Detroit Edison Co.

National Labor Relations Board - Board Decisions

Mar 4, 1993

310 N.L.R.B. 564 (N.L.R.B. 1993)

564
310 NLRB No. 88
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The second paragraph of the judge’s decision incorrectly states
that Case 7–CA–30042, among others, was severed from the above-
captioned cases. The case number referred to should be Case 7–CA–
30842. In his decision, the judge inadvertently states that the Re-
gional Director dismissed Case 7–CA–32491, when in fact the peti-
tion in Case 7–RD–2759 was dismissed. Additionally, we note that
James Mulrenin, the Respondent’s general director of union rela-
tions, is not described in the record as Macomb Division Manager
James Roosen’s ‘‘superior,’’ as the judge states. None of these errors
affects the resolution of the case.
No exceptions were taken to the judge’s finding that the Respond-
ent violated Sec. 8(a)(5) and (1) by dealing directly with employees
at the Harbor Beach facility when it sought their input and approval
during mandatory employee meetings concerning a proposal to alter
their job responsibilities and descriptions in exchange for an increase
in wages, without first presenting or discussing the matter with the
Union. Further, no exceptions were taken to the judge’s finding that
the Respondent did not unlawfully engage in direct dealing with em-
ployees at the Trenton Channel facility.
2 Accordingly, the Respondent is not warranted in claiming that
the General Counsel’s case with respect to the Marysville unit shows
no more than that the Respondent distributed an innocuous memo-
randum to Marysville employees that outlined its SPPO phaseout
proposal.
3 The Respondent’s unilateral attempt to phase out SPPOs was suc-
cessfully challenged by the Union through arbitration in 1988.
4 Hereafter all dates refer to 1991.
The Detroit Edison Company and Local 23, Utility
Workers Union of America, AFL–CIO. Cases
7–CA–32263, 7–CA–32460, 7–CA–32271, 7–CA–
32491, 7–CA–32710, and 7–CA–32778
March 4, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On July 31, 1992, Administrative Law Judge Thom-
as R. Wilks issued the attached decision. The Respond-
ent filed exceptions and a brief in support, and the
General Counsel filed a cross-exception and supporting
brief and a brief in response. The Respondent there-
after filed a reply.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, for the reasons stated below, and to adopt the
recommended Order.
1. The Respondent challenges the judge’s finding
that it violated Section 8(a)(5) and (1) by bypassing
the Union and dealing directly with employees at the
Marysville facility. Specifically, the judge found that
the Respondent unlawfully communicated to
Marysville employees a ‘‘sweetened proposal’’ for
phasing out the senior power plant operator (SPPO)
classification without first adequately presenting the
proposal to the employees’ bargaining representatives.
The Respondent asserts that the General Counsel failed
to prove a violation because he failed to adduce evi-
dence concerning bargaining at the Marysville facility
on the ‘‘SO/SPPO issue’’ as the parties refer to it. We
disagree. We find that the Union was not afforded any
meaningful opportunity to consider the ‘‘sweetened
proposal’’ before it was communicated directly to em-
ployees, because the evidence fails to show that the
sweetened proposal was previously offered by the Re-
spondent in negotiations with the Union.2
Through evidence adduced concerning the
Marysville facility, as well as the Trenton Channel fa-
cility, where the Respondent also wanted to phase out
SPPOs, the General Counsel established that the Re-
spondent had long desired to phase out the SPPO clas-
sification at its facilities by promoting employees in
that classification to senior operators (SO), and by
moving employees who declined promotions into the
power plant operator position, with grandfathered pay
and benefits.3 The SO/SPPO issue was ultimately ex-
cluded from ‘‘main table’’ negotiations for a new con-
tract between the Respondent and Local 23 (the Union)
in 1989, and the parties agreed that bargaining on the
subject would take place at the unit/facility level.
Thereafter, in January 1991,4 Marysville Unit Chair-
man David Maynard asked for details about the power
plant operator classification’s duties and responsibil-
ities. The Respondent answered his questions in a
memorandum dated January 17 that included a descrip-
tion of some of the effects of the desired SPPO phase-
out. There is no evidence that the issue was broached
again at Marysville until August, when Maynard asked
Plant Supervisor William Harrison to verify the rumor
that the Respondent was engaged in discussions con-
cerning phasing out the SPPO classification at its Tren-
ton Channel facility. As verification, Harrison gave
Maynard a copy of an August 21 memorandum that
the Respondent had distributed to Trenton Channel
employees. The memorandum outlined the Respond-
ent’s proposal for phasing out SPPOs at Trenton Chan-
nel and included certain job security guarantees.
In late August, while Maynard was at home on va-
cation, painting his house, Harrison brought him a
copy of a memorandum that the Respondent intended
to distribute to Marysville employees. The memo-
randum, which was very similar in text and format to
the memorandum distributed to Trenton Channel em-
ployees, states in relevant part that ‘‘[j]ob security pro-
visions would be added’’ to the Respondent’s earlier
proposal on the issue and describes ‘‘Productivity Im-
565DETROIT EDISON CO.
5 The judge found that the sweetened proposal was presented to
unit representatives at Trenton Channel in a manner that gave them
an opportunity to bargain about it before it was presented to Trenton
Channel unit employees, and that the Respondent, therefore, did not
engage in unlawful direct dealing with employees at that facility. As
noted, no exceptions have been taken to that finding. In any event,
no evidence establishes that Marysville unit representatives were
given such an opportunity.
6 On January 25, 1993, the Respondent filed a motion for continu-
ance and to reopen the record in the instant proceeding to receive
evidence it plans to adduce in an upcoming unfair labor practice
hearing in Case 7–CA–33818(1). The General Counsel filed an op-
position to the motion on February 3, 1993, and the Respondent
filed a reply on February 18, 1993. The evidence that the Respond-
ent refers to relates to the authenticity of the signatures on the em-
ployee petition on which the Respondent relied in withdrawing rec-
ognition from the Union as the representative of a unit of A-grade
employees. Because, as stated below, we do not rely on the judge’s
findings regarding the authenticity of those signatures in affirming
his finding that the Respondent unlawfully withdrew recognition, the
Respondent’s motion is denied.
7 Member Raudabaugh notes that there is a parallel between cases
involving a withdrawal of recogniton and cases involving union ob-
jections to a lost election. In both cases, there is a showing of em-
ployee disaffection from the union. And, in both cases, a question
can be raised as to whether the employer’s conduct tainted the dis-
affection. In his view, the same test should be applied to both. The
test for both should be whether the character and quantity of the em-
ployer’s conduct provide a reasonable basis for declining to accord
validity to the employee disaffection from the union. Accordingly,
he does not agree that the commission of an employer unfair labor
practice will almost always result in the overturning of an election.
Continued
provement Protection’’ and ‘‘Significant Plant Capac-
ity Reduction or Closure’’ guarantees related to job se-
curity. Maynard asked Harrison about the memoran-
dum’s reference to an attachment of questions and an-
swers, as there was nothing attached to the copy Har-
rison presented to him, and Harrison replied that it was
‘‘a list of questions that you already asked as far as
[SO/SPPO].’’ Although Maynard did not consent to
the distribution of the memorandum, the Respondent
distributed it to Marysville employees on September 3.
Significantly, Union President Manoogian testified that
the job security provisions had not previously been
proposed in connection with the SO/SPPO issue.
The Respondent attempted but failed to establish
that the attachment referred to above, a list of ques-
tions and answers concerning the SPPO phaseout, was
distributed along with the September 3 memorandum.
Implicit in the Respondent’s undertaking at the hearing
and in its arguments is the contention that the Re-
spondent and the Marysville unit representatives had
previously bargained about the SO/SPPO issue, and
that the September 3 memorandum presented no pro-
posals not previously bargained.
Viewing the issue in its entirety, we are faced with
uncontroverted evidence that the job security proposals
described in the memorandum to Marysville (and
Trenton Channel) employees were not made or dis-
cussed at main table negotiations. The September 3
memorandum, by its own terms, adds the job security
proposals. The chief unit representative for Marysville
was given a copy of the memorandum while at home
on vacation and painting his house, and it was distrib-
uted to unit employees a few days later without the
unit representative’s further involvement or consent.
The foregoing is sufficient to establish a prima facie
case of unlawful direct dealing. Even if the question
and answer attachment was distributed to employees
along with the memorandum, without more evidence,
that document fails to rebut the showing that job secu-
rity provisions were new and had not been presented
previously to Marysville unit representatives. Thus, the
Respondent failed to prove its defense. Inasmuch as
we agree with the judge that under the circumstances
the ‘‘sweetened proposal’’ was not adequately pre-
sented to Maynard or any other Marysville unit rep-
resentative, we affirm the judge’s finding that the Re-
spondent violated the Act as alleged.5
2. In affirming the judge’s finding that the Respond-
ent violated Section 8(a)(5) and (1) by withdrawing
recognition from the Union with respect to the rep-
resented A-grade employees at the Macomb facility,
we rely solely on the fact that the withdrawal occurred
in the context of an unremedied unfair labor practice
adversely affecting employee support for their bar-
gaining representative.6 The record establishes that the
Respondent unlawfully bypassed the Union and dealt
directly with Macomb employees when it distributed a
memorandum to them on October 22, seeking to ascer-
tain their personal preferences about the work station
each of them wished to be assigned to in connection
with a reorganization it planned to implement. The
memorandum instructed employees to submit their
first, second, and third relocation preferences to the
Respondent by October 31. Although the parties were
engaged in negotiations for an initial contract in the A-
grade unit, the Respondent did not notify the Union
about the work station preference memorandum prior
to its distribution to employees. On October 24, the
Union filed an unfair labor practice charge regarding
the solicitation of the employees’ work station pref-
erence.
