GTE Automatic Electric Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1979

240 N.L.R.B. 297 (N.L.R.B. 1979)

GTE AUTOMATIC ELECTRIC INCORPORATED 297
GTE Automatic Electric Incorporated and Office and
Professional Employees International Union, Local
28, AFL-CIO. Case 13-CA-17139
January 26, 1979
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on December 20, 1977, by
Office and Professional Employees International
Union, Local 28, AFL-CIO, herein called the Union,
and duly served on GTE Automatic Electric Incor-
porated, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 13, on January 31,
1978, issued and served on the parties a complaint
and notice of hearing alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended.
The General Counsel alleged that on or about Oc-
tober 26, 1977, and continuing to date, Respondent
violated Section 8(a)(1) of the Act by distributing lit-
erature to its employees stating that nonunion sala-
ried employees might be eligible to participate in Re-
spondent's saving and investment plan. The General
Counsel further alleged that commencing on or
about October 26, 1977, and continuing to date, Re-
spondent has unlawfully refused and continues to re-
fuse to bargain collectively with the Union with re-
gard to the availability of Respondent's "General
Telephone & Electronics Corporation Savings & In-
vestment Plan," herein called the Plan, to employees
in the unit represented by the Union. Respondent
filed a timely answer to the complaint denying the
commission of any unfair labor practices.
On June 28 and 29, 1978, the parties executed a
stipulation wherein they agreed that certain docu-
ments, including the charge, complaint, and notice of
hearing, answer, and stipulation of facts, shall consti-
tute the entire record herein, expressly waived a hear-
ing before an Administrative Law Judge and the is-
suance of an Administrative Law Judge's Decision,
and submitted the case directly to the National La-
bor Relations Board for findings of fact, conclusions
of law, and an Order based on the record.
By an order dated August 17, 1978, the Board ap-
proved the stipulation of the parties, ordered the pro-
ceeding transferred to the Board, and granted per-
mission and time for the filing of briefs. Thereafter,
the General Counsel and Respondent filed briefs.
240 NLRB No. 30
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
On the basis of the stipulation, the briefs, and the
entire record of this proceeding, the Board makes the
following findings:
I. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation engaged in
the manufacture of telephone equipment. During the
past calendar year, a representative period, Respon-
dent, in the course and conduct of its business opera-
tions, sold and distributed from or at its Northlake,
Illinois, facility products and materials valued in ex-
cess of $50,000, which were shipped directly to points
located outside the State of Illinois.
The parties stipulated, and we find, that Respon-
dent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and we find that it
will effectuate the purposes of the Act to assert juris-
diction herein.
11. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Office and
Professional Employees International Union, Local
28, AFL-CIO, is, and at all material times has been,
a labor organization within the meaning of Section
2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
The parties stipulated that during the relevant pe-
riod, the Union has been and is now the exclusive
representative for employees in the unit described
below, for the purpose of collective bargaining with
respect to rates of pay, wages, hours, and other terms
and conditions of employment:
Blueprint machine operators, bookkeepers,
bookkeeping machine operators, correspon-
dents, dictating machine operators, office boys,
special messengers, switchboard operators, post-
ing machine operators, order editors, comptom-
eter operators, keypunch operators, tabulating
machine operators, clerks, typists, stenogra-
phers, secretaries, duplicating machine opera-
tors, statistical typists in the General Accounting
Department, stock record analysts, order ana-
lysts, production schedulers, production chasers,
clerks in the Payroll and Cost Accounting De-
partment, accountants, clerks in Engineering
Departments, shop clerks, assistants to foreman;
but excluding tool designers, time-study and rate
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
setters, time and motion engineers, technicians,
photographers, nurses, matrons, laboratory as-
sistants, factory complaint investigators, people
in charge of manufacturing layouts, engineers,
draftsmen and draftswomen, people in charge of
construction and maintenance, chemists, cash-
iers, buyers, employees in the Personnel Depart-
ment, employees in the Michigan Avenue of-
fices, the assistant to the factory superintendent,
professional employees, technical employees,
confidential employees, managerial employees
and supervisors.
The General Counsel and Respondent also stipu-
lated that Respondent announced its intention to im-
plement the Plan by distributing a letter dated Octo-
ber 26, 1977, to its nonunion salaried employees.
Both this announcement and a later bulletin to em-
ployees dated November 11, 1977, stated that non-
union salaried employees could voluntarily join the
Plan, but failed to discuss the availability of the Plan
for unionized employees. Respondent's prospectus,
which was distributed to nonunion salaried employ-
ees in late 1977, and the Plan's document, which was
not distributed, make it clear that, in fact, employees
represented by a union were eligible to participate if
their collective-bargaining agreements so provided.
