Communications Workers Of America, Afl-Cio

78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Communications Workers of America, AFL-CIO and Chesapeake and Potomac Telephone Com- pany, Chesapeake and Potomac Telephone Com- pany of Maryland, Chesapeake and Potomac Telephone Company of Virginia, and Chesa- peake and Potomac Telephone Company of West Virginia. Case 5-CB-4484 30 May 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 29 October 1985 Administrative Law Judge Richard A. Scully issued the attached decision. The Respondent filed exceptions and a supporting brief,' to which the General Counsel and the Charging Parties filed briefs in response. The Charging Parties also filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision2 and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,3 findings,4 and conclusions and to adopt the recommended Order. Edward R. Noonan, Esq., for the General Counsel. John L. Quinn, Esq., Birmingham, Alabama, for the Re- spondent. Michael Underhill, Esq., and Richard C Hotved4 Esq., Washington, D.C., for the Charging Parties. DECISION RICHARD A. SCULLY, Administrative Law Judge. On a charge and amended charge filed on 18 October and 1 November 1983, respectively, by Chesapeake and Poto- mac Telephone Company; Chesapeake and Potomac Telephone Company of Maryland; Chesapeake and Poto- mac Telephone Company of Virginia; and Chesapeake and Potomac Telephone Company of West Virginia, the Regional Director for Region 5, National Labor Rela- tions Board (the Board), issued a complaint against Com- munications Workers of America, AFL-CIO (the Union) on 4 October 1984.1 The complaint alleges that the Re- spondent has committed violations of Sections 8(b)(3) and 8(d) of the National Labor Relations Act (the Act) by unilaterally changing terms and conditions of employ- ment. The Respondent filed a timely answer denying that it has committed any violation of the Act. A hearing was held on 16 and 17 April 1985 in Washington, D.C., and on 14 May 1985 in Birmingham, Alabama, at which the parties were given a full opportunity to participate, to examine and cross-examine witnesses, and to present other evidence and argument. Briefs submitted on behalf of the parties have been given due consideration. On the entire record and from my observation of the demeanor of the witnesses, I make the following ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent , Communica- tions Workers of America, AFL-CIO, Washington, D.C.; Baltimore, Maryland; Richmond, Virginia; and Charleston, West Virginia, its officers, agents, and representatives, shall take the action set forth in the Order. ' The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. Y In his decision, the judge at one point inadvertently referred to an alleged violation of Sec 8(a)(5) instead of the alleged violation of Sec. 8(bX3). a In adopting the judge's denial of the Respondent's motion for defer- ral to arbitration, we solely rely on the fact that the parties' collective- bargaining agreement does not provide the Charging Parties with access to the grievance/arbitration procedure and that to allow the Respondent to waive this procedural defect would fundamentally alter the existing dispute resolution procedure 4 The Charging Parties excepted to the judge's fording that the compa- nies are joint employers, maintaining that although the Respondent ad- mitted to the Charging Parties' joint employer status in its answer to the complaint, the Charging Parties had no opportunity to address the issue, the issue was not raised at the hearing, and it is not relevant to the reso- lution of the issues herein We find it unnecessary to pass on the status of the Charging Parties as joint employers because each of the Charging Parties individually meets the Board's jurisdictional standards and the issues in this proceeding can be resolved without resolving any questions concerning their status as joint employers FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Chesapeake and Potomac Telephone Company is a New York corporation with an office and place of busi- ness in Washington, D.C., engaged in the business of providing telephone communication services. During the calendar year 1983, in the course and conduct of its busi- ness, it derived gross revenues in excess of $1 million and purchased and received at its facility in Washington, D.C., goods and materials valued in excess of $50,000 di- rectly from points located outside of the District of Co- lumbia. Chesapeake and Potomac Telephone Company of Maryland is a Maryland corporation with an office and place of business in Baltimore, Maryland, engaged in the business of providing telephone communication services. During the calendar year 1983, in the course and con- duct of its business, it derived gross revenues in excess of $1 million and purchased and received at its facilities in