For the reasons stated by the judge, we agree that
the foregoing conduct constitutes direct dealing with
employees in violation of Section 8(a)(5) and (1), and
that the conduct was not remedied by a conciliatory
letter given to Union President Manoogian on Novem-
ber 18—a letter not disseminated to the unit employ-
ees. Accordingly, we find that the Respondent was not
privileged to rely on an employee decertification-type
petition, signed by 16 of 30 A-grade unit employees
and presented to it on December 17, as a basis for
withdrawing recognition from the Union. It is well set-
tled that a withdrawal of recognition must occur in a
context free of unfair labor practices.7 Cannon Boiler
566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(The Board will set aside an election based on unfair labor practices
unless such practices are de minimis so that it is ‘‘virtually impos-
sible to conclude that they would have affected the results of the
election.’’ See Caron International, Inc., 246 NLRB 1120 (1979);
Super Thrift Markets, 233 NLRB 409 (1977).) Similarly, in Member
Raudabaugh’s views, an employer’s unfair labor practice would not
necessarily taint an employer’s doubt of union majority status in a
case involving a withdrawal of recognition. However, Member
Raudabaugh believes that the character and quantity of the unlawful
conduct in this case were sufficient to taint the Employer’s doubt.
Accordingly, he agrees with his colleagues that the withdrawal of
recognition was unlawful.
8 We note that a decertification petition in Case 7–RD–2759 was
filed by Macomb A-grade unit employee Ken Miller on October 31.
That petition eventually was dismissed by the Regional Director. It
was supported by only 10 signatures obtained either on October 22,
the same day that the Respondent solicited the employees’ work re-
location preferences, or on October 23. Further, although there is
evidence that in August Miller presented Macomb Division Manager
Roosen with a copy of a letter to the chairman of the board request-
ing withdrawal of recognition, the record does not establish that the
sentiments expressed there were shared by a majority of unit em-
ployees. Therefore, we can only conclude that whatever disaffection
employees may have felt toward the Union ‘‘came to a head’’ or
came to be widely shared only after the Respondent dealt directly
with them and thereby undermined the role of their collective-bar-
gaining representative in protecting their interests with regard to ef-
fects of a major relocation.
Works, 304 NLRB 457 (1991); Mental Health Serv-
ices, Northwest, 300 NLRB 926 (1990); Guerdon In-
dustries, 218 NLRB 658 (1975). The Respondent’s
8(a)(5) and (1) misconduct conveys to employees the
notion that they would benefit more, or receive greater
consideration, without union representation. Such con-
duct improperly affects that bargaining relationship and
precludes the Respondent from withdrawing recogni-
tion on the basis of a claimed good-faith doubt.8
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Detroit Edison Company,
Detroit, Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Mark D. Rubin, Esq. and Gary Saltzgiver, Esq., for the Gen-
eral Counsel.
Stanley H. Slazinski, Esq. and Jane K. Souris, Esq., of De-
troit, Michigan, for the Respondent.
George G. Manoogian, President, Local 223, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. The very
first unfair labor practice charge, in a series of such charges
ultimately consolidated herein, was filed on August 3, 1990,
in Case 7–CA–30842 by the Charging Party Union, Local
223, Utility Workers Union of America, AFL–CIO, against
the Respondent, The Detroit Edison Company. Thereafter,
other charges were filed by the Union and complaints were
issued by the Regional Director who, on February 11, 1992,
issued the final consolidated complaint which included not
only the above-captioned cases but also Cases 7–CA–30842,
7–CA–31160, and 7–CA–32463. That trilogy of cases in-
volved alleged violations of Section 8(a)(5) of the Act en-
compassing in major part bargaining information demand
issues involving several of a multitude of well over 30 col-
lective-bargaining units, all of which the Union is the des-
ignated agent. These cases are referred to as the information
request cases. The balance of issues involve 8(a)(5) allega-
tions of direct dealing, unilateral actions affecting pay or
working conditions in several units and the withdrawal of
recognition in one unit.
On March 27, 1991, the Acting Regional Director issued
an order severing certain cases, approving withdrawal of
charges and dismissing complaints in Cases 7–CA–30842, 7–
CA–31160, and 7–CA–32463, on the grounds of a non-
Board adjustment of those cases.
Timely answers denying the alleged violations of law were
filed on all cases. Pursuant to the February 11, 1992, consoli-
dated complaint, the issues raised therein were litigated at
trial before me on March 30 and 31 and April 1, 1992, at
Detroit, Michigan.
At the trial, the outstanding consolidated complaint was
amended to remove the issues raised by the information re-
quest cases paragraphs 17–27 and all references were thereby
deleted. However, the General Counsel moved to amend the
consolidated complaint to join a new complaint based upon
a charge filed in Case 7–CA–32934(1) involving an informa-
tion request in still another bargaining unit represented by
the Union. Respondent objected to consolidation which
would have necessitated an adjournment of the hearing. Hav-
ing ascertained that there was no or insufficient commonality
of bargaining unit, Respondent agents, union agents, and that
the issues were not related to those litigated herein, I con-
cluded that consolidation would have impeded the expedi-
tious resolution of the issues herein and were contrary to the
interests of judicial economy. Accordingly, I denied the mo-
tion for consolidation.
After the parties presented evidence relevant to the remain-
ing issues, they were provided with opportunity to argue
orally, but they elected to file written briefs. Because of ex-
tensions of time granted, briefs were not received by me
until June 30, 1992.
On the entire record and from my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a corporation duly organized under and exist-
ing by virtue of the laws of the State of Michigan, has main-
tained its principal office and place of business at 2000 Sec-
ond Avenue, Detroit, Michigan (the Detroit place of busi-
ness). Respondent is, and has been at all times material here-
in, a public utility engaged in the production, sale, and dis-
tribution of electrical power. Respondent maintains several
facilities in the State of Michigan. Its facilities located at
4695 West Jefferson Avenue, Trenton, Michigan (the Tren-
ton Channel Power Plant); at 755 North Huron Avenue, Har-
bor Beach, Michigan (the Harbor Beach Power Plant); at
567DETROIT EDISON CO.
15600 19 Mile Road, Mount Clemens, Michigan (the
Macomb Division); and at Gratiot Boulevard, Marysville,
Michigan (the Marysville Plant) are the only facilities in-
volved in this proceeding. During the calendar year ending
December 31, 1990, which period is representative of its op-
erations during all times material hereto, Respondent, in the
course and conduct of its business operations, derived gross
revenues in excess of $500,000 and purchased and caused to
be transported and delivered to its various Michigan facilities
goods and materials valued in excess of $100,000, of which
goods and materials valued in excess of $50,000 were trans-
ported and delivered to its Michigan facilities directly from
points located outside the State of Michigan.
It is admitted, and I find, that Respondent is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
It is admitted, and I find, that the Charging Party Union
is, and has been at all times material herein, a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Harbor Beach Unit
The Harbor Beach Power Plant unit consists of operating
and maintenance employees within Respondent’s production
department at its power plant in Mount Clemens, Michigan,
for which Respondent has been the designated employee bar-
gaining agent since 1968. At the time material herein, there
were 18 unit employees.
According to the uncontradicted testimony of John Luther,
the employee bargaining unit chairman at Harbor Beach, the
following sequence of events led to the meeting of seven unit
employees on August 20 and September 4, 1991, at which
it is alleged Respondent’s agent James Repp, superintendent
of the North Area plants, dealt directly with them concerning
conditions of employment. His account of what transpired
was not contradicted.
On August 20 at 9:30 a.m., Luther and six other unit em-
ployees were summoned to a meeting in the plant at which
they were addressed by Repp and by Plant Manager Robert
Socia. The employees were told that the North Area power
plants, which included Harbor Beach, were losing $50,000
annually with respect to the maintenance operations. Printed
leaflets entitled ‘‘Elements of an Expanded Maintenance
Journeyman Classification’’ were distributed which contained
the outlined highlights of a voluntary plan whereby the em-
ployees’ job functions and responsibilities would change and
be augmented in return for an increase in pay. Repp ex-
plained the plan directly to the assembled unit employees.
There had been no prior disclosure to the Union of the plan
or the intent to present such a plan to the unit employees.
At the end of his explanation of these proposed changes,
Repp addressed the group as one and asked how they ‘‘felt’’
about it, and stated ‘‘I’d like you to get behind us; are you
for it or against it?’’ Hearing no response, he told the group
to discuss the proposal and to direct their opinions to Socia.
Luther participated as one of the group and was not ad-
dressed individually or as a union representative.
On September 4, Luther heard rumors from other employ-
ees that another such meeting was impending. He directly
questioned Socia who admitted such intent and rebuffed
Luther’s protestation that the Local Union should be notified
by asserting that he did not want a ‘‘confrontation.’’ Luther
said that he did not want to attend unless the Local Union
had been notified and authorized his attendance. Socia told
him that he was free to attend or not attend as he wished.
On the morning of September 5, Socia told Luther that it had
been decided by the Company that he must attend. Accord-
ingly, Luther attended a meeting later that day in Repp’s of-
fice with about the same number of unit employees.
At the September 5 meeting, Repp distributed a multipage
printed document entitled ‘‘Multi-Craft Agreement.’’ Like
the earlier handout, this document had not previously been
provided to Luther or to the Union. Repp proceeded to ex-
plain to the unit employees how the content of the document
would change their job description and solicited their opin-
ions of it. Luther and several other employees raised objec-
tions to the content, but Repp told the group to read it care-
fully, to discuss it amongst themselves and to give their indi-
vidual reactions directly to Socia thereafter. There is no dis-
pute that the proposed plan would significantly affect the
unit employees’ job duties, responsibilities, and pay. Before
the end of the meeting, Repp told the employees that Re-
spondent would evaluate their suggested changes to the plan
and incorporate them into a proposal that would thereafter be
submitted to the Union.
Section 9 of article VIII of the collective-bargaining agree-
ment between Respondent and the Union provides with re-
spect to ‘‘Job Description, Job Analyses and Job Evaluation’’
that ‘‘management reserves the exclusive right to determine
the duties of any classification.’’ Relevant portions of article
VIII of the Labor Agreement also provides that management
must give notice only as defined by the Labor Agreement to
the Union after the decision has been made by the Company
to establish a new job. Section 9(b) states in part:
Should the Company contemplate changes in an ex-
isting job description or group of job descriptions, the
Company will advise the unit of such changes at least
thirty (30) days prior to the proposed effective date of
such changes and, during such period, enter into nego-
tiation in an attempt to reach agreement respecting such
changes.
