St. Louis Telephone Employees Credit Union

ST LOUIS TELEPHONE EMPLOYEES CREDIT UNION 625 St. Louis Telephone Employees Credit Union and Office and Professional Employees Internation- al Union, Local No. 13, AFL-CIO. Case 14- CA-15991 14 December 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 20 April 1983 Administrative Law Judge Thomas E. Bracken issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief in opposition to the Respondent's exceptions.1 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 2 and conclusions only to the extent consistent with this Decision and Order. The issue presented is whether the Respondent failed to bargain in good faith with the Union over its decision to create new supervisory positions, and to staff those positions by promoting unit em- ployees. The judge found that the Respondent vio- lated Section 8(a)(5) and (1) of the Act by unilater- ally removing 21 employees from the bargaining unit; by refusing to honor and apply the terms of the current collective-bargaining agreement to those employees; by failing and refusing to with- hold from the promoted employees' wages dues au- thorized to be deducted by dues checkoff and fail- ing to remit those dues to the Union; and by failing and refusing to bargain with the Union over the impact of the promotions. We disagree. The operative facts begin with the Union's certi- fication on 19 September 1979 in the following unit: All office employees employed by the Em- ployer at its facilities located at 4650 Hampton Avenue, St. Louis, Missouri, and 1111 Woods Mills Road, St. Louis County, Missouri, EX- CLUDING managerial employees, confiden- 1 The General Counsel's motion to strike the Respondent's first excep- tion for lack of clarity is hereby denied 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cr 1951) We have carefully examined the record and find no basis for reversing the findings In agreeing with his colleagues that the facts of the instant case distin- guish it from those relied on by the judge, Member Hunter expresses no view on the merits of those cases tial employees, professional employees, guards and supervisors as defined in the Act. Negotiations for the parties' first contract com- menced in April 1980. At that time the Respondent employed approximately 16 employees plus Gener- al Manager Mitchell, Manager Mann, Assistant Manager Reese, and four persons—Hoepfinger, Beal, Ukena, and Harster—who were called super- visors by the parties. The latter four individuals had asked Mitchell if they could be included in the bargaining unit. Consequently, during the negotia- tions, Mitchell told union representative O'Toole that the Respondent would include the supervisors in the bargaining unit. There was never any discus- sion as to whether the supervisors met the defini- tion of a supervisor within the, meaning of Section 2(11) of the Act. The Union submitted a proposed recognition clause which read as follows: "The Company agrees to recognize the Union as sole collective bargaining agent for all office and office clerical employees including supervisors, excluding the manager and assistant manager." The Respondent offered a counterproposal, which was accepted by the Union, recognizing the Union in a unit "of all employees working as office employees and ex- cluding managers." The parties then agreed to clas- sify Hoepfinger, Beal, Ukena, and Harster as "ad- ministrators" and to include them in the bargaining unit. The parties reached agreement on a contract which was effective from ,16 July 1980 through 15 July 1983. From the summer of 1980 until the end of 1981, the Respondent experienced a phenomenal growth in its operations which resulted in the augmenta- tion of its two facilities 'with four new branch of- fices. Also, the employment complement grew from a total of 23 to 60 employees. Throughout this time, General Manager Mitch- ell, Manager Mann, and Assistant Manager Reese were the only individuals not covered by the col- lective-bargaining agreement. Only Mann and Reese had the power to hire, fire, discipline, and process grievances during that period of time. Ad- ditionally, Mann was the only person who estab- lished employee breaktimes or authorized overtime, and he, together with Reese, approved scheduled vacations and float days. The four administrators did not have the author- ity to hire, fire, discipline,' effectively recommend the same, or to assign work to employees. In fact, they performed bargaining unit tasks in addition to having responsibility for the administration of their respective departments. Accordingly, it does not 273 NLRB No. 90 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appear that the administrators were supervisors within the meaning of Section 2(11) of the Act. In November 1981, the Respondent initiated plans for a reorganization in response to its acceler- ated growth. Effectiye . 1 January 1982, the Re- spondent established a -new management hierarchy and promoted 22 employees into the new supervi- sory and s_man.agenal positions. : Hoepfinger, Ukena, Krems, and Stinnett, the administrators at that trine, were among those promoted. 3 Assistant Man- ager Reese, also among the 22, was given the addl- . tiorial responsibility of branch office operations. ' The Respondent effectuated its reorganization twithout notice , to 'or prio-r bargaining with the Union. IvidreOve'r, the Respondent announced that those' promoted would no longer be covered by the collective-hargaining . agreement and therefore would not he required to pay union dues. Accord- ingly, the Respondent ceased to deduct dues from their paycheeks: The parties subsequently met _on 10 February 1982 to' discuss the reorganization. O'Toole com- plained to Manager Mann that the new managers -Were 'still "performing bargaining •unit work. Mann responded that lie -'needed more time to hire addi- tional people to fill the bargaining unit vacancies ' created by the - promotions and the Union raised no objections.. In fact, between 31 December 1981 and mid-July 1982, the Respondent opened two more branch offices and its work force was increased from approximately 60 to 135- employees, supervi- sors, and managers. The Respondent contended that it had no obliga- tion to bargain with the Union because those who were promoted became Section 2(11) supervisors who occupied positions not intended by the parties to be included in the bargaining unit. Consequent- ly, the Respondent felt justified in ceasing to deduct union dues from the employees' pay. The General Counsel argued, and the judge con- curred, that the parties had agreed to include su- pervisor in the bargaining unit, that whether those ,promoted in January 1982 were , actually Section 2(11) supervisors was irrelevant, and that the Re- spondent violated Section 8(a)(5) and (1) of the Act by unilaterally promoting the employees and refus- ing to bargain with, the Union thereafter. Both the Geneial -Counsel- and the judge relied on Arizona ,Electric Coopérative, 250 NLRB 1132 , (1980), and Carohnd Telepho. ne Co.,' 258' NLRB :1387 (1981). Further, the judge relied on Kendall College, 228 NLRB 1,083 "(1977), 'in holding that the Respond- ent's promotions had a significant impact on the • 3 The General Counsel initially alleged that the promotion of these 'nunistrators was violative. -but amended the complaint at trial to *delete them bargaining unit such that the Respondent had an obligation to bargain with the Union over the Re- spondent's reduction of the bargaining unit. First, we disagree with the judge's conclusion that the parties agreed to include supervisors in the bargaining unit. The parties did agree to include four employee administrators, but it is clear that these individuals were not supervisors within the statutory definition. This is especially true in light of the very small work force in existence at the time the contract was negotiated. Furthermore, the Respondent objected to the Union's specific refer- ence to "supervisors" in the recognition , clause pro- . posed by the Union and instead included only office employees and excluded managers. Second, we reject the notion that it is irrelevant whether or not the promoted employees were stat- titory supervisors. In this regard the judge has mis- placed his reliance on Arizona Electric, supra and Carolina Telephone, supra. In Arizona Electric, supra, the Board held that the respondent had vio- lated the Act by unilaterally