was unable to travel to the convention. Shortly after the convention, he went into the hospital for sur- gery and was out of work until November 8. Mancino did not hear back from Dowdall before he left work. He did not dele- gate to anyone else the task of following up on his phone call with Dowdall because he believed it would be demeaning to Dowdall to have a lesser official in the Union contact him. Mancino admitted that, even after his return to work, he had no further contact with Dowdall about this issue. The undisputed evidence in the record establishes that the Union took no other action in response to the Respondent’s announcement until it filed two grievances at the end of Octo- ber alleging that the movement of work violated the premerger agreement and the collective-bargaining agreement. It is spe- cifically admitted by the Union’s witnesses that the Union made no request to bargain over the decision between August 25 and December 15. E. The Common Committee On August 25, after the meeting with Daley and Hessen- thaler, the Union received by fax a letter from Hann, the Re- spondent’s labor relations director, dated August 24 formally advising the Union of the Respondent’s decision. The letter indicates that the movement of work from the two offices would begin in March 1999, and be completed by December 1999. According to the letter, the early announcement of the move was necessitated by the September 8 deadline for em- ployees to accept the 6 and 6 offer.13 Hann closed his letter as follows: At the next Common Committee meeting we will re- view the details of these consolidations. In the meantime, the Company plans to meet with you to discuss the impact of these consolidations and the schedule of announcements to the work force. Please call me if you have any questions. Murcott did not call Hann regarding this letter. The “Common Committee” referred to in Hann’s letter is the successor to several joint labor-management committees, in- cluding a “technology change committee,” that existed prior to 13 The offer sent to employees was dated August 8, and had a dead- line of September 6, to accept. The later date in Hann’s letter is the result of the 2-day delay in mailing the offers to the employees because of the strike. the 1994–1998 collective-bargaining agreement.14 In 1994, the parties merged all of the joint committees into one “Common Committee.” Article 33 of the 1994 and 1998 collective- bargaining agreements, which are identical, embodies the par- ties’ agreement on the Common Committee. The committee consists of an equal number of union and management repre- sentatives and is cochaired by the Respondent’s managing di- rector of labor relations and the Union’s vice president, District One, or their designees. The committee has a staff of two, one selected by each of the parties, and its operations are funded by the Respondent. Under article 33: The Company will notify the Union at least six months in ad- vance of planned major technological changes (including changes in equipment, organization, or methods of operation), which may affect employees represented by the Union, unless it has done so prior to the date of this agreement. Meetings about the planned changes will be held as soon thereafter as can be mutually arranged. At such meetings, the Company will advise the Union of its plans with respect to the introduc- tion of such changes and will familiarize the Union with the progress being made. Although the company is required to notify the Union at least six months in advance of the intro- duction of any planned major technological change, it will make a good faith effort to advise the Union as soon as it de- cides to introduce such changes in order to give the Union the opportunity to discuss the impact of these changes upon the various bargaining units and the Company’s customers. The Common Committee will serve as a clearinghouse for the exchange of information between the Company and the Union regarding those and other significant planned actions or changes and their effects on represented em- ployees, and as a forum to seek mutually acceptable ways to minimize any significant negative impact on repre- sented employees, while enhancing the Company’s ability to grow, improve customer service, and improve its com- petitiveness. The Committee’s staff will, at the direction of the Committee, evaluate planned Company actions or changes referred to in the preceding paragraph, and provide input to the Committee regarding alternatives to mitigate em- ployee impact. After consideration of any staff input, the Committee may make recommendations to the Company regarding al- ternatives to the planned major technological changes, and the Company members of the Committee will work to fa- cilitate these recommendations as appropriate. Nothing in this Common Committee process, however, will prevent the Company, after the end of the six-month period, from implementing proposed major technological changes that do not otherwise violate the collective-bargaining agree- ment. Murcott testified that the Union’s representatives on the Common Committee were the members of its executive board. 