Continental Telephone Co. Of California

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1452 (N.L.R.B. 1985)

1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Continental Telephone Company of California and
International Brotherhood of Electrical Work-
ers, Local Union No. 543 . Case 31-CA-12687
29 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 22 July 1983 Administrative Law Judge Rus-
sell L. Stevens issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed limited exceptions
and a supporting brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally
implementing a new employee absence and tardi-
ness policy. We disagree, and find that the Union
waived its right to bargain concerning the policy
through the management-rights clause in the par-
ties' contract.
Each collective-bargaining agreement between
the Respondent and the Union' has contained the
following provision:
ARTICLE 4
MANAGEMENT PREROGATIVES
The Company has and will retain the right
and power to manage the plant, initiate action,
formulate and change the working schedules,
and direct the working forces, including the
right to hire, to suspend or discharge for just
cause, to promote, demote, lay off and transfer
its employees, subject to the provisions of this
Agreement, and to promulgate and from time
to time change the rules and regulations not
inconsistent with this Agreement governing
the conduct of employees both on and off
Company premises during the performance of
work assignments.
Before early 1976 the Respondent had an ab-
sence policy that was loosely administered and de-
pended mainly on supervisory discretion. On 25
March 1976 the Respondent instructed supervisors
concerning a new, more formal and precise policy
on absences and attendance, featuring a detailed
procedure the supervisors were to follow. The new
' The Union has represented the Respondent's employees since at least
1964
program contained six steps' absence inquiry, inves-
tigation, first discussion, second discussion, final
warning (with 3-day suspension), and termination.
The new policy was announced to employees in
May 1976 and became effective in June 1976. The
Respondent did not notify the Union in advance of
the announcement or implementation. In late June
1976 the Respondent's labor relations administrator
Sybil Pugh telephoned the Union's assistant busi-
ness manager Donna Vanderpool and advised her
that the new policy was in effect. That afternoon
Vanderpool and the Union's business manager Jack
Jenkins discussed the new policy with Pugh, but
did not contest Pugh's right to issue unilaterally the
new rules or request bargaining over them.
In June 1979 the Respondent again revised the
attendance policy without notice to or bargaining
with the Union. Pugh sent a copy of the new
policy to Vanderpool on 7 September 1979. The
Union did not request bargaining or in any way
take issue with the Respondent's unilateral imple-
mentation of the new policy.
In June 1982 the Respondent instituted a new
"Positive Discipline" program to deal with em-
ployees' infractions of its rules, including attend-
ance rules. The Positive Discipline concept is one
of general industrial application, and did not origi-
nate with the Respondent. On 15 June the Re-
spondent informed the employees of the new pro-
gram by posting a notice on the employees' bulletin
board briefly explaining Positive Discipline. The
Union was informed of the new program by letter
dated 14 June 1982, which stated that the program
was being instituted, outlined it, and invited ques-
tions. The Union did not challenge the Respond-
ent's unilateral implementation or request bargain-
ing.
On 17 June the Union's chief business manager
Carmack and his assistant Turnbaugh visited Pugh
to discuss an unrelated grievance. During the meet-
ing Pugh told Carmack about the Positive Disci-
pline program, answered his questions about it, and
stated that the Respondent was "going to school
their people locally." Carmack asked for a copy of
the Positive Discipline booklet and for a union ori-
entation from the Respondent concerning the
policy. On 8 September union representatives again
met with Pugh to discuss the Positive Discipline
program. Pugh informed them that the attendance
policy would have to be revised to bring it in line
with the program, he discussed some of the revi-
sions, and he said that the Union would be notified
after the policy was revised. The union representa-
tives did not request bargaining.
On 24 November the Respondent informed its
employees that a new attendance policy would be
274 NLRB No. 210
CONTINENTAL TELEPHONE CO
effective 1 December. Pugh sent a letter to Car-
mack dated 1 December, which stated that the pre-
vious policy had been rewritten to incorporate the
Positive Discipline concept, and which set forth
and defined certain standards The letter conclud-
ed: "As you can see, this policy has been distribut-
ed to all employees and bulletin boards Should
you have any questions concerning this policy,
please call." On 10 December the Union filed the
charge in the instant case
The judge found that the Respondent violated
Section 8(a)(5) and (1) by failing to give the Union
advance notice of its proposed changes in attend-
ance policy and by failing to allow the Union rea-
sonable time to request bargaining before imple-
menting the changes. We disagree, and find that
the Respondent's alteration of its attendance policy
did not violate its statutory duty to bargain. We
find merit in the Respondent's contention that the
Union's acquiescence in numerous unilateral
changes, coupled with the language of the con-
tract's management-rights section, establishes that
the parties agreed that management had the right
unilaterally to revise work rules such as the attend-
ance policy.
