Central Illinois Public Service Co.

National Labor Relations Board - Board Decisions

Nov 29, 1962

139 N.L.R.B. 1407 (N.L.R.B. 1962)

CENTRAL ILLINOIS PUBLIC SERVICE COMPANY 1407
shall consist of forty (40) hours. Time and one-half (1z) the employee's straight
time hourly rate of pay shall be paid for all work performed after eight (8) nuurs
pei uay, iu:ty k40) flours per weeK, before 7:00 a.m. and after 6:00 p.m. except on
Fridays when the straight time work day shall be concluded by 6:00 p.m.
A-2. Overtime will be paid on one basis only, whichever is the most favorable
to the employee, but in no case on more than one basis with the same hours worked.
A-3. Work performed on Sundays will be paid for at two (2) times the employee's
straight time hourly rate. Such work performed on Sunday may be included as part
of the basic work week if any employee is scheduled and works eight (8) hours. If
an employee is scheduled and works less than eight (8) hours such time worked shall
be in addition to the basic work week.
A-4. No employee shall be required to work before 7:00 a.m. The schedule of
days off shall be equitable among all of the employees in the respective markets.
B. Extra journeymen shall be paid time and one-half (11/2) for work after 6:00
p m. except on Friday, when time and one-half (1ih) will be paid for work in excess
of eight (8) hours.
C. Preference will be given in the matter of work after 6:00 p.m. to regular full-
time employees according to job classification, provided regular employees are avail-
able for work. Work schedules shall be rotated in the market among full-time
employees to equalize overtime and premium hours within the classification. It is
agreed that an employee must be qualified for night work. Any employee working
after 6:00 p m. shall be paid three (3) hours pay at time and one-half (11/2) or
for any additional hours more than three (3) that he might work, except as provided
for extra journeymen.
D. It is agreed that there shall be at least one (1) male member of the bargaining
unit on duty in the market after 6:00 p.m and on Sunday where fresh meats are sold.
This paragraph will not apply in cases of owner-operated markets where the owner
is to be on duty.
E. The term "owner-operator" shall be construed as meaning the principal owner
of a market who normally works these hours.
Central Illinois Public Service Company and Local Union No.
702, International Brotherhood of Electrical Workers, AFL-
CIO. Case No. 14-CA-2701. November 29, 1962
DECISION AND ORDER
On July 19, 1962, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Intermediate Report. Thereafter,
the Respondent and the Charging Union filed exceptions to the Inter-
mediate Report and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
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 Intermed:-
1 The Respondent's request for oral argument is hereby denied as the record , exceptions,
and briefs adequately present the issues and the positions of the parties.
139 NLRB No. 120.
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner
With the following modifications :
(a) The reimbursement obligation of the Respondent shall include
the payment of interest at the rate of 6 percent per annum, to be com-
puted in the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716.2
(b) The penultimate paragraph in the notice is amended to read
"60 consecutive days from the date of posting" instead of "60 days
from the date hereof."
2 For the reasons stated in their dissenting opinion in the Isis case, Members Rodgers
and Leedom are convinced that the award of interest in this case exceeds the Board's
remedial authority. While adhering to such view, for the purposes of this decision they
are acceding to the majority Board policy of granting interest on moneys due.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge, filed February 6, 1962, by Local Union No. 702, International
Brotherhood of Electrical Workers, AFL-CIO, herein called the Union, against
Central Illinois Public Service Company, herein called the Company or the Re-
spondent, the General Counsel, on April 26, 1962, issued a complaint alleging that
Respondent in respects more fully to be set out below, had engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called
the Act The Respondent, by answer, denied the commission of the alleged unfair
labor practices. A hearing was held before Trial Examiner Arthur Leff at Mattoon,
Illinois, on June 12, 1962. Thereafter, the General Counsel and the Respondent
filed briefs.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. BUSINESS OF THE COMPANY
Central Illinois Public Service Company, an Illinois corporation with its principal
office at Springfield, Illinois, is engaged in the business of furnishing electricity and
gas as a public utility service to consumers in central and southern Illinois. It an-
nually purchases goods or services originating outside the State of Illinois of a value
in excess of $50,000. The Respondent admits that it is engaged in commerce within
the meaning of Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 702, International Brotherhood of Electrical Workers, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
A. Introduction; the issues
The Union has been since 1945, and now is, the recognized exclusive bargaining
representative of certain of the Respondent's employees in its eastern division-more
specifically identified in the footnote-who, it is found, constitute an appropriate
unit for the purposes of collective bargaining within the meaning of Section 9(b)
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY 1409
of the Act.' From 1945 to date there has always been in effect a written agreement
relating to wages, hours, and other conditions of employment of employees in the
appropriate unit, although new agreements or revisions have been negotiated from
time to time. The Respondent and the Union have generally enjoyed a harmonious
contractual relationship. Save for the controversy involved in the present proceed-
ing, no dispute has ever arisen between the contracting parties that they have not
themselves been able amicably to resolve at some stage short of arbitration.
The controversy in the instant case centers about the Respondent's discontinuance-
announced on August 15, 1961, and made effective as of September 15, 1961-of a
price discount on gas which the Respondent for many years theretofore had granted
its eastern division employees who used gas for space heating purposes.
The complaint alleges in substance that the Respondent violated Section 8 (a) (1)
and (5) of the Act by (1) unilaterally discontinuing the employee gas discount with-
out prior consultation or bargaining with the Union concerning such discontinuance,
and (2) refusing on and after August 25, 1962, to bargain in good faith with the
Union as to the same subject matter. To the two counts alleged in the complaint, the
General Counsel has added in his brief what is in effect a third. The third count
rests on the asserted-but disputed-factual premise that the Respondent was bound
by an existing collective-bargaining contract to maintain the employee gas discount
in effect. Its theory is that the discontinuance of the gas discount constituted a con-
tract modification requiring compliance-not met-with the required 60-day notice
and other premodification requirements commanded by Section 8(d) of the Act
With regard to the first count, the Respondent in its answer admits that it did not
consult or bargain with the Union as to the discontinuance of the employee gas dis-
count prior to the announcement of such discontinuance on August 15, 1961, but it
avers that it was under no duty so to do. As to the count alleging a refusal to bar-
gain in good faith after August 25, 1961, the Respondent insists that it fully per-
formed its bargaining obligations under the Act. As already indicated, the Re-
spondent meets the third count by taking issue with the asserted factual premise on
which it is founded.
