Indiana Bell Telephone Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Indiana Bell Telephone Company, Incorporated and Local 336, International Brotherhood of Electri- cal Workers, AFL-CIO. Case 13-CA-18420 September 29, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 25, 1980, Administrative Law Judge Peter E. Donnelly issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and a sup- porting brief, and Respondent filed an answering brief to the exceptions filed by the General Coun- sel and the Charging Party. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE PETER E. DONNELLY, Administrative Law Judge: The charge herein was filed on February 5, 1979, by Local 336, International Brotherhood of Electrical Workers, AFL-CIO, herein called the Charging Party or the Union. A complaint thereon was issued on August 3, 1979, alleging that Indiana Bell Telephone Company, In- corporated, herein called Fmployer or Respondent vio- lated Section 8(a)(5) of the Act by refusing to arbitrate contract grievances anywhere except Indianapolis, Indi- ana. An answer thereto was timely filed by Respondent. Pursuant to notice a hearing was held before me in Chi- cago, Illinois, on January 21, 1980. Briefs have been timely filed by General Counsel, Charging Party, and Respondent which have been duly considered. FINDINGS OF FACT 1. JURISDICTION The Employer is an Indiana corporation maintaining a place of business in Highland, Indiana, and at other facil- ities located in Lake County, Indiana, where it is en- 252 NLRB No. 85 gaged in providing long-distance interstate and interna- tional telecommunications services. During the past cal- endar or fiscal year, Respondent in the course and con- duct of its business operations, received gross revenues in excess of $1 million and purchased and received at its facilities in Lake County, Indiana, goods and materials valued in excess of $50,000, which goods and materials were shipped to the Employer from points located di- rectly outside the State of Indiana. The complaint al- leges, the Respondent in its answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE ABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. Al.I.EGID UNFAIR ABOR PRACTICE S A. Facts The employees in the unit involved in this matter are employed by Respondent in Lake County, Indiana, locat- ed in the northwest corner of Indiana. Beginning in 1947 these employees were represented by the Union under a succession of contracts with Illinois Bell Telephone Company. The contracts with Illinois Bell contained grievance and arbitration procedures. The Union's offices are located in Oak Brook, Illinois, a suburb of Chicago, a distance of some 60 miles from Merrillville in north cen- tral Lake County. The Respondent's headquarters are in Indianapolis, Indiana, some 160 miles from Merrillville. In July 1976, Illinois Bell's Lake County operations were purchased by Respondent. After this acquisition, Respondent employed about 11,000 employees, all locat- ed in Indiana, including about 7,300 represented by the Communication Workers of America (CWA), in a sys- temwide unit. About 600 are represented by the Union in the Lake County area. Another 200 employees represent- ed by CWA are also located in Lake County. After the purchase, an issue arose over the representa- tion of the Lake County employees, with the Union con- tending that it was entitled to represent them in a sepa- rate unit, while Respondent and CWA contended that they were an accretion to the existing statewide unit rep- resented by CWA. The matter was eventually resolved when the CWA disclaimed any interest in representation as to the Lake County employees and in July 1977 Re- spondent voluntarily recognized the Union. Effective August 7, 1977, Respondent and the Union entered into a 3-year contract containing grievance ma- chinery including an arbitration provision, which is silent as to the location where the arbitrations are to be held. That matter was never discussed in the contract negotia- tions leading to the contract. It is undisputed that Re- spondent has never refused to meet to discuss the matter of the situs of arbitration. Prior to the purchase, while the Lake County employ- ees were employed by Illinois Bell, all the arbitrations were held in Chicago. Also, prior to the purchase, all the arbitrations under the CWA contracts were held in In- 544 INDIANA BELL TEI.EPHONE COMPANY, INCORPORATED dianapolis, where some 55 percent of Respondent's em- ployees are employed. After the execution of the August 7, 1977, contract, the problem of the situs of arbitrations mainifested itself when the first grievance came to arbitration. Thomas Beagley, president of the Union, testified that in a tele- phone conversation between himself and Thomas Do- herty, Respondent's assistant vice president of personnel, Beagley suggested that the arbitration be conducted in Merrillville. Doherty responded that he wanted the