Maryland, goods and materials valued in excess of $50,000 directly from points located outside of the State of Maryland. Chesapeake and Potomac Telephone Company of Vir- ginia is a Virginia corporation with an office and place i The complaint herein was consolidated for hearing with those in Cases 10-CB-4243 and 20-CB-6143 Those two cases were subsequently severed from Case S-CB-4484 280 NLRB No. 9 COMMUNICATIONS WORKERS (C & P TELEPHONE) of business in Richmond, Virginia, engaged in the busi- ness of providing telephone communication services. During the calendar year 1983, in the course and con- duct of its business, it derived gross revenues in excess of $1 million and purchased and received at its facilities in Virginia goods and materials valued in excess of $50,000 directly from points located outside of the Common- wealth of Virginia. Chesapeake and Potomac Telephone Company of West Virginia is a West Virginia corporation with an office and place of business in Charleston, West Virginia, engaged in the business of providing telephone communi- cation services. During the calendar year 1983, in the course and conduct of its business, it derived gross reve- nues in excess of $1 million and purchased and received at its facilities in West Virginia goods and materials valued in excess of $50,000 directly from points located outside of the State of West Virginia. The Respondent admits, and I find, that at all times material these four companies (C & P), all of which are former subsidiaries of AT & T Company, are joint em- ployers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION The Respondent admits, and I find, that it is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that the parties' collective-bar- gaining agreement requires the presence of a court re- porter during nonexpedited arbitration hearings conduct- ed pursuant to the grievance and arbitration provisions of that agreement as well as the preparation, use, and sharing of the costs of the official transcripts of such hearings. It also alleges that the subject matter of tran- scribing the arbitration hearings and sharing the costs of the transcripts are mandatory subjects of bargaining and that the Respondent violated Section 8(b)(3) and (d) of the Act by unilaterally refusing to agree to the continued preparation, use, and sharing of the costs of transcripts in nonexpedited arbitration hearings. Facts The Employers have jointly bargained with the Union as the exclusive representative of a combined unit of ap- proximately 35,000 employees of the four companies since 1971. Before that, the Union represented the com- panies' employees in separate bargaining units. The par- ties have been signatories to a series of collective-bar- gaining agreements beginning in 1951. For some time, contract bargaining was done at both the national level between the Union and AT & T on matters considered to be of national interest and at the local level between the Union and the local subsidiary companies on all other matters. After local agreement was reached, the national agreement became a part of the local contract. All collective-bargaining agreements between the par- ties since the first one in 1951 have included grievance and arbitration provisions. These provisions required that 79 the parties share the cost of the arbitration proceedings. Between 1951 and 1983, when the present controversy arose, the parties had a court reporter present for every regular (nonexpedited) arbitration hearing conducted pursuant to their contract provisions. In every such pro- ceeding, the Union and C & P shared all costs, including the costs of the court reporter and the official transcript, which was prepared for use by the arbitrator in all but one instance. During national bargaining in 1977, the par- ties amended their contractual arbitration provisions by adding an optional "expedited" arbitration procedure to be used when both parties consented. The contracts be- tween the parties since 1977 have provided that expedit- ed arbitration hearings are to be conducted without the use of transcripts. In 1980, the parties agreed to use the expedited procedure for most suspension grievances and other types mutually agreed to on a case-by-case basis. In January 1982, the Union informed C & P and other AT & T subsidiary telephone companies that as of 1 February of that year it would no longer agree that ar- rangements be made for a court reporter to provide an official transcript in nonexpedited arbitration cases. C & P and other AT & T subsidiaries objected to this pro- posed change in practice. At a meeting between attor- neys for C & P and the Union, shortly after the notice, the union attorneys stated that it was attempting to cut costs by dispensing with the transcripts. The attorney for C & P responded that any proposed change in the arbi- tration procedure had to be