Arbitration decisions have supported Respondent’s position
that it reserves ‘‘broad contractual freedom to modify, sub-
tract from, or add to the classification structure.’’ The ‘‘Ex-
panded Maintenance Journeyman Classification’’ plan was
aborted and no effective date was ever reached.
Trenton Channel Unit
Since 1943, the Union has been the designated bargaining
agent for a unit of production and maintenance employees at
its power plant in Trenton, Michigan, for whom it has nego-
tiated collective-bargaining agreement coverage.
For some years, Respondent has been attempting, through
negotiations with the Union, to phase out the job classifica-
tion of Senior Power Plant Operator, i.e., SPPO, by promot-
ing some to the senior operator classification, i.e., S.O. and
for those declining promotions to the power plant operator
568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
position, i.e., PPO, but grandfathered at their current SPPO
benefit and pay level. The Trenton Channel Power Plant su-
perintendent, Tullio H. Bilenchi, testified that prior to 1989,
Respondent had determined that it had the right to do so uni-
laterally but that an adverse arbitration decision had com-
pelled it to negotiate the issue with the Union. Respondent
had unsuccessfully sought agreement with the local bar-
gaining chairman in 1988 before its attempt at unilateral ac-
tion. Pursuant to the arbitration decision, Respondent again
futilely sought agreement on the SPPO issue during the June
1989 ‘‘main table’’ collective-bargaining negotiations and in
late 1989 negotiations with the Trenton Channel Power Plant
unit representatives headed by bargaining agent chairman
Henry Hicks and other North Area units. It is not disputed
that negotiations with the Trenton Channel unit committee
came to a halt, i.e., ‘‘a dead issue,’’ when the unit members
instructed their representatives not even to discuss the issue
with Respondent. Bilenchi admitted his awareness of the ada-
mant position of the unit members and their clear instruc-
tions to their representatives.
Bilenchi testified that on some unspecified date and in
some unspecified context, he and employee bargaining unit
Vice Chairman Patrick Champion, on Champion’s initiative,
discussed the possibility of a renewal of negotiations but
with a modified proposal that would include a job-security
provision. Bilenchi testified in a similar general fashion to a
subsequent conversation with Hicks wherein Hicks confirmed
Champion’s indication of a willingness to renew negotiations
of the SPPO issue. According to Bilenchi, he and Hicks re-
viewed the history of that issue and agreed to place it on an
agenda for a regularly scheduled management-union meeting
set for August 15, 1991.
Bilenchi testified that he appeared at or near the end of
the August 15 meeting between senior representatives of Re-
spondent and a bargaining unit committee, inclusive of Hicks
and Champion. According to Bilenchi, he addressed the
union committee with respect to the SPPO issue and stated
that it was his understanding that there was ‘‘considerable
sentiment among bargaining unit members to explore the
possibility of resurrecting Respondent’s SPPO proposal but
with a job-security modification. In generalized terms,
Bilenchi testified that when they discussed how to move
along on such a negotiation, he was reminded of the past in-
struction of the unit members, as embodied in a written peti-
tion to their representatives, which prohibited such negotia-
tion. Bilenchi testified that he suggested that the unit bar-
gaining committee should put the question of negotiation re-
newal to a vote by the unit member.
Continuing with his generalized narration, Bilenchi
claimed that in response to his proposal at the August 15
meeting, the unit bargaining committee inquired as to what
kind of job-security provision the Respondent might have in
mind. He testified further that inasmuch as he had not as yet
formulated a proposal, at a break in the meeting he
‘‘scratched out’’ a draft of a proposed management letter to
employees which outlined his ideas as to a possible job-secu-
rity provision and thereafter read this draft outline to the unit
bargaining committee. He testified that he explained to them
that Respondent was willing to make a commitment to a job-
security provision in return for some kind of guarantee of
improved productivity, but without layoffs of the loss of any
jobs except through attrition. Bilenchi testified that the bar-
gaining committee members ‘‘were encouraging’’ in their re-
sponse. Yes, he answered Respondent’s counsel’s leading
question, Hicks did raise some questions and did offer a
timetable for the issuance of a letter from management to
unit members of the nature outlined in his draft. According
to him, the Union already had a unit membership meeting
scheduled at a future date and ‘‘they’’ suggested that he
issue a letter to employees a few days in advance thereof in
order to give the members time to think it over.
On cross-examination, Bilenchi admitted that the idea of
a direct management letter to unit members was raised by
him at the August 15 meeting but that Hicks neither objected
to it nor suggested a special unit membership meeting as an
alternative to a direct management appeal to members.
Bilenchi did issue the aforedescribed letter to employees
on August 21, 1991. He asserted that he and Hicks met sev-
eral times for Hicks to review the draft of the letter and to
add or subtract from it and that Hicks told him that what the
Company proposed was up to the Company and never ob-
jected to it even up to the time he told Hicks he was about
to issue it. Bilenchi testified that several days after the
issuance of the August 21 letter at an unspecified union-man-
agement meeting, Hicks informed him that the bargaining
unit members decided not to renew negotiations of the pre-
viously rejected SPPO proposal.
After some contorted evasion, in cross-examination
Bilenchi finally admitted the palpably obvious, i.e., that he
did indeed think that his August 21 letter to employees
would mitigate their opposition to the SPPO proposal for
which Respondent avidly sought agreement for so long.
Bilenchi’s letter to employees of August 21 briefly alluded
to Respondent’s past effort to restructure the organization of
the Trenton Channel High Pressure Plant and the past nego-
tiations with the Union. Bilenchi then states:
To this end I have offered your bargaining unit offi-
cers the opportunity to discuss the following proposal
with the hope of moving this issue forward.
Thereafter, the letter reiterated the proposals referred to
above, inclusive of job-security provisions. The letter ended:
I am aware that you have instructed your bargaining
unit representatives not to discuss with management
any terms concerning these issues. Therefore, I am pre-
senting you with Management’s ideas and, respectfully
request that you review your own position on this mat-
ter. I would like you and your Union representatives to
understand that I am willing to meet with them and dis-
cuss further any matters which affect this issue. I hope
that we can resolve it and continue to improve Tren-
ton’s competitive position among power plants in the
Midwest.
There is a factual dispute as to whether Bilenchi had dis-
cussed with the union representatives the details of the pro-
posal set forth in the letter and whether those union rep-
resentatives, Hicks and Champion, approved of the direct
communication to employees.
Although Bilenchi’s presentation occurred at a regularly
scheduled meeting at which were present three other manage-
ment representatives, they were not called to corroborate his
testimony. The General Counsel adduced the testimony of
569DETROIT EDISON CO.
only two of five of the union representatives present and a
copy of the minutes recorded by one of the union representa-
tives.
Champion testified that it was Bilenchi who raised the
subject of renewed negotiations at a social function 3 weeks
before August 15. Champion claimed that in a generalized
discussion, Bilenchi suggested that the SPPO issue was not
dead because Respondent could move forward with an im-
proved offer. He did not ‘‘recall’’ that Bilenchi alluded to
any specific language of the modified proposal. He admitted
that he observed that the written agenda prepared by Bilenchi
for the August 15 meeting included the issue.
Hicks’ direct examination failed to allude to individual
pre-April 15 conversations between himself and Bilenchi. On
cross-examination, he admitted to having had various en-
counters with Bilenchi before the August 15 meeting but de-
nied that Champion had ever discussed with him the possi-
bility that SPPO negotiations ought to resume. He did not
‘‘recall’’ that Bilenchi approached him with a claim that
Champion suggested renewed negotiations. However, also on
cross-examination, Hicks denied even a ‘‘glimmer of an
idea’’ that there was a possibility of renewed SPPO negotia-
tions. Champion testified in cross-examination that it was
Hicks who had informed him at the time of his observation
of the agenda for the forthcoming August 15 meeting that
Bilenchi wanted to discuss the SPPO issue.
On further cross-examination, Hicks admitted that prior to
August 15, Bilenchi did approach him and say that he would
raise the SPPO issue and that he responded to Bilenchi that
‘‘he could come and talk to us and he did.’’ He asserted in
cross-examination that the Union team did not discuss the
issue at the meeting but merely listened to Bilenchi’s pro-
posal. He explicitly testified that Champion only listened as
Bilenchi spoke for 10 minutes.
On direct examination, Hicks’ account of the August 15
meeting was extremely succinct and conclusionary. He testi-
fied that ‘‘we’’ responded to an SPPO proposal by Bilenchi
with the assertion that it was a dead issue that had been re-
jected by the membership and that it was Bilenchi who sug-
gested a management letter to employees. As to the idea of
a management letter to the members, Hicks testified that the
union committee responded that it was ‘‘not a good idea’’
and at no time agreed to it. His direct examination was
unspecific as to what Bilenchi proposed either as to the
SPPO issue itself or the contents or nature of the proposed
letter. He merely denied that the substance of the August 21
letter was discussed at any time with the Union or himself
before August 21. On cross-examination, Hicks admitted that
the union team did take a caucus to discuss Bilenchi’s pres-
entation. Clearly, Bilenchi must have proposed sufficient lan-
guage to warrant an internal discussion by the union team.
Whatever it was that Bilenchi proposed, the union team dis-
cussed it and, according to Hicks’ sketchy testimony, they
decided against it. On further cross-examination, Hicks ad-
mitted that after the meeting, Bilenchi very frequently spoke
with him in the plant about the appropriateness of specific
language for the forthcoming letter, i.e., ‘‘every time I was
down there he mentioned it.’’ He then testified that he did
not ‘‘recall’’ Bilenchi’s reference to specific language at the
meeting itself. He did not recall whether Bilenchi left the
room at any point nor whether he wrote anything down on
yellow paper. Nor did he recall whether Champion explicitly
reiterated Hicks’ own response at the meeting, nor could he
recall anything that was said by Champion. He then testified
that he did not ‘‘remember’’ whether Bilenchi actually came
to him and offered to him to read the final draft of the Au-
gust 21 letter before it was sent. He testified, ‘‘I don’t think
it happened. I don’t remember. I don’t recall [seeing the pro-
posed letter].’’ He did not ‘‘recall’’ any discussion with re-
spect to a deadline date for the letter. His demeanor was nei-
ther certain nor convincing.
