Kansas National Education Association

638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kansas National Education Association and Kansas Staff Organization. Case 17-CA-11973 31 May 1985 DECISION AND ORDER - BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 29 June 1984 Administrative Law Judge Rus- sell M. King Jr. issued the attached decision. -The General Counsel filed exceptions and a supporting brief, the Respondent filed an answering brief. 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 and to adopt the recommended Order. The judge dismissed the complaint in its entirety. In doing so, he rejected the General Counsel's con- tention that certain "Memoranda of Understand- ing" between the Respondent and various employ- ees were contrary to the terms of the collective- bargaining contract that the Respondent had with the Union. He noted that the contract did not set forth any "terms of transfer," such as procedures to be followed or rights to be accorded transferred employees. He also found that, in the absence of contractual language or of evidence regarding past practice with regard to transfers, there was no i In the absence of exceptions thereto the Board adopts the judge's finding that employee Lloyd's "buy-out" agreement was not the subject of a complaint allegation. 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 its that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find'no basis for reversing the findings We adopt the judge's dismissal of the 8(a)(5) and (1) allegation pertain- ing to employee Johns but for reasons other than that set forth in the judge's decision The record shows that art. XI, sec. C of the parties' col- lective-bargaining agreement, entitled "Exchange of Positions," states When two or more employees seek to exchange assignments , the em- ployees involved shall make written request to the employer The exchange will be contingent upon approval by the employer The record also shows that in early 1983 employee Johns approached the Respondent's executive director, Lloyd, regarding an exchange of po- sitions with another employee At that time Johns, a nonprobationary em- ployee, was facing possible termination as a result of-his work perfohn- ance Thereafter, following discussions with management representatives, Johns signed a memorandum of agreement setting forth the terms of the exchange including his acceptance of a reversion to probationary status as a condition of the exchange The exchange was effective on 15 May 1983 In light of the nature and circumstances of this personnel action, which we note to be an exchange of positions rather than a transfer as characterized by the judge, we find this action, including the Respond- ent's conditioning Johns' exchange of positions on.his -acceptance of pro- bationary status, was privileged by the language of the contract The contract contains a specific provision addressing an employee's exchange of positions which states that such exchange is contingent on the employ- er's approval Accordingly, we find that the Respondent did not violate Sec 8(a)(5) and (1) in directly negotiating the exchange agreement with Johns or conditioning the exchange on his acceptance of.probationary status - showing that the Memoranda of Understanding or transfer agreements violated the Act. The judge further found that the Respondent's direct negotia- tions with employees regarding these transfers, and the conditions imposed by the resulting agree- ments, were privileged by the language of the par- ties' management-rights clause. In light of this con- clusion, he found that the Respondent was under no obligation to comply with the Union's request for copies of these transfer agreements or "other documents memorializing extra-contractual agree- ments." The General Counsel has excepted to. these findings, contending that the transfer agreements are contrary to the -terms of the parties' contract and constitute a unilateral change in conditions of employment. The General Counsel also argues that the Respondent violated Section 8(a)(5) and (1) by directly negotiating these agreements with employ- ees and by failing to comply promptly with the Union's request for relevant information. We . find merit to the General Counsel's excep- tions that the Respondent violated Section 8(a)(5) and (1) by dealing directly with employee Lopes and by failing to timely provide certain requested information. However, while we find merit to the General Counsel's argument that the Respondent implemented a unilateral change in conditions of employment,3 with respect to Lopes' transfer agreement, -we also find that the Union waived its rights to bargain regarding this change. The facts, which are fully set forth in the judge's decision, are summarized as follows: On 14 Sep- tember 1983, employee Lopes approached the Re- spondent's - executive director, Lloyd, regarding a transfer to another position. On 21 September, the Respondent informed Lopes. that it would, consider his transfer subject to his acceptance of probation- 3 In its exceptions, as noted above , the General Counsel also contends that the agreements conditioning the transfer of nonprobationary employ- ees on their acceptance of probationary status are contrary to the terms of the parties' collective -bargaining agreement In this respect , the Gener- al Counsel argues that the contract provides that a new employee remain in probationary status for 1 year and then be accorded permanent status for the duration of his employment In support of its argument, the Gen- eral Counsel has cited art XXIX, sec B and art XXX, secs A and B of