While the Plan's eligibility clause is not unlawful on
its face, the circulars misrepresented the availability
of the Plan and left employees unaware of the possi-
bilities of negotiating for the inclusion of unionized
employees. In the absence of any evidence that the
coercive effects of these misrepresentations were ever
neutralized,' and because the misstatements, by their
very nature, interfered with employees' rights, we
find that Respondent violated Section 8(a)(1) by dis-
tributing its October 26, 1977, and November 1977
circulars.2
The General Counsel also alleges that Respondent
unlawfully refused to bargain about implementing
the Plan for unionized employees. It is well estab-
lished that, during the existence of a collective-bar-
gaining contract, a union has a right to bargain about
the implementation of a term and condition of em-
ployment, and an employer must bargain about a
mandatory subject of bargaining not specifically cov-
ered in the contract or unequivocally waived by the
union.3
In defense of its refusal to negotiate, Respondent
Western Foundries, Inc.. 233 NLRB 1033 (1977).
2 Melville Confections, Inc. v. N L.R. B., 327 F.2d 689 (7th ('ir. 1964). cert
denied 377 U.S. 933: The Rangaire Corporation, 157 NLRB 682 (1966): The
B F Goodrich Company. 195 NLRB 914 (1972).
1N L Industries. Inc. 220 NI.RB 41 (1975), enfd. 536 F.2d 786 (8th (Cir.
1976); Elizabethtown Water Company, 234 NLRB 318 (1978); Perkins Ma-
chine Company. 141 NLRB 98, 102 (1963), enfd. 326 F.2d 488 (Ist (Cir. 1964).
contends that article 14 of the collective-bargaining
agreement constitutes an express waiver 4 by the
Union. As we stated in The B. F. Goodrich Co.,5 "[l]t
is inconceivable that a party to an agreement can
waive something which was not in existence or even
proposed at the time of the alleged waiver." In the
instant case, the Union never sought, demanded, or
tried to negotiate for a savings and investment plan;
and, in fact, the Plan had not yet even been con-
ceived. Therefore, the Union could not have waived
its right to bargain about it. Furthermore, there is no
evidence of any exchange of benefits or contractual
provisions at the time the waiver was included in the
agreement.
Consequently, we find that the language of the
waiver clause is not an express waiver of the Union's
right to bargain about the implementation of the
Plan.
Accordingly, we hold that Respondent has, since
November 3 and 30, 1977, and at all times thereafter
to date, refused to bargain collectively with the
Union as the exclusive representative of the employ-
ees in the appropriate unit with respect to the imple-
mentation of the Plan, and that, by such refusal, Re-
spondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (I) of the Act.
IV. T'HE EFFECT OF TIlE UNFAIR ABOR PRACTICES UPON
COMMER('E
The activities of Respondent set forth in section
111, above, occurring in connection with its opera-
tions described in section 1, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
4Art. 14, Waiver, reads:
The parties acknowledge that during the negotiations which resulted
in this Agreement, each had the unlimited right and opportunity to
make demands and proposals with respect to any subject or matter not
removed by law from the area of collective bargaining, and that the
understanding and agreements arrived at b the parties after the exer-
cise of that right and opportunity are set forth in this agreement. There-
fore, the Company and the Union, for the life of this Agreement, each
voluntarily and unqualifiedly waives the right, and each agrees that the
other shall not be obligated to bargain collectively with respect to any
subject or matter referred to, or covered in this Agreement, or with
respect to any subject or matter not specifically referred to or covered
by this Agreement even though such subject or matter may not have
been within the knowledge or contemplation of either or both of the
parties at the time they negotiated or signed this Agreement.
195 NLRB at 919 (1972).
GTE AUTOMATIC ELECTRIC INCORPORATED 299
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) and (5) of the Act, we shall
order that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the pol-
icies of the Act. We will accordingly order that Re-
spondent amend any brochures, notices, or literature
by eliminating from each of said documents which
describe the Plan the misrepresentation that only
nonunion salaried employees may participate in the
Plan. We will also order that Respondent, upon re-
quest, bargain collectively with the Union as the ex-
clusive representative of all employees in the appro-
priate unit with respect to implementation of the
Plan for unit employees and, if an understanding is
reached, embody such in a signed agreement.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following constitutes an appropriate unit
for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act:
Blueprint machine operators, bookkeepers.
bookkeeping machine operators, correspon-
dents, dictating machine operators, office boys,
special messengers, switchboard operators, post-
ing machine operators, order editors, comptom-
eter operators, keypunch operators, tabulating
machine operators, clerks, typists, stenogra-
phers, secretaries, duplicating machine opera-
tors, statistical typists in the General Accounting
Department, stock record analysts, order ana-
lysts, production schedulers, production chasers,
clerks in the Payroll and Cost Accounting De-
partment, accountants, clerks in Engineering
Departments, shop clerks, and assistants to fore-
man; but excluding tool designers, time-study
and rate setters, time and motion engineers,
technicians, photographers, nurses, matrons,
laboratory assistants, factory complaint investi-
gators, people in charge of manufacturing lay-
outs, engineers, draftsmen and draftswomen,
people in charge of construction and mainte-
nance, chemists, cashiers, buyers, employees in
the Personnel Department, employees in the
Michigan Avenue offices, the assistant to the
factory superintendent, professional employees,
technical employees, confidential employees,
managerial employees and supervisors.
