Indiana & Michigan Electric Co.

National Labor Relations Board - Board Decisions

May 11, 1977

229 N.L.R.B. 576 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Indiana and Michigan Electric Company and Local
Union 1392, International Brotherhood of Electri-
cal Workers, AFLCIO. Case 25-CA-7476
May I , 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On June 24, 1976, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent filed an answering brief to the General
Counsel's exceptions. The General Counsel subse-
quently filed a motion to reopen the record and
remand this proceeding to the Administrative Law
Judge for the purpose of consolidating this proceed-
ing with that in Case 25-CA-8593, where similar
conduct by the Respondent is alleged as an unfair
labor practice by the Charging Party here. The
Respondent then filed an opposition to the General
Counsel's motion,' and the General Counsel filed a
response to the opposition.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge concluded that the
Respondent did not violate Section 8(a)(5) of the Act
by refusing to allow certain employee "travelers" to
attend negotiation sessions outside their own bar-
gaining units. 2 Rather, the Administrative Law Judge
found that the rationale set forth by the Respondent
for its decision consisted of valid economic and
business reasons and amply justified both its refusal
to commence bargaining sessions outside normal
business hours and its refusal to approve travelers'
requests for leave without pay to attend such
sessions. We disagree.
The General Counsel alleged that the Respondent
violated Section 8(a)(5) and (1) of the Act by (1)
refusing to meet with the union representatives
outside working hours, and by (2) simultaneously
refusing to allow members of the bargaining commit-
I After due consideration of the General Counsel's motion, the
Respondent's brief in opposition thereto, and General Counsel's response to
the Respondent's opposition. the General Counsel's motion is hereby
denied.
2 The Respondent and the Charging Party are signatories to four
229 NLRB No. 95
tee leave without pay to travel to and participate in
negotiations with respect to units in which they are
not employed. The Respondent defended its actions
principally on the theory that at least one "traveler"
and member of the committee, VanAman, was a
troubleshooter whose presence could not be spared
for the aggregate of l days requested to participate
in these negotiations. The alleged violation was not
pinned to one or the other of the Respondent's
actions, but resulted from the application of both
actions together, which effectively deprived the
Union of the assistance of the bargaining representa-
tives it desired. We find that the Respondent's refusal
to grant members of the Union's negotiations
committee uncompensated leave to permit them to
engage in bargaining during working hours, while at
the same time refusing the Union's request to bargain
during nonworking hours, is an unlawful interference
with the Union's selection of its bargaining represen-
tatives.
We do not suggest that an employer is compelled
to yield to a union's request for negotiations outside
normal business hours. It is free to insist on
bargaining during the working day, if it prefers, as
the Respondent did here. If it makes this choice,
however, it cannot at the same time refuse to allow
unpaid time off to union representatives on the
bargaining committee because they are employed in
another unit. Alternatively, the Employer is free to
acquiesce in the Union's request to bargain during
nonworking hours in order to reduce the amount of
uncompensated leave for travelers and to minimize
the effects of the unavailability during their regular
working hours of emergency troubleshooters.
However, the Respondent cannot have it both
ways. That is, if, as here, the Respondent makes the
choice to bargain during the working day, it cannot
lawfully refuse to allow union employee representa-
tives time off. But, if it does refuse to give such
employees time off, then it is obligated to make itself
available for negotiations at a time-even outside
working hours-when the representatives can attend.
It is the Respondent's attempt here to have it both
ways that constitutes the violation of the Act.
In sum then, we find, contrary to the Administra-
tive Law Judge, that by refusing to hold bargaining
sessions at a time when the travelers who were
designated employee representatives could attend
them the Respondent violated Section 8(a)(5) and (1)
of the Act.
collective-bargaining agreements covering employees in four separate units
located in three general locations in the States of Indiana and Michigan.
Employee "travelers" are employee representatives from one unit who are
members of the union bargaining committee at other units.
576
INDIANA AND MICHIGAN ELECTRIC COMPANY
CONCLUSIONS OF LAW
I. Indiana and Michigan Electric Company is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Local Union 1392, International Brotherhood
of Electrical Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. At all times relevant herein, Local Union 1392,
International Brotherhood of Electrical Workers,
AFL-CIO, has been the exclusive representative of
all employees in the four appropriate units set forth
below for purposes of collective bargaining with
respect to wages, rates of pay, hours of employment,
and other terms and conditions of employment
within the meaning of Section 9(a) of the Act:
(i) All probationary and regular production and
maintenance employees of the Respondent under
the supervision of the South Bend and Benton
Harbor Divisions, having their headquarters
within the Respondent's Elkhart, South Bend,
Buchanan, or Benton Harbor areas, and all
probationary and regular production and mainte-
nance employees of the Respondent under the
supervision of the Twin Branch Generating
Division having their headquarters at the Twin
Branch Plant or South Bend, exclusive of all
administrative employees, part-time employees,
temporary employees, office clerical employees,
plant clerical employees, technical employees,
confidential employees, guards, professional em-
ployees, supervisors as defined in the Act, and all
other employees.
(ii) All production and maintenance employees in
the General Office Transmission Construction
and Maintenance Group of the Respondent,
including construction employees, Lineman A, B,
and C, Linemen-Helpers, and Driver-Ground-
men, exclusive of office clerical employees,
professional employees, guards, supervisors as
defined in the Act, and all other employees.
(iii) All regular production, maintenance, and
distribution employees of the Respondent em-
ployed within its Marion and Muncie Divisions,
including meter readers, exclusive of all guards,
office clerical employees, technical employees,
professional employees, part-time employees,
temporary employees, probationary employees,
and supervisors as defined in the Act.
(iv) All employees of the Respondent's Fort
Wayne Division covered by the collective bar-
gaining agreement between the Respondent and
the Union which bears the effective dates of
December 16, 1973, to December 15, 1975.
4. By refusing to hold individual negotiation
sessions outside normal business hours while simulta-
neously refusing since on or about November 21,
1975, employee travelers' request for leave without
pay to attend negotiation sessions outside their own
units, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
5. By engaging in the above-described unfair
labor practices, Respondent has interfered with,
restrained, and coerced its employees in the exercise
of rights guaranteed them by Section 7 of the Act.
