Communications Workers of America

National Labor Relations Board - Board Decisions

Nov 17, 1970

186 N.L.R.B. 625 (N.L.R.B. 1970)

COMMUNICATIONS WORKERS OF AMERICA 625
Communications Workers of America, AFL-CIO and
New York Telephone Company. Case 29-CB-702
November 17, 1970
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a charge filed by New York Telephone
Comany, herein called the Company, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 29, issued a
complaint dated November 3, 1969, against Commu-
nications Workers of America, AFL-CIO, herein
called Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor practices
within the meaning of Section 8(b)(3) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge, the complaint, and
notice of hearing before a Trial Examiner were duly
served upon the Company and Respondent.
Pursuant to the provisions of Section 3(b) of the
Act, as amended, the Board has delegated its powers
in connection with this case to a three-member panel.
With respect to unfair labor practices, the complaint
alleges, in substance, that since on or about October
29, 1969, Respondent has engaged in a strike, work
stoppage, and embargo on all overtime work per-
formed by the Company's employees, except normal
posted rotational overtime assignments, notwith-
standing the fact that the collective-bargaining
agreement between the parties provides for the
assignment by the Company of such overtime work,
and for the performance of such work. In its answer
Respondent admits it has engaged in an embargo on
all overtime work and as an affirmative defense
alleges that the Company has violated Sections 8(a)(5)
and 8(d) of the Act by failing to notify Respondent 60
days prior to the date of its intended modification of
the collective-bargaining agreement and failing to
notify the Federal Mediation and Conciliation Serv-
ice or the New York State Board of Mediation of the
existence of a dispute.
On December 18, 1969, Respondent, the Company,
and the General Counsel submitted a stipulation by
which they waived a hearing before a Trial Examiner
and agreed to submit the case to the Board for
findings of fact, conclusions of law, and an order
based upon a record consisting of the charge,
complaint, and notice of hearing, and the answer,
together with certain portions of the record of the
related proceeding before the Federal District Court,
Eastern District of New York in Kaynard v. Communi-
cations Workers of America, AFL-CIO,
69-Civil- 1372, and the stipulation . On the same date
all parties petitioned the Board to transfer the
proceedings to the Board . On December 24, 1969, the
Board issued an Order transferring the case to the
Board and permitting the parties to file briefs.
Thereafter , Respondent , Company , and General
Counsel filed briefs.'
Upon the entire record in this case , the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company admits and we find that it is, and has
been at all times material herein, a corporation duly
organized under and existing by virtue of the laws of
the State of New York, maintaining its principal
office and place of business in the City and State of
New York, with various other places of business in the
City and State of New York, where it is, and has been
at all times material herein, engaged as a public utility
in providing telephone communications and related
services.
During the past year, which period is representative
of its annual operations generally, the Company, in
the course and conduct of its annual operations,
derived gross revenues therefrom in excess of
$500,000.
During the past year the Company, in the course
and conduct of its business, purchased and caused to
be transported and delivered to its New York State
and City places of Business, various equipment and
other goods and material valued in excess of $50,000,
of which goods and material valued in excess of
$50,000 were transported and delivered to its places of
business in interstate commerce directly from States
of the United States other than the State in which it is
located.
The Company is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is, and has been at all times material
herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Unit
At all times material herein Respondent has been
and is now the recognized exclusive representative of
I Respondent's request for oral argument is hereby denied, as in our
opinion, the record submitted, including the briefs, adequately presents the
issues and positions of the parties
186 NLRB No. 91
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all the employees in the following unit for the
purposes of collective bargaining:
All employees in the Plant Department of the New
York Telephone Company ( including all trunk
facilities employees ), in the Engineering Depart-
ment of the New York Telephone Company in the
Upstate Territory, and in the Empire City Subway
Company (Limited), exclusive of all guards,
watchmen , professional employees and supervi-
sors as defined in Section 2(11) of the Act, and
employees regularly performing confidential labor
relations duties.
B. Background
On May 22, 1967, Respondent and the Company
entered into a collective -bargaining agreement which
was thereafter amended on July 29, 1968, pursuant to
a provision providing for reopening as to wages, wage
differentials, and wage practices once by either party
giving written notice at least 60 days prior to August
26, 1968.