The parties, in effect, bargained about the
manner in which such changes were to be made
during contract negotiations and agreed that the
Respondent could take unilateral action in chang-
ing work rules.2 Indeed, the Respondent's actions
in 1982 were consistent with its past practice of
modifying its attendance policy in both 1976 and
1979. On neither of those occasions did the Union
question the Respondent's right to make the
changes, despite the fact that it processed numer-
ous grievances regarding what it viewed as the Re-
spondent's inconsistent administration of the policy.
Nor did the Union request bargaining when in-
formed 8 September that the attendance policy
would be revised and the Union would be notified
following the revision.
While the Union's past acquiescence in the Re-
spondent's unilateral changes alone would not pre-
clude it from bargaining about later changes, such
acquiescence viewed in light of the language of the
management-rights clause leads us to conclude that
the parties contemplated, and the Union agreed to
permit, unilateral action in this area.3 Because there
2 Ador Corp, 150 NLRB 1658 (1965)
3 Based on the Union's course of conduct here, Member Hunter would
find that the Union waived its right to bargain over certain unilateral
changes the Respondent made even in the absence of a management-
rights clause in the parties' contract
1453
is no evidence that the changes were "inconsistent
with this agreement" within the meaning of the
management-rights clause, we find that, in the cir-
cumstances of this case, the Respondent did not
violate the Act by unilaterally altering its attend-
ance policy. Accordingly, we shall dismiss the
complaint.
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
RUSSELL L STEVENS, Administrative Law Judge This
case was tried in San Bernardino, California, on June 1,
1983 1 The complaint,2 issued January 24, 1983, is based
on a charge filed December 10 by International Brother-
hood of Electrical Workers, Local Union No 543 (the
Union). The complaint alleges that Continental Tele-
phone Company of California (Respondent) violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations Act
(the Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent
On the entire record, and from my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is, and at all times material herein has
been, a corporation duly organized under, and existing
by virtue of, the laws of the State of California, with of-
fices and places of business located in Big Bear and Vic-
torville, California, where it is engaged in the business of
providing telephone service to customers. In the course
and conduct of its business operations, Respondent annu-
ally purchases and receives goods and services valued in
excess of $50,000 directly from suppliers located outside
the State of California, and annually receives income in
excess of $100,000
I find that Respondent is, and at all times material
herein has been, an employer engaged in commerce and
in a business affecting commerce, within the meaning of
Section 2(6) and (7) of the Act
11. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers,
Local Union No. 543 is, and at all times material herein
has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
' All dates are within 1982 unless stated otherwise
z As amended at trial
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ili. THE ALLEGED UNFAIR LABOR PRACTICES many other subjects. The instruction listed, and discussed
A. Background'
Respondent has several district facilities in California,
at which it operates telecommunications equipment and
services for business organizations and governmental
agencies Respondent has a total of approximately 19,000
employees, some of which are represented by labor orga-
nizations and some of which are not The employees in-
in detail, the six steps to be followed by supervisors
1st Step
2d Step
3rd Step
4th Step
5th Step
Absence Inquiry
Investigation
1st Discussion
2d Discussion
Final Warning(3-day
suspension)
Terminationvolved in this dispute are represented by the Union in 6th Step
the districts, and in the job classifications, set forth in the
current collective-bargaining agreement and its exhibits,
effective September 6, 1980, to September 6, 1983.4
Respondent and the Union have been parties to collec-
tive-bargaining agreements continuously since at least
1964, and those agreements have contained a manage-
ment 's rights provision which has been unchanged
throughout the bargaining history of the parties. That
provision provides as follows:5
ARTICLE 4
Management Prerogatives
The Company has and will retain the right and
power to manage the plant, initiate action, formu-
late and change the working schedules, and direct
the working forces, including the right to hire, to
suspend or discharge for just cause, to promote,
demote, lay off and transfer its employees, subject
to the provisions of this Agreement, and to promul-
gate and from time to time change the rules and
regulations not inconsistent with this Agreement
governing the conduct of employees both on and
off Company premises during the performance of
work assignments.
