Blue Cross Blue Shield Of Michigan

564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Blue Cross Blue Shield of Michigan and Joanne Coffman and Patti L. Hodgson and Local 2500, International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, UAW, Party to the Contract. Cases 7-CA-24555(1) and 7-CA-24555(2) 30 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 21 May 1986 Administrative Law Judge Nancy M. Sherman issued the attached decision. The Respondent filed exceptions and a supporting brief.' The General Counsel filed cross-exceptions and a brief in support of its cross-exceptions and in answer to the Respondent's exceptions. The Union filed an answering brief to the Respondent's excep- tions. 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, cross-exceptions, and briefs and has decided to affirm the judge's rul- ings, findings,2 and conclusions3 and to adopt the recommended Order4 as modified herein. ' The General Counsel moved to strike certain portions of the Re- spondent's brief because they pertain to the subjects of mootness of the instant case and settlement discussions that occurred posthearing and are not part of the record before us We grant the General Counsel's motion to strike and have not considered these excised portions of the Respond- ent's brief 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 Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 We disavow the implication, which is contained in fns 12 and 42 of the judge's decision, that a failure to plead agency status for an individual forecloses attributing his remarks to the Respondent on any agency basis, even though a violation premised on such remarks is not urged by the General Counsel In agreeing with the judge's finding that the Respondent violated Sec 8(a)(3) and ( 1), we rely on evidence establishing that the Respondent his- torically never maintained two separate promotional ladders for its exempt and nonexempt employees The Respondent's current practice is to give preferential consideration for exempt positions to employees who are not represented by a union Thus, it is clear that the Respondent's promotional practice is based on union considerations and not job qualifi- cations because nonexempt bargaining unit employees who previously would have been considered on an equal basis with nonexempt nonbar- gaining unit employees for exempt jobs are no longer considered equally merely because they now are represented by the Union 4 The judge granted, in part, the General Counsel's request that the Order include a visitatonal clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure with supervision by the United States court of appeals enforcing this Order Under the circumstances of this case, we find it unnecessary to include such a clause We agree with the judge, for the reasons stated in her decision, that the Charging Parties and 12 other unit employees represented by the Union were discriminated against in violation of Section 8(a)(1) and (3) of the Act when the Respondent denied them equal consideration for the systems li- aison analyst position at its Detroit office, which became available on 6 February 1985. We also agree that the judge properly refused to defer this dispute to the contractual grievance-arbitration procedure of the applicable collective-bargaining agreement between the Respondent and the Union, but only for the reasons we discuss. In rejecting deferral, the judge relied on three separate grounds: (1) even though the dispute raised by the complaint allegations is arguably cog- nizable under the parties' collective-bargaining agreement, all parties have agreed that the Re- spondent in fact engaged in the conduct described by the complaint and that such conduct did not violate the parties' collective-bargaining agreement; (2) the Charging Parties have not "voluntarily in- voked" the grievance-arbitration machinery re- quired as by United Technologies Corp.5 because no grievance relating to the complaint allegations has been filed;6 and (3) the Union's and the Charging Parties' interests in pursuing a grievance relating to the complaint allegations are not in substantial har- mony and may have an adverse impact on the han- dling of such grievance on this matter.7 In United Technologies Corp., supra, the Board reaffirmed the principle stated in Collyer Insulated Wire, 192 NLRB 837 (1971), that when a dispute arises under an existing collective-bargaining agree- ment, it should be resolved in the grievance-arbi- tration machinery that was voluntarily created by that agreement. The 1984-1987 Detroit contract contains a grievance-arbitration procedure that cul- minates in "final and binding" arbitration and that defines a grievance as any dispute involving the "application, interpretation or alleged violation of one (1) or more provisions of this Agreement." The Respondent primarily relied on section 4.018 of its 1984-1987 Detroit contract in support of its S 268 NLRB 557 (1984) 8 We specifically do not rely on this ground because, contrary to the judge's analysis, United Technologies Corp, supra, did not change the well-established principle that "the filing of a grievance is not a prerequi- site to deferral " Urban N Patman, Inc, 197 NLRB 1222 (1972) Accord Hendrickson Bros, 272 NLRB 438 (1985) See also Carolina Freight Carri- ers Corp, 281 NLRB 440 (1986) ' There is no evidence of union hostility toward the Charging Parties that would preclude deferral at this time Cf Hendrickson Bros, supra This section states Continued 286 NLRB No. 50 BLUE CROSS BLUE SHIELD 565 claim that a dispute involving a unit employee's transfer to a nonunit job is a grievance cognizable under the contract. Section 4.01 of the, contract is specifically oriented towards the elimination of dis- crimination based on race, religion, color, age, sex, national origin, and handicap, as manifested by its plain language. There is no mention, whatsoever, of the National Labor Relations Act (NLRA) or union discrimination.9 In the instant case, in the ab- sence of any contrary evidence of intent, the lan- guage relied on by the Respondent is defined by the specifically enumerated types of discrimination in section 4.01, rather than being a catchall permit- ting an arbitrator to construe union discrimination, as prohibited by the collective-bargaining agree- ment. Without submitting any relevant bargaining his- tory underlying the adoption of section 4.01, the Respondent argued that the term "fair employment practices, laws and regulations" on its face is ex- pansive enough to include the NLRA and unfair labor practices. Citing Postal Service., i 0 the Re- spondent contended that the Board, on at least one other occasion, has broadly defined a similar phrase to include the NLRA. Postal Service, how- ever, bears no resemblance to this case because there was no dispute that the unfair labor practice allegations came within the scope of the binding grievance-arbitration procedure. The Board in that case did not have to decide whether the phrase "consistent with applicable laws and regulations" encompassed the NLRA because the parties, in es- ARTICLE 4-FAIR EMPLOYMENT PRACTICES 4 01 The Company and the Union recognize their respective re- sponsibilities under federal and state laws and regulations relating to fair employment practices The Company and the Union also recog- nize the moral principles involved in the area of civil rights and have affirmed their commitment not to discriminate with respect to bar- gaining-unit jobs because of race, religion, color, age, sex, national origin, or handicap, and to administer this Agreement in accordance with applicable fair employment practices, laws and regulations The Company and the Union recognize the desirability of increased com- munication and cooperative effort on this subject (i) to encourage employees and grievance representatives to use , where applicable, the grievance and arbitration procedure as the exclusive contractual method for the prompt resolution of all such complaints, (ii) to de- termine the cause of such complaints in order to reduce the probabil- ity of such claims arising or recurring, and (iii) to maintain liaison with appropriate federal and state civil rights agencies for the fol- lowing purposes (a) to increase understanding , (o) to promote and encourage the use of the contractual grievance and arbitration proce- dure in order to avoid multiplicity of litigation in many forms [sic] simultaneously which is frequently time consuming, contradictory and, hence, non-productive to relieving employee problems, (c) to seek solutions to mutual problems , (d) to relieve tensions in this area, and (e) to exchange information, expertise and advice The Union agrees that it will discourage its members from bypassing the griev- ance and arbitration procedure with respect to any claim or com- plaint against the Company which may be made the subject of a grievance under the Agreement 9 Cf Safeway Stores, 252 NLRB 1323 fn 2 ( 1980) (union discrimination is specified) 10 270 NLRB 979 (1984) sence, agreed that it did. The Respondent also argued that, although the contract in United Tech- nologies Corp., supra, actually listed the NLRA as one of the discrimination laws subject to the griev- ance-arbitration procedure, this inclusion of the NLRA by name should not dictate a different result here, a situation in which a generic term is used instead . Once again, the Respondent's argu- ment has missed the mark . Because the contractual clause in United Technologies specifically identified the NLRA, the Board was able to conclude that it was "manifest . . . that the parties contemplated that [the dispute raised by the complaint allega- tions] be resolved under the grievance-arbitration machinery." 268 NLRB at 560 fn. 20. In United Technologies the Board deferred be- cause it found that the subject of the complaint al- legations was clearly cognizable under the parties' contractual grievance-arbitration procedure. The Board has consistently deferred where the dispute arguably arises from the collective-bargaining agreement between the parties. See, e.g., Roy Rob- inson Chevrolet, 228 NLRB 828, 830 (1977); South- western Bell Telephone Co., 198 NLRB 569, 570 (1972); and Urban N. Patman, supra. Cf. L. M. Set- tles Construction Co., 259 NLRB 379, 383 (1981). This requirement is not met in the instant case. We would need a stronger indicator than section 4.01 standing alone to conclude otherwise because it is not reasonable to anticipate that an interpretation of section 4.01, nor the other contract provisions cited by the Respondent, will resolve the unfair labor practice issues here. Our dissenting colleague, who merely disagrees with our view that the unlawful discrimination here does not "arise under the parties' collective- bargaining agreement" within the meaning of United Technologies, supra, sounds the alarm and in very exaggerated terms announces that we deni- grate national labor policy favoring "peaceful reso- lution of labor disputes." As co-stewards of nation- al labor policy, we frankly see little that is nonpea- ceful in our refusal to defer in this case. More im- portantly, however, our dissenting colleague has missed the point. The initial inquiry for deferral purposes is not "whether the preference system used by the Respondent here violated the contract, or whether the Union waived rights under the con- tract" (which eventually may be the basis for the employer's defense), but simply whether the con- tract makes it unlawful to discriminate on the basis of union activity. We have found that it does not, 566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and that is the full measure of our difference with our colleague in this proceeding.I I In Ram Construction Co., 228 NLRB 769, 774 fn. 18 (1977), the Board adopted the decision of the judge, who had refused to defer the dispute in issue to the parties' contract, because the employer's contract interpretation was untenable and unfound- ed. In Ram the judge specifically observed that: Board policy designed to facilitate private dis- pute settlement machinery does not counte- nance abdication of its jurisdiction to remedy unfair labor practices simply because the party charged has interposed an unfounded contrac- tual defense, predicated upon little more than sophistry. [Id.] Here, we find that, as in the situation in Ram, the Respondent's contention that promotions of unit employees to exempt positions is covered under the parties' contract is so plainly lacking in merit that it does not even rise to the level of an arguable claim under the contract. Therefore, we find deferral is not appropriate here because the dispute is not arguably cognizable under the par- ties' contract. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Blue Cross Blue Shield of Michigan, De- troit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(g). "(g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." CHAIRMAN DOTSON, dissenting. The threshold issue in this case is whether the Board should defer to the parties' contractual grievance-arbitration process. Simple adherence to the Board's deferral policy enunciated in United Technologies, 268 NLRB 557 (1984), should have obviated the need for the protracted proceedings involved in this case . Instead, my colleagues refuse properly to apply this policy here and thus deni- grate the "national labor policy of peaceful resolu- tion of labor disputes." AT&T Technologies v. Com- munications Workers of America, 475 U.S. 643, 650 (1986). The facts are painstakingly set forth in the judge's opinion. The salient fact under review here is the Respondent's admitted preference to nonunit employees for promotion to nonunit jobs, i.e., the Respondent does not consider employees represent- ed by the Union for nonunit jobs because they are in the unit. In particular, we are concerned here with two Charging Parties who claim discrimina- tion because they were automatically rejected for a systems liaison analyst job that became available in 1985.1 The judge found, and my colleagues agree, that the Respondent's conduct here violated the Act. This contention should not yet be addressed by the Board, however, because Board precedent clearly requires that this issue be deferred in the first place to the parties' contractual grievance-ar- bitration procedure. The contract under consideration here contains a detailed final and binding arbitration clause: Unless otherwise expressly provided in this Agreement, the above grievance-arbitration procedure shall be the sole and exclusive means for resolving any dispute between an employee, group of employees or the Union and the Company involving the application, interpretation or alleged violation of one (1) or more provisions of this Agreement. The contract also contains a "Fair Employment Practices" provision, 2 as well as a management- rights provision, seniority-in-transfer provision, and job-posting clause. The judge found that although the dispute be- tween the parties was arguably cognizable under the comprehensive contract, including the provi- sions described above, deferral was not appropriate because (1) the parties agreed the conduct did not violate the contract, (2) the grievance-arbitration procedure had not been invoked, and (3) the Union and the Charging Parties were not in substantial harmony concerning the practice involved. My colleagues correctly reject the latter two grounds for failing to defer. See ante fns. 6 and 7. However, they incorrectly determine that the dis- pute does not "arguably arise" under the contract. The proper touchstone for resolving this issue is our decision in United Technologies. We there stated (268 NLRB at 559): It is fundamental to the concept of collec- tive bargaining that the parties to a collective- bargaining agreement are bound by the terms of their contract. Where an employer and a I I The dissent also erroneously implies that there is conflicting evi- ' It is also undisputed that the Respondent gives preference to unit em- dence pertaining to the contract negotiations for sec 4 01 of the 1984 - ployees over nonumt employees for promotion to jobs within the unit 1987 Detroit contract. In fact, the record is devoid of any relevant bar- represented by the Union. gaining history underlying the adoption of that contractual provision . 2 This provision is set forth in detail at fn 8 of the majority opinion. BLUE CROSS BLUE SHIELD 567 union have voluntarily elected to create dis- pute resolution machinery culminating in final and binding arbitration, it is contrary to the basic principles of the Act for the Board to jump into the fray prior to an honest attempt by the parties to resolve their disputes through that ma- chinery. For dispute resolution under the griev- ance-arbitration process is as much a part of collective bargaining as the act of negotiating the contract. In our view, the statutory pur- pose of encouraging the practice and proce- dure of collective bargaining is ill-served by permitting the parties to ignore their agree- ment and to petition this Board in the first in- stance for remedial relief. [Emphasis added, fn. omitted.] The initial inquiry then is whether the preference system used by the Respondent here violated the contract or whether the Union waived rights under the contract. Such questions fall indisputably within that class of issues well suited for resolution by grievance and arbitration, as they require reso- lution of contractual language and bargaining histo- ry. See, e.g., Postal Service, 271 NLRB 1297 (1984). My colleagues decline to defer to arbitration here because, in their view, the dispute does not ar- guably arise from the contract. In so deciding, the majority launches into a detailed analysis of the Fair Employment Practices provision of the con- tract, and dismisses the Respondent's claim that the unfair labor practice alleged will be decided in an arbitration forum because, my colleagues assert, "it is not reasonable to anticipate that an interpretation of [the contract's provisions] will resolve the unfair labor practice issues here." Ante at 6. Yet, in so de- ciding, my colleagues perform the precise functions the arbitration process, mutually agreed to by the parties, is to perform.3 In sum, the Board here has usurped the parties' own agreed-on method for resolving disputes under the contract. Whether the parities agreed that the Respondent's practice should be permitted is a matter for an arbitrator to decide in the first in- stance. Any other result here will only encourage extensive prearbitral litigation, as parties spar on the meaning of contractual language and seek to avoid their contractual responsibilities. The Board, consistent with its deferral policies, should not abet parties in such an attempt. Richard P. Connolly, Esq., for the General Counsel. Theodore R. Opperwall, Esq. and William T. Hickey, Esq., of Detroit, Michigan, for the Respondent. William A. Wertheimer, Esq., of Detroit, Michigan, for Local 2500. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge. This case was heard before me in Detroit, Michigan, on 7-9 October 1985, pursuant to charges filed on 3 May 1985 by Joanne Coffman and Patti L. Hodgson, and a com- plaint issued on 13 June 1985. At all times material here, Coffman and Hodgson were in a bargaining unit repre- sented by Local 2500, International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America; this Local Union and its parent International are hereafter referred to as (Local 2500 and the Interna- tional). The complaint as issued alleges that Respondent Blue Cross Blue Shield of Michigan violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) by refusing since about 23 April 1985, because Coff- man and Hodgson are represented by Local 2500, to consider them on an equal basis with nonbargaining unit employees for nonbargaining unit job positions. Early in the hearing, counsel for the General Counsel (the Gener- al Counsel) stated that he was contending that Hodgson, Coffman, and other employees in the bargaining unit rep- resented by Local 2500, were discriminated against, in violation of Section 8(a)(3) of the Act, by being denied equal consideration for the systems liaison analyst posi- tion.' This assertion aside, the General Counsel did not then move for leave to amend the complaint, whose prayer for relief does not in terms request backpay for any employees except Coffman and Hodgson.2 Shortly before the General Counsel thus explained his position, Respondent's counsel stated that the matter should be de- ferred to the grievance-arbitration procedure in the bar- gaining agreement to which Respondent and Local 2500 were parties when Coffman and Hodgson were allegedly discriminated against. A few minutes after this explana- tion by the General Counsel, Respondent's counsel ad- vanced the defense of waiver by union contract. The General Counsel's posthearing brief includes a motion for leave to amend the complaint. Respondent thereafter filed an opposition to the motion. This matter is consid- ered infra, section 11,F, l. On the basis of the entire record, and after due consid- eration of the briefs filed by the General Counsel, Re- spondent, and Local 2500, I make the following 8 This is not a case where the employer's argument is sheer "sophist- ry" The record reveals conflicting evidence concerning the background of negotiations with respect to the contract There can be little doubt that a party may waive rights in a contract See, e .g., Continental Tele- phone Co, 274 NLRB 1452 (1985), enfd. without published opinion (9th Cir 1986) And surely my colleagues would not find on this record at this time that the Respondent's practice here was so inherently destruc- tive of Sec 7 rights that deferral would not be apps opriate See, e g , Postal Service, 270 NLRB 979 (1984) i The General Counsel averred that such action by Respondent was taken pursuant to a corporate policy with respect to employees in any union-represented bargaining units However, in response to a question by me, the General Counsel specifically stated that his allegations of dis- crimination were limited to the unit represented by Local 2500 2 The General Counsel has never in terms sought to alter this portion of his prayer for relief 568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. JURISDICTION Respondent is a Michigan corporation that is engaged in providing prepaid health care insurance in various fa- cilities throughout Michigan, including its principal office and place of business at 600 East Lafayette in De- troit. During 1984, a representative period, Respondent purchased, and caused to be directly transported and de- livered to its various Michigan facilities , goods and mate- rials valued in excess of $50,000 from points located out- side Michigan. During that same year, Respondent's gross revenues exceeded $ 1 million. I find that, as Re- spondent admits, Respondent is engaged in commerce within the meaning of the Act, and that assertion of ju- risdiction over its operations will effectuate the policies of the Act. Local 2500 is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction At least so far as relevant here, Respondent classifies employees as "exempt" employees (who are exempt from the overtime provisions of the Fair Labor Standards Act, 29 U.S.C. § 201-219) and "nonexempt" employees, who are protected by such provisions. None of Respondent's exempt employees is or (so far as the record shows) has ever been in a union-represented bargaining unit. 3 Before some of Respondent's nonexempt employees became union represented , all of them were considered on an equal basis with exempt personnel for transfer into exempt jobs. At the time of the October 1985 hearing, many but not all of Respondent's nonexempt employees were in union-represented units . Nonexempt employees who were not so represented were still being considered on an equal basis with exempt personnel for transfer into exempt jobs. All the bargaining units referred to in the instant record consisted of nonexempt office clerical employees and related nonexempt classifications. The employees who work in Michigan locations outside of Detroit are referred to in the record as "out-state" employees. None of them is represented by Local 2500. B. Events Involving Units not Represented by Local 2500 1. The 1974-1977 Flint contract So far as the record shows, Respondent's Flint office was the first to be represented by a union. On 19 July 1974 Respondent executed a collective-bargaining agree- ment covering out-state employees in Flint, Michigan. Local 1811, a local of the International, executed and was a party to that contract. The contract recites that the International is a party; the signature of Dean E. Nelson appears on the signature page over the typewrit- ten words "Dean E. Nelson, International Representa- 8 Some exempt personnel are supervisors , but not all of them are tive"; and the signature of Donald Ellis appears on the signature page over the typewritten words "Donald Ellis, Director, Region 1C, UAW." Local 2500's counsel stated on the record that the International was a party to all the contracts in question here . I find that the Interna- tional was a party to this agreement even though Nel- son's and Ellis' signatures appear (along with those of a "chairman" and a "committee member") under the type- written heading "Local Union 1811, UAW." The 1974 contract, which by its terms was to expire no earlier than June 1977, indicates that for purposes rel- evant here, an employee's seniority dates from his or her date of employment in the bargaining unit. The contract further states: .. . Seniority Of Employees Promoted Outside Bar- gaining Unit. In the event an employee is promoted to a non-bargaining unit job in the Flint District Office and is thereafter transferred by the Employer back into the bargaining unit, the seniority of such employee shall be reinstated including the period of time spent in the non-bargaining unit job in the Flint District Office. . .. Bidding Procedure. In the event of a permanent vacancy in a bargaining unit job, the job will be posted in the Flint District Office only for a period of five (5) working days. During such period inter- ested bargaining unit employees may apply for the job. . . . After the close of the posting period, the Company shall award the job to the applicant who is most qualified of those qualified to perform the job on the basis of her ability, education, training and experience. . . . In the event the qualifications of more than one applicant are deemed equal, the job shall be awarded to the most senior applicant. The successful applicant shall then be given a trial period of not less than ten (10) nor more than sixty (60) working days. If, during such trial period, the Company determines that the applicant is not quali- fied for the job, she shall be returned to her former job, and the job will be filled by the next most qualified applicant, if any, or, if there is none, by a new hire. In addition , the 1974 contract contains the following provisions: . . . Management's Rights: The conduct of the Com- pany's business and all the rights of Management, except as explicitly limited by this Agreement, may be exercised by the Company in its sole discretion. These rights include, but are not limited to, the fol- lowing. 1. The right to . . . promote . . . and transfer em- ployees, including the exercise of judgment as to re- quirements and qualifications. 3. The right to promote employees to jobs not cov- ered by this Agreement. BLUE CROSS BLUE SHIELD 569 An addendum to this contract, which addendum con- sists of a letter dated 19 July 1974 from Personnel Man- ager Gerald Cole to International Representative Nelson, states, inter alia: During the term of the 1974-1977 collective bar- gaining agreement , the following understandings will apply: 2. Bargaining unit employees shall have no right to transfer to or bid for company jobs outside of the bargaining unit and shall have no seniority rights whatsoever with respect to jobs outside the bargain- ing unit. However, bargaining unit employees will have the same opportunity to apply for jobs outside the bargaining unit as do persons who are not em- ployees of the company. Employees who transfer as a result of this application will be credited with their full, continuous company service for purposes of pension, vacation, bank time, and administrative time. An undated addendum to the 1974-1977 contract, re- garding holiday pay, shows that Respondent was a party to.a bargaining agreement with Local 1811 and the Inter- national dated 1 June 1972. Respondent's counsel stated at the hearing that out-state units had been represented since 1970. Company witness Rodney Meyer, who has worked for Respondent since 1970 and was one of Re- spondent's representatives in negotiating the 1980-1981 out-state and 1981-1984 Detroit contracts, testified that the first time he saw Respondent's preferential policy stated was in the 1974 contract, but that this policy could have been followed earlier. 2. The 1978- 1980 out-state (including Flint) contract In 1978 or 1979, Respondent executed a collective-bar- gaining agreement that covered nonexempt employees in at least two out-state offices, including Flint. The union parties to this contract, which is not in the record and is referred to here as the 1978-1980 contract, included Local 1781, probably included Local 1811, and may have included other locals; but there is no contention that Local 2500 was a party thereto. As previously noted, Local 2500's counsel stated on the record, in effect, that the International was a party to this agreement. During the effective period of this agreement, which expired in 1980, Local 1781 filed grievances complaining that bargaining unit employees were being denied trans- fers to nonunit jobs because such employees were in the bargaining unit. Respondent denied these grievances on the basis of the letter of understanding that had been in- cluded in the 1974-1977 contract with Local 1811 and the International covering the Flint office. Local 1781's financial secretary and chairperson Adrienne Simpson, an employee who (inferentially) did not work in the Flint office, testified that this letter was not part of the 1978- 1980 bargaining agreement, and that before Respondent brought up the letter during grievance discussions under that agreement, she had been unaware of its existence. 3. The 1980-1981 out-state (including Flint) contract In March 1980, Respondent executed a collective-bar- gaining agreement, to expire by its terms no earlier than March 1981, which covered employees in 16 out-state lo- cations, including Flint but not Detroit. The union par- ties to this agreement were the International and its Locals 1781, 1811, and 2145. This contract stated that se- niority was effective "as of the most recent hire date as a permanent full-time employee." The only witness who testified about the negotiations that led up to this agreement was Rodney Meyer, who when he testified was Respondent's director of sales but who during the 1980 negotiations was Respondent's man- ager of regional customer service and acted as one of Respondent's representatives. Meyer, one of five persons who executed the agreement on Respondent's behalf, tes- tified that during these negotiations, Respondent was concerned about "equal movement" across the line from nonunit to unit positions, because "we wanted to provide equal opportunity to all [of Respondent's] employees . .. but more importantly, we were concerned about what would happen if the bargaining unit people moved into non-bargaining units and then, for some reason, wanted to get back into the bargaining unit and we were concerned about the process that we would employ in that particular situation." As to this latter question, the executed contract stated: Seniority of Employees Promoted Outside of the Bar- gaining Unit. In the event an employee is promoted to a non-bargaining unit job and remains on the non-bargaining unit job for six (6) months or more, they shall lose all bargaining unit seniority. Any return to the bargaining unit shall be only at Com- pany option. Meyer further testified that the "International Reps" took the position at the bargaining table that the filling of bargaining unit jobs should be based exclusively on se- niority and that nonbargaining unit employees should not have "equal application" to bargaining unit jobs. Meyer went on to testify that Respondent took the position that all employees within the organization should have "equal application" to jobs, whether the jobs were in or not in a bargaining unit, and that "application" to those jobs should be based on qualifications and not on seniority. Meyer further testified that "the union" said that "bar- gaining-unit jobs belonged to the union and that they were going to bargain or establish the job bidding proc- ess for those jobs and that non-unit jobs were the Com- pany's and that the provisions for bidding or promoting into those jobs was the Company's responsibility." Meyer testified on direct examination that International Representatives Nelson, Richard Root, and another such representative (whose name Meyer could not recall, but he was probably thinking of Robert Angus),' acting on * These three individuals executed the agreement as "International rep- resentatives " 570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD behalf of "the union," reached an agreement with Re- spondent "that bargaining-unit employees would have preference to bargaining-unit jobs and that that prefer- ence could be based on seniority, and, then, whether they were qualified to do the work, and for the non-bar- gaining-unit jobs, that bargaining unit employees could be considered for those jobs, but only after all non-bar- gaining people had been considered"; and that "external applications" would be considered after Respondent had "exhausted" all bargaining unit candidates. On cross-ex- amination, Meyer gave somewhat confused testimony, which I interpret as follows: The "International Reps" said that they would agree that "bargaining-unit jobs are ours and non-bargaining-unit jobs are yours. We will dic- tate what policies govern bargaining unit jobs; the Com- pany ... may dictate what the policies will be for non- bargaining units." Respondent then said "fine," but that it thought bargaining unit employees should have an op- portunity to be considered for nonbargaining unit jobs. The "union" had no objection to this idea. Meyer went on to testify that it was his understanding that the agreement about which he had testified came under paragraph 3 of the "Management's Rights" clause. This clause in the 1980-1981 out-state agreement is virtu- ally the same as the management rights clause in the 1974-1977 Flint Agreement (supra sec. 11,13, 1). In addition, the 1980-1981 out-state contract provided: When the Company decides to fill an open position in a bargaining unit job, the job shall be posted for three (3) working days in that office. In the event that there are no successful bidders, the job will be posted in the other represented offices for a period of five (5) working days. During such period, inter- ested bargaining unit employees may apply for the job . . . . After the close of the posting period, the Company shall award the position to the person it determines is the most senior qualified applicant 4. The 1981-1984 out-state contract In 1981, Respondent executed a bargaining agreement covering all 17 of Respondent's then out-state offices, in- cluding about 14 of the offices (including Flint) covered by the 1980- 1981 agreement and about 3 offices not cov- ered by the 1980-1981 agreement. The contract included the following "Letter of Understanding re Non-Bargain- ing Unit Jobs": Bargaining-unit employees shall not be denied the opportunity of applying for jobs posted pursuant to the Company's non-negotiated job posting policy, nor shall any such employee(s) be rejected on the basis that they are ineligible to apply for non-bar- gaining-unit jobs. If qualified, such employee(s) will be considered if no other qualified employees spe- cifically covered by that policy are selected. Also, the contract contained a management rights clause that reads in its entirety: It is understood and agreed that the Company possesses and may exercise all of the rights, powers, privileges and authority that it had prior to the exe- cution of this Agreement, and that nothing in this Agreement shall be construed or implied to limit the Company in any way in the exercise of any such rights, powers, privileges, or authority, except to the extent relinquished, modified or limited herein. So far as relevant here, the contractual definition of the term "seniority" was about the same as the definition in the 1980-1981 out-state contract (supra, II,B,3). Also, the 1981-1984 out-state contract contained virtually the same provisions as the 1980-1981 contract with regard to the seniority of employees promoted outside the bargain- ing unit (supra, sec. II,B,3). The 1981-1984 out-state con- tract further provided: Job Postings. When a bargaining-unit position is posted, the Company shall post the same for five (5) consecutive working days in all out-state represent- ed offices. Interested bargaining-unit employees during this period may apply for the posted job.... After the close of the posting period, selection shall be made in the following sequence: (a) the most senior qualified applicant in the office in which the job exists; then (b) the most senior qualified appli- cant in the bargaining-unit ... . Meyer testified on direct examination that during the negotiations that led to the 1981-1984 contract, . . . essentially the same discussions took place that happened in 1980 in that the union continued to take the position that seniority [within the unit] was the governing factor for the bidding of jobs within the bargaining units and that non-bargaining unit employees could not have equal application for bar- gaining unit jobs in the job bidding process. .. . The Company's position was that all employees would be considered equally for all jobs within the organization and that their premise for placing somebody in those jobs should be based on qualifi- cations, rather than seniority or length of service. .. . The outcome was that we agreed that we would continue with the same practices we had over the prior years and that were documented in the 1980 contract and that is that non-bargaining- unit employees would have no seniority or bidding rights to bargaining-unit jobs and that in the case of non-bargaining-unit jobs, that bargaining-unit em- ployees could only be considered after all non-bar- gaining-unit employees had been considered. Meyer testified that this "outcome" was "specifically agreed to in the 1981 negotiation," by International Rep- resentatives Angus, Nelson, and Root. Still on direct ex- amination, Meyer testified that the "Letter of Under- standing re Non-Bargaining Unit Jobs" was specifically agreed to by "the union," that this letter carried out the policy that existed under the previous contracts, and that BLUE CROSS BLUE SHIELD as to the drafting technique, "what we did is take it out of the management rights clause and specifically devel- oped and agreed to" the letter of understanding. On cross-examination, Meyer initially testified that "the union" had requested that the language in the 1980-1981 contract about promotion to nonunit jobs be changed in the 1981-1984 contract; in effect, he attributed this al- leged request to a discussion about seniority for bidding on unit jobs, but he then testified that this principle had been established in 1974. Later, he testified that the letter of understanding was put into the contract 'because both Respondent and "the union" felt that "we needed to de- velop some language that covered that particular item," and that he could not recall who brought up the eventu- ally adopted procedure of using a letter of understand- ing. Meyer testified, in substance, that because of the lan- guage of the management rights clause in the 1980-1981 contract, the literal language of that contract (although not its intent), unlike the language of the 1981-1984 con- tract in view of the letter of understanding, afforded union employees no rights with respect to nonunit jobs.s Meyer testified that during bargaining negotiations in 1981, as well as 1980 (see supra, sec. II,B,3), Respondent was concerned about "equal movement" across the line from nonunit to unit positions, because "vie wanted to provide equal opportunity to all [of Respondent's] em- ployees . . . but more importantly., we were concerned about what would happen if the bargaining-unit people moved into non-bargaining units and then for some reason, wanted to get back into the bargaining unit and we were concerned about the process that we would employ in that particular situation." Meyer testified that in 1981, as well as 1980, Respondent addressed these concerns to "the union." As previously noted, as to this latter issue the 1980 and 1981 agreements were identical. Employee Simpson, who represented Local 1781 during the 1981 negotiations and signed the 1981-1984 contract on that Local's behalf, testified that during these discussions, International Representative Angus said that Respondent could not discriminate against "our people" by not allowing them to bid on nonunit jobs, that the 1974-1977 letter of understanding was meaningless, that it dealt only with the Flint office and before the existing unit had been organized, and that "we don't agree to that letter and . . . were seeking to change that letter at this point in time." Simpson went on to testify that Angus and Respondent's representative Eugene Cuske argued back and forth, and finally agreed on the 1981 letter of understanding as a compromise. The 1981 negotiations are further discussed infra, sec- tion II,F,3,a. 5. The 1984-1987 out-state contract In 1984, Respondent executed a contract, to expire no earlier than 1987, with the International and its Locals 1781, 1811, and 2145. The agreement states, "The Com- pany recognizes the Union as the exclusive bargaining- agent" for employees at 18 specified locations, including 5 According to Meyer, "the union" agreed to this language in the 1980- 1981 contract because "the unit was very small and both parties felt that was sufficient language to cover the need at that time " 571 about 14 of the offices (including Flint) covered by the 1981-1984 agreement and about 4 not so covered. The 1984-1987 contract contains a management rights clause virtually identical to the corresponding clause in the 1981-1984 out-state agreement. The 1984-1987 con- tract also contains a job-posting clause, which, for pur- poses relevant here, is substantially the same as the cor- responding clause in the 1981-1984 out-state agreement. As to the seniority of employees promoted outside the bargaining unit, the 1984-1987 contract includes the same clause as was included in the 1980-1981 and 1981- 1984 out-state agreements, but adds that an employee re- turned to a bargaining unit job in accordance with this provision "shall thereafter begin to accrue seniority as any other bargaining-unit employees." Also added was a clause that as to temporary promotions out of the bar- gaining unit, it freezes the transferees' seniority during that period but does not subject to company option their right to return to the unit. Under the 1984-1987 contract, seniority is based on the employee's "most recent hire date into the bargaining unit," defined as "UAW Locals 1781, 1811, and 2145 