B. The history of the employee gas discount
Prior to August 15, 1961, the employee gas discount in question had been in effect
for some 36 years or more. The discount antedated by 16 years the Respondent's
recognition of the Union as the bargaining representative of the employees here
involved. The discount was available to all employees in the Respondent's eastern
division who used the Respondent's gas service for residential space heating purposes.
Under rate schedules filed by the Respondent with the Illinois Commerce Commis-
sion, employees using gas for such purposes were entitled to a discount of 331/3
percent of the general domestic consumer price of the gas used. Though the gas
discount was available to all in the bargaining unit (as well as all other employees
in the Respondent's eastern division), substantially less than half of the unit em-
ployees actually enjoyed the benefits of the discount, since the others did not meet
the required condition of using gas heating facilities in their homes. The latest
figures available are for the year 1960. During that year there were 126 employees
in the unit who received the discount on their gas service bills. The aggregate sav-
ings to such employees as a result of the discount came to $6,026, reflecting an av-
erage annual monetary benefit of about $48 to each employee obtaining the discount.
No express reference to the gas discount has ever appeared in any of the collective-
bargaining agreements that have been negotiated between the Respondent and the
Union.
At the hearing, however, the General Counsel sought to establish that the gas
discount was actually brought under the umbrella of the collective-bargaining
agreements by virtue of a provision which was first written into the 1948 agreement
and which has appeared without change in all succeeding agreements. That pro-
The stipulated appropriate unit is as follows:
All journeyman and apprentice linemen, patrolmen-groundmen, line-clearance men,
line-clearance groundmen, groundmen truckdrivers, groundmen, storeroom men-
groundmen, substation electrician-trouble men, substation electricians and their ap-
prentices, substation operators, meter and relay specialists, metermen and rcla' men
journeymen and apprentices, power meter installers and testers, metermen and testers,
meter repalr-groundmen, journeyman and apprentice gas utility men, gas fitters, gas
utility men helpers , gas repairmen , gas meter repairmen , storekeepers , storeroom
men, communication telemeter men and their apprentices, and janitors employed by
the Respondent in its eastern division , excluding all other employees , office clerical
employees , guards, and supervisors as defined in the Act.
1410 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
vision is part of a seniority article which also appeared for the first time in the
1948 agreement. It reads as follows:
The foregoing [seniority provisions] shall not alter or effect any rights such
as vacations, sick leave, annuities or other benefits and privileges which any
regular employee may have accumulated for service with the Company prior
to being employed hereunder. [Emphasis supplied.]
The quoted provision on its face, as well as in the seniority context in which it
appears, is quite clearly limited to benefits which are related in whole or in part to
past accumulated service. It cannot reasonably be read as having any application
to benefits, such as the gas discount, that have nothing to do with an employee's
length of service and are available to all employees.
The General Counsel apparently agrees that a contractual covenant to maintain
the gas discount cannot be spelled out from a literal reading of the provision on
which he relies. But he contends that the provision should be read, not alone, but
with the gloss of what he asserts-and the Respondent disputes-was an oral under-
standing reached between the Union and the Company during the 1948 negotiations.
Whether or not there was such an understanding reached was the most extensively
litigated factual issue at the hearing.
It appears without dispute that in the 1948 negotiations, the Union submitted among
its bargaining demands a request for the inclusion of a contractual provision reading
as follows:
Any benefit or condition that has been established by the company and is not
covered in the agreement shall remain in effect for the duration of the
agreement.
But it is also undisputed that the foregoing clause never found its way into the con-
tract negotiated that year, nor into any later contract. The only provision even
remotely related to a maintenance of standards clause resulting from the 1948 con-
tract negotiations was the section of the seniority article to which reference has been
made. The General Counsel called three of the union negotiators who had been
present at the 1948 negotiations to testify as to what was said concerning the gas
discount. Through them he sought to develop that: (1) when the Union's proposed
maintenance of standards clause was discussed, the union representatives made it clear
that that clause was intended to cover among other things the gas discount; (2) al-
though the maintenance of standards clause was not accepted in the form submitted,
the quoted seniority article provision was at least a partial outgrowth of the Union's
demand, and (3) the union negotiators, not satisfied that the contract language as
finally agreed upon was sufficient to cover the gas discount, demanded specific
language covering the gas discount, but finally decided not to press that demand
after the Respondent's principal negotiator (now deceased) had expressed the view
that the already agreed-upon contractual language was sufficient to take care of all
fringe benefits and extras not specified in the contract. The collective testimony of
the General Counsel's witnesses may perhaps be read as being roughly to the foregoing
purport But the testimony is not as clear as one might wish. When it came down
to specific detail , the testimony of the individual witnesses was marked by evident
confusion and internal inconsistencies , generally reflecting a vagueness and un-
certainty in recollection that is not surprising when one remembers that the witnesses
were seeking to reconstruct events 14 years old. The Respondent, on its part, called
two witnesses, only one of whom, however, was certainly present at the 1948 negotia-
tions. The Respondent's witnesses had no recollection at all of the gas discount
having been discussed during the 1948 negotiations, or for that matter, during any
other negotiations held prior to 1961.
From my appraisal of all the testimony, I believe that the gas discount probably
came up for discussion in 1948 in connection with Union's proposed but unaccepted
maintenance of standards clause. But I am not fully satisfied that the record evidence
establishes with sufficient reliability that the parties reached a definite understanding
to construe the seniority provision as the practical equivalent of a general mainte-
nance of standards clause applicable, inter aha, to the gas discount 2 In any event,
credibility questions aside, I think it clear that the General Counsel's claim is fore-
closed by the parol evidence rule The language of the seniority provision in ques-
tion is unambiguous, and cannot without manifest distortion be construed as the
2 In that connection, I note that the Union's 1950 bargaining demands contained the
following request, "All insurance plans be part of the agreement and be listed as Appendix
A, B, C, etc." Obviously, there was no reason to single out the insurance plans for such
incorporation if the provision under the seniority article amounted to a general rnainte-
nance of standards clause.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY 1411
General Counsel would have it construed. In these circumstances resort may not
be had to what may have been said in preliminary negotiations, either to import doubt
into the meaning of the contractual language as written, or to alter or vary the
plain meaning of what was written so as to show an intent different from that ex-
pressed in the instrument 12 Am. Jur. §1 232-234 Accordingly, I reject the Gen-
eral Counsel's request for a finding that the provision in the seniority article in
question constituted, inter alia, a contractual commitment on the Respondent's part
to maintain the gas discount in effect.
