Boston Edison Co.

National Labor Relations Board - Board Decisions

Jun 24, 1969

176 N.L.R.B. 942 (N.L.R.B. 1969)

942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boston Edison Company and Local 369, Utility
Workers Union of America , AFL-CIO,' Case
I-CA-6303
June 24, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On January 16, 1969, Trial Examiner William F.
Scharnikow issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending dismissal of the
complaint, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel and the Charging Party filed exceptions to
the Trial Examiner's Decision together with
supporting briefs, and Respondent filed both
cross-exceptions to the Trial Examiner's Decision
together with a supporting brief and a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated it
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
MEMBER BROWN, concurring:
I concur with my colleagues in dismissing this
proceeding, but I do so without resolving the merits
of the controversy involved here. This controversy
arises out of a contract dispute. There are various
contractual provisions dealing with the subject
matter of the dispute, and the parties' agreement
also contains procedures for resolving their
differences. This situation goes beyond and therefore
is distinguishable from C & C Plywood: where the
Supreme Court observed that the Board in that case
"has not construed a labor agreement to determine
the extent of the contractual rights which were given
the union by the employer" (385 U.S. at 428). Still
The Charging Party 's name appears as amended at the hearing.
176 NLRB No. 132
more recently the Supreme Court has again declared
that "the Board has no plenary authority to
administer and enforce collective bargaining
contracts ." N.L.R.B. v. Strong Roofing &
Insulating Co., 393 U.S. 357, 360. Thus, even apart
from considerations of deferring to
grievance- arbitration procedures ,' I do not believe
that cases like the present one should be brought to
the Board for adjudication of what are essentially
contract disputes.'
'N.L R B v. C & C Plywood Corp., 385 U.S. 421.
'Jos Schlitz Brewing Co ., 175 NLRB No. 23. See my dissenting
opinions in Univis . Inc, 169 NLRB No 18; Washington Hardware and
Furniture Co, 168 NLRB No. 72.
'Cf. my concurring opinion in Cloverleaf Division of Adams Dairy Co.
147 NLRB 1410, 1420-1425
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM F. SCHARNIKOW , Trial Examiner: The
complaint alleges that the Respondent, Boston Edison
Company , has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(l) and (5) and Section 2(6) and (7) of the
National Labor Relations Act, as amended , 29 U.S.C.
Sec. 151 , et seq (herein called the Act ), by unilaterally
effecting a change in the illness benefits plan which is part
of its collective-bargaining agreement with the Union, by
converting the benefit allowance from computation by
days to computation by hours and unilaterally effecting a
change in the illness leave practice by charging illness
leave for less than a day to an employee ' s unused illness
leave allowance.'
In its answer to the complaint filed on July 12, 1968,
the Respondent generally denies the commission of the
unfair labor practices alleged in the complaint and further
asserts in substance ( 1) that whatever changes may have
been made in the Plan were effected by a committee
designated in, and authorized by, the rules set forth in the
Plan; (2 ) that the Respondent had in fact bargained
collectively with the Union about these changes and the
changes in its leave practice ; and (3 ) that the Respondent
has been willing to submit the present dispute with the
Union to the arbitration procedures provided by the
contract.
Pursuant to notice , a hearing was held at Boston,
Massachusetts , on July 15 and 16, 1968 , before me. The
General Counsel, the Respondent , and the Union
appeared by counsel and were afforded full opportunity to
be heard , to examine and cross-examine witnesses, and to
introduce evidence upon the issues in the case.
Before the hearing , the Respondent had filed and served
upon the General Counsel and the Union a "Motion to
Hold Case in Abeyance Pending Utilization by the Parties
of their Contractual Grievance-Arbitration Method of
Resolving Disputes ." At the beginning of the hearing,
counsel for the Respondent pressed this motion. After
hearing and considering oral argument from counsel for
the Respondent in support of the motion and from the
General Counsel and counsel for the Union in opposition,
I denied the motion.
'The unfair labor practice charge was filed by the Union on April 12,
1968, and served on the Respondent on the same day The Regional
Director issued the complaint and caused it to be served on the
Respondent and the Union on July 2, 1968
BOSTON EDISON COMPANY 943
Since the hearing , I have received and considered briefs
from the General Counsel and counsel for the
Respondent. The General Counsel and counsel for the
Respondent also filed motions to correct the official
transcript of the record of the hearing in certain specific
respects. There being no objection, I hereby grant these
motions.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, with its principal office and place of
business in Boston , Massachusetts , is a public utility
engaged in the manufacture, sale and distribution of
electric power and in the retail sale of electric appliances.
