Communications Workers Of America, Afl-Cio

National Labor Relations Board - Board Decisions

May 30, 1986

280 N.L.R.B. 78 (N.L.R.B. 1986)

78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Communications Workers of America, AFL-CIO
and Chesapeake and Potomac Telephone Com-
pany, Chesapeake and Potomac Telephone Com-
pany of Maryland , Chesapeake and Potomac
Telephone Company of Virginia , and Chesa-
peake and Potomac Telephone Company of
West Virginia. Case 5-CB-4484
30 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 29 October 1985 Administrative Law Judge
Richard A. Scully issued the attached decision.
The Respondent filed exceptions and a supporting
brief,' to which the General Counsel and the
Charging Parties filed briefs in response. The
Charging Parties also filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision2 and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,3 findings,4
and conclusions and to adopt the recommended
Order.
Edward R. Noonan, Esq., for the General Counsel.
John L. Quinn, Esq., Birmingham, Alabama, for the Re-
spondent.
Michael Underhill, Esq., and Richard C Hotved4 Esq.,
Washington, D.C., for the Charging Parties.
DECISION
RICHARD A. SCULLY, Administrative Law Judge. On a
charge and amended charge filed on 18 October and 1
November 1983, respectively, by Chesapeake and Poto-
mac Telephone Company; Chesapeake and Potomac
Telephone Company of Maryland; Chesapeake and Poto-
mac Telephone Company of Virginia; and Chesapeake
and Potomac Telephone Company of West Virginia, the
Regional Director for Region 5, National Labor Rela-
tions Board (the Board), issued a complaint against Com-
munications Workers of America, AFL-CIO (the Union)
on 4 October 1984.1 The complaint alleges that the Re-
spondent has committed violations of Sections 8(b)(3)
and 8(d) of the National Labor Relations Act (the Act)
by unilaterally changing terms and conditions of employ-
ment. The Respondent filed a timely answer denying
that it has committed any violation of the Act. A hearing
was held on 16 and 17 April 1985 in Washington, D.C.,
and on 14 May 1985 in Birmingham , Alabama , at which
the parties were given a full opportunity to participate,
to examine and cross-examine witnesses, and to present
other evidence and argument. Briefs submitted on behalf
of the parties have been given due consideration.
On the entire record and from my observation of the
demeanor of the witnesses, I make the following
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Communica-
tions Workers of America, AFL-CIO, Washington,
D.C.; Baltimore, Maryland ; Richmond, Virginia;
and Charleston , West Virginia, its officers, agents,
and representatives , shall take the action set forth
in the Order.
' The Respondent has requested oral argument. The request is denied
as the record , exceptions , and briefs adequately present the issues and the
positions of the parties.
Y In his decision , the judge at one point inadvertently referred to an
alleged violation of Sec 8(a)(5) instead of the alleged violation of Sec.
8(bX3).
a In adopting the judge's denial of the Respondent 's motion for defer-
ral to arbitration , we solely rely on the fact that the parties ' collective-
bargaining agreement does not provide the Charging Parties with access
to the grievance/arbitration procedure and that to allow the Respondent
to waive this procedural defect would fundamentally alter the existing
dispute resolution procedure
4 The Charging Parties excepted to the judge 's fording that the compa-
nies are joint employers, maintaining that although the Respondent ad-
mitted to the Charging Parties' joint employer status in its answer to the
complaint, the Charging Parties had no opportunity to address the issue,
the issue was not raised at the hearing , and it is not relevant to the reso-
lution of the issues herein We find it unnecessary to pass on the status of
the Charging Parties as joint employers because each of the Charging
Parties individually meets the Board 's jurisdictional standards and the
issues in this proceeding can be resolved without resolving any questions
concerning their status as joint employers
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Chesapeake and Potomac Telephone Company is a
New York corporation with an office and place of busi-
ness in Washington, D.C., engaged in the business of
providing telephone communication services. During the
calendar year 1983, in the course and conduct of its busi-
ness, it derived gross revenues in excess of $1 million and
purchased and received at its facility in Washington,
D.C., goods and materials valued in excess of $50,000 di-
rectly from points located outside of the District of Co-
lumbia.