But though not covered by the contract, the gas discount, I find, was considered by
the parties as an existing employment term related to wages. Several witnesses for
the General Counsel testified that on various occasions during contract negotiations
over the course of years, usually when the comparability of the unit employees' wage
rates to that of others was under discussion, the company representatives pointed out
that in making any such wage comparison the gas discount benefit allowed the unit
employees was a wage component not to be ignored. Although the Respondent's
witnesses disclaimed any specific recollection of statements to that effect, I accept as
plausible and credible the positive testimony of the General Counsel's witnesses to
that effect.
C. Unilateral discontinuance of the gas discount, events prior
to September 15, 1961
On August 15, 1961, the Union and the Respondent were in the midst of bargaining
negotiations on an amended contract. The term of the last contract had ended on
June 30, 1961, but, as provided for therein, the contract's terms and conditions were
automatically renewed for an additional year subject to concellation or amendment
upon the giving of 60 days' written notice. In May 1961, both parties to the contract
had submitted proposed amendments. None of the proposals made any reference to
the gas discount, nor was any mention of the gas discount made by either side at any
of the several negotiating meetings which were held prior to August 15, 1961.
The Respondent's determination to discontinue the gas discount was made at a
meeting of company officials held on August 14, 1961. Philip E. Hanna, an attorney
for the Respondent, was present at the meeting. The question of whether the Re-
spondent was under a duty to bargain with the Union about the discontinuance of-
the discount was discussed. Attorney Hanna, as appears from his testimony, advised
the company officials that if the Union requested bargaining on that subject the Re-
spondent was under a duty to bargain. There was also some discussion at this meet-
ing as to whether the Respondent should notify the Union before announcing the dis-
continuance of the discount. Hanna was not asked for a legal opinion on that specific
question, however, according to his testimony. In any event, the Respondent decided
to proceed without notice to the Union.
Under the Public Utilities Act of Illinois (Ill. Rev. Stat. Ch. 111-2/3, Section 36),
the discontinuance of the gas discount involved a consumer rate change requiring
30 days' notice to the Illinois Commerce Commission before it could become legally
effective. On August 15, 1961, the Respondent filed a revised rate schedule with
the Illinois Commerce Commission, stating in effect that commencing on Septem-
ber 15, 1961, the 331/3-percent employee gas discount theretofore allowed its em-
ployees would no longer be available save in the case of former employees who had
retired before that date. Further in compliance with the Illinois statute, the Respond-
ent at the same time posted in each of its gas offices announcements to the public of
the filing of the rate change. In addition, the Respondent distributed to all its eastern
division employees-some of whom were officers of the Union or members of its
negotiating committee-a bulletin announcing the discontinuance of the gas discount.
The Respondent, however, made no effort officially to notify the Union of the action
it was taking, or to bargain or consult with the Union concerning that action.
In its August 15 bulletin to employees, the Respondent gave its reasons for dis-
continuing the gas discount. The bulletin explained that the gas discount had had
its genesis many years before as a promotional measure designed to educate the public
in the advantages of the use of gas fuel. But the situation was now different, the bul-
letin went on. Over the course of years, gas heating had gained widespread public
acceptance and the cost of natural gas for space heating had become less than compet-
ing fuels. Therefore, the Company felt it could "no longer justify special em-
ployee incentives" as a promotional measure. Accordingly, effective September 15,
1961, the gas discount was being discontinued.
The Respondent's announced action came to the attention of J. 0 Jones, the
Union's business manager. On August 25, 1961, Jones wrote K. E. Bowen, the
Respondent's eastern division manager, protesting the discount discontinuance as
672010-63-vol. 139-90
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being in "violation of the policy and application of the labor agreement" and also
"in violation of doing this unilaterally." "We will be glad to discuss this matter with
you at your earliest convenience," Jones added in his letter.
Bowen, upon receipt of the letter, communicated its contents to M. A. Kirk, who
is manager of the Respondent's personnel and safety department, and, as such,
has overall charge of the Respondent's labor relations. The Respondent, however,
did not acknowledge or answer Jones' letter.
On September 7, 1961, Kirk and other company officials met with Jones and other
union representatives at a contract negotiating meeting pertaining to the eastern
division bargaining unit. Neither side said anything about the gas discount at the
meeting. The Union explains that it did not raise the subject because it did not
consider it properly part of the contract negotiations then being conducted, neither
side having opened up the gas discount as a subject for contract negotiation under
the formal amendment notices theretofore served. The Respondent offered no
explanation for its silence, but its overall position implies that it considered the
burden to be on the Union to take the initiative.
On September 11, 1961, Jones again wrote Bowen. Jones referred to his un-
answered letter of August 25, asked for an expression of the Respondent's "views,"
and urged on early reply. On September 13, 1961, Bowen answered by simply sending
Jones a copy of the August 15 employee bulletin, a bulletin which it is fair to assume
the Respondent then knew must already have come to Jones' attention. There were
no further communications, oral or written, between the parties concerning the gas
discount up to September 15, 1961, the date discontinuance automatically became
effective under the filing with the Illinois Commerce Commission.
D. Subsequent events; bargaining on the Union 's grievance
Between September 21 and November 28, 1961, five additional letters passed
between Jones and Bowen concerning the gas discount . On September 21, Jones
advised Bowen that the employees were not satisfied with the information they
had received in the bulletin . He requested the Respondent to "rescind [ its] order
to discontinue the discount on gas bills as of September 15, 1961, as this was done
on a unilateral basis." Jones in his letter added that if the Respondent could not
"see [its] way clear to do this," he wanted a meeting at a very early date to negotiate
the matter. Bowen waited until October 4 , to reply. He then wrote Jones, stating
that the Respondent saw no reason for changing its views ; however, if Jones wanted
further discussion , Bowen was willing to meet with him at a mutually acceptable date.
Jones replied the next day : "Yes, I will definitely want to discuss the matter with
you on a mutually acceptable date " He did not, however , propose any specific date
for a meeting . On October 20, Jones again wrote Bowen. Referring to the gas
discount discontinuance as a "grievance ," Jones requested the Respondent to supply
him with information as to the number of employees affected by the Company 's action
and the cost to the Company of the discount in 1960. "After receiving this [he
added] I would like to meet with you as early as possible to attempt to settle this
grievance in the proper manner ." More than a month later--ten November 28, 1961,
to be precise-Bowen forwarded Jones the information he had requested . Sometime
thereafter , a representative of the Union contacted Bowen to ask for a meeting date
on the gas discount grievance . Arrangements were made to meet on January 5, 1962.