In the operation of its business it purchases large
quantities of coal , oil, and gas which is transported to it in
interstate commerce from and through States of the
United States other than the Commonwealth of
Massachusetts . Its annual gross revenue from the
distribution of electric power exceeds $250,000 and its
annual gross revenue from the retail sale of electric
appliances exceeds $500,000.
The Respondent admits and I find that it is, and has
been , engaged in commerce within the meaning of the
Act. I further find that it will effectuate the policies of the
Act for the Board to entertain jurisdiction in the present
case.
II. THE LABOR ORGANIZATION INVOLVED
Local 369, Utility Workers Union of America,
AFL-CIO, herein called the Union, is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Since certification by the Board in 1950, the Union has
been the recognized exclusive bargaining representative of
an appropriate production and maintenance unit of the
Respondent's employees. On November 2, 1967, the
Respondent and the Union executed a contract covering
these employees until April 1, 1969, and, absent a 60-day
written notice of termination by either to the other, from
year to year thereafter. The 1967 contract incorporated
verbatim from the preceding contract between the parties,
the provisions of an "Illness and Nonindustrial Accident
Disability Benefits Plan," hereinafter referred to as the
Plan. The broad issue in the present case is whether, in
March 1968 , the Respondent committed unfair labor
practices within the meaning of Section 8(a)(1) and (5) by
unilaterally changing the provisions of the Plan and its
existing leave practice in connection therewith.
In general outline, the "rules" of the Plan as set forth
in identical language in the 1967 contract and the
preceding contract have provided for the Respondent's
payment of " illness and nonindustrial accident benefits"
to employees with 12 or more months of continuous active
service first during an annually allowed "Waiting Period"
of "five (5) days" which may be drawn upon by the
employee at the beginning of each period of disability and
may be accumulated from year to year , subject to "a
maximum of fifteen (15) days;" and then, should a
particular disability continue, also during a succeeding
"Initial Disability Period," and a "Secondary Disability
Period" each of varying prescribed lengths depending
upon the employee' s service . The "Benefits" provided by
the Plan are defined as "base pay ... for such [working]
days" as fall within the allowable "Waiting Period," and
the "Initial Disability Period," and "three-quarters (3/4)
of base pay for such [working] days" as are allowable
during the "Secondary Disability Period."
The possible maximum period of an employee's benefits
for a continuing disability during any year, ranges from
approximately 5 "calendar weeks" in the case of an
employee with 1 year's service to approximately 55
"calendar weeks" for an employee with more than 13
years of service and an unused accumulation of 15 days of
"waiting period." Consistent with the general provisions
of the contract, a "working day" and a "calendar week"
have been construed for purpose of the Plan as meaning,
respectively, a scheduled 8-hour day and a calendar week
of 5 working days of 8 hours each,' and "base pay"
therefor has been computed at the contractually prescribed
hourly rate of the employee.'
No conditions are prescribed by the Rules of the Plan
for the payment of benefits during the initial and
secondary disability periods, but, according to rule 7(a),
"Benefits for the working days of waiting periods... shall
be allowed only at the discretion of the Disablement
Benefits Committee." This Committee is constitued under
rule 10 of the Plan "to act on all problems arising under
this Plan" except the discipline of employees for abuse of
leave under the Plan which is a matter reserved to the
Respondent . As provided by rule 10, the Committee
consists of three members, two of whom are
representatives of the Respondent and the third a
representative of the Union, and its role is to "administer
and interpret this Plan ... [with] full power to make rules
and regulations for its administration in respect to the
members of [the Union] which are not inconsistent with
the express provisions of the Plan."
The Plan specifically reserves certain rights to the
Respondent, as distinguished from the Disablement
Benefits Committee, and the Respondent's acts in exercise
of these particular rights are expressly subject to "review"
under the general grievance and arbitration provisions of
the contract. Thus rule 5 of the Plan leaves it to "the
Company's Medical Director" to determine whether a
particular claimed disability is "a recurrence" of a
"previous disability" and thus, by possibility, the period
and benefits therefor should be "reduced." And rules 7(e),
(f), and (g) provide that at "the end of his secondary
disability period," an employee "shall be transferred to
the inactive payroll (without pay)" for specified periods of
1 year, 6 months, or 3 months (depending upon his years
of service) "or longer, at the discretion of the Company."