removing certain em- ployees from the bargaining unit during the mid- term of the contract, and reclassifying them as su- pervisors. The Board found it irrelevant to deter- mine whether the promoted individuals were su- pervisors but focused on the fact that the 'parties had previously agreed to the inclusion of these em- ployees in the bargaining unit and that there had been no change in either the employees' job duties or in the Respondent's operations. Similarly, the 'Board held in Carolina Telephone, supra, that the Respondent violated the Act by unilaterally ex- cluding a. group of secretaries from the unit when the parties had initially agreed to their inclusion and their duties had not materially changed before -their removal from the unit. In the instant case, unlike the factual settings in Arizona Electric and Carolina Telephone, supra, the 'duties of the unit employees who were promoted had changed. The Respondent did not merely reti- tle bargaining unit employees who, but for a classi- fication change, would have continued to perform bargaining unit work. Instead, the Respondent re- quired the promoted employees to perform super- visory tasks and imbued them with the authority of statutory supervisors and managers—powers and responsibilities . that they had not previously en- joyed when performing strictly bargaining unit work. In particular, 12 of the individuals named in the complaint—Vivian Harster, Karen Schmidt, Pat Schmidt, Cheryl Hood, Ron Bull, Dennis Cook, Jo Ellen Voss, Pauline Hill, Claire Louis, Barbara Stimac, Charlotte Jones, and Joyce Bell—are either branch managers or assistant branch managers. The ST LOUIS TELEPHONE EMPLOYEES CREDIT UNION 627 parties stipulated that the managers and their assist- ants have the same powers. The evidence estab- lishes that these powers include the authority to discharge, to schedule working hours, and to re- solve first-step grievances. On this evidence, we find that the branch managers and assistant branch managers are supervisors within the meaning of 'Section 2(11) of the Act. The remaining alleged discriminatees are Pat Voss, supervisor of loans and collections; Jackie Hamra, assistant supervisor in charge of collec- tions; Norman Gericke, assistant supervisor in charge of mortgage loans; Sharon Wright, supervi- sor of certificates, new accounts, and daily action funds; Terry Cartwright, supervisor of share drafts and VISA; Bill Rogers, assistant supervisor of IRA accounts; Jo Ward, supervisor of accounting; Karen Aronoff, assistant supervisor in charge of tellers; and Dennis Manning, manager of supplies. Union representative O'Toole testified that he considered Jackie Hamra, Norman Gericke, Sharon Wright, Terry Cartwright, Jo Ward, and Karen Aronoff to be supervisors. He further testified that he viewed Pat Voss .and Dennis Manning as man- agers but did not consider Bill Rogers to be either a supervisor or manager. Jackie Hamra assists Pat .Voss in the loan and collection department. In his absence, she is in charge of the department but, otherwise, she is re- sponsible for the work of the two or three clerks in the division. Hamra also evaluates job perform- ances of employees and has effectively recommend- ed the discharge of an employee. Norman Gericke also reports to Pat Voss and is responsible for the work of several clerks dealing with real estate loans and first and second mort- gages. Gericke evaluates the job performances of the clerks in his department and trains them in their areas of deficiencies. Karen Aronoff schedules working hours and as- signs work to the tellers in the main facility. She reports to Jo Ward who evaluates clerks and tell- ers, assigns work, and has discharged an 'employee. Both Ward and Voss report to Shirley Ukena, - manager of operations, who reports directly to General Manager Mann.' Sharon Wright is responsible for the work of be- tween 11-25 employees who handle neW accounts, certificates, and the daily action fund. Terry Cart- wright has the responsibility for the work of about seven employees in the share draft and VISA de- ,Partment. Bill Rogers heads the newly formed IRA accounts division, staffed with two or three Clerks. He is also responsible for all the IRA accounts gen- erated by the branches and he trains the IRA per- sonnel at the Respondent's :various locations. Rogers, Wright, and Cartwright report to Jan Stin- nett, manager of new accounts/certificates and in- vestments, who reports directly to General Manag- er Mann. Finally, Dennis Manning assists Donna Krems, assistant supervisor of administration. Krems' re- ports to Dale Hoepfinger, manager of administra- tion, who reports directly to General Manager Mann. The parties stipulated at trial that Hoep- finger has the authority to process grievances for the ReSporident, has access to employee personnel files and records, and that Krems possesses Hoep- finger's responsibilities and authorities in his ab- sence. Manning is responsible for the physical man- agement of the main facility and its branches in- cluding handling tenant complaints, securing and monitoring janitorial and security services, manag- ing equipment and maintenance contracts, and overseeing courier services. It is clear that Hamra, Gericke, and' Aronoff are statutory supervisors by virtue of their respective authorities to recommend discharge, to evaluate employees, and to schedule and assign work. Aron- off reports to Ward who occupies a position in the Respondent's hierarchy at the same level as Voss, to whom Hamra and Gericke report. Ward has -ex- ercised the authority to discharge an employee, and she also has the authority to evaluate employee performances. Thus, Ward too is a statutory super- visor. It can safely be inferred that Voss, Rogers, Wright, and Cartwright possess at least as much authority as do Hamra, Aronoff, and Gericke, who are on the hierarchical rung below- them, and that they must share Ward's authority to discharge. Ac- cordingly, we find that Voss, Rogers, Wright, and Cartwright are supervisors within the meaning of Section 2(11) of the Act. Union representative O'Toole testified that in his opinion Dennis Manning was a manager and should be excluded from the bargaining units. Prior to the reorganization, Manager Mann performed the tasks for which Manning is now responsible. Consequently these duties had never been consid- ered to be bargaining unit work and Manning is ac- cordingly excluded from the unit. Having determined that the Respondent promot- ed these individuals into true supervisory positions, the crucial issue is whether the Respondent violat- ed Section 8(a)(5) and (1) of the Act by promoting them without bargaining with the Union. We em- phasize first that neither the decision to create new supervisory positions nor the selection of individ- uals to fill these positions is a mandatory subject of 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining. 4 Under the Act, neither party may dic- tate to the other its choice of representatives and, therefore, an employer need not bargain with a union over its selection of supervisors. However, an employer ' may have an obligation to bargain with a union if it reduces bargaining unit work. For instance, if an individual promoted to a super- visory position continues to perform former bar- gaining unit work, that loss of work to the bargain- ing unit may be a change in the terms and condi- tions of- employment that could give rise to a ,bar- gaining,obligation under Section 8(d) of the Act. Unlike , the situation in Kendall College, supra, where the Board found that the respondent had violated .Section 8(a)(5) and (1) by removing a sub- stantial number of employees from the bargaining unit unilaterally and thereby abolishing bargaining unit jobs, the Respondent's , personnel action here was not sufficient to give rise to any duty to bar- gain with the Union. The Respondent immediately began hiring replacements to fill the bargaining unit vacancies temporarily created by its decision. Although some of the promoted individuals contin- ued to perform a degree of bargaining unit work While new employees were being hired, the Re- spondent could not have been expected to have ex- actly 21 new employees waiting in the wings at the same tinie it promoted another 21 employees. Ulti- mately, no unit jobs were lost; in fact, more were created. -The Respondent is accorded a reasonable period of time during the transition within which to fill its bargaining unit vacancies, thus eradicating any temporary job' . losses and negating a duty to bargain over the reduction of bargaining unit work. Accordingly; we find Kendall College, supra, inap- posite to the instant case and find, contrary to the judge, that the Respondent did not have an obliga- tion under these circumstances to bargain with the Union over its reorganization. Accordingly, we shall dismiss the complaint. ORDER The complaint is dismissed. 