In the meantime , some seven additional bargaining meetings were held on the
pending contract negotiations The last meeting was held on December 20, 1961,
when final resolution was reached on all contract issues. The contract , which was
for the term running from July 1, 1961, to June 30 , 1962, was ratified on January 4,
1962. At the contract negotiating meetings , both sides carefully refrained from
making any mention of the gas discount controversy . The Respondent conceded
at the hearing that it did not consider the resolution of the contract issues to affect
in any way the gas discount dispute Kirk testified that though agreement had other-
wise been concluded on wages, hours , and working conditions , he understood
that the gas discount question still remained open.
In subsequent contacts with the Company , the Union , it appears , processed, or at
least sought to process , the gas discount dispute as a grievance coming under the
grievance machinery of the contract. The Respondent , so far as this record shows,
raised no objection to that procedure until the matter went through the penultimate
step of the grievance procedure But, as will later more fully appear , the Respondent
balked at arbitration , the final step of the grievance procedure The Respondent's
present position , as stated by its counsel in his opening statement , is this-that, while
recognizing, and, so it claims , fulfilling, its statutory obligation to bargain with the
Union on request concerning the discontinuance of the gas discount , the Respondent
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY 1413
nevertheless never recognized the gas discount controversy as one cognizable under
the contract's grievance procedure for the reason that the discount was not specifically
covered by ,the contract as a term and condition of employment.
The contractual provisions relating to disputes and grievances were in full force
and effect at all times material herein, even while the contract was reopened for
negotiation on other limited matters. In the contract, the Union recognizes that
the services of the covered employees "are essential to the operation of a public utility
and to the welfare of the public dependent thereon," and, in consideration thereof,
agrees "that under no conditions, and in no event whatsoever, will the [covered]
employees ... be called upon or permitted" to engage in strikes or work stoppages.
As the quid pro quo for the no-strike clause, the Company agrees with the Union "that
any differences that may arise between the above-mentioned parties shall be settled in
the manner [in the contract] provided." The contract then proceeds to set out a
several-stage grievance procedure, terminable in arbitration, "[I]n case of any dis-
agreement arismg between the Company and any employee and/or the employee
under this Agreement." 3
At the meeting on January 5, 1962, Assistant Business Manager Fryer and a
committee of employees appeared for the Union, and Division Manager Bowen and
division personnel, for the Respondent. This reflected a second-step grievance meet-
ing, the first step (employee grieves to supervisor) apparently having been considered
inapplicable in the situation. Fryer complained of the Respondent's unilateral dis-
continuance of the employee gas discount and requested the Company to rescind its
action and make the employees whole. Bowen, on his side, explained the Respond-
ent's position in substantially the same ,terms as was stated in the employee bulletin
released on August 15. There was little further discussion at this meeting, Bowen
having made it clear that the discontinuance decision was a headquarters and not a
division decision. It was apparently understood by all that the meeting at this step was
a procedural formality only, and that if the dispute were to be settled at all it would
have to be carried to a higher level of the grievance procedure.
On January 16, 1962, Jones advised Kirk by letter that the Union had been unable
to settle the grievance at the division level and requested a meeting with Kirk at
the next step of the grievance procedure in accordance with the terms of the contract .4
A meeting was thereafter arranged for January 31, Jones designating Fryer to act for
him as the Union's representative.
On January 31, 1962, Fryer met with Kirk at Vandalia. Fryer restated the Union's
grievance. He asked the Company to restore the discount and make the employees
whole, and stated that if, after that was done, the Company still desired discontinu-
ance, it might bring the matter up for negotiation at a later appropriate time. Both
sides reviewed the situation at length and presented their respective positions on the
merits of the controversy. Kirk stated in substance that the Company had originally
initiated the discount as a promotional measure; that the Company felt it was no
longer needed for that purpose; that the Company also considered the discount
discriminatory because not all employees actually benefited from it; that the discount
had never been negotiated and was not a term and condition of employment covered
by the contract; and that the Company did not regard the discount as a wage benefit.
There is a conflict as to whether Kirk also declared that the Company viewed the
discount as a nonbargainable management prerogative. Fryer says he did; Kirk
denies it. While I believe that Kirk may have made some such passing statement
in the course of his comments, I am nevertheless satisfied that the Respondent at no
time sought to rely on that as a ground for foreclosing full discussion of the grievance
or as a block to the negotiation of a mutually acceptable settlement. On the con-
trary, it is undisputed that Kirk did suggest the possibility of some compromise
adjustment. Thus Kirk mentioned that in situations where other utility companies
had eliminated similar employee discounts, settlements had been reached on the
basis either of a lump sum payment to affected employees or of negotiated com-
a Note the difference between this last-quoted phrase and the one quoted immediately
above The Respondent relies on the words "under this agreement" as supporting its
position that the grievance procedure is applicable only to disputes involving terms and
conditions expressly covered by the contract . The General Counsel and the Union point
to the earlier phrase as conveying a broader intent They contend that the grievance
and arbitration provisions should be read as coextensive in scope with the no -strike clause
They also argue that the phrase "under this agreement " modifies "any employee and/or
employees ," and not, as the Respondent asserts, "any disagreement"
4 The third step of the grievance procedure calls for a meeting between the Union's
business manager and the Company' s manager of the personnel and safety department
(Kirk).
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pensatory increases in hourly rates . Although stating he had no authority at the
time to make a specific otter to this effect, Kirk askew Fryer how the Union would
view a settlement under which the affected employees would be paid the equivalent
of their discount for 1 year. Kirk made it clear to Fryer that the Company, although
it wanted the discount eliminated, was willing to consider other possible methods of
reaching an accord and would be glad to consider any proposals along that line the
Union might wish to offer. Fryer, in reply, stated that he had not theretofore con-
sidered the possibility of a compromise settlement . But he promised to review that
subject with his people and to let Kirk know.
Several days ]at_,, Fryer called Kirk to advise him that the Union had no compro-
mise proposal it wished to make. At that time, also, Fryer requested a further
meeting with the Company at which an International representative might be present.
To this, Kirk agreed.
The further meeting-which proved to be the last on this subject-was held at
the Company's Springfield headquarters on February 20, 1962. Fryer was accom-
panied by International Representative R F. Lythgoe, and Kirk by the Company's
counsel, Philip E. Hanna. As at the earlier meeting, the Union again complained
of the Respondent's unilateral action and insisted that the Respondent restore the
status quo ante and make the affected employees whole. The Respondent stated
its position substantially along the same lines as at the earlier meetings. There was
considerable discussion at this meeting, and complete disagreement, as to whether
the gas discount had been specifically bargained about and agreed to as a contract-
covered benefit in earlier years. There was also some discussion as to whether
the Respondent had fulfilled its bargaining obligations. There is a conflict in the
testimony as to whether Hanna took the position at this meeting that the gas discount
was a nonbargainable management prerogative, a conflict which in this instance,
and in line with Hanna's credited denial, I resolve in favor of the Respondent. The-
meeting ended with the respective positions of the parties remaining unchanged.