the parties' contract , . , Art XXIX, sec B states - - I During the first year'of employment, the employee-shall be evaluated two times and once during each , one year_ penod thereaf- ter 2' During the first year following the effective date of transfer to another position the employee may be evaluated twice Art XXX, sec A states New employees are considered to be in a probationary, period during the first twelve (12) months -of employment Sec B states . , , Employees who have successfully completed the probationary period shall be considered as non-probationary Upon review of these provisions and of the contract overall, we agree with the judge's finding that there is no showing that the agreements are contrary to the terms of the parties ' contract 275 NLRB No. 92 KANSAS EDUCATION ASSN. 639 ary status. On 22 September Lopes informed a . union officer, Kirkbride, of the proposed,- transfer and its condition. Although Kirkbride subsequently informed Lopes that the Union did not approve of the condition that he accept probationary status, Kirkbride did not otherwise protest the transfer. At this-time, Kirkbride first learned of the May 1983 Johns agreement.' On 21 October Lopes. signed a memorandum agreeing- to accept probationary status as a condition of his transfer. The transfer was effective 26 October. By letter dated. 21 No- vember, the Union protested the Respondent's direct-dealing with Lopes and other' employees and requested copies of the "Memoranda of Under- standing" and all such "extra-contractual agree- ments" with employees since.1980. On 13 Decem- ber 1983, the Respondent, acknowledged receipt of this letter, but did not- comply with the request until shortly before the March 1984 hearing.. , As noted by the judge, the parties' existing col- lective-bargaining contract contains a -clause, which reserved to management "the right to carry out the ordinary and customary functions of management and to adopt policies .- . . and practices in. further- ance thereof . . . .5 The judge thus, found, that_ the transfer agreements involved in this case were well within management's prerogative 'as the Respond ent was simply establishing a practice for carrying out its management function while serving its `best interests and those of its employees: - ' " Initially we note that mandatory' subjects of•bar- gaining are those which set a term or condition of employment or regulate The relation between t the employer and, the employee6 We'thlis find that the terms of an employee's transfer clearly affe_ ct`' em- ployment conditions and are' d mandatory subject of bargaining. It is well settled' that' a` union has a' statutory right to be consulted about a 'change af- fecting the terms and conditions -of employment. The' union may waive this right; such' a waiver may hot be lightly inferred but must be 'clda "'ahd unmistakable." Metropolitan Edison Co. v. NLRB, 460`U.S.'693'(1983). Applying .these ,principles ;here„' we, do. not- find that'the management-rights pfovision.of the-parties' contract standing alone constitutes _a, clear and -uii- mistakable waiver , of,the_ Union's-;right_ to.be con sulted 'about -employee transfer--arrangements. The provision speaks only, generally of retaining,a_tight to carry out the "ordinary - and - customary func- tions" of management and to'adopt policies 'in fur- therance thereof. We do not find transfer rights to be necessarily contemplated by a broad reference to "ordinary and ' customary'functions 'of manage- ment" nor do we find the implementation of a per- sonnel action, as is the case here, to be encom- passed in the right to adopt unspecified policies in furtherance of' 'these management ' functions. 'The provision is 'at best vague and' as such insufficient to' 'meet the' standard of a' "clear and -unmistakable waiver." Thus, we do not find' that the manage- ment-rights clause contained in the parties' contract privileged the Respondent to negotiate directly or to enter into the transfer agreements. However,-'- while, w'e -find that the management- rights, clause did not serve_ as an effective. waiver of the Union's • right to_ be-.consulted' e . consulted' regarding the 'transfer agreement, we.find that "the Union,. by its actions, is, estopped from asserting its ; right to bar- gain over the issue of Lopes: transfer. , :Once an_ employer notifies" a, union, of a proposed change in'-conditions of employment,; it •is incum= bent upon the, union to act, with due, diligence in-re- questing : bargaining; 7 :'Further, - the' failure`, of . a union, on.. receipt of -this, notice' 18 to--request, bar- gaining may result in a waiver of:its; rights.9-- . ' , Thee record shows -'that' I Lopes; consulted' with Union Official Kirkbride on the matter of the pro- posed, transfer- approximately a -month prior to his signing " the transfer ' agreement' and the ,effective date -of _the -transfer.