Chesapeake and Potomac Telephone Company of
Maryland is a Maryland corporation with an office and
place of business in Baltimore, Maryland, engaged in the
business of providing telephone communication services.
During the calendar year 1983, in the course and con-
duct of its business, it derived gross revenues in excess of
$1 million and purchased and received at its facilities in
Maryland, goods and materials valued in excess of
$50,000 directly from points located outside of the State
of Maryland.
Chesapeake and Potomac Telephone Company of Vir-
ginia is a Virginia corporation with an office and place
i The complaint herein was consolidated for hearing with those in
Cases 10-CB-4243 and 20-CB-6143 Those two cases were subsequently
severed from Case S-CB-4484
280 NLRB No. 9
COMMUNICATIONS WORKERS (C & P TELEPHONE)
of business in Richmond, Virginia, engaged in the busi-
ness of providing telephone communication services.
During the calendar year 1983, in the course and con-
duct of its business, it derived gross revenues in excess of
$1 million and purchased and received at its facilities in
Virginia goods and materials valued in excess of $50,000
directly from points located outside of the Common-
wealth of Virginia.
Chesapeake and Potomac Telephone Company of
West Virginia is a West Virginia corporation with an
office and place of business in Charleston, West Virginia,
engaged in the business of providing telephone communi-
cation services. During the calendar year 1983, in the
course and conduct of its business, it derived gross reve-
nues in excess of $1 million and purchased and received
at its facilities in West Virginia goods and materials
valued in excess of $50,000 directly from points located
outside of the State of West Virginia.
The Respondent admits, and I find, that at all times
material these four companies (C & P), all of which are
former subsidiaries of AT & T Company, are joint em-
ployers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The Respondent admits, and I find, that it is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that the parties' collective-bar-
gaining agreement requires the presence of a court re-
porter during nonexpedited arbitration hearings conduct-
ed pursuant to the grievance and arbitration provisions
of that agreement as well as the preparation, use, and
sharing of the costs of the official transcripts of such
hearings . It also alleges that the subject matter of tran-
scribing the arbitration hearings and sharing the costs of
the transcripts are mandatory subjects of bargaining and
that the Respondent violated Section 8(b)(3) and (d) of
the Act by unilaterally refusing to agree to the continued
preparation, use, and sharing of the costs of transcripts in
nonexpedited arbitration hearings.
Facts
The Employers have jointly bargained with the Union
as the exclusive representative of a combined unit of ap-
proximately 35,000 employees of the four companies
since 1971. Before that, the Union represented the com-
panies ' employees in separate bargaining units . The par-
ties have been signatories to a series of collective-bar-
gaining agreements beginning in 1951. For some time,
contract bargaining was done at both the national level
between the Union and AT & T on matters considered
to be of national interest and at the local level between
the Union and the local subsidiary companies on all
other matters. After local agreement was reached, the
national agreement became a part of the local contract.
All collective-bargaining agreements between the par-
ties since the first one in 1951 have included grievance
and arbitration provisions. These provisions required that
79
the parties share the cost of the arbitration proceedings.
Between 1951 and 1983, when the present controversy
arose, the parties had a court reporter present for every
regular (nonexpedited) arbitration hearing conducted
pursuant to their contract provisions. In every such pro-
ceeding, the Union and C & P shared all costs, including
the costs of the court reporter and the official transcript,
which was prepared for use by the arbitrator in all but
one instance . During national bargaining in 1977, the par-
ties amended their contractual arbitration provisions by
adding an optional "expedited" arbitration procedure to
be used when both parties consented. The contracts be-
tween the parties since 1977 have provided that expedit-
ed arbitration hearings are to be conducted without the
use of transcripts. In 1980, the parties agreed to use the
expedited procedure for most suspension grievances and
other types mutually agreed to on a case-by-case basis.
