Brotherhood of Locomotive Firemen and Enginemen

National Labor Relations Board - Board Decisions

Dec 5, 1967

168 N.L.R.B. 677 (N.L.R.B. 1967)

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN 677
Brotherhood of Locomotive Firemen and Enginemen
and Office and Professional Employees Interna-
tional Union, Local 425, AFL-CIO. Case
8-CA-4429
December 5, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
3. The address and telephone number for Region
8, appearing at the bottom of the Notice attached to
the Trial Examiner's Decision, is amended to read:
Federal Office Building, Room 1695, 1240 East 9th
Street, Cleveland, Ohio 44199, Telephone
522-3738.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On June 19, 1967, Trial Examiner John G. Gregg
issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act,
as amended , and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner 's Deci-
sion . Thereafter , the Respondent and the Charging
Party filed exceptions to the Decision , and support-
ing briefs , and the Respondent filed a brief in
answer to Charging Party's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision , the exceptions and
briefs , and the entire record in the case, and hereby
adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner. I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Brotherhood of Locomo-
tive Firemen and Enginemen, Cleveland, Ohio, its
officers, agents, and representatives, shall take the
action set forth in the Trial Examiner's Recom-
mended Order, as herein modified:
1. In paragraph 2(d), in line 3 thereof, substitute
for the words "to be furnished" the words "on
forms provided ...."
2. Substitute, in the first and last paragraphs of
the Appendix attached to the Trial Examiner's
Decision, "Local 425" instead of "Local 424."
' We do not agree with the Respondent that, in the circumstances of this
case, the Board should in the exercise of its discretion decline to assert ju-
risdiction herein in favor of arbitration
JOHN G. GREGG, Trial Examiner : This proceeding, in
which the charges were filed on December 1, 1966, and
the complaint issued on January 12, 1967, involves al-
legations that the Respondent , Brotherhood of Locomo-
tive Firemen and Enginemen , violated Section 8(a)(1) and
8(a)(5) of the National Labor Relations Act, as amended,
29 U.S.C., Sec. 151 et seq. On March 9, 1967, a hearing
was held at Cleveland, Ohio , at which the Respondent,
the Charging Party, and the General Counsel were
represented by counsel . Briefs were filed by the Charging
Party, Respondent , and General Counsel and have been
carefully considered . Upon the entire record and my ob-
servation of the witnesses , I make the following:
FINDINGS OF FACT
I. THE EMPLOYER
Respondent is an unincorporated International labor
organization, with headquarters located at 15401 Detroit
Avenue, Cleveland, Ohio. Annually, in the course and
conduct of its business operations, Respondent receives
revenues from dues and assessments in excess of $50,000
directly from points located outside the State of Ohio.
The Respondent, Brotherhood of Locomotive Firemen
and Enginemen is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE UNION
The Office and Professional Employees International
Union, Local 425, AFL-CIO, is now, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint herein states that on or about October
31, 1966, and continuing thereafter, the Respondent uni-
laterally, and without notifying or consulting with the
Union, changed the existing terms and conditions of em-
ployment of the employees in the bargaining unit by assign-
ing the auditing work which was previously performed
by the employees in the unit to individuals who are not in-
cluded within the unit, and that by such acts the Respond-
ent interfered with, restrained, and coerced its em-
ployees in the exercise of rights guaranteed in Section 7
of the Act, thereby violating Section 8(a)(l) of the Act,
and that by such acts the Respondent refused to bargain
collectively with the representatives of its employees
thereby violating Section 8(a)(5) of the Act.
168 NLRB No. 93
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent denies any violation, claims that au-
diting work has never been part of the normal work of the
bargaining unit; that the assignment of the work does not
change the terms and conditions of employment of the
employees in the unit and does not result in any detriment
to them; and that in any event the Union was notified,
bargained, and waived its right to bargain over the matter
for the contract term. The Respondent asserts addi-
tionally that the Board should decline jurisdiction in view
of the failure of the Union to comply with an existing
mandatory grievance and arbitration provision in the col-
lective-bargaining agreement.
A. The Background
All office employees in the Respondent's Grand Lodge
office in Cleveland, Ohio, excluding chief clerks in the
president's and general secretary and treasurer's depart-
ment, the secretaries to the president, assistant president,
general secretary and treasurer, the editor and manager,
the chief accountant-cashier, the supply clerk, the public
relations director and investment clerk, temporary em-
ployees, guards and supervisors 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.