On March 1, 1962, the Union by telegram advised the Respondent that its posi-
tion was still "the same as through all the grievance steps," and again demanded
that "the Company restore the gas discount and make the employees whole." The
alternative, the Union added, was to invoke arbitration as the next step in the-
grievance procedure. On March 5, 1962, the Respondent replied by letter, stating
that for reasons already given it did "not feel that it would be appropriate to restore
the employee gas discount." As for arbitration-the Respondent added-it did not
consider the matter in dispute an "appropriate subject for arbitration under the
collective-bargaining agreement since "the gas discount has never, as far as we know,
been a matter of previous negotiations between the Company and the Union and'
has never been mentioned in any of the previous Agreements between the parties."
Moreover, stated the Respondent, even if covered by the agreement, the Respondent's.
position nevertheless was that the Union had "given up its right to arbitrate in view
of the fact that it had sought relief through charges filed with the [Board]." There-
after, there was a further exchange of correspondence in which the Union expressly
requested arbitration and the Respondent refused. On April 19, 1962, the Union
filed a suit in the Federal District Court for the Eastern Division of Illinois seeking
arbitration. That suit was still pending undetermined at the time of the hearing in
the instant proceeding.
E. Analysis and concluding findings
(1)
As was pointed out in the introductory subsection above, the General Counsel'
has three strings to his bow. He would predicate a finding of a Section 8(a)(5)
violation, and derivatively of Section 8(a)(1) as well, upon three independent
counts-(1) the Respondent's unilateral action in initially discontinuing the gas dis-
count; (2) the Respondent's alleged refusal thereafter to bargain with the Union
in good faith concerning such discontinuance; and (3) the Respondent's asserted
failure to comply with the 60-day notice and other contract modification require-
ments of Section 8(d).
(2)
The third count can most quickly be disposed of, and will therefore be considered
first. The contract modification restrictions of Section 8(d) apply, the Board has.
held, "to terms and conditions which have been integrated and embodied into a
contract"; they do not refer "to matters relating to 'wages, hours and other terms
and conditions of employment' which have not been reduced to writing" Tide Water-
Associated Oil Company, 85 NLRB 1096, 1099; Allied Mills, Inc., 82 NLRB 854.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY 1415
See also, United Telephone Company of the West and United Utilities, Incorporated,
112 NLRB 779, 781. So much the General Counsel does not dispute. Asa predicate
for a finding of an 8(d) violation, the General Counsel sought to establish that
the gas discount had been incorporated by reference in the contract as a term and
condition of employment through the seniority article discussed above. But in that
respect, as has been seen, his proof fell short of the mark. Thus deprived of factual
support, this count falls.
(3)
I consider now the unilateral action count. Though never written into the col-
lective-bargaining agreement, the gas discount had long been established as an
,existing term and perquisite of employment. Of appreciable monetary value, the
benefit was available to all employees in the bargaining unit, although only those
who met the space heating condition could reap the advantage of it. The Board,
with court approval, has broadly construed the term "wages" as used in the Act
to include "emoluments of value ... which may accrue to employees out of their
employment relationship." 5 The gas discount, I find, clearly fell within the meaning
of "wages" and "conditions of employment" as used in Section 9(a) of the Act.
The Respondent was thus under a statutory obligation to bargain with the Union
concerning any changes it desired to effect in that existing benefit. And this is no less
true even though the benefit had its origin in voluntary action by the Respondent
and had never become part of a negotiated collective-bargaining agreement.6
At the hearing the Respondent did not dispute that the gas discount represented
a mandatory subject of collective bargaining. Indeed it adduced evidence itself to
show that it was so advised by counsel before it discontinued the discount. Now
in its brief, however, the Respondent for the first time questions the propriety of a
Board holding that would make bargaining on an employee rate discount obligatory
under Federal law. More specifically, the Respondent stresses that the gas discount
was an integrated part of a public utility rate structure which is subject to State
regulation and control. And it argues that it would be unwarranted Federal inter-
ference with a State's power to regulate utility rates for the Board to hold that an
employee rate discount falls within the compass of the Act's mandatory bargaining
requirement.
As applied to the facts of this case, I find that argument wanting in substance.
The practice of granting employees a gas discount was originally initiated by com-
pany action and not imposed by State regulation. The discontinuance of that dis-
count was likewise initiated by company decision, not commanded by State action.
It may be granted that a State's regulatory authority should be left free to approve
or disapprove employee rate discounts, or changes therein, where such discounts
form part of a public utility's overall consumer rate structure. But that is not the
question here. We are concerned here solely with a change of rates specifically
applicable to a public utility company's own employees and directly related to their
terms and conditions of employment. Before submission to the State regulatory
,authority, a determination had to be made at the employer level as to whether such
a change was to be sought at all. The question is whether that preliminary deter-
mination was a matter solely of employer concern and therefore one for him alone
to make, or, rather, whether it was a matter of mutual employer-employee interest
and concern, entitling the employees' statutory bargaining representative to par-
ticipation in the making of that preliminary determination. To hold as I do that
it was the latter, and hence a mandatory subject of collective bargaining, is in no
way to infringe upon or impair the State's power or authority to regulate and
ultimately control public utility rates.?
5lnland Steel Company, 77 NLRB 1, enfd 170 F. 2d 247 (CA 7), cert denied 336
U S 960. See also, W TV. Cross and Company, Inc v NL.R B , 174 F 2d 875 (C.A 1),
where the court stated that by the use of the term "wages," Congress ". . must have
meant to comprehend emoluments relating from employment in addition to or supple-
mentary to actual rates of pay "
6 See, e.g., N.L R.B. V. Niles-Bement-Pond Company, 199 F. 2d 713 (C.A. 2) ; Weyer-
haeuser Timber Company, 87 NLRB 672; Proctor Manufacturing Corporation, 131 NLRB
1166; The American Lubricants Company, 136 NLRB 946. See also N L R.B. v. Jacobs
Manufacturing Company, 196 F. 2d 680 (C.A. 2).
7 The Respondent in its brief also for the first time suggests that an employer gas
discount may be illegal under a nondiscrimination provision in the Illinois statute pro-
hibiting a public utility from granting any preference in rates to any person. (I11. Rev.