negotiated and threatened to file a charge with the Board if the Union went ahead with its proposal. The Union did not implement its pro- posed change in procedure on 1 February. On 15 July 1982 AT & T and the Union executed an agreement in- volving six AT & T subsidiary companies, which set up a trial program to be in effect until the existing collec- tive-bargaining agreement expired in August 1983. Under this trial program, certain types of nonexpedited arbitra- tion cases would either be heard without an official tran- scribed record being submitted to the arbitrator or use of a transcript as the official recor, would be determined by the arbitrator prior to the commencement of the arbi- tration hearing. The agreement provided that with re- spect to the subsidiary companies not participating in this trial program, the parties would continue to follow the practice and procedures that were in effect prior to Janu- ary 1982. C & P was not one of the subsidiaries involved in the trial program. Negotiations for a successor to the contract expiring in August 1983 began at the local level in July 1983. Griev- ance arbitration issues were matters for local bargaining. During these negotiations the Union made a proposal to expand the existing expedited arbitration procedure to cover disciplinary grievances. This proposal was dis- cussed, but was rejected by C & P. No changes in the scope of expedited arbitration were agreed on during these negotiations. By 27 August 1983 the parties had reached agreement on most issues. On that morning, C & P's chief negotia- tor, Albert Sears, met privately with the Union's chief negotiator, Edwin Lewinski, to discuss the remaining un- resolved issues. By the end of that private meeting, the 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two negotiators had reached final agreement on all the unresolved matters and engaged in a handshake, indicat- ing that they had an agreement to take their negotiating teams. Early in their private meeting, Lewinski handed Sears a paper, dated 24 August, which was a notice stat- ing, in essence, that from then on the Union would no longer routinely agree that arrangements be made for a court reporter to provide an official transcript in arbitra- tion cases or to share the costs of any transcript prepared at C & P's request. Sears testified that Lewinski handed him the paper and said, "Bernie [C & P attorney Benard Dworski] will love this." Sears took the paper to Dworski without reading it, thinking that it was a joke. After their handshake signifying final agreement, Lewinski handed Sears a second paper with the same statement as the one he had previously given Sears, but including Lewinski's signature, saying, "Oh, I forgot to sign the first one." Sears then read the statement and re- alized it was not a joke. As the negotiating teams were assembling together to finalize the agreement, Sears called Lewinski aside, handed him the paper, and asked him to withdraw it, saying that all it would do would be to complicate the negotiations. Lewinski took back the notice without comment and entered the room where the parties proceeded to finalize their agreement. By letter dated 29 August 1983, the Union transmitted the same notice concerning arbitration transcripts to the C & P. The Company responded by letter of 2 September 1983 in which it insisted that the former practice of the parties continue unless waived by mutual agreement and stated if the Union failed to continue the past practice, the Company would decline to arbitrate cases until a defini- tive ruling on the parties' rights was issued by the Board or the courts. In October 1983, the Union implemented its new policy of not agreeing to the preparation of an official transcript and not sharing the cost of transcripts pre- pared at C & P's request. Since that time, the parties have agreed on an interim practice whereby C & P ar- ranges for the presence of a reporter and the preparation of an official transcript for the arbitrator and one for its own use. The Union is given access to one of the tran- scripts at the Company's premises for use in preparing its brief to the arbitrator. C & P bears the full cost of the reporter and the official transcript, subject to recoup- ment in this preceeding. Analysis and Conclusions I. THE MOTION TO DEFER TO ARBITRATION The Respondent contends that this is basically a dis- pute over contract interpretation and has moved that the Board should defer to the arbitration procedure agreed on by the parties, citing its decision in Collyer Insulated Wire2 and United Technologies.3 The General Counsel and C & P oppose this motion. In Collyer, the Board announced a policy whereby in appropriate cases it would defer to contractual dispute resolution machinery culminating in final and binding ar- 2 192 NLRB 837 (1971) 8 268 NLRB 557 (1984) bitration. I find that this