Prior to early 1976, Respondent had a policy relating
to all employee absences, which vested considerable au-
thority in supervisors so far as discipline was concerned
and which was rather loosely administered. Respondent
decided to adopt a formal and more exact policy on ab-
sences and on March 25, 1976, issued to its supervisors a
lengthy and detailed instruction concerning work attend-
ance of employees.6 The Union was not notified in ad-
vance , nor was the instruction discussed with the Union,
prior to its issuance or implementation . The instruction
discussed the nature of absences, the necessity of noting
and rewarding good attendance, procedures to be fol-
lowed by supervisors, the form to be used in reporting
absences , the factors to be considered (frequency of oc-
currence, total days of absence, cause of absence), and
a This background summary is based on stipulations of counsel, and on
credited testimony and evidence not in dispute
R Exh 1
5 Donna Vanderpool , a union steward from 1962 until she became one
of the Union 's assistant business managers on July 7 , 1975, and who has
been an assistant business manager from the latter date to the present,
credibly testified that the management 's rights provision was not dis-
cussed at any of the negotiation sessions she attended in 1964, 1965, 1966,
1967, 1970, 1977 , and 1980 The only contract negotiation period she did
not attend was the one in 1974
6 R Exh 2
The instruction became effective in June 1976 following
its announcement to the employees in May 1976. In late
June 1976 Sybil Pugh, who is Respondent's labor rela-
tions administrator and who has been employed by Re-
spondent 24 years, 17 of which have been in the person-
nel department, called Vanderpool on the telephone and
advised her that the instruction had been implemented
and that employees were covered by its provisions The
afternoon of the telephone call Vanderpool went to
Pugh's office, accompanied by the Union's then business
manager Jack Jenkins and the three of them discussed
the new policy. Pugh gave copies of the new instruction
to Vanderpool and Jenkins The three persons discussed
the entire instruction, paragraph by paragraph. The
Union did not contest Respondent's right unilaterally to
issue the instruction, nor did it complain about the in-
struction in any manner, or request that it be bargained.
Vanderpool and Jenkins asked that union stewards be
given full explanation of the new policy at the same time
as Respondent's supervisors,7 and Pugh agreed. Thereaf-
ter, approximately 13 meetings of coverage were held by
Respondent, and either Vanderpool or Jenkins, and
sometimes both of them, attended At no time was there
any complaint by the Union about, or discussion con-
cerning, Respondent having unilaterally issued and im-
plemented the new policy.
In June 1979 Respondent revised the 1976 instruc-
tions,8 and by letter of September 7, 1979, Pugh sent a
copy of the revised document to Vanderpool stating.
I have enclosed the revised attendance policy for
your information.
The basic content of the policy has not changed
and this revision is more for clarification of some
items. One change in the policy is that Step 5 (final
warning) no longer automatically includes suspen-
sion, however there may be extreme cases where a
suspension would be appropriate.
We have also reminded our supervisors to be
sure the attendance records are filled out properly
on both sides.
If you have any questions, please call Pat Hamb-
len, Wanda Gorman, or myself.
The Union did not contest Respondent's having unilater-
ally issued and implemented the changes, nor did the
7 This system of explaining matters of interest to gatherings of employ-
ees, including stewards , commonly is used by Respondent and is referred
to as "coverage "
8 R Exh 3
CONTINENTAL TELEPHONE CO
Union file any complaint about it, or request that the
matter be bargained.9
Approximately in June 1982 Respondent adopted a
new program for the disciplining of all its employees for
infractions of Respondent's rules, including those relating
to attendance, alcohol problems , insubordination, and
other matters The program is embodied in a formal
booklet entitled "Positive Discipline," 10 which is applied
generally throughout the industry and does not relate
solely to Respondent's business. The program is a
modern, progressive approach to discipline problems en-
countered by nearly all business concerns, and was de-
vised by an individual who has no relationship with Re-
spondent The booklet is a publication for sale by
McGraw Hill Company. Discipline for work absences is
not treated differently from discipline for other causes,
although the program specifically covers discipline for
work absences (p 141, et seq). The program provides,
inter alia•
Discipline Steps-There are three steps in the
Positive Discipline process-
Oral Reminder (Step One)
Written Reminder (Step Two)
Decision-making Leave (Step Three)
The steps represent increasingly serious con-
tacts with the employees designed to bring about
a change in performance or behavior.
