Western Electric, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1972

199 N.L.R.B. 326 (N.L.R.B. 1972)

326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Western Electric, Inc. and E. J. Barber and J. D.
Braggs and International Brotherhood of Electrical
Workers, Local Union No. 2188 , AFL-CIO. Cases
15-CA-4007-1, 15-CA-4007-2, and 15-CA-4053
September 28, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On January 27, 1972, Trial Examiner Maurice S.
Bush issued the attached Decision in this proceeding.
Thereafter, the Respondent filed exceptions and a
supporting brief. The Charging Parties filed limited
exceptions and an answering brief. The General
Counsel filed limited exceptions, a brief in support
thereof, and a reply brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and briefs and has decided to affirm the Trial
Examiner's rulings, findings, and conclusions to the
extent consistent herewith.
The Trial Examiner found the Respondent viola-
ted Section 8(a)(5) and (1) by unilaterally altering the
plantwide movement of personnel provided for in ar-
ticle 28 of the parties' collective-bargaining agree-
ment,2 and thereby caused a change in the established
working conditions of the employees in the unit. In so
finding, the Trial Examiner rejected the Respondent's
claim that the dispute should be resolved by an arbi-
trator under the contract's grievance procedure.
The collective-bargaining agreement contains a
grievance and arbitration procedure culminating in
final and binding arbitration,' and the Respondent
i The Respondent filed a motion to reopen the record to take additional
evidence with respect to the issue of deferral to arbitration The General
Counsel 's reply brief includes an opposition to the Respondent 's motion. In
our opinion the record herein adequately presents the deferral to arbitration
issue and the parties ' positions thereon . Accordingly, the Respondent's mo-
tion is hereby denied
The Charging Parties' request for oral argument is likewise hereby denied
since in our opinion the record in this proceeding , including the exceptions
and briefs , adequately presents the issues and positions of the parties.
2 The contract does not provide for plantwide movement of personnel as
the Trial Examiner implies throughout his Decision. Rather, it provides for
movement of personnel within the manager 's organization with respect to
labor grades 35 and up . The essence of the dispute herein is what was
intended when movement of personnel was limited by contract to the
manager's organization
3 The Trial Examiner found that the present controversy should not be
deferred to arbitration because there is no obligation to submit contract
disputes to arbitration and the contract does not provide for final and bind-
ing arbitration with respect to the dispute involved herein We disagree. It
is clear to us from our examination of the contract that a dispute is arbitrable,
upon request, after the exhaustion of the earlier steps of the grievance proce-
and Union have agreed to submit disputes over the
meaning and application of the collective-bargaining
agreement to that procedure. This case involves alleg-
ed unilateral changes in the existing movement-of-
personnel provisions of the collective-bargaining
agreement and centers on the meaning of those provi-
sions and whether Respondent has gone beyond
them. Thus, the dispute here involved involves the
interpretation of a provision of the collective-bargain-
ing agreement 4 and is a matter which the parties have
voluntarily agreed to resolve by means of the griev-
ance procedure.'
For these reasons , we shall not consider the merits
of the dispute at this time but shall defer to the parties'
grievance procedure.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board orders that the complaint be, and it here-
by is, dismissed; provided, however, that:
Jurisdiction of this proceeding is hereby retained
for the limited purpose of entertaining an appropriate
and timely motion for further consideration upon a
proper showing that either (a) the dispute has not,
with reasonable promptness after the issuance of this
Decision, either been resolved by amicable settlement
in the grievance procedure or submitted promptly to
arbitration, or (b) the grievance or arbitration proce-
dures have not been fair and regular or have reached
a result which is repugnant to the Act.
MEMBER FANNING , dissenting:
For the reasons set forth in my dissent in Collyer
Insulated Wire, 192 NLRB No. 150, I think the Board
neither can nor should require the issue of violation
of Section 8(a)(5) of the Act to be determined by an
arbitrator instead of this Board. Therefore, I would
proceed to the merits of the case.
Without passing on the merits of the case, except
generally, one observation appears appropriate here-
in. The Respondent contends and the Trial Examiner
dure, and the use of the term "may" merely refers to the option to request
or not request arbitration Cf. Tulsa-Whisenhunt Funeral Homes, Inc, 195
NLRB No 20, where ad hoc agreement of both parties was required before
arbitration could be invoked.
4 The Trial Examiner concedes the issue is solely one of contract interpre-
tation (third full paragraph of the Trial Examiner' s Decision).
5 In fact, this matter has been the subject of two grievances which were not
taken to arbitration by the Union as it presumably chose to file the instant
charges and a contract action in Federal distract court Moreover, on Feb-
ruary 19, 1971, the Respondent at the Union's request proposed that the
precise issue involved herein be referred to an arbitrator; the Union without
explication declined to agree to arbitration.
Wrought Washer Manufacturing Co, 197 NLRB No. 14; Coppus Engineer-
ing Corporation, 195 NLRB No. 113, Collyer Insulated Wire, A Gulf and
Western Systems Co, 192 NLRB No. 150 See also Western Electric, Inc., 199
NLRB No 45, decided this day, in which the Board adopted Trial Examiner
A. Norman Somers' recommendation that it defer a, similar contract dispute
to arbitration.
199 NLRB No. 49
WESTERN ELECTRIC, INC. 327
apparently concedes that the issue here is one of con-
tract interpretation. Assuming this case is one of pure
contract interpretation, solely from a practical point
of view we should dismiss it on the merits and be done
with it. All of the parties including the Board have
already expended great amounts of time and money
on this case; yet rather than decide the case, we send
the parties away empty handed to expend more time
and money on an arbitration proceeding which in
itself may not be final in view of the Board's retention
of jurisdiction for limited purposes. Moreover, we
should not overlook the possible lengthy disruption of
what appears to be an otherwise stable bargaining
relationship that may result until this issue is resolved.
I emphasize that this is a purely practical and second-
ary consideration; my primary objection to the
Board's abdication of its statutory authority is set
forth in my dissent in Collyer.
r Vickers, Incorporated, 153 NLRB 561; National Dairy Products Corpora-
tion, Detroit Creamery Division, 126 NLRB 434.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE AND ISSUES
MAURICE S. BUSH,Trial Examiner: Respondent Western
Electric, Inc., has operated its Shreveport, Louisiana, plant
under successive collective-bargaining agreements with the
above-named Union since 1966. From February 22, 1966,
when the Company entered into its first contract with the
Union, until October 1, 1970, when the Company was in its
fourth contract with the Union, the employees in appropn-
ate unit here involved were under the management of a
single overall company manager in charge of manufacturing
and his assistant managers except for temporary brief peri-
ods in 1970 when there were two managers as shown below.
During that 4-year period, the up to 3,300 employees in the
unit had plantwide movement of personnel in such matters
as grade promotions, downgrading, lateral transfers, and
bumping rights in layoffs.
In the latter part of 1970 during the midterm of the then
outstanding collective-bargaining agreement, the Company
took certain actions affecting the movement of personnel as
shown below. On October 1, 1970, after notice to the Union,
the Respondent divided the appropriate unit for manage-
ment purposes into two sections and placed one section
under the management of the man who had theretofore
been manager of the entire unit and the other section under
another manager, each with their own respective assistant
managers . This division of the unit into two sections under
separate managers did not immediately affect the move-
ment of personnel which as before remained plantwide.
However, on November 3, 1970, the Company by unilateral
action, after unsuccessful bargaining with the Union and
against its protest, restricted the movement of personnel of
the employees in the unit to that within their own manager's
supervisory jurisdiction. The effect of this change was that
the employees in the unit in upper grades no longer had
plantwide movement of personnel as formerly enjoyed.
Thus, as stated in Respondent's brief, from and after No-
vember 3, 1970, " ... any promotion in the higher grades
... and bumping were restricted to the employee's own
manager's organization . . . ." After the change, a senior
employee in point of service in one of the two manager's
organizations could lose his job in a layoff while a junior
employee in the other manager's organization would be
retained.
The principal issue in the case is whether the Respon-
dent by its above-described unilateral action of November
3, 1970, altered the provisions of the collective-bargaining
agreement between the Respondent and the Union by
changing the established working conditions of the employ-
ees in the unit in violation of Section 8(a)(1) and (5) of the
National Labor Relations Act as alleged in the complaint.
This in turn involves an interpretation of the rights of the
Company and its unit employees under the collective-bar-
gaining agreement with respect to "Movement of Person-
nel" as set forth in article 28 of the agreement.' While Gen-
eral Counsel admits the Company's right to add new
manager's organizations for the management of the unit as
it sees fit under the management clause of the contract, he
and the Charging Parties contend that the "Movement of
Personnel" provision of the agreement as reflected by the
intent of the contracting parties and by past history required
the Company to continue the status quo of the plantwide
movement of personnel for the duration of the contract and
that no restrictions on the free plantwide "Movement of
Personnel" as theretofore enjoyed by the employees in the
unit could be made in midterm of the agreement. The Com-
pany, on the other hand, contends that the "Movement of
Personnel" section of the collective-bargaining agreement
by its very terms gives the Company the right to unilaterally
restrict movement of personnel during midterm of the con-
tract to each separate manager's organization the Company
sees fit to create within the unit during the life of the con-
tract.
However, Respondent's initial defense to the com-
plaint herein is that the contractual dispute as set forth
above should be referred to the "final and binding arbitra-
tion" provisions of the collective-bargaining agreement and
that therefore the complaint should be dismissed without a
determination of the contractual issue by the Trial Examin-
er. This issue will be given first consideration below al-
though accorded secondary space by Respondent in its
brief.
The consolidated complaint herein was issued on
March 8, 1971, pursuant to charges filed in Cases 15-CA-
4007-1 and 15-CA-4007-2 on January 14, 1971, and pur-
suant to a charge filed in case 15-CA-4053 on March 8,
1971.
The case was tried before the Trial Examiner on May
18 and 19, 1971, at Shreveport, Louisiana. Briefs filed by
counsel for the General Counsel and the Respondent on
July 19, 1971, have been carefully reviewed and considered.
Similarly, the supplement to Respondent's brief filed on
September 7, 1971, calling attention to the Board's recent
decision in Collyer Insulated Wire, 192 NLRB No. 150, on
the matter of deferrals to arbitration, has also been condi-
dered.
1 The collective-bargaining agreement is reflected in Joint Exh. I It con-
s,sts of 69 pages and about an equal number of pages of related appendices
and exhibits.