collectively." In addition, the 1984- 1987 contract contains the following "Letter of Under- standing . . . Re Non-Bargaining Unit Jobs": Bargaining-unit employees shall not be denied the opportunity of applying for non-bargaining-unit jobs. If qualified, such employee(s) will be consid- ered. Any disputes regarding the selection or rejec- tion for a non-bargaining unit job are not subject to the grievance procedure.6 As to how the changes in the letter of understanding came to be made, Meyer testified that International Rep- resentatives Watson, Nelson, and Root said that the bar- gaining unit members had the impression that they were "totally restricted" from bidding on nonunit jobs; that these International representatives proposed to modify the language of the letter of understanding "to the effect that [bargaining-unit] employees had the opportunity to bid [and] there would be certain provisions on how the application would be considered"; that these Internation- al representatives said "that the prior practice for the placement of non-bargaining unit people into non-bar- gaining unit jobs was intact and we would continue to follow the practices that we had over the previous years"; and that Respondent agreed to that. Meyer fur- ther testified that it was Respondent that proposed the particular modification that was eventually agreed to. Regional Representative Richard Waskin, who was the chief union negotiator with respect to this contract, testi- fied that the letter of understanding was changed at the insistance of Company Representative Meyer. According to Waskin, Meyer said that in practice Respondent was posting both bargaining unit and nonbargaining unit posi- 6 The contractual grievance procedure applies to a "complaint" or "grievance," which latter term is defined as "a complaint . concerning the application, interpretation , or alleged violation of the provisions of this Agreement " After a "grievance" has been processed through the ap- plicable steps of the grievance procedure and is submitted to an arbitra- tor, he "shall have the authority to hear and determine any grievance in- volving an alleged violation of this Agreement " 572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tions, that "even though [the 1981-1984 letter of under- standing] mentioned something secondhand or second class, that they just weren't applying it that way; they were considering everybody equally," and were "promot[ing] from within, prior to hiring off the street, based on qualifications, not by seniority at the non-bar- gaining level"; and further said that he wanted to con- form the language to the practice. Waskin further testi- fied that language regarding the grievance procedure was generated by his remark that as to nonunit positions, he did not know how the Union could grieve on Re- spondent's selection of applicants on the basis of relative qualification, when the Union does not have the right to represent a person in a nonbargaining unit position. Local 1781 Representative Simpson testified that the Union was not concerned that unit employees were mis- construing the 1981-1984 letter of understanding regard- ing nonunit jobs; that the Union made no proposal on this issue; that all the changes in the letter came at Re- spondent's request; that Respondent's only expressed reason for its proposed change was that it did not want the Union to file grievances whenever Respondent "denied people"; and that the parties agreed that place- ment on nonbargaining unit jobs would not be a grieva- ble matter because the applicants were going to be placed according to qualification. This matter is further discussed infra, section II,F,3,b. Simpson further testified that because after the execu- tion of the 1981-1984 out-state agreement she did not re- ceive any grievances regarding promotions to nonunit jobs, she believed that out-state unit employees were thereafter considered for such jobs on a nondiscrimina- tory basis. Meyer testified that even after the execution of the 1984-1987 out-state contract, Respondent contin- ued its prior practice of considering unit members for nonunit jobs only if no qualified nonunit employees ap- plied. C. Detroit Contracts to Which Local 2500 Was a Party 1. The 1981-1984 Detroit contract About March 1981, Respondent's Detroit office became unionized for the first time. In September of that year, Respondent executed a collective-bargaining agree- ment, effective until September 1984, with the Interna- tional and its Local 2500 covering nonexempt employees in Respondent's Detroit office. In preparing for the 5-1/2 months of negotiations that led up to this agreement, International Representative Paul Massaron, who had never previously negotiated with Respondent, read Re- spondent's 1980-1981 out-state contract with the Interna- tional and its Locals 1781, 1811, and 2145 (see supra, sec. II,B,3). He thereby became generally aware that this agreement had provisions relating to promotion of unit employees into nonunit positions. As previously noted, about this matter, the only clause in the four corners of the 1980-1981 contract is a provision, in the management rights clause, giving Respondent the right in its sole dis- cretion, except as explicitly limited by the agreement, "to promote . . . and transfer employees, including the exer- cise of judgment as to requirements and qualifications [and] to promote employees to jobs not covered by this Agreement." Massaron testified that he did not know how Respondent operated under this language. As to the out-state unit, most of the negotiations took place in Lansing. For a week or two, however , negotia- tions for both units took place in the same building in Detroit, and (sometimes) simultaneously. During the ne- gotiations concerning the Detroit unit, Massaron had contact with the union team that was negotiating with Respondent as to the out-state unit. Massaron testified, without direct contradiction, that during this period the union representatives never discussed among themselves the out-state practice regarding promotion of unit em- ployees into nonunit jobs. 7 During negotiations at the bargaining table about the Detroit unit, Respondent proposed a contract clause that as to promotions to jobs in the bargaining unit, both unit and nonunit employees would be entitled to equal con- sideration, if qualified, and Respondent would select the most qualified employee-applicant without regard to se- niority. Respondent further said that it wanted to give nonunit, exempt employees rights to move back into bar- gaining unit positions in the event of a reduction in staff or, perhaps, if such employees or Respondent did not want them to remain in their nonunit jobs. Respondent's negotiating team included company wit- ness Richard Jesky, who is Respondent's director of computer operations. Jesky and Massaron both testified that as to promotions inside the unit, the Union proposed at the bargaining table that such promotions be given to the qualified applicant who had the most seniority in and was already working in the bargaining unit. However, their testimony conflicts on the context of the parties' discussion of this proposal. Massaron testified that at the bargaining table, this union proposal was discussed solely in connection with Respondent's proposal regarding pro- motions into both unit and nonunit jobs; denied, in effect, that at the bargaining table this union proposal was dis- cussed in connection with Respondent's proposal regard- ing nonunit employees' right to move back into union positions; and denied any bargaining table discussion of a "linkage between the fact" that the Union would get a seniority-based system for the unit and Respondent would have the right to use an equal kind of preference for nonunit jobs. On the other hand, Jesky testified that at the bargaining table, a proposal was made that unit jobs be filled by unit members on the basis of seniority in the unit, and that nonunit employees be given preference in filling nonunit jobs. On direct examination, he testified that this entire proposal emanated from the Union. On cross-examination, he initially vacillated about who made this alleged proposal,8 but eventually testified that Re- 7 Employee Simpson, a Local 1781 representative who was participat- ing in the out-state negotiations, had received grievances from out-state unit employees complaining that they were being denied promotions be- cause they were in the bargaining unit She testified that she participated in only "a couple" of meetings with Local 2500, at which only money issues were discussed. a "We proposed-put it on the table, the issue of allowing exempt em- ployees to move out and in return, we would give equal consideration to bargaining unit employees for exempt positions The rebuttal was, no, you take care of yours and we'll take care of ours. Who proposed it to us, who evolved it, I'm sorry, I just can't be that specific for you " BLUE CROSS BLUE SHIELD 573 spondent told the Union that in exchange for "promo- tional consideration" of exempt employees, Respondent would agree to give unit employees equal consideration for any exempt position; and that Massaron rejected this proposal by saying ". . . you take care of yours and we'll take care of ours." Jesky testified on both direct and cross-examination that this discussion of promotions was connected to Respondent's proposal about permit- ting nonunit employees to return to the bargaining unit, but his testimony is vague about what this connection was. On direct examination, Jesky testified that during ne- gotiations, the parties agreed that Respondent "would post the [nonunit] position; [Respondent] will fill from the exempt rank, the non-unit rank, and should [Re- spondent] not find a qualified applicant [Respondent] would expand within the unit and select a candidate from the unit that had qualifications for the position." Jesky went on to testify that this agreement "never made it" in the written contract. On cross-examination, Jesky testified that he was not present when this agreement was allegedly reached. At this point, and in response to the motion of the General Counsel and Local 2500 to strike all of Jesky's testimony on hearsay grounds, I stated on the record that I would not regard as probative Jesky's testimony directly that an agreement was reached. During negotiations, certain side bar discussions were engaged in by only Massaron and Cuske, who was Re- spondent's principal negotiator until his death on 1 Seli- tember 1981, before the contract was executed. On redi- rect examination, Jesky testified that after one of these sidebar discussions which, according to Jesk y, took place after the bargaining table discussion described earlier The issue was resolved in my mind when Mr. Massaron said, "You're going to take care of your people and we're going to take care of ours." That was where it was resolved in my mind, that that was that agreement and that agreement had been formulated beginning at the table and into side meetings and later in the context of promotion of individuals within the exempt rank was discussed. And that in my mind settled that agreement, and there were some references at the bargaining table afterwards for that ... . On cross-examination, Jesky testified as follows: Q. Was there any further discussion after the side bar at the main table about this issue? A. As I previously testified, it was referenced, in terms of that we agreed that we would handle it. Q. Who referenced it? A. Both parties. Q. What did they say? A. That we needn't continue the discussion of how we placed the exempt employees in a reduc- tion of work force situation, nor do we need to con- cern ourselves with the promotion of exempt em- ployees; that's agreed to, because the union takes care of their own and we will take care of ours. Q. Who said that? Who said that? A. I can't answer that for you. Q. How many management people were there at the meeting? A. Approximately five, with other people coming in from time to time. Q. Who was assigned to be the note taker? A. Mr. Laidlaw, I believe." Q. Did this subject ever come up after this side bar? A. Only as a reference that we were moving on. We didn't need to discuss that point any longer. Q. Who said that? A. I can't-that's the problem, I can't tell you that. Q. Which side said that? A. I'm sorry, I can't tell you. Q. Is that all they said? A. Yes. Company witness Meyer executed the 1981-1984 De- troit agreement on Respondent's behalf, but was not asked about these remarks; nor was Jesky asked whether Meyer was present when they were made. Laying the stricken testimony by Jesky to one side, the only direct evidence about what happened during the side bar is the testimony of Massaron. He unequivocally denied having made any side agreements with Respondent that related to how people got promoted, other than what was in the contract, or making any oral agreement with Cuske, or ever making side agreements with employers, wherein only he and the employer knew what had been dis- cussed. However, Massaron's testimony is somewhat equivocal as to whether he reached any oral side agree- ments with Respondent about any subject.1 ° He testified that both at the bargaining table and at a side bar with Cuske, Massaron took the position that as to Local 2500's unit, the Union would not agree to promotions on the basis of qualifications; and "quid pro quo" was used in connection with proposals that, partly in return for wage and other union concessions, "outside of the unit, they would use qualifications; inside of the union, they would use most senior qualified." Massaron further testi- fied that during a sidebar with Cuske, Cuske said that he wanted to make a proposal that as to nonunit jobs, non- unit employees would be given first consideration and unit employees would be given second consideration. Massaron, who had never before participated in negotia- tions with Respondent, went on to testify that in reply, 8 Both the 1981 and 1984 Detroit agreements were signed, on Re- spondent's behalf, by Richard Laidlaw, coordinator , labor relations 10 Jesky testified that "I believe" there were other agreements that did not "make the contract," in addition to the alleged agreement about pn- onty for placement in nonunit positions The only specific agreement he described was that in response to Jesky's expressed concern about trans- fer into his computer department of employees without the required skills, Massaron agreed at the bargaining table that in this area, "we could use the seniority position of time [in] job and time [in] department and time [in] company for purposes of promotion " Laying to one side the testimony of Massaron, referred to in the text, nobody else testified about this matter 574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD he told Cuske that Massaron would have to check with counsel about the legality of such a clause, and, in addi- tion, that the employee bargaining committee (in a unit that had just been organized) might be reluctant to accept a first agreement that limited the opportunities the employees had enjoyed before they chose union repre- sentation. Massaron testified that Cuske asked him to "think about it," and that this was the end of the discus- sion. Respondent's posthearing brief contends that for certain alleged "cold-record" reasons (see infra, sec. II,F,3,c), Massaron's testimony about this sidebar discus- sion should not be credited. Massaron testified that the proposal described by Cuske was never raised or ad- dressed at the bargaining table after this discussion, and was not put across the table at all. The Detroit contract eventually agreed to contained a management rights clause and a clause defining seniority, which were virtually identical to the corresponding clauses in the 1981-1984 out-state contract (supra, sec. II,B,4). In addition, the 1981-1984 Detroit contract pro- vided: Seniority of Employees Promoted Outside of Bar- gaining Unit. Employees promoted to a job outside of the bargaining unit after the effective date of this Agreement shall have their bargaining-unit seniority frozen as of the date of their promotion. Any return to a bargaining-unit job shall be only at the Compa- ny's option. Employees, if any, returned to a bar- gaining-unit job in accordance with this section shall thereafter accrue further seniority as any other bargaining-unit employee. Job Postings: When a bargaining-unit position is posted [interested] bargaining unit employees .. . may apply for the posted job. .. . After the close of the posting period, selection shall be made in the following sequence: (a) the most senior qualified applicant in the department in which the job exists; (b) the most senior qualified applicant in the seniority unit in which the job exists; and (c) the most senior qualified other appli- cant in the bargaining unit... . A letter of understanding attached to the 1981-1984 Detroit agreement states, "The numerous promotion grievances filed by the Union during contract negotia- tions are settled on the basis of prospective relief achieved by the Union in successfully negotiating a 'most senior qualified' promotion standard." 2. The 1984-1987 Detroit contract Jesky and Massaron did not participate in the negotia- tion of Respondent's 1984-1987 contract with the Inter- national and its Local 2500; nor (so far as the record shows) did Meyer. Of the 15 persons who signed the 1984-1987 agreement on Respondent's behalf, 3 had signed the 1981-1984 agreement . Of the three Interna- tional representatives who signed the 1984-1987 agree- ment, one had signed the 1981-1984 agreement. Of the nine Local 2500 representatives who signed the 1984- 1987 agreement, two had signed the 1981 -1984 agree- ment. The 1984- 1987 Detroit contract included a manage- ment rights clause virtually identical to the management rights clauses in the 1981- 1984 Detroit contract, the 1981-1984 out-state contract , and the 1984- 1987 out-state contract (see supra, sec. II ,B,4). In addition, the 1984- 1987 Detroit contract defined seniority in virtually the same way (that is, based on the employee's most recent hire date) as had the 1981-1984 Detroit contract and all the out-state contracts since at least 1980. The clauses en- titled "Seniority of Employees Promoted Outside of Bar- gaining Unit" are virtually identical in the 1981- 1984 and 1984-1987 Detroit contracts (see supra, sec. II,C,1). As to the sequence (after the close of the posting period) of the selection of applicants for promotion to bargaining unit jobs, the 1984- 1987 Detroit contract language is vir- tually identical to the 1981 - 1984 Detroit contract lan- guage. However, the 1984-1987 Detroit contract, unlike the 1981- 1984 Detroit contract , provides for the "exter- nal" filling of class 1 and class 2 (the two lowest paid classes) vacancies, except for laid-off employees and em- ployees already in such classes . Also, the 1984-1987 De- troit contract contained somewhat different provisions as to laid-off bargaining unit employees' claim on jobs posted or to be posted and as to where jobs were to be posted, and (as to provisions for filling jobs) differed from the 1981 - 1984 Detroit contract in various other ways. The 1984- 1987 Detroit contract, which covered the Charging Parties when they were allegedly discrimi- nated against, also included some fair -employment-prac- tice and grievance-arbitration clauses discussed infra, sec- tion II,F,2. The 1981 -1984 and 1984-1987 out-state contracts, and the 1981-1984 and 1984-1987 Detroit contracts, all con- tain virtually identical letters of understanding regarding transfers between out-state and Detroit jobs. These pro- visions suggest that when an employee in one unit bids for a job in the other, his seniority for bidding purposes consists of his seniority (if any) in the unit that includes the job he is bidding for. D. The Filling of the Exempt Systems Liaison Analyst Jobs 1. The applications by Detroit unit employees Hodgson and Coffman On 6 February 1985 Respondent posted a notice invit- ing applications on or before 8 February for the exempt job of systems liaison analyst in the membership adminis- tration department. At this time, employees Patti Hodg- son and Joanne Coffman, with 14 and 17 years of service respectively, were union members who held the Detroit bargaining unit job of unit leaders in the direct billing department. Both of them were at the top of their classi- fication unit and had no chance for advancement within the bargaining unit. The top of the range for the systems liaison analyst job was about 50 percent higher than the pay these two employees were then receiving. Hodgson and Coffman filed written applications for the systems li- aison jobs on 7 and 8 February, respectively. BLUE CROSS BLUE SHIELD 575 About late March 1985, having heard nothing about her application, Hodgson made it telephoned inquiry about the matter to Lee Couturier, who is a senior per- sonnel representative in the exempt personnel department and whose agency status is in dispute (see infra, fn. 12). Over timely objection by Respondent on hearsay grounds, Hodgson testified without contradiction that he told her that the systems liaison job had been placed "on hold" and she should wait. Respondent's placement con- tact log suggests that on two of the four vacancies, the selection process was suspended between 11 March and an undisclosed date between 9 and '23 April. Thereafter, Hodgson received a report from an undis- closed source that the positions had been filled. She tele- phoned Couturier and asked whether this was true. Over timely objection by Respondent on hearsay grounds, Hodgson testified without contradiction that he told her yes.l' He asked her whether she had received her rejec- tion notice yet. When she said no, he told her that she