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(5)
and (1) of the Act by refusing to commence
bargaining sessions outside normal business hours
while simultaneously refusing employee travelers'
request for leave without pay to attend negotiation
sessions outside their individual units, we will order
that the Respondent cease and desist from engaging
in such unfair labor practices and, upon request,
bargain collectively with Local Union 1392, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO,
and its designated agents at times and places
mutually convenient concerning wages, rates of pay,
hours, and other terms and conditions of employ-
ment, as indicated in our Order below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Indiana and Michigan Electric Company, Fort
Wayne, Indiana, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to commence individual negotiation
sessions with Local Union 1392, International
Brotherhood of Electrical Workers, AFL-CIO, and
its designated agents, outside normal business hours,
while simultaneously refusing employee travelers'
requests for leave without pay in order to attend
bargaining sessions outside their own units.
(b) In any like or related manner interfering with
the efforts of the above-named labor organization to
bargain collectively on behalf of the employees so
represented.
577
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, meet and bargain with the
above-named labor organization and its designated
agents as exclusive representatives of all its employ-
ees in the appropriate units described above at times
and places mutually convenient to all parties with
respect to wages, rates of pay, hours of employment,
and other terms and conditions of employment and,
if an understanding is reached, embody it in a
written signed agreement.3
(b) Post at its places of business in South Bend,
Benton Harbor, Twin Branch, Marion, Muncie, and
Fort Wayne located in the States of Indiana and
Michigan, copies of the attached notice marked
"Appendix." 4 Copies of said notice, on forms
provided by the Regional Director for Region 25,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees 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) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER WALTHER, dissenting:
For all the reasons set forth in the Administrative
Law Judge's Decision, I would adopt his conclusion
that the Respondent's refusal to grant "employee
travelers" time off to attend negotiation sessions in
units other than their own did not violate Section
8(a)(5) and (1) of the Act. The requested time off
would have entailed extensive traveling which-as
the Administrative Law Judge found with respect to
traveler Lyle VanAman-would have interfered with
the Respondent's operations. The Respondent's
refusal to accede to the Union's demand is thus
based upon valid business considerations. Since the
Respondent's action was not shown to be other than
3 In view of the currently effective collective-bargaining agreement
between Respondent and the Charging Party, nothing in this Order should
be construed to require Respondent to bargain with the Charging Party
concerning the alteration of any terms of such agreement prior to the date
established therein for the reopening or renegotiation of same.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
for "nondiscriminatory perceived bona fide opera-
tional needs," the evidence does not support the
majority finding. I agree with the Administrative
Law Judge that the complaint should be dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, meet and bargain
collectively at mutually convenient times and
places with Local Union 1392, International
Brotherhood of Electrical Workers, AFL-CIO,
and its designated agents as your exclusive
representative and, if an understanding is
reached, embody it in a written signed agreement.
WE WILL NOT in any like or related manner
interfere with the efforts of the above-named
Union to bargain on behalf of the employees in
the relevant units by refusing to commence
individual negotiation sessions outside normal
working hours while simultaneously refusing to
approve requests from employee travelers for
leave without pay in order to attend negotiation
sessions outside their individual units.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed them by
Section 7 of the Act.
INDIANA AND MICHIGAN
ELECTRIC COMPANY
DECISION
STATEMENT OF THE CASE
STANLEY N. OHLBAUM, Administrative Law Judge: This
proceeding under the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151, et seq. (herein the Act), based
upon complaint issued on December 31, 1975, by the
Regional Director for Region 25, growing out of a charge
filed on October 30, 1975, by Local Union 1392, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO, was
heard by me in Fort Wayne, Indiana, on March 25-26,
1976, with all parties participating throughout by counsel
or other representative and afforded full opportunity to
present evidence and arguments, as well as to file briefs,
which were received by June 1, 1976, after extension of
time upon application of counsel. Record and briefs have
been carefully considered.
The principal issue presented is whether the Respondent
violated Section 8(aX5) and (1) of the Act by refusing to
bargain collectively in good faith with the Charging Party
within the Act's requirements.
578
INDIANA AND MICHIGAN ELECTRIC COMPANY
Upon the entire record and my observation of the
testimonial demeanor of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
At all material times, Respondent Indiana and Michigan
Electric Company, an Indiana corporation with principal
office and place of business at Fort Wayne, Indiana, as
well as other facilities elsewhere in Indiana and Michigan,
has been and is engaged in production, sale, and transmis-
sion of electrical energy as a public utility. In the course
and conduct of that business during the representative year
immediately preceding issuance of the complaint, Respon-
dent produced, sold, and transmitted electrical energy
exceeding $250,000 in gross value; and, during the same
period, Respondent received goods, transported directly in
interstate commerce to its Indiana facilities from States
other than Indiana, valued in excess of $50,000.
Unit Covered
South Bend, Benton
Harbor, Twin Branch
Generating Divisions
("SB-BHI-TB")
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act; and that at all of those
times the Union has been and is a labor organization
within the meaning of Section 2(5) of the Act.
11. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The underlying material facts are essentially undisputed.
Respondent (a subsidiary of American Electric Power
Company), an electricity-generating and distributing pub-
lic utility in Indiana and Michigan, has, in connection with
the conduct of its business, maintained collective-bargain-
ing relationships with IBEW Local 1392, the Charging
Party, or its predecessors,' through the four separate units
involved in the instant case,2 heretofore certified by the
Board or designated without election and recognized as
appropriate:
Area or
Other
Coverage
Elkhart,
South
Bend,
Buchanan,
Benton
HIarbor
Basis for
Rep. Status
Certif ication
year
1969
Marion and Muncie
Divisions ("MA-MU")
Fort Wayne Division
("FW,)
Marion,
Muncie
Fort
Wayne
General Office Trans-
mission Construction
and Maintenance Group
("Go")
In August 1971, the International Union notified Respondent that
effective September I, 1971, its Locals 1821 and 1822 (then at Respondent's
Marion and Muncie units) and also Local 2292 (then at Respondent's South
Bend, Benton Harbor, and Twin Branch units) would merge into Local 1392
(then at Respondent's Fort Wayne unit; Charging Party in the instant case).