The amended agreement remains effective until
July 28, 1971, with automatic renewal for periods of 1
year in the absence of notice of termination. This
amended contract contains the following provisions
relevant to this proceeding:
7.03 Employees may be hired at rates above the
lowest rates shown in Article 31 for their occupa-
tional classification and wage zone.
7.04 The Company may once during the term of
this Agreement propose adjustments in the wage
rates (other than the maximum rate ) in any wage
progression table and/or modifications in the
wage progression tables to retain or reduce but not
increase the overall length thereof . Such proposals
shall not be effective unless agreement is reached
within thirty (30) calendar days after notice of the
Company's proposal is given to the Union. [This
provision replaced the provisions under which the
contract was reopened on July 29, 1968.1
11.01 It is agreed that neither the Company, its
representatives and supervisors , nor the Union, its
locals, representatives and the employees it repre-
sents , will attempt to bring about the settlement of
any issue by means other than the grievance
provisions and, where applicable the arbitration
provisions of this Agreement.
17.03 Any employee may be assigned to work
overtime at any time.
17.06 During the months of January through May,
and September through December, an employee
will not be assigned to work overtime and/or on a
non-scheduled day in excess of an aggregate of
fifteen ( 15) hours in any payroll week , except in
cases of emergency or where the employee
consents to such agreement.
Pursuant to article 7.04, the Company notified
Respondent of its desire to propose adjustments by
telegram of October 2, 1969. Respondent , by telegram
of October 4, 1969, agreed to meet on October 8, 1969.
At the meeting of October 8, the Company
presented a $6.9 million package proposal to increase
wage rates (other than maximum rates ) by specified
amounts . Respondent rejected the Company offer
and presented four counterproposals: (1) increases in
maximum wage rates ; (2) an end to "premium hiring"
permitted by article 7.03; (3) reduction in the wage
progression tables ; and (4) an increase in the overall
amount of money in the package.
The Company informed Respondent that its pro-
posals to increase maximum rates and eliminate
"premium hiring" were outside the scope of article
7.04.
The parties met again on October 15, 23, and 27, but
were unable to reach agreement . Although the
Company offered to discuss the "premium hiring"
question and the demanded increase in the top rates,
both of which it urged were outside the scope of
article 7.04 of the contract, in separate meetings, the
Respondent demanded that the Company move on all
four of its proposals. On October 28, Respondent
called "an embargo on all overtime work effective 5
p.m., Wednesday, October 29, 1969, except for work
necessary to give normal operating coverage , that is,
normal posted rotational overtime assignments." The
purpose of the embargo , as stated by Respondent, was
to impress upon the Company that Respondent's
rejection of the final Company proposal was a total
rejection.
The Company filed the charge against Respondent
on October 30, 1969.
C. Contentions of the Parties
Respondent contends that the Company violated
Section 8(a)(5) and ( 1) of the Act by failing to serve
60-days notice prior to the time it proposed to make
the wage modifications , as required by Section 8(d)(1)
of the Act. Therefore, urges Respondent , its overtime
embargo in protest of the Company 's violation of
Section 8(a)(5) constitutes protected activity within
the meaning of Section 7 of the Act and at worst,
argues Respondent, the Union's activity constitutes
no more than a breach of contract , and the Board is
not the proper forum to remedy it.
The Company contends that article 7 .04 is not a
"reopener" which establishes an "early expiration
date" within the meaning of Section 8(d), therefore
60-days notice to Respondent was not required nor
was notice to the Federal Mediation service required.
COMMUNICATIONS WORKERS OF AMERICA
Even if Section 8(d) did apply, it would not prevent
the Company from submitting proposals as long as
the Company did not thereafter lockout its employees
or take unilateral action to affect the proposed
changes. Section 8(d) does, however, argue the
General Counsel and the Company, prevent the
Union from engaging in strike activity unless the
filing requirements are met by Respondent.
D. Discussion
Section 8(d) of the Act provides that "where there is
in effect a collective-bargaining contract covering
employees in an industry affecting commerce, the
duty to bargain collectively shall also mean that no
party to such contract shall terminate or modify such
contract unless the party desiring such termination or
modification-( 1) serves a written notice upon the
other party to the contract of the proposed termina-
tion or modification sixty days prior to the . . . time it
is proposed to make such termination or modification
. ." (emphasis supplied).