would have it within a couple of days. Thereafter, both she and Coffman received rejection notices dated 23 April 1985. Coffman testified that she received her notice on that date; Hodgson testified that she received her notice on 23 May (see infra, sec. II,F,3d). Both notices consisted of entries on a printed form, were signed by Couturier and included written entries in squares calling for his telephone extension and the date, and contained check marks in boxes before the printed entries "Not ac- cepted after" and "File review." The form contains a larger square with the printed heading "Reason for non- acceptance." Printed thereunder are entries, each preced- ed by a box, which include "Does not meet time-in-posi- tion requirement," "Lacks education requirement," "Lacks experience requirement," "Meets minimum quali- fications, but other candidates possess . . . education and/or experience . . . preferred qualifications" (each of these also preceded by a box), and "Other-(Please ex- plain in detail)." The only entry on eithei notice in the square "Reason for non-acceptance" is the rubber- stamped entry, after the printed "Other" entry, "Quali- fied Applicant Selected in Accordance With Corporate Job Posting Procedure." After the two employees had compared their rejection notices, Coffman telephoned Couturier and asked him the meaning of the stamped entry. Over timely objection on hearsay grounds, Coffman testified without contradic- tion that Couturier said that four qualified exempt em- ployees had been selected for the position and that was his understanding and that the jobs were filled; she asked why it had taken 11 weeks for a determination; and he said it had been put on hold. Coffman said that she had been going to school, and asked if he could give her some enlightenment on how to advance herself. He said that she could keep trying for the job postings, and that it was possible for her to get promoted. Over timely ob- jection on hearsay grounds, Coffman testified without contradiction that Couturier said that exempt employees were considered before nonexempt employees. Couturier testified to the following effect: Shortly after receiving his evaluation notice, either Coffman or Hodgson (he could not remember which) telephoned him and asked the meaning of the statement at the bottom of the form. He said that the position had been filled by an exempt person and that the statement meant that "we considered exempt people first, nonunit people first."12 Thereafter, Coffman went to see Tony Orlando, who is the manager of the direct billing department and is the immediate supervisor of Elaine Faust, Coffman's then im- mediate supervisor. Coffman told Orlando that she did not think that it was fair that it was company policy that she could not be considered for a job out of the bargain- ing unit or for a promotion. He said that the jobs were not in his department and that he could not help her. He asked what she wanted to do about the matter. She said that she thought "not to be considered" was a "form of discrimination," and that she would like to take it further and resolve the problem inside the Company first. The next day, Orlando gave her the name and telephone number of Joel Gibson, and said that she could talk to him. Gibson is Respondent's coordinator of affirmative action and equal employment opportunity programs. Re- spondent concedes his supervisory status, but not his agency status (see infra, sec. II,F,4). Coffman thereupon called Gibson's office and made an appointment for herself and Hodgson to meet with him on 30 April or 1 May. What Gibson did to prepare for this conference, and what took place there, are discussed infra, section II,F,3e. On 3 May 1985 Hodgson and Coff- man filed the charges in the instant case. Prior to the October 1985 date, on which Coffman tes- tified, she had filed 8 to 12 applications for nonunit jobs, and all these applications had been rejected. Prior to that same date, Hodgson had filed about eight such applica- tions. The first seven were rejected, but in late July 1985, she was given the exempt job of programmer analyst trainee in the membership and billing systems depart- ment. This job is on the same pay level as the systems liaison analyst job for which she unsuccessfully applied in February 1985. The record fails to show which, if either, job she would have preferred if given a choice. 11 Certain of Respondent's business records were offered into evidence by the General Counsel, and received without object ton. Some of such records show that one successful applicant (Bragg) began her new duties on 6 April, and the other three on 18 May or later Another such record (Respondent's job posting listing), when considered in light of Couturier's testimony, strongly suggests that the decisions to reject Hodgson and Coffman were made on 23 April Moreover, Respondent's written per- sonnel practice and procedure states that a candidate rejected before a department interview (as were Hodgson and Coffman) was to be advised of his rejection before the successful candidate was advised of his selec- tion (as Bragg must have been by 6 April). However, as noted, Hodg- son's testimony was offered by the General Counsel and was objected to by Respondent, and not Local 2500 12 Because the complaint does not allege that any remarks by Couturi- er constituted a statutory violation by Respondent, I perceive no rel- evance to the General Counsel's contention that an employee could rea- sonably believe that Couturier was speaking on management 's behalf Moreover, because Couturier admittedly told the employee that Re- spondent considered nonunit people first, and because it is undisputed that Respondent did so (see infra, sec II,E), it is unnecessary to deter- mine whether Coffman's testimony that he made such remarks would constitute probative evidence of their truth as an admission by an agent of Respondent (see Rule 801 (d)(2)(C)(D) of the Federal Rules of Evi- dence) Accordingly, whether Couturier was in fact an agent of Respond- ent is immaterial here 576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. How Respondent filled the systems liaison analyst jobs As to the steps that Respondent took in filling the sys- tems liaison jobs for which Hodgson and Coffman unsuc- cessfully applied in February 1985, the record shows as follows: Couturier received 14 applications from bargain- ing unit employees, including Hodgson and Coffman, and eight applications from exempt employees. Couturier requested and obtained from the human resources infor- mation department only the files of the eight exempt ap- plicants. Then, Susan Albert, whom Couturier was train- ing in Respondent's personnel procedures, collated the qualifications of all eight of the exempt employees, in- cluding two (Hadacz and Bragg) who had filed their ap- plications after the due date specified in the posted an- nouncement. Couturier testified that late applications would be accepted; and that if exempt employees filed late applications without an excuse, such applications would be given a priority lower than exempt employees' timely applications but higher than bargaining unit em- ployees' timely applications. The record fails to show whether Hadacz and Bragg had good excuses for filing late; both of them worked in locations that enabled them to bring in rather than mail in their applications. Re- spondent did not collate the qualifications of any of the bargaining unit applicants. Couturier testified that he re- ferred for an interview only employee applicants whose records showed that they met the requirements specified as essential on the postings for the system liaison analyst job. He referred all eight of the exempt applicants, but none of the bargaining unit applicants, for an interview by Mary Lou Johnson and/or Helen Coleman, both of them line supervisors. All four of the successful candi- dates (Bragg, Hill, Claspell, and Dipace) were exempt applicants. Couturier testified that successful candidates Claspell and Dipace were successfully performing their new jobs; he was not asked about Bragg or Hill. The posted notice for the job stated, in part: ESSENTIAL-REQUIRED Education Two (2) years of college; will consider two (2) ad- ditional years as Supervisor or Analyst with direct contact with Systems Development for each year of college that is lacking. Previous Work Experience Three (3) to four (4) years . . . experience [with Respondent] of which two (2) years as a Supervisor/Analyst and contact with Systems De- velopment [sic]. After inspecting Coffman' s and Hodgson's employee profiles and job applications, Couturier testified that nei- ther of them met the essential requirements of the sys- tems liaison job. More specifically, he testified that Hodgson had no college, and at the relevant time had no "supervisory or analytical" experience; and that Coff- man, although her associate degree met the educational requirements, had no "supervisory or analytical" experi- ence. At the time that Hodgson applied for the systems liai- son job, she had 4 years and 10 months' continuous expe- rience, and about 5-1/2 years' total experience, as a unit leader in direct billing, and had also been a clerk in direct billing for about 6 weeks. At the time that Coff- man applied for the systems liaison job, she had been a unit leader in direct billing for 7 years and 10 months. Couturier initially testified that to meet the educational requirement, Hodgson needed 4 years as a "supervisor or analyst" in addition to the requirements, set forth under "Previous Work Experience," of 2 years as a "Super- visor/Analyst." Later, however, he testified that an ap- plicant could get criterion education and criterion work experience for the same work experience. Still later, he testified that to meet the educational qualifications, an applicant with less than 2 years of college would need 2 years of supervisory or analyst experience for each year of college she was lacking, in addition to the 2 years of supervisory or analyst experience (and at least 1 more year of work experience with Respondent) she would need to meet the "previous work experience" criteria. Couturier further testified that both Hodgson and Coffman needed to have 2 years of supervisory or ana- lytic experience. Couturier went on to testify that he was not sure whether experience as a unit leader constituted analytic experience, and that it was this uncertainty that had led him to approve an interview with applicant Dipace, who (when Respondent interviewed and decided to accept her) possessed enough of the required experi- ence only if her service as a unit leader (and/or reports clerk, utility clerk, and senior reports specialist) consti- tuted supervisory or analytic experience (see infra). As to this matter, Couturier testified that he thought this ques- tion was "close enough" to warrant an interview for Dipace. He further testified that in the absence of the regular department supervisor and a regular supervisor from another department, the unit leader "may take over partially the supervisory responsibilities." Successful ap- plicant Dipace's "employee profile," a company person- nel record that Couturier reviewed and sent to the inter- viewer, stated that she had 1 year of college; that, as of the date when Couturier ordered her "finalized" for the systems liaison job, she had had 2 years and 10-1/2 months of experience as a supervisor for Respondent (the position she then held); and that she had previously been a unit leader in "special records" for about 3 years, a senior reports specialist in "special records" and "special groups," and a reports clerk in "special groups." The form filled out by Interviewer Johnson about Dipace has a check mark in a box preceding the printed entry "Can- didate selected has," and, after the printed entry "The following preferred qualifications that you do not pos- sess," the handwritten entry "More experience-knowl- edge." Johnson, who at the time of the hearing was still working for Respondent as a supervisor, did not testify. BLUE CROSS BLUE SHIELD 577 E. Respondent's Practice with Respect to Filling Nonunit Jobs Respondent's posthearing brief states (p. 22) that Re- spondent has "consistently adhered to its practice of giving non-unit employees preference for non-unit jobs, and has done so . . . for many years." Similarly, after the charges were filed in the instant case, Respondent advised the Regional Office, by letters signed by Re- spondent's Assistant General Counsel Karen S. Kien- baum, "The corporate job posting procedure is to con- sider non bargaining unit employees for non bargaining unit positions. If there are not qualified non bargaining unit applicants, bargaining unit applicants are considered for the position. In this case, there were qualified non bargaining unit applicants who were selected, which concluded the job selection process." An interoffice note issued in late March 1983 by Personnel Manager Cole, who on Respondent's behalf signed the 1974-1977 Flint agreement and signed the letter of understanding at- tached thereto (see supra, sec. II,13,1), states that as to exempt positions, nonbargaining unit employees are to be given priority over bargaining unit employees. Respond- ent's written personnel practice and procedures, effective since 1 April 1983 with respect to all organizational units and all employees unless excluded by specific contracts or agreements, states, "Employees applying [for posted jobs] but not meeting time-in-position requirement [at least 6 months for nonexempt employees and at least a year for exempt employees] may be considered before the position is offered to a unit employee." Couturier, who has since mid-1983 worked immediately under Cole and has served as senior personnel representative in both the exempt and the nonexempt personnel departments, testified that in all parts of the Company where UAW- represented employees work, union-represented employ- ees have a lower priority than nonrepresented employees (both exempt employees, none of whom is union-repre- sented, and unrepresented nonexempt employees) in fill- ing vacancies in exempt jobs.' 3 Gibson, who for at least 4 years has been the head of Respondent's affirmative action and equal employment opportunity program de- partment, testified that he had been advised by various unnamed staffing representatives (a job classification that would include Couturier) about a procedure relating to priorities given nonunit employees for nonunit positions; Gibson is immediately supervised by James O. Cook, who is vice president of the human resources depart- ment, signed on Respondent's behalf the 1981-1984 and 1984-1987 contracts covering the Detroit unit (as well as the 1980-1981 and 1981-1984 out-state contracts), and is also in charge of staffing representatives and of the exempt personnel department.14 Jesky (who is Respond- 's Until about April 1983, Couturier worked directly under Vernethia Little, who was Respondent's "Manager, Non-Exempt Staffing" and signed the 1984-1987 Detroit contract on Respondent 's behalf 14 As discussed infra, sec. II,F,4, Respondent does not appear to ques- tion that this preferential practice would be unlawful unless the unit em- ployees' right to be considered for nonunit job on a nondiscriminatory basis had been effectively waived by such employees' bargaining repre- sentative Moreover, the Detroit unit was union represented for more than 5 months before the execution of the first Detroit contract in Sep- tember 1981, and Respondent's work force still includes some nonexempt ent's director of computer operations, represented it during the negotiations that led up to the 1981-1984 De- troit contract, and signed that agreement on Respond- ent's behalf) testified that after the execution of the De- troit contract on 1 September 1981, in filling exempt jobs Respondent gave priority to nonunit applicants over ap- plicants in the Detroit unit.15 International Representative Massaron, who was the principal union negotiator during the negotiations that led up to the 1981-1984 Detroit agreement, and who signed it on the International's behalf, serviced that unit until 1983 but (so far as the record shows) had no subse- quent contact with it. He testified that so far as he knew, the Union had never filed a grievance on the issue of how bargaining unit people get promoted.'s Jesky, Re- spondent's director of computer operations, testified that he would know about any grievance that was filed by the UAW relating to an employee's nonpromotion in a nonunit position in his department, which includes about 120 employees in the Detroit unit, and that no such grievances had been filed. Jesky further testified that he believed Respondent's policy to be that disputes over exempt positions were nongrievable. Meyer (who repre- sented Respondent during the negotiations that led to the 1980-1981 out-state contract, signed that agreement, and was manager of regional service during most of the period material here) testified that he was not aware of any grievances regarding bargaining unit employees' not being considered for nonbargaining unit jobs. Employee Simpson, who is Local 178l's financial secretary, is chairperson for her office, and is on the bargaining com- mittee, testified that during the effective period of the 1978-1981 out-state contracts, whose coverage was broader than the Flint office, unit members grieved about being denied promotion to nonunit jobs; that Re- spondent rejected these grievances on the basis of the letter of understanding attached to the 1974-1977 Flint only contract; and that the International representative told unit employees that nothing could be done about the matter "because it was not negotiated." She went on to testify that after the execution of the 1981-1984 out-state contract, "we didn't get any more grievances" about the matter (see also, supra, sec. II,B,5). employees who are now unrepresented but may in the future choose to exercise their right to union representation Accordingly, it is interesting to note that neither the quoted positions of counsel, nor the Respondent's quoted written personnel procedures, nor the testimony of Couturier and Gibson referred to in the text, states that the preference afforded to non- unit employees also extends to unit employees who are not covered by a bargaining agreement Indeed, as noted mfra, during a period that ex- tended to 1980, Respondent applied to out-state offices, in addition to the Flint office, the letter of understanding that was attached to the 1974- 1977 Flint-only agreement, and that stated that bargaining unit employees had no right to bid for or transfer to nonunit jobs 15 Jesky testified that during the 1981 negotiations covering the De- troit unit, he became aware that Respondent was following this practice with respect to out-state unit employees 16 In 1983, he took a leave of absence and then was assigned to handle Local 1781, a representative of out-state employees He testified that he had not heard the issue raised there by anybody 578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD F. Analysis and Conclusions 1. The General Counsel's motion for leave to amend the complaint As previously noted, the complaint here alleges that Respondent violated Section 8(a)(1) and (3) of the Act by refusing, because the employees in the Detroit bar- gaining unit are union represented, to consider them on an equal basis with nonbargaining unit employees for nonunit positions.17 The complaint further alleges that Respondent's Detroit place of business is the only facility involved in this proceeding. The General Counsel's brief, filed simultaneously with Respondent's brief and almost 2 months after the hearing, includes a motion to amend the complaint "to include an additional alleged violation of Section 8(a)(1) and (3) of the Act by Respondent's ad- ministration of the aforesaid policy which precluded rep- resented applicants from being considered at all for the promotion to Systems Liaison Analyst because Respond- ent did not want union members to infiltrate the ranks of the exempt personnel classifications." Thereafter, Re- spondent filed a brief in opposition to the motion. At the outset of the hearing, the General Counsel ex- pressed the belief that Respondent's allegedly unlawful policy is directed at employees in all bargaining units, in- cluding those outside the Detroit unit. However, not until almost 2 months after the close of the hearing did he seek to expand the complaint to include union-repre- sented employees outside the Detroit unit. Moreover, the amendment sought by the General Counsel attributes Re- spondent's actions to a desire to keep union members from infiltrating the ranks of the exempt personnel classi- fications. I see no reason to believe that as to the out- state unit, Respondent's motive for its policy was fully litigated at the hearing, which centered on applicants from the Detroit unit.18 Finally, I can find no evidence that the applicants for the systems liaison jobs included any union-represented employees outside the Detroit unit. Accordingly, the General Counsel's motion for leave to amend the complaint is hereby denied. Seaward International, Inc., 270 NLRB 1034 (1984). 2. Respondent's contention that the case should be deferred to the contractual arbitration procedure As previously noted, Respondent contends that the in- stant case should be deferred for resolution under the grievance-arbitration procedure of the 1984-1987 collec- tive-bargaining agreement covering the Detroit unit. Re- spondent's brief states (p. 9, fn. 3) that Respondent has agreed to waive any timeliness defense. The 1984-1987 17 This description of the complaint is based not only on that pleading, but also on the General Counsel's assertions at the outset of the hearing The complaint itself alleged a discriminatory refusal to consider Hodgson and Coffman for these positions As a practical matter, this difference is immaterial See The Remedy, infra 18 Indeed, Respondent contends that there is no record evidence of an- tiunion animus as to either unit Cf Furr's Cafeterias. Inc, 251 NLRB 879 fn 3 (1980), enfd mem 656 F 2d 698 (5th Cir 1981), and Quaker Mfg Corp, 224 NLRB 1059, 1061 fn 3 (1976), enfd 574 F 2d 358 (6th Cir 1978), both of which are cited by the General Counsel. In these cases, the operative facts were essentially admitted by the respondent bargaining agreement includes the following allegedly relevant provisions: ARTICLE 4-FAIR EMPLOYMENT PRACTICES 4.01 The Company and the Union recognize their respective responsibilities under federal and state laws and regulations relating to fair employment practices. The Company and the Union also recog- nize the moral principles involved in the area of civil rights and have affirmed their commitment not to discriminate with respect to bargaining-unit jobs because of race, religion, color, age, sex, national origin, or handicap, and to administer this Agree- ment in accordance with applicable fair employ- ment practices, laws and regulations. The Company and the Union recognize the desir- ability of increased communication and cooperative effort on this subject (i) to encourage employees and grievance representatives to use, where applica- ble, the grievance and arbitration procedure as the exclusive contractual method for the prompt resolu- tion of all such complaints, (ii) to determine the cause of such complaints in order to reduce the probability of such claims arising or recurring, and (iii) to maintain liaison with appropriate federal and state civil rights agencies for the following pur- poses: (a) to increase understanding, (b) to promote and encourage the use of the contractual grievance and arbitration procedure in order to avoid multi- plicity of litigation in many forms [sic] simulta- neously which is frequently time consuming, contra- dictory and, hence, non-productive to relieving em- ployee problems, (c) to seek solutions to mutual problems, (d) to relieve tensions in this area, and (e) to exchange information, expertise and advice. The Union agrees that it will discourage its members from bypassing the grievance and arbitration proce- dure with respect to any claim or complaint against the Company which may be made the subject of a grievance under the Agreement. In addition, the 1984-1987 contract contains the fol- lowing provisions for a grievance and arbitration proce- dure: ARTICLE 7-GRIEVANCE PROCEDURE AND ARBITRATION 7.01 A grievance is a written complaint by an in- dividual employee, by a group of employees having the same immediate supervisor, or by the Union concerning the application, interpretation, or al- leged violation of the provisions of this Agreement. .. . Such grievances shall be processed as follows: Z02 Step One (a) Oral Discussion. Any employee or a group of employees, as defined above, having a complaint shall first take up the same with the im- mediate Supervisor, who will attempt to adjust it. . . . (b) Written Grievance. In the event a complaint is not resolved and the affected employee or BLUE CROSS BLUE SHIELD group of employees, as the case may be, wish to pursue it further, the complaint shall be reduced to a written grievance, which shall be signed by the affected employee or group of employees, and by the District Steward, and which shall state the facts complained of, the article and sec- tion of this Agreement allegedly violated, and the adjustment being sought.. . . 7.04 Step Three . . (c) Union grievances, as defined in 7.01 above, shall be signed by the Local Union President or International Servicing Representative, shall be filed at this Step only, and shall thereafter be processed as provided in this Section. (d) Should conditions warrant, processing of grievances may bypass Steps 1 and/or 2 by mutual agreement.. . . 7.05 Arbitration. (a) Within three (3) working days following the Company's Step 3 written answer or response, the Union through its Local Union President and/or International Servicing Representative shall notify the Company of its intent to appeal the same to arbitration by serving a written request or demand therefore [sic] on the Di- rector of Employee Relations... . (b) The arbitrator shall be selected and the proceedings conducted in accordance with the labor arbitration rules and regulations of the American Arbitration Association . Except to the extent otherwise limited by this Agreement, the arbitrator shall have the authority to hear and de- termine any grievance involving an alleged viola- tion of this Agreement, provided, however, that the grievance first proceeded through the appli- cable steps of the grievance procedure set forth above. The arbitrator shall have no authority, however, to add to, subtract from, modify or limit the provisions of this Agreement , expressly or by implication.19 (d) The arbitrator shall decide issues of arbitra- bility before proceeding with the hearing or re- ceiving evidence as to the merits of the grievance(s) under consideration. If the arbitrator decides that a grievance is not arbitrable, the grievance shall be denied on that basis without any comment whatsoever with respect to the merit of the same.. . . (g) The decision of the arbitrator shall be final and binding upon the employee(s) involved, the Union and the Company. 19 Other portions of the bargaining agreement call for arbitration of disputes regarding the reasonableness of modified or newly established job classifications and the pay rate therefor, and of modified or newly established production/quality standards. Cf. the definition of "gnev- ance" in sec 7 01 579 7.07 Unless otherwise expressly provided in this Agreement, the above gnevance-arbitration proce- dure shall be the sole and exclusive means for re- solving any dispute between an employee, group of employees or the Union and the Company involv- ing the application, interpretation or alleged viola- tion of one (1) or more provisions of this Agree- ment. 7.09 Notwithstanding anything above to the con- trary, Steps I and 2 may be bypassed or eliminated by mutual agreement of the Company and the Union. 7.10 Exhaustion of Contract and Intra- Union Rem- edies. Employees covered by the Labor Agreement between the Company and the Union shall as a pre- ceding condition to maintaining any court or admin- istrative agency charge, suit, or action against either the Company or the Union involving the applica- tion or interpretation of the Labor Agreement, (1) fully and in a timely fashion exhaust their Labor Agreement grievance-arbitration procedure, and (2) fully and in a timely fashion exhaust their available internal union appeals procedure under the Consti- tution of the International Union, UAW. In the event of a final decision by any court or administrative agency of competent jurisdiction that the resolution of any complaint or grievance result- ed from, or was otherwise due to, a-violation by the Union of its responsibility under the duty of fair representation, or in the event of a final decision to that effect by any internal union appeals tribunal of competent jurisdiction, the Company, upon written request at that time, agrees that it will reopen and further process any such complaint or grievance in accordance with the grievance-arbitration proce- dure. However, in no event shall the Company be responsible or held liable for any damages or costs relating or pertaining to the period between the ini- tial complaint resolution or grievance resolution and the date on which the complaint or grievance is re- opened for further processing. In contending that the instant matter should be de- ferred to the grievance-arbitration procedure, Respond- ent contends that the instant claim of "discrimination on account of union membership" is cognizable under the fair employment practices provisions of the contract (art. 4.01); and that a grievance "could be predicated" on the management rights clause (art. 3; see supra, secs. II,B,4-5 and II,C,1-2), the clause dealing with seniority of em- ployees promoted outside the bargaining unit (art. 8.07; see supra, sec. II,C,1-2), and the job-posting clause (art. 8.14; see supra, sec. II,C,1-2). The General Counsel and Local 2500 contend that the contractual grievance-arbi- tration procedure is inapplicable to the instant dispute. The General Counsel relies on the absence of any ex- press contractual provision dealing with the disputed policy and on the testimony of Respondent's director of computer operations (Jesky), who did not participate in the negotiation of the bargaining agreement in effect 580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD when Coffman and Hodgson applied for the systems ana- lyst jobs, that disputes over exempt positions are nongrie- vable.20 In addition to relying on the foregoing testimo- ny by Jesky, Local 2500 relies on the testimony of Waskin, a union negotiator of the 1984-1987 out-state contract, that the Union had no right to grieve disputes about selection or rejection for a nonunit job; Local 2500 elsewhere deprecates the significance of out-state con- tracts on the ground that Local 2500 was not a party thereto (although the International was a party to all the Detroit and out-state contracts), and the significance of the 1984-1987 out-state contract on the ground that it does not limit the unit employees' right to be considered for promotions to nonunit jobs. In addition, Local 2500's brief claims that the grievance-arbitration provisions cover only disputes arising under the contract (citing sec. 7.01), and that there is no contract provision that gov- erns this dispute. Local 2500's brief contends that the "fair employment practices" article is inapplicable be- cause, allegedly, (a) it does not prohibit discrimination based on union activities (a contention disputed in Re- spondent's simultaneously filed brief) and (b) by its terms, it is limited to bargaining unit jobs (a contention not addressed in Respondent's brief). Neither Local 2500's brief nor the General Counsel's brief discusses whether a grievance could be predicated on the other clauses cited by Respondent. If the instant case constituted an effort by the Union and/or the Charging Parties to arbitrate a claim that Re- spondent breached the bargaining agreement by denying the Charging Parties consideration for promotion to non- unit jobs on an equal basis with nonunit employees, the arbitration and substantive contractual provisions cited by Respondent would likely call for a court decree com- pelling Respondent to arbitrate that claim without any consideration by the court of whether Respondent's con- duct constituted a prima facie contractual violation. As the Supreme Court said in AT&T Technologies v. Commu- nications Workers of America, 475 U.S. 643, 649-651 (1986): ... in deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underly- ing claims. Whether "arguable" or not, indeed even if it appears to the court to be frivolous, the union's claim that the employer has violated the collective- bargaining agreement is to be decided, not by the court asked to order arbitration, but as the parties have agreed, by the arbitrator. "The courts, there- fore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious." [Steelworkers v.] American Mfg. Co., 363 U.S. [564], at 568 (footnote omitted) [1960]. Finally, it has been established that where the contract contains an arbitration clause there is a presumption of arbitrability in the sense that "[a]n order to arbitrate the positive particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the as- serted dispute. Doubts should be resolved in favor of coverage." [Steelworkers v.] Warrior & Gulf [Navi- gation Co.], 363 U.S. [574], at 582-583 [1960]. See also Gateway Coal Co. v. Mine Workers, [414 U.S. 368] at 377-378 [1974]... . This presumption of arbitrability for labor dis- putes recognizes the greater institutional compe- tence of arbitrators in interpreting collective-bar- gaining agreements, "furthers the national labor policy of peaceful resolution of labor disputes and thus best accords with the parties' presumed objec- tives in pursuing collective bargaining." Schneider Moving & Storage Co. v. Robbins, 466 U.S. 364, 371- 372 (1984) (citation omitted). However, the question presented in the instant case is whether the foregoing contractual provisions call for prearbitration deferral of unfair labor practice allegations to the arbitral process. Determination of such an issue turns on considerations somewhat different from those presented in the AT&T class of cases. Thus, the Board's prearbitration deferral policy rests heavily on the expec- tation (wholly irrelevant in the AT&T class of cases) that the arbitrator's resolution of the contract dispute would supply the resolution of the unfair labor practice allega- tions. National Radio Co., 198 NLRB 527, 530-531 (1972).21 Accordingly, in Collyer Insulated Wire, 192 NLRB 837, 841 (1971), the Board stated, "The question of whether the Board should withhold its process arises, of course, only where a set of facts may present not only an alleged violation of the Act but also an alleged breach of the collective-bargaining agreement subject to arbitra- tion." The Board has not in the past read this language to require, as a precondition to deferral, a claim that the contract was in fact breached. Servomation Corp., 271 NLRB 1112, and cases cited at 1119 fn. 17 (1984). How- ever, in Amoco Oil Co., 278 NLRB 1, 2 (1986), the Board declined prearbitration deferral partly on the ground that the bargaining agreement (like relevant portions of the agreement here) limited arbitration to alleged violations of the agreement and the alleged conduct that the com- plaint described as a statutory violation would not have been a violation of the agreement. In the instant case, all parties agree that Respondent in fact engaged in the con- duct described in the complaint and that such conduct did not violate the agreement. Accordingly, these por- tions of Amoco call for rejection of the deferral conten- tion here. 22 20 Jesky testified that he did not believe that an agreement to this effect was part of the alleged Massaron-Cuske 1981 sidebar, and that Jesky had reached this conclusion regarding nongnevabdity , "since the money and time, through practice of rejections," but he "guessed" that he did not "know that for a fact I haven't seen anything in writing " 21 See also, infra, fn 22 22 In pre-Amoco cases, where a request for prearbitral deferral was di- rected to the Board , the Board stated, "Whether in fact the grievance is Continued BLUE CROSS BLUE SHIELD 581 Amoco rejected the deferral contention on the addi- tional ground that there (as here) no relevant grievance had been filed (278 NLRB at 2). Amoco relied on the fol- lowing language in United Technologies Corp., 268 NLRB 557, 560 fn. 17 (1984): Contrary to our dissenting colleague's assertion, the pre-arbitral deferral policy articulated herein does not constitute a waiver of employees' statutory rights nor does it "force individual employees to litigate statutory rights in a contractual forum." Nothing in this decision diminishes the right of em- ployees to seek statutory relief for alleged unfair labor practices. We simply hold that where contrac- tual grievance-arbitration procedures have been in- voked voluntarily we shall stay the exercise of the Board's processes in order to permit the parties to give full effect to those proce dures.23 Board decisions subsequent to Amoco (a case where the charging party was a union) militate against an infer- ence that the Board has significantly changed its deferral policy with respect to charges filed by unions, and also by employers, which have not chosen to file related grievances under the contractual grievance-arbitration procedure. Carpenters 46 Conference Board, (Refrigeration Design), 278 NLRB 12 (1986); Food & Commercial Work- ers, Local 88 (Dierberg's Markets), 278 NLRB 455 (1986).24 However, I know of no cases inconsistent with what I regard as the most conservative natural reading of the foregoing language from the majority opinion in United Technologies-namely, that the Board will not apply prearbitral deferral to charges filed by individual cognizable under the contract is an issue properly determinable by the arbitrator " Postal Service, 271 NLRB 1297, 1298 fn 2 (1984) In AT&T, supra, a proceeding brought in Federal district court to compel a party to a collective-bargaining agreement to arbitrate a dispute , the Supreme Court stated, " whether a collective-bargaining agreement creates a duty for the parties to arbitrate the particular grievance is [unless] the parties clearly and unmistakably provide otherwise . to be decided by the court, not the arbitrator " AT&T, supra, at 649. As previously noted, the instant agreement provides that the arbitrator is to decide issues of arbitrabdity before proceeding with the hearing or receiving evi- dence on the merits, and, if he decides that a grievance is not arbitrable, is to deny it on that basis 23 The United Technologies dissent (2613 NLRB at 561-564) took the position that the grievance-arbitration process should not be deferred to where the unfair labor practice issues concern the statutory rights of indi- vidual employees, including (as here) 8(a)(3) allegations. The dissent relied on, inter alia, Barrentine v. Arkansas-Best Freight System, 450 U S 728 (1981), and Alexander v Gardner-Denver Co, 415 U S 36 (1974), these cases held that an arbitration award adverse to an employee could not serve as a defense to the employee's lawsuit against the employer based on, respectively, the Fair Labor Standards Act and the Civil Rights Act of 1964, 42 US C §§ 2000(e) et seq Further, the dissent stated (268 NLRBat 563 fn 8) The majority erroneously states that its expansive application of Collyer [192 NLRB 837] neither waives nor even diminishes individ- ual statutory rights At the very [least] however, an individual em- ployee's right to elect the statutory forum first will be waived Moreover, because "Collyerized" cases are subject to only a limited review under Spielberg [112 NLRB 1080 ( 1955)], an individual's right to full de novo consideration of the statutory issue before the Board will also be waived 24 Cf Postal Service, 270 NLRB 979 (1984); Commercial Cartage Co, 273 NLRB 637, 638-642 (1984), Postal Service, 273 NLRB 1746, 1752 (1985), Servomation, supra at 1112 , Iron Workers (Ornamental Iron), 276 NLRB 748 (1985). employees who are asserting unlawful discrimination against themselves and with respect to whom no related grievances have been filed. Moreover, the Union's institutional interests may well afford it a motive to process these Charging Parties' claim less than wholeheartedly. As previously noted, the General Counsel resists Respondent's waiver defense on the ground, inter alia, that the employees' alleged statu- tory right to be considered for nonunit positions without regard to their inclusion in a union -represented unit cannot be effectively waived. However, the Union might be exposed to both statutory and contractual liability should the arbitrator conclude that the Union and Re- spondent entered into an agreement that purported to waive this right, and further conclude that the right is nonwaivable. It is at least arguable that by entering into an agreement that purported to waive a statutory right that is nonwaivable, the Union would breach its statuto- ry duty of fair representation. NLRB v. Magnavox Co., 415 U.S. 322, 325-326 (1974); Vaca v. Sipes, 386 U.S. 171, 177 (1967). Furthermore, section 2.04 of the bargaining agreement requires the Union "to comply with its obliga- tions under law as the exclusive bargaining agent of the company employees." Under these circumstances, the Union has a motive for failing to press all branches of the Charging Parties' case with unrestrained enthusi- asm.25 Nor would the Charging Parties appear to have an indefeasible way of supplementing or counteracting the Union's presentation of their case. The bargaining agreement affords the power to obtain arbitration of a grievance to the Union alone, and in effect empowers the Union and/or Respondent to exclude individual grievants from the grievance procedure after the first step.26 It is true that the tension between the Union's in- stitutional interests and the Charging Parties' individual interests is in the instant case less than the conflict of in- terest in at least most of the cases where such circum- stances have led the Board to refuse to defer to the arbi- tral process. However, neither can the Union's and the Charging Parties' interests be fairly described as "in sub- stantial harmony."27 It would be inconsistent with the 25 Indeed, Local 2500's conduct in connection with the instant litiga- tion suggests that it is seeking to avoid this predicament Local 2500's counsel stated at the outset of the hearing that the right was nonwaiva- ble, and further stated that Local 2500 "would be in a difficult position were it to do that because it would-in an attempt to bargain such a waiver because it would be-it might be in its own institutional interest to keep people in the bargaining unit, but I don't think the Board would hold that a union could do that " Local 2500's posthearing brief (p 2) assumes "for purposes of this brief that it could have waived its members' rights to be promoted out of the bargaining unit Whether it could do so is problematic given that the validity of such a waiver would depend on the premise of fair representation the institutional inter- ests of the Union might in these circumstances conflict with the rights of the individual members " Respondent's brief recognizes the Union's awk- ward position Thus, Respondent cites (p 20) "the fear of a fair represen- tation suit against the UAW" as a reason for asking me to discredit Inter- national Representative Massaron's testimony (see supra, sec II,C,I and infra, sec II,F,3,c) that no such waiver agreement was made. 26 By mutual agreement , grievants may attend second-step meetings and "from time to time allowed to attend and/or participate in" third- step meetings 27 See United States Steel Corp, 206 NLRB 265, 266-267 (1973) (Board will not defer where the interests of the union and the employee "are not Continued 582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD policies of the Act to permit Respondent to force the Union into an ethically compromising situation that the Union, Coffman, and Hodgson have all done their best to avoid. For the foregoing reasons, I reject Respondent's con- tention that the instant case should be deferred to the ar- bitral process, and shall consider the case on its merits. Accordingly, I find it unnecessary to pass on the General Counsel's contention that the instant case is unsuitable for deferral because of the questions presented. I do not agree with the General Counsel that as to the deferral issue, the instant case is indistinguishable from Auto Workers Local 1161 (Pfaudler Co)., 271 NLRB 1411, 1416-1417 (1984), enfd. 777 F.2d 1131 (6th Cir. 1985); the only issue there was the legality of a provision undis- putedly included in the written contract (see 777 F.2d at 1133-1134, 1140-1141).28 On the other hand, neither do I agree with Respondent's contention that as to the de- ferral issue, the instant case is indistinguishable from United Technologies Corp., supra, 268 NLRB 557, and from Postal Service, supra, 270 NLRB 979. Neither of these cases put at issue whether a statutory right could by contract be effectively waived; indeed, neither of them involved any contention that any such waiver had been attempted. My research has disclosed no case where the Board has considered whether prearbitration deferral is appropriate with respect to a dispute that (as here) involves both the question of whether the parties to a collective-bargaining contract have agreed to waive what otherwise would have been an individual employ- ee's Section 7 rights and the question of whether the al- leged agreement, if reached, would be honored by the Board. 3. Credibility issues Because of Respondent's contention that the instant case should be deferred to the contractual grievance-ar- bitration procedure, I have up to this point refrained from resolving any credibility issues presented here. See Refrigeration Design, supra at 212 ; L. E. Myers Co., 270 in 'substantial harmony' for , in the absence of such harmony, reasonable grounds exist for assuming that the employees' interests may not be ade- quately represented in the arbitral process"), National Radio, supra at 532 ("We may assume that the Union will be aware of its institutional inter- ests in protecting its officer and leading proponent against discipline which is thought to restrict his activities on the Union's behalf In that respect .. it must be noted that the interests of the employee and his representative are in substantial harmony in this case and are likely to be so in every such case in protecting [the alleged discnminatee] the Union protects itself as well and, for that reason , we see no ground to assume that [his] interests will be inadequately represented under the con- tractual procedures "), Whirlpool Corp, 216 NLRB 183 , 186 (1975) (as to individual's suspension and discharge allegedly for filing a grievance about his foreman's attitude, Board declined to defer to unexhausted grievance and arbitration procedure because only his interest was in- volved, union had no compelling incentive to rescind its abandonment of his grievance regarding his suspension and discharge, and there was strong indication that union expected to gain some advantage in contract negotiations by its abandonment of that grievance), NLRB V. Electrical Workers IBEW Local 11 (Loveall), 772 F.2d 571, 575 (9th Cir 1985). 28 The General Counsel also relies on Peerless Publications, 231 NLRB 244, 257-258 (1977), remanded on other grounds 636 F 2d 550 (D C Cir 1980) However, the issue there was not the meaning or legality of a con- tract, but was whether the formulation , promulgation, and/or enforce- ment of certain rules were mandatory subjects of collective bargaining. NLRB 1010, fn. 2 (1984); Servomation, supra, at 1113 fn. 7. However, because I have rejected that contention, it appears appropriate at this point to resolve such issues. I rely on the witnesses' demeanor and on other consider- ations set forth below. a. As to the negotiations that led up to the 1981-1984 out-state agreement, I credit employee Simpson's testi- mony that the Union's bargaining position with respect to unit employees' promotion to nonunit jobs was based on union objections to Respondent's application, to all out-state offices organized after 1974, of the letter of un- derstanding attached to in the 1974-1977 Flint contract (which letter stated that as to applying for nonunit jobs, unit employees merely had the same opportunities as ap- plicants who were not Respondent's employees). From Company Representative Meyer's testimony, I infer that during the 1981 out-state negotiations, the parties as- sumed that if the 1980-1981 management rights clause remained intact in the 1981-1984 agreement, the mere negation of the 1974-1977 letter of understanding would not afford unit employees any rights at all with respect to nonunit jobs; accordingly, I accept his testimony that this consideration contributed to the 1981 redrafting of the management rights clause. However, because the 1981-1984 and 1980-1981 out-state contracts contained identical provisions regarding the retransfer of nonunit employees into the unit, I do not accept Meyer's testimo- ny that as to this matter the 1980 discussion was repeated in 1981. b. As to the negotiations that led up to the letter of understanding in the 1984-1987 out-state agreement, I credit Simpson's testimony, substantially corroborated by Meyer, that this language was prepared by Respondent, and her testimony that it was Respondent that requested the provision that the Union could not file grievances for unit employees who were denied nonunit jobs. As to the discussion that preceded this modification, I do not credit either Meyer or Union Representative Waskin. The 1984 deletion of the words "if no other qualified employees specifically covered by [the Company's non- negotiated job-posting] policy are selected" after the word "If qualified, such [unit] employee(s) will be con- sidered" simply does not tend to counteract any employ- ee belief (testified to by Meyer) that the 1981 version "totally" barred unit employees from nonunit jobs. On the other hand, neither does this amendment reflect any alleged policy by Respondent (contrary to the policy claimed by Respondent in the instant litigation) of con- sidering all employees equally (which according to Waskin was Respondent's claim during the 1984 negotia- tions). c. As to the 1981 bargaining table Detroit negotiations regarding promotions and return of nonunit employees to unit positions, I credit Massaron and not Jesky. Jesky's testimony varied as to which party made proposals he testified about. Moreover, because the unit employees al- ready had the statutory right to equal consideration for exempt positions, I regard as somewhat unlikely Jesky's testimony that a contractual guarantee of this right was proposed as an inducement for a union agreement to BLUE CROSS BLUE SHIELD 583 afford nonunit employees the contractual right (not pro- tected by statute) to consideration for unit positions. As to the discussion between Massaron and Cuske at the sidebar conference during the 1981 negotiations re- garding the Detroit unit, I credit Massaron. In contend- ing that he should be disbelieved, Respondent's posthear- ing brief asserts that Massaron admitted knowing about Respondent's preexisting practice of preferring nonunit employees in filling nonunit jobs. However, Massaron merely testified that he knew about the provisions of the 1980-1981 out-state contract relating to the promotion of unit employees into nonunit positions and assumed this was part of the practice; as previously noted, as to pro- motions to nonunit jobs the 1980-1981 out-state contract merely provided that Respondent had the right in its sole discretion to promote employees to jobs not covered by the agreement.29 Respondent further relies on the ab- sence of any union grievance contesting Respondent's practice of preferring nonunit employees for nonunit jobs. However, Jesky (a company participant in the ne- gotiations of the 1981-1984 Detroit agreement) testified that he believed Respondent's policy to be that disputes over exempt positions were nongrievable. I note, more- over, that Massaron had no connection with that con- tract unit after 1983; and that Local 2500 has taken before me the at least defensible position that nonpromo- tion to nonunit jobs is not grievable under the 1984-1987 Detroit agreement, whose terms are in relevant part much the same as the terms of the 1981-1984 Detroit agreement. d. As to the date on which Hodgson received her re- jection notice, I find that she received it on or shortly after 23 April 1985, and that she was mistaken in giving the date of 23 May. I rely on her testimony that she showed this rejection notice to Coffman before their interview with Gibson; on her testimony, corroborated by Coffman, that their interview with Gibson about the rejection notices occurred on 30 April or 1 May; and on evidence referred to in footnote 11, supra. e. As to what Gibson did to prepare for his 30 April or 1 May conference with Coffman and Hodgson, and as to what occurred there, I find as follows: Gibson admittedly knew, several days before this meeting, that he was going to meet with these two em- ployees, and he testified that the meeting was resched- uled once. He further testified that about 15 minutes before the rescheduled meeting was to begin, he went "throughout Human Resources" to ascertain what the employees' purpose could be in seeking the interview; and was told by someone in "Human Resources," whose name he could not recall, that the two employees had re- cently been rejected for the systems liaison analyst job. Gibson credibly testified that in preparation for the inter- 29 In view of the evidence set forth in this sentence , and the contrac- tual settlement of "numerous promotion grievances filed by the Union during contract negotiations ," I also credit Massaron'; testimony that the negotiations proceeded from contract demands adopted by Local 2500's membership, and not from Respondent 's piomotion practice as shown by the terms of the 1980-1981 out-state contract For demeanor reasons, I credit Simpson's testimony, in at least partial corroboration of Massaron, that Respondent's promotion practice was not discussed during confer- ences between representatives of both units during the 1981 negotiations view, he had his secretary obtain the job posting log for the systems liaison analyst job; for the reasons indicated infra, fn. 32, I infer that the document that his secretary gave him was a photocopy of the log as it appeared im- mediately after the receptionist's last entry thereon. In addition, his secretary gave him other material from the systems liaison job file (see infra, fns. 32-33 and attached text). In view of the length of his admitted advance notice of the meeting and what he admittedly did in preparation for it, I infer this preparation took longer, and may have occurred at least partly earlier, than he testified to. When the two employees came into Gibson's office, he was sitting there with a personnel-department trainee whom the record merely identifies as "Betty." He said that he did not understand why the two employees had been "referred" to him, because this was not an affirma- tive action matter and he did not usually handle situa- tions of the type presented by them. Coffman said that her manager, Tony Orlando, had referred Gibson to her as someone who could assist her and Hodgson.30 The two employees showed him their rejection notices, which, as previously noted, contained a rubber-stamped entry attributing their rejection to "Qualified Applicant Selected in Accordance with Corporate Job Posting Policy." He said that this was the first time he had ever seen that particular type of rejection,31 and handed one or both of the rejection slips to Betty. Coffman asked him what could be done about this, and why Respondent had this "corporate job posting procedure policy." He said that it was company policy for nonbargaining unit people to be considered first for nonbargaining unit posi- tions, and that if none qualified, unit people would then be considered. Hodgson asked him if this policy was in writing. Gibson said that this policy was not in writing, but that it was company policy. Gibson then said that the union contract provided that bargaining unit people fill bargaining unit positions; and, in the same way that the Union looks out for bargaining unit people by means of this procedure, Respondent looks out for nonunit em- ployees by having them fill nonunit positions. Coffman said that she was going to school and working for her degree, and asked what someone in her position could do. He said that nonbargaining unit employees were con- sidered before bargaining unit employees for nonbargain- ing unit jobs and there really was not too much else that could be done, except that unit employees were consid- ered last for nonunit jobs. She said that she could not un- derstand why unit employees were not treated equally, if they had education and experience. He said that the 30 This finding is based on Coffman's testimony I do not credit Gib- son's testimony that the employees told him they had been sent by "em- ployee relations " Coffman's testimony that she had been referred by Or- lando is undisputed , he did not testify 31 This finding is based on Coffman's testimony Accordingly, I infer that in testifying that he ascertained the meaning of this stamped entry from a "staffing rep," Gibson was describing an incident after his inter- view with the employees I do not accept his testimony that Hodgson and Coffman (neither of whom had ever worked in the human resources department) told him when they came in that the stamped entry is used when a bargaining unit applicant is rejected for a nonunit position Nei- ther Gibson nor any other witness testified that the employees attributed this information to Couturier 584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD posted jobs required experience as well as a college edu- cation, and "you have to take a total look." Hodgson asked why only outside applicants, and not qualified ap- plicants from inside the Company, were being considered for office supervisor. He said that Respondent was look- ing for "new blood." Coffman asked how many people had applied for the system liaison position.He said 18.32 Hodgson asked how many had received the same rejections as she and Coff- man. He said 14. Hodgson asked what had happened to these applications. He said that nothing would happen to them. Coffman asked how many of the 18 applicants were unit members and how many were not unit mem- bers. He said that 14 were unit members and 4 were not.33 Coffman asked how many positions had been filled. He said four, and that all four were nonunit people. She asked if any bargaining unit people had been considered for that position. He said no, because there were four qualified nonunit people to fill it. Hodgson said that she thought what had happened was unfair. The meeting then ended. My findings in the two foregoing paragraphs are based mostly on credible parts of the employees' testimony, to which Respondent timely objected on hearsay grounds. Betty did not testify. 34 Because I do not credit Gibson's testimony that the employees told him that "employee relations" had referred them to him (see supra, fn. 30), I do not credit his related testimony that he concluded from this alleged statement that they wanted to talk to him about an affirmative action issue; that when he as- certained this was not true, he told them that he could not speak for "employee relations" as to this issue, al- though he was willing to talk to the two employees; and that toward the end of the conversation, he offered to send them "back" to employee relations. Nor do I credit his testimony, inconsistent with both employees' ac- counts of the conversation, that the bulk of their ques- tions were not related to "employee relations." 4. Whether the Detroit unit employees' statutory right to be considered for nonunit jobs on an equal basis with nonunit applicants has been effectively waived In filling the nonunit systems liaison jobs, Respondent admittedly followed its practice of giving first consider- ation to nonunit applicants and not considering unit ap- plicants unless there are no qualified nonunit applicants. All parties appear to agree that at least in the absence of an employer/union agreement providing otherwise, Re- 32 This finding is based on Coffman's and Hodgson's uncontradicted testimony As previously noted, there were in fact 22 applications Gibson testified that in specifying the number of applications, he referred to the job posting log As of the date when this log left the receptionist, she had entered the names of 18 applicants The names of the four addi- tional applicants were added by Couturier 33 This finding is based on Coffman's and Hodgson's uncontradicted testimony Of the 18 applicants listed by the receptionist (see supra, fn 32), 11 were unit members and 7 were not As previously noted, of the 22 persons who eventually applied, 14 were unit members and 8 were not 94 The evidence fails to show either that she was still working for Re- spondent at the time of the hearing , or that she was at any time a super- visor I reject the General Counsel's request for an adverse inference against Respondent because of her failure to testify spondent's practice in this respect violated Section 8(a)(1) and (3) of the Act. Service Operations System, 272 NLRB 1033 (1984); Marmon Transmotive, 219 NLRB 102, 108 (1975), enfd. in relevant part 551 F.2d 732 (6th Or. 1977); Continental Manor Nursing Home, 233 NLRB 665, 670 (1977); Central Transport, 247 NLRB 1482, 1485 (1980). Moreover, all parties agree that to be effective, any waiver of this right must be expressed clearly and unmistakably. Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 707-708 (1983); Tocco Division of Park-Ohio Indus- tries v. NLRB, 702 F.2d 624, 626 (6th Cir. 1983); Electri- cal Workers IBEW Local 1392 (Indiana & Michigan Elec- tric) V. NLRB, 786 F.2d 733, 734 (6th Cir. 1986); Suffolk Child Development Center, 277 NLRB 1345, 1349 (1985). However, the parties part company not only as to whether the union parties to the 1984-1987 Detroit con- tract effectively waived the unit members' statutory right to be considered equally with nonunit employees for nonunit jobs, but also as to the kind of evidence receiva- ble to determine the issue. The General Counsel and Local 2500 contend that the four corners of the 1984-1987 Detroit contract contain no language even resembling a waiver of the unit mem- bers' promotion rights under the Act.35 On this premise, the General Counsel and Local 2500 go on to argue that this alleged absence of ambiguity forecloses the use of any extrinsic evidence bearing on whether these rights were effectively waived. The General Counsel and Local 2500 rely on the italicized portion of the following lan- guage in Tocco Division of Park-Ohio Industries, 257 NLRB 413, 414 (1981), enfd. 702 F.2d 624 (6th Cir. 1983): The Board requires . . . that the waiver not be lightly inferred but must be "clear and unmistak- able." Such waiver may be found in express con- tract language or in unequivocal extrinsic evidence bearing upon ambiguous contractual language. [Em- phasis added, fns. omitted J36 35 Rather similarly, Respondent's counsel stated at the hearing that "there is silence in the contract on this issue " Cf infra, fn 38. 3e Park-Ohio, and many of the other cases cited here in connection with the waiver issue, involve claimed waivers of a statutory representa- tive's right to compel the employer to bargain about particular mandato- ry subjects of collective bargaining rather than (as here) a claimed waiver of a right that an individual employee is ordinarily entitled to claim per- sonally and without being required to act through his bargaining repre- sentative However, the Board relied on the Park-Ohio class of cases in considering whether the bargaining representative had effectively waived economic strikers ' statutory right to retain their relative prestrike seniori- ty notwithstanding the employer 's desire to put at the top of the seniority list the employees who worked during the strike Gem City Ready Mix Co, 270 NLRB 1260, 1261 fns 5, 6, and 7 (1984 ) Rather similarly, in considering whether the bargaining representative had effectively waived the right of employees who were union officials not to be penalized more severely than other employees for participating in an unprotected strike, the Supreme Court in Metropolitan Edison relied not only on a case in- volving claimed waiver of the right to refuse to cross a picket line, but also on cases involving claimed waiver of bargaining rights (see infra, fn 37) Wholly irrelevant to the instant case is Metropolitan Edisons' further statement that a waiver of the statutory right to strike may be implied, rather than express, because of the unique connection between arbitration and the no-strike clause (460 U S at 708 fn 12) BLUE CROSS BLUE SHIELD However, in decisions subsequent to Park-Ohio, the Board has not articulated or applied the italicized lan- guage. See, e.g., Suffolk Child Development, supra at 1349 and cases cited; Teledyne Industries, 275 NLRB 520, 524 (1985); General Tire & Rubber Co., 274 NLRB 591 (1985); Lamont's Apparel, 268 NLRB 1332, 1335-1337 (1984). See Park-Ohio, supra at 626-627. Nor was this portion of the Board's Park-Ohio standard applied by the cases cited in Metropolitan Edison, supra at 708 fn. 12, in connection with the standards for determining whether a protected right has been waived.37 See also AT&T, supra, 475 U.S. at 655 (concurring opinion) (". . be- cause the parties have submitted to us only fragmentary pieces of the bargaining history, we are not in a position properly to evaluate whether there is `the most forceful evidence' that the parties did not intend for this dispute to be arbitrable"). Accordingly, I shall consider "extrin- sic evidence" as to the waiver issue without regard to whether the 1984-1987 Detroit contract is ambiguous re- garding unit employees' right to equal consideration for nonunit jobs.38 Although the evidentiary weight of the bargaining his- tory leading up to the 1981-1984 Detroit contract may be diminished by the fact that this was not the contract in effect when the systems liaison jobs were posted and filled, Local 2500 errs in its apparent suggestion that such bargaining history is entitled to virtually no weight at all. Continental Telephone Co., 274 NLRB 1452 (1985); Emery Industries, 268 NLRB 824 (1984); see also Carbon Fuel Co. v. Mine Workers, 444 U.S. 212, 2 [9-222 (1979); Metropolitan Edison, supra at 708-709. On the other hand in relying on four out-state contracts between 1974 and 1987 and their bargaining history, Respondent errs in at- taching virtually no weight to the fact that they covered different units, in areas other than Detroit; contained lan- guage different from that in the Detroit agreements; and were agreed to by locals other than Local 2500. See Carbon Fuel, supra at 219-222; Brown Co., 278 NLRB 783, 784 (1986). On the basis of the legal principles and guidelines that I have thus found to be controlling, I find no clear and unmistakable expression of a waiver of the Detroit unit employees' statutory right to be considered for nonunit 37 Chesapeake & Potomac Telephone Co. v. NLRB, 687 F 2d 633, 636 (2d Cir 1982) (union right to receive information relevant to grievance), NLRB v Southern California Edison Co, 646 F 2d 1352, 1364 (9th Cir 1981) (employees' right to refuse to cross lawful picket line at customer's premises), Communications Workers of America Local 1051 v NLRB, 644 F 2d 923, 927 (1st Cir 1981) (union right to receive copies of documents relevant to grievance) 38 I note Respondent's claim (see supra, sec II,F,2) that the fair em- ployment practice clause constitutes a prima facie contractual guarantee of that right Cf Cotter & Co , 276 NLRB 7114, 716 (1985) The cases cited in the text foreclose the application here of certain lan- guage in Schorr Stern Food Corp, 227 NLRB 1650, 1653-1654 (1977), cited by the General Counsel ("The Board will not accept parol evi- dence to establish modification of written agreements . `under the parol evidence rule, it is presumed that all oral understandings on the same subject matter are merged in the final agreement of the parties) This principle was the basis for Schorr's refusal to entertain , as a defense to practices and contract clauses that afforded certain benefits to union members only , the contention that the union had never been recognized as the employees' sole bargaining representative even though the contract stated otherwise It is unnecessary to consider here the precise scope of this parol-evidence principle 585 jobs on an equal basis with nonunit applicants. The post sidebar remarks testified to by Jesky (supra, sec. II,C,2) do not constitute such a clear and unmistakable expres- sion even as to the 1981-1984 contract. Moreover, al- though Respondent takes the position that the Detroit unit employees' statutory rights with respect to transfer- ring to nonunit jobs were waived by the union in 1981 in exchange for preferential rights to unit employees in transferring to unit jobs, Respondent contends that this alleged 1981 waiver remained wholly effective even though the 1984-1987 Detroit contract afforded unit em- ployees less preference with respect to unit jobs than did the 1981-1984 Detroit contract, and even though there is no evidence at all that the alleged waiver was referred to during the negotiations that led up to the 1984-1987 De- troit contract in effect when Coffman and Hodgson ap- plied for the systems liaison jobs. Furthermore, on 23 May 1985, Respondent's assistant general counsel Kien- baum, in her letter requesting the NLRB Regional Office to dismiss the charges, said nothing at all about any oral agreement regarding nonunit jobs; rather, she merely stated that no contractual provision "requires the consid- eration of bargaining unit employees for non bargaining unit positions," quoted the contractual management rights clause, and stated that Respondent's preferential policy was part of the "corporate job posting proce- dure." It is true that Respondent's negotiation team did not consult with Kienbaum during the 1981-1984 Detroit negotiations; indeed, there is no evidence that she was even Respondent's counsel during the negotiation of either Detroit contract .39 However, at least some sug- gestion of afterthought in Respondent's waiver conten- tion at the October 1985 hearing (where Respondent's then counsel-not Kienbaum-stated that "there is si- lence in the contract on this issue") is conveyed by Kien- baum's May 1985 failure to mention any such alleged oral agreement after she had been advised that Respond- ent's admitted promotion policy was being challenged in an adversary legal proceeding before a Federal agency, and after she had had an opportunity to consult with Re- spondent's management and the rest of its legal staff in framing her reply. Nor are these insufficiencies cured by any absence of union grievances regarding Respondent's implementation of its preferential practice as to nonunit jobs. There is virtually no evidence that the International, Local 2500, or any of its sister locals knew, before the institution of the instant proceedings, that Respondent was following this practice as to the Detroit unit .40 See Suffolk Child 39 However, courtesy copies of Kienbaum's letters were sent to Em- ployee Relations Representative Marie B Jerke, who signed the 1984- 1987 Detroit contract on Respondent's behalf 40 Couturier testified in October 1985 that from the fact that the system had been followed for the past 5 years, he inferred that the UAW knew that Respondent was giving lower priority to bargaining unit mem- bers However, although employee Hodgson had started working in the Detroit unit before 1981, and had applied (on undisclosed dates) for about eight exempt jobs before seeking the systems liaison job, she did not know about Respondent's preferential practice until April 1985, when Couturier described it to her as the reason for Respondent's refusal to consider her for the systems liaison job 586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Development, supra at 1349. It is true that some repre- sentatives of the International must have known, at least until 1984, that as to nonunit jobs Respondent was fol- lowing various promotion policies that discriminated against employees represented by the out-state locals. However, particularly in view of the evidence that union representatives believed the 1974-1981 policy precluded such out-state employees from being considered for such jobs at all,41 the union representatives ' knowledge about 1974-1984 out-state practices does not show knowledge that since 1981, Respondent had been preferring nonunit applicants to applicants in the Detroit unit. Moreover, Jesky, who participated in the 1981 Detroit negotiations when a waiver was allegedly agreed to , testified that Re- spondent's exercise of its preferential practice is a non- grievable matter-the position also taken by Local 2500 (although not Respondent) in the instant proceeding. See Suffolk Child Development, supra at 1351 fn. 10. I attach virtually no significance to the fact that there is little evidence as to any out-state grievances, and no evidence that any were filed except under the 1978-1981 out-state contracts regarding promotions into nonunit jobs. As both Meyer and Simpson testified, the 1984- 1987 out-state contract provides in terms that such issues are not subject to the grievance procedure. Moreover, as to nonunit jobs, the addendum to the 1974- 1977 out-state (Flint) contract equated the rights of unit members with those of nonemployees; Respondent took the position that this addendum to the 1974-1977 Flint contract was applicable to all the out-state employees covered by the 1978-1981 contracts; and as to nonunit jobs the 1981- 1984 letter of understanding calls for consideration of "qualified" unit applicants "if no other qualified employ- ees specifically covered by [Respondent's `nonnegotiated job posting policy'] are selected." In short, such con- tracts furnished at least an arguable basis for the claim that they contain a clear and unmistakable expression of a waiver of the out-state employees ' statutory rights with respect to promotion to nonunit jobs. My conclusion that there has been no clear and unmis- takable expression of waiver as to the Detroit unit gains further support from Hodgson's and Coffman's uncontra- dicted and credible testimony about affirmative -action coordinator Gibson's explanation of why Respondent had its "corporate job posting procedure policy" of pre- ferring nonunit employees for nonunit jobs. Gibson said nothing at all about any union agreement to this policy. Rather, Gibson said that this was a "company policy" followed by Respondent in response to the Union's having obtained in the bargaining agreement a preference to unit employees in filling unit jobs. Manifestly, a policy adopted by Respondent in response to a clause included in the written agreement at the Union's behest cannot fairly be described as proceeding from any clear and un- mistakable expression of waiver by the Union. Although Respondent timely objected on hearsay grounds to Hodgson's and Coffman's testimony about what Gibson had told them, his explanations of why Re- spondent was following its preferential "corporate post- ing policy" do not constitute hearsay under the Federal Rules of Evidence. Thus, when Coffman told the manag- er of the direct billing department (a second-level super- visor) that she wanted to resolve "inside the Company" her "discrimination" problem about not being considered for promotion outside the bargaining unit, it was Gibson to whom her manager referred her. Moreover, from Gib- son's testimony that inquiries of this nature are usually handled by "employee relations," his further testimony that he tries to help out "employee relations" personnel if they are unavailable or busy, and the credible evidence that the employees had been told to talk to him and had never been referred to "employee relations," I infer that "employee relations" had delegated to Gibson the au- thority of "employee relations" to discuss with the two claimants their failure to be considered for the systems liaison jobs; and that Gibson was untruthful in testifying that "employee relations" did not ask him to talk to Coffman and Hodgson. Further, Gibson is admittedly a supervisor within the meaning of the Act. Accordingly, I find that the employees' testimony about Gibson's re- marks on this occasion is receivable to show the truth of his remarks about why management believed that it was justified in applying the policy that had excluded the em- ployees from consideration for such jobs. See Rule 801 (d)(2),(C),(D) of the Federal Rules of Evidence Baugh- man v. Cooper-Jarrett, Inc., 530 F.2d 529, 532 (3d Cir. 1976), cert. denied 429 U.S. 825 (1976); Miles v. M.N.C. Corp., 750 F.2d 867, 873-875 (11th Cir. 1985); U.S. v. Diez, 515 F.2d 892, 896 fn. 4 (5th Cir. 1975); United Beef Co., 277 NLRB 1014, 1026-1027 (1985). However, the question remains as to the weight to be accorded to Gibson's remarks, particularly because of his demonstrable errors in describing to Hodgson and Coff- man the number of applicants, and the number of non- unit applicants, for the systems liaison analyst job.42 Al- though these errors show that he had little or no person- al knowledge about the specifics of how this particular job had been filled, and either was misreading Respond- ent's records for that job or had an incomplete set of records, I conclude that he knew why Respondent fol- lowed its preferential policy with respect to filling non- unit jobs generally. Thus, as to how he knew about that policy, he testified that when all qualified "protected group" applicants (e.g., blacks) for such jobs were unit employees, discus- sions about whether to continue preferring nonunit appli- cants are conducted between him and "staffing represent- atives," who are directly responsible for administering that policy. Gibson participates in making such decisions because, as coordinator of affirmative action and equal employment opportunity programs, he develops, imple- ments, and monitors Respondent's affirmative action compliance plan under Executive Order 11246 on Non- discrimination under Federal Contracts (Bureau of Na- 41 This is shown by Simpson's testimony about the grievances filed under the 1978-1981 out-state contracts, by her and Meyer's testimony about the 1981 out-state negotiations , by Meyer's testimony about the union interpretation of the 1980-1981 out-state contract, and by the literal language of the 1974- 1977 and 1980-1981 out-state contracts 42 Because the complaint does not allege that any remarks by Gibson constituted a statutory violation by Respondent , I perceive no relevance to the General Counsel's contention that an employee could reasonably believe that Gibson was speaking on Respondent's behalf BLUE CROSS BLUE SHIELD tional Affairs, Fair Employment Practice Manual, 401: 601-607), which forbids discrimination by government contractors on the basis of race, color, religion, sex, or national origin with respect to, among other things, up- grading, recruitment, and selection for training; as previ- ously noted, Respondent contends (supra, sec. II,F,2) that the portion of the collective-bargaining agreement that forbids discrimination for such reasons as to bargain- ing unit jobs also facially prohibits discrimination with respect to unit and nonunit jobs based on union consider- ations.43 Moreover, Gibson apparently also performs some duties in connection with judicially ordered affirm- ative-action plans, approved by the Federal Government, regarding females, minorities, handicapped persons, Viet- nam-era veterans, and others; grievances involving al- leged noncompliance with such plans as to filling bar- gaining unit jobs can be filed at Step 3 of the grievance procedure. On request, Gibson can obtain, from the exempt-personnel department, job posting logs for exempt jobs. It is true that Gibson has no role in the process of direct negotiations with the Union, either at contract time or in designated steps of the grievance pro- cedure. However, Gibson's immediate supervisor, James 0. Cook (Respondent's "vice president, human re- sources"), who is also in charge of the exempt-personnel department where such "staffing representatives" work, is in charge of labor relations and signed, on Respond- ent's behalf, both the 1981-1984 and 1984-1987 bargain- ing agreements with respect to the Detroit unit. As pre- viously noted, as to Respondent's preferential policy both "employee relations" and the manager of the direct billing department regarded Gibson as sufficiently knowledgeable to serve as company spokesman to em- ployees who were complaining about it as unfair and a form of discrimination. Indeed, Couturier testified that as to the systems liaison jobs, Gibson's office set a require- ment that at least two of them be filled by minority ap- plicants, and denied line management's request for a waiver as to one of these two vacancies. In view of the foregoing sources available to Gibson about manage- ment's believed justification for its preferential policy, I give weight to his representations about this matter to Hodgson and Coffman. In view of my finding that the Detroit unit employees' statutory right to be considered for nonlinit jobs on an equal basis with nonbargaining unit employees has not been effectively waived, I need not and do not consider the General Counsel's contention that such a right is nonwaivable. For the foregoing reasons, I find that Respondent vio- lated Section 8(a)(l) and (3) of the Act by admittedly failing and refusing, because the employees in the unit represented by Local 2500 are union represented, to con- sider Coffman, Hodgson, and any other applicants em- ployed in that unit, on an equal basis with nonbargaining unit employees for the position of systems liaison analyst. 43 However, Gibson testified that in his capacity as affirmative action coordinator, he is not involved in any union or nonunion issues or labor relations issues as they relate to unions CONCLUSIONS OF LAW 587 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 2500 is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has violated Section 8(a)(1) and (3) of the Act by failing and refusing, because the employees in the unit represented by Local 2500 are union represent- ed, to consider Joanne Coffman, Patti L. Hodgson, and any other applicants employed in that unit, on an equal basis with nonbargaining unit employees for the position of systems liaison analyst. 4. The foregoing unfair labor practice affects com- merce within the meaning of the Act. THE REMEDY Having found that Respondent has violated the Act in certain respects, I shall recommend that Respondent be required to cease and desist from such conduct, and like or related conduct, and to take certain affirmative action to effectuate the policies of the Act. As previously noted, the General Counsel stated at the outset of the hearing that he was contending that Hodg- son, Coffman, and other employees in the bargaining unit represented by Local 2500, were discriminated against by being denied equal consideration for the systems liaison analyst position. Moreover, Respondent has throughout these proceedings contended that Hodgson and Coffman were denied consideration for this job pursuant to a policy that applied to all members of the unit represented by Local 2500 (and, indeed, to all union-represented em- ployees). Accordingly, I believe Respondent to be suffi- ciently on notice that it may be required to afford relief to members of Local 2500's bargaining unit in addition to Hodgson and Coffman, even though the complaint itself alleged discrimination against them alone and the prayer for relief requested an order requiring Respondent to make Coffman and Hodgson whole "for any loss of wages or other benefits due to Respondent's failure to properly consider them for the Liaison Analysts position until such time as Respondent reposts the position and completes its nondiscriminatory administration of the posting and selection process . . . It is further prayed that the Order provide for any and all other relief appro- priate herein." Harvard Folding Box Co., 273 NLRB 1031, 1031-1032 (1984); Nabco Corp., 266 NLRB 687 fn. 1 (1983). Accordingly, Respondent will be required to consider Coffman, Hodgson, and any other members of the unit represented by Local 2500 who applied for the systems liaison job posted on 6 February 1985, together with all other applicants for that job pursuant to that posting, without regard to whether the applicants were represent- ed by Local 2500. Further, Respondent will be required to offer jobs as systems liaison analysts to all applicants who were represented by Local 2500 and would have been offered such jobs but for Respondent's failure to consider such applicants on an equal basis, with the se- niority and any other rights and privileges they would have enjoyed if they had been hired for such positions, 588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD or, if those positions no longer exist, substantially equiva- lent positions, dismissing, if necessary, any and all per- sons hired to fill such positions pursuant to that posting or thereafter. Respondent will also be required to make whole for any losses they may have suffered all employ- ees represented by Local 2500 whom, pursuant to the 6 February 1985 posting, it would have transferred to the position of systems liaison analyst but for its unlawful discrimination against them. Spencer Foods, 268 NLRB 1483, 1485-1487 (1984), remanded in relevant part sub nom. Food & Commercial Workers Local 152 (Spencer Foods), 768 F.2d 1463, 1476-1477 (D.C. Cir. 1985); Conti- nental Manor, supra, 233 NLRB at 670, 677-678; cf. Serv- ice Operations, supra, 272 NLRB 1033; Inland Container Corp., 275 NLRB 378 (1985); Packing House Services v. NLRB, 590 F.2d 688, 697-698 (8th Cir. 1978), and cases cited. Backpay shall be computed in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). 