On August 20, 1971, Respondent informed the Union that, since the merger
was an internal union matter, it raised no objection and would recognize
Local 1392 as successor to the existing contractual obligations, so long as
the separate identity of the four bargaining units was clearly retained.
Earlier in 1971 the predecessor locals of Local 1392 had unsuccessfully
sought, over the Respondent's opposition, to amalgamate at least some of
the bargaining units here into a single bargaining unit. Following the
September 1971 merger of the various locals (which had up to then each
been tied and limited to one of the four separate bargaining units) into Local
1392, Respondent on several occasions filed formal charges before the
Certification
Designation-
Recognition
Certification
1952
1934
1971
Board that Local 1392 was again endeavoring to merge the four separate
(including three separately Board-certified) units into a single unit, or, over
Respondent's opposition, endeavoring to engage in improper "coordinated
bargaining" designed in effect to merge the separate units, but the Regional
Director and General Counsel refused to issue a complaint on any of these
charges. As is well known, under the Act the refusal of General Counsel to
issue a complaint is not subject to review by either the Board or the courts.
2 Respondent maintains power plant facilities in addition to those in the
coverage of the four collective-bargaining units here.
Respondent also has collective-bargaining relationships with three other
unions - United Steelworkers of America, at its South Bend and Benton
Harbor facilities; International Association of Machinists and Aerospace
Workers at its Breed plant; and Utility Workers of America at its Tanners
Creek plant.
579
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union now represents an aggregate of some 720
members (together with additional nonmembers) in these
four bargaining units, as well as employees of two utilities
other than Respondent. The categories of employees
included in each of Respondent's four bargaining units
appear to vary.3 Since the foregoing original certifications
or recognition without election, Respondent and Union
have entered into successive separate collective agreements
for each of these four units. The issues presented here arise
out of events occurring in connection with the 1975-76
contractual renewal negotiations.
Since each of the latest of these collective agreements,
each for a 2-year term, expired at or toward the end of
1975, 4 the following initial dates and places were estab-
lished by the parties for negotiations:
SB-BH-TB - 9-23, 10-8, 10-9, 10-29, 10-30, 10-
31, at South Bend.
MA-MU- 10-1, 11-10, ( 11-11), 11-18, at Muncie.
FW - 11-17, 12-2, 12-3, 12 10, at Fort Wayne.
GO- 11-26, 12-11, 12-12, 12 18, at Fort Wayne.
At the initial bargaining session (September 23 at South
Bend for the SB-BH-TB unit), according to Respondent's
labor relations supervisor and chief company negotiator,
Willmore, a new bargaining pattern was demonstrated by
the Union. Unlike previous occasions, this time there was
an absence of "local" demands relating to the specific unit,
as well as an absence of economic demands; and, later,
unit demands in the other units were basically the same.
Also at that initial bargaining session (September 23), the
Union suggested (as it had in the past) that negotiations be
combined for all four units, but the Company declined (as
it had in the past), as it did again at the ensuing negotiating
session on October 1 at Muncie for the MA-MU unit.
Between October 9 and 21, 1975 - after several initial
bargaining sessions had been held, Lyle VanAman - a
member of the FW unit, employed by Respondent at its
Fort Wayne facility on its "troubleshooter" service crew
there on duty around-the-clock in varying numbers, with a
shift rotating from 8 a.m.-4 p.m. to 4 p.m.-midnight to
midnight-8 a.m., and a member of the union bargaining
committee for all four of the units - submitted to his
supervisor at Fort Wayne a request to attend all future
bargaining sessions for all four units, as of that date
scheduled to be held at the locations above specified,
according to his request on October 29 and 30, November
17, 18, and 26, and December 2, 3, 10, 11, 12, and 18 - or,
:' Or. at any rate, the definitions of the units are in no two cases worded
the same.
4 SB-BH-TB, October 31; MA-MU, November 30; FW, December 15;
GO, December 31.
5 The same is true, mutatis muiandis, for several other members of the 9
I l-member union negotiating committee (i.e., Goddard and Alexander from
the SB BH TB unit, Hammers and Jannie from the MA-MU unit, and
Yocum temporarily only from the GO unit).
6 In prior years. travel by employees for attendance at negotiating
sessions had, with one possible exception (Alexander in 1971), apparently
been slight and inextensive.
7 Prior to 1975, the maximum number of days of leave requested by any
employee to attend negotiation sessions was perhaps 2 days -in contrast to
as of that time, 1 sessions scheduled up to that point. As
already indicated, VanAman functions as a member of a
utilities service "troubleshooter" work crew at Fort Wayne,
whose shift hours, meshed with other members of the crew,
are rotated (as above described) in the regular conduct of
Respondent's public service utility operations. In order for
VanAman 5 to attend bargaining sessions for units other
than his own at locations other than Fort Wayne, it would
be necessary for him to travel to and from those locations,
by day or night, and thus - as credibly and without
contradiction indicated by Respondent's labor relations
supervisor, Willmore - interfere with the operations of his
work crew during the period of negotiations as well as two-
way travel (and possibly added rest). This was the first year
in which any problem arose involving proposed undue
travel6 by a union bargaining committee employee mem-
ber to attend negotiating sessions of units other than his
own.7 The maximum travel distance involved (according to
Union Business Manager Herriman) was 170 miles one
way (Marion or Muncie to Benton Harbor) or a round-trip
distance of 340 miles.
Approximate mileages8 between the agreed negotiation
sites for the four units in Respondent's different facilities
are:
Fort Wayne to Muncie - 68 miles
Fort Wayne to South Bend - 81 miles
Muncie to South Bend - 133 miles
Respondent's labor relations supervisor, Willmore, a
highly credible witness, thoroughly knowledgeable in his
Company's operations, testified and explained that the
replacement of VanAman - a utilities "troubleshooter,"
on call around-the-clock as a member of a service crew on
rotating shifts - as well as of Respondent's other four
employee-negotiator "travelers," would have been "bur-
densome to administer." This testimony was wholly
uncontroverted by General Counsel or the Charging Party
and is credited, and I so find.