In January 1982, the Union informed C & P and other
AT & T subsidiary telephone companies that as of 1
February of that year it would no longer agree that ar-
rangements be made for a court reporter to provide an
official transcript in nonexpedited arbitration cases. C &
P and other AT & T subsidiaries objected to this pro-
posed change in practice. At a meeting between attor-
neys for C & P and the Union, shortly after the notice,
the union attorneys stated that it was attempting to cut
costs by dispensing with the transcripts. The attorney for
C & P responded that any proposed change in the arbi-
tration procedure had to be negotiated and threatened to
file a charge with the Board if the Union went ahead
with its proposal. The Union did not implement its pro-
posed change in procedure on 1 February. On 15 July
1982 AT & T and the Union executed an agreement in-
volving six AT & T subsidiary companies, which set up
a trial program to be in effect until the existing collec-
tive-bargaining agreement expired in August 1983. Under
this trial program, certain types of nonexpedited arbitra-
tion cases would either be heard without an official tran-
scribed record being submitted to the arbitrator or use of
a transcript as the official recor, would be determined
by the arbitrator prior to the commencement of the arbi-
tration hearing. The agreement provided that with re-
spect to the subsidiary companies not participating in this
trial program, the parties would continue to follow the
practice and procedures that were in effect prior to Janu-
ary 1982. C & P was not one of the subsidiaries involved
in the trial program.
Negotiations for a successor to the contract expiring in
August 1983 began at the local level in July 1983. Griev-
ance arbitration issues were matters for local bargaining.
During these negotiations the Union made a proposal to
expand the existing expedited arbitration procedure to
cover disciplinary grievances. This proposal was dis-
cussed, but was rejected by C & P. No changes in the
scope of expedited arbitration were agreed on during
these negotiations.
By 27 August 1983 the parties had reached agreement
on most issues. On that morning, C & P's chief negotia-
tor, Albert Sears, met privately with the Union's chief
negotiator, Edwin Lewinski, to discuss the remaining un-
resolved issues . By the end of that private meeting, the
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two negotiators had reached final agreement on all the
unresolved matters and engaged in a handshake, indicat-
ing that they had an agreement to take their negotiating
teams. Early in their private meeting, Lewinski handed
Sears a paper, dated 24 August, which was a notice stat-
ing, in essence, that from then on the Union would no
longer routinely agree that arrangements be made for a
court reporter to provide an official transcript in arbitra-
tion cases or to share the costs of any transcript prepared
at C & P's request. Sears testified that Lewinski handed
him the paper and said, "Bernie [C & P attorney Benard
Dworski] will love this." Sears took the paper to
Dworski without reading it, thinking that it was a joke.
After their handshake signifying final agreement,
Lewinski handed Sears a second paper with the same
statement as the one he had previously given Sears, but
including Lewinski's signature, saying, "Oh, I forgot to
sign the first one." Sears then read the statement and re-
alized it was not a joke. As the negotiating teams were
assembling together to finalize the agreement, Sears
called Lewinski aside, handed him the paper, and asked
him to withdraw it, saying that all it would do would be
to complicate the negotiations. Lewinski took back the
notice without comment and entered the room where the
parties proceeded to finalize their agreement. By letter
dated 29 August 1983, the Union transmitted the same
notice concerning arbitration transcripts to the C & P.
The Company responded by letter of 2 September 1983
in which it insisted that the former practice of the parties
continue unless waived by mutual agreement and stated
if the Union failed to continue the past practice, the
Company would decline to arbitrate cases until a defini-
tive ruling on the parties' rights was issued by the Board
or the courts.
In October 1983, the Union implemented its new
policy of not agreeing to the preparation of an official
transcript and not sharing the cost of transcripts pre-
pared at C & P's request. Since that time, the parties
have agreed on an interim practice whereby C & P ar-
ranges for the presence of a reporter and the preparation
of an official transcript for the arbitrator and one for its
own use. The Union is given access to one of the tran-
scripts at the Company's premises for use in preparing its
brief to the arbitrator. C & P bears the full cost of the
reporter and the official transcript, subject to recoup-
ment in this preceeding.
Analysis and Conclusions
I. THE MOTION TO DEFER TO ARBITRATION
The Respondent contends that this is basically a dis-
pute over contract interpretation and has moved that the
Board should defer to the arbitration procedure agreed
on by the parties, citing its decision in Collyer Insulated
Wire2 and United Technologies.3 The General Counsel
and C & P oppose this motion.