is not one of those cases. The Board excepts from its Collyer policy cases in which the aggrieved party cannot compel binding arbitration.4 In the present case, C & P has no right under the collec- tive-bargaining agreement to invoke binding arbitration; consequently, there is no agreed-upon mechanism to re- solve the dispute. Although the Union is willing to waive any procedural defects that might prevent this matter from being arbitrated, this would not result in the parties' abinding by their agreed-upon dispute-resolution system, but would fundamentally alter this agreement by relegating C & P to a system to which it has not agreed and by empowering the Union to dictate in which dis- putes C & P would be given access to the system. Deferral is not appropriate here for a second reason. The principal issue in this case in not one of contract in- terpretation, but the statutory issue of whether the prepa- ration, use and cost-sharing of arbitration hearing tran- scripts are mandatory subjects of bargaining. "They are legal questions concerning the National Labor Relations Act, which are within the special competence of the Board rather than of an arbitrator."5 Further, an arbitra- tor's decision that the preparation, use, and cost-sharing of transcripts were required by the contract, would not resolve the statutory issue of whether the Union violated Section 8(d) of the Act, in the absence of a determination that these were mandatory subjects of bargaining.6 The Respondent's motion for deferral is denied. H. ALLEGED VIOLATIONS OF SECTION 8(A)(5) AND (D) A. Mandatory v. Nonmandatory Subjects of Bargaining All parties agree that this case turns on the issue of whether the preparation, use, and cost-sharing of official transcripts in nonexpedited arbitration hearings constitute mandatory subjects of bargaining under Section 8(d) of the Act. By approaching this issue from different per- spectives, both sides are able to put forth significant au- thority in support of their positions. The General Coun- sel and Charging Party point to the fact that grievance arbitration provisions for resolving disputes arising under collective-bargaining agreements are mandatory subjects of bargaining and argue that the essential components of the grievance arbitration process are, likewise, mandato- ry. The Respondent, on the other hand, argues that con- tractual grievance resolution is part of the collective-bar- gaining process and that the Board has found the specific issue of recordation of bargaining sessions to be a non- mandatory subject of bargaining. After considering the parties' positions and the authorities on which they are based, I find that of the General Counsel and Charging 4 E g., Punting Pressmen Local 13 (Observer Newspapers), 217 NLRB 576 (1975); Communications Workers Local 1197 (Western Electric Co), 202 NLRB 229 (1973), Tulsa-Whisenhant Funeral Homes, 195 NLRB 106 (1972). 5 Printing Pressmen Union 252 (R. W. Page Corp.), 219 NLRB 268, 270 (1975) 6 See Chemical Workers Local I v Pittsburgh Glass, 404 U S. 157 (1971). COMMUNICATIONS WORKERS (C & P TELEPHONE) 81 Party to be the more persuasive and applicable to the present case. The parties are in agreement that grievance arbitration provisions settle a term or condition of employment and are mandatory subjects of bargaining.? It follows that matters that are essential components of the grievance arbitration process and govern the specific way it is to function should also be considered mandatory.8 Accord- ingly, the Board has held, as mandatory subjects of bar- gaining, various aspects of the grievance/arbitration process, including: the method of selecting arbitrators,9 restrictions on legal actions to enforce arbitration awards,) ° the scope of arbitration,) 1 plant access by union officials handling grievances, 12 time limits for filing grievances, 13 and the form in that grievances are submitted.14 In Chemical Workers Local 29 (Morton-Norwich Prod- ucts), 15 the Board considered a question somewhat simi- lar to that in the present case. The parties had a long collective-bargaining relationship and for the previous 10 years had an established practice of holding monthly meetings to discuss problems and second-step grievances. The Board found that the union violated Section 8(b)(3) and (d) of the Act by, during the term of the existing collective-bargaining agreement , insisting that it be al- lowed to tape record these meetings and refusing to dis- cuss grievance unless recording was permitted, whereas the practice had always been that the parties would take whatever handwritten notes they needed. In so holding, the Board necessarily found that the question of whether tape recording could be a part of the grievance resolu- tion process was a mandatory subject of bargaining. The Respondent relies on Board cases holding that the question of verbatim recording