On August 12, 1966, a majority of the employees of
Respondent in the unit described above, by a secret-bal-
lot election, designated and selected the Union as their
representative for the purpose of collective bargaining
with Respondent, and on August 19, 1966, the Union
was certified as the exclusive collective-bargaining
representative of the employees in said unit and has been
and is now the exclusive representative of all employees
in said unit for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
Prior to the certification of the Union herein, the office
employees of the Respondent were representated by the
Grand Lodge Employees Association, hereinafter
referred to as the Association, which had executed a prior
collective-bargaining agreement with the Respondent.
After the certification of the Union herein, the parties
began to negotiate a collective-bargaining agreement. The
Respondent offered a proposal to exempt certain classifi-
cations from the coverage of the agreement, one of the
classifications which it sought to exempt being that of au-
ditors.
Subsequently and after the execution of the agreement
the Respondent selected two employees, Spangler and
Foster, granted them leave from the unit, and appointed
them as general organizer-auditors to perform audits full
time. The Union promptly objected.
On November 1, 1966, the Union notified the Respond-
ent of its grievance, to which Mr. Gilbert, the Respond-
ent's president, replied essentially that the assignment
of auditors rested with the International president and
that if there were any grievance it would have to be
against the International president. The Union next
notified the Respondent advising the Respondent of the
Union's wish to suspend the grievance until resolution of
charges, which were prepared to be filed with the Board.
Following this, the Respondent advised the Union that
the time for processing the alleged grievance had expired
under the grievance procedure. Subsequently, the
charges were filed by the Union on December 1, 1966. In
view of the foregoing it would appear that the Respondent
is estopped from seeking a refusal to assert jurisdiction by
the Board and its request is so treated . In any event the
remedies are not mutually exclusive . N.L.R.B. v. C & C
Plywood Corporation , 385 U.S. 421.
B. The Auditing Work
The Brotherhood of Locomotive Firemen and En-
ginemen is a labor organization, international in scope,
representing the engineers and firemen, hostlers and hos-
tler helpers, on a majority of the railroads in the United
States and Canada. The Grand Lodge is the headquarters
of the organization, with about 1,200 subordinate units
referred to as local lodges, general grievance committees,
and legislative and educational boards. The subordinate
units are audited by the Grand Lodge pursuant to authori-
ty granted to the International president through the con-
stitution of the Brotherhood. The audit involves an in-
vestigation of the moneys received and the expenditure
of funds to ascertain whether they have been legally col-
lected and expended. The auditor goes from the Grand
Lodge out to the field, conducts his audit without supervi-
sion, then makes a report of audit.
According to the Respondent, for many years prior to
October 31, 1966, nearly all of the auditing work per-
formed by the Respondent was done by several em-
ployees taken from the job classifications within the bar-
gaining unit. The Respondent asserts that until 1966 the
auditing work was conducted by various employees on a
sporadic basis but that commencing in 1966 the necessity
for increased audits, occasioned among other reasons by
the increased recordkeeping requirements of the Labor-
Management Reporting and Disclosure Act of 1959, and
mergers of units, necessitated the creation by the Re-
spondent of the classification of full-time auditor.
There was testimony of record by H. E. Gilbert, pre-
sident of the Respondent, that normally an employee
from one of the classifications in the unit was selected-to
perform field auditing work and that this employee would
be paid at no less than the rate of statistical clerk. If his
normal classification called for a rate higher than that of
statistical clerk he would be paid at the higher rate. All
audits, with one exception involving a supply clerk ex-
empted from the unit, were thus performed prior to 1966,
at which time the Respondent commenced using its new
classification of general organizer-auditor.
Gilbert testified that the direction to perform an audit
always came from the International president who would
tell the general secretary and treasurer to send out an au-
ditor, leaving always to the discretion of the general
secretary and treasurer the naming of the individual who
would actually perform the audit. The secretary-treasurer
would then solicit the cooperation of the employee prior
to assigning the audit. If the employee did not accept,
another employee would have to be solicited until a
willing one was found.