14 The evidence in the record indicates that the technological change committee was initially created under a letter of understanding dated August 10, 1980. BELL ATLANTIC CORP. 1083 She acknowledged that the purpose of the committee was to give the Respondent and the Union a 6-month period to discuss any changes in the Respondent’s methods of operation that would affect the unit. According to Murcott, the Common Committee in practice functions as nothing more than a forum for the Respondent to notify the Union of changes it plans to make without any real discussion taking place. There is no evidence that the Common Committee discussed the work relo- cation plan at issue here until June 1999. Daley testified with- out contradiction that he and Hessenthaler attended a meeting of the Common Committee at that time at which the move was supposed to be discussed. However, after taking a caucus, the Union’s representative told the Committee that it had no desire to discuss it in that forum, that the Union was taking the issue to a different forum. F. Meetings After the Respondent’s Announcement On or about October 28, the Union and the Respondent met at union headquarters for a step 1 and 2 meeting on the Union’s grievances. Daley represented the Respondent and Murcott represented the Union. Murcott could not recall who else was there.15 According to Murcott, this is the first time the parties discussed “people issues” related to the move, such as training and placement of employees in other jobs. The Union also asked to extend the ARDs selected by those employees who had taken the 6 and 6. No resolution to these issues was reached at that meeting. Murcott did not describe in any detail the dis- cussion regarding the grievances themselves but she acknowl- edged that Daley gave an explanation of the reasons for the Respondent’s decision. The grievances were denied at this step and the Union pursued them to step 3. The parties held three more meetings on November 16 and 23 and December 8 at which the “people issues” were dis- cussed. Murcott was the only witness to testify regarding these meetings. Her testimony was not very detailed regarding what happened at each of these meetings. She admitted however that bargaining about the Respondent’s decision was not discussed. From her testimony, it appears that the “people issues” were in actuality effects of bargaining issues. By the last meeting in December, according to Murcott, the parties had agreed to al- low employees to extend their ARDs until April 1999. This was later extended further so that no employee who had taken the 6 and 6 offer would have to leave the payroll before December 1999. The most significant meeting between the parties after the decision was announced was the third-step grievance meeting on December 15. Murcott, Gadzinski, and Donna Dolan, the Union’s International staff representative were present for the Union while Daley, Hessenthaler, and Hann represented the Respondent. Several witnesses testified regarding this meeting. Also in evidence are Dolan’s and Gadzinski’s notes taken at the meeting. There is essentially no dispute regarding what tran- spired at the meeting. The notes are consistent with the testi- mony of the witnesses, but are much more detailed. As established by the testimony and the notes, the meeting opened with the Union stating its position with respect to each 15 Murcott was the only witness to testify about this meeting. grievance. Specifically, the Union contended that the move- ment of work from Manhattan to Upper Darby violated the pre- merger agreement’s limitations on the amount of work that could be moved from the former NYNEX units to the former Bell Atlantic units and that the movement of work from Brook- lyn to Braintree violated the Recognition clause of the collec- tive-bargaining agreement. Hann, speaking for the Company, disagreed with the Union’s interpretation of the contract. Gadz- inski’s notes reflect that he said: “If we have a good business reason [to transfer unit work to the IBEW] we would discuss with you–we must do this.” (Emphasis added.) Gadzinski’s notes show that Murcott claimed that the Respondent made no attempt to sit and bargain with the Union over the movement of work. Hann responded by referring to the August 25 meeting at which Daley and Hessenthaler informed the Union of the deci- sion. Hann also referred to the 6 and 6 deadline as forcing the Respondent to announce the decision when it did, so that em- ployees would have this information when they were making their decisions whether to accept the 6 and 6 offer. When the Union objected to the timing of the announcement and the fail- ure to raise this issue during contract negotiations, Hann and Daley responded that the decision was not made until after a meeting with Crotty and Mulhearn, after negotiations were concluded. They told the Union that the Respondent wanted to await the outcome of negotiations before deciding on the movement of work. Murcott and other union representatives then challenged the Respondent’s claims, arguing that the is- sues related to the 6 and 6 were resolved in July and were known to the Respondent’s management. Hann and Daley re- sponded that nothing was final until the strike was settled. The testimony and notes reflect that the parties then dis- cussed the number of jobs being relocated, with disagreement between the parties over this. There was further discussion regarding the timing of the decision and the reason for the move. After Murcott and Dolan questioned why the Respon- dent didn’t discuss its “ideas” with the Union sooner, Hann asked if the Union had any alternatives. Murcott replied that the Union was “not prepared to do that today.” Hann then asked if the Union wanted to bargain and Murcott said, “we need to bargain on the movement of the work.” Hann again explained the timing of the decision and announcement and the Union complained that the Respondent should have notified them sooner. After Murcott suggested that the Respondent bring back “In Touch Center work,” work that had been removed from the unit previously, Hann told the Union it was his job to see that the work can be done cheaper. Murcott replied, “[W]e can give you job cheaper–give us figures.” Hann replied that he was there to do the grievance and then asked if the Union wanted to make an economic proposal. Murcott responded that she didn’t believe Hann. Gadzinski’s notes show that Daley and Hessen- thaler told the Union that they didn’t have a definitive plan in place yet for the move. Daley told the Union that he didn’t think that the Respondent would begin moving any work before March or April 1999. Gadzinski’s notes show that Hessenthaler then said that the Respondent “would listen to you if you have a plan.” (Emphasis added.) The notes reflect that, rather than respond to this invitation, the Union sidetracked