4 Consequently, the Respondent also did not violate the Act by ceasing to make dues deductions from promoted employees' wages or by exempt- ing them from coverage of the collective-bargaining agreement DECISION STATEMENT OF THE CASE THOMAS E BRACKEN, Administrative Law Judge This case wa's tried at St. Louis, Missouri, September 13, 14, and 15 and November 29, 1982 1 The charge was ' All dates are in 1982, unless otherwise indicated filed by the Union- on June 11 (amended July 9 and Sep- tember 1), and the complaint was issued July 13. The original complaint alleges that the Respondent, St. Louis Telephone Employees, Credit Union, violated. Section 8(a)(1) and (5) of the Act, as to employees Charolotte Jones, Karen Aronoff, Jackie Hamra, Norman Gericke, Karen Schmidt, Cheryl Hood, Dennis Cook, Claire Louis, Joyce Bell, Jo Ward, Sharon Wright, and Bill Rogers. On September 1, an amendment to the complaint was issued which added the names of 13 additional em- ployees, alleging that their rights had been violated, Just as those set forth in the original complaint. These addi- tional employees were Dale Hoepfinger, Donna Krems, Shirley Ukena, Pat Voss, Jan Stinnett, Terry Cartwright, Vivian Harster, Pat Schmidt, Ron Bull, Jo Ellen Voss, Pauline Hill, Barbara Stimac, and Dennis Manny. 2 The violations alleged were for unilaterally changing job clas- sifications, wages, benefits, and other terms and condi- tions .of employment of employees; by refusing to apply the collective-bargaining agreement with the Union to these employees; by requiring these employees to with- draw from the' Union, canceling their dues-checkoff agreements, and failing to withhold dues from the wages of these employees, and not remitting to the Charging Party dues consistent with valid employee authorization checkoff provisions; by refusing to bargain v;/ith the Charging Party, On request, as the exclusive collective- bargaining representative of all employees of Respond- ent; and failing to bargain in good faith with the Charg- ing Party by reneging on- an agreement to waive all time periods for the filing of grievances regarding the afore- mentioned charges. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Employ- er, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a Missouri corporation, has been engaged in the operation of a credit union for approximately 47 years, with its main office in St. Louis, Missouri During the 12-month period ending July 30, 1982, Respondent loaned money to and secured deposits from individuals, valued. in .excess of $500,000, of which an amount in excess of $50,000 represents deposits from and/or loans to individuals located outside the State of Missouri. Re- spondent admits, and I find that it is an êinployer en- gaged in commerce and in operations affecting com- merce within the meaning of Section 2(2), (6), and (7) of the Act 2 During the course of the hearing, the General Counsel's motion to withdraw the complaint as to Hoepfinger, Krems, Ukena, and Stinnett was granted The parties stipulated that from and after January 1, 1982, these four employees have the power and have exercised such power to evaluate Respondent's branch managers as to the personnel relations and branch operations, that Hoepfinger has the authority to process griev- ances for the Respondent, that these employees have had access to em- ployee personnel files and records, and that Krems possesses Hoepfinger's responsibilities and authbrity in his absence ST LOUIS TELEPHONE EMPLOYEES CREDIT UNION 629 II THE LABOR ORGANIZATION INVOLVED - , The Union, sometimes referred to as Local 13, or the Charging ,Party, is a labor organization within the mean- ing of, Section 2(5) of the Act ALLEGED UNFAIR LABOR PRACTICES - A. Background3 Respondent, sometimes referred to as Company, Em- ployer, or Credit Union, commenced its operation as a credit union in 1935, operating from one office. The members of , Respondent, each of whom must own one share of stock, are generally employees of Southwestern Bell Telephone Company, Western Electric Company, Inc , and American Telephone and Telephone Company, Long Lines Division. Prior to 1980, Respondent employed 17 to 18 employ- ees at its main office located at 4650 Hampton in St. Louis, and at a field office located on premises of the Western Electric Company. At this time it had approxi- mately 13,000 members. From 1980 to September 1982, the membership had increased to approximately 27,000 to 28,000 members. To help service these members in Sep- tember 1982, the number of Respondent's employees had grown to approximately 135, and it had opened up six additional branch offices . The controlling body of Respondent-is a board of di- rectors consisting of 13 persons who are elected by the membership. All are volunteers, and receive no salary. Prior to 1980, these Board members were chiefly man- agement employees of the , telephone companies. After 1980, they were primally members of the Commu- nication- Workers of America (CWA), as, well as employ- ees of the same companies as listed above. There were also two ,committees of three persons each, who were elected by the Credit Union memberShip. One was called the supervisory committee, and it was responsible for audits and compliance with state statutes. The other committee was the credit committee and it was responsi- ble for following the Board's policies and practices re- garding loans. The .highest official of Respon'dent is Thomas Mitchell, whose title was- general manager/treasurer Mitchell, a member of the CWA, was also a member of the Board, and reported directly to the Board. Respondent's manag- er for all times material hereto, and the key working offi- cial -in the day-to-day operation of the Credit .Union, was Orville Mann. Mann, who was hired on September 4, , 1979, reported directly to the general manager/treasurer but. unlike him, was not a member of the board of direc- tors, or a member of the CWA Prior, to entering into the first and Current collective- bargaining agreement in July 1980, the board of directors had established personnel policies which related to the wages and benefits received by the Credit Union em- 3 The testimony herein was substantially uncontradicted There was one major issue of credibility, which concerns whether a company offi- cial agreed to allow the Union to' waive time limits applicable to the filing of a grievance A second Issue was whether there was a meeting of company and union officials on January 15 , 1 have-resolved these credi- bility Issues following the summation of the testimony related thereto ployees. At that time there were no written personnel policies as to discipline, misconduct, or discharge, and the thanager himself assumed these responsibilities as part of his duties. B.' The Pre-1980 Events On September 19, 1979, an election was conducted by the National Labor Relations Board, for certain employ- ees of Respondent. On September 26, 1979, the Board certified the Charging Party as the exclusive collective- bargaining representative in the following unit: All office employees employed by the Employer at its facilities located at 4650 Hampton Avenue, St Louis, Missouri, and 1111 Woods Mills Road, St. Louis County, Missouri, EXCLUDING managerial employees, confidential employees, professional em- ployees, guards and supervisors as defined in the Act. At the time of the election there were 16 employees on the agreed-upon voter eligibility list. (R. Exh. 16.) In ad- dition to these employees, the Respondent also em- ployed, at that time, seven other employees, General Manager Mitchell, Manager Orville Mann, Maureen Reese, Joydean Bachelier, John Beal, Vivian Harster, and Dale Hoepfinger Managers Mitchell, Mann, and As- sistant Manager Reese did not vote. Also, the last four named employees did not vote, although the _reasons for this are not clear in the record. O'Toole testified that he "believed" that at election time Reese was the supervisor of