Gilbert testified that from his first association with the
Respondent as an official, which began around 1937, the
secretary-treasurer of the legislative and educational
board assigned the general organizer and auditor to per-
form audits and he did all the auditing work. He did not
know when this practice stopped:
Q. From 1942 - to the present time, you don't
know of any particular case where an international
president has assigned a general organizer to do au-
diting work?
A. I would not try to identify the time it stopped
but I do know for years and years and maybe George
BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN 679
Weldon who served as general organizer was the au-
ditor in the Brotherhood.
Q. He did all the auditing work?
A. All that it was possible for him to do, yes sir.
Q. When, to your knowledge, when did it start
that the employees in the Grand Lodge started doing
the auditing work? When did this begin?
A. I could not identify that date Mr. Finley.
Q. It began before you became international pres-
ident?
A. Oh yes, I think that is accurate. Yes sir.
In testimony in an earlier proceeding before the Board
in Brotherhood of Locomotive Firemen and Enginemen,
145 NLRB 1521, Mr.Bryant, secretary and treasurer of
the Respondent, testified, as follows, relative to the
statistical clerk:
In addition to this, and this is why I stated previ-
ously that the statistical clerk doesn't really cover the
title of his duties, he is also our auditor. He performs
auditing work in the field. When we feel it is necessa-
ry to have an audit performed of a subordinate unit
Mr. Murray is sent to that subordinate unit whether
it be a Local Lodge or General Committee, General
Grievance Committee. He audits their books, and
naturally during the period of an audit he has asked
many questions regarding the policy of our depart-
ment concerning completing financial forms, and
anything else that might come before him.
Testimony by Joseph Whitely, an employee of the
Respondent employed as utility clerk in the bargaining
unit, indicated that he performed field audits while an em-
ployee in the unit, was trained to perform such audits by
William Murray, a unit employee, and in turn he trained
Spangler to perform audits. Whitely testified that Atkin-
son, who was not a unit employee, had performed an
audit in 1964, that this had become the subject of discus-
sion during contract negotiations between the Respond-
ent and the Association in August 1965 when the
Respondent explained why it had used a nonunion em-
ployee to perform an audit using training as its reason.
Statistics of record in this proceeding establish clearly
that the audits were performed by the employees in clas-
sifications included in the unit and there is no serious
question as to this fact. According to uncontradicted
statistics of record there were 21 audits performed in
1966; 10 in 1965; 25 in 1964; 9 in 1963; and 25 in 1962.
It is not disputed that almost all of these were performed
by individuals in classifications included within the bar-
gaining unit. The record establishes additionally that the
audits had been parcelled out by management on a selec-
tive basis to six individuals in 1962, two individuals in
1963, four individuals in 1964, four in 1965, and five in
1966.
C. The Negotiations
The first negotiating session was September 8, 1966.
At this meeting the wage commission on behalf of the
Respondent, submitted a proposal to the union bargaining
committee. The proposal contained the following as arti-
cle I, (a), (1):
In the office of the general secretary and treasurer
eliminate the classifications "Assistant Tabulation
Clerk" and "Insurance Acturial Clerk" from the
schedule. We also propose an agreement from the
OPEIU providing for exempted positions in the
General Secretary and Treasurers Department as
follows:
"Programmer"
"Insurance Underwriting Supervisor"
"Auditors"
Wade McCool, an employee of the Respondent and
local steward of the president's department who was a
member of the union negotiating committee, testified that
this proposal was withdrawn on September 20, 1966,
prior to the reaching of agreement by the parties on that
date. McCool testified that the contract, as ultimately ex-
ecuted by the parties, contained a provision relating to the
payment of auditors, reading as follows: "An employee
performing the work customarily performed by the
statistical clerk will receive no less than the rate of the
statistical clerk when such service is performed at other
than the Grand Lodge Office." This was the same provi-
sion, word for word, contained in the prior agreement.
McCool testified that when the parties met on Sep-
tember 8, they exchanged proposals and that no further
proposals were submitted thereafter, the subsequent ses-
sions were concerned with redefining and alternatives.
The proposal for three exempt positions was presented
by the Respondent orally and in writing and was a major
item of discussion along with wages, job evaluation, and
educational requirements at the meetings of September
8 and September 20. These matters were resolved in the
six meetings commencing September 8 and ending Sep-
tember 20. The proposal to exempt the three classifica-
tions was mentioned every day the parites met, and
throughly discussed on 2 or 3 days. According to Mc-
Cool, the Respondent's position essentially was that to do
effective auditing work and to assure the confidential
aspect of the audit the Respondent had to have the right
of selection of the auditor. The Union's position was es-
sentially that the Respondent could appoint anyone from
within the unit and assign him auditing work, the rate
being established under the existing contract provision.