the discussion by asking questions about the lease in Brooklyn, the number of DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1084 jobs affected and other issues. At one point during this discus- sion, Daley told the Union that the move would take place in stages and would take 11 months to 1-1/2 years to complete. Before taking a caucus, Dolan told the Respondent that the Union wanted to request information regarding the movement of work. The testimony and notes reflect that when the Union returned from the caucus Dolan told the Respondent that in order to make an economic proposal it needed information on the cost of operations in the New York offices compared to the facilities where the work was being moved. She and Murcott then de- scribed specifically the type of information they wanted, such as wage rates and EEO data for the other offices. Daley and Hessenthaler each agreed to provide this information. Towards the end of the meeting, the Union again questioned the Respon- dent why it had selected the Brooklyn and New York offices to close. Daley explained that they selected the offices based on the expected vacancies created by the number of people who would take the 6 and 6, resulting in fewer employees who would be displaced as a result of the closing. The meeting ended with Hann asking the Union if it wanted to schedule another meeting to bargain over the decision. Murcott replied that the Union would get back to him after it received and re- viewed the information. By letters dated December 30, 1998, signed by Hann, the Respondent denied the Union’s two griev- ances.16 On December 22, Dolan wrote to Hann as a follow-up to the meeting. After reiterating the Union’s objections to the move and reminding the Respondent of her request for information, Dolan wrote as follows: You emphatically stated that the Company would be willing to reconsider the transfer of work if the Union pre- sented a convincing proposal for keeping this work in New York. Based on the following information, which CWA learned subsequent to the December 15th meeting, it is impossible for us to take your offer seriously. On August 25 at 8:00 a.m., Tom Daley and Sherry Hessenthaler arrived at Local 1100’s office to inform the Executive Board of their intention to transfer their work. At that time Local 1100 asked Management to delay in- forming the employees in Brooklyn and Manhattan of the Company’s intention to transfer their work out-of-state un- til they could discuss this matter with their CWA District leadership. Management flatly refused and went to the Brooklyn and Manhattan offices at 10:00 a.m. that morn- ing to make the announcement. If, however, the Company is willing to rescind the de- cision to transfer work out of state until such time as you have received and studied the Union’s proposal, then we will know that your offer was a serious one. The Union is not willing to commit the tremendous amount of effort required to develop a comprehensive 16 Dolan testified that the Union filed for arbitration but that the arbi- tration is being held in abeyance pending the outcome of these proceed- ings. The Respondent has not requested deferral to arbitration in this case. proposal unless we believe there is a possibility that the Company will reverse the decision. Hann responded to Dolan by letter dated December 31. At- tached to the letter was information in response to Dolan’s request at the December 15 meeting. The information provided to the Union indicates that the Respondent projected savings from the consolidation of work to total $6.2 million a year, a figure slightly less than that forecast in August when the deci- sion was made. In response to the other issues raised by Do- lan’s letter, Hann wrote the following: As you are aware, the Company’s plans to consolidate the CBO/CBS and Payroll functions were primarily driven by cost reductions and the anticipated retirements that will result in these groups from the recently negotiated 6 and 6 retirement offer. Since the 6 and 6 retirement offer only impacts the New York work force, it makes business sense for the Company to consolidate these job functions in this manner. However, the Company in presenting its plan to the CWA has consistently indicated a willingness to dis- cuss with the CWA the Company’s plans and to consider any alternative proposal made by the CWA. Regarding your surprise that the Company notified employees in the Brooklyn RAO and Manhattan Payroll office of the Company’s plans to consolidate work func- tions and close those facilities, you should know that prior to announcing the Company’s plans to employees, the Company advised the CWA Local 1100 Executive Board that the Company would be informing employees of the Company’s plans. As I discussed with you, the decision to inform employees of the Company’s plans was to enable employees to make an informed decision when they con- sidered the 6 and 6 retirement offer. Even though CWA represented employees have job security protection under the terms of the collective-bargaining agreement, an em- ployee’s decision on whether to accept or reject the 6 and 6 retirement offer could be impacted by a change in job function and job location. After an explanation of the information attached to his letter, Hann ended his letter with the following paragraph: If the CWA has a proposal, which equals the benefits to the business of consolidating work functions, the Company will reconsider its plans to consolidate work. However, in the ab- sence of such a proposal and in consideration of the time nec- essary to properly plan and implement this work consolida- tion, the Company at this time must continue its plan to con- solidate work. The Company is available to meet to discuss further any aspects of this planned consolidation of Account- ing work. Please call me if you have any questions or if you want to schedule additional meetings to discuss the plan itself or the effects of the plan on the work force or any CWA alter- natives. It is