of bargaining sessions is a nonmandatory subject of bargaining. In Bartlett-Collins Co.,16 during negotiations with a newly certified union, the employer insisted to impasse on the presence of a court reporter to make a verbatim record of all bargain- ing sessions as a precondition to any further barganing. The Board stated: "[W]e now conclude that the demand for the presence of a court reporter during negotiations is not a mandatory subject of bargaining, and that either party's insistence to impasse on this issue is, accordingly, a violation of the Act." 17 In reaching this conclusion, the Board pointed out that recording negotiations does not fall within "wages, hours, and other terms and condi- tions of employment," but is a "threshold matter, prelim- inary and subordinate -to substantive negotiations" 18 and 7 See, e.g., Bethlehem Steel Co., 136 NLRB 1500 (1962); US Gypsum Co, 94 NLRB 112 (1951); NLRB v. Independent Stave Co., 591 F.2d 443 (8th Cir. 1979). 8 See Electrical Workers UE v. NLRB, 409 F.2d 150 (D C. Cir. 1969) 9 Independent Stave Co., 248 NLRB 219 (1980) 10 Star Expansion Industries, 164 NLRB 563 (1967). 11 Mayes Bros, 145 NLRB 181 (1963) 12 Granite City Steel Co., 167 NLRB 310 (1967) Is Guerdon Industries, 217 NLRB 1018 (1978). 14 Southwestern Electric, 274 NLRB 922 (1985). Is 228 NLRB 1101 (1977) should be accorded the status and attendant characteris- tics of a nonmandatory subject of bargaining. The Board went on to state: As it is our statutory responsibility to foster and en- courage meaningful collective bargaining, we be- lieve that we would be avoiding that responsibility were we to permit a party to stifle negotiations in their inception over such a threshold issue. [Foot- note omitted.]' 9 In Bakery Workers Local 455 (Nabisco Brands), 20 the Board found that a union violated Section 8(b)(3) of the Act by insisting, in the face of the employer's objections, that it be allowed to tape record bargaining sessions and other contractually required meetings as a condition for meeting and bargaining with the employer, notwithstand- ing the fact the parties had a longstanding practice of taping such meetings. The Board affirmed the adminis- trative law judge's ruling, based on Bartlett-Collins Co., supra, that the taping of such meetings was a nonmanda- tory subject of bargaining and that the union could not insist on continuing this practice over the employer's ob- jections. Neither of these cases involved recordation of arbitra- tion hearings. Despite the fact that the "contractually re- quired meetings" in Nabisco Brands involved third-step grievance meetings , it appears that the Board's focus in both cases was the adverse affect it found that recording had on the collective-bargaining process. In Bartlett-Col- lins, the Board specifically noted "that many experts in the field of labor relations have expressed the opinion that the presence of a reporter during contract negotia- tions has a tendency to inhibit the free and open discus- sion necessary for conducting successful collective bar- gaining."21 Despite the Respondent's effort to equate the process of collective bargaining with that of arbitration, there are clear differences. The former involves an attempt by the parties to reach agreement by means of negotiation, per- suasion, and accommodation, in which the free flow of ideas in an open, free discussion is essential . It is this end the Board was seeking to facilitate in its decisions in Bartlett-Collins and Nabisco Brands. The arbitration proc- ess, however, comes into play after the parties' attempts to negotiate a solution to a problem have failed. It is an adjudicatory-tape proceeding in which a formal adver- sarial hearing produces a record on which a neutral arbi- trator makes findings of fact and conclusions of law. The end of producing the formal record is served rather than inhibited by the presence of a reporter and preparation of a verbatim transcript. Further, questions concerning the preparation, use, and cost-sharing of such transcripts are not preliminary, threshold matters, but are part of the substantive negotiations by which the parties determine the type of arbitration procedure they will operate under. Consequently, the reasoning underlying Bartlett- Collins and Nabisco Brands is inapplicable. Is 237 NLRB 770 (1978). ' Ibid. 17 Id at 772 20 272 NLRB 1362 (1984) 18 Id at 773 21 237 NLRB at 773 fn. 9 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I conclude that inasmuch as questions concerning preparation, use, and cost-sharing of transcripts of arbi- tration hearings are substantive components of the par- ties' grievance arbitration procedure they are mandatory subjects of bargaining. B. Past Practice of the Parties The Respondent correctly points out that there is no express provision in the collective-bargaining agreement requiring the