Finally, in rule 8 ("Review of Absences"), the Plan
provides that, "Employees abusing the Plan shall be
subject to disciplinary action by the Company. If the
Union claims the Company has exercised any of the
foregoing rights in an unjust or unreasonable manner,
such claim shall be subject to the Grievance Procedure in
Article XXXII and Arbitration under Article XXXIII."
As will appear as the facts are developed, the instant
case concerns the application of the Plan's provisions and
'See art . X and XI of the contract
'All employees in the unit are hourly rated . See art . XII, par . 3, art.
XXV, par . 3, and Schedule C of the contract.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent ' s related leave practices to partial days of
claimed disability during the "waiting period ," i.e., to
situations in which employees , having worked part of their
8-hour day, report to the Respondent that they are ill and
are consequently permitted to quit work for the day.
In applying the Plan 's provisions allowing "five days"
for waiting period benefits before March 18, 1968 , nothing
less than a day was charged against the employee's
waiting period allowance . In practice , if he had worked
less than 1 1 /2 hours on a particular day, he was charged
with a full day of his waiting period allowance unless he
had exhausted it, in which case he was paid only for the
time worked , exclusive of any time he may have spent in
the Respondent ' s medical office . But if he had worked
more than 1 1/2 hours, exclusive of time spent in the
medical office , no charge was made against his waiting
period allowance , but he was paid for the part of the day
worked and usually given a discretionary "leave allow"
payment for the rest of the day . In this last situation, the
employee was thus, in effect , usually paid the amount of a
full 8-hour day's wage by the Respondent without any
charge against his "waiting period" allowance under the
Plan, although the Respondent reserved the right to
withhold any payment for the portion of the day not
worked , as a "leave deduct" rather than a "leave allow."
This practice, however, was changed on March 18,
1968. On March 15, 1968, the Disablement Benefits
Committee (acting on the decision of the Respondent's
two representatives over the objection of the Union
member ) notified the Union by letter that the "waiting
period allowance" under the Plan was "changed from [5]
days to [40] hours" and that time spent in the
Respondent ' s medical office would be counted and paid
for as time worked. Accordingly , since March 18, 1968,
an employee who works only part of a day (whether more
or less than 1 1/2 hours ) and then goes home for illness,
is paid for the time worked including time in the medical
department , and charged against his available "waiting
period" allowance for the remaining hours of the
workday.
As will appear , the Respondent had for some time
considered these changes in its leave practice and its
construction of the Plan, and its representatives had
discussed the matter with the Union's representatives
during their negotiation of the 1967 contract as well as
just before and at the time the Disablement Benefits
Committee gave the Union notice of the changes in
March 1968 . The propriety of the changes , which the
General Counsel and the Union contend were unilaterally
made by the Respondent in disregard of its obligation to
bargain with the Union, must be evaluated, of course, not
only in the light of the overall pattern of the Plan (which
has already been summarized ), but particularly in the light
of the language of the directly pertinent provisions to
which the testimony of the witnesses and the arguments of
counsel direct the Board ' s attention . For convenient
reference , these provisions are the following:
Illness and nonindustrial accident benefits shall to
governed by the following rules:
(1) ELIGIBILITY
Employees who have completed twelve ( 12) months
of continuous active service on the regular full-time
payroll shall be eligible for the benefits provided herein.
(2) WAITING PERIOD
The first five (5) working days included in the first
seven (7) calendar days of any disability is defined as
the waiting period applicable to such disability.
* * * *
(7) BENEFITS
Subject to all other provisions of this plan, benefit
payments shall be as follows:
(a) Benefits for the working days of waiting periods
shall be base pay (as defined in the Retirement Plan as
amended ) for such days, but shall be allowed only at
the discretion of the Disablement Benefits Committee....
(8) REVIEW OF ABSENCES
Employees abusing the Plan or having excessive
absences shall be subject to disciplinary action by the
Company . If the Union claims the Company has
exercised any of the foregoing rights in an unjust or
unreasonable manner, such claim shall be subject to the
Grievance Procedure in Article XXXII and Arbitration
under Article XXXIII.