On October 21, VanAman was denied the requested
permission other than for the four negotiating sessions then
scheduled for his own unit at Fort Wayne.9 The other
employee "travelers" were similarly denied such permis-
sion. The Union thereupon canceled all further meetings of
all of the four units (including those to which VanAman or
the other "travelers" would not have to travel). On October
23, Respondent informed the Union that it stood ready to
the II days plus necessary travel time sought by VanAman (without
reference to the others) for the period from October 29 to December 18
alone.
I Source: Rand McNally, Standard Highway Mileage Guide, 1973. These
are road mileages. No rail or air carrier schedules or data have been
provided by the parties.
9 It is to be observed that the permission thus extended to VanAman did
not include the four scheduled GO unit sessions, also to be held in Fort
Wayne. Negotiating committee employee members Alexander (SB-BH-TB
unit) and Hammers (MA-MU unit) were similarly denied permission to
absent themselves from work in order to travel to attend negotiating sessions
of units of which they were not members.
580
INDIANA AND MICHIGAN ELECTRIC COMPANY
continue negotiations "at reasonable times." A further but
abortive bargaining session - the fifth 0 - took place on
October 29 at South Bend for the SB-BH-TB unit,
attended by six union negotiators (including four from the
local bargaining committee, but no "travelers"). Since
Respondent had declined to permit employee members of
the bargaining committee ("travelers") to travel from
distant locations (at which they were employed in other
plants of Respondent) to that meeting, the Union refused
to proceed with the meeting and called off all negotiations
until Respondent altered its position.
The Union filed its charge herein on October 30,
accusing Respondent of failing and refusing "to bargain
collectively and in good faith" with it, "in that the
employer has refused to meet at reasonable times and
places when so requested... . and in addition . . . has
prevented certain of the union's bargaining committee
members from attending bargaining sessions by refusing
said committee members time off work,"
On November 10, the Union wrote Respondent that by
reason of "inflationary pressures" the employee-members
of the bargaining committee "can no longer afford to lose
time from work in order to negotiate agreements," and that
the bargaining committee would be "unable to meet for
negotiations, for any of the bargaining units . .. until such
time as negotiations are held outside the normal working
hours of the employee members of the bargaining commit-
tee ... at any reasonable time and place." I"
Also on November 10, as well as on November 12, in
letters to its employees in the four bargaining units here
involved, Respondent pointed out that the "normal date of
November I for a new contract has passed" since
negotiations had been suspended by reason of the circum-
stances which have been described; reminded the employ-
ees that there were four "separate and distinct" bargaining
units; stated that although the Board had refused a union
application to consolidate those units, the Union was
continuing its attempts to effect a consolidation "through
0d Previous bargaining sessions had been held on September 23, 1975, at
South Bend for the SB-BH-TB unit with 9 union representatives, 4 of whom
were travelers: on October 1, 1975, at Muncie for the MA MO unit with 11
union representatives, 3 of whom were travelers; on October 8 and 9, 1975,
at South Bend for the SB-BH TB unit with 9 union representatives, 3 of
whom were travelers. "Travelers" are committee employee members,
present and included in the total number shown, who traveled to the
bargaining location from distant plants at which they were employed.
Neither "travelers" nor nontravelers were paid by the Company while
attending or traveling to and from bargaining sessions: they were merely
excused from work.
II Although the first two paragraphs of this union communication (G.C.
Exh. 6-0) refer to the "normal working hours of the employee members" of
the bargaining committee, the final paragraph limits the Union's willingness
to meet for negotiations to "any reasonable time and place outside the
normal working hours of the commile.c" (Emphases supplied.) The
bargaining committee includes members other than employees of Respon-
dent.
12 I.e.. 8 a.m. - 5 p.m.. Monday through Friday. It is noted that.
consistent with this policy, after the resumption of negotiations (as will be
shown), the bargaining session of January 14, 1976, at South Bend was -
according to Union Business Manager Ilerriman continued past
midnight.
1:i Respondent had similarly orally advised the Union, as well as a
Federal mediator. According to Union International Representative Bailey.
subsequent to the aborted October 29 negotiating session he asked
Respondent's labor relations supervisor. Willmore, to meet on the following
Saturday a nonworking day or on any Saturday. Sunday. or evening
coordination of negotiations"; insisted on its right to
conduct "separate negotiations for each unit"; stated that
it did not consider itself legally obligated to excuse
employees of one unit from their work assignments to
attend negotiations of the other units; stated that it stood
"ready to resume negotiations at [the particular plants or
places] during normal working hours, the same as in
previous years"; and said that it hoped negotiations on
substantive matters could be resumed shortly and agree-
ments reached.
On November 21, Respondent, replying to the Union's
foregoing letter of November 10, advised the Union that
"Our position on night and weekend meetings is that they
are not necessary or desirable except when they are an
extension of a meeting held during normal business
hours 12 and when a contract expiration date is so near that
extended meetings are required. Indiana & Michigan and
Local 1392 have adhered to the practice stated above for
many years"; that the Company considered it "unreason-
able, under the present circumstances, to ask members of
the various company committees to devote their nights or
weekends to negotiations"; and that "We are ready to
resume negotiations in each of the four affected bargaining
units at any reasonable place and time." 13
The testimony of Respondent's labor relations supervi-
sor, Willmore - an impressive witness who through his
long tenure with Respondent and its personnel operations
is thoroughly knowledgeable therein - is uncontroverted
that regularly scheduled night and weekend negotiations
not only by the members of its executive/managerial team
involved therein, but also by its five employee-negotiator
"travelers," considering their regular full daytime assign-
ments, would be deleterious to their performance and
morale and to the efficiency of Respondent's operations.t'
when VanAman, then assigned to the 4 p.m.-midnight shift., as well as other
negotiating committee members (totaling 9-11) would be available to
attend. According to Bailey, Willmore declined to schedule such a
negotiating session or sessions; according to Willmore, he had acceded to
such a request on October 29, but without discussion of attendance by
"travelers." It is to be noted that, whatever its validity in terms of company
policy and the parties' former practice, work efficiency (fatigue, etc.),
expense and inconvenience, executives' as well as employees' morale, etc..
the objection to "distant traveling" relates to off-hour, nonworking day
bargaining as well. It is further noted, on the matter of nonworking day and
evening sessions, that Respondent's negotiators numbered seven to nine,
with one possible exception of all company executives (who not only have
company responsibilities all day but also presumably maintain a certain
lifestyle into which Respondent may not wish to intrude unduly without
compelling reason).