Champion testified that at the August 15 meeting Bilenchi
offered to improve the offer on the SPPO issue if negotia-
tions were renewed ‘‘or words to that effect.’’ He testified
that he ‘‘believed’ that the union committee responded that
it was a dead issue and contrary to the membership’s instruc-
tion not to negotiate further on the issue.
According to Champion, but not mentioned by Hicks,
Bilenchi asserted that he had the right to go out into the
plant and personally discuss it directly with the unit employ-
ees. According to Champion, both he and Hicks responded
to all of Bilenchi’s statement and that, to this startling claim,
they merely expressed that ‘‘it was not a good idea.’’ It was
thereafter, he claimed, that Bilenchi suggested a management
letter to employees to which both he and Hicks told him not
to do that. Champion testified that despite their opposition,
there was ‘‘some discussion’’ as to what language Bilenchi
wanted to include in the letter. Champion did not specify the
nature or contents of that discussion, but apparently it was
of some substance and significance because it directly pre-
cipitated the union committee caucus ‘‘to see if our members
wanted us to discuss the matter with management.’’ When
Champion was about to testify in direct examination as to
what was discussed in that caucus, he was interrupted by
counsel and directed to what occurred thereafter. Thus there
is no clear indication of just what they discussed if it was
not the substance of an improved offer as contained in the
August 21 letter, and as Bilenchi testified that he proposed
at the meeting. Bilenchi certainly must have expressed some-
thing of substance to at least have caused consideration by
the committee. Champion testified that after the caucus,
Bilenchi was told not to send a letter to employees but that
the bargaining committee would call a special meeting ‘‘to
see if [the] members wanted [it] to discuss the matter with
management.’’
Champion denied vehemently that in any manner the com-
mittee approved for direct communication by Bilenchi with
the employees. He denied that the proposal set forth in the
August 21 letter had ever previously been conveyed to the
Union. In cross-examination, he admitted that there indeed
was some discussion by Bilenchi of job security. He did not
testify as to how much of the job-security offer outlined on
the August 21 letter was or was not proposed at the meeting.
He admitted as ‘‘partially true’’ Bilenchi’s assertion on the
August 21 letter that he had offered the union bargaining
committee an opportunity to discuss the modified proposal.
Champion did not explain further.
The union-prepared minutes of the August 21 meeting are
very cryptic. With respect to the items discussed, they appear
to be less than complete, and selective at best. With respect
to the SPPO discussion wherein Bilenchi’s presentation alone
consumed 10 minutes, there is only the following memori-
alization:
570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bilenchi: My objective regarding the SPPO’s is not
beyond hope. I want to make headway on this. Hicks:
Our Bargaining unit has instructed us not to negotiate
on this.
Bilenchi: That is not negotiation. It will be a letter
from me to the bargaining unit. Hicks: We wish you
would not do this. We could call a special meeting of
our division to ask them if they want us to talk to you
about this.
Bilenchi: Again, this is not a negotiation. Our goals
are less cost, more accountability, and I think we could
put together a better package than main table negotia-
tions. Some of the items in this package could be pro-
ductivity protection, geographic protection, pay grade
protection, automatic progression for the SPPO’s et
cetera.
At this point there was a caucus. Hicks: We can call
a special divisional meeting on August 29, 1991. We
will ask our membership if they want us to talk about
this with you.
Meeting adjourned.
The General Counsel stresses, of course, the language ‘‘we
wish you would not do this’’ as corroboration of his wit-
nesses. However, when that language and reference to a spe-
cial meeting was read to Hicks in cross-examination, he testi-
fied as follows:
A. I might have said that. I said something on that
order, yes.
Q. Okay. Do you recall how Mr. Bilenchi responded
to your statement?
A. If I recall rightly, he said he was going to put the
letter out.
Q. Did he ask you to call a special meeting to dis-
cuss the proposal?
A. I don’t [recall] if he did that or not. I think that
was our Union’s decision that—that’s when we went
out and caucused. We talked about maybe—maybe,
going to bring it back to the membership, but we never
did.
Q. Didn’t you suggest to him that [you] could call
a meeting for the purpose of discussing your letter?
A. I—yes.
Q. Isn’t that what you said?
A. Yes.
Thereafter, on further cross-examination, Hicks insisted
that the union committee objected to the issuance of a letter,
that he had made no offer to have a special meeting to dis-
cuss the letter and that what he said to Bilenchi was that he
‘‘could’’ have a special membership meeting. He had no
recollection of Bilenchi’s response.
Thereafter, Union President George Manoogian objected to
the August 21 letter and, on September 30, Respondent with-
drew it and disclaimed any intent to bypass the Union. There
was insufficient evidence of propagation of this disclaimer to
unit employees.
Although counsel for Respondent at times lapsed into
somewhat leading examination of Bilenchi, I am convinced
from observation of his overall testimony and demeanor that
he was the far more certain, responsive, detailed, internally
consistent, spontaneous, and convincing witness than either
Hicks or Champion. Hicks was particularly hesitant, unre-
sponsive and uncertain in demeanor. His and Champion’s
testimony were internally and mutually inconsistent, general-
ized and selective. They were both unconvincing. I credit the
testimony of Bilenchi that ultimately the Union committee
caucused because Bilenchi proposed something significant
enough for them to consider, i.e., the substance of a modified
offer, and that Hicks and Champion, at that meeting or short-
ly thereafter, acquiesced to Respondent’s proposed letter to
be issued in advance of a special union meeting at which the
question of whether it was worthwhile to renew negotiations
or the SPPO offer as modified could be discussed.
Marysville Unit
Since 1943, the Union has represented a unit of production
employees at Respondent’s power plant located in
Marysville, Michigan, which is included among the North
Area plants involved in the SPPO issue. As noted, that issue
had not been resolved at the main bargaining table but had
been referred to local unit bargaining in late 1989 which
proved futile and stalemated.
In January 1991, the superintendent of the North Area
power plants, James Repp, responded to questions put to him
by the Union’s Marysville Power Plant Division chairman,
David Maynard, regarding the details of the PPO classifica-
tion. The response took the form of a January 17 memo from
Repp to Maynard which set forth in four pages the proposed
duties and responsibilities of the PPO position and the effects
upon SPPO’s upon the elimination of their classification.
Maynard testified that in August 1991 he had heard
‘‘through the rumor mill that there was to be renewed discus-
sion of the SPPO issue at the Trenton Channel Power Plant.
Accordingly, he approached Marysville plant supervisor Wil-
liam Harrison and sought verification. As it happened, Har-
rison had just received a fax of Bilenchi’s August 21 letter
to the Trenton Channel unit employees and gave Maynard
opportunity to read it. Thereafter, in late August, when May-
nard was at home on vacation he received a telephone call
from Harrison who told him that he was about to distribute
to the Marysville unit employees a letter similar to the
Bilenchi letter of August 21 to Trenton Channel unit employ-
ees. Maynard said he would have to see the letter before he
was able ‘‘to agree to anything.’’ Harrison then personally
delivered a copy of a letter to the unit employees from Repp
which was thereafter issued on September 3 and which was
virtually identical to Bilenchi’s letter. That letter indicated
copies sent to Manoogian and Maynard, and in its first para-
graph referred to meetings with Marysville Unit and Local
union representatives on the SPPO issue since January 7, and
referred to an attachment of written answers to their ques-
tions concerning the impact of the SPPO proposal. Distribu-
tion and receipt of the letter was stipulated by the parties.
The General Counsel did not concede distribution and receipt
by unit employees of the January 17 letter from Repp to
Maynard as an attachment to the September 3 letter, or in
any other form. Respondent adduced evidence that it was the
intent to attach the January document to the September letter,
and that its file copies reflect actual attachment, and that sub-
ordinate persons were instructed to attach the document for
distribution. There is no probative evidence of the last link
in the sequence of distribution, i.e., that both documents
571DETROIT EDISON CO.
were attached and deposited in the mail and that the unit em-
ployees actually received the attachment, except for hearsay
testimony that a former unit member, now a supervisor, dis-
played a copy of both attached documents to a manager who
passed it to witness Repp at the trial.
The Macomb Unit
A. Unilateral Withholding of Pay Raise
On July 6, 1990, the Union was certified as designated
bargaining agent for certain of the ‘‘A’’ Grade classification
of employees employed within Respondent’s Macomb Divi-
sion of Energy, Marketing and Distribution organization (E
M & D). That division services Respondent’s nonindustrial
customers in such areas as service, planning and engineering
in the design of a service installation. The division is so-
named because it geographically encompasses Macomb
County, Michigan. I shall refer hereafter to the Macomb
County ‘‘A’’ Grade employees as MAG. The MAG unit is
the only unit of ‘‘A’’ Grades represented by the Union in
Respondent’s entire system.
The tally of ballots for the election conducted by the
Board prior to the certification reveals 36 ballots cast des-
ignated union representation. One nondeterminative chal-
lenged ballot was uncounted and unopened. According to the
testimony of Respondent’s Macomb Division manager, James
Roosen, there were 30 employees employed within the bar-
gaining unit from October 1, 1991, until December 17, 1991,
whose complement remained constant without addition or de-
letion.
Because the parties failed to agree upon a bargaining
schedule of dates, times and places, the negotiations for an
initial collective-bargaining agreement did not take place
until February 1991, except for one or two preliminary meet-
ings at some undisclosed dates in 1990. Early in negotia-
tions, the Union proposed that the noncertified MAG unit be
‘‘folded’’ into a preexisting 1987 collective-bargaining unit
or Master Agreement with Respondent covering other em-
ployee units except that the issue of their wages would be
left open for negotiation. Respondent refused and insisted
upon a separate contract for a separate unit. The Union’s ac-
tual proposal was submitted in writing in late 1990.