Stat. Cr. 111-2/3, Section 38). The Respondent does not say that it is, only that it
may be. The Respondent in its dealings with the Union never gave that as a reason for
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is of course well settled that compliance with Section 8(a)(5) and (1) of
the Act presupposes that an employer will not alter existing "wages" or "conditions
of employment" without first consulting the exclusive bargaining agent of the af-
fected employees and affording the Union an opportunity to negotiate on the pro-
posed changes. The Respondent in this case admits that it did not consult or
bargain with the Union about the discontinuance of the gas discount prior to Au-
gust 15, 1961, when it filed the revised rate schedule with the Illinois Commerce
Commission and notified its employees that the gas discount was being discontinued
"effective September 15, 1961." The Respondent, however, disputes that its failure
to do so constituted unlawful unilateral action as alleged in the complaint.
The Respondent contends that its action on August 15, 1961, should be con-
strued as in the nature of proposed and not final action. This was necessarily so,
it says, because under the applicable Illinois law a 30-day waiting period had to
elapse before the discontinuance of the gas discount could become effective, and
within that time the Union or any other interested person was free to file objections
with the Illinois Commerce Commission. The Respondent further contends that
although it did not give the Union direct notice of the action it was taking, it did
nevertheless substantially comply with its statutory obligation to notify the Union
of the change it was proposing, by means of the August 1S bulletin which might
be expected to, and in fact did, come to the Union's attention The Union thus
had 30 days, according to the Respondent, within which either to attempt to block
the employee rate by filing a complaint with the Illinois Commerce Commission,
or itself to initiate negotiations with the Respondent on the subject. And since-
further according to the Respondent-the Union did neither, it may not now be
heard to complain.
The Respondent's arguments as above set forth do not persuade. It is quite clear
that the Respondent had arrived at a final determination to discontinue the gas
discount before filing the revised schedule with the Illinois Commerce Commission.
Considering the 30-day notice requirements rate changes under Illinois law, the filing
of the revised schedule was the last step the Respondent could have taken to effectu-
ate the discontinuance. In that sense the filing clearly constituted, and I find it was
intended to constitute, final action on the Respondent's part. !t is no answer to
say that it was still open to the Union to file a protest with the Illinois Commerce
Commission. This cannot be considered an effective substitute for the empioyer-
union bargaining the Act requires. I think it clear, moreover, that the employee
bulletin of August 15 was neither intended as a notice to the Union of proposed
but still tentative action, nor designed to provide the Union an opportunity to consult
and bargain with the Respondent before the rate change became effective The
bulletin is fairly to be read, not as a declaration of intention, open to reconsideration,
but as the announcement 'if a fait accompli Moreover, even if viewed as a declara-
tion of intention, subject to review, this alone would not be enough to comply with
the bargaining obligations the Act imposes Under the law, an employer, before
effecting changes in wages and working conditions, is required, not only to notify
the employees representative, but to meet and confer with the representative and
negotiate in good faith to an accord or impasse. There may be circumstances in
which a union's failure to object to announced but not yet effectuated employer ac-
tion may be viewed as an acquiescence on its part to accept such changes without
bargaining. But that can scarcely be said to be the case here. The Union by its
letter of August 25 (which the Respondent chose to ignore) put the Respondent on
timely notice that it opposed the discontinuance of the gas discount; considered
it at the very minimum a subject for collective bargaining; and desired an opportunity
to consult with the Respondent concerning it. Having been put on such notice, the
Respondent could thereafter have been under no illusion of union acquiescence. The
Respondent was then still in a position, if it desired to satisfy its bargaining obliga-
tions, to withhold final effectuation of the discount discontinuance by withdrawing
the revised schedule it had filed with the Illinois Commerce Commission. Yet it
chose to do nothing. The Respondent, contrary to its contention, was not released
the discontinuance of the gas discount Even if it were a reason, it should have been dis-
closed to and discussed with the Union before unilateral action was taken The Respond-
ent makes no claim that it was directed by the State regulatory authority to discontinue
the employee rate discount for that or any other reason, or that it acted other than on
its own volition. Apparently the Respondent must halve considered the discount lawful
during the 36 years it remained in effect It is noted, moreover, that the Respondent
still retains the discount for retired employees
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY 1417
from its duty to bargain because the Union did not request a specific meeting date
or itself bring up the subject of the gas discount at the contract negotiating meeting
held on September 7. The affirmative in initiating the required consultations lay with
the Respondent which was seeking the change. On these facts, I cannot agree
with the Respondent that it granted the Union an adequate opportunity to negotiate
concerning the elimination of the gas discount before finally effecting its unilateral
action and that the Union by virtue of its own inaction is now in effect estopped
to claim a failure to bargain.
By way of further defense, the Respondent stresses its good faith. It points to
its many years of harmonious bargaining relations with the Union, to the absence
of any background of union animus, and to the fact that the unilateral action here
complained of was an isolated occurrence which, so it says, has not been shown by
any independent evidence to have been motivated by a desire to bypass the Union
or avoid bargaining. Bearing in mind that the Respondent was advised by its
counsel before taking the unilateral action that the gas discount involved a bargain-
able subject, and considering also the Respondent's failure to pay heed to the Union's
protest of August 25, one may well question the validity of the Respondent's pro-
testations of innocence. In any event, the fact is that the Respondent did bypass
the Union and did avoid bargaining by taking unilateral action without prior con-
sultation with the Union This constituted a refusal to bargain in fact and is suffi-
cient without more to spell out a substantive violation of Section 8(a)(5) and (1),
even in the absence of an independent showing that the Respondent was guilty of
overall subjective bad faith. N L R.B. v Benue Katz, etc , d/b/a Williamsburg Steel
Products Co., 369 U S. 736.
The Respondent also points to the fact that it did eventually-but not as the
record shows until after the discontinuance of the gas discount was already a fait
accompli-meet and confer with the Union about the action it had taken. How-
ever, accepting the Respondent's assertion that it later negotiated in good faith-
a subject with v'h.ch I deal at lcng1h in the succeeding section of this report-this
did not eradicate the initial violation inherent in its unilateral action Save in
special circumstances not present here, the bargaining philosophy of the Act re-
quires that good-faith negotiations precede rather than follow changes in bargain-
able conditions of employment. The record cler rly shows that throughout the
later negotiations the Union continued to protest the Zesp cndent's earlier unilateral
action. But even were it otherwise, it would not matter. The law is clear that
a union's subsequent willingness-because it has ro other choice-to accept an
employer's fait accompli as a basis for further negotiations does not retroactively
alter the unlawful character of the earlier unilateral action. See, e g , Langlade
Veneer Products Corporation, 118 NLRB 985, 988
I conclude that the General Counsel has sustained the count in his complaint
alleging that the Respondent violated Section 8(a)(1) and (5) by reason of its
unilateral discontinuance of the gas discount
(4)
That brings me, then to the "bad faith bargaining" count. This count is predicated
on events following the Respondent's unilateral discontinuance of the gas discount.