* * * *
(10) ADMINISTRATION
The Disablement Benefits Committee , which will act
on all problems arising under this Plan, except those
referred to in Section (8) of this Plan, shall consist of
the Vice President in charge of Employee Relations or
his designated representative , the Medical Director of
the Company , or the Associate Medical Director, and
the President of the Local (or a member of the Local
designated by its President ). Such Committee shall
administer and interpret this Plan and shall have full
power to make rules and regulations for its
administration in respect to the members of the Local
which are not inconsistent with the express provisions
of the Plan.
B. The 1967 Contract Negotiations and the Changes
in the Plan and Leave Practice in March 1968
Negotiation of the Union' s and the Respondent's
current contract began in February 1967 and concluded
with the execution of the contract on November 2, 1967.
During the negotiations , the Respondent was engaged in
making an independent statistical study of the cost of the
Plan through a committee of its own representatives
including Dr. Joel Johnson , its medical director who, by
virtue of this position was also one of the two
employer-members of the three-man Disablement Benefits
Committee under the Plan. Although Dr. Johnson's then
incomplete study was mentioned by the Respondent in
connection with its contract proposals affecting the Plan
during the 1967 contract negotiations, he was not one of
the negotiators . Nor did the negotiators include any other
person who was thereafter to serve on the Disablement
Benefits Committee . John Hennessy , the Respondent's
director of Labor Relations , was the Respondent's
negotiator but did not serve on the Disablement Benefits
Committee . And, although Local President Thomas
Sullivan was one of the Union ' s negotiators (along with
International Representative McCrevin and Executive
Board Member John McKennon ), his Local presidency
which then made him a member of the Committee expired
with the execution of the contract.
During the course of the lengthy 1967 contract
negotiations in which there were 30 bargaining sessions,
the Union made 35 proposals of contract changes
BOSTON EDISON COMPANY 945
including one which would have increased the Disablement
Benefits Committee to four members with two Union
representatives to balance the two
employer-representatives on the Committee. The
Respondent also made numerous proposals of contract
changes in a 14-page document given to the Union on
March 17, 1968. One of the Respondent's proposals was
to change the language of paragraphs 2 and 7(a) of the
Plan's rules with respect to Waiting Period Benefits by
substituting "The first 40 regularly scheduled hours" for
"The first five (5) working days" as the definition of
"waiting period," and by making corresponding,
equivalent substitutions of the word "hours" for the word
"days" wherever the latter word appeared in these two
paragraphs of the Plan. In support of this proposal, Labor
Relations Director Hennessy told the Union negotiators
that costs of the Plan had "soared" because of abuses by
employees in "part-day" absences . It will be noted from
my preliminary summary of the facts, that the changes in
the language of the Plan thus sought by the Respondent in
the 1967 contract negotiations with respect to "waiting
periods" - i.e., changes from "days" to "hours" - were
the same as those which were later made by the
Disablement Benefits Committee in March 1968.
The discussions of the changes proposed in the Plan by
the Union as well as by the Respondent were few and
brief, and the contract eventually agreed upon and
executed again incorporated the Plan with its previous
language intact. At only 3 of the 30 bargaining sessions in
the early stages of the negotiations (i.e., on March 20,
March 30, and April 10, 1967) did the negotiators talk
about the proposed changes in the Plan and then only for
about 20 or 25 minutes on the first of these occasions and
for only 10 minutes on the second and third. Hennessy,
for the Respondent, rejected the Union's proposal to add
a second Union representative to the Disablement Benefits
Committee and thus to equalize representation on the
Committee. The Union, just as clearly, rejected the
Respondent's proposal to change the word "days" to
"hours" in the definition of "waiting period," although
Hennessy offered to secure a breakdown of the figures
showing the increase of the costs of the "waiting period"
in the production and maintenance units.' From the
testimony of both Hennessy and Union Representative
McKennon, it appears and I find, that Hennessy refrained
from pressing for the Respondent's proposed amendment
in the language in the Plan, with the statement that, in
any event, the Disablement Benefits Committee had the
power under the Plan to make the change sought.'
