Communications Wkrs., Loc. 1122

National Labor Relations Board - Board Decisions

Sep 23, 1976

226 N.L.R.B. 97 (N.L.R.B. 1976)

COMMUNICATIONS WKRS., LOC. 1122 97
Communications Workers of America , Local 1122 and
New York Telephone Company. Case 3-CB-2565
September 23, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On May 18, 1976, Administrative Law Judge El-
bert D. Gadsden issued the attached Decision in this
proceeding. Thereafter, General Counsel and the
Charging Party filed exceptions and supporting
briefs, and the Respondent filed a brief in answer to
the exceptions.
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 at-
tached Decision in light of the exceptions and briefs'
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The complaint alleges, inter alia, that Respondent
violated Section 8(b)(3) of the Act by institution of
an unlawful ban against its members' acceptance of
temporary supervisory positions and by implementa-
tion of the ban by filing intraunion charges against a
union member who accepted the temporary position;
that the filing of intraunion charges against the mem-
ber who accepted the temporary supervisory position
is an attempt to enforce conduct violative of Section
8(b)(3) ' aid is therefore itself violative of Section
8(b)(1)(A); and that - the ban violates Section
8(b)(1)(B) in that it restrains and coerces the Compa-
ny in the selection of supervisors who accept and
adjust grievances. The Administrative Law Judge
found Respondent had not engaged in any unlawful
activity and dismissed the complaint in its entirety.
We disagree. Our review of the record reveals that
the Administrative Law Judge's findings of fact and
conclusions of law are not supported by the record.
The Communications Workers of America
(CWA), AFL-CIO, hereafter the National Union,
has had a number of ' collective-bargaining agree-
ments with the New York Telephone Company,
hereafter the Company, since 1961. These collective-
bargaining agreements,,, including the current one
which runs from July 118, 1974-July 6, 1977, have
recognized the National Union as the exclusive col-
lective-bargaining representative of approximately
30,000 of the Company's employees. These employ-
ees are in a single statewide unit and all, of the collec-
tive-bargaining agreements have been negotiated on
a statewide basis by the National Union. Throughout
the State, there are 22 locals of the National Union
which have bargaining unit employees as members.
The constituent locals have no authority to negotiate
collective-bargaining agreements with the Company,
and any modification of the existing contract must
be in writing and signed by the parties to the contract
themselves? The Respondent, Communications
Workers of America, Local 1122, is 1 of these 22
locals, and its members are employed in bargaining
unit positions in the metropolitan Buffalo, New
York, area.
Prior to the onset of the collective-bargaining rela-
tionship between the Company and the National
Union, the Company had an established practice of
assigning unit employees to act as temporary supervi-
sors. In the subsequent collective-bargaining agree-
ments between the parties, this practice was estab-
lished as a formal contract right. In the current
contract, article 8, Transfers, provides:
The Company may transfer or assign , tempo-
rarily or permanently, any employee from an oc-
cupational classification to another, or from one
assignment to another within the same occupa-
tional classification, or from an occupational
classification to a position outside of the bargain-
ing unit either as a step in force adjustment or
for other purposes. [Emphasis supplied.]
The overtime provisions of the contract also, by in-
ference, recognize the Company's right to make such
assignments. It provides:
An employee temporarily promoted to a man-
agement job shall be charged with the average
overtime of his unit during the entire period of
his absence from his unit on the acting assign-
ment. [Emphasis supplied.]
In a similar manner, the dues-deduction clause im-
plies the Company's right to make temporary super-
visory assignments. It provides:
An employee's written authorization for such
deduction shall be cancelled automatically by
the Company when the employee is transferred,
except on an acting basis, to a position wherein
he is no longer covered by the terms of this
Agreement. The Company will notify the Union
of all such permanent transfers. [Emphasis sup-
plied.]
t The request for oral argument by the Charging Party is hereby denied as 2 The collective-bargaining agreement contains a waiver clause that re-
the record and briefs adequately present the issues and positions of the - quires any modification to the collective -bargaining agreement to be explic-
parties. itly set forth in writing and to be signed by both parties to the contract
226 NLRB No. 7
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the negotiations for the 1968 contract, the
National Union submitted a contractual proposal
which sought to limit the Company's right to appoint
temporary supervisors. The Company, however, re-
jected this proposal and the National Union has not
sought to reintroduce a similar proposal during sub-
sequent negotiations for the 1971 and 1974 contracts.
Based on the above, we find the contract clearly
grants the Company the right to assign temporary
supervisory positions to unit employees.
Notwithstanding -the National Union's failure -to
achieve any contract limitations-on the Company's
right to make assignments of temporary supervisory
positions, Local 1122, the Respondent, unilaterally
instituted a ban on all such assignments in June 1969.
From June 1969 to August 1972, the Company did
not contest Local 1122's ban in the Buffalo area, and
no temporary supervisory assignments were made in
that area. However, elsewhere within the statewide
unit, the Company continued to make such assign-
ments.' Beginning in August 1972, the Company
again began' to make temporary supervisory assign-
ments within the Buffalo area. Although the ban re-
mained in effect, Local 1122 made no effort to op-
pose the Company's renewed application of its
contract rights. However, in July 1975, Local 1122's
chief steward signed an intraunion charge against a
union member, Richard Macvie, who had accepted a
temporary supervisory assignment ,in June 1975.4
Section 8(b)(3)
The Administrative Law Judge found that the ban
imposed by the Respondent did not violate Section
8(b)(3) because the Company's abstention from uti-
lizing temporary supervisors from 1969-72 "consti-
tuted an implied agreement by the Employer to re-
frain from doing so, and/or its acquiescence in the
Respondent's demand that the practice be terminat-
ed." We disagree. We find no merit to the finding
that the Company's temporary acquiescence in the
ban constituted an "implied agreement" by the Com-
pany to refrain from such assignments. As previously
mentioned, the contract contains a waiver clause
which requires any modification of the collective-
bargaining, agreement to be explicitly set forth in
writing and to be signed by both'parties to the con-
tract. There is no evidence of any such waiver signed
by the Company and the National Union. Accord-
3 The Company made no assignments anywhere in the State between July
14, 1971, and February 18, 1972, during which period the entire unit was on
strike
4 Since the collective-bargaining agreement designates the chief steward
to be a representative of the Local, we find that the intraunion charges were
filed by an agent of Respondent on behalf of Respondent.
'ingly, we find the Company at no point agreed to the
bans
We also find no merit in the Administrative Law
Judge's finding that the Company's temporary ab-
stention of utilizing action supervisors constituted an
acquiescence in the Respondent's demand that the
Company cease making such assignments. As point-
ed out above, the collective-bargaining agreement
covers a statewide unit and was negotiated by the
National Union. The Respondent is merely a consti-
tuent local of the authorized collective-bargaining
agent, and absent a-specific provision, it has no right
to make any demands' modifying the collective-ba'r-
gaining agreement.' The Company's temporary ab-
stention from appointing acting supervisors between
1969 and 1972 was therefore voluntary and did not
constitute acquiescence in Respondent's demand
that the contract be modified. Accordingly, we find
that Respondent's attempts to ban the Company's
appointment of temporary supervisors constitutes an
unlawful attempt to alter the collective-bargaining
agreement in violation of Section 8(d) and 8(b)(3) of
the Act.'
Section 8(b)(1)(A)
In similar fashion, the Administrative Law Judge
found that since Respondent's ban did not violate
Section 8(b)(3), the intraunion charge against a mem-
ber who violated that ban was,a permissible effort to
protect legitimate union interest and did not violate
Section 8(b)(1)(A).- However, as a corollary to our
finding that Respondent's ban violated Section 8(d)
and 8(b)(3), we find the intraunion charge against
Richard Macvie,,the union member who ignored the
ban, also violated Section 8(b)(1)(A). In Scofield v.