undisputed that the Union did not submit any proposals to the Respondent after receiving Hann’s letter. It is also undis- puted that there was no further contact between the parties be- fore the Union filed the instant unfair labor practice charge on February 23, 1999. Although Dolan testified that she was not BELL ATLANTIC CORP. 1085 satisfied with the information supplied by the Respondent on December 31, she admitted that she did not contact Hann to advise him that the information was inadequate or incomplete.17 In fact, the Union did not communicate with the Respondent regarding the information request until August 12, 1999, when Dolan made another request for information. G. Implementation of the Move The General Counsel placed in evidence a variety of docu- ments obtained from the Respondent pursuant to subpoena in an attempt to show when the Respondent began implementing the movement of work. The earliest document is a computer- generated document entitled “Contract Purchase Order Infor- mation” with an entry date of November 5, for a vendor identi- fied as Atlantic Design Alliance involving the Upper Darby Accounting Center. The work to be done is described as: “Renovations and space planning to expand Payroll on the 2nd floor. Requires moving Sourcing group on the 2nd floor to the 1st floor and rearrange 1st floor to accept Sourcing.” Other documents indicate that bids for various portions of the work were solicited on November 24, and that a contractor received an “Authorization to Proceed” with the expansion of the Upper Darby payroll office on December 23. This authorization indi- cates that the work was to start on December 14, and be com- pleted by March 31, 1999. Kelly, the Respondent’s real estate portfolio manager, testified that it cost the Respondent ap- proximately $100,000 to renovate the space in Upper Darby to accommodate the payroll office consolidation. A “Payroll Services Associate Job Requisition” form for the Upper Darby office shows that the Respondent first sought to hire additional employees for that office on December 10. Hes- senthaler testified that these new hires were to be used initially to replace employees in Upper Darby who were working on the software conversion and then would take over the work being moved from the Manhattan office. The document shows that the first employees hired pursuant to the job requisition started in January 1999. According to Hessenthaler, it ordinarily takes 30–60 days to fill a position after it is requisitioned and another 6–8 weeks to train a new employee. Hessenthaler testified that the Upper Darby office did not begin performing the work pre- viously done in Manhattan until April 5, 1999. Kelly testified that he first learned of the move to Braintree in December. According to Kelly, a planner from his depart- ment had been working with individuals in the Braintree office who wanted additional space there for expansion. The space they wanted to occupy had been reserved for another depart- ment. Kelly got involved in order to resolve these competing claims for the same space. Documents placed in evidence by the General Counsel show that on October 27, there was a meeting in Braintree at which managers from the Braintree office discussed with a representative from the Respondent’s real estate office their plans to expand that office to accommo- date the work consolidation. According to the minutes, the Braintree managers advised the real estate representative that they planned to have the building ready for occupancy by 17 There is no allegation in the complaint that the Respondent failed or refused to furnish any information requested by the Union. March or April 1999, and that the entire transition would take 10–14 months. The minutes reflect that no final decision on the expansion plans was made at that meeting. A document entitled “Client Agreement Form, A Real Estate Project Planning Docu- ment” dated October 30, shows agreement being reached to go forward with the expansion of the Braintree office to ac- commodate the movement of work from Brooklyn. The desired start date for the move is March 1999, with completion by De- cember 1999. Daley signed the document indicating his concur- rence on October 30. On January 6, 1999, there was another meeting involving representatives from the Respondent’s real estate portfolio management group and the accounting depart- ment at which the physical consolidation of the accounting functions from Brooklyn into the Braintree office was dis- cussed. The minutes of this meeting indicate that, despite the October 30 client agreement, nothing had been done to imple- ment the proposed move. The minutes of the January 6 meeting indicate that space plans were yet to be developed and no draw- ings were done or bids solicited. Another document in evidence reveals that on January 13, 1999, the construction manager was authorized to proceed with the work. The construction schedule shows that the work was to start on April 1, 1999, and be com- pleted by July 1, 1999. These documents are consistent with the testimony of Daley that the movement of work from Brooklyn to Braintree did not commence until April 1999, and that prepa- rations of the office in Braintree to receive the work occurred around February–March 1999. Kelly testified that the real es- tate cost for the movement of work from Brooklyn to Braintree was $325,000. H. The Respondent’s History of Consolidations and Work Transfers Daley, who has been employed by the Respondent and its predecessors in New York for 34 years, testified about the his- tory of consolidation of accounting functions. According to Daley, the Respondent employed more than 4000 people in 15 offices when he started with New York Telephone in 1965. As of the date of the hearing, there were 630 employees doing the same work for an expanded company. Daley testified that he dealt with the Union with respect to some of the consolidations of offices. The Respondent introduced a chart showing consoli- dations of offices and work functions affecting the unit in- volved here going back to 1973. Daley testified specifically regarding two of these moves. In 1990, the Respondent decided to close an office located at 5030 Broadway in Manhattan.18 The work being performed there was moved to Brooklyn and Massapequa, within the same bargaining unit. Daley testified that the Respondent notified the Union of this decision under the predecessor to the Common Committee clause in the collective-bargaining agreement and met with Local 1100 to discuss it. As a result of these discus- sions, the Respondent agreed to delay the move for the conven- ience of the employees who would have to report to a new work location and to provide transportation for employees who had to travel further to get to work. Daley testified that the Re- 18 The location of this office is reported incorrectly throughout the transcript as “1530 Broadway.