bookeeping, Hoepfinger was supervisor of accounts, and that Harster was the supervisor of the loan depart- ment. He , did not remember Beal's title. According to Mann, Reese was the assistant manager, the only assist- ant manager he ever had, 4 Hoepfinger was the senior collector, Harster the senior loan counselor, Bachelier his secretary, and Beal a general all-iround handyman. Following the' certification, contract negotiation' s were not pursued by Local 13 as a "matter of strategy. Mem- bership on Respondent's board of directors was coming up for an election, and Local 13 was looking forward to a new board, whose members would be more union ori- ented than management oriented. On December 6, 1979, the Union did forward to the Company a proposal con- sisting of various contract clauses However, these pro- posals did not contain a recognition clause. C. The 1980 Negotiations About March or April 1980, 6 or 7 months after the certification, negotiations commenced. Local 13's negoti- ating team cOnsisted of Business Representative Patrick O'Toole, employees Margaret Stoff and Shirley Ukena.5 Respondent's four-person negotiating team was led by Treasurer Mitchell and his chief assistant manager, Mann. 4 Reese was at no time a member of the bargaining unit 5 Ukena was promoted from' an accounting department employee to administrator in that office sometime between the election, and the adop- tion of the collective-bargaining agreement 630 DECISIONS OF NATIONAL LABOR ,RELATIONS ,BOARD At the first meeting one of the matters discussed was the status of Hoepfinger, Ukena, Harster, and Beal, none of whom had voted in the election. As testified to by Mann, these four employees had previously notified Mitchell that they wanted to be covered by the collec- tive-bargaining agreement. O'Toole testified without con- tradiction that during the negotiations concerning a rec- ognition clause, Mitchell stated "I'm going to give you something that you'll really like. We're going to include the supervisors in the bargaining unit. 6 O'Toole did not ask Mitchell why he was offering to do so, nor did he specifically name the employees he considered to be su- pervisors. O'Toole did testify that the Union considered Hoepfinger, Ukena, Harster, and Beal to be supervisors, because they had been excluded from voting in the' elec- tion. At the following Meeting Local 13 submitted a pro- posed agreement to the Credit Union, in which the rec- ognition Clause specifically provided that supervisors were to be in the bargaining unit. Article I, captioned "Union Recognition," read as follows. The Company agrees to recognize the Union as sole collective bargaining agent for all office and office clerical employees including supervisors, ex- cluding the manager and assistant manager This recbgmtion clause was not accepted by Respond- ent, and at the following session Respondent submitted its own clause, ,which contained both a recognition clause and -managemelit rights clause as follows: Recognition The Employer agrees to recognize the Union as the sole and exclusive Collective Bargaining Represent- ative for and on behalf of all employees working as office employees and excluding Managers. It is agreed that nothing in this agreement shall limit the employer in the exercise of its ftinctions of management to serve the needs of all members, and not limited to the direction of its working forces, the determination of the number of employees it will-employ or retain, the right to employ, disci- pline, discharge, promote, classify, demote, transfer or release employees, determination of the hours of employment and working shifts, scheduling of the production of work to be performed and deterniina- tion of the operations, methods, and processes-being vested in and reserved by the Employer. While the record does not disclose when the Employ- er's recognition clause was submitted, or specifically ac- cepted by the Union, it was accepted, and appears in the collective-bargaining agreement that was entered into by On the first day of the hearing Respondent had objected to the ad- mission of this conversation based on the parole evidence rule Respond- ent's objections were sustained, and the General Counsel moved for a re- consideration of this ruling When the hearing resumed, the General Counsel's motion to reconsider was granted, and the conversation ted into evidence See Joe Carroll Orchestras, 254 NLRB 1158, 1162 (1981), Federated American Insurance Co, 219 NLRB 200, 203 (1975), Printing Industries of Northern California, 204 NLRB 329 (1973) the parties for the period of July 16, 1980, to July 15, 1983, inclusive. (G.C. Exh. 3.) O'Toole testified without contiadiction that during the negotiations- he discussed the matter of supervisors with Treasurer Mitchell, and Mitchell agreed that the persons referred' to in the Union's original recognition clause as , supervisors, would be classified in the agreement as administrators."' The ex- ecuted agreement in article XII set forth wages for em- ployees under four headings: (1) temporary and part time; clerks, tellers, receptionist; (3) counselors, book- keeper, secretary; and (4) administrators. This administra- tor classification covered Hoepfinger, Ukena, Beal; and Harster, and subsequently Jan Stennett, when Harster ceased being an administrator. The administrators' pay was substantially higher than that of the employees in the other classifications. From the time of the signing of the bargaining agree- ment until December 31, 1981,. the contract. covered all wages, hours, terms, and conditions of all employees 'of the Company, including Hoepfinger, Ukena, Harster, and Beal, excepting only Managers Mitchell, Mann, 'and As- sistant Manager Reese Also, on several occasions. fol- lowing the signing of the agreement, the parties amended its terms through sound, basic collective bargaining. One matter involved an amendment that concerned holidays that fell on Mondays. The other involved the establish- ment of a "branch coordinator," and culminated in a letter agreement dated April 6, 1981, by which the Union agreed to the Company's proposal that such a person would receive - an extra $3 a day for each' work- day (G.C. _Exh:'7.) this person was commonly referred to 'as "in-charge" but, had no additional responsibilities and was a classification employee.8 D. The Growth of the Credit Union and Changes in' ' 'the Organizational Structure Chiefly because of the aggressive policies of Mann, the Credit Union grew tremendously in all aspects from the summer - -of 1980 through December 31, 1981. When Mann started as manager, the only services offered were loans and savings and checking acdounts. He rapidly in- troduced real estate loans, second mortgages,- cashiers checks, travelers checks, trust accounts, custodial ac- counts, daily -action fund accounts, thrift accounts, and IRAs. ' • To handle this growth the work force grew from the 23 em - iiloyees at the time of the election, to '60 by the 'end of December 1981' So also the nuinber of members increased from 13,636 as of June ' 30, '1980, td 21,628 by December 31, 1981, and for the same period of time, the total assets increased from -$26,545,278 83 to 7 I credit O'Toole's testimony and note that Mitchell, Mann's superior officer, was not called to testify by the Respondent 8 Mann, in testifying, regularly referred to the clerks, tellers, and re- ceptionists as,classification 1 employees, and the counselors, bookkeepers, and secretaries as classification 2 employees, although they were not so designated in the _contract The term "in-charge" was apparently an old expression that had been used at one time by Western Electric employ- ees, and had been absorbed into the language of the credit union employ- ees ST LOUIS TELEPHONE EMPLOYEES CREDIT UNION 631 $97,925,305.55. To service these members, the Respond- ent opened up four branch offices in the same period.9 Respondent's tremendous growth was nationally rec- ognized in the credit union industry. A news release of the Credit Union National Association, Inc. located in Madison, Wisconsin, reported that "The CUNA report found the fastest growth among the large credit unions was experienced by St Louis Telephone Employees Credit Union, St. Louis, Missouri which vaulted from 328th largest in 1980 to 58th in 1981." (R. Exh 9.) During this period of unprecedented growth Mann was making virtually all management and supervisory decisions, as well as performing