N.L.R.B., 394 U.S. 423, 432 (1969), the Supreme
Court pointed out that the enforcement of a union
rule may be handled as an, internal union matter and
5 We find no merit in Respondent's claim that the Company had estab-
lished a practice of meeting with the Respondent and making oral modifica-
tions to the collective-bargaining agreement between the National Union
and the Company . The examples cited by Respondent concerning local
practices involving switchmen 's tours ,; upgrading of fobs, vacation schedul-
ing, and lunch hour durations are all rooted in contract provisions or were
voluntary privileges granted by the Company to comply with practices es-
tablished prior to the collective-bargaining relationship with the National
Union . We find no evidence of any arrangement or contract provisions
providing for local negotiations concerning the assignment of temporary
supervisory positions
In fact the National Union opposed attempts by its constituent locals to
,unilaterally modify the contract by banning the assignment of temporary
supervisory positions . In a 1973 letter (the Administrative Law Judge incor-
rectly reported 1975 as the date of this letter) the National Union notified
locals that an attempt to ban the Company's assignment of temporary su-
pervisory positions was contrary to the National Union's constitution and
therefore was impermissible
'Communications Workers of America, AFL-CIO Local 1170 (Rochester
Telephone Corporation), 194 NLRB 872 (1972), enfd 474 F.2d 778 (C A 2,
1972)
,COMMUNICATIONS WKRS., LOC. 1122 99
not necessarily violate Section 8(b)(1)(A) of the Act
"unless some, impairment of= a statutory labor policy
can be shown." In the present case, the intraunion
charge does -not stem from the violation of a lawful
union rule dealing with internal union affairs, but
rather, as found elsewhere in this decision, the in-
traunion charge is an attempt to enforce conduct vio-
lative of the Act. Such conduct, of course, constitutes
the type of "impairment of a statutory labor policy"
referred to by the Supreme.Court. Accordingly, we
find that Respondent's attempt to unilaterally alter
-an existing collective-bargaining agreement in viola-
tion of Section 8(d) and 8(b)(3)- also constitutes re-
straint and coercion in violation of Section 8(b)(1)(A)
when it attempts to enforce that unlawful action
through intraunion charges.
Section 8(b)(1)(B)
The Administrative Law Judge also dismissed the
8(b)(1)(B) allegation, finding, inter alia, that perma-
nent supervisors-and temporary supervisors did not
possess the authority to adjust grievances. Our exam-
ination of the record reveals no support for such a
finding. On the contrary, the record contains an
abundance -of evidence establishing that supervisors
(including temporary supervisors) possess the author-
ity, and in fact accept grievances, process grievances,
and participate in the adjustment of grievances. Fur-
ther, specific 'evidence was also introduced which
clearly establishes that temporary supervisors have
the authority to hear and resolve employee problems
and complaints which have not ripened to formal
grievances, and they have in fact adjusted such mat-
ters. Accordingly, it is clear, and we so find, that
Respondent's conduct in instituting the ban on ac-
ceptance of temporary supervisory positions and its
subsequent enforcement of that ban constitutes re-
straint and coercion of the Company in the selection
of supervisors in violation of Section 8(b)(1)(B) of the
Act.
THE REMEDY
Having found that Respondent has engaged in cer-
tain unfair labor practices in violation of Section
8(b)(3), 8(b)(1)(A), and 8(b)(1)(B), we direct Respon-
dent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the pol-
icies of the Act.
Having also found that Respondent filed intraun-
ion charges against unit employees who violated the
ban, we direct that Respondent expunge from its rec-
ords all actions taken against unit employees who
violated the ban and cancel, withdraw, rescind, and
reimburse any penalty which has been assessed
against any such employee-- We further direct that
Respondent make whole any unit employee who had
accepted and then was forced to relinquish=a tempo-
rary supervisory position because of the ban. The
reimbursement of any assessed penalties and the
backpay due any unit employee who was forced to
relinquish a temporary supervisory position because
of the ban will be determined in accordance with the
formula set forth in F. W. Woolworth Company, '90
NLRB 289 (1950), and Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Communications Workers of America, Local 1122,
Buffalo, New York, its officers, agents, and represen-
tatives, shall:
1. Cease and desist from:
(a) Instituting, maintaining, or enforcing any ban
or embargo against the acceptance by-unit employee
union members of assignments to positions as tem-
porary supervisors, without affording the Company a
timely opportunity to bargain within the meaning of
Section 8(d) of the Act.
(b) Restraining or coercing employees in the exer-
cise of their rights guaranteed in Section 7 of the Act,
by threatening to impose penalties upon employees,
or bringing charges against employees or penalizing
employees for accepting assignments to positions as
temporary supervisors in violation of Respondent's
ban against such action.
(c) Restraining or coercing New York Telephone
Company in the selection of representatives for the
purpose of collective bargaining or adjustments of
grievances by engaging in the conduct set forth in (a)
and (b) above.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Cancel, withdraw, and rescind-the ban or em-
bargo and-immediately notify the Company, in writ-
ing, that such action has been taken.
(b) Cancel, withdraw, and expunge from Re-
spondent's records all action taken against Richard
Macvie and any other unit employee because of the
ban and immediately notify such employees by per-
sonal letter that such action has been taken.
(c) Cancel, withdraw, and rescind any penalty
which has been assessed against Richard Macvie and
any other unit employee because of the ban or em-
bargo and reimburse any such employee for any pen-
alty which has been assessed for such reason.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Make whole Richard Macvie and any other
unit employee who had accepted appointment as
temporary supervisor and who was forced to relin-
quish such position by reason of the ban, or the
threat of imposition of penalty, should they remain
as temporary supervisors during the existence of the
ban. Such employees shall be. made whole in accor-
dance with the manner set-forth in the section of this
decision entitled "The Remedy."
(e) Post at its business office and-meeting hall cop-
ies of the attached notice marked "Appendix." 8 Cop-
ies of said notice, on forms provided by the Regional
Director for Region 3, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material,
(f) Furnish the Regional Director for Region 3
with signed copies of said notice for posting by New
York Telephone Company, if willing, in places where
notices to_ employees are customarily posted.
(g) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
8 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL cancel our ban against employee
union members in the appropriate units set forth
below accepting assignments to temporary su-
pervisory positions for the Company and WE
WILL NOT enforce that ban against such unit em-
ployees.
WE WILL NOT institute, maintain, or enforce
any ban or embargo against the acceptance by
unit employees of assignments to positions as
temporary supervisors, without first affording
the Company 'a timely opportunity to bargain
within the meaning of Section 8(d) of the Act.
The appropriate bargaining unit consists of the
following:
Included: All plant, network operations, cus-
tomer services, technical services, engineering,
and facilities employees of New- York Tele-
phone Company whose occupational classifi-
cations are listed in the craft, building and
supplies, clerical and miscellaneous appearing
in article 31; all employees in the Empire City
Subway Company (Limited); it being under-
stood that the certified unit shall include, only
those employees employed in occupational
classifications which were included in the cer-
tified unit under the previous collective-bar-
gaining agreement.
Excluded: All guards, watchmen, professional
employees, supervisors as defined in the Na-
tional Labor Relations Act, as amended, and
employees regularly performing confidential
labor relations duties.
WE WILL NOT restrain or coerce the Company
in the selection of representatives for the pur-
pose of collective bargaining or the adjustment
of grievances.
WE WILL NOT in any like or related manner
restrain or coerce -employees in the exercise of
rights guaranteed by Section 7 of the Act.
WE HAVE advised all employees who have
been charged by the Union for accepting assign-
ments to temporary supervisory positions that
these charges have been canceled.
WE WILL reimburse those employees for any
penalties which they have been required to pay
because of such charges.
WE WILL make whole those unit employees
who were forced to relinquish temporary super-
visory positions they were holding at the time we
instituted the ban for any loss of earnings they
may have suffered as a result of our conduct.
COMMUNICATIONS WORKERS OF AMERICA,
LOCAL 1122
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon a
charge filed on July 24, 1975, by New,York Telephone
Company, the Charging Party, herein called the Employer,
a complaint was issued by the General Counsel of the Na-
tional Labor Relations Board on September 30, 1975,
against Communications Workers of America, Local 1122,
herein called the Respondent. The complaint alleged that
the Respondent unilaterally imposed a prohibition against
Employer's longstanding practice of utilizing union mem-
bers to act as temporary supervisors (foremen) which it
COMMUNICATIONS WKRS., LOC. 1122 101
sought to enforce in violation of Section 8(b)(1)(A),
8(b)(1)(B), and 8(b)(3) of the Act. The Respondent filed an
answer admitting the imposition and its efforts to enforce a
prohibition against its members accepting appointments to
acting supervisory positions, but denied that such conduct
on its part constituted a violation of the Act.
