Durfee's Television Cable Co.

National Labor Relations Board - Board Decisions

Feb 18, 1969

174 N.L.R.B. 611 (N.L.R.B. 1969)

DURFEE'S TELEVISION CABLE CO. 611
Durfee's Television Cable Company and Jack Davis
and Local Union No. 968, International
Brotherhood of Electrical Workers, AFL-CIO.
Cases 9-CA-4689 and 9-CA-4777
February 18, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
1968; that Respondent violated Section 8(a)(3) by
suspending employee Jack Davis for 2 days on March 15,
1968, and by laying him off on March 27, 1968, because
of his union activities. The complaint, as amended, further
alleges that Respondent violated Section 8(a)(1) of the Act
by the foregoing conduct and by threats of discharge to
employees for failure to meet the unilaterally established
production standards.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
General Counsel and Respondent, I make the following '
On October 31, 1968, Trial Examiner Henry L.
Jalette issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in unfair labor practices as alleged in the
complaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a brief in support of its exceptions.
The Respondent filed an answering brief to the
General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
Trial Examiner's .findings, conclusions, and
recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed.
TRIAL EXAMINER' S DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Trial Examiner- This case was tried
in Parkersburg, West Virginia, on September 18, 1968,
pursuant to a complaint issued on July 16, 1968, based
upon a charge in case 9-CA-4689, filed on April 17, 1968,
by Jack Davis, and a charge in Case 9-CA-4777, filed on
June 21, 1968, by Local Union No. 968, International
Brotherhood of Electrical Workers, AFL-CIO, hereinafter
referred to as the Union. The complaint, as amended,
alleges that Durfee's Television Cable Company,
hereinafter referred to as Respondent, violated Section
8(a)(5) of the National Labor Relations Act, as amended,
by unilaterally establishing and/or enforcing production
standards on March 15, 1968, and refusing to meet with
the Union to bargain with respect thereto on April 4,
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent is a West Virginia corporation engaged in
the operation of a communication system in conjunction
with Trans-Muskingum, Inc., and operates a master
television antenna for the transmission of television signals
by cable. During the 12 months preceding issuance of
complaint, Respondent, in conjunction with its operations
for and on behalf of Trans-Muskingum, Inc., had a gross
volume of business in excess of $100,000 and during the
same period purchased goods and materials directly from
points outside the State of West Virginia valued in excess
of $50,000. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. The Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Unilateral Changes In Working Conditions
On June 22, 1966, after an election in which the Union
had been certified, and after negotiations, Respondent and
the Union entered into -a collective-bargaining agreement
effective from May 26, 1966 through May 26, 1968.
Article VII, section 9, provided that the company would
post company rules so that all employees would be
notified and aware thereof.
As the Respondent had no written rules, it was
necessary for it to prepare some, which it did and which it
submitted to the Union with the comment that there
would possibly be changes or additions at a later date.
The Union voiced no objection. The company rules were
then attached to the agreement.
The first rule provided that, "Each employee will keep
a daily work report showing number of units completed."
On July 1, 1967, Respondent posted new company rules.
The first rule was unchanged, but, in addition, Respondent
posted on the same date the following.
NOTICE TO ALL INSTALLERS
Minimum work requirements
Any installer who has been with the Company and
had at least one (1) week training with a veteran
installer and a minimum of two (2) weeks experience in
the field, will install a minimum of five (5) units per
'Respondent's Motion to Dismiss made at the trial, on which I reserved
ruling, is disposed of in accordance with the findings and conclusions
herein
174 NLRB No. 98
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day. Should the new man indicate that he is not
capable, through either .aptitude or attitude to achieve
this minimum requirement, he will be dropped from
employment.
Any veteran installation man with a years experience
is required to average ' a minimum of six (6) units,
totally completed, in the course of one (1) day.
However, the Company realizes that there are
exceptions to each job unit, and there will be days when
the minimum requirement may not be attained.