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1086 spondent notified the employees of the move after it completed its discussions with the Union. In 1995, the Respondent closed an office in Syracuse, New York, represented by a different local of the Union, and moved the work performed there to Massapequa and Brooklyn offices represented by Local 1100. In addition, some functions per- formed in Massapequa were relocated to an office in Menands, New York, represented by the other local union. Daley testified that the Respondent notified both Local 1100 and the Union representing the employees in the upstate New York offices and negotiated with the two unions regarding the decision. A letter dated May 4, 1994, to Murcott indicates that these changes were part of the Respondent’s process reengineering plan and that notice of these changes was being given to the Union pur- suant to the “technological change” language in the contract.19 Attached to this notice was detailed information regarding the planned moves and the numbers of employees affected. The date of this notification is approximately 1 month after the agreement was reached on the 1994–1998 collective-bargaining agreement. According to Daley, after giving the Union notice, the parties met and formed a committee to look for alternatives that would produce equivalent savings for the Respondent without moving the work. The committee developed a financial plan to keep the work in the Brooklyn office. That plan was presented to the Union’s members who rejected it. Daley testi- fied that, had the members accepted the plan, the work would have remained in Brooklyn. I. Analysis and Conclusions There appears to be no dispute that the Respondent’s deci- sion at issue here was subject to mandatory bargaining under the Board’s decision in Dubuque Packing Co., 303 NLRB 386 (1991), enfd. 1 F.3d 24 (D.C. Cir. 1993). In fact, the Respon- dent made no contrary argument in its posthearing brief. As- suming arguendo that the Respondent nevertheless contests this issue, I find that the evidence in the record satisfies the Board’s Dubuque test. The parties stipulated at the hearing to facts es- tablishing that the Respondent’s decision involved a relocation of unit work unaccompanied by any basic change in the nature of the Respondent’s operations, thereby satisfying the General Counsel’s prima facie burden. Respondent offered no evidence at the hearing to rebut this prima facie case under either alterna- tive recognized by the Board. Thus, the Respondent did not attempt to prove that the work now being performed in Brain- tree and Upper Darby varies significantly from the work per- formed at Brooklyn and Manhattan, or that the work previously performed by Unit employees was to be discontinued, or that the Respondent’s decision involved a change in the scope and direction of the enterprise. As to the alternative defense recog- nized by the Board in Dubuque, the Respondent failed to show by a preponderance of the evidence either that labor costs were not a factor in its decision or that the savings anticipated by the move were so substantial that the Union could not offer conces- sions that could have changed the Respondent’s mind. The 19 There is no dispute that the referenced “technological change” provision in the collective-bargaining agreement was the precursor to the “Common Committee” in the current contract. testimony of Jacobs, Daley, and Hessenthaler proves conclu- sively that labor costs were indeed a significant factor in the Respondent’s decision. All of the savings identified in the memos and meetings at which the decision was discussed by the Respondent’s managers came from a reduction in the num- ber of employees performing the work and the lower wage and benefit structure in the offices where the work was relocated. Although Hann may have told the Union at the December 15 grievance meeting that the Union could not come up with sav- ings that would equal what the Respondent expected to achieve by relocating the work, as Murcott claimed, the Respondent did not seek to prove that this was true. Moreover, the fact that the Respondent invited the Union to make a proposal on December 15 amounts to a concession that it was possible to meet the savings through bargaining. See Dorsey Trailers, Inc., 327 NLRB 835, 858 (1999). Having concluded that the Respondent’s decision was a mandatory subject of bargaining, it must next be determined whether the Respondent satisfied it’s statutory duty to afford the Union notice and an opportunity to bargain regarding the decision. In determining this issue, the Respondent’s waiver defense must also be considered. It has long been settled law that an employer that desires to make material changes in the terms and conditions of employment of its union-represented employees has a duty under the Act to give timely notice to the union and afford the union a meaningful opportunity to bargain before implementing the changes. Defiance Hospital, 330 NLRB 492 (2000), and cases cited therein. It is also well settled that, upon receipt of such notice from an employer, a union