The hearing in the above matter was held before me in
Buffalo, New York, on January 19 and 20, 1976. Briefs
have been received from counsel for the General Counsel,
counsel for the Charging Party, and counsel for the Re-
spondent, respectively, which have been carefully consid-
ered.
Upon the entire record in this case and from my obser-
vation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. JURISDICTION
Employer is now, and has been at all times material
herein, a corporation duly organized under, and existing by
virtue of, the laws of the State of New York where it main-
tains numerous offices and facilities in cities, villages, and
towns throughout the State of New York, and more partic-
ularly in Buffalo and the western New York State area. In
all of these locations the Employer is engaged in the busi-
ness of providing and installing local and long-distance
telephone communication and related services in the State
of New York.
During the past 12 months, a representative period, Em-
ployer derived gross revenues in excess of $1 million from
its communication services between points within the State
of New York and points in other States. During the past
year, Employer, in the course and conduct of its business
operations, purchased, transferred, and delivered to its of-
fices and facilities in New York State, goods, materials and
supplies valued in excess $50,000 which were transported
to said offices and facilities directly from States of the
United States other than the State of New York.
The complaint alleges, the Employer admits, and I find
that Employer is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Respondent Communications Workers of America, AFL-
CIO, Local 1122, is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act; and that Communications Workers of
America, AFL-CIO, herein called the National Union
(CWA), is, 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
A. Background
New York Telephone Company, the Employer herein,
maintains numerous offices and facilities throughout the
State of New York for the purpose of providing and install-
ing local and long-distance telephonic communications
and related services in the State of New York. Since 1961
the Respondent, Communications Workers of America,
AFL-CIO (CWA), herein called the National Union, of
which Local 1122 is a constituent has been the collective-
bargaining representative for an appropriate unit of
Employer's employees throughout the State of New York,
and the parties (Employer and Respondent) have negotiat-
ed and executed several statewide collective-bargaining
contracts including the current one which was executed
July 18, 1974; and is to expire July 6, 1977. During the
course of their bargaining relationship, Employer has uti-
lized on frequent occasions union-member employees as
acting or temporary foremen in just about all first-line su-
pervisory positions in its business operations throughout
the State. However, on or about January 25, 1975, Local
1122 of the CWA voted to impose a ban (prohibition) upon
its members accepting acting supervisory positions for the
Employer. Subsequently, when one of its member employ-
ees accepted such an appointment by Employer, Respon-
dent initiated internal union disciplinary charges against
the employee for accepting the temporary appointment.
Employer now alleges that the imposition of the ban and
Respondent's subsequent efforts to enforce it against mem-
ber employees constituted a violation of the Act.
The Employer contends that since its present, and sever-
al of its prior, collective-bargaining contracts provided for
its utilization of union employees as acting supervisors, and
since such utilization by it was a widespread practice
throughout the State, the Respondent did not have authori-
ty to modify the contract negotiated and executed with the
National Union and, therefore, Respondent's ban, and at-
tempted enforcement of the same, constituted a violation
of its contract and an unfair labor practice under the Act.]
B. Employer's Use of Union Employees As Acting Foremen
By stipulation of the parties, Employer and Respondent
agreed that the appropriate bargaining unit consists of the
following:
Included: All plant, network operations, customer
Services, technical services, engineering and facilities
employees of New York Telephone Company whose
occupational classifications are listed in the craft,
building and supplies, clerical and miscellaneous ap-
pearing in Article 31; all employees in the Empire City
Subway Company (Limited;) it being understood that
the certified unit shall include only those employees
employed in occupational classifications which were
included in the certified unit under the previous col-
lective-bargaining agreement.
Excluded: All guards, watchmen, professional em-
ployees, supervisors as defined in the National Labor
Relations Act, as amended, and employees regularly
performing confidential labor relations duties.
1 The facts set forth above are undisputed and are not in conflict in the
record.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above -described collective -bargaining unit is a state-
wide unit consisting of approximately 30,000 employees,
for whom all collective-bargaining agreements are negoti-
ated by the National Union (CWA) on a statewide basis.
Several of the collective -bargaining agreements executed
between the parties (G.C. Exhs. 2, 3, 4, 5, and 6) provide as
described in article 30, section 30.01:
Waiver or Modification
This agreement constitutes the entire agreement be-
tween the parties, and no waiver or modification shall
be effective unless signed by the parties hereto, and no
such writing , applicable to any particular instance or
instances shall be construed as general waiver or mod-
ification, but shall be strictly limited to the extent and
occasions specified herein.
According to the undisputed and credited testimony of
Mr. Nelson C . Becker, an employee of the Employer of 34
years' duration and currently vice president of, Local 1122,
Mr. Morton Bahr is vice president of the CWA, District
No. 1, which consists of the entire State of New York; and
that all of the several Locals over the State including their
officers are subordinate to the jurisdiction of the CWA and
Vice President Bahr.
General Counsel's Exhibit 2 under the topic "Overtime
Charging," item 8, provides:
An employee temporarily promoted to a management
job shall be charged with the average overtime of his
unit during the entire period of his absence from his
unit on the acting assignment.
Article 5, payroll deductions of union dues, paragraph
5.04 (G.C. Exh. 2) provides:
An employee's written authorization for such deduc-
tions shall be cancelled automatically by the Compa-
ny when the employee is transferred, except on an act-
ing basis, to a position wherein he is no longer covered
by the terms of this agreement.
The above-described provisions were included in most of
the collective-bargaining agreements executed between the
parties in essentially the same language since 1964.
Mr. James Hennessy, general manager of the western
area of New York Telephone Company since January 15,
1976, was previously assistant vice president of human re-
sources in the state region for Employer since September
1974.-He testified as follows:
A. The New York Telephone Company is divided
into two main parts , New York City Region , consist-
mg of three burroughs [sic], New York and all the rest
of the State, which we call the State Region, and with-
in the State Region , that's- also divided into two parts,
the Upstate Territory and the suburban territory.
Q. And what is referred by the Upstate territory?
A. It includes the western area, Buffalo area, and it
includes Niagara Falls, Olean; the central area, Syra-
cuse, Binghamton , Watertown , and the northeast area,
which includes Albany, Utica and part-way down the
Hudson River , and up to Canadian Border, again.
Mr. Hennessy stated that the suburban territory included
the geographic . area of Long Island , outside the city of
New York ,, Westchester and Rockford Counties , and an-
other- in the outer mid-Hudson , area, south of Albany
County.
Mr. Hennessy's employment with the Employer dates
back to December 1958 when he started as a plant depart-
ment trainee and thereafter served in numerous capacities
on numerous levels in-and around numerous offices and
facilities of the Employer. In the several capacities in which
he served , including personnel supervisor , -Mr. Hennessy
dealt with second step grievance proceedings as manager
of the mid-Hudson area. He continued to testify as fol-
lows; -
Q. Mr. Hennessy, referring to the period from Oc-
tober 1st, 1968 to November 1st,_1971 while you were
Division Plant Superintendent in the western area, will
you please describe your duties and responsibilities?
A. Yes, I was responsible for all of the installation
and repair service and assignment facilities in the
Western Area , which I mentioned before , including
everything from Niagara Falls io Olean . In that capac-
ity I was responsible for the efficient effect of produc-
tion in those services for employee relations and labor
relations activities.
Q. During that period , Mr. Hennessy , with respect
to labor relation duties, do you deal with any locals of
the Communications Workers of 'America?
A. Yes, the three locals in the western area, 1117
Niagara Falls, 1115, Hamburg-Olean Area and 1122
in Metropolitan Buffalo.
Q. Mr. Hennessy, during that period while you
were Division Plant Superintendent in the western
area, were union employees used ' to fill Acting Super-
visory position?'
A. Yes, they were.
Q. And under what circumstances were union em-
ployees used to fill Acting Supervisory positions?
A. Well, under the circumstances that there was a
need , because of vacation coverage , because of a fore-
man was out ill on' disability , of course it may be ex-
panded on a temporary basis. They may be cut over
new equipment and need supervision for a short peri-
od of time , and those were the primary reasons there
would be a need for an Acting Foreman. And of
course always it provides us an opportunity to see
craft people in a different role, in a managerial role for
a short period of time.