328 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record and from his observation of the
witnesses , the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Company is engaged at its Shreveport, Louisiana,
plant (known as "Shreveport Works") in the business of
manufacturing electrical components for the communica-
tion industry. In the course and conduct of its business the
Company's Shreveport plant annually purchases goods val-
ued in excess of $50,000 directly from suppliers in States
other than the State of Louisiana. Similarly, in the course
of its business, the Company's Shreveport plant annually
sells and ships goods valued in excess of $50,000 directly
from its said plant to enterprises located in States other than
Louisiana. The Company at all times here material has been
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II FINDINGS ON ISSUE AS TO DEFERRAL TO ARBITRATION
PROCEDURE
As heretofore noted, the Company contends that the
question of whether it has the right to restrict movement of
personnel at its Shreveport plant midterm under the collec-
tive-bargaining agreement from the former plantwide
movement to less than plantwide movement as that term
relates to upgrading, downgrading, lateral transfers, and
layoffs should be deferred to the "Final and Binding Arbi-
tration Provisions of the Collective-Bargaining Agree-
ment."
The general provisions for arbitration of disputes be-
tween the Company and the Union are set forth in article
11 of the collective-bargaining agreement under the heading
of "Arbitration," but the authority of an arbitrator under
article 11 to render a final decision under article 11 is ex-
pressly qualified and sharply limited by article 28 of the
agreement under the heading of "Movement of Personnel"
when the issue involved is movement of personnel.
Article 11 under paragraph 1 provides that, "Any dis-
pute arising between the Union and the Company with
respect to the interpretation of any provision of this agree-
ment . . . may be referred . . . to an Arbitrator.... ..
(Emphasis supplied.) Article 11 under paragraph 7 further
provides that, "The decision of the Arbitrator ... shall be
final...... But article 28 on the subject of "Movement of
Personnel" under paragraph 1.6 restricts the authority of the
arbitrator to issue a decision on any question involving
movement of personnel as follows, " ... in any such case
the authority of the ARBITRATOR shall be limited to a
determination as to whether the COMPANY'S judgment
has been unreasonably exercised." (Emphasis supplied.)
By letter dated February 12, 1971, the Union through
counsel advised the Company that it was "interested in
exploring the possibilities of arbitrating" the involved issue,
but as it was not sure what the Company deemed the issue
to be, asked for a formulation of the issue as the Company
saw it, but reserved the right to withdraw from arbitration
efforts "in the event that we do not agree to what should be
arbitrated .... " (Resp. Exh. 10.)
Under letter dated February 19, 1971, the Company in
reply through counsel proposed the following issue for arbi-
tration:
Whether Article 28 (Movement of Personnel) of the
Collective Bargaining Agreement effective July 24,
1969, requires the company to permit movement of
personnel (upgrading, downgrading, lateral transfer)
between the two managers' organizations (the 200 Or-
ganization and the 500 Organization) after the date the
company reorganized its structure to provide for two
managers' organizations rather than one."
(Respondent's Exh. 11.)
The Union under letter of February 26, 1971, appar-
ently because it was not satisfied with the issue as stated,
declined through counsel to agree to arbitration, and elected
to stand by a lawsuit it had started to block the Company
from curtailing the plantwide movement of personnel that
the employees in the unit had theretofore enjoyed. (Resp.
Exh. 12.)
Discussion and Conclusions
The difficulty with Respondent 's contention that its
asserted contract right to unilaterally curtail preexisting
movements of personnel should be referred to the "Final
and Binding Arbitration Provisions of the Collective-Bar-
gaining Agreement" is that the above findings of fact show
that there are no final and binding arbitration provisions in
the collective -bargaining agreement on issues involving move-
ment of personnel. The only determination that an arbitrator
can make on such an issue is on "whether the Company's
judgment has been unreasonably exercised ." That would
not be a final determination because the "finality" feature
of the arbitrator's decision under the general arbitration
clause of the agreement , article 11 , is superseded by the
language of article 28 which states expressly that the "au-
thority" of the arbitrator "shall be limited" to a mere deter-
mination of whether the Company's judgment on matters of
movement of personnel has been unreasonably exercised.
Moreover , such a determination by an arbitrator, in the
Trial Examiner's opinion , would not be "binding" upon the
parties , or even upon the Company, not only because it is
not a final decision but also because it is a mere opinion by
an arbitrator and not a genuine determination of whether
the unfair labor practice alleged in the complaint has been
committed and consequently cannot put the alleged unfair
labor practice issue finally at rest in a manner sufficient to
effectuate the policies of the Board . C & S Industries, Inc.,
158 NLRB 454.
Another difficulty with Respondent 's contention that
the contract dispute should be referred to arbitration is that
there is no obligatory requirement in the collective-bargain-
ing agreement for such referral . The agreement provides
machinery for arbitration but the use of such machinery is
optional to the parties as the agreement merely states that
the parties "may" refer disputes as to the interpretation of
the agreement to an arbitrator . Under the collective-bar-
gaining agreement, it is not enough that one side to the
controversy may desire referral to arbitration ; under the
agreement both parties must consent to the arbitration pro-
visions before such provisions can come into play.
The Board in 1955 in Spielberg Mfg., Co., 112 NLRB
WESTERN ELECTRIC, INC. 329
1080, set forth the criteria for deferral to arbitration awards.
One of these is that all parties agree to be bound. In Interna-
tional Harvester Co., 138 NLRB 923, enfd. sub nom. Ramsey
v. N.L.R.B., 327 F.2d 784 (C.A. 7), cert. denied 377 U.S.
1003, the Board stated " . . . that collective-bargaining agree-
ments that provide for final and binding arbitration of ...
disputes arising thereunder, `as a substitute for industrial
strife,' contribute significantly to the attainment of this stat-
utory objective ...... (Emphasis supplied.) Although that
decision favors referrals to arbitration, it plainly indicates
that there can be no such deferral unless the collective-
bargaining agreement provides for obligatory final and
binding arbitration. The collective-bargaining agreement
here involved as shown has no such obligatory requirement
for the submission of contract disputes to arbitration. Ac-
cordingly, it is found that under the holding in the Spielberg
case that the present controversy is not subject to deferral
for arbitration because the parties have not agreed to be
bound by arbitration of the controversy.
In a letter supplement to its brief, Respondent calls
attention to the Board's recent decision in Collyer Insulated
Wire, 192 NLRB No. 150, which it asserts is relevant to the
instant proceeding. In Collyer the Board reiterated and per-
haps broadened its policy of deferring to arbitration porce-
dure, but here again the Board made it abundantly clear
that there can be no deferral to arbitration unless the collec-
tive-bargaining agreement provides for mandatory arbitra-
tion of contract disputes. This appears from the following
language of the Board in the C o l l y e r decision. . . . "the
breadth of the arbitration provision makes clear that the
parties intended to make the grievance and arbitration ma-
chinery the exclusive forum for resolving contract disputes."
(Emphasis supplied.) It is this complete absence of any ob-
ligatory provision in the collective-bargaining agreement
here under consideration for reference to arbitration proce-
dure that must necessarily disqualify Respondent's request
for referal to arbitration and dismissal of the complaint.
Respondent's motion for deferral and dismissal of the
complaint is denied.
III UNFAIR LABOR PRACTICES
As heretofore noted the Company contends that the
collective-bargaining agreement by its terms gives it the
right midterm to unilaterally curtail the plant's pre-existing
plantwide movement of personnel whereas General Coun-
sel contends that the contract by the intent of the parties
and actual past practice requires bargaining and consent by
the Union before the Company can initiate any contraction
of the existing plantwide movement of personnel during the
life of the contract. The Union's greatest concern is that in
a layoff, the Company's midterm unilateral abridgment of
the pre-existing plantwide movement of personnel could
result in the layoff of a senior employee in one of the
Company's newly divided management sections of the unit
while a junior employee in the other section would be re-
tained. Respondent's basic concern is to retain what it
deems to be its managerial prerogative and right under the
text of this contract to curtail midterm as it sees fit, the past
plantwide movement of personnel.
Much of the basic and undisputed facts concerning the
principal issue of whether the Company is in violation of
Section 8(a)(5) and (1) of the Act by reason of its midterm
unilateral action of November 3, 1970, in restricting preex-
isting movements of personnel has been set forth in the
opening paragraphs of this decision for the purpose of fur-
nishing the background necessary for a ready under-
standing of the issues in the case. A more complete
statement of the facts is set forth below.
Western Electric has a total of 21 manufacturing plants
throughout the United States. The Company's Shreveport
plant here involved and another at Indianapolis, manufac-
ture all of the telephone equipment used in the Bell Tele-
phone System. The Indianapolis plant manufactures the
single line telephone that is used in the home; one of its
supervisors, as will be hereinafter noted, became tempo-
rarily involved in the supervision of part of the appropriate
unit in the present case. The Shreveport plant manufactures
multiline desk sets for office and industrial use and wall and
coin telephones; it also manufactures innumerable compo-
nents for telephones, such as key switches, connector wires,
and piece parts for telephone repair. About 65 percent of the
Shreveport production is the manufacture of telephones and
the balance consists of component parts for telephones.
Western Electric's Shreveport Works plant began opera-
tions in May 1965 at a pilot plant and moved to its present
permanent quarters in November 1967. The Shreveport
Works has been operated under successive collective-bar-
gaining agreements with the Union since February 22, 1966.
The bargaining unit involved in these contracts is the only
unit in the plant represented by a union. The appropriate
unit here involved consists of all the hourly-rated produc-
tion and maintenance employees in the plant's manufactur-
ing division, excluding office and plant clerical employees,
professional employees, guards and supervisors as defined
in the Act.
The collective-bargaining agreement in effect at the time
of the trial herein is the fourth such contract between the
Company and the Union. It became effective July 24, 1969,
and was scheduled to expire on July 23, 1971. The Company
unilaterally made the change in movement of personnel the
Union complains of in midterm of the contract.
By stipulation, it is established that all of the three prede-
cessor collective-bargaining agreements between the Com-
pany and the Union contained paragraphs virtually
identical with article 11 on "Management of Business" and
article 28 on "Movement of Personnel" as contained in the
current agreement here under consideration.
The record further shows that such articles 11 and 28 are
standard form provisions in virtually all of the collective-
bargaining contracts of the Company throughout the coun-
try at its other plant locations. This finding is based in large
part upon the testimony of Respondent's Shreveport plant
manager of industrial and labor relations, Donald W. Cor-
liss, who testified extensively herein 2 It is also based on the
Trial Examiner's official notice of the allegations of a com-
plaint in Case 17-CA-4233 involving one of the Company's
plants in Omaha, Nebraska. From a perusal of the allega-
tions of that complaint it appears that the collective-bar-
2 There have been only two witnesses in this proceeding, the aforemen-
tioned Mr. Corhss for the Company and Melvin W . Horton, a unit employee
of the Company and vice president of the Local, who testified in behalf of
General Counsel.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining agreement in the Omaha plant case also has an
article (numbered 27) therein substantially the same or
identical with article 28 of the agreement in the instant case
and that the central issue in the Omaha case , as here, is the
right of the Company under its contract with the Omaha
local to unilaterally restrict movement of personnel in mid-
term of the collective-bargaining agreement.'