The burden of the General Counsel's claim here is that the Respondent, apart from its
unilateral action which was itself unlawful, additionally violated Section 8(a)(5)
and (1) by thereafter failing to negotiate with the Union in good faith with regard
to the restoration of the gas discount as requested by the Union. The count, if
found supported, would simply provide a further basis for the unfair labor practice
already found. If found unsupported, it would not eradicate the violation bottomed
on the unilateral action; it would, however, bear on the appropriate remedial relief
for that violation-and this for reasons more fully to be discussed in the section
below entitled "The Remedy "
The facts relevant to the issue at hand have earlier been set out at considerable
length. As has been seen, the Union, following the Respondent's unilateral action,
sought to process its complaint as a grievance under the contract's grievance ma-
chinery. The record does not support the General Counsel's contention that the
Respondent adamantly stood on the ground that the discontinuance of the gas dis-
count was a management prerogative and hence nonbargainabie. On the contrary,
the record shows that the Respondent supplied all information demanded; at all
stages of the grievance procedure, short of arbitration, met with the Union when
requested engaged in full discussions of the grievance; presented reasons in support
of its position; and, though refusing to capitulate completely to the Union's demand,
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'disclosed a conciliatory attitude and an open mind by indicating a willingness to
consider any compromise offer the Union might care to make, and even itself sug-
gesting some that might prove acceptable as a basis for settlement. Unless the
Respondent's refusal to submit the unresolved issue to arbitration may be considered
an element of bad-faith bargaining, it is quite clear that there is no support in this
record for a finding that the Respondent negotiated with the Union on the latter's
grievance other than in good faith.
The General Counsel earnestly urges that since the Union had no other recourse,
having "agreed to forgo the economic weapon of a strike for an all-embracing
grievance and arbitration clause," the Respondent's refusal to complete the grievance
procedure by arbitration warrants a finding of a refusal to bargain. Assuming with-
out deciding that the grievance and arbitration clause is sufficiently broad to cover
`the gas discount dispute, I am unable on the law as it stands to accept the General
Counsel's position, equitable though it may be.
Under certain circumstances, perhaps, an employer's refusal to submit a grievance
dispute to a theretofore agreed upon arbitration procedure may in conjunction with
other circumstances provide evidence of bad-faith bargaining. But in this case-
leaving aside the earlier unilateral which is an entirely separate matter with which
we are not now concerned-there are no such other circumstances. If a finding
that the Respondent engaged in bad-faith dealing on the Union's grievance is to be
supported at all, it must rest solely on the Respondent's refusal to arbitrate. What-
ever my own views on the arbitrability of the dispute may be,8 I cannot on this
record say that the Respondent did not genuinely believe that the subject matter of
the grievance was outside the scope of the contract's arbitration provision, or that it
'urged its position in that regard other than in good faith. The question of the
arbitrability of the dispute is now pending before a court of competent jurisdiction,
which, rather than the Board, is the proper forum for its resolution. Moreover,
'even if there were no bona fide dispute as to arbitrability, it would not lie within
the Board's authority, as Congress envisaged it, to treat the violation of the arbitra-
tion provision as in itself an unfair labor practice, thereby placing the Board in a
position where it could in effect enforce specific performance of the terms of the
arbitration agreement. This is evident from the legislative history of the Taft-
Hartley Act on this point, as more fully reflected in the footnote 9 The views
expressed above, also find support in Board precedents Textron Puerto Rico (Tricot
Division), 107 NLRB 583, 584; United Telephone Company of the West and
United Utilities, Incorporated, 112 NLRB 779, 781-782.10 See also International
8 Cf. Steelworkers v. Warrior Navigation Co., 363 U S. 574
6 The legislative history shows that the Senate bill, as originally passed, made it an
unfair labor practice "to violate the terms of a collective -bargaining agreement or the
terms of an agreement to submit a labor dispute to arbitration " But that provision of
the Senate bill was deleted in conference . The House Conference Report stated ( H. Rept.
510 on H R 3020, pp 41, 42) :
The Senate amendment contained a provision which does not appear in section 8
of existing law. This provision would have made it an unfair labor practice to vio-
late the terms of a collective bargaining agreement or an agreement to submit a
labor dispute to arbitration. The conference agreement omits this provision of the
Senate amendment . Once parties have made a collective -bargaining contract the en-
forcement of that contract should be left to the usual processes of the law and not
to the National Labor Relations Board.
10Cf George E . Carroll, et al., d/b /a Carroll's Transfer Company , 56 NLRB 935, where
the Board under the Wagner Act held an employer's failure to comply with a union's re-
quest for arbitration, as required by a contract grievance procedure, to evidence conduct
violative of Section 8(5). In that case, however, there was also other evidence of bad-
faith dealing on which the Board relied to support its ultimate finding of a refusal to
bargain in good faith . Compare, however , the Board 's decision in International Union,
United Mine Workers of America, et at. (Boone County Coal Corporation , Kanawha Coal
Operators Association), 117 NLRB 1095, enforcement denied 257 F 2d 211 (103 App.
D C 207). In the case last cited the Board found it violative of Section 8(b)(3) for a
union to strike in violation of an implied no-strike provision inheient in contactual pro-
visions making the grievance and arbitration procedures the exclusive method for the
resolution of contract disputes. The Boone County case, apart from its reversal by the
circuit court, is now, however, of doubtful authority in view of the Supreme Court's deci-
sion in N.L R B v. Insurance Agents' International Union, AFL-CIO (Prudential Ins.
Co.), 361 U.S. 477.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY 1419
Union, United Mine Workers of America, et al. (Boone County Coal Corp.) v.
N.L R.B., 257 F. 2d 211 (103 App. D.C. 207).
For the reasons stated above, I conclude that the General Counsel has failed to
sustain the count of his complaint here specifically under consideration.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and, to
the extent they have been found unfair labor practices, tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (5) of the Act by unilaterally effecting changes
in its employees' terms and conditions of employment without consulting or bargain-
ing with their designated bargaining agent, I shall recommend that it be ordered
to cease and desist from engaging in such conduct and from like or related conduct.