Mr. Hennessy said union employees were appointed to
or rather assigned to and served in various titles of line
foremen positions such as service foremen ,-'central office
foremen, and bureau foremen. The union employee is se-
lected as a result of a recommendation by his foreman to
the second-line supervisor who would either approve or
disapprove of the recommendation . If the recommendation
were approved the offer would then be made to the indi-
vidual union employee to act as temporary foreman. The
immediate foreman of the employee would advise him that
he had been selected to serve as acting foreman . The duties
of first-line supervisors involve planning the workload and
assigning the work to individual craftsmen to perform,
COMMUNICATIONS WKRS ., LOC. 1122
checking to make sure that the work is done productively
and up to standards and quality, insuring that employees
complied with the attendance and tardiness standards,
coaching and training individual employees, and-determin-
ing needs for overtime work and assigning it to individual
employees as required; and receiving and hearing grievances
as well as settling any informal problems that arise.
Also, while serving as division plant' superintendent of
the western area, Mr. Hennessy said first-line supervisors
had authority to discipline employees or they could recom-
mend disciplinary action which had to be approved by a
higher level supervisor. The acting supervisors had essen-
tially the same authority the permanent supervisors had.
Acting supervisors were given an increase in salary of 6
percent of the permanent supervisors top salary for that
area. The Employer utilized the union employees as acting
supervisors in the same manner in other areas and loca-
tions where he (Mr. Hennessy) has worked since he was
employed by the Employer in 1958, except the pay formula
was reduced from 10 percent to the current 6 percent of
top salary basis during the acting period.
Mr. Hennessy then identified and explained General
Counsel's Exhibit 16, a compilation of data from official
company (employer) business records describing times, the
number of individuals, and the kinds of supervisory posi-
tions for which various local union employees were utilized
by Employer as acting supervisors during the years 1962
through 1975 in the upstate area. The practice of utilizing
such union employees was- widespread and consistent
throughout the State. Upon his orders, Mr. Hennessy said
similar data was compiled for the suburban territory part
of the state region and the New York City region from the
official business records of the Employer on the 200 to 300
district offices of the Employer throughout the State of
New York. The data involved union employees of Locals
1102, 1103, 1107, and 1108 for the years 1961 through
1975.2
2 These data, which comprised G.C Exhs 17 and 18, were conditionally
admitted into evidence over the objection of counsel for the Respondent
because such data corresponded with, and complemented, data in G.C. Exh.
16, which was previously examined by counsel for the Respondent and to
which he stipulated admission . G.C Exhs. 17 and 18 were also admitted
because to require Employer to pull and produce all of the timecards and
payroll records from all of its many district offices throughout the hereto-
fore described regions would be imposing an undue and burdensome obli-
gation on Employer, especially so since such data is only supplementary to
the data in G.C. Exh 16, which was deemed accurate and established that
the utilization of union employees by Employer as acting supervisors was a
general, longstanding , widespread and consistent company (employer) prac-
tice throughout upstate New York; because the data therein was compiled
in like manner and is essentially the same in composit.on to the data in G.C
Exh. 16, because Respondent has not advanced or offered any reason which
it believed reasonably questions the accuracy or authenticity of the data in
question ; that counsel for Employer had advised counsel for the Respon-
dent in advance of this proceeding that such data had been requested and
was being prepared , and that the preparation of the subject data was not
completed until a few days before the date of this proceeding (January 19
and 20, 1976); that these data were prepared between early December and
late December 1975 and presented to counsel for Employer, Mr Yager, in
late December or early January 1976 Such data is a strong inference of the
truth when it is considered along with Mr. Hennessy's testimony on the
same and the data compiled in G C. Exh. 16, that I had Employer and its
counsel to promise on the record that its records supporting the data in G C.
Exhs. 17 and 18 would remain available for examination by counsel for the
Respondent after the close of this proceeding to allow him an opportunity
103
C. The Supervisory Nature of The Function of An Acting
Foreman
In an effort to support the testimony of Mr. Hennessy to
the effect that acting supervisors have the authority to par-
ticipate in accepting and adjusting grievances, Employer
(through Mr. Hennessy) ordered the compilation of data
extracted from the grievance minutes allegedly taken by
unit employees acting supervisors which constitutes Gen-
eral Counsel's Exhibit 19. To further support General
Counsel's Exhibit 19 that acting supervisors participate in
the first-step grievance procedure, counsel for the General
Counsel submitted General Counsel's Exhibits 23, 24, 25,
26, 27, and 28 from the western area of New York to com-
plement the summary data in General Counsel's Exhibit
19. In view of counsel for the Respondent's consistent ob-
jection to the admission of General Counsel's Exhibit 19
and thereafter, to General Counsel's Exhibits 23-28, the
General Counsel submitted copies of the actual grievances
(G.C. Exhs. 29-47), in further support of General
Counsel's Exhibits 19 and 23-28. The Administrative Law
Judge admitted all of General Counsel's exhibits (19 and
23-47) in the order in which they were introduced over the
strenuous objection of counsel for the Respondent, in or-
der to afford himself an opportunity to thoroughly exam-
ine and evaluate each document in light of the purpose for
which it was submitted.3
The language in the position or job descriptions (Resp.
Exhs. 2-16) indicate that a permanent supervisor has the
authority to: participate in first-step union grievances, ad-
minister the union contract, and participate in grievance
discussions in handling first-step hearings. Counsel for the
Respondent points out that such language was omitted
from the position descriptions outlined in General
Counsel's Exhibit 19, as well as (a) "preparation of the
minutes, (b) postmg overtime records, and (c) the prepara-
tion of certain reports, as outlined in Respondent's Exhib-
its 2-16 4
to examine said data before the time for the submission of briefs (March 1,
1976) herein, and I advised counsel for the Respondent to avail himself of
the opportunity to inspect such records during such period and advise me if
his examination revealed anything which indicated that the data was incor-
rect, inadequate, or unauthentic so that I could reopen this proceeding and/
or exclude the data comprising G.C. Exhs. 17 and 18. Not having received
such a motion from counsel for the Respondent G.C. Exhs 17 and 18 are
hereby unconditionally received as a part of the record herein
3 While an examination of G.C Exh 19 represents only a compilation of
data extracted from official company records, indicating the names of vari-
ous unit employees acting as supervisors in upstate New York who were
also involved in grievances of other unit employees , G.C. Exhs. 23-28 repre-
sents copies of reports of first-step grievances signed by such acting supervi-
sors in the western area during the year 1963-75. However, G C Exhs. 29-
47 represents copies of the actual grievances which show the names of unit
employees, as acting supervisors, attending and participating in first-step
grievances which in some instances they signed as acting foreman (supervi-
sor) Consequently, when the foregoing cumulative documentary evidence is
considered in totality along with Mr Hennessy's undisputed testimony,
which I credit, the evidence is more than sufficient to support the conclu-
sion, and I so find, that Employer's widespread practice of utilizing unit
employees as acting supervisors also, on occasion , included their receipt of
and their attendance and participation in first-step grievances of other unit
em4ployees
While this mere omission itself may not, ipso facto, constitute sufficient
proof that Employer's supervisors and acting supervisors do not have the
authority to adjust grievances, when such onussion is considered along with
Continued
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties stipulated that the negotiations of all collec-
tive-bargaining agreements (G.C. Exhs. 2, 3, 4, 5, and 6) of
the subject unit employees since 1961, have taken place on
a statewide basis between the National Union and the Em-
ployer.
General Counsel's Exhibit 7, section 4(a), provides as
follows:
Membership in the Union shall be terminated when
any member shall accept a position which would ren-
der him ineligible for membership, except that a mem-
ber who temporarily assumed such a position may re-
tain membership for a period not to exceed thirty (30)
days, provided during such period such member shall
not hold any office within the Union.
The above document is entitled "Communications Work-
ers of America, AFL-CIO, a constitution, as amended,
June 1974."