preparation, use, and cost-sharing of an of- ficial transcript of nonexpedited arbitration hearings. The General Counsel contends, however, that the consistent past practice of the parties over the more than 30-year history of their contractual relationship makes this a re- quirement of the contract. The record establishes that a reporter has been present at every nonexpedited arbitration hearing conducted under the parties' successive contracts and that an offi- cial transcript was prepared in all but one case in which counsel for the parties mutually agreed that it need not be prepared. Throughout the course of their contractual relationships, both the employer and the Union have taken responsibility for making arrangements for arbitra- tion hearings and the services of a court reporter have routinely been engaged without prior discussion between the parties in every case. The cost of the court reporters and the official transcripts of the hearings were routinely shared by the parties prior to the present controversy pursuant to the contractual provision requiring sharing the costs of the arbitration procedure. Although in January 1982 the Union announced that it would no longer agree that arrangements be made for a court reporter to provide an official transcript, it did not implement that position but, thereafter, negotiated an ex- perimental agreement with AT & T which modified the use of court reporters and transcripts in nonexpedited ar- bitration cases with six specified AT & T subsidiaries. As a part of that agreement, it was explicitly stated that with respect to all the other subsidiaries, including C & P, "the parties will continue to follow the practice and procedures that were in effect prior to January, 1982." Further evidence that the parties recognized their prac- tice as requiring the preparation and use of an official transcript at nonexpedited arbitration hearings is found in the contractual provision pertaining to expedited arbitra- tion hearings, added in 1977, which expressly prohibits the use of transcripts in such hearings . In bargaining for the current contract, the Union unsuccessfully tried to expand the type of cases covered by the expedited arbi- tration procedure. In Morton-Norwich Products, supra, the Board held that a union's insistence on tape recording grievance meetings was a violation of Sections 8(d) and 8(b)(3) of the Act, where over a period of years the parties had established a practice of not making verbatim transcripts of such meetings.The Board stated:22 The established practice has been for the Employer and the Union to take whatever notes they deemed necessary. This method of operation established by 29 228 NLRB at 1101 mutual consent over periods of many years became part of the conditions of employment which are not subject to change during the contract term other than by mutual agreement. By its insistence on re- cording the grievance sessions and refusal to partici- pate in grievance processing unless it was permitted to record the discussions, Respondent attempted to change the implied terms of the collective-bargain- ing agreement and has in effect terminated the proc- essing of employee grievances for which the collec- tive-bargaining agreement provides. Similarly, in Southwestern Electric,23 the Board found that an employer violated Section 8(d) and Section 8(a)(5) by refusing to process a grievance unless it was put in writing where the established practice had been that grievances need not be written. I find that in the present case the parties had a long, consistent practice of requiring the preparation, use, and cost-sharing of an official transcript of their nonexpedit- ed arbitration hearings which was an implied term of the grievance arbitration provisions of their collective-bar- gaining agreement. This practice being one that the par- ties had mutually agreed on, it could not be altered during the contract term except by mutual consent. The Respondent's announced unilateral refusal to continue this practice threatened to nullify the grievance arbitra- tion provisions of the agreement as the Employer would not agree to the change in procedure. I, therefore, con- clude that the Respondent's action violated Section 8(d) and constituted a violation of Section 8(b)(3) of the Act. Nothing in Milwaukee Spring24 or Boeing Co. v. NLRB,25 relied on by the Respondent, compels a con- trary conclusion. The Respondent's argument that rule 21 of the Volun- tary Labor Arbitration Rules of the American Arbitra- tion Association, which are incorporated into the collec- tive-bargaining agreement, gives it the option to refuse to order and share the cost of preparation of official hear- ing transcripts is not persuasive. Although the Respond- ent contends that the parties' past practice was in ac- cordance with rule 21, this is not the case. Rule 21 states: Any party may request