Article 2 of the collective-bargaining agreement here in-
volved on "Management of Business" gives the Company
the right to direct the work for and operations of the Shreve-
port plant as follows:
The right to manage the Plant and to direct the work
forces and operations of the Plant, subject to the limita-
tion of this Agreement, is exclusively vested in, and
retained by, the COMPANY.
The controversial article 28 on the "Movement of Per-
sonnel" in pertinent portions reads as follows:
Article 28 - Movement of Personnel
1. General
1.1 All adjustment to the working force through up-
grading, downgrading, or lateral transfer, or increases
or decreases in the working force in accordance with
the provisions of this Article shall be initiated and
made by the COMPANY.
1.2 TERM OF EMPLOYMENT shall be given
most weight in the selection of an employee to fill a
vacancy when two or more employees under considera-
tion possess substantially the same qualifications need-
ed for such vacancy.
1.3 Qualifications as used in this Article shall be
determined by the COMPANY based on the
employee's experience, demonstrated productive effi-
ciency, skill or ability and conduct on the job.
11
1.6 If the UNION objects to any move made in ac-
cordance with the provisions of this Article within
ten (10) days after the effective date of such move, the
matter may be processed in accordance with ARTI-
CLE 10, GRIEVANCE PROCEDURE, and ARTI-
CLE 11-ARBITRATION, provided that in any such
case, the authority of the ARBITRATOR shall be lim-
ited to a determination as to whether the COMPANY's
judgment has been unreasonably exercised.
2. Filling Job Vacancies
2.1 When a vacancy occurs, employees of the COM-
PANY who have qualifications for the vacancy will be
considered in successive steps in the following order
until the vacancy is filled:
3 The findings as to the allegations of the complaint in Case 17-CA-4233
are based strictly on the allegations thereof themselves . The hearing in that
case before another Trial Examiner has been completed and is pending
decision . The present Trial Examiner has no knowledge of the facts in that
case as developed at the hearing thereof before another Trial Examiner. The
decision in the instant case will be issued without reference to that in the
Omaha case, should that decision precede the decision herein.
(c) Graded employees in successively lower grades
from within (1) the Assistant Manager's organization
having the job vacancy for vacancies in grade 34 and
lower, or (2) the Manager's organization having the
vacancy for vacancies in grade 35 and higher or in the
JOURNEYMAN TRADES OCCUPATIONS or
JOURNEYMEN from within the Manager's organiza-
tion having the vacancy.
D
3. Effect of lack of Work
3.1 When lack of work necessitates decreasing the
working force , employees shall be selected as surplus in
the inverse order of their TERM OF EMPLOYMENT
from the occupation ; grade , if applicable ; and Depart-
ment Chief's organization affected, ... An employee
selected as surplus or an employee who becomes sur-
plus by displacement shall be considered for placement
in the order of the following successive steps:
3.11 Graded Employee
(b) Displace in his same grade in his own Manager's
organization another employee who has the shortest
TERM OF EMPLOYMENT, provided the surplus
employee is considered by reason of his previous expe-
rience to be able to perform the assignment efficiently
within a limited training period of two weeks, and fur-
ther, provided the surplus employee has at least three
(3) months more TERM OF EMPLOYMENT than the
employee to be displaced. If the employee is not thus
placed, then
(c) In the next lower grade in accordance with (a)
and then (b) above and in the same manner in succes-
sively lower grades.
Summarized, the Company has the right (under par. 1
of article 28) "to initiate the adjustment of the workforce,"
to wit, the unit here involved, through "upgrading, down-
grading, or lateral transfer,4 or increase or decreases," sub-
ject, however, to union objections (under par. 1.6 of article
28) which may be processed through grievance and arbitra-
tion procedures.
In such adjustments to the working force of the appro-
priate unit, term of service must be given most weight (under
par. 1.2 of article 28) in the selection of an employee to fill
a vacancy when two or more employees under considera-
tion possess substantially the same qualifications needed for
such job vacancy. The Trial Examiner finds that the re-
quirement that superior term of service be given the most
weight when two or more equally qualified employees are
considered for a vacancy is a basic seniority provision in the
collective-bargaining agreement, notwithstanding the fact
that between two or more candidates of equal seniority but
4 A "lateral" transfer is shown by the record to be a transfer of an employee
from one job to another job assignment without a change of grade or, put
another way, at the same rate of pay.
WESTERN ELECTRIC, INC. 331
of unequal qualification the Company has the right to
choose the employee with the superior experience, produc-
tive efficiency, skill or ability and conduct on the job for the
vacancy .5 Laclede Gas Company, 173 NLRB 243.
Further summarizing, article 28 provides for the filling
of job vacancies in higher grades (promotions) based on
seniority, provided the employee has the qualifications, as
follows:
1. For promotions "within an Assistant Manager's
Organization " to Grades 34 or lower. (Article 28 par.
2.1 (c) (1).) [Emphasis supplied.]
2. For promotions in "the Manager's Organiza-
tion" to Grade 35 and higher. (Article 28 at par. 2.1 (c)
(2).) [Emphasis supplied.]
Further summarizing, article 28 provides that in the
event of layoffs due to lack of work, the layoffs shall
likewise be based on "Term of Employment" which is
another way of saying "seniority." The article designates
such candidates for layoffs as "surplus" employees and
gives senior surplus employees successive bumping rights
on junior surplus employees "in his own Manager's organi-
zation." (Article 28, par. 3.11 (b).) (Emphasis supplied.)
As noted, article 28 employs the phrases, "the Assistant
Manager's Organization," "the Manager's organization,"
and "his [employee's] own Manager's organization." There
is a clear distinction between a "Manager's Organization"
and "Assistant Manager's Organization." A "Manager's
Organization" is a reference to a group of employees who
work under a designated overall manager or supervisor. An
"Assistant Manager's Organization" is a group of employ-
ees within a Manager's organization who work under the
supervision of an assistant manager to the Manager.
From February 26, 1966, until October 1, 1970, the em-
ployees in the appropriate unit consisting of all of the plant's
production and maintenance personnel, worked under a sin-
gle manager or supervisor. During the whole of that period
the entire unit was called and known as the "200
Manager's Organization" under company nomenclature.6
That period embraced three successive collective-bargain-
ing agreements and most of the term of the fourth successive
bargaining agreement between the Union and the Company
here under consideration.
At all times here pertinent the manager or supervisor
of the "200 Manager's Organization," to wit, the manufac-
turing department, was G. Lee. There are a number of coor-
dinate managers at the plant of other groups of employees
5 Respondent's contention that article 28 on "Movement of Personnel" "is
not a semonty provision" is wholly without meat . It is based on the argument
that the Company under the contract can pick and choose the better qualified
man for a vacancy from two or more employees of equal terms of service.
However , the Company concedes in its brief , that, " where the qualifica-
tions of two or more employees are substantially equal . seniority comes
into the picture for promotions." This is an admission that article 28 is
essentially a seniority provision. Mr Corhss , Respondent's manager of indus-
trial labor relations , testified that "We had seniority , the organization being
a single manager 's organization ." The Trial Examiner is of the opinion that
the collective-bargaining agreement here under consideration would give the
Company the right to select the best qualified man between two or more men
of equal service even if the agreement was completely silent on the Company's
right of selection under such circumstances.
6 The figure "200" is purely an arbitrary designation and has no reference
to the number of employees in the Manager 's organization . This is also true
of all other numbers that appear in front of other manager's or assistant
manager's organizations
in other departments, but Lee's "200 Organization" was the
only organized unit in the plant as well as the largest unit
in terms of numbers of employees. Lee in turn has a number
of assistant managers working under him who under com-
pany nomenclature as shown in the noted footnote also bear
arbitrary number identifications such as the "200 Assistant
Manager" in charge of production control, the "250 Assist-
ant Manager" in charge of sub and final assemblies of tele-
phone sets, etc.
In March 1970, the Company temporarily split the
original "200 Manager's Organization" into two sections,
one of which retained the title of "200 Manager's Organiza-
tion" and the other was given the title of "500 Manager's
Organization." Each was placed under a separate manager
of coordinate authority. The "500 Manager's Organization"
was formed as a new temporary management organization
to help solve some production problems the Company was
having in its coin telephone manufacturing operations such
as large back orders, extensive overtime requirements, and
poor quality. The employee staff of the new temporary "500
Manager's Organization" was formed by transfers of the
coin telephone production employees from the original "200
Manager's Organization" and by transfers of the employees
plant's engineering department known as the "300 Manager
Organization." The employees transferred from the latter
were and are nonbargaining employees.
After the split of the original "200 Manager's Organiza-
tion" into two management groups, Mr. Lee remained man-
ager of the truncated "200 Manager's Organization" and a
Mr. Todd, a manager of the Company's aforementioned
only other telephone manufacturing plant at Indianapolis,
became temporary manager of the new temporary "500
Manager's Organization."
Prior to the split, the Company gave the Union ad-
vance notice of its intentions to temporarily split the appro-
priate unit for management purposes into two management
groups as above described and gave the Union the assur-
ances it wanted that the split would not affect the existing
plantwide "Movement of Personnel" or, in other words,
that the unit employees would continue to have plantwide
movement of personnel as in the past with respect to promo-
tions, downgrading, lateral transfers and bumping rights in
the event of layoffs. Upon receipt of such assurances,' the
Union raised no objections to the split.
Mr. Todd, the temporary manager of the "500 Manag-
ers Organization" having accomplished his mission of mak-
ing the Shreveport's coin telephone operation more effi-
cient, left the Shreveport plant on or about September 15,
1970, and returned to his permanent post at the Company's
Indianapolis telephone manufacturing plant.
The record also reveals another instance where a group
of some 25 unit employees under a separate coordinate
manager known as the "714 Manager's Organization" en-
joyed plantwide movement of personnel along with the
great bulk of the unit employees in the "200 Manager's
Organization" prior to the split of October 1, 1970, under
the terms of the collective-bargaining agreement here in-
volved as applied by the Company.
7 These assurances were given the Local's president by the plant's Labor
Relations Manager W D Corliss who testified herein, "I told him that was
my intention, to retain a single avenue for the movement of personnel."
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 29, 1970, the Company through its
aforementioned industrial and labor relations manager,
Corliss, notified the Local's acting president, W. R. Saddler
by telephone of the Company's intention to make the tem-
porary split of the original "200 Manager's Organization"
permanent as of October 1, 1970. Saddler was also notified
that any change in the past plantwide movement of person-
nel practices in connection with the permanent reorganiza-
tion of the original "200 Manager's Organization" would be
deferred until November 1, 1970, in order to give the Union
the opportunity to discuss the reorganization and the effect
it might have on the employees in the unit. This notification
was confirmed in a letter dated September 30, 1970, by
Corliss addressed to R. D. Myers, President of Local 2188,
who could not be reached by telephone the day before. The
concluding two paragraphs of the letter read:
While the above reorganization will become effective
10/ 1 /70, the Company will not implement any change
in past movement of personnel practices until 11 / 1 /70.