Discharge-Discharge or termination is not a
step in the discipline process . Discharge is the step
taken:
After the employee has been through all the
disciplinary steps and no improvement has result-
ed.
When an employee commits an offense so seri-
ous that his or her continued employment cannot
be tolerated , regardless of any previous discipline
problems.
On June 15, 1982, Respondent's president D C Williams
notified employees of the program's adoption, by posting
the following notice on the employees' bulletin board:
Our Company has adopted the Positive Disci-
pline concept for Division -wide use; it will be im-
plemented no later than the end of this year after
supervisors have been trained in its procedures
We recognize that it is a very small minority of
employees who do exhibit discipline problems. We
acknowledge and are proud of the fact the majority
of our employees are of a very high calibre.
It is our belief that employees who do experience
disciplinary problems will respond and change
9 Vanderpool testified that , during the bargaining sessions of 1980, Re-
spondent 's Don Owens complained to the union representative that some
employees created problems by not coming to work for scheduled over-
time, and said that such failure should be accounted for on the employ-
ees' attendance records Vanderpool asked if Respondent was willing to
give the employees sick leave if the absence was caused by illness The
matter was not pursued by either side This testimony refers primarily to
overtime , is inconclusive and immaterial , and is given no weight
10 R Exh 12
1455
when they are treated in a way that maintains their
dignity and self respect The goal of the Positive
Discipline program is to help an employee keep his
job, not lose it; it seeks to correct problems rather
than punish the employees
This program will be used to deal with miscon-
duct, poor performance and absenteeism Although
the current attendance policy consisted of six steps,
the first two are disciplinary (absence inquiry and
investigation) and the last involves termination The
Positive Discipline process involves counseling ses-
sions (which are not disciplinary) and an oral re-
minder , a written reminder, and a one-day paid de-
cision making leave After established time frames
have passed, certain actions will become invalid
Once your supervisor has received this training,
he will notify you of the effective date of the transi-
tion to this program. At that time, if you have indi-
vidual or group questions , feel free to discuss this
program with him.
By letter dated June 14, 1982, Respondent's division
personnel manager R. D. McCloskey advised the
Union" that the program was being instituted, breifly
outlined the program , and invited questions concerning
the program. The Union did not contest Respondent's
unilateral implementation of the program , nor did it re-
quest bargaining concerning the program.
On June 17 Carmack and his assistant Turnbaugh vis-
ited Pugh in her office to discuss a grievance not related
to this controversy. Carmack noticed on the shelf a copy
of the positive discipline program and asked Pugh about
it Pugh told Carmack about the program, answered his
question about it, and stated that Respondent was "going
to school their people locally." Carmack asked for a
copy of the booklet, and asked for a union orientation
from Respondent concerning the policy Pugh agreed,
and the Union received a copy of the book later, for
which the Union paid. The relationship between the pro-
gram and Respondent's employee work attendance was
not discussed.12
On September 8 Carmack, Turnbaugh, and Vander-
pool met with Pugh in the Union's office Pugh had
come to the office to explain the positive discipline pro-
gram, and she brought with her a copy of the booklet.
The Union also had a copy. The program was discussed
in detail , and Pugh explained all items of the program
The meeting lasted 2 or 2-1/2 hours. During the course
of the meeting, there were several interruptions as one of
11 This letter was addressed to Ted Carmack, the Union's chief busi-
ness manager , who is responsible for dealing with Respondent Carmack
testified that he was not aware of R Exhs 10 and 11 at any time prior to
October or November 1982 That testimony is given no credence The
letter was addressed to Carmack, and the Union does not deny its re-
ceipt Further , Carmack's assistant Warren Turnbaugh testified that he
saw and read the exhibits on June 14 , and that he had heard rumors of
the matter prior to that date from some of the union members Vander-
pool testified that she heard about the program in May or June and said
Exhs 10 and 11 were received by the Union approximately June 14 Fi-
nally, Turnbaugh testified that, on June 17, he and Carmack discussed the
positive discipline program with Pugh, as explained infra
11 The facts related in this paragraph credibly were testified to by
Turnbaugh
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union representatives answered telephone calls on in-
struments that rang in the meeting room Pugh explained
that the program was a guideline for Respondent's man-
agement, and the union representatives, who knew that
the program was going to be implemented by Respond-
ent, asked that union stewards be included in all supervi-
sory coverages in order that the stewards and supervi-
sors would be told the same things Pugh advised the
union representatives that Respondent's attendance
policy would have to be revised in order to bring it into
line with the positive discipline program, some revision
of which she discussed, and that, after it was revised, the
Union would be notified 13
On November 24, Respondent posted a notice14 on all
bulletin boards to all employees, which stated, inter alia-
"On December 1, 1982, a new attendance policy will
become effective for all employees of Continental Tele-
phone of California." The notice described the new
policy, defined absences, and gave standards of perform-
ance for absences and tardinesses. The notice concluded
by stating that discipline for absences would be dealt
with under the positive discipline program, with which
the new attendance policy would be integrated.