-, Although Kirkbride informed Lopes ;that ' the` Union 'did; "not 'approve of the 'pro- bationary condition attached to the transfer, he did not indicate that-the Union = otherwise protested the transfer.1 ° -Although' the transfer was effective 24 October =-1983, -it- was not until" approximately' a month` later "that" the Union formally" protested to the "Respo'nden't,-' inter"alia; the terms of the transfer. We ' f rid- therefore, in' light of its receipt of notice of the proposed,transfer,- that by-its actions in pro- moting the 'transfer and in failing to request bar gaining over, this:issue';until after" it ,was implement- ed the Union' effectively, acquiesced r in the 'action: In' these.circumstances, we' `find-`that`fthe' Respond= ent<did'.not.;violate Section 8(a)(5)-and_(1) by imple- meriting this' transfer: .,@ ,,.Yi^T CIS , '.1i, .. tlj; 4Seefn 2 Art' VII states in full The employer ietams and reseives "to itself all"rights, powers, privi- leges, duties, responsibilities and authority conferred upon&aiid vested in it by law, whether exercised or not, and mall respects-shall retain the right to carry out the ordinary and customary functions of man- agement and to adopt policies, rules, regulations and practices in fur- therance thereof except'as limited by the teiriis -of-this agieement"`' 6 Latex Industries, 252 NLRB 855, 8571(1980)'-' . I I., i , z" -,T Meharry'Medical=College,-236 NLRB 1396 (1978)`•:. '6 The union's obligation to'request'bargaimng arises upon actual -notice even if such notide is received ;from if source other than directlyifrom=the 'employer 'Hartmann Luggage'Co:,` 173,NLRB 1254 (1968) :. 1 ""9 City Hosprta!"of East-Liverpool;234 NLRB 58 (1978) ' 10 In fact, as noted by the judge, - the record shows that at least one union representative, President .Thomas Flannigan, sought to.promote the transfer -with the , administrative board" 'of-the region 'to which Lopes 're- quested transfer 640 DECISIONS OF• NATIONAL LABOR RELATIONS BOARD We do not find, however, that the failure to timely request bargaining in any way excused the Respondent's direct dealings with Lopes.l 1 An ele- ment of direct dealing with employees is the lack of consent by the designated bargaining representa- tive to these employee contacts.12 As the record shows that the Respondent negotiated with Lopes and that the Union had no. knowledge of the Re- spondent's contacts with. Lopes until after they were made, we find that the Respondent violated Section 8(a)(5) and (1) by these direct negotia- tions.13 Finally, contrary to the judge, we find that the Respondent violated Section 8(a)(5) and (1) of the Act by its failure to comply promptly with the Union's request for information. The record shows that, by letter dated 26 November 1983 'and ad- dressed to Lloyd, the Union requested a copy of "each and every `Memorandum of Understanding' or any other document memorializing extra-con- tractual agreements with bargaining unit person- nel" since 1980. By letter dated 13 December 1983 the Respondent acknowledged receipt of the Union's request but failed to provide the requested information 'until shortly before the 8 March 1984 hearing. In its response to the General Counsel's exceptions, the Respondent contends that the agreements were executed in the course of its "day-to-day management," thereby implying that it is under no obligation to release management-relat- ed information to the Union based on the Union's belief that the information is significant. It further points,out that the matter is moot as the informa- tion has since been provided and that its failure to produce the information did not prejudice or impede the Union in bringing this action. We find that its information, which concerns terms of transfer of bargaining unit members, is presumptively relevant to and necessary for the Union's performance of its representative duties. We find the reasons proffered by the Respondent do not justify or excuse its failure to provide the An employer is obligated to bargain solely with the designated bar- gaining representative This is true even if the employees themselves initi- ate the contacts Spector Freight System, 260 NLRB 86, 94 (1982) - ' E Spector Freight System, supra at 87 _ • ' 3 Unlike oui dissenting colleague, we do riot find that the facts of this case . support a finding - that the Union acquiesced in the, Respondent's direct dealings with Lopes in negotiating a transfer The record clearly shows that the Union was informed of the proposed transfer only after discussions between Lopes and the Respondent's officials had taken place As noted above, an element of direct dealings is the lack of-con- sent to the employee contacts Here there is no evidence that the Union knew of or. consented to the Respondent's contacts with Lopes tat 'the time they were made -In these circumstances , while we find that the Union acquiesced in Lopes' transfer in failing to request bargaining once it had learned that such a transfer was proposed, we do not find that the receipt of information following the Respondent 's direct dealings with Lopes serves "as a basis for finding that the Union acquiesced to, those initial, unlawful contacts information at the time it was requested . Accord- ingly, we find that the Respondent, by failing to timely comply . with the Union's request, violated Section 8(a)(5) and (1).14 AMENDED CONCLUSIONS.OF LAW Substitute the following paragraphs for Conclu- sions of Law 4, 5, and 6. "4. That the Association, by engaging in direct negotiation with Steve .Lopes regarding the terms of his transfer to another -position, unlawfully by- passed the Union in derogation of its position as ex- clusive collective-bargaining representative of the Association's employees in violation of. Section 8(a)(1) and (5) of the Act. "5. That the Association by failing to comply with the Union's 21 November 1983 request for copies of'agreements directly negotiated with bar- gaining unit employees since 1980 violated Section 8(a)(1) and; (5) of the Act. "6. That the association has not otherwise violat- ed the Act." REMEDY Having found that the Respondent has engaged in certain unfair labor practices within the meaning of the Act, we shall order it to cease and desist therefrom , and- to take affirmative action designed to effectuate the policies of the Act: - ' - ORDER The