In Collyer, the Board announced a policy whereby in
appropriate cases it would defer to contractual dispute
resolution machinery culminating in final and binding ar-
2 192 NLRB 837 (1971)
8 268 NLRB 557 (1984)
bitration. I find that this is not one of those cases. The
Board excepts from its Collyer policy cases in which the
aggrieved party cannot compel binding arbitration.4 In
the present case , C & P has no right under the collec-
tive-bargaining agreement to invoke binding arbitration;
consequently, there is no agreed-upon mechanism to re-
solve the dispute. Although the Union is willing to
waive any procedural defects that might prevent this
matter from being arbitrated, this would not result in the
parties' abinding by their agreed-upon dispute-resolution
system, but would fundamentally alter this agreement by
relegating C & P to a system to which it has not agreed
and by empowering the Union to dictate in which dis-
putes C & P would be given access to the system.
Deferral is not appropriate here for a second reason.
The principal issue in this case in not one of contract in-
terpretation, but the statutory issue of whether the prepa-
ration, use and cost-sharing of arbitration hearing tran-
scripts are mandatory subjects of bargaining. "They are
legal questions concerning the National Labor Relations
Act, which are within the special competence of the
Board rather than of an arbitrator."5 Further, an arbitra-
tor's decision that the preparation, use, and cost-sharing
of transcripts were required by the contract, would not
resolve the statutory issue of whether the Union violated
Section 8(d) of the Act, in the absence of a determination
that these were mandatory subjects of bargaining.6 The
Respondent's motion for deferral is denied.
H. ALLEGED VIOLATIONS OF SECTION
8(A)(5) AND (D)
A. Mandatory v. Nonmandatory Subjects of
Bargaining
All parties agree that this case turns on the issue of
whether the preparation, use, and cost-sharing of official
transcripts in nonexpedited arbitration hearings constitute
mandatory subjects of bargaining under Section 8(d) of
the Act. By approaching this issue from different per-
spectives, both sides are able to put forth significant au-
thority in support of their positions. The General Coun-
sel and Charging Party point to the fact that grievance
arbitration provisions for resolving disputes arising under
collective-bargaining agreements are mandatory subjects
of bargaining and argue that the essential components of
the grievance arbitration process are, likewise, mandato-
ry. The Respondent, on the other hand, argues that con-
tractual grievance resolution is part of the collective-bar-
gaining process and that the Board has found the specific
issue of recordation of bargaining sessions to be a non-
mandatory subject of bargaining. After considering the
parties' positions and the authorities on which they are
based, I find that of the General Counsel and Charging
4 E g., Punting Pressmen Local 13 (Observer Newspapers), 217 NLRB
576 (1975); Communications Workers Local 1197 (Western Electric Co),
202 NLRB 229 (1973), Tulsa-Whisenhant Funeral Homes, 195 NLRB 106
(1972).
5 Printing Pressmen Union 252 (R. W. Page Corp.), 219 NLRB 268, 270
(1975)
6 See Chemical Workers Local I v Pittsburgh Glass, 404 U S. 157
(1971).
COMMUNICATIONS WORKERS (C & P TELEPHONE) 81
Party to be the more persuasive and applicable to the
present case.
The parties are in agreement that grievance arbitration
provisions settle a term or condition of employment and
are mandatory subjects of bargaining.? It follows that
matters that are essential components of the grievance
arbitration process and govern the specific way it is to
function should also be considered mandatory.8 Accord-
ingly, the Board has held, as mandatory subjects of bar-
gaining , various aspects of the grievance/arbitration
process, including: the method of selecting arbitrators,9
restrictions on legal actions to enforce arbitration
awards,) ° the scope of arbitration,) 1 plant access by
union officials handling grievances, 12 time limits for
filing grievances, 13 and the form in that grievances are
submitted.14
In Chemical Workers Local 29 (Morton-Norwich Prod-
ucts), 15 the Board considered a question somewhat simi-
lar to that in the present case. The parties had a long
collective-bargaining relationship and for the previous 10
years had an established practice of holding monthly
meetings to discuss problems and second-step grievances.
The Board found that the union violated Section 8(b)(3)
and (d) of the Act by, during the term of the existing
collective-bargaining agreement , insisting that it be al-
lowed to tape record these meetings and refusing to dis-
cuss grievance unless recording was permitted, whereas
the practice had always been that the parties would take
whatever handwritten notes they needed. In so holding,
the Board necessarily found that the question of whether
tape recording could be a part of the grievance resolu-
tion process was a mandatory subject of bargaining.