The prohibition here is against termination or
modifications of the contract. We see nothing in this
Section of the Act that would prohibit parties from
submitting proposed contractual amendments that
would not take effect except by mutual agreement.
In the case before us, the Company took no
economic action, instituted no unilateral changes, and
under Section 8(d)(4), could take no lawful economic
action without the consent of Respondent until the
expiration date of the contract. We do not view
Section 8(d)(1) as requiring 60-days notice before
submitting contractual proposals, as the Company
did here, where the parties have specifically provided
for such proposals to be submitted which would not
become effective unless agreement was reached
within 30 days. The contract provision involved does
not contemplate giving either party a right either
unilaterally to modify the agreement or to exercise its
economic strength in support of any proposal to
modify. In fact, it adds little of substance to the rights
either party would have in the absence of any
proposal, since it is always possible to amend a
contract in mid-term by mutual voluntary consent.
The only addition here is a "ground rule" that if the
Company makes a certain limited type of proposal,
the discussions of that proposal are to be brief, and if
no mutual agreement is reached within 30 days the
whole matter is to be laid aside and no further
proposals or discussions are to be had except at the
regular negotiating time. We thus find that the
Company did not violate Section 8(d)(1) and 8(a)(5)
and (1) of the Act by failing to give Respondent 60-
days advance notice of its proposals.
We further find the Company did not violate
627
Section 8(d)(3) of the Act by failing to notify the
Federal Mediation and Conciliation Service and the
New York State Mediation Board of the existence of a
dispute. Where, as here, the contract proposals
become void unless agreement is reached within 30
days, and the original contract is to remain in effect,
notification to the Federal and State Mediation
services would serve no useful purpose.
It follows, therefore, that the overtime embargo
placed upon the employees by Respondent, was
unprotected concerted activity violative of Sections
8(d) and 8(b)(3) of the Act.
Under section 7.04 of the agreement , Respondent
had solely the right to agree or disagree with proposals
submitted by the Company.
In submitting counterproposals, and seeking to
enforce these counterproposals by means of a work
stoppage, Respondent had the duty to comply with
Section 8(d), not the Company. Having failed to
comply with the notice provisions of Section 8(d) and
resorting to a work stoppage prior to the expiration
date of the contract, Respondent has violated Sec-
tions 8(d)(I), (3), (4) and 8(b)(3) of the Act, and we so
find.
IV. REMEDY
Having found Respondent in violation of Section
8(b)(3) of the Act for taking economic action without
complying with the provisions of Section 8(d), we
shall order it to cease and desist therefrom.
CONCLUSIONS OF LAW
1. The New York Telephone Company is engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By taking economic action against the Compa-
ny without complying with the provisions of Section
8(d) of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(b)(3) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Communications Workers of America, AFL-CIO, its
officers, agents, and representatives, shall:
1. Cease and desist from engaging in, calling, or
causing the employees of the New York Telephone
Company to engage in a strike or work stoppage, the
object of which is to renew, modify or amend the
collective-bargaining agreement, without first having
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complied with the requirements of Section 8(d) of the
Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Terminate the overtime embargo placed on the
employees of the New York Telephone Company.
(b) Post at its business office copies of the attached
notice marked "Appendix". Copies of said notice, on
forms provided by the Regional Director for Region
29, shall, after being duly signed by an official
representative of Respondent, be posted immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Furnish to the Regional Director for Region 29
signed copies of the attached notice marked
"Appendix", for posting, the Company willing, at the
New York Telephone Company's facilities in places
where notices to employees are customarily posted.
The notices shall be maintained there for a period of
60 consecutive days thereafter. Copies of said notice,
on forms provided by the Regional Director for
Region 29, shall, after being duly signed by an official
representative of Respondent, be forthwith returned
to the Regional Director for such posting.
(d) Notify the Regional Director for Region 29, in
writing, within 10 days from the date of this Order, as
to the steps taken to comply herewith.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in , call, or cause the
employees of the New York Telephone Company
to engage in a strike or work stoppage, the object
of which is to renew, modify or amend the
collective-bargaining agreement, without first
having complied with the requirements of Section
8(d) of the Act.
WE WILL terminate the overtime embargo
placed on the employees of the New York
Telephone Company.
COMMUNICATION
WORKERS OF AMERICA,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, 16 Court Street, 4th floor, Brooklyn, N.Y.
11201, Telephone: 212-596-3535