By letter dated December 1, Pugh stated to Carmack.
Attached is a copy of our new attendance policy
which becomes effective December 1, 1982. Our
previous policy has been rewritten to incorporate
the concept of Positive Discipline and it also sets
forth certain standards and defines what does not
meet standards
As you can see, this policy has been distributed
to all employees and bulletin boards. Should you
have any questions concerning this policy, please
call 15
The Union did not respond to Respondent's letter of
December 1, and on December 10 filed the charge re-
ferred to supra.
B Discussion
I The management -rights clause
Absentee rules affecting employment tenure are a man-
datory subject of bargaining.16
Article 4 of the parties' collective-bargaining agree-
ment, quoted above , 17 is couched in general terms and
'a This sentence is based on the testimony of Turnbaugh and Pugh
Carmack testified that the question of how the attendance policy would
be affected by the positive discipline program did not arise, but that testi-
mony later was changed somewhat by Carmack , and is given no cre-
dence Vanderpool testified that she did "not recall" anything having
been said at the meeting concerning absences or tardinesses , but in view
of the testimony of Turnbaugh and Pugh , Vanderpool 's testimony on this
point is given no weight
14 G C Exh 4
15 Respondent ' s complete attendance policy, R Exh 14 , which is
much more detailed and lengthy than the one placed on the bulletin
boards, was adopted as a revised policy in November 1982
's See, e g, Southern Florida Hotel Assn , 245 NLRB 561 (1979)
As earlier noted , the wording of this clause has remained the same
throughout the bargaining history of the parties
does not, by its terms, refer to absences and tardinesses
of employees If a waiver of the Union's right to bargain
concerning absence and tardiness policies of Respondent
is to be found, it can be only by implication
It is well established, by the Board and courts, that
any claimed waiver of a right to bargain concerning
mandatory subjects of bargaining must be based on evi-
dence that is clear and unmistakeable 18 The agreement
here involved does not meet that test Respondent's uni-
lateral right to promulgate and change work rules and
regulations is no greater than the right claimed under
similar language involved in Merillot Industries, supra,
and Southern Florida Hotel Assn , supra, wherein no
waiver was found.
2. Past practice of the parties
Respondent argues, however, that past practice of the
parties established the waiver claimed by Respondent.
That practice includes the absence policies unilaterally
established in 197619 and 1979, discussed above, as well
as other matters. Respondent showed at trial that, be-
tween 1976 and 1982, the Union filed and processed at
least 26 grievances under the contracts of the parties, in-
volving Respondent's practice of administering the ab-
sentee policies it unilaterally had promulgated In most
instances the grievances were based on the Union's con-
tention that the policies were not being uniformally ap-
plied in all instances 20 Respondent also showed at trial
that, between 1976 and 1982 , it unilaterally adopted or
modified rules relative to dress and grooming , hiring,
conflicts of interest, safety, weapons on company proper-
ty, and alcohol and drug abuse The Union did not re-
quest to bargain concerning any of those rules, most of
which are included in Respondent's employee handbook,
nor was any grievance or NLRB charge filed in any in-
stance, challenging Respondent's right unilaterally to
promulgate or implement those rules. Finally, the Union
never requested to bargain concerning, nor did it file
grievances or charges because of, Respondent 's prepara-
tion and dissemination of its employee handbooks and re-
visions thereof.