The Respondent relies on Board cases holding that the
question of verbatim recording of bargaining sessions is a
nonmandatory subject of bargaining . In Bartlett-Collins
Co.,16 during negotiations with a newly certified union,
the employer insisted to impasse on the presence of a
court reporter to make a verbatim record of all bargain-
ing sessions as a precondition to any further barganing.
The Board stated: "[W]e now conclude that the demand
for the presence of a court reporter during negotiations
is not a mandatory subject of bargaining, and that either
party's insistence to impasse on this issue is, accordingly,
a violation of the Act." 17 In reaching this conclusion,
the Board pointed out that recording negotiations does
not fall within "wages, hours, and other terms and condi-
tions of employment," but is a "threshold matter, prelim-
inary and subordinate -to substantive negotiations" 18 and
7 See, e.g., Bethlehem Steel Co., 136 NLRB 1500 (1962); US Gypsum
Co, 94 NLRB 112 (1951); NLRB v. Independent Stave Co., 591 F.2d 443
(8th Cir. 1979).
8 See Electrical Workers UE v. NLRB, 409 F.2d 150 (D C. Cir. 1969)
9 Independent Stave Co., 248 NLRB 219 (1980)
10 Star Expansion Industries, 164 NLRB 563 (1967).
11 Mayes Bros, 145 NLRB 181 (1963)
12 Granite City Steel Co., 167 NLRB 310 (1967)
Is Guerdon Industries , 217 NLRB 1018 (1978).
14 Southwestern Electric, 274 NLRB 922 (1985).
Is 228 NLRB 1101 (1977)
should be accorded the status and attendant characteris-
tics of a nonmandatory subject of bargaining. The Board
went on to state:
As it is our statutory responsibility to foster and en-
courage meaningful collective bargaining, we be-
lieve that we would be avoiding that responsibility
were we to permit a party to stifle negotiations in
their inception over such a threshold issue. [Foot-
note omitted.]' 9
In Bakery Workers Local 455 (Nabisco Brands), 20 the
Board found that a union violated Section 8(b)(3) of the
Act by insisting, in the face of the employer's objections,
that it be allowed to tape record bargaining sessions and
other contractually required meetings as a condition for
meeting and bargaining with the employer, notwithstand-
ing the fact the parties had a longstanding practice of
taping such meetings. The Board affirmed the adminis-
trative law judge's ruling, based on Bartlett-Collins Co.,
supra, that the taping of such meetings was a nonmanda-
tory subject of bargaining and that the union could not
insist on continuing this practice over the employer's ob-
jections.
Neither of these cases involved recordation of arbitra-
tion hearings. Despite the fact that the "contractually re-
quired meetings" in Nabisco Brands involved third-step
grievance meetings , it appears that the Board's focus in
both cases was the adverse affect it found that recording
had on the collective-bargaining process. In Bartlett-Col-
lins, the Board specifically noted "that many experts in
the field of labor relations have expressed the opinion
that the presence of a reporter during contract negotia-
tions has a tendency to inhibit the free and open discus-
sion necessary for conducting successful collective bar-
gaining."21
Despite the Respondent's effort to equate the process
of collective bargaining with that of arbitration, there are
clear differences. The former involves an attempt by the
parties to reach agreement by means of negotiation, per-
suasion, and accommodation, in which the free flow of
ideas in an open, free discussion is essential . It is this end
the Board was seeking to facilitate in its decisions in
Bartlett-Collins and Nabisco Brands. The arbitration proc-
ess, however, comes into play after the parties' attempts
to negotiate a solution to a problem have failed. It is an
adjudicatory-tape proceeding in which a formal adver-
sarial hearing produces a record on which a neutral arbi-
trator makes findings of fact and conclusions of law. The
end of producing the formal record is served rather than
inhibited by the presence of a reporter and preparation
of a verbatim transcript. Further, questions concerning
the preparation, use, and cost-sharing of such transcripts
are not preliminary, threshold matters, but are part of the
substantive negotiations by which the parties determine
the type of arbitration procedure they will operate
under. Consequently, the reasoning underlying Bartlett-
Collins and Nabisco Brands is inapplicable.
Is 237 NLRB 770 (1978). ' Ibid.