In attempting to establish the extent to which several
locals of the National Union went in an effort to try to
implement an effective ban against union employees ac-
cepting temporary or acting supervisory roles with the Em-
ployer, counsel for the General Counsel submitted an in-
ternal memorandum (G.C. Exh. 8) from the vice president
of the National Union to all district staff members which
read as follows:
September 10, 1975
To: All District One Staff
From: Morton Bahr, Vice President
Subject: Constitution Interpretation
A number of Local Unions have adopted or are
considering adopting By-laws provisions that would
make it a violation of the By-laws if a member accept-
ed a temporary management job. Following is the ex-
act proposal that was adopted by Local 1127.
Effective January 31, 1969, no Local 1127 member
may accept or enter into a temporary or acting
management assignment . Should any Local 1127
member accept or enter into such an assignment, he
or she shall be subject to charges in accordance with
the Local 1127 By-laws and CWA Constitution.
Should any Local 1127 member be found guilty by
a duly Authorized and constituted Local 1127 Trial
Court of violating the aforesaid rule, the Trial Court
shall set a penalty, the minimum of which shall be a
$50 fine and suspension of all rights of membership
[pending payment].
John Carrol who is chairman of the Constitution
Committee has advised me that the Local 1127 pro-
posal cannot be approved since it is in conflict with
Article V, Section 4(a) of the, CWA Constitution
which reads as follows:
(a) Membership in the Union shall be terminated
when any member shall accept a position which
the total evidence of record, it becomes obvious that it was not coincidental-
ly an oversight, but rather , a clear intent of Employer not to delegate or not
to specify such authority
would render him ineligible for membership, except
that a member who temporarily assumes such a po-
sition may retain membership for a period not to
exceed thirty (30) days, provided during such period
such member shall not hold any office within the
Union.
To accomplish what Local 1127 wants to accom-
plish would require a constitutional amendment to
eliminate acting or temporary management jobs from
the meaning of that section of the Constitution. This
matter should be brought to the attention of your Lo-
cals.'
MB/pd
cc: G. Cramer
M. B.
D. Local 1122s Resolution Prohibiting Its Members From
Accepting Acting Supervisory Positions
Mr. Paul M. McGavis, a past president and current vice
president of Local 1122, testified that early in 1969 its Tri-
Local Council (composed of representatives from Locals
1122, 1115, and 1117) had agreed to ban employees from
accepting acting foreman positions with the Respondent;
that on April 16, 1969, Mr. Hennessy of the Employer
asked Local 1122 if the western area Locals 1122, 1115,
and 1117 would consider withholding their action banning
union employees from accepting acting foreman positions
in return for Employer's promise to limit and reduce the
utilization of such acting positions in the western area; and
that if they were willing to make that an upstate agreement,
Employer would not assign acting foremen to supervise
their own work groups. He further stated that the Tri-Local
proposal was put on their Tri-Local tape which was avail-
able to Employer and the entire Tri-Local membership
prior to April 16, 1969.
Mr. McGavis said he then told Mr. Hennessy that as a
representative of Local 1122, he would take, Mr.
Hennessy's proposal back to the first local executive board
meeting for consideration. The board decided to have fur-
ther discussion with the Employer on the proposal but Mr.
McGavis said he did not have further discussions with Em-
ployer because he was awaiting the results of a survey on
the matter from Locals in the upstate. Eventually, he said
he learned some of the locals were receptive to the proposal
but others were not. Consequently, at the May 9, 1969,
membership 'meeting the members by vote rejected
Employer's proposal and instead voted to invoke the origi-
nal proposal to ban unit employees from accepting acting
5 This exhibit was admitted into evidence over the objection of counsel
for the Respondent because while it does not represent a document pre-
pared or disseminated by Local 1122, it nevertheless represents an internal
document prepared and distributed by Local 1122's superior, the National
Organization, with respect to the authority of locals to implement a prohibi-
tion against union' employees accepting acting supervisory positions . In this
regard, the document is relevant , from the National Organizations 's point of
view , to the crucial issue in this case , as to whether or not the efforts of
Local 1122 to impose and enforce such prohibition is without legal jurisdic-
tion to do. This is so even though vice president of Local 1122, Nelson C
Becker, denied knowledge of receipt or filing of the above -described docu-
ment (G.C Exh 8).
COMMUNICATIONS WKRS ., LOC. 1122
foreman positions. This resolution was never rescinded by
Local 1122 and the action was published in Local 1122's
newspaper which was distributed to all members and third-
level management of the Employer, including Mr. Hennes-
sy. Subsequently, pursuant to union contract, a copy of the
resolution (G.C. Exhs. 9 and 10) was posted on the bulletin
boards on June 15 and 17, 1975, respectively, where notices
addressed to employees are customarily posted. In fact Mr.
McGavis said Local 1122 and the other locals actually re-
jected Mr. Hennessy's proposal.
The parties stipulated that during the negotiations which
took place July 1-9, 1968, the Union proposed that "any
employee promoted to management shall lose all seniority
as to the choice of vacations, promotions, selection of
tours, and transfers, upon his return to the bargaining unit,
for the length of time he was promoted to management."
When management asked whether the Union was trying to
restrict its right to promote people to acting management,
the response was "yes." When Employer asked was the
Union trying to put some sort of pressure on people, em-
ployees to refuse to accept these acting management jobs,
the response was "yes." However, the Employer rejected
the proposals and the matter was not thereafter discussed
in negotiations.
According to the credible testimony of Mr. James Hen-
nessy and Mr. Paul McGavis, Mr. Hennessy did meet with
the bargaining committees of Locals 1122 (representing
1,000 unit employees), 1115 (representing 400 unit employ-
ees), and 1117 (representing about 600 unit employees) on
April 17, 1969, when the use of acting foremen (supervi-
sors) was discussed in Buffalo, New York.
Mr. McGavis further testified that Local 1122 had a lo-
cal oral and unsigned agreement with Employer regarding
"switching tours" which was negotiated in 1964 but the
Union did reduce the oral agreement to writing. On cross-
examination Mr. McGavis read article 30, section 30.01, of
the current collective-bargaining agreement which provides
as follows:
Article 30 Waiver or Modification 30.01. This
Agreement constitutes the entire Agreement between
the parties, and no- waiver or modification shall be
effective unless signed by the parties hereto, and no
such writing, applicable to any particular instance or
instances, shall be construed as any general waiver or
modification, but shall be strictly limited to the extent
and occasion specified herein.
Mr. McGavis then acknowledged that the above-cited
provision in the last collective-bargaining agreement was
negotiated and signed by the International Union of the
CWA. He also admitted that the agreement the Respon-
dent contends it had with the Employer prohibiting unit
employees from accepting appointments to acting supervi-
sor positions was not ever signed by the Employer and
Local 1122. He further admitted that pursuant-to General
Counsel's Exhibits 2 and 6, the collective-bargaining agree-
ment, the Employer has appointed unit employees to tem-
porary management or acting supervisor positions since
1964.
On cross-examination when Mr. Hennessy was asked to
explain why there were not any appointments for acting
105
supervisors during the year 1.-971, he replied that half of the
year 1971 the bargaining unit was on strike and he believed
the absence of any such appointment during the other half
of 1971 was due to the effectiveness of Local 1122's ban on
its employees accepting such positions. However, he readi-
ly admitted that he did not know as a fact whether such
positions were offered to the unit employees or whether
unit employees declined to accept such offers during 1971.
Mr. Hennessy also admitted on cross-examination that no
union employee under the jurisdiction of Local 1122 was
appointed to supervisory positions following June 1969,
until 1973, and that is true for Local 1122 as well as Locals
1117 and 1115. He conceded to counsel for the Respondent
that this was a significant reduction in the use of temporary
supervisors following June 1, 1969.
Mr. McGavis further testified that subsequent to Local
1122's ban on union employees accepting acting supervisor
positions, Employer promoted a substantial number (50-
60) of unit employees to permanent foremen within a peri-
od of 6 months, as contrasted to what normally had been
15 or 20 employees.