a stenographic record by making arrangements for same through the AAA. If such transcript is agreed by the parties to be, or in appropriate case determined by the Arbitrator to be, the official record of the proceeding, it must be made available to the Arbitrator and to the other party for inspection, at a time and place determined by the Arbitrator. The total cost of such record shall be shared equally by those parties that order copies. However, the parties have never made arrangements for the stenographic record through the AAA and have always equally shared the cost of the official transcripts even when the Union did not order a copy. The parties' 28 274 NLRB 922 (1985) 24 268 NLRB 601 (1984) as 581 F.2d 793 (9th Cir 1978) COMMUNICATIONS WORKERS (C & P TELEPHONE) past practice has likewise deviated from AAA, rule 13, concerning filing the name of the arbitrator with AAA, rule 16, concerning mailing a notice of appointment to the arbitrator, and rule 19, which provides that the arbi- trator shall fix the time and the place for the hearing. All this supports the General Counsel's contention that the AAA rules do not govern the entire arbitration proce- dure but are incorporated for the limited purpose of gov- erning the arbitrator's actual conduct of the arbitration hearing. In any event, nothing in rule 21 precludes the parties from mutually agreeing on the preparation, use, and cost-sharing of hearing transcripts as they have done for more than 30 years or requires that their consistent past practice be disregarded. Equally unavailing is the Respondent's contention that the "zipper clause" in the parties' collective-bargaining agreement prevents any fording that the past practice of the parties' created a binding contractual obligation. Article 41 of the collec- tive-bargaining agreement provides that the parties are not bound by any understanding or agreement modifying the agreement or covering conditions not contained in the agreement which are not in writing and signed by the parties. In the present case, the past practice in ques- tion is not extrinsic but serves to define the provisions in the collective-bargaining agreement concerning griev- ance arbitration. The Respondent's final contention is that it gave the Employer notice of its intention to change the estab- lished practice concerning preparation, use, and cost- sharing of arbitration hearing transcripts and by failing to request bargaining C & P waived its rights to complain about the Union's failure to bargain on this matter. I find that the facts do not support the Respondent's position. When the Union gave C & P notice on 27 January 1982 that it intended to change the practice concerning arbi- tration transcripts 5 days later, C & P objected in writing and orally in a meeting between counsel for the parties. C & P was under no obligation to bargain about this matter during the term of the existing agreement and, having refused to do so, the Union was not free to insti- tute a unilateral change. 26 In apparent recognition of this fact, the Union did not implement its proposed change in practice on 1 February 1982 as it had proposed to do. Thereafter, in July 1982, the Union and AT & T nego- tiated a supplemental agreement providing for an experi- mental trial program dispensing with transcripts in cer- tain arbitration cases involving six AT & T subsidiaries, not including C & P. That supplemental agreement ex- pired at the same time as the existing collective-bargain- ing agreement, in August 1983, and specifically provided that the existing practice concerning arbitration tran- scripts would remain in effect with respect to all AT & T subsidiaries not involved in the trial program. Under the circumstances, the Respondent's argument that its 27 January 1982 notice to C & P and/or its supplemental agreement with AT & T put the burden on C & P to request bargaining has no merit. The 27 January notice which C & P rejected was, in effect, a nullity. Its supple- mental agreement with AT & T, which did not affect C & P, cannot be considered as effective notice to C & P 26 C & S Industries, 158 NLRB 454, 457 (1966). 83 that the Respondent was considering modifying its arbi- tration transcript practice with C & P at some future time. During the negotiations with C & P for an agreement to succeed that which expired on 7 August 1983, the Re- spondent proposed that the expedited arbitration provi- sion be expanded, but did not specifically propose to change the practice with respect to transcripts in nonex- pedited arbitration hearings until 27 August 1983. On that date, as negotiations were reaching a close, Union Negotiator Lewinski handed C & P Negotiator Sears the notice stating that the Union would no longer routinely agree that arrangements be made for a court reporter and official transcript of arbitration hearing or to share the cost of any