However, the Board has held that past issuance of
rules without objection by, or request for bargaining on
the part of, the Union does not constitute a waiver of the
right to bargain 21 In enforcing the Board ' s decision in
1 s Ciba-Geigy Pharmaceuticals Divioon, 264 NLRB 1013 (1982), Meril-
lot Industries, 252 NLRB 784 (1980), Murphy Diesel Co, 184 NLRB 757,
enfd 457 F 2d 303 (7th Cir 1971), and Southern Florida Hotel Assn ,
supra
11 Prior to 1976 the absence policy was , as noted supra , administered
on an informal basis No testimony or -vidence was introduced to show
what the pre-1976 policy was, or how it was administered , other than to
show that it was administered by individual supervisors on a case-by-case
basis Respondent unilaterally determined that the informal system was to
be changed to a formal one, and Respondent unilaterally , without prior
notice to , or bargaining with, the Union made that change
20 Respondent argues that the Union never based the grievances on a
claim that Respondent did not have the right unilaterally to promulgate
absentee policies, and the Union argues to the contrary No finding on
this point is possible , since the grievances are not in evidence and this
point was not fully litigated
21 Ciba-Geigy, supra, Miller Brewing Co, 166 NLRB 831 (1967), enfd
408 F 2d 12 (9th Cir 1969)
CONTINENTAL TELEPHONE CO
Miller Brewing Co., supra, the Ninth Circuit stated, inter
alia.
Respondent next contends that because Union
failed to object to the previous unilateral issuance of
plant rules by other employers and because of the
clause in the collective bargaining agreement allow-
ing discharge for "cause," it has waived any right
to now request negotiations The first part of this
argument is unconvincing because it is not true that
a right once waived under the Act is lost forever
Pacific Coast Assn of Pulp & Paper Mfrs v.
N.L.R.B., 304 F 2d 760 (9th Cir 1962). Each time
the bargainable incident occurs-each time new
rules are issued-Union has the election of request-
ing negotiations or not An opportunity once reject-
ed does not result in a permanent "close-out;" as in
contract law, an offer office declined but then
remade can be subsequently accepted Cf Leeds &
Northrup Co v N.L.R.B., 391 F.2d 874 (3d Cir
1968), General Tel. Co. v. N.L.R.B., 337 F 2d 452
(5th Cir. 1964).
3 Request to bargain
Respondent also contends that the Union waived its
right to bargain concerning the absence policy, because
it failed to request bargaining.
It is well established that, if a labor organization re-
ceives timely notice that the employer intends to change
a condition of employment, it must promptly request that
the employer bargain concerning the change 22 For a
notice to be timely given by the employer, there must be
adequate time for the labor organization to respond to
the notice, and the question of adequacy depends on the
facts of each case 23
In this case, the fact that the Union never requested
that Respondent bargain concerning the new policy is
not in dispute Respondent's new positive discipline pro-
gram specifically included discipline and absences. On
June 15, 1982, Respondent notified its employees of the
program, and by letter dated June 14, 1982, with enclo-
sures, Respondent notified the Union of the program and
invited questions concerning it. Respondent told its em-
ployees and the Union, inter aha, "This program will be
used to deal with misconduct, poor performance and ab-
senteeism Although the current attendance policy con-
sisted of six steps, the first two are not disciplinary
and the last involves termination " On September 8 Re-
spondent met with union representatives at the union
office, and spent 2 or 2-1/2 hours discussing the pro-
gram As previously noted, Vanderpool and Carmack
testified that the subject of work attendance and absences
was not discussed at the meeting, but that testimony was
contradicted by Turnbaugh, and is not credited Turn-
baugh testified
She said-there was basically no discussion She
made a statement that the attendance policy was
22 Clarkkood Corp, 233 NLRB 1172 (1977), Hotel & Restaurant Em-
ployees Local 847 (Medicenter), 221 NLRB 670 (1975)
23 Ciba-Geigy Pharmaceuticals, supra Medicenter, supra
1457
currently being revised, that it wasn't completed
yet, that the company was going to bring it in line
with the positive discipline, with respect to the
steps involved for disciplining an employee, and
that when the company had finished their revision,
they would contact us and let us know And that
was the end of the statement
Pugh testified that her principal discussion at the meeting
involved the change of six steps of discipline to three
steps, and that she told the union representatives the ab-
sence policy revisions primarily were intended to make
application of procedures more nearly consistent in order
to meet the Union's frequent grievances based on incon-
sistent actions by various supervisors There is no dispute
about the fact that specific changes were not given to
the Union on September 8-Respondent stated that they
were being prepared, and would be given to the Union
at a later date.