17 Id at 772 20 272 NLRB 1362 (1984)
18 Id at 773 21 237 NLRB at 773 fn. 9
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I conclude that inasmuch as questions concerning
preparation, use, and cost-sharing of transcripts of arbi-
tration hearings are substantive components of the par-
ties' grievance arbitration procedure they are mandatory
subjects of bargaining.
B. Past Practice of the Parties
The Respondent correctly points out that there is no
express provision in the collective-bargaining agreement
requiring the preparation, use, and cost-sharing of an of-
ficial transcript of nonexpedited arbitration hearings. The
General Counsel contends, however, that the consistent
past practice of the parties over the more than 30-year
history of their contractual relationship makes this a re-
quirement of the contract.
The record establishes that a reporter has been present
at every nonexpedited arbitration hearing conducted
under the parties' successive contracts and that an offi-
cial transcript was prepared in all but one case in which
counsel for the parties mutually agreed that it need not
be prepared. Throughout the course of their contractual
relationships, both the employer and the Union have
taken responsibility for making arrangements for arbitra-
tion hearings and the services of a court reporter have
routinely been engaged without prior discussion between
the parties in every case. The cost of the court reporters
and the official transcripts of the hearings were routinely
shared by the parties prior to the present controversy
pursuant to the contractual provision requiring sharing
the costs of the arbitration procedure.
Although in January 1982 the Union announced that it
would no longer agree that arrangements be made for a
court reporter to provide an official transcript, it did not
implement that position but, thereafter , negotiated an ex-
perimental agreement with AT & T which modified the
use of court reporters and transcripts in nonexpedited ar-
bitration cases with six specified AT & T subsidiaries. As
a part of that agreement , it was explicitly stated that
with respect to all the other subsidiaries, including C &
P, "the parties will continue to follow the practice and
procedures that were in effect prior to January, 1982."
Further evidence that the parties recognized their prac-
tice as requiring the preparation and use of an official
transcript at nonexpedited arbitration hearings is found in
the contractual provision pertaining to expedited arbitra-
tion hearings, added in 1977, which expressly prohibits
the use of transcripts in such hearings . In bargaining for
the current contract, the Union unsuccessfully tried to
expand the type of cases covered by the expedited arbi-
tration procedure.
In Morton-Norwich Products, supra, the Board held that
a union's insistence on tape recording grievance meetings
was a violation of Sections 8(d) and 8(b)(3) of the Act,
where over a period of years the parties had established
a practice of not making verbatim transcripts of such
meetings .The Board stated:22
The established practice has been for the Employer
and the Union to take whatever notes they deemed
necessary. This method of operation established by
29 228 NLRB at 1101
mutual consent over periods of many years became
part of the conditions of employment which are not
subject to change during the contract term other
than by mutual agreement . By its insistence on re-
cording the grievance sessions and refusal to partici-
pate in grievance processing unless it was permitted
to record the discussions , Respondent attempted to
change the implied terms of the collective -bargain-
ing agreement and has in effect terminated the proc-
essing of employee grievances for which the collec-
tive-bargaining agreement provides.
Similarly, in Southwestern Electric,23 the Board found
that an employer violated Section 8(d) and Section
8(a)(5) by refusing to process a grievance unless it was
put in writing where the established practice had been
that grievances need not be written.
I find that in the present case the parties had a long,
consistent practice of requiring the preparation , use, and
cost-sharing of an official transcript of their nonexpedit-
ed arbitration hearings which was an implied term of the
grievance arbitration provisions of their collective-bar-
gaining agreement. This practice being one that the par-
ties had mutually agreed on, it could not be altered
during the contract term except by mutual consent. The
Respondent's announced unilateral refusal to continue
this practice threatened to nullify the grievance arbitra-
tion provisions of the agreement as the Employer would
not agree to the change in procedure . I, therefore, con-
clude that the Respondent 's action violated Section 8(d)
and constituted a violation of Section 8(b)(3) of the Act.
Nothing in Milwaukee Spring24 or Boeing Co. v.
NLRB,25 relied on by the Respondent, compels a con-
trary conclusion.