Mr. Roy A. Jordan, in the employ of the Respondent for
23 years and now division construction superintendent,
outside plant maintenance, western area, is responsible for
maintenance and repair of outside plants, poles, anchors,
cables, underground conduits, etc., and he responds to the
second-step grievances of employees. He deals with all
three locals, 1122, 1115, and 1117. He testified that in his
early career he served as an acting -foreman 2 or 3 weeks,
and on another occasion for 9 months as a cable splicer
during which time he earned 10 percent more than his sal-
ary. Generally when he served in such capacities he per-
formed substantially the same duties as the permanent su-
pervisor for whom he was acting. He further testified that
union employees can decline to accept appointments to
acting supervisors and that he knew of employees who
were selected and had accepted acting first-line supervisor
positions. Acting supervisors have the authority and re-
sponsibility to resolve complaints on a daily basis and also
resolve and/or process grievances. Mr. Jordan supported
his testimony in this regard by identifying and explaining
General Counsel's Exhibits-20 and 21 with respect to the
number of persons and the number of times such employ-
ees have served as acting supervisors. He said acting crafts-
men do not fill out a timesheet unless they are acting for 2
days or less (G.C. Exh. 22).
The resolution of Local 1122 is published in the Union's
newspaper (G.C. Exh. 17) which was distributed to the
membership and to second-level management of Employ-
er.
Mr. McGavis further testified as follows:
Q. When referring to Tri-Local Council , in what ar-
eas?
A. 1115, 1117, 1122, membership , executive mem-
bership of three locals at that time.
Q. Can you be more specific about what the pro-
posals were that Mr . Hennessy stated to you he'd be
willing to negotiate, hopefully for Upstate , but if not,
for three locals?
A. I recall them specifically . First they would limit
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the numbers of employees in our bargaining unit who
would be considered for acting foremen. They would
be willing to agree to 3 percent pool of the same; that
they would reduce this percentage of the bargaining
unit pool of the available acting foremen during the
summer vacation period to even less than that; that
they would not assign acting supervisors so selected to
supervise their own work groups. That in addition to
that they would provide an additional assignment of
the field dispatcher and senior frame man titles which
were craft titles, but if a lead man acted in that capaci-
ty within the contract that we felt could be better uti-
lized prior to that time. In addition to that they of-
fered to limit, or in fact fully restrict any transfers
between our areas and other areas of acting supervi-
sors, either within or without our western area, if we
agreed to a Western Area agreement. If it was a Up-
state Agreement, it would be confined to people used
in regard to the. pool to that area.
Mr. McGavis'also said that Local 1122 also had a lunch
hour duration agreement with Employer which predated
the existence of Communications Workers of America,
which agreement was not consistent with the contract but
nevertheless continued in force and effect since 1961, even
though such agreement was not in writing.
Mr. Roy I. Bert Youngberg, who was employed by the
Employer 23 years and was president of Local 1115 from
1966 to 1970, testified that during his tenure as a union
official, and prior to April 16, 1969, Local 1115 and Em-
ployer did negotiate the subject lunch duration and sche-
duling of vacations, which if they were unsuccessful the
Local would have filed a grievance. However, negotiations
were always successful and they negotiated or discussed
other matters involving the adequacy of summer hirees.
The parties stipulated that the strike of the CWA com-
menced 'July 14, 1971, and terminated February 18, 1972;
and that Local 1103's jurisdiction is the Westchester Coun-
ty area of the State.
On July 2, 1975, Respondent charged one of its mem-
bers, Richard Macvie, with violating Local 1122's rule pro-
hibiting its members from accepting an "acting supervi-
sion" assignment; and that Macvie was "acting" from June
8 to 14, 1975, and from June 29, 1975 to the present time
(July 2, 1975) (G.C. Exh. 11).
In a letter dated July 3, 1975, Respondent advised its
union member, Richard Macvie, as follows (G.C. Exh. 12):
You have been formally charged with violation of
the Local's rule against accepting "Acting Supervi-
sion".
The Local Executive Board has not met since the
receipt of this charge to formally review it and select a
teal court for the trial. You will be so advised.
I have included a copy of the rule notice which is
posted at your work location as well. In addition to
other reasons against accepting "Acting," such as
eliminating the need for more permanent foremen, we
are aware of the company's excess permanent foreman
situation especially in Construction and the rumored
downgrade of some of them back into craft where they
would fill senior positions on vacation lists etc. as well
as the possibility of actually causing layoffs of junior
construction workers.
Any "Acting" would certainly contribute to allow-
ing greater numbers of these permanent foreman
downgrades.
I ask you to immediately return to your craft posi-
tion.
Macvie was subsequently advised by Local 1122 that he
would be notified as to the time and date for his trial (G.C.
Exh. 13).
Analysis and Conclusions
It is well established by the evidence of record that it has
been a long-standing (1964-April 1969) and widespread
(New York State) practice of Employer (New York Tele-
phone Company) to appoint union-member employees to
acting (temporary) supervisor positions with the coopera-
tion and blessings of the Communications Workers of
America (CWA), of which the Respondent (Local 1122) is
a constituent, until April 1969 when Respondent imposed a
ban against its members accepting such temporary ap-
pointments. Five of the six successive collective-bargaining
contracts executed between the Employer and the CWA
contain provisions essentially the same as presently consti-
tuted under paragraph 8 of General Counsel's Exhibit 2,
and article 5, subparagraph 5.04, of General Counsel's Ex-
hibit 2, respectively, which provide as'follows:
An employee temporarily promoted to a management
job shall be charged with the average overtime of his
unit during the entire period of his absence from the
unit on the acting assignment.
An employee's written authorization for such deduc-
tions shall be cancelled automatically by the company
when the employee is transferred, except on an acting
basis, to a position wherein he is no longer'covered by
the terms of this Agreement.
Employer contends that Respondent's union is bound to
honor and comply with the acting supervisor practice by its
current collective-bargaining contract, and that Respon-
dent's enforcement of a ban against the practice constitutes
a breach of contract and a violation of Section 8(b)(3) of
the Act._
None of the five collective-bargaining agreements execu-
ted between Employer and the CWA, by which Respon-
dent (Local 1122) is bound, contained any specific provi-
sions compelling Employer to authorize, or compelling any
union-member employee to consent to, the practice of uti-
lizing unit employees 'as acting supervisors. However, each
contract nevertheless does recognize the practice by provi-
sions governing matters ancillary to the practice iteself.
That is, the language in both of the above-descnbed provi-
sions presupposed that Employer has offered a union-
member employee such an appointment and the employee
has accepted the appointment. It is further observed that
the language in neither of the above-cited provisions is
mandatory with respect to initiating or continuing the
practice of utilizing acting supervisors. In fact the Employ-
er testified that any union-member employee who is of-
COMMUNICATIONS WKRS ., LOC. 1122
fered such an appointment is free to decline acceptance.
Correspondingly, it's clear from both the language of the
heretofore cited contract provisions and the evidence of the
practice itself that, while Employer may not be legally
bound by the contract to make or to cease from making
such appointments, it nevertheless did make frequent and
widespread acting supervisory appointments prior to April
16, 1969. The Respondent admits and concedes that it ac-
quiesced in Employer's practice of using acting supervisors.
Under these circumstances, the mutual recognition of the
practice as supported by the ancillary contract provisions
by which the practice was actually carried out became a
term and condition of employment by which the parties
(Employer and Respondent) were obliged to bargain.
The record shows that as early as 1967 Local 1103 of the
CWA had imposed a ban against its members acceptance
of acting supervisory appointments and that the Employer
had knowledge of such ban. During one of its occasional
meetings with- Respondent the Employer requested the
three locals, 1115, 1117, and 1122, which had demanded
abolition of the acting supervisor practice, to delay impos-
ing a ban upon its employees accepting acting supervisor
positions. In consideration of such forebearance, Employer
promised to limit the duration of such future appointments
to 30 days and to refrain from assigning such acting super-
visors to supervise their own work group. The Locals took
Employer's offer back to its executive board which submit-
ted it to the full membership for vote. The membership
rejected Employer's offer and in turn voted to impose a
ban upon its membership accepting Employer's appoint-
ments to acting supervisor positions. Employer was ap-
prised of the membership's action and did not make any
further demands upon the three named locals, but never-
theless did refrain from appointing any union-employees to
supervisory positions from April 16, 1969, until 1971.
When the Employer was asked why were there no appoint-
ments of acting supervisors during the year 1971, the latter
replied that Local 1122 was on strike for about 6 months of
that year and it attributed nonappointments during the re-
maining 6 months to the effectiveness of the Union's ban
on its membership accepting such' appointments.