arbi- tration held in Indianapolis since that was the headquar- ters of Respondent. Beagley complained about the addi- tional expense involved for the Union in travel and lodg- ings, but Doherty reiterated that the Company preferred that arbitrations be held in Indianapolis. Rather than delay the arbitration, Beagley agreed to hold the arbitra- tion in Indianapolis, where he told Doherty that the next arbitration was going to be held in "our territory," and again Doherty expressed Respondent's preference for ar- bitrations to be held at Employer headquarters in Indian- apolis. Beagley also testified about another conversation with Doherty in January 1979 pursuant to a second grievance. After having been advised by Robert Tunnell, chief ste- ward of the Union, that a Baldauf, district manager for labor relations for Respondent, had refused as a matter of company policy to hold the arbitration in Lake County, Beagley called Doherty, who again told him that it was Employer's preference to hold arbitrations in Indianapolis. During this conversation, Doherty rejected suggestions by Beagley that they alternate the arbitra- tions between Indianapolis and Lake County, or that the arbitrator be allowed to select the location. In August 1979, Bob Bloss, Respondent's division manager of Per- sonnel, in a telephone conversation with Beagley, was asked by Beagley about Respondent's position on the lo- cation of arbitrations. While Bloss indicated that he was interested in settlement of this matter, he rejected sugges- tions by Beagley that all arbitrations be held in Lake County or that the situs be alternated between Indiana- polis and Oak Brook, Illinois. In early December 1979 Beagley and Doherty met again. Doherty testified that Beagley told him that the Union "was contemplating joining the bargaining issue with the situs of arbitration issue in this proceeding and that he wanted me to come back to him with a position regarding the situs of bargaining after we had an oppor- tunity to discuss it internally." On December 20, 1979, in a telephone conversation with Beagley, Doherty testified about the possibility of settling the issue "on the basis of alternating the locations of arbitrations between Lake County and Indianapolis." He further testified, "We also discussed the status of bar- gaining. That we will be willing to bargain early on in the bargaining process in Lake County. I think I alluded to perhaps the first 45 of the 60-day period, during which bargaining is normally conducted. The first 45 days being conducted in Lake County and then, at that point in time, the bargaining would revert to Indianapo- lis until its conclusion." This proposal was unacceptable to Beagley who took the position that all the contract negotiations and arbitrations should take place in Lake County, except for the possibility of a final week of bar- gaining as to local negotiations being held in Indianapo- lis. This counterproposal was not acceptable for Re- spondent. This same proposal was reiterated by Doherty to Beagley in January 1980 and was again rejected by the Union. Respondent's revised position, as of the date of the instant hearing, is that it is willing to hold half of the arbitrations in Lake County and half in Indianapolis. B. A4nalysis and Conclusion The General Counsel takes the position that it is un- lawful, as a refusal to bargain, for Respondent to insist that all arbitration be held in Indianapolis. Further, that Respondent is legally obligated to hold contract arbitra- tions near the location of the facilities where the Re- spondent's employees are employed, i.e., Lake County. The essential facts are not in dispute. The Union wants the arbitrations held in Lake County, primarily because of the additional expense and inconvenience which it incurs by reason of the distance between Lake County and Indianapolis. Respondent's position is that arbitra- tions should be held in Indianapolis since all of its arbi- trations of all other represented employees are held there, and necessary employer records and personnel are located there. Initially Respondent took the position that all arbitra- tions would have to be held in Indianapolis. However, in later discussions that position was modified, as set out in the record, until at the time of the hearing Respondent was willing to alternate arbitrations between Indianapolis and Lake County. However this proposal was not ac- ceptable to the Union, which felt that all arbitrations should be held in Lake County. These facts do not reveal an intransigent employer taking an inflexible position. While no formal negotia- tions have taken place on the issue, the record discloses substantial movement by the Employer and is simply an example of a negotiable item on which the parties have failed after some discussion and compromised to reach agreement. Section 8(d) of the Act, in defining the mutual obligation of employers and unions to bargain