The Respondent's argument that rule 21 of the Volun-
tary Labor Arbitration Rules of the American Arbitra-
tion Association, which are incorporated into the collec-
tive-bargaining agreement , gives it the option to refuse to
order and share the cost of preparation of official hear-
ing transcripts is not persuasive. Although the Respond-
ent contends that the parties ' past practice was in ac-
cordance with rule 21, this is not the case. Rule 21 states:
Any party may request a stenographic record by
making arrangements for same through the AAA. If
such transcript is agreed by the parties to be, or in
appropriate case determined by the Arbitrator to be,
the official record of the proceeding, it must be
made available to the Arbitrator and to the other
party for inspection, at a time and place determined
by the Arbitrator. The total cost of such record
shall be shared equally by those parties that order
copies.
However, the parties have never made arrangements for
the stenographic record through the AAA and have
always equally shared the cost of the official transcripts
even when the Union did not order a copy. The parties'
28 274 NLRB 922 (1985)
24 268 NLRB 601 (1984)
as 581 F.2d 793 (9th Cir 1978)
COMMUNICATIONS WORKERS (C & P TELEPHONE)
past practice has likewise deviated from AAA, rule 13,
concerning filing the name of the arbitrator with AAA,
rule 16 , concerning mailing a notice of appointment to
the arbitrator, and rule 19, which provides that the arbi-
trator shall fix the time and the place for the hearing. All
this supports the General Counsel's contention that the
AAA rules do not govern the entire arbitration proce-
dure but are incorporated for the limited purpose of gov-
erning the arbitrator 's actual conduct of the arbitration
hearing. In any event, nothing in rule 21 precludes the
parties from mutually agreeing on the preparation, use,
and cost-sharing of hearing transcripts as they have done
for more than 30 years or requires that their consistent
past practice be disregarded. Equally unavailing is the
Respondent 's contention that the "zipper clause" in the
parties' collective-bargaining agreement prevents any
fording that the past practice of the parties' created a
binding contractual obligation. Article 41 of the collec-
tive-bargaining agreement provides that the parties are
not bound by any understanding or agreement modifying
the agreement or covering conditions not contained in
the agreement which are not in writing and signed by
the parties. In the present case, the past practice in ques-
tion is not extrinsic but serves to define the provisions in
the collective-bargaining agreement concerning griev-
ance arbitration.
The Respondent's final contention is that it gave the
Employer notice of its intention to change the estab-
lished practice concerning preparation, use, and cost-
sharing of arbitration hearing transcripts and by failing to
request bargaining C & P waived its rights to complain
about the Union's failure to bargain on this matter. I find
that the facts do not support the Respondent's position.
When the Union gave C & P notice on 27 January 1982
that it intended to change the practice concerning arbi-
tration transcripts 5 days later, C & P objected in writing
and orally in a meeting between counsel for the parties.
C & P was under no obligation to bargain about this
matter during the term of the existing agreement and,
having refused to do so, the Union was not free to insti-
tute a unilateral change . 26 In apparent recognition of this
fact, the Union did not implement its proposed change in
practice on 1 February 1982 as it had proposed to do.
Thereafter, in July 1982, the Union and AT & T nego-
tiated a supplemental agreement providing for an experi-
mental trial program dispensing with transcripts in cer-
tain arbitration cases involving six AT & T subsidiaries,
not including C & P. That supplemental agreement ex-
pired at the same time as the existing collective-bargain-
ing agreement , in August 1983, and specifically provided
that the existing practice concerning arbitration tran-
scripts would remain in effect with respect to all AT &
T subsidiaries not involved in the trial program. Under
the circumstances, the Respondent's argument that its 27
January 1982 notice to C & P and/or its supplemental
agreement with AT & T put the burden on C & P to
request bargaining has no merit. The 27 January notice
which C & P rejected was, in effect, a nullity. Its supple-
mental agreement with AT & T, which did not affect C
& P, cannot be considered as effective notice to C & P
26 C & S Industries , 158 NLRB 454 , 457 (1966).
83
that the Respondent was considering modifying its arbi-
tration transcript practice with C & P at some future
time.