This is in order to provide the Union full opportunity
to review these changes.
I am, of course, available to discuss this reorganization
and any effect it might have on employees you repre-
sent. (Resp. Exh. 5).
In accordance with its notice to the Local, the
Company's temporary split of the appropriate unit for man-
agement purposes became permanent as of October 1, 1970,
but a proposed restriction on the unit's existing plantwide
movement of personnel to movement solely within each of
the two manager's organizations was deferred until Novem-
ber 1, 1970, pending discussion and bargaining thereon with
the Union. Under the permanent split of the appropriate
unit, Lee remained manager of the now diminished "200
Manager's Organization" and J. J. Scott became coordinate
manager of the now permanent "500 Manager's Organiza-
tion." Just prior to the permanent split of October 1, 1970,
there were 2,486 employees in the original "200 Manager's
Organization." On October 1, 1970, 857 of these employees,
mostly employees engaged in coin telephone production,
were transferred to the new permanent "500 Manager's Or-
ganization." On the same date approximately 65 employees
in the "300 Manager's Organization" were transferred to the
new permanent "500 Manager's Organization"; these ap-
proximate 65 employees consisted of some 35 professional
engineers and some 30 technical employees.
From the beginning the Union vigorously protested
and objected to the Company's proposed restrictions on the
plantwide movement of personnel on the ground that it was
contrary to the "intent" of the parties under the terms of the
collective-bargaining agreement and contrary to established
usage under the agreement. The Company with equal vigor
maintained that it had the absolute right to restrict move-
ment of personnel midterm under the literal terms of the
contract and that the Union was aware of the Company's
position on this when it negotiated the collective-bargaining
agreement here involved and agreed to it by the literal terms
of the agreement.
A total of eight joint meetings of union and company
officials were held between October 5, 1970, and November
3, 1970, on the Company's proposed restriction on move-
ment of personnel. Upon failure of the Company to secure
the Union's approval of the proposed restriction, the Com-
pany unilaterally put it into effect on November 3, 1970.
Under the restriction, movement of personnel was restricted
to that within each of the two manager's organizations or
"corridors," to use the word the Company employs in its
brief. More specifically, after the restriction was put into
effect, the employees in the reorganized "200 Manager's
Organization" under Manager Lee had movement of per-
sonnel on promotions, downgrading, lateral transfers, and
layoffs only within Mr. Lee's corridor of management and
the employees in the new permanent "500 organization"
under Manager Scott had the same movement of personnel
only within Mr. Scott's comdor of management. The parties
are agreed that in a layoff under the newly restricted move-
ment of personnel it is possible for a senior employee in Mr.
Lee's comdor to suffer a layoff while a junior employee in
Mr. Scott's corridor could be retained, or vice versa. It will
be shown below that this restriction applied only to employ-
ees in grade 35 and higher.
The "intent" of the parties to the collective-bargaining
agreement on the right or lack of right on the part of the
Company to restrict movement of personnel under article
28 of the collective-bargaining agreement is in large part
reflected in the minutes kept by the Union and Western
Electric of the eight bargaining sessions they had on the
Company's then proposed restriction of movement of per-
sonnel insofar as these minutes show the prior history of
negotiations and prior understandings between the Union
and the Company on the rights of the contracting parties
under article 28. The minutes of the eight meetings as kept
by the Company and the Union are in evidence as General
Counsel's Exh. 2 (a) to (f), and Respondent's Exhibits 6 (a)
to (h), respectively. The Company' s minutes are complete as
they contain minutes for each of the eight meetings; the
Union's minutes are less complete as its minutes for the first
two bargaining sessions , if kept, are not in evidence.
The two separate sets of minutes of the meetings are in
remarkable agreement as to what occurred at the meetings
of the Union and the Company on the latter's proposed
restriction of movement of personnel. 8 The company min-
utes for the first meeting 9 Of October 5, 1970, in pertinent
part read as follows:
Union by its representative: I asked Bill to set up
this meeting when I got word that the Company was
tampering with movement of personnel. When activity
of plant is being reduced, this is a violation of our
agreement . By doing this, you change the whole intent of
the movement of personnel article as it was negotiated.
When you developed Dept. 201 [this obvious error
should read Dept. 5001, you said it was due to engineer-
ing problems. The Union was given assurance there be
no change in movement of personnel ... [Emphasis
supplied.]
Company by its representative: There is no question
about what happened last spring when he brought in
Todd. We said there would be no change in movement
of personnel since he was here on a temporary basis.
WE thought when he left we would maintain our for-
8 Counsel for General Counsel and Respondent also appear to agree that
the two sets of minutes are substantially smular.
9 There are no union minutes of record for this meeting
WESTERN ELECTRIC, INC. 333
mer position . Now it was decided we would make the
permanent change . J. Scott. We also brought piece part
manufacturing into this new branch . The rest will stay
with George Lee. This we envision as a permanent
change.
Union : Doesn't this clash with what you told us
last spring?
Company: I think you can recognize that any or-
ganization will change . There are changing manufac-
turing conditions . We feel strongly that we have the
right to do this under management of the business.
Realign our own management . We realise that this will
have an effect on movement of personnel for people 35
grade and up.
Union : It affects everyone in plant on a layoff.
Company: Okay, it affects all employees on a lay-
off. But there will be no change in sub-branches. We
tried to keep the effect to a minimum . The only change
here is a new manager . Because this will effect move-
ment of personnel , I told Bill we will hold off until
November 1 so we would have a change to discuss.
Union: We feel this is a unilateral move on the part
of the Company. The Company can reorganize its own
management , but when you affect movement of per-
sonnel , you must bargain.
Company: You must recognize when bargaining a
contract that there will be organizational changes as
business changes.
Union: Our minutes will reflect that we never talked
about more than one manager . [Emphasis supplied.]
Company: We did not anticipate another one at that
time ... [Emphasis supplied.]
the work force.
Company: The possibility or reorganization was no
secret . I know your people have discussed what would
happen when new manager 's organization is made.
We've done it at assistant manager level.
Union : Do you agree that this changes condition
of employment.
Company: I don't think it will have that much
effect . Movement of personnel at 35 grade and above
is within manager's organization , but it won't affect-
lower grades.
Union: It will affect employment rights.
Company: It will affect displacement rights on
force reductions.
Union: It will cut it directly in half . Movement of
piece parts too. You told us you would keep work flow
in harmony. We feel this is disharmony.
Company: This is a judgment . We feel this move is
proper.
Union: Let's make one thing very clear. We don't
care who reports to who . We're concerned with move-
ment of personnel . You can make any change you
want.
The Company's minutes for the second meeting with
the Union held on October 14, 1970, read in pertinent part
as'follows:
Company (with reference to the new temporary
"500 Manager's Organization): ...We told you we
were setting up temporary organization. We told you
no change in movement of personnel at that time. We
anticipated that it would only be temporary.
n s • s
s s s
Company: You do recognize the Company's right
to run the business?
Union: No. We don't feel you have the right to
make a move of this magnitude under the management
right clause. We feel you have gone beyond your rights.
Company : With all the changes that take place, we
cannot lock into any assistant manager's or manager's
organization . We know it will change.
Union: Do you feel this is a non-negotiable item?
Company: Obviously not or we would have just
done it . We want to hear any problems you might have.
We feel we need to make changes . [Emphasis supplied.]
Union: You've heard the Union's position. Do you
plan to make any changes? We feel this was a unilateral
move.
Company: We feel this move was well advised. We
don't intend to move these people back to one
manager's organization.
Union : Even though this move was outside the
contract?
Company: We don't feel it was outside the con-
tract . We never gave any guarantee, implied or ex-
pressed , that this organization would not be changed.
Business conditions change.
Union: This doesn't make sense with a decrease in
s
Union: Let me straighten one thing out. We do
have plantwide seniority now and we don't want this
to change.
Company: We do not have plantwide seniority.
Union: Why are you bargaining now?
Company: Because a new manager 's organization
will effect movement of personnel.
Union: Do you consider this a change in employ-
ment rights?
Company: Change.
Union:... We have written proposal we'd like to
present at this time.
Company: May we review it now. In third para-
graph, you propose one manager 's organization and no
others. Movement of personnel be limited to a single
manager's organization.
s s s s
The third paragraph of Union's written proposal dated
October 14, 1970, referred to in the above company minutes
reads as follows:
The Union proposes that the channels of movement
negotiated in the General Agreement between the par-
ties dated 24th July, 1969, which involves one
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager's organization not be effected by this pro-
posed reorganization ; or any future reorganization
concerning manager's organization, Shreveport Works,
without agreement between the parties.
In subsequent meetings the Company made various
proposals to the Union under which they offered to restore
in increasing degrees the loss of preexisting plantwide move-
ment of personnel the Company was proposing to take
away under its management reorganization of the unit, but
always under the condition that there would be a cut off date
on such restorations of existing plantwide movement of
personnel rights some 3 or 4 months prior to the expiration of
the then outstanding collective -bargaining agreement sched-
uled by its terms to expire on July 23, 1971.10 The reason
offered at the trial by counsel for Western Electric for the
Company 's refusal to extend its offers of restoration of the
preexisting plantwide movement of personnel for the life of
the contract " ... was that so it [the Company] would not
go into the ... contract bargaining ... in a position worse
than that which it had under the words of the agreement as
negotiated and written ." The Union rejected the Company's
offers of restoration of plantwide movement of personnel
for a period short of the duration of the agreement because
it believed the Company 's proposal was something less than
"we felt we already had," that is , plantwide movement of
personnel for the duration of the collective -bargaining
agreement.
Of the minutes kept by the Union on its bargaining
sessions with the Company, only two bear on the issue of
the "intent" of the parties under article 28 of the collective-
bargaining agreement on the Company 's right or lack of
right to curb midterm the preexisting plantwide movement
of personnel . The first of these , the Union 's minutes of the
meeting of October 19, 1970, reads in pertinent part:
Company: We have met several times on this sub-
ject and at our last meeting you presented us a propos-
al.
Union: Our proposal concerns only the Movement
of Personnel.
Company: We cannot totally go along with your
proposal as it changes the contract as we see it.
Union: We know that other locations have worked
our Agreement on plantwide placement in an effective
lack of work situation.
Company: Only two (2) locations have this form
the '69 bargaining.
Union: Our intent was never to have it where jun-
ior people are on the roll while senior people are laid
off. How many contracts have we bargained here?
Company: Four.
Union: Don't you agree the intent has always been
one manager? [Emphasis supplied.]
10 The details of these successive proposals by the Company to the Union
are shown in the Company's brief as follows:
1. Permit employees to cross Manager lines once in upgrading situ-
ations, within six months.
2. Permit employees to cross Manager lines once in upgrading situ-
ations, and an unlimited number of bumping situations , within six
months.
3. Permit unlimited upgrading and downgrading across Manager lines
for six months
4. Permit unlimited upgrading and downgrading across Manager lines
for seven months.