Union President Manoogian testified that negotiations for
MAG unit wages did not commence until late November
1991 or early December 1991, at which time the Union pro-
posed a 5-percent raise for 1990 and 6-percent raise for
1991. Manoogian testified that at the second of only two
meetings dealing with MAG unit wages in early December,
Respondent offered an 8-percent raise retroactive to 1991,
but the Union rejected it and countered for an 8-percent raise
retroactive to 1990. Martin claimed that there was some dis-
cussion of wages that preceded November 18. He was, like
Manoogian, unspecific.
It is stipulated that preceding September 1990, Respondent
maintained a policy and practice of annually granting all
‘‘A’’ Grade employees a September general pay raise, the
amount of which, of course, was determined unilaterally as
there historically had been no union representation of any
‘‘A’’ Grade employees. The ‘‘A’’ Grade classification tradi-
tionally had included entry level professionals, administra-
tive, first line supervisors, as well as technical employees,
paid by weekly salary. Union-represented employees tradi-
tionally were paid an hourly rate schedule, i.e., ‘‘T-Grade’’
wage schedule as set forth in the Master Agreement.
The past practice and policy of Respondent had also pro-
vided for a second possible pay raise for ‘‘A’’ grade employ-
ees by means of individual merit increase granted on the an-
niversary of each employee’s tenure but not to exceed the
maximum level set by the Respondent in the range of pay
it determined for ‘‘A’’ grades. That range was adjusted annu-
ally by virtue of the September general raises which flowed
from the across-the-board adjustments to ‘‘A’’ grade pay
schedule determined and announced annually in August.
In August 1990, Respondent prepared to announce the rate
of the September raise for ‘‘A’’ grades it had unilaterally de-
termined, to be received by all ‘‘A’’ grades exclusive of the
MAG unit employees. In advance of that announcement, Re-
spondent communicated with the Union by letter dated Au-
gust 17, 1990, from Richard Martin, director of labor rela-
tions, addressed to Manoogian which stated:
This letter is to advise you that effective September
3, 1990, the wage rate ranges for all non-represented A-
Grade employes will be increased by 4%.
Approximately six weeks ago, we suggested Man-
agement and the Union commence the collective bar-
gaining process for the Macomb A-Grades your Union
now represents. You are once again invited to bargain
on behalf of those Macomb A-Grade employes.
Martin testified that he intended that letter as notice of the
Union which would either elicit a bargaining request or pos-
sibly an unfair labor practice change, inasmuch as unfair
labor practice charges were pending at that time with respect
to certain annual merit raises allegedly withheld from certain
MAG unit employees. Martin characterized the letter as a
bargaining invitation. (The other pending charges ultimately
settled.)
By letter dated August 23, 1990, addressed to Martin from
Manoogian, certain information regarding MAG employees
was requested. Then in the second and final paragraph, it is
stated:
I am happy to learn of the four percent (4%) general
increase for the non-represented ‘‘A’’ grade employees
effective September 3, 1990. The employees in the
‘‘A’’ grade classifications, non-represented and rep-
resented alike, are deserving of this increase. Moreover,
the Company obviously agrees and understands a min-
imum of a 4% increase is due to these classifications.
This increase will be the ‘‘springboard’’ for our upcom-
ing negotiations on behalf of the represented ‘‘A’’
grades in the Macomb Division.
The MAG unit employees did not receive a raise in 1990,
either in September or thereafter. Manoogian testified in di-
rect examination that he was at the time under the impression
that the MAG unit employees also received a 4-percent gen-
eral pay raise in September 1990, but that he first became
aware they did not during the ‘‘latter part of 1991.’’ He filed
no charge nor grievance over the withheld pay raise. As
noted above, the Union, as Manoogian admitted, proposed a
5-percent raise for 1990 in late November or early December
1991, presumably retroactive for 1990. There was no ref-
572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
erence by the Union to an incorporation of or implementa-
tion of the non-MAG unit employee pay raise for 1991.
In further direct examination, Manoogian testified when
asked why he had filed no charge nor raised any complaint
about the withheld 4-percent 1990 raise: ‘‘Well, I wasn’t
aware under the law that they were entitled to it.’’
On cross-examination, Manoogian testified that he had un-
derstood Martin’s letter to constitute an announcement of a
wage increase to all ‘‘A’’ grades, inclusive of MAG unit em-
ployees, despite its explicit characterization as a raise for all
‘‘non-represented A-Grade employees.’’ He testified that no
MAG unit member told him of the nonreceipt of a Septem-
ber 1990 raise until ‘‘maybe’’ April 1991. He was not sure
of the date. When asked why he did not immediately com-
plain when he did hear about it, he testified that he thought
Respondent could lawfully withhold the raise and was not
aware that they had to continue on with them. Thus, at least
by early 1991 if not late 1990, Manoogian perceived that Re-
spondent had discontinued its past practice of annual pay
raises with respect to represented ‘‘A’’ grade employees. He
appears to have accepted the amount of MAG unit general
pay raise to be a subject for negotiations by virtue of his 5-
percent to 6-percent 1990–1991 wage increase proposal.
In September 1991, the MAG unit employees did not re-
ceive a second general wage increase of 4 percent as re-
ceived by other nonunit ‘‘A’’ grades. Manoogian testified
that in an undated conversation with Respondent Director of
Union Relations Richard Martin prior to the last negotiation
where Respondent offered an 8-percent retroactive raise to
1991, he complained to Martin that the withheld raise of
1991 was an unfair labor practice. He was not contradicted.
On December 20, 1991, in Case 7–CA–32710, 3 days after
Respondent withdrew recognition pursuant to an employee
petition submitted to it, only then did the Union file the
charge upon which the complaint alleges the September 1991
withholding of a pay raise to the MAG unit employees as
an unlawful unilateral discontinuation of a past practice. Pre-
sumably, according to the General Counsel’s theory, each
succeeding year that Respondent again unilaterally ‘‘discon-
tinued’’ its past practice would constitute separate and dis-
crete violations of the law.
It is difficult to accept Manoogian’s assertion that he had
not learned of the withheld 1990 pay raise until 1991. He
conceded that he met with and consulted with MAG unit bar-
gaining committee-persons. It is improbable that they did not
raise the issue with them as this was the first time in 8 years
they did not get a pay raise in September. Martin’s letter is
not subject to misunderstanding. It is precisely what he in-
tended it to be, i.e., notice of a 4-percent raise to nonunit
‘‘A’’ grades and an invitation to negotiate the wages of the
MAG unit. I find Manoogian’s explanation as disingenuous
and unconvincing as was his demeanor.
I conclude that the reason Manoogian took no action is not
because he misunderstood Martin but because he assumed
that Respondent could lawfully suspend its past wage in-
crease policy as to MAG unit employees whose wages were
to be the result of negotiations. Given Manoogian’s assump-
tion, he clearly would not have objected to Martin’s letter
had it been any clearer. I find that given his assumption, a
protest would have been improbable.
I conclude that Manoogian accepted Martin’s letter for
what it was and acquiesced by return letter to negotiate
wages for MAG unit employees for an increase at the 4-per-
cent starting point. I find that he thereby accepted as a fact
that MAG unit raises would be withheld pending negotia-
tions wherein he sought retroactivity.
B. Direct Dealing
For undisputed compelling business reasons, Respondent
determined in 1992 to reorganize its six geographic divisions.
This reorganization plan was to affect certain job classifica-
tions included in the MAG unit, e.g., service planners. The
change proposed that instead of being assigned to a divi-
sional headquarters, they would now be assigned to one of
several service centers to be established for each division
from where they would not perform their customer service
job functions, hopefully to improve that service.
The divisional headquarters originally housed engineers,
power lines organizers, as well as service planners and oth-
ers. The service centers were to include service planners and
‘‘tradesmen’’ whose function related directly to the installa-
tion and maintenance of overhead and underground power
lines and included such functions as truck and other mechan-
ical repair work. The Macomb service centers were to be lo-
cated in the cities of Mount Clemens and Shelby.
On October 7, 1991, a printed announcement of the pro-
posed changes was distributed to all divisional employees.
On October 22, 1991, a second announcement was addressed
to E M & D employees and informed them that E M & D
staff members would communicate during the week of No-
vember 11, 1997, with each division’s employees in-depth
the background, rationale and substance of the E M & D or-
ganization structure, for which full implementation was
hoped to be in place by January 1, 1992. As of the trial of
this case, there had been no physical implementation of the
plan in the divisions of Macomb, Oakland, or the ‘‘Thumb’’
area of the State. Only one service center had been opened
in Wayne County (which includes the city of Detroit) and
that is in Ann Arbor.
Inasmuch as the reorganization plan necessitated the relo-
cation of groups of employees to service centers, Respondent
decided to ascertain their preferences, if any, as to the loca-
tion to be assigned to them.
In a memorandum from Macomb Division Manager James
Roosen dated October 22, 1991, addressed to operations
staff, engineering & planning staff which included MAG unit
employees, he alluded to the proposed reorganization and the
several months time required to physically prepare the serv-
ice centers. Roosen then stated therein:
In meeting with you I committed to giving strong
consideration to your personal location preference in
this reorganization. Please fill out the tear off below
with your 1st, 2nd and 3rd location preference and re-
turn to Lois Kemnitz by October 31, 1991.
Respondent had neither previously notified the Union of the
document nor supplied it with a copy of the memorandum.
The employees thereafter communicated their preferences of
location directly to Respondent.
On October 24, 1991, in Case 7–CA–32491, the Union
filed an unfair labor practice charge which resulted in the
complaint allegation that the October 22 memorandum issu-
ance and work location preference elicitation constituted an
573DETROIT EDISON CO.
unlawful bypassing of the Union and direct dealing with unit
employees.
At a negotiation meeting between the Union and Respond-
ent representatives held on October 28, Martin raised the
subject of the possible changes that would flow from the pro-
spective reorganization and, according to Martin’s testimony,
Manoogian raised no objection to the October 22 memo.
Manoogian admitted that the reorganization topic may have
been discussed then. He testified that with respect to the Oc-
tober 22 memorandum to employees, there had been no no-
tice or prior awareness and no negotiations. However, he had
already filed the charge by October 28, and so I credit his
testimony that at the meeting he referred to that charge,
which I conclude is an obvious form of objection to the
memorandum.
It is Martin’s uncontradicted testimony that the next two
meeting dates were canceled by the Union, and the next
meeting therefore occurred on November 18 at which the
work preference issue was discussed. Manoogian admitted
that Martin offered to resolve the unfair labor practice charge
regarding the job preference polling by tendering to the
Union ‘‘something in writing.’’ Martin’s testimony on this
meeting was much more specific, not contradicted generally
or in detail, and therefore credible. According to him, the
following occurred. Martin assured the Union that no deci-
sion had been made regarding the employee work relocation,
that Respondent offered to the Union the results of employee
responses, and that Respondent suggested that the employ-
ees’ first choices be given deference. The union representa-
tives refused to discuss the issue, claiming it was out of
order and ought to be placed at the bottom of the list of top-
ics to be discussed. Instead, the Union asked to discuss
wages. Martin told Manoogian that Roosen and MAG unit
bargaining chairman, co-negotiator with Manoogian, Garnatz,
had individually discussed how the employees ought to be
relocated and that Garnatz had told Roosen that the employ-
ees’ preference ought to be accepted. Manoogian responded
that Garnatz was not authorized to speak on behalf of the
Union. The purported Roosen-Garnatz conversation was un-
dated. Roosen did not refer to it in his testimony. Garnatz
did not testify. Martin testified that at the very outset of ne-
gotiations he announced to the Union Respondent’s intent to
negotiate the matter of the work station relocation of MAG
unit employees.
At the November 18 meeting, Martin hand-delivered to
Manoogian a letter addressed to him, signed by Martin,
wherein he acknowledged Manoogian’s objection to the em-
ployee work location preference solicitation, inasmuch as the
Union considers the work relocation a matter for negotiation.
Martin then stated that ‘‘in retrospect’’ the October memo-
randum to unit employees was premature and ‘‘was not in-
tended to bypass the Union.’’ Martin stated therein that he
understood how it could be perceived as such and regretted
the ‘‘misunderstanding.’’ He reiterated Respondent’s intent to
consider as negotiable ‘‘the matter of headquarters changes’’
for some of the MAG unit employees caused by the reorga-
nization. He then offered bargaining at that November 18
session on the issue. There is no evidence of distribution of
that letter to employees nor any basis to infer its publication
or employee awareness of such.
C. Withdrawal of Recognition
Macomb Division Manager Roosen was approached by
unit employee Ken Miller who displayed a copy of a letter
to Respondent’s board chairman requesting withdrawal of
union bargaining agent status recognition. Miller told
Roosen, according to Roosen, that he believed that the ma-
jority of employees did not want the Union’s representation.
Miller did not testify. Roosen told Miller it was his right to
send the letter but that he would not discuss it further with
him.
On October 31, Miller petitioned the Regional Director to
decertify the Union as bargaining agent in Case 7–RD–2759.
That petition was supported by the purported signatures of 10
unit employees. On November 12, 1991, the Regional Direc-
tor, by letter, notified Miller of the deferral of processing of
his petition pending the investigation of Case 7–CA–32491.
On February 25, the Regional Director dismissed Case 7–
CA–32491 on the grounds that no questions could be raised
at that time because of the issuance of complaints but the pe-
tition was subject to reinstatement upon disposition of those
complaints.
Roosen testified to the events of December 17. On that
day in the morning he was requested by a group of employ-
ees to meet with them and to accept from them what on its
face purports to be a request to no ‘‘longer be represented
by the Union as bargaining agent’’ for the MAG unit, pur-
portedly signed and individually dated by 16 of 30 unit em-
ployees whom Roosen testified without controversion were
employed by Respondent from October to December 17,
1991, without addition or deletion.
The employees who presented the petition were Miller,
Norman Meldrum, and Gerald Simon. Apparently they did
not say much about the petition, as Roosen testified to no
discussion whatsoever. Miller testified that he considered
these employees to be reputable and trustworthy. It is not
disclosed whether or not they they stated to him that each
and every signature on that petition was authentic and/or wit-
nessed by any of them.
Roosen testified that because MAG unit employees fre-
quently sign their names to a multitude of papers and reports
that are subject to his scrutiny, he can readily recognize their
signatures. He testified that he recognized each of the 16 sig-
natures on the petition. I consider inconclusive his failure on
cross-examination to identify the identity of the handwritten
date entries when accompanying signatures were covered. In-
deed, many looked the same.
Roosen testified that he thereafter engaged in telephonic
conversations with his superior, General Director of Union
Relations James Mulrenin, to advise him of his receipt of the
petition and his conclusion that the Union had thereby lost
its majority status as employee bargaining agent. After this
perfunctory report, Mulrenin quickly acted upon Roosen’s
conclusion and, in the afternoon of the same day, telephoned
Manoogian and notified him of the withdrawal of recogni-
tion. Mulrenin refused Manoogian’s request to inspect the
evidence Respondent relied upon for its conclusion.
Counsel for General Counsel carefully led Roosen through
a step-by-step description of his conduct from receipt of the
petition and his communication of his conclusion to
Mulrenin. Nowhere in that laborious effort did he refer to
any act of verification of his capacity to identify signatures
from memory such as an inspection of known genuine signa-
574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tures. He testified that he engaged in no other significant ac-
tion in that period. At first, he testified that within 2 months
of this trial, he was instructed by counsel to construct an ex-
hibit consisting of a montage of facsimile reproduction of al-
leged authentic employee signatures excised from unidenti-
fied Respondent records.
After discussion ensuing between counsel as to the pro-
bative value of the proposed exhibit that Roosen identified
later in cross-examination, Roosen testified that at some un-
specified date in December, he instructed his secretary to as-
semble for him a sampling of documents containing known
authentic signatures of the petitioners. Respondent thereafter
in the trial introduced into evidence a variety of documents
from its records which, in the course of its business, the peti-
tioners would be required to execute. There is no foundation
evidence that the signatures on those documents were actu-
ally signed by the employees. The documents were received
into evidence as corroborative evidence of Roosen’s testi-
mony, i.e., if the petitioners’ signatures appeared to be iden-
tical to those on documents known to be required to be
signed by them, Roosen ought to be credited as reasonably
concluding that the signatures on the petition were accurate.
If grossly divergent, then his credibility is undermined.
Respondent offered no expert witness nor other evidence
to support the reasonableness of Roosen’s conclusions and
no other evidence as to the authenticity of the petition, au-
thenticity of the samples or the actual loss of majority status.
No other samples, of authentic signature were introduced.
Neither party adduced the testimony of the signators.
My examination of the December 17 petition leads me to
conclude that a nonexpert who has had no past experience
with those signatures would have difficulty on first examina-
tion to distinguish between several of them, as certain sam-
ples tend to be of the same broad sweeping stroke and angu-
larity and thin line, e.g., Miller, Meldrum, and Simon as one
group. Also, Robinette and Marries immediately thereunder
are very close in appearance and the writing of the dates
thereafter are almost identical. Also generally similar are the
signatures and more so the written dates of Thiede and
Cataldo which are separated by only one entry. They have
the same general flowing, bold sweep, and angularity but dif-
fer in minor flourish and formation of letter.
It is only when compared directly with the samples of
original signatures on the records identified as normally kept
business records, is the examiner able to note a correspond-
ence very close to those signatures and distinctions from
other signatures, except, however, for one, i.e., Donald
Cataldo. That signature on the petition is argued by the Gen-
eral Counsel to be a grossly obvious forgery, the import of
which is the destruction of Roosen’s credibility. The General
Counsel has in no other way, by evidence or argument, erod-
ed Roosen’s credibility nor established forgery of the petition
or actual majority status except for the rebuttable resumption
of such arising by operation of law.
From the document in evidence containing his purported
actual signature, Cataldo has been employed by Respondent
since 1964 and has been a service planner since 1971. It
would appear therefore that Roosen must have had substan-
tial exposure to his signature, as he testified he had with re-
spect to all signators. Yet, on first examination, the only
complete document offered as containing Cataldo’s signature
displays a signature startlingly different from that on the pe-
tition as to pressure and sweep of stroke, formation of letter,
angularity of letters, regularity of angle, firmness of impres-
sion, thickness of line, and connection of letters. The docu-
mented signature is formed by a total connection of letters.
The petition signature contains a bifurcation in both first and
last name. Further confusing the examination is the facsimile
montage prepared for trial where a third sample of a pur-
ported Cataldo signature differs yet from the other two on
many of the features noted, except that whereas the docu-
mented signatures appears to be quite crude of stroke, the
facsimile is somewhat closer but not convincingly so to the
elegance of the petition signature. However, it is not bifur-
cated and is closer in letter formation and flourish to the doc-
umented signature. The greater difference is between the sig-
nature on the petition and either of the other two samples.
Not being a handwriting expert, I cannot with complete con-
fidence conclude that the petition signature is a forgery. The
physical condition of the signator and his physical sur-
rounding could have affected the flourish and formation of
a signature, i.e., was it executed on a clipboard in a plant,
on a vibrating floor or in a moving vehicle at a time when
the signator was subject to physical conditions affecting mus-
cular control. Cataldo may be the type of person who, not
too uncommonly, varies his own signature. No explanatory
evidence was adduced. The record contains Roosen’s bare
assertion that he apparently immediately recognized each and
every one of the petition’s signatures which, on some later
date in December after withdrawal of recognition, he verified
by comparison with some unspecified unidentified samples.
Those documented samples adduced into evidence were re-
trieved by Respondent from its records during trial after a
question was raised as to the probative value of the facsimile
exhibit. They were not identified by Roosen as the very same
documents he utilized in December 1991 when he made his
comparison.
Assuming Roosen’s frequent exposure to 30 unit employ-
ees’ signatures, because of the similarity of many of them
and because of the divergence of three purported signatures
of Cataldo, I conclude, in the absence of explanatory evi-
dence and evidence of careful, specifically documented
verification, that Roosen’s judgment was rashly precipitous
rather than reasonable. This conclusion is reinforced by the
closeness of the margin of majority loss and the lack of any
other evidence of majority employee disaffection to corrobo-
rate the hearsay testimony of Miller’s August 1991 opinion
of his fellow employees’ judgment. Further, because of his
unexplained ready acceptance of the genuiness of the Cataldo
signature, I find Roosen’s overall credibility to be impaired.
I found his oblique insertion into cross-examination of a hith-
erto untestified verification in December to be a clever but
disingenuous attempt to bolster a previously unrecognized
flaw in the purported reasonableness of his conduct, as por-
trayed in direct examination. That flaw became apparent as
Counsel for the General Counsel pursued the examination of
Roosen’s precise conduct on December 17. In consequence,
I do not have sufficient confidence in the credibility of
Roosen’s testimony as to his ability to recognize signatures
as that testimony also may have been exaggerated and en-
hanced to Respondent’s favor. His demeanor, which dis-
played calculation and lack of conviction in place of spon-
taneity, further causes me to reject his credibility. Further-
575DETROIT EDISON CO.
more, the only evidence of the actual unit member count is
his testimony, the credibility of which is suspect.
Finally, what is to be said of the reasonableness of
Mulrenin’s own conduct. With alacrity, he accepted his sub-
ordinate’s quick judgment unquestioningly without the slight-
est doubt or independent verification or other evidence of
employee disaffection. He did so despite the extreme close-
ness of the majority loss, in the absence of any evidence that
he questioned Roosen as to the circumstances of the petition
production or as to Roosen’s conclusions of authenticity and
accuracy of the petition as the reflection of an uncoerced ma-
jority.
Conclusions
Harbor Beach Unit
Respondent argues that based upon its interpretation of the
contract, affirmed by arbitration decisions, that it ‘‘(1) had
that right unilaterally to establish a new job classification,
and (2) did not have a duty to bargain upon the subject until
30 days prior to the effective date of the new classification
[and] since the Employer never decided to establish the new
job, the duty to give notice to the Union and negotiate never
arose under Article VIII, Section 9(a) of the labor agree-
ment.’’ Respondent argues first, that since its discussions
with the affected maintenance employees arose at a time
when it was merely considering the possibility of a new
maintenance classification, it was privileged to do so because
no bargaining obligation had yet arose by operation of the
contract. Secondly, it argues that the August 20, 1991 meet-
ing constitutes the union notice required under the contract
inasmuch as Luther, who was present, was not a maintenance
employee and must have necessarily been present as union
representative. No evidence was submitted as to whether
there was a past practice of this kind of notice, i.e., com-
mand appearance while employees are polled. Finally, Re-
spondent argues that any violative conduct was trivial and
any remedy would preclude it, when in the function of exer-
cising its contractual prerogative, from seeking information
as to affected employees’ reaction in a logical and analytical
manner. This final argument therefore presupposes that it is
illogical and synthetic to deal with those employees’ bar-
gaining representatives for such purpose.
The evidence and Respondent’s argument clearly reveal
that while it reserved managerial discretion to do certain
things when instituting new classifications or changing old
ones, there was a point down the road when it was obliged
to bargain with the affected employees’ designated agent
about the effects of its proposed action upon those employ-
ees. Further, it is clear that Respondent wanted to know cer-
tain things from the affected employees in advance but felt
that dealing with their lawful representative was an undesir-
able encumbrance. Therefore, what Respondent did was to
forearm itself with its employees’ opinions whereby it could
enhance its position when it was obliged to present its pro-
posed expanded maintenance clarification to the union for
negotiations.
Assuming that the Union had totally waived certain rights
as to certain managerial actions with respect to job classifica-
tions, which we see is not the case here, the Union has not
waived its position as exclusive employee representative. The
Union has waived nothing whereby Respondent could deal
directly with employees even if that direct dealing falls short
of actual bargaining and consists solely of elicitation of em-
ployees’ sentiment over working conditions. Barring such
waiver, such circumvention of the Union constitutes unlawful
erosion of the Unions’ representative status, even when the
proposed employer action can lawfully be done unilaterally.
See Allied-Signal, 307 NLRB 752 (1992), and cases therein.
Accordingly, Respondent’s conduct herein constituted con-
duct violative of Section 8(a)(1) and (5) of the Act. It cannot
be excused because a lower echelon senior representative
was compelled to be witness to the direct dealing, which it
clearly was. Furthermore, Respondent’s attitude with respect
to direct dealing as a ‘‘logical’’ and ‘‘analytical’’ necessity
demonstrates that the violation is not trivial.
Trenton Channel
The factual findings disclose that Respondent had nego-
tiated to futility the SPPO conversion issue, first at the mas-
ter contract negotiating level and then at the local unit level
where it had been mutually referred. Respondent’s objective
was to revive negotiations with a sweetened offer. The cred-
ited testimony reveals that it posed that offer to the local
union representatives who agreed not only to a meeting of
the members to consider renewal of negotiations and the re-
moval of a prohibition to their representatives to discuss it,
but who also agreed that Respondent could convey to the
members by letter what it had already proposed to them. Re-
spondent’s objective was to negotiate with those representa-
tives by getting the members to authorize them to negotiate.
Respondent had merely informed the unit members what
it had already proposed to their representative. Such conduct
is not an unlawful direct dealing nor bypassing of the bar-
gaining agent. Compare Dubuque Packing Co., 287 NLRB
499 (1987), United Technologies Corp., 274 NLRB 609
(1985). Moreover, in this case, the local bargaining rep-
resentatives agreed to it.
Marysville Unit
Like the Trenton Channel unit, local negotiations at
Marysville had stalemated, i.e., the SPPO conversion pro-
posal had been rejected. Respondent at Marysville directly
sent to unit employees the same sweetened proposal that it
had communicated to Trenton Channel’s employees after
having proposed it to the Trenton Channel unit local bargain-
ing representatives who agreed to its submission to members
directly. At Marysville, there had been no such similar dis-
cussions with their representatives wherein the substance of
a sweetened proposal was first outlined to them. Bargaining
unit chairman Maynard first became aware of rumors that a
renewal of negotiations were surfacing at Trenton Channel.
He obtained a copy of the Trenton Channel letter from
Marysville plant manager Harrison and thus was apprised of
the modified offer to the Trenton unit. Subsequently, while
on vacation in late August, Harrison telephoned him and de-
scribed a similar letter that Respondent intended to send to
Marysville unit employees. According to Maynard’s
uncontradicted testimony, he asked to see the letter before he
could agree to it. Accordingly, Harrison personally delivered
it to Maynard at his home. Clearly, the import of Maynard’s
testimony is that Harrison wanted Maynard’s agreement to
send the letter. Maynard did not give him that agreement,
576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 95 NLRB 644, 773 (1951).
2 Laystrom Mfg. Co., 151 NLRB 1482 (1965), enf. denied on other
grounds 359 F.2d 799 (7th Cir. 1966).
and there is no evidence of any other union agreement to
permit direct management communication with employees.
I agree with Respondent that it is not necessarily unlawful
for an employer to accurately inform its employees what it
had offered in negotiations. Toyota of San Francisco, 280
NLRB 784 (1986); Dubuque Packing, supra. This is not
what Respondent did in this case with respect to the
Marysville unit. I conclude that it was not reasonable or ade-
quate notice when the local bargaining unit chairman was,
within days of its issuance, presented with the newly modi-
fied SPPO offer which he first saw as described in in a letter
to be sent directly to the employees, almost literally while
he was on a step ladder painting his house. This kind of con-
duct bespeaks dealing with the Union as an afterthought and
amounts to a peremptory strike before Marysville negotia-
tions. The Marysville incident contrasts sharply with the
Trenton Channel negotiations. Although it may have been
agreed to refer the SPPO negotiations to the local unit level,
there is no evidence that the Union authorized any one local
unit to waive the bargaining right of another local unit on
the SPPO issue. I conclude that Respondent acted rashly by
communicating its proposal directly first to the bargaining
unit and thereby undermined the position of their bargaining
agent. Respondent may have earnestly sought to renew nego-
tiations with the Marysville unit representatives, but directly
communicating a new offer without adequate presentation to
their representative was not conducive to a proper bargaining
relationship. Accordingly, I find such conduct violated Sec-
tion 8(a)(1) and (5) of the Act.
The Macomb Unit
A. Direct Dealing
Respondent asserts that the issue of ‘‘whether the reloca-
tion of the Service Planner’s work stations to service centers
is a mandatory subject of bargaining need not be addressed
since this Respondent clearly agreed to collectively bargain
the work relocation issue.’’ Respondent notes that no reloca-
tion decision was made, and the problem was reserved for
future bargaining. It argues that the work relocation pref-
erence was not destructive of the ‘‘Union’s position at the
bargaining table,’’ and tended not to erode the union position
as bargaining agent.
The General Counsel pointedly asks if Respondent’s atti-
tude was so benign, why did it not seek the employees’ atti-
tude from their bargaining agent whom, after all, is supposed
to speak for them. The answer is, as noted by Respondent’s
conduct above, at Harbor Beach, going through the Union
was viewed by it as an impediment to logical and analytical
accumulation of information.
As with respect to the Harbor Beach analysis above, direct
dealing need not constitute direct bargaining but can consist
of getting employee input behind the Union’s back in prepa-
ration for forthcoming negotiations. Allied-Signal, Inc., supra;
Harris Teeter Super Markets, 293 NLRB 743 (1989); Sparks
Nugget, Inc., 298 NLRB 524 (1990). I find such conduct by
Respondent at the Macomb unit to be violative of Section
8(a)(1) and (5) of the Act and necessarily destructive of the
Union’s status as majority bargaining agent.