Mr. Bryant, secretary and treasurer of the Respondent,
testified that at the negotiations in which he participated
in 1965 resulting' in a contract effective September 1,
1965, the Respondent took the position that discussion
over a proposal to pay the statistical clerks' rate to em-
ployees in the unit performing outside audits was in-
tended to and was understood to cover not full-time audi-
tors but part-time auditing, performed by unit employees
so as to provide additional pay for such employees when
so engaged. Prior to this time, according to Bryant, these
part-time auditors would receive the rate of pay of their
classification even though it was lower than that of
statistical clerk.
According to Bryant, during 1966 negotiations when
the Respondent queried the Union as to whether the
proposal to exempt auditors from the unit had been sub-
mitted to the employees to see whether or not they
wanted it, R. V. Frencel, president of the Union, made
the remark that "we would rather have this work farmed
out to outside people than to have any more exempted
positions." At this time Mr. Whitely, who was a member
of the negotiating committee, was not present and Mr.
Frencel was acting in Whitely's stead. Gilbert, the
Respondent's president, testified that when Frencel made
this statement Gilbert took it to include all three proposed
exempt positions.
In his testimony concerning the negotiations, Gilbert
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pointed out that while some issues at the bargaining table
were being settled with actual withdrawals in some in-
stances, the matter of the proposal for exempt positions
was not withdrawn in the specific sense but was merely
dropped and not discussed further.
According to the testimony of McCool, at the negotiat-
ing session of September 20, 1966, when the proposal to
exempt certain positions came up for discussion, Mr.
Phipps, chairman of the wage commission, went over the
proposals which were still pending, withdrawing some
and granting others. Phipps stated, according to McCool,
that he agreed to withdraw the proposal for exempt posi-
tions. McCool testified that after a discussion McCool
directed a specific question to the committee whether this
meant that the committee had withdrawn their request for
exempt jobs, to which Mr. Gilbert answered, "Yes." In
his version, Gilbert did not directly deny the question and
answer as stated by McCool but recounted a version in-
dicating that no withdrawl was effected at the meeting of
September 20. In so testifying Gilbert relied on
shorthand notes which he made at the session in question,
conceding that the notes were not verbatim, and that they
did not cover all that transpired at the meeting. Based on
my observation of the witness McCool as he testified I
credit his statement concerning the question and answer
and I find that the Respondent did withdraw its proposal
for exemption of the position of auditors at the meeting of
September 20, 1966.
Gilbert testified that there had never been a provision
in the contract concerning auditors as such, that on July
26 the employees proposed, "Employees in the bargain-
ing unit assigned to audit the accounts of any lodge, com-
mittee or board will receive no less compensation for
such services than the rate applicable to classification of
statistical clerk." The contract language finally agreed on
was "an employee performing the work customarily per-
formed by the statistical clerk will receive no less than the
rate of the statistical clerk when such service is per-
formed at other than the Grand Lodge Office." This was
included in the 1965 and 1966 agreements. Gilbert stated
that it was always the Respondent's position that the
question of auditors rests solely with the International
president and it is not nor has ever been the subject of an
agreement between the Respondent Brotherhood and the
Union herein.
D. Concluding Findings
This record establishes the existence of a long-standing
practice of performing field audits through employees in
the bargaining unit who were assigned part time to such
duties and paid when performing audits as a minimum the
rate of the statistical clerk. This provided employees in
the unit not only the opportunity to earn more over a
period of time but additionally the opportunity of widen-
ing their scope of experience and opportunity for ad-
vancement through participating in work requiring inde-
pendence of judgement and operation and the opportunity
to broaden their knowledge of the Respondent's opera-
tions. I am convinced and I find that the performance of
this work has become an integral part of the terms and
conditions of their employment within the meaning of the
Act, and within the scope of mandatory bargaining.
Richfield Oil Company, v. N.L.R.B., 231 F.2d 717;
Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S.
203.