National ,Labor, Relations ,Board orders that the Respondent, Kansas- National Education Asso- ciation, Topeka, Kansas, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from ,(a) Unlawfully bypassing, the Kansas Staff Orga- nization as the exclusive collective-bargaining rep- resentative' of -its unit employees by engaging in direct negotiations with individual unit employees regarding terms of transfer to another position. '(b) Unlawfully refusing to supply the Union with information requested in its letter :of 21 November 1983 regarding any agreements directly negotiated with bargaining unit employees since 1980. Such information is relevatt i to, = and necessary for, the Union's performance as bargaining representative of the unit. -(c) In any i like[ t or ' related '-rhanner interfering with, i estraining;t or coeicing^'efnployees'int'the ex- ercise of the' rights guaranteed them by-Section 7 of the Act. --- --- 2. Take the following 'affirmative action neces- sary to effectuate the policies of the Act. 14 Salem News Publishing Co, 230 NLRB 927, 929 (1977) ' KANSAS EDUCATION ASSN (a) Promptly comply with the Union's requests for relevant information necessary for its perform- ance as bargaining representative of unit employ- ees. (b) Post at its Kansas offices copies of the at- tached notice marked "Appendix." 15 Copies of the notice, on forms provided by the Regional Direc- tor for Region 17, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including'all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material..- (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. MEMBER DENNIS, concurring in part and dissent- ing in part. I agree that the Respondent did not violate the Act by transferring employee Lopes, because the Union acquiesced in the transfer: I also find, in agreement with Member Hunter, that the Respond- ent violated the Act by dealing directly with Lopes about the transfer. As the Union -did not 'know about the Respondent's discussions with Lopes while they were in progress; the-Union's later ac- quiescence in the implementation of the transfer cannot excuse the direct dealing violation. Finally, I agree that the Respondent violated the=' Act by not promptly supplying information - the Union re- quested. I would find, however, that the Respondent also violated the Act by conditioning employee Johns' transfer on his reverting to probationary status. The contract makes no provision for an employee's reverting, to probationary status. Consequently, even though the contract allowed Johns and the Respondent to arrange an exchange of positions, it did not authorize the probationary status condition, and the Union did not acquiesce in such'a condi- tion. ' J < CHAIRMAN DOTSON, dissenting in, part. , -Although • I agree in . other respects, , I , cannot agree with my colleagues' finding of an 8(a)(5) vio- lation regarding the: Respondent's ,'direct dealing" with ;employee- Lopes., The-facts,are, not in dispute. Lopes,: believing ' he was -about.. to, , be. terminated, 15 If this Order is enforced by a Judgment of a=United States 'Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the_ _Nation_ - al Labor Relations Board'; 641 asked the Respondent's executive director, Lloyd, about the possibility of a transfer. On 21 September the Respondent told Lopes that it would consider a transfer if he would agree to revert to probationary status. The next day Lopes informed Kirkbride, the principal union official responsible for administer- ing the collective-bargaining agreement, of the pro- posal. Kirkbride presented the proposal to the Union's Staff Rights Committee. On 26 September Kirkbride told Lopes that the committee did not agree with the reversion to probationary status. Kirkbride also told Lopes to "do what you have to do." Indeed, Union President Flannigan even en- couraged the transfer. The transfer was-effected-on 24 October. The Union protested on-21 November, almost 2' months after it had knowledge of the situ- ation. - Based on the foregoing, the majority correctly found that the Union acquiesced in the action and that the Respondent did not violate Section 8(a)(5) by implementing the transfer. I agree. I depart from the majority's finding that the Respondent violated Section 8(a)(5) by dealing directly with Lopes 'without obtaining the Union's prior consent. I find that the Union also acquiesced to the Re- spondent's direct dealing. The Union contends that it believed that Lopes would convey its objection to transfer to the Respondent. This, along with Kirkbride's statement to Lopes to "do what you have to do," is sufficient to find that the Union waived its rights as the bargaining representative in this matter. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and' abide by this notice. WE . WILL . NOT unlawfully bypass the Kansas Staff Organization as the exclusive collective-bar- gaining representative of our unit employees by en- gaging in direct negotiations with individual unit employees regarding terms of transfer to other po- sitions. . . , WE WILL NOT, refuse to comply with the Union's request for, releant information necessary for its performance as bargaining representative of our unit employees. WE WILL NOT in any like or related manner interfere with,` restrain, or coerce you in the exer- 642- DECISIONS OF NATIONAL, LABOR RELATIONS BOARD cise of the rights guaranteed-you by Section 7 of the Act. , WE • WILL promptly comply with the Union's re- quests for relevant- information ' necessary for its performance' as bargaining representative - of our unit employees. KANSAS NATIONAL EDUCATION AS- SOCIATION