'This finding is based upon Hennessy's testimony to the effect that he at
first had only overall figures of "waiting period" costs in three bargaining
units of the Respondent's employees covered by the identical Plan although
under separate contracts , with the Union representing the production and
maintenance employees and two sister Locals of the Union representing
the clericals and professionals respectively . According to Hennessy, whom
I credit, International Representative McCrevin (one of the Union
negotiators) asked for the production and maintenance figures but,
although Hennessy agreed to try to get them within a week , McCrevin had
in the meantime rejected the Respondent 's proposal . I credit this testimony
rather than what I regard to be the less reliable recollection and testimony
of Union Representative McKennon , the only Union negotiator who
appeared as a witness . For McKennon testified at one point that on March
20 Union President Sullivan and on April 10 also International
Representative McCrevin asked Hennessy for a breakdown of the
increased costs of the Plan in the production and maintenance unit and
Hennessy in the first case , gave no answers, and, in the second case, said
he did not have these costs "but he felt they were totally justified." At
another point in his testimony , however , McKennon said that he did not
recall that either Sullivan or McCrevin had asked Sullivan for these
In February or early March 1968, John Madden a staff
assistant in the Respondent's Labor Relations
Department, telephoned Daniel Madden, who had
succeeded Thomas Sullivan as the Local President of the
Union and who, under rule 10 of the Plan, was the
primarily designated Union representative on the
Disablement Benefits Committee. In this telephone
conversation , John Madden said he had been designated
by the Respondent to act as its representative on the
Committee, and asked Union President Daniel Madden to
meet with him and Dr. Johnson (the Respondent's medical
director and its other designated Committee
representative) to discuss disability problems.
As a result, the two Maddens and Dr. Johnson met in
Dr. Johnson's office on March 7 and again on March 15.
Dr. Johnson said in substance that it appeared from his
study of the operations of the Plan that the costs of the
"waiting period" had increased at the rate of $50,000 a
year; that something must be done to control excessive
absences and abuses of the Plan by employees in taking
parts of days off for illness when it was impossible "to
judge accurately ... whether [they were] sick or not"; and
that one step in the direction of discouraging and thus
controlling abuses in these cases (which would be fair to
the employee) would be for the Committee to change the
waiting period allowance from "days" to "hours" so that
an employee would be charged against his waiting period
with the actual "hours" he took off on the day he became
ill rather than (as under existing practice) with either no
charge or an arbitrary full day' s charge against his waiting
period, depending upon whether he had worked more or
less than 1 1/2 hours on the particular day. During the
discussion of Dr. Johnson's proposal on March 7 or 15,
Union President Madden expressed doubt as to whether
there had been abuses of the "waiting period" by the
production and maintenance employees and argued that,
in any event, the Respondent had adequate power to
control any such abuses by taking disciplinary action
against suspected employees under rule 8 of the Plan,
subject to the Union's right to have such action reviewed
under the grievance and arbitration provisions of the
contract.'
In the first meeting between the three Committee
members on March 7, Staff Assistant John Madden and
Dr. Johnson attempted to persuade Union President
Madden to agree to Committee action making the change
which they sought. But, before the meeting ended, the
three men agreed to meet again on March 15 after Union
President Madden had had the opportunity to confer not
only with his Executive Board , but also with the presidents
of two other Locals who represented separate units of
Respondent 's clerical and professional employees and
who, according to John Madden' s statement at the March
7 meeting, had already agreed to change "days" to
figures.
'Hennessy testified that he told the Union representatives not only that
the Committee had the power to make the change but that it would.
McKennon at first testified that Hennessy said the Committee could make
the change but not that it would . I credit this testimony by McKennon
rather than his later answer to a leading question by counsel for the Union
that at no time did the Respondent "take the position that the Disability
Benefits Committee was empowered to make the change from days to
hours if the Union rejected the [Respondent 's proposal]."
'Although in their testimony Staff Representative Madden and Dr.
Johnson could not recall the Union President 's referring to the adequacy of
disciplinary action by the Respondent under rule 8 of the Plan as a control
of possible abuses, I credit the Union President 's testimony that he in fact
made such an argument.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"hours" in the identical Plans incorporated in their
respective contracts with the Respondent.
At the second meeting between the three men on March
15 Union President Madden said that his Executive Board
had instructed him to oppose the change and that he had
been informed by the presidents of his sister Locals that
neither had agreed to the change although one of them
was not "objecting." The Union President also objected to
Respondent- Representative Madden's proposal of a
Committee vote on the proposed change, saying the
Committee had no jurisdiction. The three men agreed,
however, that should the two employer-members of the
Committee vote to make the change over the Union
President's objection, the Union could contest the action
under the grievance and arbitration provisions of the
contract.' Whether or not there was the formality of a
"vote" (as Respondent's Representatives Madden and Dr.
Johnson testified but the Union President Madden
denied), the meeting on March 15 ended with Madden,
the Respondent's representative, saying that he and Dr.