transcripts obtained by C & P. The evi- dence is clear that later that same day, as the parties' ne- gotiators were assembling to finalize the new agreement, Sears asked Lewinski to withdraw the notice, lest it complicate the negotiations, and Lewinski voluntarily did so. Because Lewinski did withdraw the notice and the Union did not serve it on C & P until after the new agreement went into effect, it cannot be considered as imposing on C & P an obligation to request bargaining on the matter. CONCLUSIONS OF LAW 1. Cheaspeake and Potomac Telephone Company, Chesapeake and Potomac Telephone Company of Mary- land, Chesapeake and Potomac Telephone Company of Virginia and Chesapeake and Potomac Telephone Com- pany of West Virginia are joint employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Communications Workers of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act and at all times material has been the exclu- sive collective-bargaining representative of the nonsuper- visory employees of the joint employers in the appropri- ate unit, as described in article 1, section 2, of the cur- rent collective-bargaining agreement. 3. By refusing to continue to agree to the preparation, use, and cost-sharing of official transcripts of nonexpedit- ed arbitration hearings conducted pursuant to the griev- ance arbitration provisions of the collective-bargaining agreement between the parties , the Respondent has uni- laterally changed the terms and conditions of employ- ment during the term of that agreement in violation of Section 8(d) of the Act and has thereby violated Section 8(b)(3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent was engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. I shall recommend that the Respond- ent be ordered to restore the status quo by rescinding its 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unilateral refusal to agree to the preparation, use, and cost-sharing of official transcripts in nonexpedited arbi- tration hearings in accordance with the agreement and past practice of the parties and by reimbursing C & P for its one-half share of the costs of preparation of nonexpe- dited arbitration hearing transcripts incurred by C & P since October, 1983. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed27 ORDER The Respondent, Communications Workers of Amer- ica, AFL-CIO, Washington, D.C.; Baltimore, Maryland; Richmond, Virginia; and Charleston, West Virginia, its officers, agents, and representatives, shall 1. Cease and desist from (a) Refusing to bargain collectively with C & P by re- fusing to agree to the preparation, use, and cost-sharing of official transcripts of nonexpedited arbitration hearings in accordance with the agreement and past practice of the Respondent and C & P. (b) In any like or related manner refusing to bargain with C & P over the preparation, use, and cost-sharing of nonexpedited arbitration hearing transcripts. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Abide by the terms of the collective-bargaining agreement between the parties concerning the prepara- tion, use, and cost-sharing of nonexpedited arbitration hearing transcripts. (b) Reimburse C & P for one-half of the costs of prep- aration of all official transcripts of nonexpedited arbitra- tion hearings incurred by C & P since October 1983. (c) Post at its office, meeting halls and bulletin boards, copies of the attached notice marked "Appendix."28 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respond- sr If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. ent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Furnish to the Regional Director for Region 5, signed copies of the aforementioned notices for posting by C & P in places where notices to employees are cus- tomairly posted. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 28 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES 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 or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively with Cheaspeake and Potomac Telephone Company, Chesa- peake and Potomac Telephone Company of Maryland, Chesapeake and Potomac Telephone Company of Vir- ginia, and Chesapeake and Potomac Telephone Company of West Virginia, by refusing to abide by the terms of our collective-bargaining agreement with them concern- ing the preparation, use, and cost-sharing of official tran- scripts of nonexpedited arbitration hearings. WE WILL NOT in any like or related manner refuse to bargain with the employers over the preparation, use, and cost-sharing of official transcripts of nonexpedited arbitration hearings. WE WILL reimburse the employer for one-half of the costs of preparation of all official transcripts of nonexpe- dited arbitration hearings incurred since October 1983, when we refused to continue to share such costs. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO