United Press International

UNITED PRESS INTERNATIONAL 309 United Press International and United Telegraph work and to employ some former unit employees Workers Division 47, AFL-CIO. Case 2-CA- in these new nonunit jobs, the Union waived any 21016 right it had to bargain over the Respondent's ac- June 22, 1988 tions here. The Union clearly believed it had waived its right to bargain on this point because it DECISION AND ORDER never requested any further bargaining over this BY CHAIRMAN STEPHENS AND MEMBERS issue after the November negotiations. Moreover, it BABSON AND CRACRAFr waited until late May 1985 to make any further protests about the assignment of unit work, when it On December 18, 1986, Administrative Law merely filed a grievance under the current con- Judge Eleanor MacDonald issued the attached de- tract. cision. The General Counsel filed exceptions and a 2. We also agree with the judge's conclusion that supporting brief, and the Respondent filed cross-ex- the Respondent did not violate Section 8(a)(3) and ceptions and a supporting and answering brief. (1) of the Act. In adopting this dismissal, however, The National Labor Relations Board has delegat- we find it unnecessary to rely on the judge's ed its authority in this proceeding to a three- waiver rationale, because we find the General member panel. Counsel has not established that any discrimination The Board has considered the decision and the based on union membership or activity occurred in record in light of the exceptions' and briefs and the unique circumstances of this case. The General has decided to affirm the judge's rulings, findings, Counsel argues that, by offering some laid-off unit and conclusions and to adopt the recommended employees the opportunity to continue working in Order. the new nonunit jobs, the Respondent was condi- 1. We agree with the judge that the bargaining tioning their employment on the abandonment of history in this case shows that the Union knew the union membership and thus violated Section 8(a)(3) Respondent planned to create new nonunit jobs and (1) of the Act. There is no evidence, however, with duties similar to those performed by unit em- that the Respondent asked the former unit employ- ployees when it agreed to broad contract language ees to give up their membership in the Union or in permitting the Respondent to eliminate all unit any other way conditioned their continuing em- jobs, to transfer unit work to other employees or ployment on the abandonment of union member- locations, and to determine what work the unit and ship. Nor is there any evidence that the Respond- nonunit employees would perform. Thus, we note ent selected particular unit employees for layoff that the entire contract package, including this based on their status as union members or their ac- broad language allowing the Respondent total dis- tivities on behalf of the Union or that the Respond- cretion over the assignment of work and over the ent decided which unit employees to offer the new elimination of unit jobs, was not ratified by the Union's members until November 1984, after the nonunit jobs based on their lack of union member- Al- Respondent Respondent had posted the new jobs for bidding though ship or the their lack of Respondent did support for eliminate the all Union. the unit after the November bargaining sessions where the parties had discussed the nonunit status of these jobs, it only did this after reaching an agreement with the Union specifically allowing it to abolish new jobs. Further, the bargaining history also the unit. The Union deemed it advantageous for shows that the Union knew before the contract was presented to its members for ratification that the employees to make this agreement in return for immediate wage increases and generous severance the Respondent planned to offer unit employees the benefits when the layoffs occurred, because the Re- opportunity to bid on these new nonunit jobs. spondent's financial condition was so poor it Thus, Union General Counsel Groner admitted that during the November negotiations the Union seemed likely that the Respondent would close and had asked whether its members could bid on the thus the employees would lose their jobs anyway. new jobs and that the Respondent had said they The employees apparently agreed that they were could. By agreeing to such broad contract lan- better off with some guaranteed benefits in hand guage when it knew of the Respondent's plans to now than with the chance of continuing in their current jobs, because they ratified the Union's create new nonunit jobs encompassing some unit agreement. The fact that the Respondent was able In its cross-exceptions, the Respondent contends that the complaint to continue operations after the unit was eliminated here should be dismissed because certain allegations are barred by Sec does not make the Union's judgment in agreeing to 10(b) of the Act and because the General Counsel should not be permit- the loss of the unit any less valid. Moreover, both ted to rehtigate issues previously raised in a related 8(a)(5) charge that was dismissed on the merits As we are dismissing the complaint in this the Union and the unit employees knew of the Re- case, we find it unnecessary to pass on these procedural issues spondent's plans to create the new nonunit jobs and 289 NLRB No. 46 310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to employ some former unit employees in these new nonunit jobs when they agreed to the elimina- tion of the unit. In view of these unusual circum- stances, we find that the Respondent's offer to hire some former unit employees into the newly created nonunit jobs does not establish that it was discrimi- nating against employees because of their union membership or activity. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. David Pollack, Esq., for the General Counsel. Thomas O. McCarthy, Esq. and Alan L Berger, Esq. (McMahon, Berger, Hanna, Linihan, Cody & McCar- thy), of St. Louis, Missouri, for the Respondent. DECISION STATEMENT OF THE CASE ELEANOR MACDONALD, Administrative Law Judge. This case was tried in New York, New York, on 5 and 6 March 1986. The complaint alleges that United Press International (Respondent), in violation of Section 8(a)(1), (3), and (5) of the Act, has laid off its employees, hired employees in a newly created job classification, failed to apply the collective-bargaining agreement to the new employees, failed to offer United Telegraph Work- ers Division 47, AFL-CIO (the Union) an opportunity to negotiate, and has repudiated its collective-bargaining agreement with the Union. Respondent denies its actions were unlawful and asserts that it bargained with the Union and obtained the right to take the actions alleged in the complaint. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and the Union in May 1986, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a New York corporation, provides news services to customers in the newspaper industry. The parties agree, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES It is undisputed that the Company and the Union, aware of the Company's longstanding and increasingly severe financial problems, entered into a collective-bar- gaining agreement that had the following "Preamble:"' As was fully discussed during contract negotia- tions for the 1984 Agreement, the Employer intends to initiate, facilitate, automate and conclude a reor- ganization of its communications operation, its maintenance and other work presently performed in the UTW unit. This reorganization may include, but not be limited to, the sale or other disposal of the communication system, subcontracting of bargain- ing unit work, automation, relocation of bargaining unit jobs to locations other than where presently lo- cated, or to employees other than UTW employees, elimination of certain jobs, and measures such as joint venture ownership of certain UPI presently owned assets. The parties agree, anything to the contrary in the Agreement, notwithstanding, that: 1. The Employer shall, at its sole discretion, be permitted to select what work shall be performed by bargaining unit personnel and what work shall be performed by a subcontractor or subcontractors, or by non-UPI personnel, or by UPI non-bargaining unit personnel. 2. The Employer shall, at its sole discretion, be permitted to relocate a job or jobs from one loca- tion to another location and/or to cease performing any job or job function, in whole or in part. 3. If the Employer sells or otherwise disposes of the work (through joint venture ownership or oth- erwise), subcontracts bargaining unit work: relo- cates a bargaining unit job, or discontinues the per- formance of a job, and said Employer action causes an employee to lose his/her job then UPI shall offer the dismissed employee one of the following op- tions. The options include certain provisions if the Company finds a job for the employee and other provisions for the payment of dismissal indemnity to those employees not placed by the Company. Various Company witnesses testified, and the General Counsel's witnesses did not dispute the assertion, that during the negotiations the Company told the Union that the unit would cease to exist by 31 July 1985. The pre- amble provides that "staff reductions . .. shall be ac- complished before July 31, 1985." The instant controversy arises from the fact that the Company created a new position called technical support coordinator (TSC) with duties substantially similar to those performed by the technicians represented by the Union. By the time of the instant trial, eight TSC em- ployees had been hired and three of these were former UTW unit members.2 The General Counsel does not challenge the Company's right to discharge the unit members pursuant to the contract. The General Counsel ' The contract was negotiated from January to November 1984 and had a term from 1 February 1984 to 31 July 1985 The Union represents technicians and operators employed by the Company. 2 The employment of TSC employees began 2 February 1985 UNITED PRESS INTERNATIONAL asserts, however, that the contract and the Act do not permit the Company to discharge UTW-represented technicians and give their work to nonunion TSC em- ployees. The General Counsel makes three arguments: The contract language does not permit the discharge of unit members and transfer of their work to TSC employ- ees; the contract language is ambiguous and the bargain- ing history shows that the parties did not intend this result; in any case, the Act prohibits the action taken by the Company. It seems to me that the contract language is clear and unmistakable and that it permits the result achieved. The plain language of the contract says that the Employer in- tends to reorganize the work performed by the UTW unit and that the "reorganization may include, but not be limited to, relocation of bargaining unit jobs to employ- ees other than UTW employees . . . ." The language further specifies that the parties agree that the Company "shall, at its sole discretion, be permitted to select what work shall be performed by . . . UPI non-bargaining unit personnel." This clear and unqualified language per- mits the Company to give the technicians' work to anyone not in the UTW unit. There is no language pre- venting the Company from giving the work to former UTW unit members or to anyone else it may choose in its sole discretion. Based on this language, I find that the Union waived any objection to the Company's course of conduct and that there has been no refusal to bargain. Moreover, the bargaining history supports the Compa- ny's position.3 Negotiations between the Company and the Union began in early January 1984 for a contract due to expire on 31 January. Bobby Ray Miller, vice presi- dent for labor relations and editorial development, and Alan Berger, Esq., testified about the negotiations on behalf of the Company. Isaac Groner, Esq., general counsel of the UTW, and David Axelrod, a unit member, testified on behalf of the General Counsel. On 4 and 5 April 1984, the Company proposed an 18- month contract retroactive to 1 February with a provi- sion "to reduce the entire staff and have the Union give up its jurisdiction." UPI wanted to get out of the com- munications business and remain only in the news busi- ness. The Company was trying to sell its communications business; it expected all UTW unit members to go either to a new company or to a nonunion job at UPI or to a new joint venture. The Company wanted flexibility in the UTW unit so it could have flexibility to negotiate with other companies for disposition of its communica- tions business. The Company showed the union language in its proposed preamble to the collective-bargaining agreement . The Company explained to the Union that the proposal meant the Company "could exercise its sole judgment in determining who would do the work that at that time was done by UTW people, and that we antici- pated that every UTW person would lose his job by the end of that contract." The financial difficulties of UPI were discussed and the fact that these difficulties adversely affected the 8 There is substantial agreement as to much of what was said during the negotiations for the contract Wherever there is a disagreement, I will indicate this fact in the narrative 311 Company's payments to the pension fund , reimbursement of travel expenses to employees, and employee insurance claims. The Union expressed a willingness to give up its jurisdiction if it could take care of its people . The parties discussed the possible effects on employees if a deal to sell the communications system was consummated, the possibility of unit work being given to the wire service bargaining unit , the fact that subcontracting would be in- creased, and the fact that there might be a small amount of work left similar to that done by unit members . In this last event, the Company said that these jobs would evolve from requiring employees to perform work simi- lar to unit work into jobs that involved coordinating the work of subcontractors. When the parties reconvened on 19 April, the Union agreed to the proposal . There was language in it cover- ing employees who might be placed with a subcontractor or joint venture partner and employees who might be placed on permanent layoff and given dismissal indemni- ty. The Union asked for and received a salary increase over the 18 months of the contract. After 18 months, the unit would be eliminated, and the Company retained the right to select employees for layoff based on merit rather than in inverse order of seniority. The Union agreed that the dismissal indemnity could be paid over time and not in a lump sum. Dismissed employees would be provided with extended medical coverage . Finally, the Company agreed that the dismissal indemnity would be paid to unit members who quit when they found a new job, not merely to employees who were dismissed . In effect, UPI was paying an indemnity in exchange for an employee's resignation. This agreement was still being drafted when , in July 1984, the Company encountered further financial difficul- ties and it negotiated concessions with its other union, the Wire Service Guild. Further negotiations took place with the UTW in Sep- tember 1984. The UTW agreed to some wage reductions and it agreed that 16 technicians were to be dismissed immediately. The agreement was incorporated into a memorandum of understanding dated 20 September 1984. The UTW submitted it for ratification and the Company sent layoff notices for 20 October. However, the Septem- ber agreement was not ratified, and the layoff notices were rescinded . The Union told the Company informally that the failure of the membership to ratify was because the layoffs were not going to be based on seniority and the Company and the Union agreed to delay the layoffs until an agreement was ratified by the membership. On 6 November 1984, the Company posted a number of new positions, designated TSC. The job description read Understanding of FDM, TOM and communications networks, videos, printers, modems, etc. Ability to troubleshoot and repair above. There is no dispute that this was substantially the work performed by the technicians represented by the Union. The parties next met on 13 and 14 November. According to Miller, on 13 November , the meeting began about 2 p.m. and the Union opened with a ques- 312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion from Local UTW Chairman Raleigh Brown about the TSC jobs posted a week or so earlier. Brown asked for a detailed job description. The Company responded that it was not prepared to discuss the subject, that "we had already reached an agreement in April about that" and then the Company representatives caucused. When they returned from the caucus, they told the Union "that we believed that under the agreement we had reached with them in April . . . and because these jobs would eventually become supervisory and managerial jobs, it would be improper to include them in the bargaining unit." The Union replied that the jobs should be in the unit and it requested a more detailed job description. The Company maintained that "the TSC jobs immediately would be virtually the identical jobs that UTW techni- cians were doing at that time, but that as (subcontractors such as) RCA took over more and more areas of the country . . . the TSC jobs would become supervisory and managerial." In response to the Union's question whether its members could apply for the TSC jobs, the Company told the Union how this could be done. Ac- cording to Miller, on the morning of 14 November, the Union again asked to have jurisdiction over the TSC po- sitions and the Company replied that the April agree- ment excluded those jobs from coverage. The Union also asked for further information to help its members decide whether to apply for the new jobs. Finally, after the par- ties had reached agreement to proceed with the layoffs by seniority by bureau instead of merit, Groner said that if the membership again rejected the contract, the Union might seek grievance arbitration over the question whether the TSC jobs would be in the unit. Berger testified that on 13 November the parties met at 2 p.m. Groner said the membership had rejected the agreement. Raleigh Brown asked about the 20 TSC jobs posted by the Company. The Company's representatives then caucused and when they returned, they told the Union that the jobs would initially consist of trouble- shooting, maintenance, and repair and that in a few months they would become supervisory or managerial. Beyond this, the Company said, it was not prepared to discuss the jobs. The Union said the jobs belonged in the bargaining unit and the Company said, "no they don't. There's not going to be a bargaining unit in 7 or 8 or 9 months, so why put them in now." On 14 November, the TSC jobs were discussed in the morning. A union repre- sentative stated that the TSC job description was similar to UTW unit work. UPI Vice President Bob Brown said, "We know that. We don't know to what extent these jobs are going to change and when, but ... they're going to go from hands on over to an interface kind of ,lob." The Union said it wanted the TSC jobs in the unit and the Company continued to maintain that the jobs would not be in the unit. According to Berger, at the end of the meeting Groner said, "I dust want to make sure that our position is perfectly clear. We have not waived our position with respect to your untimely opening of the contract, and I hope you understand that if this contract is reject- ed again by our membership we may have to file a griev- ance and arbitrate the issue of whether those new jobs, the technical service coordinator jobs are properly in or out of the bargaining unit." Berger replied, "have at it."4 Groner testified that on the morning of 14 November before the start of the negotiations, the Company said "these jobs would be non-union because they would be supervisory or managerial." Groner then asked for addi- tional information and job description. The Company re- sponded that there was no additional information and no job description. Groner testified that he then told the Company That whether or not these jobs were bargaining unit ... positions, was clearly a matter which would depend on the facts that the employer could not - unilaterally designate what was supervisory or man- agerial . . . . That the union firmly opposed and denied any such right on the part of management and . . . the facts under Labor Board law would determine the appropriate placement of these posi- tions. According to Groner, the Company responded that it understood the Union's position and would provide addi- tional information when it became available. Groner said no agreement was reached about the TSC jobs at the negotiations. Groner testified that he told the Company the question whether a job was supervisory or managerial was a question of fact to be determined under Board law; there was insufficient information to deter- mine the status of the TSC jobs, but he referred to Board law as the way of resolving the issue. He never said the Union would seek to arbitrate the placement of the new jobs. Groner stated that the Company position was that when the TSC jobs were filled, they would not be inside the unit because they would be supervisory or manageri- al. Groner did not recall that the Company asserted any right "to make positions non-bargaining unit merely by proclaiming them non-bargaining unit." Axelrod testified that immediately after introductions were made on 13 November, he asked "whether this list of jobs that they had posted on the Company bulletin board a few days previously . . . which . . . looked to be the same as the jobs currently being performed . . . were intended to be union or non-union jobs." The Com- pany requested a caucus and when it returned to the table it said that all the new positions were intended to be nonbargaining unit positions. Local UTW Chairman Brown remarked that he could not understand how the Company could propose to lay off 16 technicians while at the same time post 15 to 20 jobs covering the same work. Then union officer Carriero or Johnson asked "what in the job descriptions made these jobs manage- ment or non-union, and what the pay rates would be." The Company responded that management would get back to the Union. The Union asked whether its mem- bers could bid on the new TSC jobs and it asked for a more complete job description. The Company said there was no job description yet and that UTW members were 4 The issue of untimely reopening was discussed during the negotia- tions but is not relevant to the instant case UNITED PRESS INTERNATIONAL free to bid on those jobs. The subject of TSCs was never raised again by either side during the 2 days of negotia- tions. Axelrod summed up this exchange as follows: The end results of the discussion was a disagree- ment between the company's position and the union's position, which was to be then determined when more specifics about how this was to be im- plemented came out. In order to secure ratification of the agreement, the Company said it would agree that the layoffs would be accomplished according to seniority by bureau The Union accepted this after a caucus and said "we had an agreement." The contract was ultimately ratified in November 1984 by the membership and executed on 10 February 1985. Layoff notices were mailed to unit members beginning in November 1984. This summary of the bargaining history makes it clear that the TSC positions were discussed by the parties during the negotiations for their contract. The Company disclosed that although the UTW technicians were to be phased out, the new TSC employees would be doing similar work when they were first hired. The Union took the position that the TSC positions should be in the unit but the Company refused to include them. Then, the Union agreed to the contract as proposed by the Compa- ny with full knowledge that the unit would cease to exist by the end of the contract term and that the Company would hire new TSC employees. Thus, the Union did not gain any concession from the Company on this point. Although the General Counsel's witness testified that the Union orally reserved its rights under "Labor Board Law," this does not affect the conclusions to be drawn from the bargaining history. The Union had knowledge of the Company's intentions but it nevertheless agreed to and executed the contract including language permitting the Company to take the actions it took with respect to the TSC employees. Thus, it agreed to the actions taken by the Company. Citizens National Bank of Willmar, 245 NLRB 389 (1979), enfd. 644 F.2d 39 (D C. Cir. 1981) 313 Finally, the General Counsel urges that the language of the contract permits "the displacement of unit em- ployees solely because of their status as union members" and by its terms violates Section 8(a)(1) and (3). It is well established that statutory rights may be waived by the clear and unmistakable language of a contract. Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956); Columbus Electric Co., 270 NLRB 686 (1984). The General Counsel recognizes this rule but urges that the considerations ex- pressed in Gale Products, 142 NLRB 1246 (1963), enf. denied 337 F.2d 390 (7th Cir. 1964), and NLRB v. Mag- navox, 415 U.S. 322 (1974), supersede the Union's waiver. The General Counsel urges that the Union has attempted to waive the employees' rights to invoke the Board's processes. I cannot find any merit to the General Counsel's position. In Gale and Magnavox, the employ- ees' rights which the union attempted to waive were such that they might be exercised contrary to the union's position and interests. In the instant case there is no such actual or foreseeable divergence between the union's and the employees' rights and positions. Because I have found no merit to the complaint, I need not deal with Respondent's assertion that portions of the complaint are barred by Section 10(b) of the Act. CONCLUSIONS OF LAW 1. The General Counsel has failed to prove that Re- spondent violated Section 8(a)(1), (3), and (5) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed5 ORDER The complaint is dismissed. 5 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