Therefore, the daily averages will be figured by the
week. Any installer who fails to maintain this minimum
average requirement will be warned in writing the first
instance, penalized with a two (2) day layoff the second
instance. The third instance he will be terminated with
the Company.
WORK UNITS
A. Original installation 1.00 work unit
B. Second Tap .75 work unit
C. Reconnect .50 work unit
D. FM tap installed without TV tap 1.00 work unit
E. FM tap .50 work unit
F. Cable Change .50 work unit
G. Add Cable .50 work unit
H. Cable removed completely .50 work unit
1. Delinquent Account Collected .30 work unit
J. Pulls .30 work unit
K. Time on other work per hours 1.00 work unit
All averages these past weeks have exceeded 6 points
per man, including new men. The Company does not
infer that 6 points per day is a goal, but a minimum.
A copy of the notices was given to the union steward,
and 1 or 2 days later, he suggested to Superintendent
Francis that the period for measuring production should
cover a period of 6 months, rather than a week.
Superintendent Francis told him the company could not
afford subnormal performances for 6 months before it
could issue a reprimand.
The notices were discussed at a regular meeting of
members on the third Monday of July 1967. On July 24,
1967, Union Representative Nolte sent a letter to
Respondent's president, Charles Erickson, advising him
that the Respondent's establishment of a work standard
had been brought to his attention, that he had searched
the agreement and could find no provision in there for the
Respondent's right to unilaterally establish a work
standard,2 and that from his recollection of past
negotiations he did not know that there had ever been any
discussion of a wage settlement based on the amount of
output of any employee. Nolte therefore requested that if
Respondent felt a standard was now necessary that it sit
down in a conference to work out the details. The letter
concluded with a suggestion that these matters should be
discussed and requested a reply as to the possible time and
place.'
'Article 1, section 7 of the agreement provides.
Article I. Section 7
The employer shall have the right to hire, determine qualifications, lay
off, or discharge for just cause, as defined in article V, section 4, manage
the operation of the company to its best interest and reserves the right to
direct the work assignment of all employees , so long as it is not in
violation of any other provision of this agreement.
'Although Nolte also adverted to another new rule, the only issue raised
in the complaint with regard to the new rules is Respondent's
promulgation of a rule fixing production standards and the penalties for
Respondent did not reply to the letter, and its only
explanation for its failure to-do so was inadvertence.
According to Nolte, the first time that he received any
indication that the production standards were being
enforced was on March 17, 1968, when employee Jack
Davis informed him that he had received a disciplinary
layoff of 2 days. I do not attach any weight to this
testimony. It is undisputed that on August 17, 1967, the
Respondent had notified Jack Davis by letter that for the
week ending August 11 his production had fallen below
the minimum weekly average of six work units and that a
repetition of such failure would call for a disciplinary
layoff.
On October 13, 1967, Respondent had again notified
Davis by letter that for the week ending October 6, his
average production had again fallen below the minimum
weekly average of six work units. The letter proceeded to
discuss Davis' excuse for such failure, and in
acknowledgement thereof Respondent stated it was not
taking any disciplinary action at this time. The letter
concluded by stating that the next time Davis did not
attain the required average for the week he would be given
a mandatory layoff of 2 days without pay.
On March 15, 1968, Respondent sent a letter to Jack
Davis notifying him that he was being laid off for 2 days,
March 18 and 19, because of his failure to maintain the
minimum weekly average of six work units for the week
ending March 15.
On March 21, Davis filed a grievance over the 2-day
suspension on the grounds that it was levied against him
on the basis of a production schedule which had never
been a part of the working agreement.
On March 22, the Respondent replied that Davis had
been notified on August 17 and October 13, 1967 and
January 8, 1968, of his substandard work production and
that he had been advised if such continued there would be
a disciplinary layoff. Accordingly, Respondent felt that it
was justified in suspending him for 2 days.