Johnson were in favor of the change from "days" to
"hours" and would note Union President Madden's
"disagreement" in the letter which would be sent to the
Union.'
Accordingly, on the same day, March 15, Staff
Assistant John Madden mailed the following letter to
Donald Wightman the Union's secretary-treasurer:
As the result of meetings of the Disability Benefits
Committee under Section 10 of the Illness and
Nonindustrial Accident Disability Benefits Plan on
March 7th and March 15th, at which Daniel F. Madden
represented the Local, John S. Madden represented the
Vice President in charge of Employee Relations, and
Joel M. Johnson, Medical Director, was present, the
following procedure is to be in effect effective March
18, 1968 with respect to employees represented by the
Production and Maintenance Local:
1. Waiting period allowance of employees
represented by the Production and Maintenance Local
will be changed from days to hours and part-time
medical absences will be paid or not paid according to
the employee's unused allowance.
2. Employees will be paid for time worked or spent
in the Medical Department waiting treatment and if the
employee is sent home, the part-time absence will
commence from the time he/she leaves the Medical
Department.
As a member of the Committee, Mr. Daniel Madden
does not concur with the vote of the majority on the
Committee.
Upon receipt of this letter, Union President Madden
orally asked Labor Relations Director John Hennessy to
meet with him on April 5 to discuss certain written Union
grievances and also "the Company's position" with
respect to changing "days" to "hours" in the waiting
period provisions of the Plan. But before the meeting was
held, the Union president told Hennessy that "there was
no need of this [matter concerning the Plan] being on the
agenda at this meeting" because he "was contemplating
an NLRB case ." On March 28, the union president also
mailed a letter to John Madden, the Respondent's staff
assistant , attacking the "fictitious votes" of the
Disablement Benefits Committee as "nothing more than
the Company's attempt to unilaterally and unlawfully
attempt to change terms and conditions of employment . .
. during the life of the current bargaining agreement." The
letter ended with the statement that "Unless the Company
revokes its action and reinstitutes the existing terms and
conditions of the Disability Benefits Plan, the Union shall
be compelled to seek relief from appropriate Federal or
State agencies."
Staff Assistant John Madden replied to the Union
President by letter dated April 9. In this letter he set forth
his version of the recent Disablement Benefits Committee
meetings ; denied that "the action of the Company [was]
unilateral or unlawful in any respect"; referred to the
Union's removal of consideration of the Committee's
action from the agenda of the grievance meeting of April
5; and stated that "the Company position was and is that
the proper forum [for the dispute] is the Grievance
Procedure," and that "The Company declines to revoke
the action of the Committee."
In this final posture of the events of the case, the Union
filed its unfair labor practice charge on April 12, 1968,
asserting that the Respondent had violated Section 8(a)(l)
and (5) of the Act in that it "unilaterally altered and
diminished existing terms and conditions of employment
of its production and maintenance employees, without
negotiation or agreement with the certified
collective-bargaining representative of such employees."
C. Conclusions
Staff Representative Madden and Dr. Johnson so testified . During his
testimony , Union President Madden ' s attention was not called to this
particular matter and he therefore neither affirmed nor denied the other
two witnesses' testimony on the point
The findings just made with respect to the meetings of the three
members of the Disablement Benefits Committee on March 7 and 15, 1968
present the full material substance of these meetings and are based upon a
composite of the testimony of the two Maddens and Dr Johnson It is
clear from this testimony that Union President Madden objected to the
proposed change , but was overridden by the two employer-representatives
on the Committee . This was the essence of the Committee action. It was
certainly not the accomplishment of a change by collective bargaining
between co-equal parties . Its propriety depended upon whether the
Committee , although preponderantly an employer-committee, was
empowered by the existing contractual Plan to make the change even over
the Union 's objection . Accordingly, I have found it unnecessary to consider
and resolve such conflicts in the testimony as whether Union President
Madden , by his statements and attitude appeared to the other two
members of the Committee to be at first reluctant to oppose the change
and even willing to permit its accomplishment in practice . Nor do I regard
it to be material whether the Union 's sister Locals representing other units
of Respondent 's employees had in effect consented to the same change in
practice under their identical Plans
The foregoing findings present the material facts in the
case . The crucial fact, of course, was the action in March
1968 by the Respondent's two representatives on the
Disablement Benefits Committee over the objection of the
Union representative in changing the word "days" to
"hours" in the provisions of the existing contractual Plan
with respect to "waiting period" leave and allowances
which had the purpose and effect of charging the
employees for the first time with part-days of absence
against their "waiting period" allowances.