many ministerial func- tions. He determined which employees should receive upgrades, assigned tellers, scheduled vacations, oversaw the filing of Federal reports and, along with Maureen Reese and John Beal, responded to branch office burglar alarms in the middle of the night Throughout this period Mitchell, Mann, and Reese were the only employees not covered by the collective-bargaining agreement. In October and November, Mann spoke with Mitchell and the administration committee about the necessity of reorganizing the operation of Respondent because of its growth and state financial regulations. Finally, in No- vember 1981 the board of directors was convinced that a reorganization was necessary. In the last week of November, Mann conducted a reg- ularly scheduled staff meeting at the main office, which was attended by 40 to 50 employers. At this meeting Mann announced that the Credit Union was to open up "managerial" positions, that these positions would be posted on the bulletin board, that the employees should be thinking about it, and if any one was interested to contact him. This was the first notice that the employees received which informed them that there was to be a company reorganization Prior to this meeting, Mann had not notified any representative of Local 13 of these planned changes. Mann's statement that the new positions would be posted on the bulletin board was never carried out. Arti- cle IX of the parties' collective-bargaining agreement provided for posting as follows: Section 1—Promotions and transfer shall be on the basis of seniority, qualifications, ability and fitness to do the job. Job vacancies within the bargaining unit shall be posted by the company for a three (3) day period. The company may fill the position tem- porarily until bidding is complete In the first week of December 1981, Mann began to personally conduct interviews with the employees he had selected to fill the new positions. Margaret Stoff, who had been a bookkeeper for 3 years,' was called in by Mann and informed she was to be promoted to the posi- 9 One in Hazelwood, Missouri, in October 1980, in Baldwin, Missouri in March 1981, in St Louis in July 1981, and Fairview Heights, Illinois in August 1981 This increase in branches continued in 1982 as two more branches were opened up in April As of the date of this hearing, the branch office in Hazelwood handled more volume and business transac- tions than the entire organization when Mann commenced employment in September 1979, and had in this branch almost as many employees as had been employed by all of the offices at the time Mann was hired tion of supervisor of accounting. Her duties would be the paying of bills, balancing the Journal, preparing financial statements, and evaluating the employees in her depart- ment. She was further told that Mary Lowery was to be in charge of the tellers in the accounting department and that she would evaluate Lowery. The manager showed her a diagram setting forth the people to be promoted and the new positions they would occupy, telling her that she would be under Ukena. The manager also told her she would no longer be in the Union, and that she would be on probation for 9 months Also, if she wished to return to her old job she could do so. Stoff asked if the jobs were to be posted on the bulletin board, and the manager advised that this would not be done as they were not union jobs, and therefore the Company had no need to post them. Mann forthrightly, testified that when he interviewed employees for promotions, "I explained to them that if they took the position of [Management] they would no longer be represented by the Union, that they would no longer be part of the Union." He did not recall telling anyone not to pay union dues, and there was no testimo- ny that he did so." Margaret Stoff, when asked if she knew of anyone who was required to cancel their dues- checkoff agreement, replied, "No. Mr. Mann just said that you would no longer pay your union dues. You didn't have to." On Tuesday, December 15, 1981, the administrative committee recommended to the board of directors the salary structure for "the new management group." On the following night, all employees considered by Mann for promotions attended a meeting at a restaurant in St. Louis County which was conducted by Mitchell and Mann. Mann congratulated all present on their promo- tions and Mitchell introduced each person, stating his or her new title and duties. When he asked for questions, employee Vivian Harster asked if these people would be in the Union any longer, and Mitchell said no, because it was too hard for supervisors to evaluate fairly another union member, and therefore Respondent felt it would be better if supervisors were no longer in the Union. On December 28, 1981, the board of directors formally adopted the reorganizational plan and approved the new salary schedule to be used "for the newly appointed management people." According to Mann, ,these new rates were approximately 50 cents an hour more than their union rates. On December 30, 1981, a two-page written notice was placed on each employee's desk by Respondent. This letter began as follows "I am very pleased to announce a new organizational structure and the promotions of various staff people into the management positions." The letter then went on to list the names of 22 employees, and to state briefly their new duties. The letter also stated that all of the people named in the letter were now part of the new management structure, and would henceforth "be working for the credit union outside of the Union Contract." (G.C. Exh 8.) IS Art VI of the parties' contract provided that Respondent would check off union dues from the wages of all union members, and remit this money to the Union on a monthly basis 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At no time prior to the December 30, 1981 notice to the staff of the new organizational structure had Mann or Mitchell discussed their plans with Local 13, or any of its officers or stewards. However, when Chief Stew- ard Jo Ann Waffler received her copy of the December 30 memorandum, she called Business Representative O'Toole, informed him of the contents of the letter, and asked him if the Company could make those changes, and if the Union could do anything about it. Wattler was not an experienced steward, as she had only held that office since the previous October, and had not filed or processed any grievances. O'Toole advised her that he would set up a meeting with the Employer. E. The Events of 1982 1. The January 5 letter By a letter dated January 5, Dale_ Hoepfinger, the newly appointed assistant manager in charge of person- nel, wrote to , O'Toole, notifying him that "the credit union has established a new managerial team." (G.0 Exh. 9.) In the letter Hoepfinger advised that all the people who were to staff the team had been taken from the ranks of the Credit Union employees, and he then set forth 21 names He also wrote that these people would no longer be covered by the union contract "and will therefore need withdrawal cards if possible." O'Toole received Hoepfinger's letter on January 6, and this was the first time that he had been advised by Respondent that Respondent was making these organiza- tional changes.. He then started an investigation as to why these employees were being taken out of the bar- gaining unit, telephoning Respondent. According to O'Toole, he talked to either Mann or Hoepfinger, and scheduled a meeting for ,January 8. This meeting was subsequently canceled because of O'Toole's sickness, and another meeting was scheduled. O'Toole testified that he and Steward Wattler met with Mann at the main office of the Credit Union on the afternoon of January 15. Wattler testified that she thought the meeting was around January 15. At the meeting they discussed the contents of the Company's January 5 letter, and O'Toole asserted that some of the .employees named therein were still doing the same work that they had done prior to January 1. Mann advised him that these people would be doing strictly managerial work, • and that other people would be hired to do the work that the new managers had formerly performed, but that he needed more time to hire additional employ- ees When O'Toole then asked Mann if he would waive the time period for filing grievances, if any such griev- ances should -arise out of this situation, Mann replied yes to his request. Wattler corroborated O'Toole's testimony that he asked Mann if he was willing to waive time limits for filing a-grievance. Wattler was a hesitant, unsure witness, and impressed me as an advocate who was testifying for a cause, and not stating the facts as she remembered them, and I do not credit her testimony. • Mann admitted that a meeting had been scheduled for January 15, but denied that such a meeting was held. Mann fixed the date of his first meeting in 1982 with O'Toole as February 10. O'Toole was a very busy union official who participat- ed in many meetings with many employers, and he had difficulty in remembering dates throughout his testimony and never produced any written notes or records of meetings. Both Steward Wattler and Stoff testified that at a meeting of the parties on June 8 O'Toole advised Respondent that he had written records that would show that a meeting was held on January 15 and would furnish them to the company officials. The record does not show that he ever did so, nor did he produce any' such records at the hearing. I credit Mann's testimony that there was no meeting on January 15, as he was an im- pressive, candid witness. He had previously checked his files, and found no record of such a meeting. It was Mann's policy to make notes of every meeting he attend- ed. 2 The February 10 meeting All parties agree that there was a'meeting on February 10. O'Toole, Wattler, and Local 13's president Pat Douglas met at the main office with Mann and Hoep- finger. At this meeting the parties discussed essentially the same matters that O'Toole had testified were dis- cussed on January 15. O'Toole testified that he brought up that managers were still doing bargaining unit work. Mann replied that he needed more time to hire more people. O'Toole also questioned the amount of time that employees would have to decide to return to their former job. The business representative also testified that he proposed that if a grievance needed to be filed in the future, Respondent waive "all time limits," and that Mann agreed to this Finally, O'Toole - asked Mann if the Company would consider opening and renegotiating the whole contract, so as to settle this problem of managers and assistant managers. Mann replied that he did not have authority to d6 that. O'Toole's desire to reopen the whole contract was based on a request of the union membership expressed at a union meeting in late January. Mann testified that the meeting did concern the Union's claim that the Company, had taken people from the bargaining unit, and that it was also O'Toole's posi- tion that the contract was too ambiguous He also admit- ted that the Union wanted to open the contract and re- negotiate it in its entirety. Mann acknowledged that he told O'Toole that he did not have the authority to reopen the contract, as only the board of directors has such power. Mann also denied that he agreed to any waiver of time periods for the filing of a grievance, and further maintained that it was not discussed.- , I credit Mann's testimony that he did not agree to waive time periods for the filing of a grievance concern- ing the promotion of the employees. It is to be noted that O'Toole did not argue with Mann that he had:previ- ously agreed at a prior meeting that he would waive time periods his inherently probable that had Mann so agreed on January 15, and if several weeks later Mann reversed himself, O'Toole would have vigorously re- minded him of his prior agreement, and would have de- manded to know why Mann had changed his position. ST LOUIS TELEPHONE EMPLOYEES CREDIT UNION 633 O'Toole testified that prior to the meeting the relation- ship between the Credit Union and the Charging Party was congenial and informal. Whenever there had been a problem, he and Mann would sit down and "hash out" the problem. There had been very few formal grievances and no arbitration cases in the history of their relation- ship. The business representative also testified that he thought that Mann had the authority to waive time peri- ods for filing grievances, but admitted that he had never been told by the Board of Directors that Mann had such power. O'Toole at no time requested Mann to put in writing an agreement to waive the time period 3. The events of March Sometime in March, the Union formulated its position as to the exclusion from the Union of the employees who had been promoted. On March 19, pursuant to instruc- tions from O'Toole, Steward Wattler filed a written grievance with Assistant Manager Reese. The grievance, as drafted by O'Toole, read as follows: Nature of grievance Management positions taken out of the, union indiscriminately. Donna Krems, Karen Aronoff, Pat Voss, Jackie Hamra, Norm Gericke, Sharon Wright, Terry Cartright, Bill Rogers, Pam Reed, Jo Ward, Dennis Manning, Cheryl Hood, Karen Schmidt, Dennis Cook, Claire Louis. The remedy requested was that these employees be "Placed back in the Union." As to the caption "Clause of Contract Violated," no clause was stated, but typed thereafter was "Protection of the Contract." Reese denied the grievance stating that it was untimely, but ad- vised Wattler that she. would be willing to discuss it in- formally. A meeting was then arranged by Wattler with Mann to discuss the grievance, and the two met on March 23. Wattler testified that she asked Mann why Reese had put on the grievance, that it was untimely,. when at two dif- ferent meetings she had attended with O'Toole and Mann it was agreed that the time limits would be waived. According to Waffler, Mann replied that Reese had not been at those meetings and was not aware that the time limits had been waived. During the balance of the meeting, Mann questioned Wattler .as to Local 13's position regarding the jobs of the employees listed in the grievance. According to Mann, he had Wattler state the reasons for the Union's objections for each employee promoted to management positions, which he wrote down. Mann did not recall if at any time Wattler said anything with respect to any prior waiver of time limits for filing a grievance. Mann prepared minutes of this meeting, which were signed by both Mann and Wattler. (G.C. Exh..11.) The minutes did not contain any mention that Wattler had asked Mann why Reese had answered that the grievance was untimely, or any mention that it had been agreed at two previous meetings that time limits for filing grievances on the January changes would be waived. The minutes did state in the first paragraph "Disposition of this grievance from Maureen was that the grievance was filed outside of the time limit but she would be willing to discuss the grievance informally with the shop steward" Although Wattler was given a copy of these minutes, she did not ask Mann to make any changes 4. The April 15 meeting On April 15, O'Toole and Wattler met with Mitchell and Mann at the main office of Respondent, and dis- cussed the employees who had been promoted on Janu- ary 1 O'Toole testified that he asked Mitchell if he would open up the contract and renegotiate all matters contained in it, and Mitchell refused to do so. O'Toole then brought up the grievance filed on the promotions, and Mitchell stated that it was untimely. O'Toole then asked Mitchell if he knew that Mann had waived the time limits contained in the grievance procedure. Ac- cording to O'Toole, Mitchell said he was not aware that Mann had waived the time limits, and that he had asked Mann if he had done so, and Mann replied that he did not remember. O'Toole then submitted a list of 12 people that he thought should be back in the Union, because they were ,doing bargaining unit work, and Mitchell promised to send him a list of. the job description for those 12 employees. Mann testified, after refreshing his recollection by means of notes he dictated immediately following this meeting (R. Exh. 18), that he told O'Toole that he had not and did not have the authority to waive any time limits and would not do so. As previously stated, Mitch- ell did not testify at any time during the hearing.. 5. The June 8 meeting On June 8 the parties had their last meeting to discuss the promotions made on January 1. By this time 20 to 30 new employees had been hired. Local 13 was represent- ed by O'Toole, Wattler, and Margaret Stoff, a newly elected steward." The Credit Union was represented by Mitchell and Hoepfinger O'Toole again told Mitchell that the Union wanted to bargain over the positions that had been "pulled" out of the Union. When Mitchell re- plied that there was no reason to bargain because it in- volved management positions, O'Toole advised him that he would go the Labor Board. O'Toole also requested that the dispute be submitted to arbitration, but Mitchell refused, saying the request was untimely Steward Stoff also testified that O'Toole told Mitchell that the Union should have been notified before these promotions took place, and Mitchell replied that they were not union positions and therefore the Company did not have to contact the Union." F. Contentions of the Parties The General Counsel's basic contention is that the par- ties in July 1980 agreed to the' inclusion of all employees, except managers, in the bargaining unit regardless of their supervisory status, and that at midterm - of the col- lective-bargaining agreement, in January 1982, when Re- " Wattler and Stoff were sisters 12 The testimony of the three union witnesses as to this meeting was uncontradicted and is credited 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent removed approximately 21 employees from the unit without prior notice to or bargaining with the Union Respondent thereby violated Section 8(a)(5) of the Act. The General Counsel relies chiefly on the authority of Arizona Electric Power Cooperative, 250 NLRB 1132 (1980). Respondent, on the other hand, contends that Arizona Electric Power is not applicable to the facts of this case, and relies heavily on Chemical Workers Local I v. Pitts- burgh Glass Co., 404 U.S. 157 (1971) G. Analysis and Conclusions I do find 'that this case falls within the four corners of Arizona Electric Power and that when Respondent unilat- erally removed the 21 employees from the bargaining unit in January 1982, it violated Section 8(a)(5) of the Act In' Carolina Telephone Co, 258 NLRB 1387, 1388 (1981), the Board affirmed and summarized its holding in Arizona Electric Power as follows In Arizona Electric Power Cooperative, Inc., 250 NLRB '1132, 1133 (1980), we held that unilateral attack on the integrity of an agreed-upon bargaining unit would be disruptive of an established bargain- ing relationship, and that therefore the scope of a unit may be changed only by mutual agreement of the parties or by Board action. Consequently, we found that a respondent's unilateral action in with- drawing recognition from a union as representative of certain employees during midterm of a cohtract, the bargaining unit of which the parties had know- ingly and voluntarily negotiated, violated the Act. We noted that our conclusion would not be altered by a finding that the employees affected by the re- spondent's action were supervisors or managerial employees. Id. at 1133-34. There is no question but that Respondent had, know- ingly and voluntarily negotiated with Local 13 for a .unit of "all employees working as office employees" and had solely excluded "Managers" It is true that this bar- gained-for unit was different from the certified bargain- ing unit. However, it is well settled that an employer and a union, by agreement, may alter .the certified unit so long as one party does not insist on a change in the com- position of the unit to the. point of impasse. Newport News Shipbuilding, 236 NLRB 1637 (1978). There is of course, no claim by Respondent that the altered unit was in any way related to an impasse Thus, at the midterm of the collective-bargaining agreement, when on January 1 the Company, without prior notice or bargaining with the Union, removed ap- proximately 21 employees from the agreed-upon bargain- ing unit and admittedly placed them in its "new manage- rial team," 3 it unilaterally changed the job classification, wages, ', 4 benefits, and other terms and conditions of the employment of these same 21 employees. 13 The definition used by Hoepfinger in his January 5 letter to Local 13 G C Exh 9 14 Mann testified their wages were increased by approximately 50 cents per hour Respondent states in its brief that none of the persons promoted into the "supervisory/managerial positions as a result of the December 30, 1981 reorganization were until that time supervisors." The Employer then goes on to argue that unless the General Counsel proves that these employees elevated into supervisory/managerial positions, they remained, in fact, only employees, as de- fined in the Act, and the law requires a dismissal. I do not find this to be the applicable law Both Arizona Elec- tric and Carolina Telephone hold that it does not matter if the employees removed from the unit were statutory em- ployees, supervisors, or managerial.' 5 Both the General Counsel and Respondent cited Dura- Vent Corp, 257 NLRB 430 (1981), in support of their cases. However, I find that it clearly supports the Gener- al Counsel's position In Dura-Vent 12 working foremen were unilaterally transferred by the company out of the bargaining unit to the position of supervisors. Adminis- trative Law Judge Clifford H Anderson, who was af- firmed by the Board, found that these transfers involved a significant amount of unit work While Judge Ander- son expressly did not find that the newly transferred em- ployees became supervisors within the meaning of Sec- tion 2(11) of the Act, he did find that it made' no differ- ence: Were the employees in the supervisory position[s] not statutory supervisors, however, a violation would still occur and the remedy would be no less. This is so because when employees are unilaterally removed from the bargaining unit—whether they remain employees or are transmuted into statutory supervisors—the Union is denied its opportunity to bargain over changes having a significant impact on the unit it represents. There can be no doubt but that there was a significant impact on the unit represented by Local 13, when the Company removed some 21 employees therefrom. At that time the Company had 60 employees, which meant that one-third of the employees that the Union had rep- resented were suddenly and without notice removed from its protective mantle. While Manager Mann did assure O'Toole that the Company intended to hire more employees in the future to take the place of the displaced unit employees, this does not cure the sudden severance of 33-1/3 percent of the employees' from the unit repre- sented by the Union See Kendall College, 228 NLRB 1083 (1977), wherein the Board found that the employ- er's reduction of the bargaining unit by 25 percent had a substantial effect on that unit. For the above reasons, I find that Respondent's unilat- eral action in withdrawing recognition from the Charg- ing' Party as the exclusive collective-bargaining repre- sentative of the approximately 21 employees violated Section 8(a)(5) and (1) of the Act Mann's letter of December 30, 1981, to the staff (G C Exh. 8) clearly advised all employees that the employees being promoted into management positions, effective 15 I find Pittsburgh Glass, supra, inapposite as its thrust was on retired employees, and not currently employed employees ST LOUIS TELEPHONE EMPLOYEES CREDIT UNION 635 January '1; would "be working for the credit union out- side of- the Union dontract." The record is undisputed that 'commencing with that date, these employees did work outside of their contract, as Respondent no longer applied the terms of ' the parties' collective-bargaining agreement to these employees promoted to • the manage- ment team. Paragraph 6,C of the complaint alleges that since Janu- ary 1 Respondent has required these same 21 employees to withdraw from the Union, has canceled the contract's dues-checkoff provision, and has refused to withhold from the employees' wages and remit this dues money to the Union. Respondent contends that there was no viola- tion because there were no threats or coercion to cause an employee to cease paying dues. While this is true as to threats, it is wide of the mark. The fact is that- Re- spondent did unilaterally cease carrying out its contrac- tual duty to deduct the dues from the employees' wages and to remit these monthly dues to the Union. This was clearly an interference with the employees' rights guar- anteed in Section 7 of the -Act, and thereby yiolated Sec- tion 8(a)(1). Wilson & Sons, 193 NLRB 350 (1921); valet: Spring Co., 193 NLRB,829 (1971). Since this failure to check off and remit dues was done unilaterally, in midterm of the contract, it also violated Section 8(a)(5) of the Act. Kraft Plumbing & Heating, 252 NLRB 891 (1980); Independent Stave Co., 248 NLRB 219 (1980) - Paragraph 6,0 of the complaint alleges that since on or about January 1, 1982, and continuing to date, Re- spondent refused to bargain with the Union, upon its re- quest. Respondent contends in its brief that the Union never asked to bargain about the "make-up rates, bene- fits, etc." of these supervisory managerial positions, and that the Union presented no legitimate demands to bar- gain until August when the Union filed a grievance on the issue of management employees _doing bargaining unit Woric.16 It is true that the Union did not seek to bargain over the specific questions of makeup rates, benefits, and such for the promoted employees However, it was not neces- sary for the General Counsel to prove such specific mat- ters in order to support a refusal to bargain charge. Man- ager Mann admitted that the meeting of February 10 concerned Local 13's claim that the Company had taken employees from the bargaining unit and that the Union wanted to reopen the contract and renegotiate it in its entirety because it was too ambiguous. While the record does not show what parts of the contract O'Toole con- sidered to be too ambiguous, it is a reasonable inference that he was talking about the wording of the parties unique union recognition clause, that excluded only "managers" from the bargaining unit. At the meeting of the parties on April 15 they again discussed the employees who had been promoted on Jan- uary 1, and O'Toole's repeated request that the Company agree to open the contract and renegotiate it in its entire- ty was once again rejected. Finally, at the June 8 meet- ing, O'Toole did tell Respondent in so many words that 16 On August 19, Local 13 filed a formal grievance, which stated as the nature of the grievance "Supervisors doing bargaining unit work" R Exh 5 the Union ' wanted to bargain about the employees who had been taken from the bargaining unit and placed- in the supervisory staff.' When O'Toole on February 10, April 15, and June 8 asked the Respondent- to bargain over the entire collec- tive-bargaining agreement, he was' following the long- standing and the well-recognized bargaining technique of asking for a lot more than a union really expects to- get. He wanted to. bargain over the Union Recognition clause, and thereby force the Company to bargain over the employees it had unilaterally promoted out of thé bargaining unit on January 1. Thus, I find that Respond- ent from 'February 10 on did refuse to bargain with the Union in violation of Section 8(a)(5) of the Act, as it re- fused to bargain about anything. Paragraph 6,E of the complaint alleges that on or about March 23, and continuing to date, Respondent has refused to bargain with the Union, by reneging on its agreement with the Charging Party to waive all time pe- riods for • filing grievances regarding the changes it had made in the job clasiifications, wages, benefits, and other terms and conditions of employment of the employees promoted on January 1 to the management staff. As testified to by O'Toole, the grievance was due to be filed by January 9• 17 To meet this deadline he had scheduled a meeting with Mann for January 8, which meeting had to be postponed because of his illness. Thus the deadline recognized by O'Toole had passed. Howev- er, this apparently did not seem a problem to the busi- ness manager, because of the past informal and congenial relationship of the parties Undoubtedly, O'Toole expect- ed that he would be able to sit down with Mann and in- formally work out the grievance just as he had done in the past. However, Respondent did not follow this pat- tern. Since I have previously credited Mann's testimony that he did not agree to waive the time periods for filing grievances regarding the change in the status of the em- ployees, listed in Hoepfinger's letter of January 5, it fol- lows that Respondent did not unlawfully refuse to bar- gain on March 23, April 15, and June 8, when it refused to process the grievance filed by steward Wattler . on March 19. I shall therefore recommend dismissal of this allegation of the complaint. CONCLUSIONS OF LAW 1 St. Louis Telephone Employees Credit Union is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Office and Professional Employees International Union, Local 13, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees working as office employees and ex- cluding managers is the unit for which the aforesaid Union is the exclusive bargaining representative. " Art XXVIII of the parties collective-bargaining agreement provid- ed that a written gnevance must be filed within 3 working days from the date that the employee has knowledge of the grievance The Union re- ceived notice of the grievance on January 6, when O'Toole received Hoepftnger's letter of January 5 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By removing approximately 21 employees from the bargaining unit about January 1, 1982, without prior notice to the Union and without affording the Union an opportunity to bargain, Respondent refused to bargain with the aforesaid Union as the represenlatiave of em- ployees in the bargaining unit for which the Union is the exclusive bargaining representative, and thereby , has en- gaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. By refusing to honor and apply the terms of this collective-bargaining agreement' with the Union since January 1, 1982, Respondent has engaged in unfair labor Practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By tendering the dues-checkoff provision contained in the collective-bargaining 'agreement ineffective, and failing and refusing to withhold from said employees' wages, and failing to remit to the Union the dues money required thereunder, Respondent has violated Section 8(a)(5) and (1) of the Act. 7. By failing and refusing-to bargain with the Union; on request, since about February 10, 1982, Respondent has violated Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. . 9' Respondent has committed no other unfair labor practices. REMEDY Having found that the Respondent has engaged in -cer- tam unfair labor practices, I find it necessary to order it to cease and desist therefrom and to take certain affirma- tive action designed -to effectuate the policies of the Act. -Having found that Respondent, in violation of its 'duty under Section 8(a)(5) and (1) of the Act, withdrew rec- ognition from and refused to bargain with the Union as the representative of employees, including those who were, promoted about January 1, 1982, in the unit for which the Union is the exclusive bargaining representa- tive, I shall order it to bargain collectively with the Union and to restore these employees to the unit, condi- tioned on the affirmative desire of these employees as ex- pressed through their bargaining' agent. • The record indicates that these employees received a pay raise when promoted out of the unit, and the Gener- al Council in her brief does not ask for any backpay. Also, it is not Board policy to request employees to re- linquish increases in wages and benefits. Dura- Vent Corp., supra. Since it is not now possible to determine if the unilateral changes have been detrimental or beneficial, I shall issue a restoration order conditional upon the af- firmative desires of the affected employees as expressed through their bargaining agent. Kendall College, 228 NLRB 1083 (1977), Herman Sausage Co., 122 NLRB 168 (1958). ' • If the Union elects such a restoration of benefits, a general 'order is issued below •requiring Respondent to make the promoted employees whole for any loss of wages, benefits, or other rights and privileges they may have suffered as a result of Respondent's unfair .labor practices' Backpay, if any, shall be computed with inter- est, as prescribed in Florida Steel Corp, 231 NLRB 651 (1977).18 The General Counsel in her brief, did request that the Union be made whole for dues not remitted to it by 'Re- spondent. Since I have found that 'such dues were not re- mitted, and that such failure to comply with the contract violated the Act, I will order Respondent to reimburse the'Union for its losses due to Respondent's faildre to so check off, and remit dues of the said employees, as re- quired by the collective-bargaining agreement. El-Centro Health Center, 266 NLRB 1 (1983); J. F. Swick Insulation Co., 247 NLRB 626 (1980). [Recommended Order omitted'from publication.] 18 See generally, Isis Plumbing Co, 138 NLRB 716 (1962)