4 Thus, for example, Willmore explained:
First of all, we are agreeable and willing to meet at night and on
weekends as the policy has indicated. We are agreeable when it is
necessary to conclude a negotiation or to reach agreement. We have not
in the past refused to meet at night. As a matter of fact, in these
particular negotiations, we did just that. The reason for not making it a
regular time to meet was one, the fatigue aspect and that has been
touched on already here. To anticipate that the members of the
company committee as well as the union committee and I am primanly
concerned with the company committee but both committees it does
not seem to be reasonable to expect them to perform their normal day
on an eight hour basis and then make the necessary arrangements to
(Continued)
581
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This testimony is substantially'5 uncontroverted, and is
credited, and I so find.
On January 7, 1976, within a week after issuance by the
Regional Director of the complaint herein (December 31,
1975, together with the Regional Director's setting down of
the instant hearing for March 25, 1976), Respondent
agreed without prejudice to excuse the employees in
question from work during regular working hours, so as to
permit negotiations to move forward without indefinite
delay.' 6 Shortly thereafter negotiations were resumed,17 in
consequence of which (with an intervening strike in all four
units for the month of February) four separate 2-year
collective agreements were concluded.
B. Discussion and Resolution
Notwithstanding resolution of the parties' differences in
the collective agreements successfully concluded for each
of the four bargaining units, the contention is here
continued to be pressed that the Union had the absolute
right, under the circumstances described, to insist on the
presence of all of the employee-members designated by it
to bargain at all sessions of each of the four widely
geographically dispersed bargaining units. Respondent's
countervailing position on this particular issue is that it had
the right to impose reasonable restrictions for valid reasons
consonant with its business needs as an operating public
utility.
In a way the problem presented arises because the same
employer is involved for all four bargaining units. It could
hardly be contended, for example, that an employer
violates the bargaining obligation by refusing to excuse his
employees from work for the purpose of attending
bargaining sessions of units other than that of the
employees in the employer's own business, even though the
employees are members of the bargaining committees of
such other units but not of the units themselves (as, indeed,
they may be, since bargaining units are not restricted to
travel to the various locations for the purpose of conducting night
sessions with any meaningful sessions. They would meet for a few hours
and then turn around and go back to their respective locations for work
the next day. So, that is my consideration as to the reasonableness of
that type of an arrangement. Another reason is from the standpoint of
proper conduct of the negotiations, I find it necessary on many
occasions to contact the office staff to pursue research questions for me
or to obtain statistics or answer to some questions that have been raised
with regards to negotiations. And in order to have a meaningful and
ongoing negotiation, I would endeavor to secure answers. If you are
meeting at night, that source of information is not available again
without special arrangements or overtime. It is not as available to me
nor for that matter are various members of management who are not
part of the negotiating team but who are supervisors and management
personnel who are available to us when questions come up to have
access to them and to call on and check facts on things that are
mentioned in the negotiations. If we are meeting at night, their
availability is a question. I think that perhaps a primary reason though
is there is ample time and a reasonable amount of time during the
normal business hours, five days a week, eight to five, to conduct
negotiations which is the normal procedure to be followed.
is The only testimony which could be considered to the contrary in part,
is that of Union Business Manager Herriman, dealing only with the
"traveling" employee-negotiators. According to Herriman, such employees
could, after completing a full day's work to 4 or 5 p.m., thereafter travel for
3 hours as much as 170 miles to a distant negotiating session, participate in
negotiations to perhaps 2 a.m., and then for 3 hours drive back 170 miles to
return for an efficient day's work the next morning. I reluctantly am unable
to accept so optimistic a view.
their own numbers in their selection of bargaining
representatives).' 8 At least in the hypothetical situation
posed, it would appear that "the cardinal principal [is] that
the existing unit ... fixes the periphery of the bargaining
obligation." Utility Workers Union of America, AFL-CIO,
and its Locals 111, et al. (Ohio Power Company), 203 NLRB
230, 238 (1973), enfd. 490 F.2d 1383 (C.A. 6, 1974).
Although it may well be that the rule should be no different
where an employer - as here - has more than one,
perhaps many, units in geographically widely dispersed
plants in its industrial empire,'9 the disposition here
reached renders resolution of that issue unnecessary.
The basic issue here tendered is the result of the
respective parties' attempted simultaneous application of
two established principles; viz, (1) the principle that
employees are entitled to negotiate collectively through
representatives of their own choosing (NLRA, Sec. 7),
without employer interference, restraint, or coercion (id,
Sec. 8(aX)()), and (2) the principle that employees do not
have the right to require that collective negotiations be
carried on in such a way as to disrupt or interfere unduly
with the conduct of their employer's business.20
Where a clash would result from the application of two
statutory or salutary principles such as these, common-
sense, respect for the Act's purposes, and deference to the
Board's policies and administrative methodologies -
including the desirability of withholding a heavy regulatory
hand where not called for - require that they be attempted
to be reconciled without affront to either or rejection of
both.
Respondent does not quarrel with the broadly stated
proposition that its employees are entitled to designate
their bargaining representatives, including representatives
who are not members of the particular bargaining units.
Although this proposition as a statutory as well as
philosophical generality allows of no dispute, it, too, in
practical application may be subject to necessary qualifica-
i6 In companion explanatory letters of the same date (January 7, 1976) to
its employees, Respondent describes the situation, including the Regional
Director's refusal to issue a complaint against the Union on Respondent's
8(bX3) cross-charge (later sustained by General Counsel) that the Union
was once again attempting to engage in "illegal coordinated bargaining,"
while at the same time issuing the instant complaint against the Employer
on the Union's charge. Respondent has reasserted this contention by way of
affirmative defense herein. At the instant hearing, Union Business Manager
Herriman - called as an adverse witness by Respondent - conceded that
since 1971 it remains an objective of his Union to bargain with Respondent
as a single unit, "to keep the Company from whipsawing one union lunit
against the other."