B. Withholding of Pay Raise
Clearly, the withholding of an annual pay raise that has
been made a condition of employment, especially when in
negotiations, without first timely notifying the newly certified
bargaining agent of this change in practice, constitutes a vio-
lation of Section 8(a)(1) and (5) of the Act. UARCO, 283
NLRB 298, 300 (1987). The credited facts reveal that the
Union was notified well in advance of the change in past
practice by deferral of the September raise for MAG unit
employees to the bargaining process. Whatever the Union’s
motivation was is not relevant. The fact is the Union acqui-
esced in that change of past practice in September 1990. The
deferral of general wage increases for MAG unit employees
to the bargaining process became a condition of employment
in September 1990. General Counsel’s citation of authority
for the argument that the withholding of the September 1991
raise is a separate, new change of past practice for which
there was no 1991 union waiver, is distinguishable, e.g., suc-
cessive increases in food prices, Rockwell International
Corp., 260 NLRB 1346, 1347 (1982), and changes in em-
ployee purchase plans. Owens-Corning Fiberglass Corp., 282
NLRB 609 (1987). The changes in those cases were succes-
sive changes. In this case, there was only one change and it
occurred in 1990 when the Union acquiesced in it, i.e., the
deferral of MAG unit wage increases to the bargaining proc-
ess and the cessation of automatic annual September raises
for MAG unit employees. In September 1991, there was no
change from September 1990 with respect to MAG unit em-
ployees. The effect or consequence of the 1990 change lived
on, but no new, discrete change occurred.
I agree, therefore, that it is now untimely to litigate the
violation, if indeed there was one, that occurred in September
1990. What occurred in September 1991 is the continuation
of a condition of employment which was instituted in 1990
and acquiesced in by the Union. I find nothing violative
about the nonpayment of a September pay raise to MAG unit
employees in September 1991.
C. The Withdrawal of Recognition
The Board stated over 40 years ago in Celanese Corp:1
By its very nature, the issue of whether an employer
has questioned a union’s majority in good faith cannot
be resolved by resort to any simple formula. It can only
be answered in light of the totality of all the cir-
cumstances involved in a particular case.
Respondent, however, must demonstrate that it had objective
reasons for doubting the Union’s majority status, which en-
joys a rebuttable presumption.2 Such doubt may not be raised
in a context of unfair labor practices of ‘‘such a character
as to either affect the Union’s status, cause employee dis-
affection, or improperly affect the bargaining relationship.’’
Guerdon Industries, 28 NLRB 658, 661 (1975).
A reasonably grounded doubt of majority status justifies a
withdrawal of recognition and refusal to bargain when made
in good faith, upon objective consideration and in a coercion-
free context. U-Save Food Warehouse, 271 NLRB 710, 715
577DETROIT EDISON CO.
3 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(1984); Central Washington Health Services, 279 NLRB 60,
65 (1985); Hohn Industries, 283 NLRB 419 (1987).
Respondent failed to establish credible evidence of actual
loss of majority status. It also failed to establish a reasonable
grounds for such belief, as discussed above in the findings
of fact. The bargaining obligation was placed upon Respond-
ent as a result of a carefully, crafted legal mechanism which
incorporated secrecy of the ballot box and a ‘‘laboratory’’
environment conducive to uncoerced free choice. Having
struggled through the legal processes to become certified, the
Union was barely into the discussion of wages when the Re-
spondent walked away from the table. Respondent did so
when it peremptorily severed a bargaining relationship imme-
diately upon receipt of a piece of paper which was purport-
edly signed by a bare majority of its employees. An exam-
ination of that document, as discussed above, would certainly
raise some doubts, at the very least, as to the genuiness of
one signature, if not several.
Respondent’s alacrity in withdrawing recognition, without
verification of any kind, on the face of a document which
would necessarily raise doubts of authenticity, convinces me
that it did so without a reasonably based good-faith motiva-
tion. Furthermore, Respondent’s direct dealing with unit em-
ployees further enhances that conclusion and also taints the
context of the recognition withdrawal. Accordingly, I find
Respondent violated Section 8(a)(1) and (5) by withdrawing
its recognition of the Union as bargaining agent for the MAG
unit.
CONCLUSIONS OF LAW
1. The Detroit Edison Company is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Local 23, Utility Workers Union of America, AFL–CIO
is a labor organization within the meaning of Section 2(5) of
the Act and has been designated, and is, the exclusive bar-
gaining representative for purposes of collective bargaining
within the meaning of Section 9(b) of the Act for the fol-
lowing appropriate units consisting of:
(a) All operating and maintenance employees of the Re-
spondent’s production department at its Harbor Peach Power
Plant, but excluding supervising operators, student engineers,
training personnel, professional employees, technical employ-
ees, office clerical and plant clerical employees, part-time,
temporary and seasonal employees, guards, foremen, assistant
foremen and all other supervisors as defined in the Act, and
all other employees (the Harbor Beach Power Plant).
(b) All production employees employed by Respondent at
its Marysville Power Plant, but excluding all student engi-
neers, training personnel, assistant foremen, foremen, guards,
technical employees, clerical employees, part-time, temporary
and seasonal employees, and supervisors as defined in the
Act (the Marysville Power Plant Unit).
(c) All nonsupervisory ‘‘A’’ grade employees employed
by the Respondent in its Macomb Division of Energy, Mar-
keting and Distribution organization, in the classifications of
Service Planner; Coordinator Contract C & P; Representative
Real Estate Rights of Way and Claims; Energy Application
Consultant; New Business Planner; Senior Engineering Tech-
nician; Business Analyst; Coordinator Environmental Con-
trol; Customer Business Representative; Sales Staff Assistant;
Coordinator Lines Construction; Contract Coordinator Meter
Readers; Division Instructor; but excluding Senior Service
Planner; Senior Representative Real Estate Rights of Way
and Claims; guards and supervisors as defined in the Act and
all other employees (the Macomb Division Unit).
3. Respondent has engaged in violations of Section 8(a)(1)
and (5) of the Act by its bypassing of the Union and direct
dealing with employees with respect to a condition of their
employment in the Harbor Beach Power Plant, Marysville
Power Plant, and Macomb Division bargaining units, and by
its withdrawal of recognition of and refusal to bargain with
the Union as the exclusive collective-bargaining agent of the
employees in the Macomb Division in that unit as described
above in this decision.
4. Respondent has not committed any other unfair labor
practices alleged in the complaint.
5. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) and (5) of the Act,
I recommend that it be ordered to cease and desist therefrom
and take certain affirmative action designed to effectuate the
policies of the Act.
ORDER3
The Respondent, The Detroit Edison Company, Macomb
County, Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Bypassing the exclusive employee bargaining agent
and dealing directly with employees with respect to condi-
tions of employment in the Harbor Beach Power Plant,
Marysville Power Plant, and Macomb Division collective-
bargaining units.
(b) Withdrawing recognition from and refusing to bargain
with the exclusive employee collective-bargaining agent of
the employees in the Macomb Division collective-bargaining
unit.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain in good faith with
Local 223, Utility Workers of America, AFL–CIO, as the ex-
clusive collective-bargaining representatives of the employees
in the appropriate Macomb Division unit regarding rates of
pay, wages, hours of employment, and other terms and con-
ditions of employment for the employees in that unit, and,
if an understanding is reached, reduce the agreement to writ-
ing and sign it. The appropriate unit is:
All non-supervisory ‘‘A’’ grade employees employed
by the Respondent in its Macomb Division of Energy,
Marketing and Distribution organization, in the classi-
578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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
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.’’
fications of Service Planner; Coordinator Contract C &
P; Representative Real Estate Rights of Way and
Claims; Energy Application Consultant; New Business
Planner; Senior Engineering Technician; Business Ana-
lyst; Coordinator Environmental Control; Customer
Business Representative; Sales Staff Assistant; Coordi-
nator Lines Construction; Contract Coordinator Meter
Readers; Division Instructor; but excluding Senior Serv-
ice Planner; Senior Representative Real Estate Rights of
Way and Claims; guards and supervisors as defined in
the Act and all other employees.
(b) Post at its Harbor Beach and Marysville, Michigan
Power Plants and Macomb Division Headquarters and serv-
ice centers in Macomb County, Michigan, copies of the at-
tached notice marked ‘‘Appendix.’’4 Copies of the notice, on
forms provided by the Regional Director for Region 7, after
being signed by the Respondent’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 employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced
or covered by any other material.
(c) Notify the Regional Director, in writing, within 20
days from the date of this Order what steps the Respondent
has taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT bypass the exclusive employee bargaining
agent and deal directly with employees with respect to condi-
tions of employment in our Harbor Beach Power Plant,
Marysville Power Plant, and Macomb Division collective-
bargaining units.
WE WILL NOT withdraw recognition from and refuse to
bargain with the exclusive employee collective-bargaining
agent of the employees in the Macomb Division collective-
bargaining unit.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL recognize and, on request, bargain in good faith
with Local 223, Utility Workers of America, AFL–CIO, as
the exclusive collective-bargaining representatives of the em-
ployees in the appropriate Macomb Division unit regarding
rates of pay, wages, hours of employment and other terms
and conditions of employment for the employees in that unit,
and, if an understanding is reached, reduce the agreement to
writing and sign it. The appropriate unit is:
All non-supervisory ‘‘A’’ grade employees employed
by the Respondent in its Macomb Division of Energy,
Marketing and Distribution organization, in the classi-
fications of Service Planner; Coordinator Contract C &
P; Representative Real Estate Rights of Way and
Claims; Energy Application Consultant; New Business
Planner; Senior Engineering Technician; Business Ana-
lyst; Coordinator Environmental Control; Customer
Business Representative; Sales Staff Assistant; Coordi-
nator Lines Construction; Contract Coordinator Meter
Readers; Division Instructor; but excluding Senior Serv-
ice Planner; Senior Representative Real Estate Rights of
Way and Claims; guards and supervisors as defined in
the Act and all other employees.
LOCAL 223, UTILITY WORKERS OF AMERICA,
AFL–CIO