I find and conclude from the testimony of record that
the Respondent and the Union did in fact bargain over the
matter of the method by which auditing was to be per-
formed, that the Respondent urged its performance
through the establishment of a classification of auditor
which would be exempt from the bargaining unit, that the
Union vigorously opposed this, and that prior to the
reaching of agreement by the parties on a contract on
September 20, 1966, the Respondent withdrew its
proposal and subsequently executed a written collective-
bargaining agreement containing a provision for the pay-
ment of auditing services when performed by employees
within the unit at a rate of pay as a minimum comparable
to the pay of the statistical clerk. By so doing I find that
the parties have by unmistakable implication proceeded
on the premise that the past practice of performing audits
through the part-time use of unit employees was to be
continued for the term of the contract. Essentially then,
when the Respondent, subsequent to the execution of the
agreement and soon after its term began, took the uni-
lateral action complained of herein, it in effect sought to
and did modify during the life of the existing contract
terms and conditions of employment of the employees
within the unit. C & S Industries, Inc., 158 NLRB 454;
Anaconda Aluminum Company, 160 NLRB 35.
That the Respondent's action may have been founded
on valid economic reasons rather than on any union
animus is not material; for the Union has nonetheless
been deprived of its right to bargain over the matter. As
the Board has stated heretofore, "Experience has shown
... that candid discussion of mutual problems by labor
and management frequently results in their resolution
with attendant benefit to both sides. Business operations
may profitably continue and the jobs may be preserved.
Such prior discussion with a duly designated bargaining
representative is all that the Act contemplates. But it
commands no less." Town and Country Manufacturing
Company, Inc., 136 NLRB 1022.
It is well settled that an employer violates his duty to
bargain in good faith within the meaning of Section 8(a)(5)
of the Act when he unilaterally changes the terms and
conditions of employment of his employees without
discussion with their representatives or before an impasse
is reached. N.L.R.B. v. Katz, 369 U.S. 736.
Having found hereinabove that the assignment of the
performance of auditing work outside the unit is a matter
within the statutory phrase "terms and conditions of em-
ployment," and thereby a matter concerning which the
Respondent is required to bargain in good faith, and hav-
ing found that the Respondent, unilaterally and without
discussion or negotiation with the duly certified
collective-bargaining agent of the employees, changed the
terms and conditions of employment of its employees by
assigning auditing work formerly performed by em-
ployees in the unit to employees not included within the
unit, I find such unilateral action by the Respondent a
failure to bargain in good faith and thereby a violation of
Section 8(a)(5) of the Act, and that such action interferes
with, restrains, and coerces the employees of the Re-
spondent and is accordingly a violation of Section 8(a)(l)
of the Act.
The Respondent contends that Fibreboard, by its ex-
plicit terms, does not expand the scope of mandatory bar-
gaining, and is limited only to the situation as considered
in that case, and that since none of the adverse con-
sequences present in Fibreboard can be found in the case
at hand the requirement to bargain over the "subcontract-
ing" or "contracting out" is merely permissible. I do not
BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN 681
agree , for as discussed hereinabove, I do find adverse
consequences flowing from the unilateral action of the
Respondent herein, perhaps not as obvious as those
presented in Fibreboard, but nonetheless adverse. I am
simply not persuaded by the Respondent's argument that
the unilateral action herein has been shown to be benefi-
cial to the unit employees, nor do I find it on this record.
The Respondent also urges the application of
Kennecott Copper Corporation (Chino Mines Division),
148 NLRB 1653, to the case at hand, pointing out that
there it was held that the unilateral action resulted in no
significant deteriment to the employees in the appropriate
unit. (Emphasis supplied.) The Respondent would draw
an analogy here in that the Respondent has had a long-
standing practice of seeking volunteers from the unit to
perform the auditing work; the unit employees benefit
since those who chose to do the work received higher
wages while so employed; there have been promotions of
employees within the unit to fill the vacant positions; and
an additional employee has been included within the unit.
On the contrary I find on this record evidence which con-
vinces me that under the current method instituted by the
unilateral action of the Respondent, pursuant to which
two employees are given leave from the unit and assigned
to full-time auditing outside the unit, there is no assurance
that these jobs will continue to be filled in the future
through assignment of unit employees; once the em-
ployee is assigned to the full-time auditing he is in fact no
longer included in the unit; the work of the unit is clearly
diminished to this extent; and the opportunity to share in
the benefits provided by participation in work carrying
higher pay and wider opportunity is lost to the employees
in the unit. I find sufficient significant deteriment in-
volved in this action to take it outside the ambit of
Kennecott.