As stated by Respondent to its employees in the January 7 communica-
tion, "Solely in the interest of resuming negotiations, we are agreeing to
meet under terms to which we object .... We will pursue our position
through legal channels, rather than at the bargaining table. In other words,
let's get back to the bargaining table and conclude negotiations while the
legal proceedings continue."
1i At least 10 further sessions were preliminarily scheduled between
January 14 and February 3, 1976. The agreements were concluded on
March 5 (SB-BH-TB unit), March 2 (MA-MU unit), March 4 (FW unit),
and March 5 (GO unit).
is General Electric Company, 173 NLRB 253 (1968), enfd. 412 F.2d 512
(C.A. 2, 1969); Minnesota Mining & Manufacturing Conmany, 173 NLRB 275
(1968), enfd. 415 F.2d 1974 (C.A. 8, 1969).
19 The parties have not referred me to any such decision.
20 Cf, e.g., Tennessee Chair Company, Inc., 126 NLRB 1357 (1960);
Converse Bridge and Steel Company, 49 NLRB 374 (1943).
582
INDIANA AND MICHIGAN ELECTRIC COMPANY
tions. Thus, for example, in case of collective bargaining
for Unit A, if its employee-negotiators consist of or include
all or so many employees of Unit B that the effect of
excusing them from work in Unit B for the purpose of
participating in (as well as traveling to and from)
prolonged Unit A negotiations during working time would
be to compel the shutdown of the operations of Unit B, to
the substantial economic detriment of the employer (as
well as of all employees of Unit B and employees of other
dependent segments of the business), the employer would
not be required to do so. Similarly - as in this case - a
public utility would not be required to suspend its service
obligations to the public in order to comply with an
inflexible demand to bargain through specified individuals
at specified locations which would necessitate such a public
service suspension. In such situations, various possible
solutions or compromises could be made; for example,
modifying the composition of the employee negotiating
team,21 or conducting negotiations at times (e.g., evenings
or nonworking days) suitable to both sides.
The same is largely true with regard to the places as well
as times of scheduled negotiations. Thus, even within the
framework of deference to the principle that employees are
entitled to bargaining representatives of their own choos-
ing, an employer could hardly be faulted for hesitating to
sanction or accede to prolonged or frequently repeated
absences on a continuing basis of a key employee who
cannot reasonably be spared repetitively without undue
disruption to the employer's productive operations or
administrative machinery. Situations such as these are
normally resolved by fair and reasonable changes, adjust-
ments, and compromises between the negotiating parties.
And so they were here, by Respondent, to its credit.
Respondent initially (first four negotiating sessions) ex-
cused from work those of its employees who in connection
with their membership on the union bargaining committee
were required to travel to participate in the negotiating
sessions of units other than their own; but it later,
commencing on October 21, when confronted with Fort
Wayne "troubleshooter" crew employee VanAman's re-
quest to be excused for no less than 11 more working
days,22 limited its permission so as essentially to eliminate
attendance at locations to which further travel was
required. Whether or not that limitation was under the
circumstances reasonable is of no real significance, since
Respondent later withdrew the limitation,2 3 thereby per-
2i There have been cases where employer insistence on the presence of a
particular negotiator, who because of other commitments interfering with
his availability is a roadblock to negotiations or slows their pace to a crawl.
has been considered not to meet the Act's good-faith bargaining expecta-
tions, and thus to evidence bad faith such as to constitute unfair labor
practice. Cf. Radiator Specialty Company, 143 NLRB 350. 369 (1963), enfd.
in part only 336 F.2d 495 (C.A. 4, 1964); Solo Cup Company. 142 NLRB
1290, 1295 (1963), enfd. 332 F.2d 447 (C.A. 4, 1964); Insulating Fabricators,
Inc., Southern Division. 144 NLRB 1325, 1326-29 (1963), enfd. 338 F.2d
1002 (C.A. 4, 1964); Skyland Hosiery Mills, Inc., 108 NLRB 1600, 1605
( 1954); "M" System Inc., Mobile Home Division Mid-States Corporation, 129
NLRB 527, 549 (1960); Franklin Equipment Company, Inc., 194 NLRB 643,
645-646 (1971); Pepper & Tanner, Inc., 197 NLRB 109, 121-122 (1972),
enfd. in material part 474 F.2d 1256 (C.A. 6, 1973). Undoubtedly the same
standard would apply lo a union negotiator.
22 Indeed, possibly more, depending upon travel distances and related
physical needs.
23 After issuance of the complaint herein. it is true.
mitting the negotiations - stalled by the Union's refusal to
proceed unless all of the employee-members of its bargain-
ing committee were excused from work during all of the
days involved so as to attend all negotiations of all units,
regardless of their date, time, locale,2 4 and number, or
unless rescheduled for evenings or weekends 25 - to
proceed to successful conclusion and execution of collec-
tive agreements.
In the described situation, to fault Respondent because it
initially declined to excuse several of its employees from
work for many repeated days to travel to and from and
attend each and every one of the numerous sessions of its
seemingly rather large negotiating committee, for bargain-
ing for units other than their own at geographically distant
locations, would not, at this time at any rate, in view of
what has transpired, achieve any essential purpose.
Respondent itself withdrew the antitravel "modification" it
imposed, even though it cannot be said - and is
unnecessary here to determine - that that "modification"
was under all of the circumstances unlawful. Thus, even
assuming Respondent should not have made the "modifi-
cation" (i.e., travel restriction) when it did - perhaps
particularly since it was made "midstream" during the
negotiations, although even so it cannot absolutely be said
that the "modification" was utterly uncalled for under the
circumstances, much less that it was unlawful - Respon-
dent has itself remedied and cured its own lapse, if such it
was.