On April 4, a grievance meeting was held which was
attended by Union Representatives Nolte and Mees,
Steward Gant and Unit President Hemingway.
Respondent was represented by Erickson and
Superintendent Francis.
Union Representative Mees testified that he stated if
Respondent ". . . so desired work units that I felt that we
could get together at the bargaining table and work this
out . .
According to Nolte, he told Erickson he felt the
disciplinary action was unjust because based on standards
about which he had written to the company and about
which he had offered to sit down and negotiate. Nolte
stated that if work standards were still necessary the
Union would be willing to try to work out something
However, he did not specifically request bargaining on the
subject, nor did he request a meeting.
On April 16, the Union advised Respondent by letter
that in accordance with the provisions of the
collective-bargaining agreement it wished to proceed to
arbitration on the grievance. Respondent did not reply and
no further action was thereafter taken to bring the matter
to arbitration. Union Representative Nolte testified,
however, that he understood that the Union could not
pursue an arbitration and an unfair labor practice at the
same time.
Shortly before the May 26 expiration date of the
contract, Respondent and the Union met and negotiated a
not meeting the standards Accordingly, there is no need to set forth any of
the other rules
DURFEE'S TELEVISION CABLE CO. 613
new contract which was made effective from May 26,
1968 through May 26, 1971. Unlike the first contract, this
contract had no company rules attached thereto although
it contained the same provision as before for the posting
of company rules (Article VII, Section 9) with the added
language ". . . and the Company shall notify the Union of
any changes in Company rules for possible discussion
prior to posting."
Union Representatide Nolte did not know why the
company rules were not attached to the contract and the
only testimony offered with regard to the additional
language in Article VII, Section 9 was Nolte's testimony
that "if the Company was going to establish further rules
in the future, that we would at least sit down and discuss
what the Company felt was necessary prior to any posting
and so forth."
The Union did not request discussion of the production
standards in the negotiations and they were not discussed.
The reason given by Nolte for the Union's failure to
request discussion was that it felt it was not necessary.
Nolte further stated that the Union felt Respondent would
not discuss the issue in view of its earlier stated position
that the matter was a management right.
B. The Alleged Discriminatory Suspension and
Layoff of Jack Davis
Jack Davis has been employed by Respondent as an
installer since 1965. The principal job of an installer is to
connect the Respondent ' s television cables to the homes of
subscribers to permit them to receive television signals.
Davis was , active in the Union ' s organization campaign
and was union observer at the election which the Union
won in 1966. He was a member of the negotiating
committee, and after the collective -bargaining agreement
was signed he was vice-president of the bargaining unit
until February 1967 when he was discharged
Pursuant to an arbitration award Davis was reinstated
on or about June 24 , 1967, and he continues to be
employed to this date . There is no evidence that he
engaged in any activity on behalf of the Union from the
date of his reinstatement and the only protected activity in
which he engaged was his filing a grievance on March 21,
1968 because of the 2-day suspension given to him for
failure to meet the production standards unilaterally
established.
On March 27 , 1968, Davis was notified that he was
temporarily laid off for lack of work . At that time, except
for an employee on military leave, Davis was next to last
on the seniority list and the least senior man was similarly
notified of his layoff. In addition , a temporary employee
chose to terminate his employment when notified that he
was being laid off.
III. ANALYSIS AND CONCLUSIONS
It is undisputed that when Respondent established
production standards on July 1, 1967, it acted unilaterally.
Had a charge been filed within 6 months of that action, I
would find Respondent's conduct violative of its
obligations under Section 8(a)(5) of the Act. The question
of production standards is clearly a mandatory subject of
bargaining. Production standards had not been in
existence, nor had they been discussed in negotiations, and
no provision of the contract, nor Respondent's statement
to the Union in negotiations in 1966 that the company
rules attached to the contract were not all inclusive and
that it might add to them, could be deemed to establish a
clear and unmistakable waiver.'