Company: Yes, but no one has said we would al-
ways have just one. [Emphasis supplied.]
Union: I don't recall us ever bargaining about this.
Company: Well as we grow you can understand the
need for changes.
s
The other union minutes which bears on the issue is on
the meeting of October 29, 1970, which inlpertinent part
reads:
Union:... we negotiated only one manager's organi-
zation last year. [Emphasis supplied.]
Company: Do you think any future meetings
would be fruitful?
Union: I don't know, we feel that our proposal is
reasonable and don't feel this is an extension of the
contract.
s
a
Company: Your last position is that movement be
the same for the life of the agreement.
Union: Yes.
s s s • 11
At the trial, counsel for the Company in his direct
examination of the plant's aforementioned Labor Relations
Manager Corliss, directed his attention to that part of the
Union's minutes of October 19, 1970, as set forth above
which reads:
Union: Do you agree the intent has always been
one manager?
Company: Yes, but no one has said we would al-
ways have just one. [Emphasis supplied.]
Company counsel then asked Corliss whether he recalled
that question and answer. Corliss did not deny the question
and "Yes" answer but merely stated "Well, I don't recall the
exact words" and then sought to avoid the impact of the
answer "Yes" to the question by elaborating at length on the
"no one has said we would always have just one." From the
above-quoted minutes, from Corliss' testimony, and from
the record as a whole, the Trial Examiner finds that Corliss
as spokesman for the Company at the bargaining meeting
of October 19, 1970, did make the admission attributed to
the Company in the union minutes of that meeting as shown
above.
In all the previous collective-bargaining negotiations
since 1966 leading to the four successive collective-bargain-
ing agreements between the Union and the Company, the
subject of whether the parties, under the standard perma-
nent provisions of article 28 of such contracts, "intended"
the movement of personnel to continue to be plantwide as
WESTERN ELECTRIC, INC. 335
it has been from the beginning, came up for express discus-
sion only once. In 1968 while negotiating the 1968 contract,
the Union sought a change in the language of article 28 to
more clearly and expressly preserve for the employees in the
bargaining unit the plantwide movement of personnel that
they had historically enjoyed under a single manager since
1966. Under the language of section 2.1 (c)(2) of the con-
tract, vacancies in grades 35 and above are filled in "the
Manager's organization having the vacancy ... " and "from
within the Manager's organization having the vacancy."
Fearful that the Company might at some future date under
its right of management article in the collective-bargaining
agreement (article 2) put on additional coordinate supervi-
sors or managers of the bargaining unit and then claim the
right to restrict movement of personnel from the former
plantwide movement to that strictly within each manager's
organization or corridor, the Union sought a change in the
language of article 28 to make vacancies in grade 35 and
above fulfillable not from the ranks of "the Manager's or-
ganization" as the article reads but from the ranks of bar-
gaining unit throughout the "Shreveport Works" which is
the designation the Company's plant is given in the collec-
tive-bargaining agreement . The Union was gravely con-
cerned that in the event the Company chose to add another
coordinate manager to the management of the bargaining
unit and a massive layoff thereafter took place, a senior
employee in one of the two management organizations
could find himself out on the street without a job while a
junior employee in the other manager's organization would
be retained. The union officials expressed this fear many
times to the company officials during the two meetings in
1968 in which the Union sought the described change in the
language of article 28.
Corliss, replying for the Company, denied the Union's
requested change in the language of article 28, but gave the
Union firm assurances that he "did not contemplate addi-
tional manager's organizations ." Notwithstanding this as-
surance , Corliss told the Union officials at the meeting that
the single management of the unit "could possibly change."
With the Company's assurances that it did not contemplate
any changes in the single management of the bargaining
unit, the Union did not press for the language change in
article 28 and it remained the same as it had been since
1966. From the testimony of record 11 on the 1968 negotia-
tions as they relate to article 28, the Trial Examiner infers
and finds that the Union did not consciously yield or waive
its claimed right to plantwide movement of personnel for
the duration of the 1968 collective-bargaining agreement as
contended by the Company.
As heretofore indicated, the single manager of the bar-
gaining unit from 1966 to November 2, 1970, had a number
of assistant managers working under his supervision. Just
prior to the split 12 of November 3, 1970, Mr. Lee, as manag-
ii The only testimony of record on the 1968 contract negotiations with
respect to article 28 was received from the plant 's Labor Relations Manager
Corhss. The only other witness in this proceeding, the Local's vice president,
Horton , did not testify with respect to the 1968 negotiations on article 28 as
he was not a participant thereto. He did not become a union officer until
1969.
i2 After the split, Lee had only four assistant managers under him and
Scott as the other coordinate manager of the bargaining unit had three
assistant managers.
er of the original "200 Manager's Organization," or bargain-
ing unit, had seven assistant managers working under his
supervision who were in turn in charge of the various phases
of the manufacture of telephone sets and component parts.
Each assistant manager had a numbered title such as "220
Assistant Manager" (in charge of production control and
merchandise functions) and "250 Assistant Manager" (in
charge of sub and final assemblies of telephone sets).
Although the language of article 28 of the collective-
bargaining agreement on the movement of personnel on the
filling of job vacancies within "the Manager's Organization"
for vacancies in grade 35 and higher and on the filling of
vacancies within "the Assistant Manager's Organization" for
vacancies in grade 34 and lower, are literally identical, histori-
cally the movement of personnel has at all times been differ-
ent for employees in grade 35 and higher under "the
Manager's Organization" than for employees in grades 34
and lower under an "Assistant Manager's Organization."
From February 22, 1966, to November 2, 1970, the filling
of vacancies in the single manager's organization in grades 35
and higher has always been on a plant wide basis. On the
other hand, the filling of vacancies in an assistant manager's
organization in grades 34 and lower has always been solely
within the assistant manager's organization and never on a
plantwide basis.
The Company in 1967, during the life of the 1967 col-
lective-bargaining agreement, unilaterally split one of the
assistant manager's organizations, known as the "250 Assist-
ant Manager's Organizations" under Manager Lee
into two assistant manager's organizations , one of which
retained its original "250" designation and the other was
named the "260 Assistant Manager's Organization." Sim-
ilarly in 1969 during the pendency of the 1968 contract, the
Company unilaterally split the aforementioned new 260 as-
sistant manager's organization into two, thereafter known
as the 260 and 280 assistant manager's organizations, re-
spectively. It is established by stipulation of the parties that
these splits were made after prior oral notice to the Local
and that the Local did not seek to bargain with the Compa-
ny on its then proposed actions or the effects thereof on the
movement of personnel. It is to be noted that these were
splits of assistant managers ' organizations, not of the single
manager 's organization of the entire bargaining unit.
From the bare bone record of the above stipulated facts
on the Company' s unilateral prior splits of management on
the assistant managers ' level the Examiner finds that the
Union's failure to challenge those splits was not a conscious
waiver of its right to challenge the Company's unilateral
fragmentation of the preexisting plantwide movement of
personnel on the single manager's level as the Company
appears to contend.
The November 3, 1970, split of Manager Lee's "200
Management Organization" did not affect the movement of
personnel of all of the employees in the bargaining unit, but
only'of employees in grade 35 and higher. Under article 14
of the collective-bargaining agreement, the Company main-
tains 10 job grade levels at its Shreveport plant, numbered
32 to 41, inclusive, with 32 being the lowest level at which
employees are employed and 41, the highest. As of July 24,
1969, the hourly wage rate for employees in the unit ranged
from $2.10 for grade 32 to $3.75 for grade 41.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Before the split, the movement of personnel of employ-
ees in the lower grades 32 through 34 with respect to promo-
tions, downgrading, and layoffs, had always been restricted
to that within the assistant manager's organization in which
suchl lower grade employees worked. After the split, the
movement of personnel for grades 32 through 34, as in the
past, continued to be restricted to that within the assistant
manager's organization in woich such graded employees
worked. As this continued restriction on the movement of
personnel for grades 32 to 34, after split did not in any way
change the preexisting working conditions of such lower
grade personnel, General Counsel does not contend that the
coninuation of the restriction of movement of personnel for
employees in grades 32 to 34 after the split to that within
their assistant's management 's organization is in violation
of Section 8(a)(5) of the Act. Such continued restriction of
movement of personnel for grades 32 to 34 isthus not an
issue in the case.
Before the split of the original "200 Manager's Organi-
zation," the movement of employees in grades 35 and higher
was plantwide. After the split of the old 200 organization
into the diminished 200 and the new 500 organization, the
movement of personnel for such grades 35 and higher em-
ployees was no longer plantwide (with certain exceptions
not deemed of sufficient importance for detailing here) but
restricted to that within the 200 to 500 organization in which
such employees worked. This was an actual change in the
preexisting working conditions of such higher graded em-
ployees, whether or not such a change is authorized by the
terms of the collective-bargaining agreement which is the
issue to be decided herein.
The record does not reveal the number of employees in
the bargaining unit with grades of 35 and higher. However,
the testimony of the plant's Labor Relations Manager Cor-
liss shows that there are "many, many" employees in grades
35 and higher in both the truncated 200 and the new 500
organization . It is inferred from Corliss' testimony and from
the fact that there are seven grades of 35 and above as
against only three grades below 35 that at least half of the
bargaining unit consists of employees who are in grades 35
and above and that accordingly at a minimum one-half of
the unit could have their preexisting working conditions
adversely affected by the new restriction on the movement
of personnel in layoffs, promotions and downgrading.
It is established by stipulation that since November 3,
1970, the Company has not permitted movement of person-
nel in grades 35 and higher between the 200 and 500 organi-
zations regardless of the relative qualification of employees.
It is also established by stipulation that since November 3,
1970, the Company " in all cases , without regard to qualifi-
cation, has not considered employees in one manager's or-
ganization for upgrading or downgrading into ... the other
manager's organization," except in hardship cases.
In the summer of 1970 the bargaining unit was reduced
by layoffs due to lack of work from about 3,200 employees
to about 2,500 employees. This figure of 2,500 was roughly
the number of employees in the unit on November 3, 1970,
when the Company implemented its split of October 1,
1970, by restricting movement of personnel to that solely
within each of the two coordinate manager's organizations.
The uncontradicted testimony of the Local's vice president , for determination under the Board 's compliance procedures.
Horton shows that if a similar reduction of force took place
after November 3, 1970, "The potential effect of the split
could be every employee in the unit."
The Respondent's minutes of the bargaining confer-
ence of October 5, 1970, on the Company's then proposal
to restrict movement of personnel as above described shows
that the Company "realized that this will have an effect on
movement of personnel for people 35 grade and up." From
and after the effective date of the new restriction, the Com-
pany could go to the street to fill a 35 and higher vacancy
in one of its two manager' s organizations although there
could be many qualified candidates for such vacancies in
the other manager's organization within the bargaining unit.