Although Respondent gave all its employees 6 days'
advance notice that the new attendance policy would be
put into effect December 1, Respondent did not notify
the Union of the policy until its letter of December 1,
addressed to Carmack Certainly, the letter notice to the
Union was not timely Possibly it could be argued that
notice to the employees (including union stewards) was
notice to the Union, but such actual notice was not
shown at trial Clearly, timely notice to the Union that
would support a waiver of bargaining was not estab-
lished by Respondent On this point, Respondent's coun-
sel argues in his posttrial brief that this case should be
dismissed on the authority of Menllot Industries, supra,
but that case is quite different from the one herein In
Merillot, the employer gave copies of the new absentee
policy to union stewards 7 days in advance of implemen-
tation. Further, even after implementation of the rules,
the Union waited 4 months before filing a grievance.
Here, the Union did not see the rules prior to their im-
plementation, and filed a charge with NLRB almost im-
mediately upon seeing them
4. Nature of the changes
Respondent argues that the changes it made in the
new absence policy were minor, hence bargaining was
not required Pugh testified that there was no basic
change of policy, and that the principal changes were re-
duction of the number of steps taken in disciplinary pro-
ceedings and provision of supervisory guidelines to
ensure uniformity of treatment given to employees Van-
derpool provided some support of Respondent's argu-
ment by testifying that the basic pattern of disciplinary
steps remain the same now as it has been since 1976
Comparison of the new and old policies shows several
changes, both substantive and procedural. It is clear that,
although the positive discipline program dictated the ne-
cessity for alignment with Respondent's personnel
policy, the opportunity was taken simultaneously to for-
malize, expand, and change the personnel policy Re-
spondent did considerably more than just conform one
document with another. The changes included- (a) estab-
lishment of standards of performance for attendance; (b)
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
definition of various kinds of absences (including tardi-
ness); (c) establishment of guidelines for determining
compliance or noncompliance with standards; (d) de-
tailed provisions relating to incidental and miscellaneous
absences (or tardiness), (e) definition and treatment of
unexcused absences, (f) change in the number of permis-
sible absences, (g) treatment of failure to appear for
scheduled overtime work, and (h) changes in disciplinary
steps
In addition to the foregoing specific changes, Re-
spondent made it clear to employees and the Union that
the new policy, by reason of its exactness, its detailed ex-
position, and its completeness, had been given extensive
thought and thenceforth would assume an administrative
importance not previously apparent. That effect is one
that must be bargained 24
Respondent argues that it notified the Union in June,
and again during the meeting of September 8, that it in-
tended to issue a new personnel policy, but that fact is
irrelevant In the first place, the Union never had the
policy before it for consideration, prior to the date the
policy was placed in effect All it had was Respondent's
general statement of intent, which was inadequate basis
for a bargaining request requirement.25 That intent, as
expressed by Pugh to the Union, was to conform Re-
spondent's existing absence policy with the positive disci-
pline program Had Respondent done just that, possibly
Respondent's argument would be valid. However, Re-
spondent went much further, and made formal, a lengthy
and changed personnel policy. Since what Respondent
did was not the same as it stated would be done, the no-
tices it gave to the Union in June and September did not
set the stage for a possible waiver by the Union of its
right to bargain. The Union was misled into silence'26
24 See, e g, Armour Oil Co, 253 NLRB 1104, 1123 (1981)
25 Cf Stone Boat Yard, 264 NLRB 981 (1982)
26 There is no evidence of bad faith on Respondent 's part herein The
lengthy and apparently amicable relationship between Respondent and
the Union, and events at trial, make it appear that Respondent did not
intentionally mislead the Union However, fides is not controlling Sturde-
vant Sheet Metal Co, 238 NLRB 186 fn 1 (1978)
and did not discover until after the new policy was put
into effect, that the policy was broader than the positive
discipline program required Conformance with provi-
sions of the Act required that Respondent confront the
Union in advance, with its proposed changes and give
the Union a reasonable period of time within which to
react. That was not done, and a violation of the Act is
found
CONCLUSIONS OF LAW
1 The Respondent, Continental Telephone Company
of California, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers,
Local Union No. 543 is a labor organization within the
meaning of Section 2(5) of the Act
3. All employees employed by Respondent in the job
classifications listed in the current collective-bargaining
agreement between Respondent and the Union constitute
an appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been the
exclusive representative of the employees in the aforesaid
unit for purposes of collective bargaining within the
meaning of Section 9(a) of the Act
5 By unilaterally implementing on December 1, 1982,
an employee absence and tardiness policy and rules, Re-
spondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act
6 The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that Re-
spondent be ordered to cease and desist therefrom, and
take certain affirmative action designed to effectuate the
policies of the Act
[Recommended Order omitted from publication.]