Since no charge was filed with respect to Respondent's
action until April 17, 1968, Section 10(b) precludes a
finding that the unilateral conduct was violative of the
Act. General Counsel concedes this. But General Counsel
has alleged in paragraph 8(a) of the complaint that
Respondent refused to bargain by: "On or about March
15, 1968 in unilaterally changing the terms and conditions
of employment of its employees by establishing and/or
enforcing production standards and work units or quotas,
without prior notice to or consultation with the Union."
Since General Counsel put into evidence the Notice to
All Installers dated July 1, 1967, as well as the evidence of
its enforcement against Davis on August 17 and October
13, 1967, it is difficult to understand on what basis it is
alleged in the complaint that the violation occurred on
March 15, 1968. General Counsel appears to have a
twofold argument: (1) Respondent had not enforced its
rule against Davis in January 1968 when he failed to meet
the production standards so that they were dormant and
when Respondent invoked the rule on March 15, it was
unilaterally departing from the practice established by its
inaction in January and unilaterally reinstituting the
dormant rules; (2) since the standards were unlawfully
adopted, the act of enforcement against Davis was
unlawful.
The first part of General Counsel's argument is simply
not supported by the record. It is abundantly clear that
from the time the production standards were posted
Respondent expected its employees to comply with them.
The written warnings to Davis attest to this fact. The
testimony that Davis was given oral warnings on January
3 and in the week preceding his suspension does not
evidence that the rule on production standards had been
abandoned or that it was dormant; rather, it evidences,
like the written warnings, the continuing vitality of the
rule. It is true that the Respondent, beginning with the
October 27 warning, had not invoked the disciplinary
measures described in its July 1, 1967 notice, and the oral
warnings were not provided for in the Notice to Installers;
nevertheless, it would be a distortion of fact to say that
Respondent's failure to adhere strictly to the disciplinary
schedule described in the notice established an
abandonment of the rule and that the 2-day suspension on
March 27 was a re-establishment of the rule and a new
unilateral act.
If General Counsel is to prevail, it must be on the
ground that the enforcement of a unilaterally and
unlawfully adopted rule is in and of itself independently
violative of Respondent's obligation under Section 8(a)(5)
of the Act. In order to sustain such a finding, however, it
would be necessary to go back and rely on the time-barred
unilateral conduct of July 1, 1967. Both Local Lodge
1424, International Association of Machinists v. N.L.R.B.
(Bryan Manufacturing Company), 362 U.S. 411, and
Bowen Products Corp., 113 NLRB 731, teach that such
an approach is at odds with Section 10(b). The cases cited
by General Counsel, as well as all others of which I am
aware, in which a violation was found, have one thing in
common: the illegality was established by evidence
independent of the time-barred conduct, generally, a
written provision unlawful on its face. The necessity for
such evidence is highlighted in Great Lakes Carbon
Corporation, 152 NLRB 988, one of the cases relied upon
by General Counsel, where the Board stated,
Cloverleaf Division of Adams Dairy Co , 147 NLRB 1410, 1412; The
Timken Roller Bearing Co , 138 NLRB 15, enfd. 325 F 2d 746 (C.A. 6).
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The gravamen of the instant unfair labor practices
rests upon the Respondent's barring ' of job
opportunities to employees Pritchard, Thompson, and
Whetstine within the 10(b) period pursuant to
superseniority provisions contained in a contract which
was executed outside the 10(b) period. Therefore, in
order to sustain our findings herein, it is essential that
we find, as we do, that independently of the legality of
the execution of the contract,' the provisions themselves
are discriminatory on their face (Emphasis supplied.)
In the footnote, the Board distinguished the Bryan and
Bowen Products cases. In the instant case there is nothing
discriminatory on the face of the Notice to All Installers
and I find the case indistinguishable from Bryan and
Bowen Products. Accordingly, I shall recommend that the
allegations that Respondent violated Section 8(a)(5) and
(1) of the Act by unilaterally establishing and/or enforcing
production standards be dismissed.'