The Company's minutes for the same meeting also acknowl-
edge that its then proposed restriction of movement of per-
sonnel would "affect all emplovees in a layoff."
In the 7-month interval between the effective date of
the new restriction on the movement of personnel and the
trial of this case, 10 grievances have been filed by the Union
in behalf of employees in the unit whom the Union claims
have been adversely affected by the new restrictions on the
movement of personnel. These grievances are in various
stages of development under the grievance and arbitration
procedures of the collective-bargaining agreement. Two of
the involved grievants complain that they have been down-
graded and the other six complain that they have not been
upgraded for promotions, all because of the adverse affect
upon them of the Company' s new restriction on the move-
ment of personnel. In addition the record shows illustra-
tions of several other employees who were likewise
adversely affected by the restriction but did not file griev-
ances as the Local felt that the prototype grievances it had
already filed would control the cases of such other employ-
ees. Counsel for the Company admits that there are some
10 to 14 employees who may have been affected by the new
restriction but who have not filed grievances.
In the same 7-month interval between the effective date
of the new restriction of personnel and the trial of this case,
a combined total of about 50 promotions of unit employees
took place in the two manager' s organizations . The promo-
tions in each of the two manager 's organizations took place
without investigation or consideration of whether any of the
employees in the other manager's organization had superior
seniority and qualifications for such promotions.
The described 7-month period has been a relatively
stable period in terms of employment in the bargaining unit.
In that 7-month period there have been no layoffs at the
plant and employment in the unit increased from 2,500 to
2,700 employees. For this relatively short and quiet period,
the Trial Examiner finds and determines that the dozen or
so known employees who appear to have been adversely
affected 13 by the new restriction on the movement of per-
sonnel and the undetermined number of employees who
might have had some of the 50 promotions made in the
period if these promotions had been made under the former
plantwide seniority enjoyed by the employees rather than
within manager's organizations , represent a substantial, if
13 No findings are intended here on the rights of such employees , but left
WESTERN ELECTRIC, INC. 337
fractionally small, number of employees who appear to
have been adversely affected by the new restriction on
movement of personnel. Considered individually, the re-
striction seriously affects each affected employee in terms
of wages when downgraded,14 and in chances for promotion
and dangers of a layoff.
But potentially in the event of a massive layoff of 500
or more employees such as occurred in the summer of 1970,
the Examiner finds from the evidentiary findings above that
the new restricted movement of personnel has every likeli-
hood of resulting in the layoff of senior employees in one
of the two manager 's organization while junior employees
are retained in the other manager's organization. Similarly,
under the new restriction on movement of personnel, a seri-
ous drop of business in one of the manager's organizations
has the strong potentially of resulting in the downgrading
of higher grade senior employees in that manager's organi-
zation while junior employees in the same grade postiions
in the other manager's organization retain their grade posi-
tions.
But the effect of the split is potentially far more perva-
sive than the mere layoff of senior employees in one of the
two manager's organizations while junior employees in the
other manager's organization are retained. Because of the
chain reaction,. each employee who is downgraded or
bumped out of turn because of the split would be affected.
This is because the intermediate steps of "successive"
bumping prior to reaching the end result (i.e., the last em-
ployee to be downgraded or the last employee to be laid off)
would affect any number of employees.
The testimony of the plant's labor relations manager,
Corliss, shows that while there is a certain amount of spe-
cialization on the part of the unit employees in each of the
two manager's organizations , "there are no clearcut lines
where only one job is done in one or the other ...... Corliss'
testimony further shows that "there 's some degree of trans-
ferable skills" between the two manager's organizations.
The Company claims the right under acticle 2 of the
collective-bargaining agreement entitled "Management of
Business" to add additional manager's organizations to the
bargaining unit as it sees fit . General Counsel does not
contest this claim . The Examiner finds that under the con-
tract the Respondent had the right to split the original "200
Manager's Organization" into two manager 's organizations
as it did on October 1, 1970.
The Respondent also claims that there was an eco-
nomic justification for installing an additional manager's
organization to the theretofore single management of the
bargaining unit. General Counsel does not appear to contest
this claim. From the evidentiary findings above, the Exam-
iner finds that Respondent had economic justifications for
adding a second manager to the unit.
The Respondent also claims the right under the terms
of Article 28 of the collective-bargaining agreement for the
unilateral action it took on November 3, 1970, in restricting
14 Although employees who are downgraded received , under the collec-
tive-bargaining agreement, the same wage per hour in their downgraded
grade as they had in their higher grade , their periodic wage increases under
the contract is governed by their grades; the higher grades receive higher
periodic wage increases than do the lower grades Thus a downgrading
generally results in a loss of the higher instep raises for higher paid positions
the pre-existing plantwide movement of personnel to that
within each of the two manager' s organizations under its
management reorganization of October 1, 1970. This is the
central issue in the case; it will be discussed and determined
below in the next section of this Decision. Counsel for the
Company do not claim any economic justification for the
restriction but rely solely on the Company's right to restrict
movement of personnel under the terms of the contract as
appears from the following statement of one of Re-
spondent's counsel at the trial: "Respondent is not contend-
ing that the reason that employees were restricted after this
decision [i.e., the decision to divide the single management
organization into two organizations] was made, in terms of
movement of personnel, was because of economic reasons.
That is not our contention. It was restricted because of the
content [i.e., of Article 28 of the collective-bargaining agree-
ment] ." In view of this admission by Respondent's counsel
that the restriction was not put into effect for economic
reasons, the Trial Examiner asked Corliss, the plant's said
Labor Relations manager, why the Company was so ada-
ment in insisting upon putting into force the new restriction
on movement of personnel despite the strong and unwaver-
ing opposition of the Union. He answered that if the cross-
ing of manager 's lines were allowed under the reorganized
management of the unit "we might be involved in additional,
training."
From the evidentiary findings above showing that
there are not clear cut lines "where only one job is done in
[one] or the other" of the two manager's organizations, and
that there is some degree of transferrable skills between the
two manager's organizations, the Trial Examiner finds and
concludes that the chances that the Company "might be
involved in additional training" if the crossing of manager's
lines were allowed for promotional purposes is minimal. It
is inferred and found from the record as a whole that the
Company would normally be involved in more training of
new employees hired by the Company from off the street
than in the training of employees already on its payroll
desiring to transfer from a job in one of the two manager's
organizations to a job in the other.
Summarizing the record shows and the Trial Examiner
finds that prior to November 3, 1970, the unit employees in
the Company's Shreveport plant in grades 35 and above had
plantwide movement of personnel with respect to promo-
tions , downgrading, lateral moves, and in layoffs, but that
from and after November 3, 1970, their movement of per-
sonnel was limited and restricted to the manager's organiza-
tion to which they were assigned and in which they worked.
Discussion and Conclusions
The ultimate decision for resolution here is whether the
Company had the contractual right under the terms of the
collective-bargaining agreement to unilaterally restrict the
preexisting plantwide movement of personnel during mid-
term of the agreement. From the evidentiary findings set
forth above and the record as a whole, the Trial Examiner
finds and concludes that it was the intent of the parties
under article 28 of the collective-bargaining agreement that
the movement of personnel in grades 35 and higher should
at all times be and remain plantwide during the life of the
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract as it had been under the three previous successive
collective-bargaming agreements.
Accordingly the Trial Examiner finds and concludes
that the Company's unilateral action of November 3, 1970,
restricting the rights of the employees in the bargaining unit
with respect to promotions, downgrading, lateral transfers,
and layoffs to that within one or the other of the two
manager's organizations to which they were assigned under
the management reorganization of October 1, 1970, altered
article 28 of the collective-bargaining agreement and consti-
tuted a change in their established working conditions in
violation of Sections 8(a)(1) and (5) and 2(6) and (7) of the
Act.
As stated in Respondent's brief, "the basic issue in this
case turns upon the proper interpretation of Article 28" of
the collective-bargaining agreement. The Company con-
tends that the literal language of article 28 gives it the right
to restrict movement of personnel to that within each of the
two manager's organizations and thereby to prohibit the
movement of personnel across manager's organization
lines . In support of its contention the Respondent points to
the language of article 28 which provides that vacancies in
grade 35 and higher shall be filled in "the Manager's organi-
zation having the vacancy" and that vacancies in
journeymen's occupations shall be filled "from within the
Manager 's organization having the vacancy." (Emphasis sup-
plied.) Respondent also points to other language of article
28 dealing with successive bumping rights senior employees
have in the event of widespread layoffs due to lack of work.
In such situations article 28 provides that an affected em-
ployee has displacement rights "in his own Manager's organi-
zation." (Emphasis supplied.) From these quoted phrases in
article 28, the Company argues that article 28 "authorizes
the Company to restrict movement of personnel from one
manager's organization to another, no matter how many
manager 's organization there may be." (Emphasis sup-
plied.)
While it is true that the literal language of article 28, if
not directly15 at least impliedly, supports Respondent's con-
tention that the contract authorizes restrictions on the
movement of personnel from one manager's organization to
another, the record is otherwise overwhelming that this was
contrary to the intent and understanding of the parties at
the time the 1969 collective-bargaining agreement here in-
volved was negotiated and that the real intent of the parties
had been that there would be a continuation of the status
quo of plantwide movement of personnel under a single
manager as in the past under three previous successive col-
lective-bargaining agreements , all of which contained arti-
cles identical with or wholly similar to article 28.
This intent was admitted by the Company at one of the
15 The contract would have avoided the present controversy if it had direct-
ly stated that while the bargaining unit has always been under the manage-
ment of a single manager, the parties agree that the Company may at any
time during the life of the contract add additional managers to the manage-
ment of the unit and that in connection therewith the Company would have
the right to restrict movement of personnel from one manager's organization
to another. Instead the Company relies on inferences to be drawn from such
phrases in article 28 as read that vacancies shall be filled in "the Manager's
organization having the vacancy" as giving it the authority to put on addi-
tional managers and restrict movement of personnel to the corridors of each
manager's organization.
eight bargaining sessions it held with the Union on its pro-
posal to restrict movement of personnel from the previous
plantwide movement. As the findings above show, this ap-
pears from the Union's minutes of the meeting of October
19, 1970, in which the following colloquy took place:
Union: Don't you agree the intent has always been
one manager?
Company: Yes, but no one has said we would al-
ways have just one. (Emphasis supplied.)
Union: I don't recall us ever bargaining about this.
Company: Well as we grow you can understand the
need for changes....
At the earlier meeting of October 5, 1970 (the first
meeting), the minutes of the Company show that when the
contract here under c consideration was negotiated in 1969
the parties negotiated under the understanding that there
would be only a single overall company manager of the
bargaining unit as appears from the following excerpt from
the minutes:
Union: Our minutes 16 will reflect that we never
talked about more than one manager.
Company: We ,did not anticipate another one at
that time.