In any event, it has been stated before that the preser-
vation or diversion of work usually performed in a bar-
gaining unit represented by a duly constituted exclusive
bargaining agent is the subject matter of mandatory bar-
gaining under the Act. Service and Maintenance Em-
ployees' Union, Local No. 399, AFL-CIO (Superior
Souvenir Book Co.), 148 NLRB 1033. However, the
Respondent contends that the Union herein waived its
right to bargain over the issue since it was given the op-
portunity to do so and chose not to. While the Board has
recognized that the statutory right of a union to bargain
about changes in terms and conditions of employment
may be waived by the union, such waiver will not lightly
be inferred. The relinquishment to be effective must be
clear and unmistakeable. As stated in Proctor Manufac-
turing Co., 131 NLRB 1166, "The Board's rule applica-
ble to negotiations during the contract term with respect
to a subject which has been discussed in precontract
negotiations but which has not been specifically covered
in the resulting contract, is that the employer violates
Section 8(a)(5) if, during the contract term, he refuses to
bargain or takes unilateral action with respect to the par-
ticular subject, unless it can be said from an evaluation of
the prior negotiations that the matter was `fully
discussed,' or `consciously explored' and that the Union
`consciously yielded' or clearly and unmistakable waived
its interest in the matter."
In the case at hand, based on the testimony of record
and my crediting of the testimony of witnesses as in-
dicated hereinabove, I do not find that the Union con-
sciously yielded or clearly and unmistakably waived its
interest in the matter. On the contrary it vigorously op-
posed the proposal and did not yield. In this connection
I am very much persuaded by the argument of counsel for
the Charging Party herein that in view of the Union's firm
resistance to the proposal, Frencel's remark should be in-
terpeted as a reiteration of the Union's strong position
that there would be no more exempt positions even at the
cost of permitting subcontracting away of bargaining
work, a position that the Union was hardly likely to agree
to upon actual negotiation of that question.
Accordingly, I find no waiver by the Union of its right
to bargain over the matter of the assigning of audit work
previously performed by unit employees to individuals
not included in the unit , and I find that by its unilateral ac-
tion of assigning such work to employees not included in
the unit the Respondent changed the terms and condi-
tions of employment of the employees in the bargaining
unit in violation of the Act. N.L.R.B. v, Katz, 369 U.S.
736; N.L.R.B. v. Crompton-Highland Mills, Inc., 337
U.S. 217.
In so finding I am not unmindful of the recent expres-
sion of the Board in Sucesion Mario Mercado Hijos d/b(a
Central Rufina, 161 NLRB 696, wherein the Board
pointed out that the Respondent was not seeking to gain
an economic advantage at the expense of its employees or
of the union , but rather was faced not only with the ina-
bility to operate efficiently because of matters beyond its
control but with the inability to operate at all. In the case
at hand there is no evidence of the inability of the
Respondent to operate, no evidence that audits were per-
formed unsatisfactorily by unit employees, nor that such
audits failed to meet the standards and objectives of the
Respondent. While the Respondent may quite properly
conclude that full-time auditing is now required, the
method of its achievement, now closely interwoven with
the terms and conditions of employment of the unit em-
ployees, is clearly suitable for resolution within the col-
lective-bargaining framework.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent as hereinabove set
forth, occurring in connection with its operations as
described hereinabove, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it be
ordered to cease and desist from such conduct. I shall
also recommend that it be ordered to take certain affirma-
tive action designed to dissipate the effect upon the em-
ployees of the illegal conduct found and to effectuate the
policies of the Act.
The critical act of the Respondent, upon which the
findings of violations herein are founded, was its uni-
lateral act of establishing a full-time auditing classification
of general organizer-auditor, and giving it an exempt
status so that it was not included as a classification within
the bargaining unit, and then assigning employees from
the unit, who were placed on leave of absence status, to
perform the auditing work in the exempt classification. I
shall accordingly recommend that the Respondent restore
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the status quo ante, by rescinding its act of establishing
the new classification as an exempt classification not in-
cluded in the unit, and restoring the employees who were
assigned to newly established auditing positions to their
former status as employees within the unit in their former
classifications; and that the Respondent cease and desist
from making unilateral changes in the terms and condi-
tions of employment of its employees particularly with
respect to the matter of the performance of auditing work,
without notice to the Union and without providing it with
the opportunity of bargaining with respect thereto.