must act with due diligence to request bargaining, otherwise it may be found to have waived its right to bargain over the mat- ter. Medicenter, Mid-South Hospital, 221 NLRB 670, 678–679 (1975), and cases cited therein. Accord: Haddon Craftsmen, Inc., 300 NLRB 789 (1990); Clarkwood Corp., 233 NLRB 1172 (1977). The Board has held, however, that where notice is given too short a time before implementation, or under circum- stances where it is clear that the employer has no intention of bargaining about the subject, then a violation will be found even if the Union has failed to request bargaining. In such cases, the Board has found that the notice is nothing more than informing the Union of a “fait accompli.” Ciba-Geigy Pharma- ceuticals Division, 264 NLRB 1013, 1017 (1982), enfd. 722 F.2d 1324 (7th Cir. 1983). Accord: Mercy Hospital, 311 NLRB 869, 873 (1993). In determining whether an employer has pre- sented the Union with a “fait accompli,” the Board looks for objective evidence. Mercy Hospital, supra; Haddon Craftsmen, Inc., supra. See also W-I Forest Products Corp., 304 NLRB 957 (1991). A union representative’s subjective impressions of the employer’s state of mind and the employer’s use of positive language in its notice announcing the changes have been de- termined by the Board to be insufficient evidence of a “fait accompli.” Id. The General Counsel and the Charging Party argue that the Respondent’s notice to the Union on August 24 was nothing more than a “fait accompli,” thereby excusing the Union’s fail- ure to act to preserve its rights. The General Counsel and the Charging Party rely on the positive tone in which the plans were announced, the Respondent’s almost simultaneous an- BELL ATLANTIC CORP. 1087 nouncement to the employees, and the Respondent’s denial of the Union’s request that it postpone the scheduled announce- ment to the employees as proof of a “fait accompli.” Alterna- tively, they argue that even if the notice was not a fait accom- pli, the Respondent did not afford the Union sufficient time to bargain over the movement of work. According to the General Counsel and the Charging Party, bargaining would have to have occurred before the September 6 or 8 deadline for employees to accept the 6 and 6 retirement offer because, after that date, the Union would have no leverage with which to bargain. The Re- spondent argues that its notification to the Union was timely because implementation of the plan was not scheduled to com- mence for at least 6 months. The Respondent contends that the Union’s inaction, even when invited at the December 15 griev- ance meeting to submit a proposal and commence bargaining, is clear evidence of a waiver of its statutory rights. The Re- spondent argues further that the Union had already waived its statutory bargaining rights by agreeing to the contractual “Common Committee” procedures for addressing changes such as those at issue here. Although there are some minor disagreements among the witnesses regarding what was said a various meetings, the criti- cal facts are not in dispute. It is undisputed that the Respondent notified the Union of its plans to close the Brooklyn RAO and the Manhattan payroll office and to relocate unit work on Au- gust 24. The Respondent’s witnesses concede that the subject of relocating at least some of this work had been discussed as early as February. There is no dispute that the Union was never informed during contract negotiations, from February through August 11, that a relocation of unit work was under considera- tion. It is also undisputed that the Respondent announced its decision to the affected employees almost immediately after informing the Local 1100 executive board and that the Respon- dent denied a request from the Union to postpone this an- nouncement.20 The Union’s witnesses concede that they did not request bargaining over the Respondent’s decision after receiv- ing notice of the Respondent’s plans. The record establishes conclusively that the Union essentially did nothing until it filed grievances more than 2 months later claiming that the reloca- tion of work violated collective-bargaining agreements with the Respondent. The earliest the Union even broached the possibil- ity of bargaining over the decision was December 15, at the third-step grievance meeting. Even then, although the Union initially indicated that it desired to bargain about the decision and even requested information related to the subject, which was promptly furnished by the Respondent, it quickly aban- doned any effort at bargaining after the meeting. Finally, the uncontradicted evidence establishes that the Respondent did not begin relocating any unit work before April 1999.21 In fact, the earliest evidence of any action being taken to implement the 20 Although the Respondent informed the executive board of its deci- sion on August 25, the Union had actual notice since 4 p.m. on August 24, when Daley and Hessenthaler told Murcott about the Respondent’s plans. 21 Both offices were still open as of the close of the hearing. In addi- tion, by agreement of the parties, no unit employees affected by the work relocation were required to leave the Respondent’s payroll under their 6 and 6 elections before December 1999. move was in November, when planning and design work for expansion of the Upper Darby office began. Actual construc- tion work did not begin in either of the offices to which the work was being moved before early 1999. On these facts and the record as a whole, I find that the Gen- eral Counsel has not proved that the Respondent’s decision was a fait accompli. As noted above, the positive language used by Daley in announcing the Respondent’s decision and the subjec- tive impression of Murcott, Gadzinski, and the unit employees who testified regarding the finality of the Respondent’s deci- sion is insufficient to establish that the August 24 and 25 notifi- cation was a “fait accompli.” Haddon Craftsmen, Inc., supra. Although the Board has generally found that announcement of