Any review of the minutes of the parties on their post-
contract bargaining sessions of the Company's postcontract
proposal to impose limits on the existing plantwide move-
ment of personnel clearly shows that the involved 1969
contract had been negotiated with the intent that the bar-
gaining unit would remain under a single overall company
manager under whom the employees would continue to
have plantwide movement of personnel as in the past. At the
time the 1969 contract was negotiated the Company had no
plans or present thoughts of splitting the single management
of the unit into a dual management.
The only time article 28 came up for direct discussion
was in connection with the negotiations for the 1968 con-
tract, not the 1969 agreement, when the Union, in order to
avoid any future misunderstanding, requested changes in
the language of article 28 to expressly provide for plantwide
movement of personnel to conform with the actual practice
under all preceding articles 28 in all previous collective-
bargaining agreements. The Company declined to make the
changes on the ground that the presently existing single
management of the unit and, with it the plantwide move-
ment of personnel, "could possibly change," but gave posi-
tive assurance to the union officials that the Company had
no present thoughts or plans to put on additional managers
to the unit. With these assurances the Union did not press
for the requested changes in the language of article 28, but
there is nothing in the record to suggest or indicate that the
Union consciously yielded or clearly and unmistakenly
waived its interest in the matter as is required under well
established authority for proof of a waiver of the right to
bargain on such vital matters of employee concerns as pro-
motions, downgrading, and seniority rights in layoffs.17 Be-
16 Neither the Union nor the Company offered in evidence the minutes
they kept of the negotiations leading to the 1969 collective-bargaining agree-
ment here under consideration , presumably because they showed no discus-
sion on the text of article 28
17 See cases collated in In . I I and 12 of the Trial Examiner 's Decision in
Rockwell-Standard Corp, 166 NLRB 124 enfd , 410 F 2d 953, at In 2 (C.A.
6), as well as text of the Trial Examiner's Board adopted decision at p 132
WESTERN ELECTRIC, INC.
cause of the assurances that no present changes in the
existing plantwide movement of personnel were contem-
plated, the changes the Union asked for in the language of
article 28 became academic and not worthy of prolonged
discussion and negotiation. " But is quite apparent from the
fight the Union put up when the Company proposed the
present curtailment of the preexisting plantwide movement
of personnel as culminating the instant proceeding that the
Union did not in the negotiations for the 1968 contract
deliberately and knowingly waive its right to bargain and
even strike for the preservation of the preexisting plantwide
movement of personnel had since 1966. The preservation of
this plantwide movement of personnel was and is of vital
importance to the Union because a division of such plant-
wide movement of personnel under separate managers
could among other adverse effects lead to senior employees
losing their jobs in one manager's organization during a
massive layoff while junior employees retain their equiva-
lent positions in the second manager's organization. This
was the ever present concern of the union officials at the
eight bargaining sessions held with the Company before the
Company unilaterally and without union consent imposed
the new restriction on the plantwide movement of person-
nel.
The Trial Examiner further finds and concludes from the
above evidentiary findings that the Union did not waive its
right for bargaining on the effect the splitting of the single
manager's organization would have on the movement of
personnel by its failure to request bargaining on the
Company's past actions under prior collective-bargaining
agreements in splitting assistant manager organizations as
contended by Respondents. As heretofore found, historical-
ly the movement of personnel for employees in grade 34 and
below has always been within the assistant manager's organ-
ization to which such employees happen to be assigned
whereas the movement of personnel for employees in grade
35 and above prior to November 3, 1970, has always been
in the manager's plantwide organization. Up until October
1, 1970, the manager's organization has always been plant-
wide whereas all assistant manager organizations at all times
both before and after October 1, 1970, have always been
only designated sections within the single manager's plant-
wide organization. Thus historically the movement of per-
sonnel on an assistant manager's level has always been
within the assistant manager's less-than-plantwide organi-
zation for employees in grades 34 and below whereas histor-
ically the movement of personnel for employees in grades
35 and above had always been until the Company's unilat-
eral action of November 3, 1970, within the single
manager's plantwide organization. For this reason, it fol-
lows that the failure of the Union to request bargaining on
the splitting of assistant manager's organizations was not a
conscious and deliberate waiver of the Union's right to
contest the splitting of the single manager's organization
insofar as it affected the traditional working conditions of
on requirements for a "waiver " See also Unit Drop Forge Division, Eaton Yale
& Towne Inc., 171 NLRB No. 73
18 The Union's decision not to become involved in prolonged negotiations
about the academic possibility that the Company might put on an additional
manager in view of company assurances that it had no present plans or
thoughts of doing so turned out to be a sound judgment as the Company did
not in fact put on any additional managers of the unit during the life of the
1968 contract.
339
employees in grade 35 and above as enjoyed by them since
the beginning of the contractual relationship in 1966 be-
tween the Union and the Company. The latter involving the
rights to promotions and job security on a plantwide basis
are of such vital interest to the employees in the unit that
it cannot be assumed that there has been a waiver thereof
in the absence of clear and positive proof of such waiver.
That element is lacking in the instant case.
If history sustains the right of the Company under article
28 to contain movement of personnel for employees in
grades 34 and lower to that within their assistant manager's
organization, then history under article 28 also sustains the
right of employees in grades 35 and above to plantwide
movement of personnel within the original single manager's
plantwide organization for the duration of the life of the
collective-bargaining agreement here involved.
Another argument advanced by the Company is that its
unilateral imposition of the rule against the movement of
personnel across manager's organizations should in any
event be allowed to stand on the ground that the restriction
has had only what it deems a nonsignificant impact on the
bargaining unit in the 7 months the restriction has been in
effect, under a line of cases involving unilateral subcon-
tracting. Westinghouse Electric Corp., 150 NLRB 1574;
American Oil Co., 151 NLRB 421; Allied Chemical Corp.,
151 NLRB 718. In these cases the Board held that the
employers were not in violation of the Act by their unilat-
eral acts of subcontracting work out because the subcon-
tracting did not involve any significant impact on unit
employees' job interests.
But it is obvious from any perusal of these subcontracting
cases that the Board weighed the Employer's economic ad-
vantages from such subletting as established by long prior
practice against the adverse impact of the subcontracting on
the employees in the unit in arriving at a decision of whether
there had been a violation of the Act and that where the
record historically showed strong economic advantage to
the Company and no significant adverse impact or det-
riment to the employees, the Employer has been found not
to be in violation of the Act.
The instant case does not involve any subcontracting but
even if the holdings of the Board in the above-cited cases
are deemed applicable, the record here fails to show any
economic advantages to the Company for the substitution
of its rule against the movement of personnel across
manager's organizations for its former long established
practice of allowing plantwide movement of unit personnel.
A sharp distinction must be drawn between the economic
advantages to the Company in the splitting of the original
unitary management organization of the unit into two and
its new rule limiting movement of personnel to that within
each of the two manager's organizations. This is because the
record shows definite economic justification for the splitting
by reason of increased efficiency, but no economic benefits,
or virtually none, accruing to the Company from its new
restriction on the former plantwide movement of personnel.
While the plant's labor relations manager , Corliss, claimed
some economic disadvantages in allowing the crossing of
manager's organization after the split as "we might be in-
volved in additional training," 19 counsel for the Company
19 It would appear that it would be quicker and easier to train a present
continued
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
openly conceded that the Company was not claiming any
economic advantages from the new restriction on the move-
ment of personnel , as it places its sole reliance on the lan-
guage of Article 28 for the authorization of the new
restriction. (But as shown above, Article 28 interpreted in
the light of the intent of the parties shows that the parties
intended the preexisting plantwide movement of personnel
under article 28 to continue for the life of the contract.)
Thus by the Respondent's failure to show any signifi-
cant economic benefits to itself from its new restriction on
the movement of personnel, the Respondent's unilateral
imposition of the restriction is a violation of the Act enven
under the Board's holdings in the cited subcontracting cases
upon which it relies.
However, even if the "significant impact" test of the
cited subcontracting cases is applied here, the record shows
that the Company's new restriction on the movement of
personnel does have a significant present and potential im-
pact on the employees in the bargaining unit. The
Company's minutes of . the midterm bargaining sessions
with the Union on its then proposed new restriction on the
movement of personnel shows that the Company was aware
that it would have an affect on employees in grade 35 and
above and that "It will affect displacement rights on force
reductions. "20
The above findings of fact further show that in the
relative short and stable period of employment of 7 months
since the new restriction on movement of personnel was put
into effect there are a dozen or so known employees who
have filed grievances and appear to have been adversely
affected by the new restriction and an undetermined num-
ber of employees who might have had some of the 50 pro-
motions made in the period if these promotions had been
made under the former plantwide seniority enjoyed by the
employees prior to the new rule. In addition there are some
10 to 14 employees who appear to have been affected by the
new restriction but who have not filed grievances. Consider-
ing the brevity of the elapsed time and stableness of the
employment situation therein, the Trial Examiner finds and
concludes that this evidence shows strong indications that
the new restriction has had a significant adverse impact on
the employees in the unit. A much more widespread and
serious impact on the unit would take place if the Company
had another massive layoff due to lack of work such as it
did in the summer of 1970 before the new restriction went
into effect when more than 500 employees were laid off. In
that situation the record shows a very strong potentiality
that quite a number of senior employees in one manager's
organization could be laid off while junior employees in
equivalent positions are retained in the other manager's
organization.
In review the record shows that the collective-bargam-
ing agreement here involved and its three predecessor agree-
ments were all executed under the present reality of a single
manager of the bargaining unit inextricably tied in to a
plantwide movement of personnel. So firmly fixed and es-
employee in one manager 's organization for an open position in the other
manager 's organization than to train a new employee brought in off the
street , especially in view of Corhss' admission that there is some degree of
transferrable skills between the two manager 's organization.
20 See quotations from Company's minutes of the meeting of October 5,
1970, as set forth in the findings of fact above.
tablished was this right of the unit employees to plantwide
movement of personnel that the Company' s minutes of its
initial negotiating session with the Union of October 5,
1970, shows that it recognized that its then proposed re-
striction on the existing movement of personnel was a "ne-
gotiable" item.21 But even before this when the Company
first split the 200 manager's organization into two separate
and independent manager's organizations on a temporary
basis the Company recognized the inviolable nature of the
preexisting plantwide movement of personnel by its abso-
lute assurances to the Union that the movement of person-
nel would not be disturbed by the temporary split. It was
only after the Company decided to make the split perma-
nent that it took its present position that the collective-
bargaining agreement "required" it to prohibit the move-
ment of personnel across manager's organizations. The fact
that the Company for an undisclosed period of time prior
to October 1, 1970, allowed a group of unit employees in a
then separate and independent "714 Manager's Organiza-
tion" the same free plantwide movement of personnel as
was had by the unit employees in the "200 Manager's Or-
ganization" shows that there is nothing in the collective-
bargaining agreement according to the Company's own
prior understanding of the document which "requires" it to
restrict movement of personnel across manager's lines.