During the negotiations with C & P for an agreement
to succeed that which expired on 7 August 1983 , the Re-
spondent proposed that the expedited arbitration provi-
sion be expanded, but did not specifically propose to
change the practice with respect to transcripts in nonex-
pedited arbitration hearings until 27 August 1983. On
that date, as negotiations were reaching a close, Union
Negotiator Lewinski handed C & P Negotiator Sears the
notice stating that the Union would no longer routinely
agree that arrangements be made for a court reporter
and official transcript of arbitration hearing or to share
the cost of any transcripts obtained by C & P. The evi-
dence is clear that later that same day, as the parties' ne-
gotiators were assembling to finalize the new agreement,
Sears asked Lewinski to withdraw the notice, lest it
complicate the negotiations , and Lewinski voluntarily
did so . Because Lewinski did withdraw the notice and
the Union did not serve it on C & P until after the new
agreement went into effect, it cannot be considered as
imposing on C & P an obligation to request bargaining
on the matter.
CONCLUSIONS OF LAW
1. Cheaspeake and Potomac Telephone Company,
Chesapeake and Potomac Telephone Company of Mary-
land, Chesapeake and Potomac Telephone Company of
Virginia and Chesapeake and Potomac Telephone Com-
pany of West Virginia are joint employers engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Communications Workers of America, AFL-CIO is
a labor organization within the meaning of Section 2(5)
of the Act and at all times material has been the exclu-
sive collective-bargaining representative of the nonsuper-
visory employees of the joint employers in the appropri-
ate unit, as described in article 1, section 2, of the cur-
rent collective-bargaining agreement.
3. By refusing to continue to agree to the preparation,
use, and cost-sharing of official transcripts of nonexpedit-
ed arbitration hearings conducted pursuant to the griev-
ance arbitration provisions of the collective-bargaining
agreement between the parties , the Respondent has uni-
laterally changed the terms and conditions of employ-
ment during the term of that agreement in violation of
Section 8(d) of the Act and has thereby violated Section
8(b)(3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent was engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(b)(3) of the Act, I shall recommend
that it be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the
policies of the Act. I shall recommend that the Respond-
ent be ordered to restore the status quo by rescinding its
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unilateral refusal to agree to the preparation, use, and
cost-sharing of official transcripts in nonexpedited arbi-
tration hearings in accordance with the agreement and
past practice of the parties and by reimbursing C & P for
its one-half share of the costs of preparation of nonexpe-
dited arbitration hearing transcripts incurred by C & P
since October, 1983.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed27
ORDER
The Respondent, Communications Workers of Amer-
ica, AFL-CIO, Washington, D.C.; Baltimore, Maryland;
Richmond, Virginia; and Charleston, West Virginia, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Refusing to bargain collectively with C & P by re-
fusing to agree to the preparation, use, and cost-sharing
of official transcripts of nonexpedited arbitration hearings
in accordance with the agreement and past practice of
the Respondent and C & P.
(b) In any like or related manner refusing to bargain
with C & P over the preparation, use, and cost-sharing
of nonexpedited arbitration hearing transcripts.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Abide by the terms of the collective -bargaining
agreement between the parties concerning the prepara-
tion, use, and cost-sharing of nonexpedited arbitration
hearing transcripts.
(b) Reimburse C & P for one-half of the costs of prep-
aration of all official transcripts of nonexpedited arbitra-
tion hearings incurred by C & P since October 1983.
(c) Post at its office, meeting halls and bulletin boards,
copies of the attached notice marked "Appendix."28
Copies of the notice, on forms provided by the Regional
Director for Region 5, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respond-
sr If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Furnish to the Regional Director for Region 5,
signed copies of the aforementioned notices for posting
by C & P in places where notices to employees are cus-
tomairly posted.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
28 If 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 Nation-
al 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
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
Cheaspeake and Potomac Telephone Company, Chesa-
peake and Potomac Telephone Company of Maryland,
Chesapeake and Potomac Telephone Company of Vir-
ginia, and Chesapeake and Potomac Telephone Company
of West Virginia, by refusing to abide by the terms of
our collective-bargaining agreement with them concern-
ing the preparation, use, and cost-sharing of official tran-
scripts of nonexpedited arbitration hearings.
WE WILL NOT in any like or related manner refuse to
bargain with the employers over the preparation, use,
and cost-sharing of official transcripts of nonexpedited
arbitration hearings.
WE WILL reimburse the employer for one-half of the
costs of preparation of all official transcripts of nonexpe-
dited arbitration hearings incurred since October 1983,
when we refused to continue to share such costs.
COMMUNICATIONS WORKERS OF AMERICA,
AFL-CIO