DECISION' 'STATEMENT OF THE CASE RUSSELL M. • KING JR., Administrative Law Judge. This case was heard,by me in Topeka, Kansas, on March 8, 1984. The charge was filed by the Kansas Staff Orga- nization (the Union) on December 22, 1983.1 The com- plaint was issued on February 1, 1984, by the Regional Director. for Region 17 of the National Labor Relations Board (the Board) off behalf of the Board's General Counsel.2 The• complaint alleges that the Kansas Nation- al Education Association (the Association) bypassed the Union and dealt directly with individual employees by negotiating terms' of transfer *with employees which were' contrary to the transfer provisions ' contai'ned' in the col-' lective-bargaining agreement ' then in' effect," and failed and refused,to furnish the Union information `necessary and relevant for the'-performance of it's` function as the exclusive representative -of 'bargaining unit employees, all ill 'violation of 'Section: 8(a)(5) and (1) of the National Labor Relations 'Act (the Act).8 On the entire'record,•including'my observation of the demeanor of the witnesses; and after due consideration of the briefs -filed herein' by, the General Counsel and the Association, I 'make the following - ' FINDINGS OF-FACTO ^^ ?• p I: JURISDICTION 'The 'pleadings, admissions; and evidence* herein esta-b-' lish the following jurisdictional- facts. The Association •is now, and has been at all times material herein, a-nonprof- it corporation duly organized under, and existing by_ virtue of, the laws of the State of Kansas. The Associa- tion is engaged in the business of providing services such as lobbying and negotiating collective-bargaining agree- ments with school districts on behalf of local associations of educators. The Association is - supported by dues- paying members, and is - headquartered in' -Topeka, Kansas, where it employs a- staff of program specialists. From this facility, the Association directs field represent- atives in the delivery of services to its members.5 During the 12 months preceding the issuance of the complaint in this case, a 'period which is representative of all times material herein, the Association, in the course and con- duct of its operations within the State of Kansas, pur- chased goods and services valued in excess of $50,000 di- rectly from sources located outside the State of Kansas. Thus, as alleged and admitted, I find that the Association is now, and-has been at all times material herein, an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the: Act. - Also, as alleged and admitted, I find that the Union is now, and'has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act.. - 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union represents all of the Association's full-time and regular part-time professional employees. The Union and the Association have been parties to a number of successive collective-bargaining agreements, and the cur- rent contract took effect on July 1, 1983. Under the con- tract, -new" employees are " in - a probationary status during their first 12 months of employment with the As- sociation! -Probationary employees enjoy all - the rights and, privileges conferred by the contract on all other unit employees, including use of the grievance procedure, but excepting'. the right to-appeal discipline and discharge to arbitration."; Voluntary transfers are mentioned in-article l 1-of the contract, which reads as follows: i All dates hereinafter are in 1983 unless otherwise stated 2 The term "General Counsel," when used herein, will normally refer to the attorney in the case acting on behalf of the General Counsel of the Board,'through the Regional Director The Association denies that,ithad a duty to notify or•bargam with the Union over'the'traiisfers under the collective-bargaining agreement -The Associatio"n' also' argues that the re= quest•fdr information- by_the'Union has since: been complied with-and thus the issue isimoot • '. 2 'The pertinent,parts,of the Act (29 US C § 151 et seq) provide as follows 'S'66--8-(a) It shall be;aii- unfaii -labor practice for' an employer=(1) to interfere with,.restrain, or coerce employees:m the exercise of•the i rights guaranteed.in Section, 7, .(5)-to-refuse to,bargain collective- ly with; the representative of his employees Sec` 7" Empl'oyees' shall havethe 'nght 'to self-organization; 'to • form, ,loin, or assist labor organizations, to bargain collectively through representatives of, their own„ choosing, and to , engage in other concerted activities for-the, purpose of collective bargainin .g or other. mutual aid or protection 4 The facts found herein are based on the record as a whole and on my observation of-the witnesses The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits with due regard for the logic of probability, the demeanor, of the,;witnesses, VACANCIES AND VOLUNTARY TRANSFERS A. Notice - - " ;Notification of all vacancies in K-NEA Profes- sional Staff and UniServ, positions shall be , made -at least thirty , (30) calendar days prior to the time that such vacancies are to be filled . Notification to eni- and the teaching of;NLRB v. Walton Mfg Co, 369 U S 404; 408, (1962) As to,those testifying in contradiction of-the findings herein, their testi- mony has been discredited either as having been in conflict with the testi- mony of 'credihle 'witnesses 'or because•at' was-tn and' of 'itself incredible and-unworthy'of belief All testimony and evidence, regardless of wheth- er-br not -mentioned- or alluded -to-herein, has been reviewed and weighed in light of the entire record ' These field 'representatives are assigned