4. The above-named labor organization has been
at all times material herein and is now the exclusive
representative of all employees in the aforesaid ap-
propriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By publicizing and misrepresenting to its em-
ployees in October and November 1977 that the Plan
was available only to salaried nonunion employees,
Respondent has violated Section 8(a)(1) of the Act
by interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act.
6. By refusing on or about November 3 and 30,
1977, and at all times thereafter to bargain collective-
ly about the implementation of the Plan with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
7. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(l) of the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
GTE Automatic Electric Incorporated, Northlake,
Illinois, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Announcing and misrepresenting to its em-
ployees that the General Telephone & Electronics
Corporation Savings & Investment Plan is available
only to salaried nonunion employees.
(b) Refusing to bargain collectively concerning
the General Telephone & Electronics Corporation
Savings & Investment Plan and related matters with
Office and Professional Employees International
Union, Local 28, AFL-CIO, as the exclusive bar-
gaining representative of its employees in the follow-
ing appropriate unit:
Blueprint machine operators, bookkeepers,
bookkeeping machine operators, correspon-
dents, dictating machine operators, office boys,
special messengers, switchboard operators, post-
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing machine operators, order editors, comptom-
eter operators, keypunch operators, tabulating
machine operators, clerks, typists, stenogra-
phers, secretaries, duplicating machine opera-
tors, statistical typists in the General Accounting
Department, stock record analysts, order ana-
lysts, production schedulers, production chasers,
clerks in the Payroll and Cost Accounting De-
partment, accountants, clerks in Engineering
Departments, shop clerks, and assistants to fore-
man; but excluding tool designers, time-study
and rate setters, time and motion engineers,
technicians, photographers, nurses, matrons,
laboratory assistants, factory complaint investi-
gators, people in charge of manufacturing lay-
outs, engineers, draftsmen and draftswomen,
people in charge of construction and mainte-
nance, chemists, cashiers, buyers, employees in
the Personnel Department, employees in the
Michigan Avenue offices, the assistant to the
factory superintendent, professional employees,
technical employees, confidential employees,
managerial employees and supervisors.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Amend all brochures, notices, literature, an-
nouncements, or documents which describe the Plan
and are issued to employees by (I) eliminating from
said documents the misrepresentation that only non-
union salaried employees may participate in the Plan
and (2) including appropriate language which accu-
rately reflects the Plan's eligibility requirements.
(b) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid unit with respect to the
General Telephone & Electronics Corporation Sav-
ings & Investment Plan and related matters, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(c) Post at Northlake, Illinois, copies of the at-
tached notice marked "Appendix." 6 Copies of said
notice, on forms provided by the Regional Director
for Region 13, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 13. in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 In the event that this Order is enforced by ajudgment 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT announce and misrepresent to
our employees that participation in our General
Telephone & Electronic Corporation Savings &
Investment Plan is available only to salaried
nonunion employees.
WE WILL NOT refuse to bargain collectively
concerning the General Telephone & Electron-
ics Corporation Savings & Investment Plan and
related matters with Office and Professional
Employees International Union, Local 28,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described be-
low.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL correct our documents and inform
our employees that employees represented by a
labor organization or union may be eligible for
the General Telephone & Electronics Corpora-
tion Savings & Investment Plan if a collective-
bargaining agreement provides for the participa-
tion of such employees.
WE WILL, upon request, bargain with the
above-named Union. as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to the General Tele-
phone & Electronics Corporation Savings &
Investment Plan and related matters, and, if an
understanding is reached, embody such under-
standing in a signed agreement. The bargaining
unit is:
Blueprint machine operators, bookkeepers,
bookkeeping machine operators, correspon-
dents, dictating machine operators, office
boys, special messengers, switchboard opera-
tors, posting machine operators, order editors,
comptometer operators, keypunch operators,
GTE AUTOMATIC ELECTRIC INCORPORATED 301
tabulating machine operators, clerks, typists,
stenographers, secretaries, duplicating ma-
chine operators, statistical typists in the Gen-
eral Accounting Department, stock record an-
alysts, order analysts, production schedulers,
production chasers, clerks in the Payroll and
Cost Accounting Department, accountants,
clerks in Engineering Departments, shop
clerks, and assistants to foreman; but exclud-
ing tool designers, time-study and rate setters,
time and motion engineers, technicians,
photographers, nurses, matrons, laboratory
assistants, factory complaint investigators,
people in charge of manufacturing layouts,
engineers, draftsmen and draftswomen, peo-
ple in charge of construction and mainte-
nance, chemists, cashiers, buyers, employees
in the Personnel Department, employees in
the Michigan Avenue offices, the assistant to
the factory superintendent, professional em-
ployees, technical employees, confidential em-
ployees, managerial employees and supervis-
ors.
GTE AUTOMATIC ELECTRIC INCORPORATED