It remains to consider the contention pressed herein that
a remedial order is nevertheless essential so as to eliminate
the possibility of similar action in the future by Respon-
dent. While I am familiar with the general principle -
again a broad philosophical one - that in labor cases, at
any rate, repentance and correction do not erase nor
perhaps even mitigate transgression against the Act's
command,2 6 the matter is not that simple and does not, in
my opinion, require or warrant wooden application of the
principle, salutary as it is in situations unlike those here
presented. Here, the parties have enjoyed a long 27 and
successful 2 s collective-bargaining relationship, a byprod-
uct of which was Respondent's allowance of time off to
employee negotiating committee members in prior years
for travel to negotiating sessions of other units - not, it is
true, of the order here demanded in 1975,29 but no
comparable demand had been presented prior to the 1975-
76 negotiations. Although Respondent maintains that it
24 As distant as 340 miles roundtrip.
25 I am unaware of any absolute right of a party to insist that
negotiations be scheduled for and confined to nights. weekends, and
nonworking days. nor have I been cited to any authority to that effect. The
Union itself appears to have abandoned this position. which it based upon
"inflationary pressures," supra.
Cf., e.g., N.LR.B. v. Mexia Textile Mills. Inc., 339 U.S. 563. 567
(1950).
27 Since 1934 upwards of 40 years - as shown above.
2" Even if not altogether storm free. See fn. I, supra.
29 E.g., as shown above, at least II extra working days for Fort Wayne
"troubleshooter" team member VanAman alone. It is unnecessary to
determine whether Respondent's antitravel "modification" was improper
insofar as it applied to negotiating committee employee members other than
VanAman, in view of the Union's refusal to proceed with negotiations
unless all employee-members of its negotiating committee, including
VanAman, were excused from work by Respondent in order to attend all of
(Continued)
583
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was correct in its antitravel "modification" under the
circumstances shown, and that it therefore would have the
right to continue that "modification"3 0 in the future under
similar (or more aggravated) circumstances if so advised, it
is hardly fair to consider this as other than either (1) an
understandable disinclination or declination to confess a
guilt it does not feel in the instant case, or (2) a no less
understandable desire to maintain the integrity and
elasticity of its not unreasonable position that it will not
commit itself to an advance "blank check" authorization to
allow employee absences totally unlimited in quantity,
time, and space.3 ' I could not fault Respondent in either
eventuality or contingency. More basically, I consider it
neither necessary nor advisable - if, indeed, practicable or
even possible - to design a master rule as to just how
many days, hours, and travel miles should be allowable or
allowed for how many employees in how many categories
in how many places who may desire to participate in future
negotiations between the parties involving units to which
they do not belong. The factual permutations and combi-
nations are so extensive and the factors involved so
numerous and discrete, 32 as to elude precise or practical
formularization.3 3 One of the Act's core purposes is
promotion of industrial peace through encouragement of
collective bargaining. I believe that purpose would be ill
served by attempted ritualization here of the methodology
of future collective negotiations between the parties.
Rather than promoting the policies of the Act, it would
seem that such an attempted ritualization, even if it could
be achieved, would create an impaction to the desirably
supple peristalsis of collective negotiation. As in their
1975-76 negotiations, the parties may, and presumably
will, in their future negotiations make such accommodative
changes in their positions, views, and bargaining modes as
are necessary, appropriate, and, hopefully, reasonable.
Imbedded and implicit within the collective-bargaining
philosophy is a sort of "fairness doctrine," applicable
equally to both sides of the table - labor as well as
management - as to the degree of accommodation each
side may fairly or reasonably require of the other in order
not to derail the bargaining process.34 The parties here
those meetings. However, that union condition substantially potentiated the
level of its demand.
10 I have been enclosing modification in quotes because it does not seem
entirely accurate to denominate the 1975 76 antitravel policy as a real
modification, in view of the fact that no comparable situation (i.e.,
VanAman's requested I or more additional days off in October-December
1975 alone) had occurred in previous negotiations. Thus, no style or policy
had developed of permitting unlimited absences, or absences of the extent
requested during the 1975-76 negotiations.
31 Thus, while the "nght" of employees to representatives of their own
choosing is indeed strong, it is not absolutely immutable. General Electric
Company v. N.L.R.B., 412 F.2d 512, 517 (C.A. 2, 1969); N.L.R.B. v.
International Ladies' Garment Workers' Union, AFL-CIO [Slate Belt Apparel
Contractors Assn.], 274 F.2d 376, 378-379 (C.A. 3, 1960); N.LR.B. v.
Kentucky Utilities Company, 182 F.2d 810 (C.A. 6, 1950). General Counsel
here has in no way established that Respondent's complained of action was
unlawfully motivated or otherwise improper under the Act, or that it was for
reasons other than nondiscriminatory, perceived, bona fide, operational
needs.
32 They include, for example, the "essentiality" (whatever that is) of the
particular employee's task, the reasonable availability of adequate substi-
tutes, his "normal" workshift hours and the feasibility of substitutions and
adjustments, the size of the negotiating committee, the locus or loci of
separate or combined (or of partially combined) negotiations, the distances
and reasonable travel times involved, available media of transportation,
have successfully surmounted all of their differences in
their 1975-76 negotiations, including that arising out of
Respondent's antitravel "modification" under the circum-
stances described. That "modification" itself could be
considered to fall into the category of the many positions
and stances, some perhaps ill-conceived and some possibly
even technically violative of the Act at any rate if persisted
in (e.g., a sorely tried negotiator exclaiming, "I refuse to
negotiate with anybody like you" and striding from the
negotiating table, only to return the next day to resume
negotiations), which are not uncharacteristic of the normal
peristalsis of collective bargaining. It may be questioned
whether excessive regulatory policing of such matters,
which the parties themselves have repaired, subserves the
fundamental policies of the Act and is calculated to
promote industrial peace, rather than to accomplish the
opposite by reopening old sores.