As the record shows that virtually no economic benefits
flows to the Company from its new restriction of the former
plantwide movement of personnel, it appears that the Re-
spondent is engaging in a mere power struggle with the
Union for the right to impose the restriction as opposed to
the Union's genuine concern that the vital interests of the
unit employees in the matter of promotions, downgrading,
lateral transfers, and layoffs be preserved as in the past on
a plantwide basis for the remaining life of the collective-
bargaining agreement.
It is well established that a unilateral alteration by an
employer of a bread and butter provision of a collective-
bargaining agreement is a violation of Section 8(a)(5) and
(1) of the Act. C & S Industries, Inc., supra, The Standard
Oil Co., 174 NLRB No. 33; General Electric Co., 177 NLRB
401; Unit Drop Forge Division, Eaton Yale & Towne, Inc., 171
NLRB No. 73; Wisconsin Southern Gas Company, Inc., 173
NLRB 480; Brotherhood of Locomotive Firemen and Engine-
men, 168 NLRB 677. The present case falls within the ambit
of these Board decisions by reason of Respondent' s unilat-
eral alteration of the preexisting plantwide movement of
personnel under article 28 of the collective-bargaining
agreement during the life of the contract and is accordingly
in violation of Section 8(a)(5) and (1) of the Act. However,
it is found that Respondent's unilateral split of the "200
Manager's Organization" per se and without reference to
the Company's followup restriction of the movement of
personnel across manager's lines of authority, was within
the Company's authority under article 2 on the "Manage-
ment of the Business ." Accordingly insofar as the complaint
alleges a violation of the Act by reason of the Respondent's
unilateral split of the "200" organization per se it will be
dismissed.
21 The Company's minutes for that meeting shows that the Company, in
answer to the Union's inquiry, "Do you feel this is a non-negotiable item [i.e.,
the Company's then proposed restriction on the existing plantwide move-
ment of personnel]?" replied, "Obviously not or we would have just done it."
WESTERN ELECTRIC, INC. 341
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, the Trial Examiner makes
the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and the Union
is a labor organization, all within the meaning of the Act.
2. All hourly-rated production and maintenance em-
ployees in the Manufacturing Division of Respondent's
Shreveport, Lousiana plant, but excluding office and plant
clerical employees, professional employees, guards, and su-
pervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
3. At all times herein material, International Brother-
hood of Electrical Workers, Local Union No. 2188, AFL-
CIO, has been the duly recognized collective-bargaining
representative within the meaning of the Act of all employ-
ees in the above-described appropriate unit.
4. At all times herein material there has been a collec-
tive-bargaining agreement in effect between the Respon-
dent and the Union covering the above-described appropri-
ate unit, effective from July 24, 1969, until July 23, 1971.
5. Article 28 of the aforesaid collective-bargaining
agreement by the intent of the parties thereto provides for
plantwide movement of personnel for all employees in
grades 35 and higher in the above-descnbed appropriate
unit.
6. Respondent on November 3, 1970, unilaterally, with-
out agreement with the Union, altered the plantwide move-
ment of personnel provided for in said article 28 and
thereby caused a unilateral change in the established work-
ing conditions of the employees in the unit during the life-
time of its collective-bargaining agreement with the Union.
7. The said unilateral change in the established working
conditions without agreement of the Union indicates signif-
icant adverse affects on the employees in the unit and car-
ries with it a strong potential for future adverse significant
affects on the unit employees.
8. The Union at no time waived its contractual right to
retain the plantwide movement of personnel they have had
under collective-bargaining agreements since 1966.
9. The Respondent has engaged in unfair labor prac-
tices in violation of Section 8(a)(5) and (1) of the Act by its
unilateral act of November 3, 1970, limiting the preexisting
plantwide movement of personnel resulting in unilateral
changes in established working conditions for the unit em-
ployees.
10. The collective-bargaining agreement here involved
does not provide for a deferral to final and binding arbitra-
tion on the question of whether article 28 thereof on the
"Movement of Personnel" gives the Respondent the right to
initiate unilateral restrictions on the preexisting plantwide
movement of personnel.
11. The contract dispute between the Respondent and
the Union over the Respondent's right under said article 28
to limit the preexisting plantwide movement of personnel is
not deferrable under the provisions of the collective-bar-
gaining agreement to final and binding arbitration.
12. Respondent's unfair labor practices in unilaterally
changing the established working conditions of unit em-
ployees on such mandatory bargaining subjects as promo-
tions, downgrading, and layoffs through restrictions on the
preexisting plantwide movement of personnel is not subject
to deferrals to arbitration under Board decision.
13. The described unfair labor practices are unfair la-
bor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
IV THE REMEDY
It having been found that the Respondent engaged in
certain unfair labor practices in violation of Section 8(a)(1)
and (5) of the Act, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
It having been found that Respondent's action of No-
vember 3, 1970, restricting plantwide movement of person-
nel for employees in grade 35 and above is a violation of
Section 8(a)(1) and (5) it will be recommended that the
Respondent be ordered to retroactively revoke and rescind
said rule as of November 3, 1970, and that it simultaneously
restore as of the same date the plantwide movement of
personnel thereto enjoyed by such unit employees.
Under the November 3, 1970, restriction on the former
plantwide movement of personnel some unit employees
may have lost promotions, some may have suffered down-
grading, some may have been denied lateral transfers, and
some may have been laid off while less senior employees
were retained, all of which adverse personnel actions they
may not have suffered under the old plantwide movement
of personnel. The identity of these employees and the extent
of their detriment can only be determined in the compliance
stage of this proceeding. As it is Board policy to restore the
preexisting status to employees who have been adversely
affected by an employer's unilateral action,22 it will be rec-
ommended that the Company restore the status quo ante to
all unit employees who have been adversely affected by the
restriction on the former plantwide movement of personnel
as determined in the compliance stage of this proceeding, to
progress them to the status they would have had if there had
been no change in the pre-existing free plantwide movement
of personnel, to reinstate senior employees who have been
laid off 23 while equivalent junior employees were retained,
and to make all such affected unit employees whole for any
loss they may have suffered by reason of the change, as
prescribed in F. W. Woolworth Company, 90 NLRB 289,
with interest at 6 percent per annum as required under Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, the Trial Examiner issues the following recom-
mended:24
22 This will be in accordance with the Board's policy to restore the status
quo ante to employees who have been adversely affected by an employer's
unlawful unilateral action Beacon Journal Publishing Co, 164 NLRB 1187
and Supplemental Decision in 173 NLRB 1187
23 There have been no layoffs at the Company's plant between the effective
date of the new restriction on the movement of personnel and the date of the
trial herein some 6 months later . Compliance proceedings would show if
there have been prejudicial layoffs since the teal.
24 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Section
Continued
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Respondent Western Electric, Inc., its officers, agents,
successors and assigns, shall:
1. Cease and desist from:
(a) Making any unilateral changes in the preexisting
plantwide movement of personnel at its Shreveport, Loui-
siana , plant affecting promotions, downgrading, lateral
transfers, layoffs, and any other terms and conditions of
employment of its employees in the above-described appro-
priate unit during the unexpired term of its collective-bar-
gaining agreement with the above-named Union without
first reaching agreement with the Union concerning such
changes.
(b) In any like or related manner interfering with, re-
straining, or coercing employees at its Shreveport, Louisia-
na, plant in the exercise of their rights guaranteed in Section
7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act.
(a) Forthwith revoke and rescind, retroactive to No-
vember 3, 1970, its unilateral decision and action of that
same date limiting and restricting the movement of person-
nel of unit employees in grades 35 and above at its Shreve-
port, Lousiana, plant to movement solely within the
manager 's organization to which 1 they are attached.
(b) Forthwith restore the rights of unit employees in
grades 35 and above at its Shreveport, Louisiana, plant to
the plantwide movement of personnel they had prior to
November 3, 1970.
(c) To forthwith restore to their status quo ante all of its
Shreveport plant employees adversely affected by the
Company's restriction on the former plantwide movement
of personnel; to advance such employees to the status they
would have had if there had been no curtailment of the
Company's former practice of plantwide movement of per-
sonnel ; to reinstate senior employees who may have been
laid off in one manager's organization while junior employ-
ees in equivalent positions in the other manager's organiza-
tion have been retained; and to make all such affected unit
employees whole for any loss of pay they may have suffered
by reason of the restrictive change on the former plantwide
movement of personnel, in the manner set forth in the sec-
tion of this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pro-
motion, downgrading, lateral transfer, and layoff records,
all payroll records, social security records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of
this order and for the restoration of affected employees to
their status quo ante under the original plantwide movement
of personnel.
(e) Post at its plant at Shreveport, Louisiana, copies of
the attached notice marked "Appendix."25 Copies of said no-
tice, on forms provided by the Regional Director for Region
15, after being duly signed by an authorized representative of
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
the Respondent, shall be posted by the Respondent imme-
diately upon receipt thereof, and be maintained for 60 consec-
utive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 15, in writ-
ing, within 20 days from the date of the receipt of this Order,
what steps the Respondent has taken to comply here-
with.26
IT IS ALSO ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.
25 In the event that the Board 's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
26 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read - "Notify
the Regional Director for Region 15, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX,
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL immediately revoke and rescind as of this
date our rule of November 3, 1970, restricting move-
ment of personnel for employees in the bargaining unit
in grades 35 and above to movement of personnel sole-
ly within the manager's organization to which such
employees are assigned and attached.
WE WILL immediately restore as of this date to all of
our employees in the bargaining unit in grades 35 and
above the former plantwide movement of personnel they
had prior to our November 3, 1970, restriction thereof.
WE WILL NOT hereafter unilaterally, without the
agreement of the Union, make any changes in the preex-
isting plantwide movement of personnel or in any other
way change the established working conditions of the
employees in the bargaining unit during the lifetime of a
collective-bargaining agreement with the Union.
WE WILL forthwith restore to all of our Shreveport
plant employees, adversely affected by our restriction
on their former plantwide movement of personnel, the
status they had before the restriction was put into effect
and advance such employees to the status they would
have had if the restriction had not been put into effect.
WE WILL reinstate any senior employees who may
have been laid off in one manager's organization while
junior employees in equivalent positions have been re-
tained.
WE WILL make all unit employees adversely affect-
ed by the aforementioned restriction on the preexisting
plantwide movement of personnel whole for any loss of
pay they have suffered by reason of the restriction.
WESTERN ELECTRIC, INC.
The bargaining unit is:
All hourly-rated production and maintenance em-
ployees in the manufacturing division of Western
Electric , Inc., at its Shreveport , Louisiana , plant,
but excluding office and plant clerical employees,
professional employees , guards , and supervisors as
defined in the Act.
WESTERN ELECTRIC, INC
(Employer)
Dated By
(Representative) (Title)
343
This is 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 direct-
ed to the Board's Office, T 6024 Federal Bldg. (Loyola), 701
Loyola Avenue , New Orleans , Louisiana 70113, Telephone
504-527-6361.