The General Counsel contends that, in disregard both
of its statutory obligation to bargain with the Union and
clear and unambiguous language in the Plan as part of the
current contract, the Respondent thereby unilaterally
changed the terms and conditions of employment provided
in the Plan and committed unfair labor practices within
the meaning of Section 8(a)(l) and (5) of the Act. The
Respondent, however, while not denying its responsibility
for the action of the Disablement Benefits Committee,
advances two arguments in justification of its conduct
BOSTON EDISON COMPANY 947
through its two Committee members. It contends that
even assuming that the changes made by the Committee
were changes in terms and conditions of employment
prescribed in the contractual Plan, it actually bargained
with the Union concerning these changes in the March
1968 discussions between its two representatives and the
Union's representative on the Committee and therefore
did not commit an unfair labor practice within the
meaning of Section 8(a)(5) or (1) of the Act. But the
Respondent's primary argument and the one it stresses in
its brief is that the Committee was "empowered" to make
the changes it made in the operation of the Plan, by the
provisions of the contract itself, i.e., by rules 10 and 7(a)
of the Plan setting forth respectively, the general powers
of the Committee and its "discretion" with respect to the
allowance of waiting period benefits. The essence of this
argument is that the action of the Respondent's two
members on the Disablement Benefits Committee, though
unilateral and attributable to the Respondent, was taken
pursuant to a contractually reserved right and power
vested in the Committee by Rule 10 of the Plan to
"administer and interpret" the Plan and "to make rules
and regulations for [the Plan's] administration . . . which
are not inconsistent with the express provisions of the
Plan."
The issues which are thus presented raise material and
proper questions for the Board's determination under the
applicable provisions of the Act. Thus, the rights of
employees under contractual sick benefits plans, like the
Plan in the present case, are unquestionably terms and
conditions of employment subject to mandatory
bargaining under Section 8(a)(5) and 8(d) and Section 9(a)
of the Act.' Under Section 8(d) of the Act, once a
contract has been executed by a union and an employer
establishing terms and conditions for "a fixed period,"
neither party is under the duty "to discuss or agree to any
modification" of these terms or conditions during the
contract period.10 Consistently, unless permitted by the
contract or waived or consented to by the union, unilateral
action by an employer changing or affecting existing terms
or conditions of employment during the contract period is
an unfair labor practice within the meaning of Section
8(a)(5) of the Act." Finally, the Board has the power to
construe or interpret a contract, when such construction
or interpretation is essential to a determination by the
Board of whether an unfair labor practice has been
committed."
The Respondent's contention that the discussions
between its two representatives and the Union's
representative on the Disablement Benefits Committee
constituted collective bargaining within the meaning of the
Act, is without merit. Under Section 8(d), the Union was
under no duty to bargain at that time concerning any
changes in the terms of the Plan since they were not open
for renegotiation during the "fixed period" of the
contract. Furthermore, the insistence by the Respondent's
two Committee representatives over the Union
representative's objection, that their proposal become
effective as the majority action of the Committee was
certainly not the "negotiation of an agreement" with the
'N.L.R B. v. Katz, 369 U.S. 736.
"C & S Industries, Inc., 158 NLRB 455, 457-459 See also N.L.R B. v.
Lion Oil Company, 352 U.S. 282, 290-291.
"N L.R B v. C & C Plywood Co., 385 U.S. 421, 425-6; C & S
Industries, supra.
"See N.L.R.B. v. C & C Plywood Co., supra. See also Mastro Plastics
Corp. v. N L.R.B., 350 U.S 270.
Union as is required in collective bargaining under Section
8(d).
A more complicated issue is presented by the opposing
contentions of the General Counsel and the Respondent as
to whether the Disablement Benefits Committee had the
power under the Plan to make the changes it did in
March 1968. In essence, the issue is whether the use of the
words "days" and "working days" under rules 2 and 7 to
define "waiting period" allowances, were such "express
provisions" of the Plan limiting the units of waiting period
benefits and allowances to "days," that the Disablement
Benefits Committee was not empowered by rule 10 to
change the unit to "hours."