changes to employees before notification to the Union is suffi- cient to establish that an employer’s decision is a fait accompli, that did not occur here. Cf. AT&T Corp., 325 NLRB 150 (1997); Roll & Hold Warehouse & Distribution Corp., 325 NLRB 41 (1997). Moreover, the facts in those cases contain other evidence, such as contemporaneous statements by man- agement officials and testimony at the hearing, establishing that the employer’s decision was irrevocable even before notice was given to the Union. See also Dorsey Trailers, supra. In the in- stant case, Daley and Hessenthaler made no statements at the time of the announcement that would lead a reasonable person to conclude that the decision was irrevocable. On the contrary, they informed the Union that the move would not take place for at least 6 months. By letter the same date, Hann advised the Union that the issue was being referred to the “Common Com- mittee.” Murcott conceded that the purpose of this contractual procedure was to afford a forum for the Respondent and the Union to develop alternatives to changes such as those an- nounced here. Murcott even acknowledged being aware that, under the contract, the Respondent could not implement any changes for 6 months. The record establishes that, in the past, the Union had engaged in bargaining over similar decisions with varying degrees of success. Under these circumstances, it cannot be found that the Respondent’s decision was irrevocable before the announcement was made. The Board’s recent decision in Defiance Hospital, supra, where the Board found a “fait accompli” based on, inter alia, the fact that the employer informed the union and the employ- ees simultaneously of a change in their wages, is distinguish- able. In that case, there was testimony from the employer’s administrator indicating that the decision to grant a wage in- crease was final even before he met with the union. Moreover, the employer’s announcement of the change occurred in the context of the employer’s general refusal to recognize and bar- gain with the union following its merger and affiliation with another union. Under such circumstances, it was clear that the employer had no intention of bargaining over the subject at issue. In the instant case, the evidence establishes that after making the announcement to the Union and the employees the Respondent indicated a willingness to bargain over the subject, even inviting the Union to make a proposal at the December 15 grievance meeting. I note that the Respondent bargained with the IBEW, the Union whose work was relocated from Braintree to Massapequa, regarding this same matter. Finally, I credit the testimony of the Respondent’s witnesses that they were cogni- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1088 zant of their obligation to bargain over this decision and dis- cussed it during the meetings at which the decision was made. These facts do not evidence an employer that has no intention of bargaining with its employees’ representative regarding its decision. The strongest evidence in support of the “fait accompli” ar- gument is the fact that the Respondent admittedly denied the Union’s request that it postpone the announcement to the em- ployees. Although under ordinary circumstances, this might indicate that an employer’s decision was irrevocable, the cir- cumstances here negate such a finding. The Respondent ex- plained to the Union that it was obligated to go forward with its plans to announce the decision because the employees were in the midst of considering whether to accept the Respondent’s 6 and 6 retirement offer. The possibility that their jobs would be eliminated and they would have to transfer to other jobs could be a material factor in the employees’ decision whether to ac- cept the offer. Under these circumstances, the Respondent’s denial of the Union’s request was reasonable. I note that, even after denying this request, the Respondent indicated its willing- ness to discuss the decision with the Union. I also credit Daley’s testimony that he informed the employees that their Union was “fighting the decision.”22 Finally, the Union, while asking that the employer delay its announcement to the em- ployees, never requested bargaining over the decision and did not even meet with the employees after the announcement was made. Because the Union never perfected its rights, I am not inclined to find that this denial by the Respondent proved it had no intention to bargain with the Union. In determining whether the Respondent’s announcement of its decision was a “fait accompli,” I have also considered the fact that the Respondent did not inform the Union during con- tract negotiations that it was considering such a move. This was the Union’s main objection when it first learned of the decision. I find, based on the testimony of Jacobs, Daley, and Hessen- thaler, that the Respondent did not make any decision to close the offices and relocate bargaining unit work until after negotia- tions were complete. Although the movement of some work from Brooklyn may have been considered in February, and the possibility of a consolidation of payroll operations discussed in June, it is clear that these were just “concepts” until the August 18 meeting. I note that as late as July 31 Hessenthaler was pro- jecting in her e-mail report to Jacobs that the New York payroll office would remain open. I also note that the decision finalized at the August 18 meeting and announced to the Union was not identical to the plan under consideration in February. It also makes sense that the Respondent would not want to make such a decision until the final agreement on the 6 and 6 issue was known. Although Daley and Hessenthaler may have been aware of the tentative agreement resolving the 6 and 6 issues as early as July, it is undisputed that a total agreement, including resolu- tion of the 6 and 6, was not final until August 11. I find it credible that the Respondent’s management would await a final 22 Although Venice Booker