As has a number of times been indicated, the antitravel
"modification" which stalled the parties 1975-76 negotia-
tions was rescinded, enabling the parties to bring their
interrupted negotiations to a successful conclusion. Wheth-
er or not that or any like "modification" will be suggested,
imposed, withdrawn, or relaxed in the future - with or
without justification, depending upon a kaleidoscope of
possibilities which cannot be dimensioned - is impossible
to predict. Since I consider it inappropriate as well as
unnecessary at this point, with the problem solved and no
outstanding problem now requiring decision, to assume
that Respondent, any more than the Union - with their
demonstrated long history of successful collective-bargain-
ing relationships - has arrived at a fixed purpose not to
make reasonable accommodations or to predict with
assurance that it will not do so in the future, or now to
brand Respondent (who is free from taint of previous
record of violation of the Act) as a lawbreaker under the
circumstances shown, and for all of the other reasons
which have been explicated, 35 I shall recommend dismissal
replacements and substitutes (as well as "stand-ins," as on previous
occasions herein) on the negotiating committee, and even the "pace" of the
negotiations themselves.
33 In an dissimilar context, I had previous occasion to eschew perfor-
mance of the service of planning for Board litigants "safe industrial menus"
at employers' preelection banquets for employees. Preston Products
Company, Inc., 158 NLRB 322, 347 (1966), enfd. 387 F.2d 801 (C.A.D.C.,
1967), cert. denied 392 U.S. 906 ( 1968).
34 Thus, for example, as pointed out above, an employer may not employ
dilatory tactics such as insisting that it requires the attendance of a
particular collective negotiator and no other, when that individual is
continually busy with other matters. In such a situation, the employer's nght
to representation by the negotiator of its first choice is required to yield to
the more important requirement that the normal peristalsis of collective
bargaining be permitted to proceed; thus, two seemingly conflicting rights
are accommodated to each other, averting head-on clash and the imposition
of harsh edict and creation of bad law. It would seem that here, too, it is not
unreasonable to expect pliability on both sides in future negotiations, and
there is no reason now to assume its future absence.
35 Westinghouse Electric Corporation, 132 NLRB 406 (1961), relied upon
by General Counsel, is different. There, unlike here, an employee (Babcock)
was president of the union as well as chairman ex officio of its in-plant
negotiating committee. There were two units in the plant, a professional unit
and a technical-clerical unit. Babcock was a member of the professional
unit. There came a time when the professional unit was voted out. Babcock's
584
INDIANA AND MICHIGAN ELECTRIC COMPANY
of the complaint.3 6
Upon the foregoing findings and the entire record, I state
the following:
CONCLUSIONS OF LAW
I. Jurisdiction is properly asserted in this proceeding.
offer to resign his union post was rejected by the membership, leaving him
as negotiator for the technical-clerical unit. At this point, the employer
refused to allow Babcock time off during working hours to participate in
negotiations for the technical-clerical unit and at the same time refused to
negotiate after Babcock's working hours, but offered to negotiate with
Babcock if he would surrender his position as a professional engineer and
take a nonprofessional job in the technical-clerical unit. Under these rather
unique circumstances, the Board held Sec. 8(a(5) violated, stressing the
"drastic" nature of the "alternative offered Babcock, of sacrificing his
professional career in order to continue serving his Union" as its only
knowledgeable available negotiator, while stating that "each of these
restrictions may by itself have been reasonable." (132 NLRB at 407.) Thus,
in contrast to the instant case, in Westinghouse. (1) only a single plant, with
no distant travel and complex personnel substitutions, was involved; (2)
only one, the chief bargaining, representative was involved; (3) the
bargaining representative was the key negotiator (and one of only two
negotiators); (4) the employer brought rigorously "drastic," unacceptably
indecent pressure upon the key negotiator to sacrifice his professional career
as to its price tag for making it possible for him to negotiate: (5) no necessity
or justification was established for the employer's action; and (6) the
employer did not rescind its action; furthermore, (7) the union substituted
somebody else for Babcock and an agreement was consummated; and (8)
even so, the Board cut back the recommended Order so as to limit it merely
to a requirement that the employer bargain with the union "at reasonable
and mutually convenient times without regard to a.whether the [u Inion's
representatives are employees in the certified [technical-clencal] unit."
(Emphasis supplied.)
Harley Davidson Motor Co., Inc., AMF, 214 NLRB 433 (1974), where the
2. Under all of the circumstances shown and upon the
record as a whole, it has not been established that
Respondent has violated the National Labor Relations
Act, as amended, and that the issuance of a remedial order
herein would effectuate the policies of the Act.
[Recommended Order for dismissal omitted from publi-
cation.]
Board held an employer in violation for refusing to bargain with the union
unless the union confined its negotiating team to its elected bargaining
committee composed of unit employees plus a single representative of the
union's parent international, is likewise a far cry from the situation here.
36 In view of the disposition herein made, it is unnecessary to deal with
other important contentions raised by Respondent in its affirmative defense
concerning the Union's alleged persistent attempt to change the nature of
the certified separate bargaining units, which Respondent asserts constitutes
bad-faith bargaining, relieving Respondent from performance strictissimi of
its own bargaining obligation or "precludlingl the existence of a situation in
which the employer's own good faith can be tested" (Times Publishing
Company, Evening Independent, Inc., News Printing, Inc., 72 NLRB 676, 683
(1947)). Cf. Utility Workers Union of America, AFL-CIO, and Locals i11, et
al (Ohio Power Company), 203 NLRB 230 (1973), enfd. 490 F.2d 1383 (C.A.
6, 1974); Shell Oil Company, 194 NLRB 988 (1972), enfd. 486 F.2d 1266
(C.A.D.C., 1973). This determination also moots all issues, if any, involving
the vacating at the hearing of Respondent's subpoenas duces recum seeking to
elicit material to establish the affirmative defense.
"Coordinated bargaining" in itself is not unlawful provided it does not
comprise unilateral insistence on combining separate bargaining units. Shell,
supra, 486 F.2d at 1268; Harley Davidson Motor Co., Inc., supra, fn. 35, and
cases cited.
The Regional Director's and General Counsel's refusal to issue a
complaint upon Respondent's charges so as to permit the litigation of the
issues tendered by Respondent's affirmative defense is of course in no way
determinative of the possible validity of that defense here, that obviously
being a matter forjudicial and not prosecutory determination.
585