While the Respondent urges that such an order would
be undesirable to the Union herein inasmuch as it would
result in demoting Spangler and Foster, I would rely on
the good judgement of the parties herein to achieve a
prompt and reasonable accommodation of objectives
through the collective-bargaining process.
Upon the foregoing findings of fact and upon the entire
record in this case I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All office employees in the Respondent's Grand
Lodge office in Cleveland, Ohio, excluding chief clerks in
the president's and general secretary and treasurer's de-
partments, the secretaries to the president, assistant pre-
sident, general secretary and treasurer, the editor and
manager, the chief accountant-cashier, the supply clerk,
the public relations director and investment clerk, tempo-
rary employees, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purpose of col-
lective bargaining within the meaning of Section 9(b) of
the Act.
4. The Union at all times material has been and is the
exclusive representative of all the employees in the
aforesaid bargaining unit within the meaning of Section
9(a) of the Act.
5. By unilaterally establishing the classification of
general organizer-auditor as a classification exempt from
the classifications included within the unit and by select-
ing two employees from classifications within the unit,
placing them on leave of absence from the unit and assig-
ning them to the exempt classification to perform auditing
work formerly performed on a part-time voluntary basis
by employees within the unit, the Respondent has uni-
laterally changed the terms and conditions of employment
of the employees within the unit, thereby refusing to bar-
gain collectively with the Union as the representative of
the employees within the unit and thereby has engaged in
and is engaging in an unfair labor practice within the
meaning of Section 8(a)(5) of the Act.
6. By its acts as set forth in the preceding paragraph
the Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed
to them by Section 7 of the Act and has engaged in and is
engaging in an unfair labor practice within the meaning of
Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the basis of the findings of fact hereinabove set
forth and the foregoing conclusions of law, and upon the
entire record in the case, I hereby recommend the is-
suance of the following:
ORDER
The Respondent, Brotherhood of Locomotive Firemen
and Enginemen, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from making unilateral changes in
the terms and conditions of employment of the employees
in the unit described hereinabove, without prior consula-
tion with and bargaining with the Union herein, with par-
ticular reference to the performance of auditing work.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Rescind the establishment of the classification of
general organizer-auditor as a classification exempt from
those included within the above-described unit.
(b) Restore the two employees, Charles Spangler and
Charles Foster, to their former status as employees
within the unit in their former classifications included
within the unit without prejudice to their seniority or any
other rights which they may have been entitled to under
the terms of the current collective-bargaining agreement.
(c) If requested to do so by the Union herein, bargain
collectively without delay with the Union over the sub-
ject of the future performance of auditing work formerly
performed on a part-time voluntary basis by the em-
ployees within the unit.
(d) Post at its Grand Lodge office in Cleveland, Ohio,
copies of the attached notice marked "Appendix."'
Copies of said notice, to be furnished by the Regional
Director for Region 8, after being duly signed by a
representative, shall be posted by the Respondent im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.2
' In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United State's Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
2 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT refuse to bargain collectively with
the Office and Professional Employees International
BROTHERHOOD OF LOCOMOTIVE FIREMEN
Union, Local 424, AFL-CIO, as the exclusive
representative of all the employees in the bargaining
unit by unilaterally changing the terms and condi-
tions of employment of the employees in the bargain-
ing unit described herein with respect to the per-
formance of auditing work formerly performed on a
part-time voluntary basis by employees within the
unit in classifications within the unit.
WE WILL rescind our establishment of the classifi-
cation of general organizer-auditor as an exempt
classification not included in the unit.
WE WILL restore employees Charles Spangler and
Charles Foster to their former status within the unit
without prejudice to their seniority or any other
rights.
WE WILL NOT interfere with the efforts of the Of-
fice and Professional Employees International
Union, Local 424, AFL-CIO, to negotiate for and
AND ENGINEMEN 683
represent the employees in the appropriate bargain-
ing unit as exclusive bargaining agent.
BROTHERHOOD OF L000MO-
TIVE FIREMEN AND EN-
GINEMEN
(Employer)
Dated By
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio 44115,
Telephone 621-4465.