As to the allegation that Respondent violated Section
8(a)(5) and (1) by refusing to bargain about the
production standards on April 4, under the circumstances
disclosed, a finding of a violation is not warranted. In the
first place, it does not appear that the Union effectively
sought to bargain about the standards. The April 4
meeting was a grievance meeting and it is clear all that
the Union requested was revocation of Davis' 2-day
suspension on the ground the production standards had
not been agreed to. Coupled with this was a suggestion
that the matter could be bargained about. At no time,
however, was a request made for bargaining. Although
Respondent had taken the erroneous position that the
issue was one of management prerogatives, I am not
persuaded that it had so expressed itself as to warrant a
finding that a request to bargain would have been futile
and was therefore unnecessary.6
In the second place, the record as a whole contains
substantial evidence that the Union had acquiesced in
Respondent's adoption of production standards. This
acquiescence is demonstrated by its failure to act from
July 24, 1967, when Respondent failed to reply to its
timely protest, to the time of the processing of the
grievance on April 4, 1968. Thereafter, despite the fact
that Davis had been suspended for failure to meet the
standards, the Union undertook to negotiate a new
contract without mentioning the subject of production
standards, content to modify the contract provision on
company rules to prevent a recurrence.7 Despite persistent
questioning, Nolte was unable to offer any satisfactory
reason for the Union's avoidance of the subject in the
negotiations. The reason may lie in the statement
attributed to Nolte by union members, and testified to by
Superintendent Francis, that when Davis brought one of
the warning letters to a union meeting, he was told by
Nolte "... to get off his tail and go to work...." For
the foregoing reasons, I shall recommend that the
allegation that Respondent violated Section 8(a)(5) and (1)
on April 4 by refusing to bargain about production
standards be dismissed.,
Finally, 'the allegations that Respondent suspended
Davis on March 15 and laid him off on April 3 because of
his union activities are not supported by the evidence.
Davis' union activity occurred long before his suspension
and layoff and there is not a scintilla of evidence that the
Respondent entertained any animus against him or the
Union. It is undisputed that on the occasion of each
warning given Davis and on the occasion of his 2-day
suspension, he had failed to meet the production
standards. While he was the only employee warned or
suspended for this reason, he was the only employee who
was failing to meet the standards. As to Davis' layoff on
March 27, it is undisputed that the layoff was in
accordance with seniority and there is no evidence to
refute the Respondent's assertion that the layoff was due
to a lack of work. No one was hired to replace Davis and
no additional overtime was worked. The work performed
by technician Delaney, as described by Davis, was not the
type of work Davis performed. For all the foregoing
reasons, I shall recommend that the allegations that
Respondent suspended Davis on March 15 and laid him
off on March 27 because of his union activities be
dismissed.
CONCLUSIONS OF LAW
1. Respondent , Durfee 's Television Cable Company, is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. General Counsel has failed to establish by a
preponderance of the evidence that Respondent violated
Section 8 (a)(5), (3), or (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, it is recommended that the complaint,
as amended, be dismissed in its entirety.
'It follows from this conclusion that the allegation that Respondent
violated Section 8(a)(l) by threatening employees with layoff or discharge
for failure to meet the production standards should also be dismissed
'Cf. Motoresearch Company and Kems Corporation, 138 NLRB 1490,
1493 Of course, no request to bargain on the subject would have been
necessary had not 8 months elapsed since the unilateral adoption of the
standards.
'Cf Justesen's Food Stores, Inc., 160 NLRB 687, fn. 2
'In his brief, General Counsel states that Respondent's refusal to
arbitrate the Davis grievance was violative of Section 8(a)(5) of the Act
The complaint does not allege such a violation, the evidence does not
support it; and a refusal to go to arbitration as provided by contract is not,
in itself, a refusal to bargain. Textron Puerto Rico (Tricot Division), 107
NLRB 583, 584.