44 In addition, as to all applicants initially denied consideration for such jobs because of their representation by Local 2500, Respondent will be required to remove from their files any reference to such action, and notify them in writing that this has been done. See Sterling Sugars, 261 NLRB 472 (1982). I find no merit in Respondent's contention that Hodg- son and Coffman should at this point in the proceeding be denied affirmative relief because the record allegedly shows that they did not meet the essential requirements for the systems liaison analyst positions. Thus, successful applicant Dipace (who according to Couturier was suc- cessfully performing the duties of systems liaison analyst trainee) may have possessed the essential qualifications for the job only if 2 years of her service as a unit leader constituted supervisory or analytic experience. Accord- ingly, Coffman's 7 years and 10 months as a unit leader would at least arguably show 2 years of supervisory or analytic experience, the only deficiency cited by Couturi- er as to her. Further, Couturier testified at one point that the same work experience could be used for both the education criteria and the previous work experience cri- teria. Accordingly, his testimony that service as a unit leader would at least arguably show supervisory or ana- lytic experience means that Hodgson's more than 4 years' experience as a unit leader in direct billing at least arguably met the education criterion (4 years as supervi- sor or analyst, as a substitute for 2 years of college) and work experience (more than 4 years in Respondent's employ, with 2 years as supervisor or analyst). Indeed, although it is difficult to determine from the record evi- dence (which includes relevant documents that are hard to read) whether all the other seven nonunit applicants (who were all interviewed for the job) had the essential requirements for the position, the record suggests that at least Kidd and Hadacz may not have so qualified. More- over, the interview form for successful candidate Hill has (like the form for successful candidate Dipace) a check- mark before the printed words "Candidate selected has" and, after that, has the handwritten entry, "The candi- dates selected are more knowledgeable in experience re- 44 See generally Isis Plumbing Co, 138 NLRB 716 (1962) quirement (a broader knowledge of system develop- ment)."45 These entries suggest that Dipace and Hill may have been initially rejected . The seeming inconsist- encies between Couturier's testimony and Respondent's records can be disposed of at the compliance stage. Couturier testified that under Respondent's affirmative action plan, two of the four vacant systems liaison ana- lyst jobs had to be filled by minority candidates, who for purposes material here did not include Hodgson or Coff- man.46 He further testified, with some support from Gibson and from Respondent's records, that Respond- ent's equal employment opportunity office rejected the line department's request to waive the affirmative action benchmark as to one of the two systems liaison jobs to which it applied; Couturier's testimony and Respondent's records indicate that the requested waiver involved the vacancy eventually filled by minority candidate Hill. The General Counsel seems to contend that as to the relief to which Coffman and Hodgson are entitled, this evidence is irrelevant because affirmative action considerations were neither mentioned to them when they asked the reasons for their rejection, nor set forth by Kienbaum in Respondent's statement of position , nor referred to in the evaluation forms for the unsuccessful applicants who were interviewed. Gibson's testimony about manage- ment's conferences in connection with filling job vacan- cies shows that management's decisions sometimes in- volved adjustments between affirmative action consider- ations and the preferential policy here found unlawful with respect to Local 2500's unit. I shall leave to the compliance stage the effect (if any) of Respondent's Feb- ruary-May 1985 affirmative action program on the identi- ty of the employees entitled to affirmative relief under the recommended Order. Harvard Folding Box, supra, 273 NLRB 1031. The General Counsel's brief asks me to include in my recommended Order certain provisions that he describes, and which will be referred to here, as a visitatorial clause. The requested provision reads as follows: For the purpose of determining or securing compli- ance with this Order, the Board, or any of its duly authorized representatives, may obtain discovery from the Respondent, its officers, agents, successors or assigns, or any other person having knowledge concerning any compliance matter, in the manner provided by Federal Rules of Civil Procedure. Such discovery shall be conducted under the supervision of the United States Court of Appeals enforcing this Order and may be had upon any matter reasonably related to compliance with this Order, as enforced by the Court. The prayer for relief set forth in the complaint asks that "the Order provide for any and all other relief ap- propriate herein," but does not specify a visitatorial 45 The application form filled out by Hill herself states that her college major was "Psychlgy" (sic). 46 Both of them appeared to be Caucasian. According to Couturier, their sex would not render them minority candidates for this particular position BLUE CROSS BLUE SHIELD 589 clause. Nor did the General Counsel request such a clause at any time before filing his brief in December 1985.44 Respondent's December 1985 opposition to the General Counsel's motion (included in its December 1985 brief) for leave to amend the complaint (see supra, sec. II,F,I) includes a footnote seeking denial of the visi- tatorial provision on the ground that the request therefor goes beyond the pleadings and gains no support in the record facts, and that "The General Counsel has merely made abstract and factually unsupported legal arguments that do not apply here." However, Respondent neither alleges that earlier notice of this request would have caused it to put in different or additional evidence, nor requests an opportunity to adduce additional evidence, nor specifies why the General Counsel's arguments are allegedly inapplicable to the instant case (cf infra, fn. 48). Accordingly, the request for a visitatorial clause will be considered on its merits. See Nabco Corp., supra, 266 NLRB 687 fn. 1. To the extent that the visitatorial clause is directed to those persons identified in the order (namely, the Re- spondent, its officers, agents, successors, or assigns), the Board's power to include such a provision in its order seems clear. US v. Grinnell Corp., 384 U.S. 563, 579 (1966) ("a relief commonly granted for the purpose of determining whether a defendant has complied with an antitrust decree . . . [an] important and customary . . . provision"); US v Bausch & Lomb Co., 321 U.S. 707, 725-728 (1944); NLRB v. Steineifilm, Inc., 702 F.2d 14, 15, 17 (1st Cir. 1983); Nassau & Suffolk Contractors Assn. v. NLRB, 321 F.2d 130, 138 (2d Cir. 1963); Turnbull Cone Baking Co., 271 NLRB 1320, 1360 (1984), enfd. 778 F.2d 292 (6th Cir. 1985); F. W. Woolworth Co., 90 NLRB 289, 294 (1950); Smyth Mfg. Co., 277 NLRB 680, 683 (1985). Neither these cases, nor the others cited in the General Counsel's brief, address the Board's power to issue an order affording itself the right to obtain "discovery [from] any other person [not otherwise identified in the order or a party to the proceeding] having knowledge concerning any compliance matter." Rather, the General Counsel's brief relies on Rule 69 of the Federal Rules of Civil Procedure, which states, "In aid of the judgment or execution, the judgment creditor . . . may obtain discov- ery from any person, including the judgment debtor, in the manner provided in these rules. . . ." In interpreting this provision, the courts have held that the foregoing language does afford a judgment creditor certain discov- ery rights against third parties, but that such rights are not unlimited. Thus, it has been held that a judgment creditor must make at least some showing of an alter ego relationship before Rule 69 empowers him to require re- sponses to interrogatories directed at alleged alter egos of the judgment debtor. Strick Corp. v. Thai Teak Prod- ucts Co., 493 Fed. Supp. 1210, 1217-1218 (E.D. Pa. 1980). Rather similarly, where a third party was required to produce (pursuant to discovery proceedings) a settle- ment agreement with the judgment debtor, the judgment creditor had shown that the relationship between the third party and the judgment debtor (namely, their con- trol by the same individual) raised reasonable doubts about whether the transfer of assets pursuant to the set- tlement agreement was bona fide or was intended to strip the judgment debtor of any assets that might satisfy the judgment. Magnaleasing, Inc. v. Staten Island Mall, 76 F.R.D. 559 (D.C. N.Y. 1977). See also Caisson Corp. v. County West Bldg. Corp., 62 F.R.D. 331 (D.C. Pa. 1974); Hartmann v. U.S., 79 F.R.D. 705 (D.C. Wis. 1978). How- ever, substantially this kind of limitation is imposed by the language in the proposed visitatorial clause that such discovery "may be had upon any matter reasonably re- lated to compliance with this Order." Accordingly, I conclude that Rule 69 supports the Board's power to in- clude in the visitatorial provision the foregoing language with respect to third parties. See Regal Knitwear Co. v. NLRB, 324 U.S. 9 (1944). In attempting to show that exercise of the Board's power to issue such an order would effectuate the poli- cies of the Act, the General Counsel alleges that in polic- ing enforcement with court enforced Board orders, the Regional Offices are often unable to obtain sufficient co- operation from respondents to enable these offices to de- termine with certainty whether compliance is possible or has been achieved. By way of specific example, the Gen- eral Counsel asserts that respondents frequently fail to furnish documentation sufficient to enable the Regional Office to fully verify a claim that the respondents are unable to comply with orders requiring money payments; and that named respondents and nonparties to a Board proceeding often, by failing to cooperate with the Re- gional Office, prevent it from ascertaining whether the nonparties are liable for noncompliance, in whole or in part, as alter egos, disguised continuances, or successors (bona fide or otherwise). On the basis of these represen- tations as to the agency's cumulative institutional experi- ence, I find that the absence from previously issued Board orders of provisions that empower the regional of- fices to compel the submission of certain kinds of infor- mation has with significant frequency rendered the re- gional offices unable to make a fully informed judgment about whether Board orders have been complied with to the extent possible.48 47 On 23 September 1985, General Counsel Rosemary Collyer issued, and released to the general public, a memorandum instructing all Region- al Directors to seek inclusion of this clause in all of the Board's remedial orders. Further, she directed that because such clauses had not been rou- tinely sought in the past, the complaint should in all cases contain a sepa- rate prayer for the inclusion of such a clause in the Order The General Counsel's Memorandum 85-5 on Visitatorial Clauses, 120 LRR 137 Al- though the instant complaint was issued in June 1985, before the issuance of this memorandum, the hearing did not begin until 7 October 1985, about 2 weeks after the memorandum issued The above-cited issue of the Labor Relations Reporter is dated 14 October 1985, 5 days after the close of the instant hearing. 48 Cf NLRB v Seven-Up Bottling Co, 344 U S 344, 346-350 (1953); Isis Plumbing Co, 138 NLRB 716, 720 (1962), enf denied on other grounds 322 F 2d 913 (9th Cir 1963), Philip Carey Mfg. Co. v NLRB, 331 F 2d 720, 729-731 (6th Cir 1964), cert denied 379 U S 888 (1964). The instant request for a visitatonal clause is not based on any special circum- stances in the instant case but, rather, is part of the General Counsel's effort to induce the Board to include such clauses in all remedial orders as a matter of uniform policy In such a situation , although for procedur- al reasons representations about agency experience must in the first in- stance be made and disposed of by the administrative law judge in each Continued 590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As the General Counsel's brief rightly assumes (with- out quite saying so in terms), after the issuance of a Board order, effectuation of the statutory policy calls for initiating ancillary proceedings when, and only when, such proceedings are warranted by the facts. The Agen- cy's decision about whether to initiate such proceedings is, perhaps, most significant where the Board's order has been enforced by a court of appeals and the relief sought would be an adjudication in contempt on the basis of clear and convincing evidence; an erroneous decision not to proceed may permit a repetition of conduct that vio- lated both the Act and the court's judgment, whereas an erroneous decision to proceed not only will require all parties to suffer the time and expense of fruitless litiga- tion, but also may cause the loss of tax money through payments made under statutes such as the Equal Access to Justice Act (28 U.S.C. § 2412). As to such contempt or other ancillary proceedings, the Regional Offices' abil- ity to make an informed judgment about whether to initi- ate them would be substantially improved by the access specified in the proposed visitatorial clause. Further, I am persuaded by the General Counsel's argument that a sufficient equivalent for the visitatorial clause is not pro- vided by Section 11 of the National Labor Relations Act, which affords the Board power under certain cir- cumstances to issue subpoenas enforceable by the Feder- al District Courts. As the General Counsel points out, whether the Board's power under Section 11 routinely extends to a compliance-stage inquiry about whether to institute contempt or other ancillary proceedings in the court of appeals, it is more appropriate that any judicial- ly supervised discovery be conducted under the aegis of the court that has sole jurisdiction to conduct a proceed- ing to determine whether its own judgment has been complied with. Cf. NLRB v. Warren Co., 350 U.S. 107, 112 (1955).49 Furthermore, and whether or not a Board order without a visitatorial clause would be regarded by the enforcing court of appeals as affording discovery powers to the Regional Office,50 the inclusion of such a clause would unequivocally afford such powers and sub- ject them to the court of appeals' supervision. Steiner- film, supra, 702 F.2d at 15, 17. Finally, I agree with the General Counsel that the visi- tatorial clause does not work any undue hardship on either respondents or others who may be subjected to it. case where such a clause is requested and before a definitive Board ruling about whether to include it as standard practice , little significance at- taches to the opinion of any individual judge in any individual case about the frequency and seriousness of the problem allegedly addressed See Universal Camera Corp. v. NLRB, 340 U.S 474, 496-497 (1951) 49 As to a subpoena issued under Sec 11, whether that court of ap- peals played any role at all would depend on whether the district court's judgment was appealed, and (even then) on whether the district court's jurisdiction fell within the jurisdiction of the court of appeals that en- forced the Board's order See Secs 10(e) and (I) and 11(2) of the Act, NLRB v General Electric Corp, 418 F 2d 736, 739 (2d Cir 1969), cert denied 397 U S 965 (1970), J. P. Stevens Co v NLRB, 388 F 2d 892 (4th Cir 1967), NLRB v B. V D Co., 225 F 2d 923 (DC Cir 1955). More- over, as the General Counsel points out, the procedure called for by Sec 11, under which an appeal from the district court's determination may be taken as a matter of right, may lead to a good deal of delay in obtaining information called for by a subpoena issued under that section ss Compare NLRB v Dixon, 189 172d 38, 39 (8th Cir 1951), with NLRB v Deena Artware, 251 F 2d 183 (6th Cir 1958) (then Circuit Judge Potter Stewart dissenting) Even as to those who are neither identified in the order (as respondent and his officers, agents, successors, and assigns) nor their alleged privies or abettors, the pro- posed visitatorial clause merely subjects them to the same discovery as does Rule 69, FRCP, after a district court judgment has been entered. Moreover, as to those who are so identified or are alleged to be their privies or abettors, the proposed visitatorial clause subjects them to the same discovery to which parties to civil litigation are subjected as a matter of course, and to which both the Board and a respondent are routinely exposed once con- tempt proceedings are initiated in the court of appeals. Surely, because the very reason for the issuance of the order was to remedy the respondent's violation of the Act, it is fair to require him to provide through discov- ery any evidence he may have in support of a claim that compliance is impossible or has already been accom- plished. Indeed, the proposed visitatorial clause may ben- efit a respondent, where evidence obtained by the Agency under the discovery procedure was not in fact within the respondent's control and such evidence obvi- ates further proceedings by persuading agency investiga- tors that the respondent has complied with the order to the extent that he is able to do so. For the foregoing reasons, I shall include in my rec- ommended Order a visitatorial provision substantially the same as that requested by the General Counsel, but with some minor changes to cover ancillary, noncontempt proceedings in the event that judicial enforcement of the Order is never sought. Respondent will also be required to post appropriate notices. On these findings of fact and conclusions of law and or the entire record, I issue the following recommend- ed5l ORDER The Respondent, Blue Cross Blue Shield of Michigan, Detroit, Michigan, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discouraging membership in or activities on behalf of Local 2500, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, by failing and refusing to consider, on an equal basis with employees not included in a unit rep- resented by a labor organization, employees in a unit rep- resented by Local 2500 for transfer to jobs not included in a unit represented by a labor organization. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Consider for the systems liaison analyst job posted on 6 February 1985 Joanne Coffman, Patti L. Hodgson, 51 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 BLUE CROSS BLUE SHIELD and any other members of the unit represented by Local 2500 who applied for that job, together with all other persons who applied for that job, without regard to whether the applicants were in the unit represented by Local 2500. (b) Offer jobs as systems liaison analysts to all appli- cants pursuant to that posting who were represented by Local 2500 and would have been offered such jobs but for Respondent's failure to consider such applicants on an equal basis, with the seniority and other rights and privileges they would have enjoyed if they had been transferred to such positions or, if those positions no longer exist, substantially equivalent positions, dismissing, if necessary, any and all persons transferred into such po- sitions pursuant to that posting or thereafter. (c) Make whole, in the manner set forth in the remedy section above, those employees the Respondent would have transferred to systems liaison jobs but for its unlaw- ful discrimination, for any losses they may have suffered by reason of the discrimination against them. (d) As to all applicants (including but not limited to Coffman and Hodgson) initially denied consideration for such jobs because of their representation by Local 2500, remove from their files any reference to such action, and notify them in writing that this has been done. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (f) Post at its facilities in Detroit, Michigan, copies of the attached notice marked "Appendix."52 CQpies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 68 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 591 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 discourage membership in or activities on behalf of Local 2500, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, by failing and refusing to consider, on an equal basis with employees not included in a union represented unit, employees in a unit repre- sented by Local 2500 for transfer to jobs not included in a union-represented unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL consider for the systems liaison analyst job posted on 6 February 1985 Joanne Coffman, Patti L. Hodgson, and any other members of the unit represented by Local 2500 who applied for that job, together with all other persons who applied for that job, without regard to whether the applicants were in the unit represented by Local 2500. WE WILL offer jobs as systems liaison analyst to all ap- plicants who were represented by Local 2500 and would have been offered such jobs pursuant to the 6 February 1985 posting but for our failure to consider such appli- cants on an equal basis, with the seniority and other rights and privileges they would have enjoyed if they had been transferred to such positions, or, if those posi- tions no longer exist, substantially equivalent positions dismissing, if necessary, any and all persons transferred into such positions pursuant to that posting or thereafter. WE WILL make whole, with interest, those employees we would have transferred to systems liaison jobs but for our unlawful discrimination, for any losses they may have suffered by reason of the discrimination against them. WE WILL remove from the files of Coffman, Hodgson, and all other applicants initially denied consideration for the systems liaison analyst jobs because of their represen- tation by Local 2500, any reference to such action, and notify them in writing that this has been done. BLUE CROSS BLUE SHIELD OF MICHIGAN