to deliver, services "within geographical - districts throughout the'State of Kansas ' Each such district is referred to as a UniServ district , and each UniServ district appears to act as a joint employer with the association of the field representatives assigned, to it No UniServ district , has been charged, individually with violating the Act KANSAS EDUCATION ASSN. ployees shall precede notification to other persons or agencies by fourteen (14) calendar days. All noti- fications to employees shall be by first class mail (or personal delivery where appropriate) and shall con- tain a description of the position to be filled togeth- er with the qualifications required and the expected date of filling. Current employees applying for man- - agement positions to be filled shall be granted an interview. B. Special Considerations The following special considerations in the order listed shall apply to employees making application for a transfer' whenever- staff openings within the bargaining unit occur whether they are new posi- tions or vacancies. 1. Current employees shall be given priority whenever their qualifications are equal or superi- or to other- applicants. 2. Ethnic minorities shall be affirmatively sought so as to assure that such minorities are employed in approximate proportion to their ratio of the population of Kansas. 3. Women shall be given priority whenever their qualifications are equal or superior to other applicants. C. Exchange of Assignments When two or more employees seek to ex- change assignments, the employees involved. shall make written request to the employer. The ex- change will,be contingent upon approval by the employer. -, The contract also contains a management-rights clause which reads as follows: - The- employer retains. -and reserves to itself all rights, powers, privileges, duties, responsibilities and authority conferred upon -and vested in it by law, whether exercised • or. not, and in all respects shall retain the right to carry out the ordinary and cus- functions of management and to adopt poli- tomary cies, rules, regulations and practices in furtherance thereof except as limited by the terms of this agree-, ment. - About September 22, David Kirkbride, the Union's staff rights committee chairperson, who is the principal union official responsible for administering the collective- bargaining' agreement, was contacted by employee Steve Lopes. They had a long, conversation during which Lopes informed Kirkbride that 'he 'had been discussing the, possibility, of a transfer with the Association's attor- ney, David Schaunei. Lopes' told'Kirkbride that the As- sociation would be willing to, transfer -him if he would accept probationary status.' Thereafter, on September 26, Kirkbride became aware that' employee Charles ' Johns had executed a transfer agreement with the Association.6 6 Kirkbnde indicated that he did not actually become aware that these transfer agreements were conditioned on reversion to probationary status, resulting in the loss of access to the arbitration procedure, until he actual- 643 By letter dated November 21, Kirkbride, on behalf of the Union, objected to these direct negotiations with em- ployees and requested a copy of.each, and every such ex- tracontractual agreement which the Association had made with bargaining . unit employees since 1980. John Lloyd, the Association's executive director, responded to that letter, but no documents were provided to the Union. On March 2, 1984, just prior to the commence- ment of the hearing in this case, the Association fur- nished copies of all such agreements. At this time, it was discovered that the Association had also entered into a termination of service agreement with employee Clayton Lloyd around.June 1983, whereby Clayton Lloyd agreed to resign about June 30 in return for a monetary buy- out.' The Johns transfer agreement took effect on May 15 when he assumed his new position. The Lopes agree- ment was executed about October 22, and Lopes as- sumed his new position on October 24. Both transfers were conditioned on reversion to probationary status. Johns' probationary- status was subsequently lifted as a result of his job performance some 7 or 8 months after his transfer. ' The General Counsel • contends ,that these transfer agreements are direct dealings intended to circumvent the collective-bargaining agreement and the Union. The General Counsel also contends that the 'terms of the transfer agreements are contrary to the transfer terms in - the collective-bargaining agreement, and are thus unilat- eral midterm changes in violation of Section 8(a)(5) of the Act. The Company essentially denies these allega- tions .and raises a number of arguments such as mootness and waiver in the event it is found there was a duty to bargain and furnish the information requested.8 The General Counsel also argues that the'Clayton Lloyd buy- out agreement was accomplished without consultation with, or notice to' the Union, evidencing' a pattern of' direct dealing and a' desire to avoid the grievance and ar- bitration provisions of the collective-bargaining agree- ment.Finally, the General Counsel submits that the in- formation requested. by' the Union was relevant and nec- essary for the performance 'of its duties as the employees' representative:- - B. The Transfer Agreements John' Lloyd, the Association's executive director, was initially, approached by employees Lopes and Johns about the. possibility of transfer within the Association. Lopes learned of an opening .about September 1, and wrote to Lloyd on September 14 to inquire about the po- sition.` Johns talked with Lloyd about the possibility of an exchange of positions with another incumbent em- ployee some time early in 1983 . There is no question that their interest in transferring was prompted by job, diffi- culties they each, were experiencing in their current posi- ly received a copy of the Lopes agreement in early November. However, other evidence and testimony reflects the contrary 7 This buy-out agreement is not the subject of any allegation in the complaint 8 Curiously, the Association never tackled headon the issue as to whether it had a definite duty to • bargain over the transfers - under the terms of the agreement • i 644 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD tions. The Johns transfer agreement is prefaced by the statement that the transfer was "in lieu of termination from employment- with [the Association]." Johns testified that he was concerned - about staying employed and apparently wanted-the matter kept confi- dential Lopes admitted that his working relationship in his previous position was not "all that satisfactory," and it was Lloyd's opinion that if Lopes remained in that job, he would -have been ;terminated. - Lloyd appeared to have- been concerned about the per- sonal welfare of both Johns and Lopes, and he obviously was interested in seeing -them remain employed' with the, Association. Johns was being transferred- instead of fired, and Lloyd had attempted. to secure alternative employ- ment for•Lopes on two recent occasions. Indeed, in pro- moting Lopes for this transfer, Lloyd enlisted-the sup- - port of-several other influential employees and encour- aged them to try to persuade the- appropriate decision, makers to hire Lopes.9 While the -Union did not • become aware of Johns' transfer until long after. it had • been • effected, it , was highly concerned that Lopes continue his employment, with the Association. Union Director Kirkbride testified that he favored, the transfer, . and Union President, Thomas Flannigan,.was one of the, individuals, requested by Lloyd to lobby for the transfer. In fact,-there is even the suggestion, that, the Union initially. 'chose: to refrain from confronting- the Association,about the possible, un-,, lawfulness- of the transfer agreements • in order to not jeopardize Lopes' transfer. As already noted, the Union was aware that Lopes 'was discussing. the, possibility of transferring with Association officials, and that the Asso- ciation -was willing to. agree-- if the transfer was condi- tioned on Lopes' acceptance of probationary status. The . issue of such a provision was taken up , with the Union's staff rights committee; and on September 26 Kirkbride informed Lopes that the committee did not agree with the reversion to- probationary status. Lopes testified that Union Director. Kirkbride told him the committee did not'. necessarily agree with the condition (probationary status), but that Kirkbride added, "Do what you have to do." Kirkbride testified that he advised Lopes not, to sign such an agreement. Union President Flannigan added that he heard Kirkbride tell Lopes that a transfer condi- tioned on reversion to probationary status was so repug- nant to the Union that it would be unacceptable. Yet nei- ther Flannigan nor Kirkbride raised any objection with' the Association until November 21, nearly a month after Lopes' transfer was completed, and almost 2 months after the Union became aware of the objectionable con- dition. 10 Flannigan went so far as to testify that, even though he had ample"opportunity to raise the matter' with Lloyd during the week of September 26; he made a conscious decision not to confront him. i i 9 Lopes was applying for the job of field representative for one of the UniSeev districts;` and, m orderr to be hired; he needed the'approval of the administrative board for that -UmServ district' - 10 Kirkbride admitted that on October 21 Lopes called and informed him that the transfer agreement had been signed 11 Ktrkbnde and Flannigan concede that they did not confront the As- sociation with these objections However, they contended that they be- lieved Lopes would convey the Union's objections to Lloyd and refuse Paragraph 6 of the complaint alleges that the terms of these transfer agreements are contrary to the "terms of transfer" contained -in the collective-bargaining agree- ment. However,'the agreement does not include "terms of transfer." The provision on voluntary transfers merely discusses employee notification of vacancies, preferential hiring treatment for current workers, women and minori- ties, and applications for assignment exchanges. The con- tract does not speak of the rights accorded transferring employees, or set out a specific procedure'for obtaining a transfer. Furthermore, the General Counsel has not pre- sented any evidence as to what the usual transfer proce- dure was. There is therefore nothing in the record to es- tablish that the negotiation or consummation of a transfer agreement ,between an individual employee and the As- sociation in and of itself violates the Act. The Union and the General Counsel contend that the condition of reversion to probationary status contained in the transfer agreements is repugnant to the collective- bargaining agreement and violative of the Act. However, the only-discussion of a probationary status in the collec- tive-bargaining agreement is -the definition of a proba- tionary employee as one employed for less than 1 year and who' has, all-the rights and privileges afforded other employees, except the right to appeal discipline and dis- charge to arbitration. Admittedly, the collective-bargain- ing, agreement, is silent as to whether a permanent em- ployee might be placed on probationary status. The spe- cific rights of transferred employees and the proper pro- cedure for obtaining transfers are- not delineated in the, agreement, and there is no evidence that such' subjects have ever been discussed in negotiations between the Union and 'the Association. 12 The contract does include a management-rights clause which reserves to the com- pany "the right to carry out the ordinary and customary functions of management and to adopt policies . . . and practices in .furtherance thereof, -except as limited by the terms of [the collective-bargaining] agreement. In my opinion the Association's actions in this case fall within "the, customary functions of management." I find that the transfer agreements involved in this case were well within management's prerogative to negotiate and execute. The Association was simply establishing a prac- tice for carrying out its management function while serv- ing both its best interests and the best interests of Lopes and Johns. As Kirkbnde stated, "[i]t was in [Lopes'] best interest to be transferred and [the Union] was very much desirous of assisting him in accomplishing this." The As- sociation was merely 'trying to accommodate two indi- vidual employees in retaining -employment, while pro- tecting the interests of the Association at the same time. 'Each of these employees had a record of questionable performance: Lloyd was obviously interested in securing these transfers for Lopes and Johns, but he was unwill- ing to ignore their recent work history. The Association could easily have left the matter alone, and perhaps ulti- mately terminated the two employees. Instead, it chose to sign the agreement in accordance with their advice, and that the Asso- - ciation would then drop the condition 12 The Union, of course, had the right and opportunity to raise the subject during contract negotiations . KANSAS EDUCATION ASSN. to fashion a compromise in the interest of everyone. It did not act contrary to any term of the collective-bar- gaining agreement, but rather it sought to carry out the day-to-day operations of its business . The Association did not discriminate against these employees in any manner, and it does not appear that its efforts in consummating the transfers were motivated by, anything other than its desire to resolve each of these individual situations ami- cably and. to the benefit of all concerned. - I find and conclude that under the circumstances of this case, the General Counsel has failed to-establish that the Association violated Section 8(a)(5) and (1) and Sec- tion 8(d) of the Act, and I shall therefore recommend that the complaint be disihissed. 13 On the foregoing findings of fact and initial conclu- sions, and on the entire record, -I make the following - CONCLUSIONS OF LAW 1. That the Association' is an - employer engaged in commerce within the- meaning of Section 2(2), (6), and (7) of the Act. - , 13 Given my resolution of the transfer issue, I-find it unnecessary to reach the issues raised by the Association that the Union waived or is .' estopped from asserting its claimed right to bargain over the Lopes trans- fer, or that the issue of a violation of the Act with respect to Johns is now moot inasmuch as he is no longer a probationary employee Par 7 of the complaint alleges that the Association failed and refused to furnish the Union with information necessary for'and relevant to the perform- ance of its function as the exclusive bargaining representative of unit em- ployees The Union requested that the Association furnish it with a copy of each and every "memorandum of understanding" or any other docu- ment memorializing extracontractual agreements with bargaining unit personnel entered into since--1980 In view of my foregoing findings and conclusions, and more particularly my finding that the-individual transfer arrangements were not extracontractual agreements , I find that the failure of the Association to furnish this information was not violative of the Act As indicated earlier, the information has since been furnished 645 2. That the Charging Party Union -is -a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. That the Charging Party--Union is, and was at all times material herein, the exclusive collective-bargaining representative of the. Company's employees in the fol- lowing appropriate unit:. All full-time and regular part-time professional em- ployees employed by 'Respondent at its facility lo- cated at 715 West 10th Street, Topeka, Kansas, in- cluding the Director of Finance and Accounting and all full-time and, regular part-time UniServ Di- rectors employed by Respondent and the UniServ -,Districts as joint employers at their facilities located throughout the State of Kansas, excluding the Exec- utive Director, Associate Executive Director, As- sistant Executive Director, General Counsel, Staff Attorney, clerical employees, guards and supervi- sors as defined in the Act. 4.-That the Association, by directly negotiating terms of transfer' with employees Charles Johns and Steve Lopes, and incorporating those terms in'written memo- randa of understanding, did • not improperly circumvent tlie'Union, did not act contrary to the.terms of the exist- ing 'collective-bargaining agreement, and did not effectu- ate -a midterm 'modification of said agreement, and that thus the Association did not violate Section 8(a)(5) and (1) of the Act. 5. That 'the' Association in this case has not otherwise violated the Act.' - - [Recommended Order for dismissal omitted. from pub- lication.]