provides, "but such obligation does not compel either party to agree to a proposal or require the making of a concession." It is not within the province of an adminis- trative law judge or any other tribunal to impose on either party a concession where they were unable to reach agreement after bargaining in good faith thereon. I shall not impose any concession on Respondent despite the fact that good-faith bargaining has not produced a solution. The General Counsel also argues that Respondent is legally obligated to conduct all arbitrations in Lake County and that Respondent's position or "insistence" to the contrary violates Section 8(a)(5) of the Act. In the first place, I have found no "insistence" on the part of Respondent that all arbitrations be conducted in Indianapolis. Indeed, through discussion, this position was modified substantially to the point where alternating arbitration locations would have been acceptable, but this compromise was rejected by the Union. As to the contention that all arbitrations must be held in Lake 545 DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD County. since that is where the employees are employed. I reject this per se approach. In order to find an 8(a)(5) violation in Respondent's proposal that arbitrations be held in Indianapolis the facts must disclose that such pro- posal is unreasonable or predictably unacceptable and they do not. General Counsel's reliance on the Board's Semlperfit case' is misplaced. This was a case in which an employ- er refused to accede to a union's request that the next bargaining session be conducted in Oakland, California, near where the bargaining unit employees were located rather than in Los Angeles, California. Since this posi- tion caused a strike, the Board concluded, in an agree- ment with an administrative law judge, that it was an unfair labor practice strike. The Board held that the em- ployer's refusal to meet or negotiate at or near the plant whose employees were involved in the negotations was an 8(a)(5) violation. An administrative law judge's deci- sion, adopted by the Board, after an exposition of several cases, states, "Although in none of the cases was the sole evidence of refusal to bargain in good faith the refusal to meet at or near the site of the plant in controversy, it does appear from said cases that such a refusal is evi- dence of a violation of Section 8(a)(5) and (I) of the Act. Therefore, I am forced to conclude that Respondent's in- sistence that the fourth session be held in Los Angeles instead of Oakland was violative of said section of the Act." 2 However, there are compelling distinctions to be drawn between Semperfit and the instant case. In Semnper- fit, the dispute involved the situs of contract negotiations and the fundamental question of representation. In the in- stant case the parties are operating under a negotiated contract, which includes a grievance procedure and the dispute involves only the locus of the arbitrations. Whether or not the Board will adopt the "per se" ap- Semperfit. Inm., 237 NLRB 478 (1978). 2 Snper.fi was ordered to "bargain in good faith with the aforesaid union at a reasonable location near its Union City [Oaklandl plant." proach it appears to have taken in Senperfit on the facts of the instant case is at least an open question. Moreover, the reasonableness of the basis for the posi- tion taken as to the situs of the contract negotiations may involve different criteria in contract negotiations where the basic issue of representation is involved, as compared to the issue here, involving only the situs of arbitrations under an existing grievance procedure. Whatever consid- erations may have prompted the Board to adopt an ad- ministrative law judge's conclusion that Semperfit violat- ed Section 8(a)(5) of the Act, by insisting that the next negotiating session be held in Los Angeles, and his order that bargaining be conducted near the Oakland plant, those considerations should not be transferred and ap- plied to the instant case since the subject matter of the dispute and the facts herein clearly distinguish it from Semperfit. In summary, I conclude that Respondent has not, as alleged in the complaint, refused to arbitrate anywhere except Indianapolis, Indiana, and further that Respondent was not obligated to agree to conduct all the arbitrations in Lake County. Accordingly, I shall recommend that the complaint herein be dismissed.:3 CONCI.USION Or: LAW Respondent has not engaged in any conduct violative of the Act. Upon the foregoing findings of fact and conclusions of law, I hereby issue the following recommended: ORDER The complaint is dismissed in its entirety. :' In the esenrt no exceptions are filed as provsided by Sec 10246 of the Rules and Regulalions of the National .abhor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules ad Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall he deerelld waived for all purposes. 546