There remains to be considered the nature of the affirmative remedy to be ordered,
bearing in mind that the remedy should be adopted to the situation which calls for
redress The General Counsel requests that the Respondent be ordered (1) to
restore the status quo ante that existed prior to its unlawful unilateral discontinuance
of the gas discount by reinstating that discount; (2) to make the affected employees
in the bargaining unit whole for any losses they sustained as a result of the unlawful
action; and (3) to require the Respondent, should it still desire to discontinue the gas
discount following its restoration, to bargain in good faith with the Union concerning
that subject. Were it not for the finding made above, contrary to the allegation of
the complaint, that the Respondent, after its unlawful unilateral action, engaged in
good-faith bargaining with the Union at the latter's request with regard to the dis-
continuance of the gas discount, I would have had no hesitancy in granting the
affirmative relief requested by the General Counsel in all respects."
Etut having made that finding, I think it would be supererogatory in the particular
circumstances of this case to require the Respondent in effect to do again what it
has already done, albeit belatedly. I am mindful of the General Counsel's argu-
ment that the relative bargaining positions of a union and of an employer are not
the same in a situation where a union seeks to regain a benefit it has already lost
through unilateral action , as in a situation where the Union resists giving up a benefit
it then possesses I do not doubt that as an abstract proposition it may be said that
the Union in the latter situation is able to bargain from greater strength and with
more flexibility to trade. But, on the specific facts as found in this record, I am
not persuaded that the course of bargaining and the final positions taken by the
respective parties, as actually developed in the postunilateral action bargaining would
have been any different, had the Respondent performed its statutory obligation to
consult and bargain with the Union before rather than after it took its unilateral
action. In either case, I believe, the bargaining would have led to the same impasse,
breaking down at the point of arbitration. In fashioning a remedy, I also take into
account the long and salutary history of harmonious relations that the parties have
enjoyed, a history free of any unfair labor practices or serious dispute other than the
one growing out of the isolated unilateral action here involved.
Under all the circumstances, I think the affirmative relief requested by the General
Counsel as set forth in items (1) and (3), above, is not required to effectuate the
policies of the Act. As for the relief in item (2), I think it sufficient to order the
Respondent to make the affected employees whole only for the period beginning on
the date the gas discount was unilaterally discontinued, and ending on the date
when the parties in their subsequent bargaining arrived at an impasse, an impasse
which would have justified the Respondent, had the bargaining preceded the dis-
continuance of the gas discount, thereafter to effect such discontinuance unilaterally.
That impasse, I find, was reached on February 20, 1962, the date of the last grievance
11 See, e g, Beacon Piece Dyeing and Finishing Co, Inc, 121 NLRB 953, 963; Cascade
Employcis Association, Inc, 126 NLRB 1014, 1015, Dickten & Mascli Mfg Company,
129 NLRB 112, 113; The American Lubricants Company, 136 NLRB 946; Tofienetti
Restaurant Company, Inc, 136 NLRB 1156; Town & Country Manufacturing Company,
Inc., et at., 136 NLRB 1022.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting on the gas discount dispute. The Recommended Order accordingly will
be along the lines above set forth. Nothing in the Recommended Order of course
can or should be construed as affecting or prejudicing the Union's right to press its
now pending court proceeding to obtain arbitration, or as limiting the arbitrators,
if arbitration is allowed, from granting the Union relief in addition to that provided
for in the Recommended Order.
Upon the basis of the foregoing findings of fact, and on the entire record in this
proceeding I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3 The employee unit described in footnote 1, supra, is a unit appropriate for
purposes of collective bargaining within the meaning of Section 9(b) of the Act.
4 At all times material herein, the Union has been the exclusive bargaining repre-
sentative of the employees in the aforesaid unit within the meaning of Section 9(a)
of the Act.
5. By unilaterally discontinuing the employee gas discount without prior notice
to, or consultation or bargaining with, the Union, the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in the case, I recommend that the Respondent, Central Illinois Public Service
Company, Springfield, Illinois, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing or refusing to bargain collectively with Local Union No. 702, Inter-
national Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representa-
tive of its eastern division employees in the appropriate bargaining unit more fully
described in footnote 1, supra, by unilaterally terminating or changing any term or
condition of employment of employees within the aforesaid unit without prior notice
to, and consultation and bargaining with, the Union.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form, join, or assist
the Union named above, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid and protection, or to
refrain from any or all such activities, except to the extent that such right may be
affected by on agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a)(3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act.
(a) Make whole the eligible employees in the appropriate unit for any loss which
they may have suffered by reason of the Respondent's unilateral termination of the
employee gas discount for the period from September 15, 1961, to February 20, 1962.
(b) Post at each of its plants or offices where or out of which employees in the
bargaining unit are employed, copies of the attached notice marked "Appendix." 12
Copies of said notice, to be furnished by the Regional Director for the Fourteenth
Region, shall, after being duly signed by the Respondent's authorized representative,
be posted by the Respondent immedately upon receipt thereof, and be maintained
12 In the event that this Recommended Order he adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY 1421
by it for a period of 60 consecutive days thereafter , in conspicuous places, including
all places where notices to employees are customarily posted . Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for the Fourteenth Region, in writing, within
20 days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply herewith.i3
In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT fail or refuse to bargain collectively with Local Union No.
702, International Brotherhood of Electrical Workers, AFL-CIO, as the exclu-
sive representative of all our employees in the appropriate bargaining unit de-
scribed below, by unilaterally terminating or changing any term or condition
of employment of employees within the bargaining unit without prior notice to,
and consultation and bargaining with, the aforesaid Union.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce employees in the exercise of their right to self-organization, to join or
assist any labor organization, to bargain collectively through representatives of
their own choosing, and to engage in any other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as
authoiized by Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL make whole the eligible employees in the appropriate bargaining
unit for any loss they may have suffered by reason of our unilateral termina-
tion of the employee gas discount for the period from September 15, 1961, to
February 20, 1962.
The appropriate bargaining unit is:
All journeyman and apprentice linemen, patrolmen-groundmen, line
clearance men, line clearance groundmen, groundmen truckdrivers, ground-
men, storeroom men-groundmen, substation electrician-troublemen, sub-
station electricians and their apprentices, substation operators, meter and
relay specialists, metermen and relay men, journeyman and apprentices,
power meter installers and testers, metermen and testers, meter repair-
groundmen, journeyman and apprentice gas utility men, gas fitters, gas
utility men helpers, gas repairmen, gas meter repairmen, storekeepers, store-
room men, communication telemeter men and their apprentices, and jani-
tors employed by us in our eastern division, excluding all other employees,
office clerical employees, guards, and supervisors as defined in the Act.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Repree ntative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material
Employees may communicate directly with the Board's Regional Office, 4459 Fed-
eral Building, 1520 Market Street, St. Louis 3, Missouri, Telephone Number, Main
1-8100, Extension 2142, if they have any questions concerning this notice or com-
pliance with its provisions.