The Respondent contends, and I find, that Employer's
sudden and obvious abstention from utilizing acting super-
visors following the Employer-Local meeting in 1969, for a
period of 2 years, constituted an implied agreement by Em-
ployer to refrain from doing so, and/or its acquiescance in
the Respondent's demand that the practice be terminated.
The nonappointment of unit employees to temporary or
acting supervisor positions during such 2-year period be-
came a term or condition of employment by which Em-
ployer and Respondent were thereafter obliged to bargain.
At this juncture, Employer and Respondent were neither
bound by contract nor practice to recognize the utilization
of union employees as temporary ,supervisors. The record
further shows, and I find, that in 1971 Employer proceeded
to utilize union-member employees as acting supervisors,
thereby reinstituting the prior practice in derogation of the
current practice of 2 years' duration of not making such
appointments. When Employer appointed union-member
employee Richard Macvie to an acting supervisor position
which Macvie accepted, Local 1122 charged Macvie with
107
violating its rule against accepting such appointments and
selected a trial court to exact the fine against him. The
Employer now contends that the Respondent, by promul-
gating and now attempting to enforce its ban against its
membership accepting acting supervisor positions, violated
Section 8(b)(l)(A) and 8(b)(3) of the Act as the Union did
in Rochester Telephone Corporation, infra, and it also violat-
ed Section 8(b)(1)(B) of the Act.
In this regard, Communications Workers of America,
AFL-CIO, Local 1170 (Rochester Telephone Corporation,
194 NLRB 872 (1972), cited by counsel for Employer, is
distinguishable from the facts in the instant case . There,
unlike , here, the union was successful in bargaining sessions
to have the employer agree to modify the longtime practice
by limiting the duration of temporary or acting supervisors
to 30 days, and by promising that, whenever possible, such
employees selected would not be assigned to supervise
their own work group. This negotiated limitation on the
practice of assigning temporary supervisors was accepted
by the union and was subsequently reaffirmed by the em-
ployer in letters to the union and thereby became a part of
the contemporaneous bargain in executing the prior con-
tract between the parties. Consequently, when the union
thereafter adopted an unqualified ban on its member-em-
ployees accepting -temporary supervisor positions, the
adoption- and enforcement of such ban constituted a modi-
fication of extended provisions of its collective-bargaining
contract in violation of -Section 8(b)(3) of the Act.
Although Local 1122, Respondent herein, met with Em-
ployer (Mr. Hennessy) on April 16, 1969, it was neverthe-
less unsuccessful in getting Employer to abandon the prac-
tice and Respondent rejected Employer's offer to modify
the practice. However, the Union herein did not abandon
its demand for abolition of the practice as did the union in
the Rochester case. In any event, prior to April 16, 1969,
common in the instant and in the Rochester case is the
apparent right of unlimited reliance of the Employer herein,
and the right of limited reliance of the employer in Roches-
ter, on the longstanding practice of assigning unit employ-
ees to temporary supervisor positions. Subsequent to April
16, 1969, or soon thereafter, the practice of appointing act-
ing supervisors was terminated by Employer at the request
of the Locals, and a new practice of nonappomtments was
substituted therefor by which both parties (Employer and
Local 1122) were bound and on which both were entitled
to rely. ,Since the prior appointing practice was not in exis-
tence Employer nor Local 1122 can unilaterally revive the
practice without bargaining. Under these circumstances,
Local 11122 could not restrain and coerce Employer in the
unlawful unilateral selection of its representatives. Hence,
Local 1122's enforcement of its ban against a defunct prac-
tice cannot be found violative of Section 8(b)(1)(B) of the
Act. Nor can such action by Local 1122 be found a. refusal
to bargain in violation of Section 8(b)(3), of the Act since
such action occurred during the term of the bargaining
contract and no new request to bargain on the matter of
acting supervisors has been made by Employer.
However, whether or not Respondent's promulgating
and enforcing a ban,against its union-member employees
accepting acting supervisor positions violated Section
8(b)(1)($) of the Act seems to depend also upon whether
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's ban against the practice and the means of its
enforcement are designed to protect a legitimate interest of a
labor organization and will not frustrate or tend to frustrate
an overriding policy of the Act. In this regard , a careful ex-
amination of the appropriate provisions of the Act appears
warranted.
The Respondent union is alleged to have violated Sec-
tion 8(b)(1)(B) of the Act, which section specifically pro-
vides as follows:
Sec. 8(b)(1) It shall be an unfair labor practice for
a labor organization or its agents-to restrain or
coerce . . . (B) an employer in the selection of his
representatives for the purposes of collective bargain-
ing or the adjustment of grievances. '
In Florida Power And Light Company v. International
Brotherhood of Electrical Workers, Local 641, 417 U.S. 790
(1974), cited by counsel for the respective parties, the Court
held that an analysis of the language and the legislative
history of Section 8(b)(1)(B) of the Act reveals that Con-
gress was concerned about protecting an employer only
against union restraint and coercion in the selection and
utilization of his representatives for purposes of collective
bargaining or the adjustment of grievances . The Court in
Florida Power, supra, went on to say: "Nowhere in the leg-
islative history is there to be found any implication that
Congress sought to extend protection to the employer from
union restraint or coercion when engaged in any activity
other than the selection of its representatives for purposes
of collective bargaining and grievances adjustment. The
conclusion is thus inescapable that a union's discipline of
one of its members who is a supervisory employee can con-
stitute a violation of Section 8(b)(1)(B) only when that dis-
cipline may,adversly affect the supervisors conduct in per-
forming the duties of , and acting in his capacity as,
grievance adjuster or collective bargainer on behalf of the
employer." In further amplification of the authority to ad-
just grievances , the court in N.L.R.B. v. Brown and Sharpe
Manufacturing Company, 169 F.2d 331 (C.A. 1, 1948), held
that supervisors authority to reward or to adjust the griev-
ances of their fellow employees, or effectively to recommend
such action should entail the use of independent judgment in
collecting, evaluating and considering pertinent data for
the purpose of determining the validity of the grievance.
In measuring the evidence of record against the above-
cited language of the Act, and its underlying policy, it is
first observed and found that the evidence does not present
an issue as to whether a supervisor or acting supervisor acts
as representative for Employer for purposes of collective
bargaining. However , a crucial question presented by the
evidence is whether supervisors , and more particularly act-
ing supervisors, have the authority and do in fact adjust
employee grievances for Employer within the meaning of
the Act. An examination of the documentary evidence in
this regard clearly reveals that many acting supervisors re-
ceive grievances on behalf of the Employer, assign a num-
ber to such grievances , present such grievances to the stew-
ard, attend the grievance hearing, and in some instances
the records intimate that such acting supervisors heard the
grievance . Many of the documents labeled "Report of First
Step Grievance Review" were marked "No Disposition,"
"Disposition pending," "Management 's position stated by
acting supervisor ," and some did not contain any evidence
of a disposition.
General Counsel's Exhibit 23 which consists of minutes
of grievances merely stated what decision was made and in
many instances such minutes are signed by the acting su-
pervisor. However, the documents do not indicate who
made the decision , and to conclude that- the decision was
made by the acting supervisor would be merely a specula-
tive assumption on my part . In the documents - which were
marked "Management 's position stated," or "presented," it
could not be determined in all instances who stated man-
agements position , or more importantly, who resolved the
grievance for management . Although General Counsel's
Exhibit 32 describes 'what disposition was made of the
grievance , it is observed that this routine disposition was
made in accordance with established rules governing over-
time . Likewise, General Counsel's Exhibits 41 and 42 de-
scribe the resolution of complaints , or noncompliance with
special procedure outlined to resolve vacation selection. In
both of these situations it would appear that the grievances
were routinely resolved by an established business policy
of procedure , or by a procedural provision of the collec-
tive-bargaining contract . In any event these grievances
were not shown to have been resolved by an independent
exercise of discretion on the part of the supervisor or the
acting supervisor . General Counsel's Exhibits 44 and 46
appear to have been resolved by language in the contract,
rather than by any exercise of discretion of the acting su-
pervisor.