The General Counsel, in denying that the Committee
had the power to change "days" to "hours" in March
1968, focuses attention on the use of the word "days" in
rules 2 and 7 of the Plan and the fact that in practice
before March 1968, nothing less than a day had been
charged to "waiting period" allowances. In further
support of his argument that rules 2 and 7 were thus
regarded by the Respondent as well as by the Union as
clear and unambiguous "express provisions" that a "day"
and nothing less was the contractually prescribed unit for
computing "waiting period" benefits and charges, the
General Counsel relies upon the fact that in the 1967
contract negotiations the Respondent unsuccessfully
attempted to negotiate a change from "days" to "hours"
in these sections of the Plan, thereby indicating (according
to the General Counsel) that the Respondent believed the
change was a bargainable matter and not subject to action
by the Committee.
The General Counsel's argument is thus based upon an
insistence that the word "days" in rule 2 and 7 be given
its literal, isolated, and unqualified meaning as it was in
practice before March 1968, plus the fact that the
Respondent attempted to pursuade the Union to make the
change to "hours" in the 1967 contract negotiations. In
making this argument upon the assertedly clear,
unambiguous meaning of the word "days" in rules 2 and
7, the General Counsel ignores, as being irrelevant, other
factors shown by the evidence and urged by the
Respondent for a contrary interpretation of the Plan: (1)
the qualifying significance of the rest of the language of
the Plan relating to the Committee's general powers and
its discretionary power with respect to "waiting period"
benefits and allowances; (2) the obvious object of the Plan
to provide employee-benefits in lieu of pay for all time
actually lost from work by reason of illness; (3) the
related observation that, even if considered in isolation,
the words "days" and "working days" as used in Rules 2
and 7 do not clearly and unambiguously have the
narrowly restricted interpretation urged by the General
Counsel but are also reasonably susceptible to a
distributive interpretation and construction equating a
"working day" with "8 hours"; (4) the fact that in
pre-1968 practice, a literal, mechanical, application of the
work "days" as a minimum unit of sick leave under the
Plan had resulted in the arbitrary and unreasonable
charge of a full day against an employee's waiting period
allowance when he had actually worked as much as 1 1/2
hours that day, and in the similarly arbitrary payment of
the amount of a full day's wage, but without any charge
against his waiting period, when he had worked more than
1 1/2 hours but less than 8 hours; and (5) the fact that
although the Respondent had chosen to attempt to
persuade the Union to agree to a change of "days" to
"hours" in the 1967 contract negotiations, little time was
spent in these discussions and the Respondent, apparently
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unwilling to burden the negotiations with undue attention
to the matter, had then abandoned the attempt and
informed the Union that the change could be made by the
Disablement Benefits Committee.
Upon consideration of these factors, I am persuaded, in
agreement with the Respondent, that a proper
interpretation of the provisions of the Plan conferred upon
the Disablement Benefits Committee power to make the
change of "days" to "hours" in the application of the
waiting period provisions of rules 2 and 7(a), and that in
doing so through its two members on the Committee, the
Respondent took action permitted by the contractual Plan
and did not commit an unfair labor practice within the
meaning of Section 8(aXl) or (5) of the Act. Specifically,
I conclude, in agreement with the Respondent , that in
view of the broadly expressed discretionary control over
allowances of waiting period benefits entrusted to the
Committee by Rule 7(a) of the Plan and of the general
provisions of the contract equating a "working day" with
"8 hours," the use of the words "days" and "working
days" in Rules 2 and 7 to define "waiting period"
allowances cannot be held to be "express provisions" of
the Plan limiting the units of waiting period benefits and
allowances to "days" and precluding the computation of
such benefits by the Committee in units of "hours"; that
the Committee's change of the words "days" to "hours"
in order to charge employees with part-days of sick leave
and discourage unjustified claims of part-day illnesses, was
therefore not a substantive change in any limiting "express
provision" of the Plan and was accordingly permissible
and within the Committee's broad powers under Rule 10
to "act on all problems arising under this Plan," to
"administer and interpret" the Plan, and to "make rules
and regulations for its administration . which are not
inconsistent with the express provisions of the Plan."
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
Conclusions of Law
1. The Respondent , Boston Edison Company, is an
employer engaged in commerce within the meaning of the
Act.
2. Local 369, Utility Workers Union of America,
AFL-CIO is a labor organization within the meaning of
the Act.
3. The Respondent has not engaged in the unfair labor
practices within the meaning of the Act which are alleged
in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in the case, it is
recommended that the complaint herein be dismissed in its
entirety.