testified that she did not recall Daley making such a statement, she did recall that he told the employees that their union would be getting in touch with the employees. collective-bargaining agreement before making any final deci- sion on a matter of this nature. The Board has held that it is not unlawful for an employer to present a proposed change in employees’ terms and conditions of employment as a fully developed plan. Board law requires only that, after reaching a decision concerning a mandatory subject, that the employer delay implementation of the decision until it has consulted with the employees’ bargaining represen- tative. The Act does not require the employer to delay the deci- sion-making process itself. Haddon Craftsmen, Inc., 300 NLRB supra at 790 fn. 8; Lange Co., 222 NLRB 558, 563 (1976). Here, the Respondent satisfied its obligations under the Act by informing the Union as soon as a final decision was made and by delaying implementation of that decision for 6 months, more than ample time to bargain about it had the Union shown any interest in doing so. Moreover, the Respondent waited more than 2 months, in the face of total silence from the Union, be- fore it even began planning for the physical changes required to implement its decision. Clearly, the Respondent’s decision here was not a “fait accompli.” The General Counsel and the Charging Party make a strong argument that, even if the notice did not amount to a fait ac- compli, the Respondent did not give the Union a meaningful opportunity to bargain over this decision, focusing on the Sep- tember 8 deadline under the Respondent’s 6 and 6 offer.23 Such an argument would have been more persuasive, however, if the Union had acted with due diligence to request bargaining, thereby testing the Respondent’s good faith. The Union had notice of the decision 2 weeks before the deadline. This was ample opportunity to request bargaining and start the process, even if agreement could not be reached before the deadline. The parties, as part of bargaining over the decision might well have discussed extending the deadline, or allowing employees’ election to take the 6 and 6 be subject to the outcome of bar- gaining, or with the right to rescind if the parties agreed to keep the two offices open. We will never know if the employer would have agreed to such proposals because the Union waited until it was too late. I do note in this regard that the Respondent did agree, in the course of bargaining over “people issues” after the deadline had passed, to allow employees to extend their selected ARDs through December 1999. This tends to show that meaningful bargaining was not futile even with the 6 and 6 deadline. Finally, the Union’s December 22 letter to the Respondent, in which it indicated an interest in bargaining over the decision under certain conditions, must be addressed. This letter was a follow up to the December 15 grievance meeting at which the Union, for the first time, expressed any interest in bargaining and requested information as a preliminary step to formulating a proposal. In her letter, the Union’s representative, Dolan, conditions the making of a proposal on the Respondent “re- scind[ing] the decision to transfer the work out of state until 23 Although the terms of the written offer mailed to the employees indicated that the deadline to accept was September 6, it is clear from the summary of the Respondent’s records prepared for the hearing that the Respondent accepted election forms submitted through September 8. BELL ATLANTIC CORP. 1089 such time as you have received and studied the Union’s pro- posal.” Dolan asserts in her letter that only by doing so would the Union know that the Respondent was serious about bargain- ing. I find that this letter was nothing more than posturing on the part of the Union. In particular, Dolan makes a false claim that her position in the letter was based on information obtained after the December 15 meeting. The only information she cites is nothing new and was known to the Union since the August 25 announcement of the Respondent’s decision. The Respon- dent’s reply, that it was unwilling to “rescind” its decision to satisfy the Union’s bargaining demand made 4 months after it was announced, is not a sign of bad faith. Had the Union wanted to test the “seriousness” of the Respondent’s bargaining intentions, it could easily have done so in August.24 Based on the above and the record as a whole, I find that the Respondent did not violate Section 8(a)(1) and (5) of the Act by failing to notify and bargain with the Union regarding its Au- gust 24 decision to close the Brooklyn and Manhattan offices and to permanently transfer bargaining unit work from those offices to non unit facilities. I find further that the Union waived any right it had under the statute to bargain about these 24 I note that because very little had been done to implement the de- cision by December 15 there was no need for the Respondent to “re- scind” its decision to facilitate bargaining. The Union had at least 3 months before any work was to be removed and any employees dis- placed if it truly wanted to bargain about this decision. decisions by its inaction. In light of this finding, it is unneces- sary for me to address the Respondent’s argument that the “Common Committee” provision of the collective-bargaining agreement amounts to a contractual waiver of the Union’s bar- gaining rights as to this decision. CONCLUSIONS OF LAW 1. The Respondent, Bell Atlantic Corporation, did not refuse to bargain collectively, within the meaning of Section 8(d) of the Act, with the Communications Workers of America, AFL– CIO, and its Local 1100 regarding the August 24, 1998 deci- sion to relocate bargaining unit work. 2. The Respondent did not violate Sections 8(a)(1) and (5) and 8(d) of the Act in any manner encompassed by the com- plaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended25 ORDER The complaint is dismissed. 25 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.