In a few exhibits , such as General Counsel 's Exhibit 45,
the document indicates that the grievance might have been
heard by the supervisor, rather than the acting supervisor,
and disposition of the grievance is labeled "pending." Gen-
eral Counsel's Exhibit 47 merely describes the nature of the
grievance and indicates that it is to be appealed . The Em-
ployer produced only one witness,' Mr. Roy Jordan, who
testified that during the early part of his career of 23 years
with Employer he had served as an acting supervisor on
two occasions and that the duties of an acting supervisor
were the same as those of a permanent supervisor . Employ-
er did not produce any other witnesses who testified that
more currently they had served as an acting supervisor and
actually had authority to adjust employee grievances,
which in fact they had exercised.
Additionally, with respect to the question of'authority of
acting supervisors to adjust grievances, it is noted that
while the language of the "Job Functions" of supervisors
(Resp . Exhs. 2-16) does indicate that supervisors partici-
pate in grievance discussions in handling first-step griev-
ance hearings, it does not state that such supervisors actu-
ally adjust - grievances . Nor does the language in General
Counsel's Exhibit 19 show that supervisors actually adjust
grievances . When Employer (Mr.' Hennessy) was asked
what authority does the foreman 'at first step have to adjust
grievances and where is that described , the authority,'he
replied as follows:
A. They would have the responsibility to adjust
grievances themselves on more routine cases.
Q. Who describes what is more routine? '
COMMUNICATIONS WKRS ., LOC. 1122
A. Who describes what is more routine? Well ....
THE WITNESS: They do have the responsibility to
adjust the more routine cases, and the more complex
cases they would discuss with their supervisor or the
labor Relations people. Their authority is not spelled
out any place to my knowledge, describing which ones
are referred and which ones they handled themselves.
Mr. Hennessy also said there is no definition of what is
routine and what is not routine and Mr. Roy Jordan, divi-
sion construction superintendent for Employer, credibly
testified that a search of Employer 's business records in the
western area for all jobs did not disclose any data wherein
an acting supervisor had adjusted a grievances. Even Em-
ployer (Mr. Hennessy) testified that it could not determine
from General Counsel's Exhibits 23-28 whether or not the
supervisor had settled the grievance on his own initiative or
if higher managerial authority directed the acting supervi-
sor how to resolve the grievance.
Based upon the foregoing analysis of the documentary
and testimonial evidence regarding the duties of acting su-
pervisors, I conclude and find that while Employer con-
tends that supervisors and acting supervisors had and in
fact exercised authority to adjust employee grievances,
such evidence is grossly insufficient to support a conclu-
sion that either supervisors or acting supervisors possessed,
or in fact actually exercised, such authority. Since acting
supervisors did not have, nor exercised, authority to adjust
employee grievances, the Union's (Local 1122) efforts to
enforce its ban against its members accepting temporary
supervisor positions did not, and could not, have interfered
with the performance of representatives selected by Em-
ployer for purposes of collective bargaining or the adjust-
ment of grievances . In the absence of such interference the
union (Local 1122) is free to institute disciplinary action
against its members without violating Section 8 (b)(1)(B) of
the Act. Florida Power and Light Company v. LB.E.W., Lo-
cal 641, 417 U.S. 790 (1974). Employer's allegation in this
regard should be dismissed.
With respect to the contractual or practice right of Em-
ployer to appoint acting supervisors, counsel for the Gen-
eral Counsel argued that since the Local herein is not the
exclusive bargaining representative as was the union in
Brotherhood of Painters, Decorators and Paperhangers of
America, AFL-CIO, District Council No. 9 of New York
City (Westgate Painting and Decorating Corp.), 186 NLRB
964 (1970), it does not possess authority to affect changes
in existing terms and conditions of employment within the
unit. While this argument may be available to the National
Organization (CWA), which knew about but did not com-
plain about the Local's action, I cannot perceive Employer
assuming such a position when it was Employer who bar-
gained with Local 1122 and thereafter substituted the non-
appointing practice for the prior practice of appointing act-
ing supervisors . I do not concede , as counsel for Employer
contends, that since Employer revived its appoint-
ment of acting supervisors in 1973-75, that Local 1122 ac-
quiesced in the revival of the practice because it did not file
a grievance under the contract or discipline any of its
members who had accepted appointments during such pe-
riod. Since Local 1122 did not ever retract its opposition to
109
the practice of acting supervisors and continually main-
tained its ban upon its membership against the practice, it
is clear that it was Employer who unilaterally reinstituted
the practice . Although Local 1122 did not file a grievance
against Employer or seek enforcement of its ban before
now, I do not perceive such delayed action on its part as a
waiver of its right to rely on the established nonappointing
practice , or as an acquiescence in Employer 's unilateral
remstitution of the practice of appointing acting supervi-
sors. Such delay by the Local may very well have been due
to a "wait and see" approach to the problem on its part,
since it is observed (G.C. Exh. 16) that Employer's ap-
pointments of acting supervisors were not as numerous or
as frequent during 1973-75 as they were during the years
prior to 1969.
With respect to the alleged violation of Section
8(b)(1)(A) of the Act , the Union (Local 1122) expressed its
concerns with the tendency of the acting supervisor prac-
tice to impede the number and frequency of promoting
rank-and-file employees to permanent supervisory posi-
tions, the presence or participation of its members in griev-
ances, and other concerns comparable to those expressed
by the union in Rochester Telephone Company, supra. All of
these concerns I find constitute a legitimate interest of a
labor organization (national or local). Hence the Union
(Local 1122) herein sought to safeguard those concerns
through the promulgation and enforcement of a ban
against its members accepting temporary supervisory posi-
tions. Such a rule is unquestionably an internal rule regu-
lating legitimate interests and affairs of the union and its
membership . Scofield et al. v. N.L.R.B., 394 U.S. 423
(1969). As further evidence supporting the realism of its
concerns , Local 1122 established that subsequent to the
promulgation of its ban on union members accepting su-
pervisory positions, Employer promoted a substantial
number of unit employees to permanent supervisory posi-
tions within a period of 6 months.
Since the union interest for which the ban on acting su-
pervisor positions was designed to protect is legitimate, and
the rule (prohibition) itself is enforced solely through "the
internal technique of union fines ," neither the rule nor its
actual enforcement constitutes restraint or coercion so as
to be violative of Section 8(b)(1)(A) of the Act, and the
allegations that such is the case should be dismissed.
Although the unit employees who acted as supervisors
for Employer within the jurisdiction of Local 1122 were
not supervisors for purposes of collective bargaining and
adjusting grievances , there is no dispute that otherwise they
possessed and exercised other indicia of managerial au-
thority, and while so doing were in fact supervisors within
the meaning of Section 2(11) of the Act . Since the union
rule (prohibition) was prospective, it was applicable to em-
ployee Richard Macvie before he accepted the acting su-
pervisor position for which he is now being disciplined by
Local 1122.
With respect to the alleged violation of Section 8(b)(3) of
the Act , I find that Local 1122 did meet with Employer
upon the latter's request, when among other things they
discussed the acting supervisor practice which the Union
(Local 1122) requested be terminated. Employer offered to
modify the practice and the Union ultimately rejected the
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offer and demanded abolition of the practice. Although
Employer was appraised of the Union's demand it ex-
pressed no further response , but instead , responded in ac-
tion by not appointing any acting supervisors within the
jurisdiction of Local 1122. While the appointing practice of
acting supervisors has been changed by negotiating or by
acquiescence to a nonappointing practice by the parties
(Employer and Local 1122), the issue of the practice itself
remains a bargainable issue. Although Employer may ex-
perience some impact from the enforcement of the Union's
rule, the rule is not designed to externally regulate the man-
agerial operation of Employer and therefore, it is not in-
consistent with the overriding policy of labor law. See Sco-
field v. N.L.RB., supra. Consequently, the alleged violation
of Section 8(b)(3) of the Act should also be dismissed.
CONCLUSIONS of LAW
1. New York Telephone Company is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Local 1122 is a labor organization within the meaning
of Section 2(5) of the Act, and Communications Workers
of America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in any unfair labor
practices , as alleged , within the meaning of Section
8(b)(1)(A), 8(b)(1)(B), or 8(b)(3) of the Act.
[Recommended Order for dismissal omitted from publi-
cation.]