Indiana Bell Telephone Co.

National Labor Relations Board - Board Decisions

Sep 29, 1980

252 N.L.R.B. 544 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Indiana Bell Telephone Company, Incorporated and
Local 336, International Brotherhood of Electri-
cal Workers, AFL-CIO. Case 13-CA-18420
September 29, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 25, 1980, Administrative Law Judge
Peter E. Donnelly issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and the Charging Party filed exceptions and a sup-
porting brief, and Respondent filed an answering
brief to the exceptions filed by the General Coun-
sel and the Charging Party.
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.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge: The
charge herein was filed on February 5, 1979, by Local
336, International Brotherhood of Electrical Workers,
AFL-CIO, herein called the Charging Party or the
Union. A complaint thereon was issued on August 3,
1979, alleging that Indiana Bell Telephone Company, In-
corporated, herein called Fmployer or Respondent vio-
lated Section 8(a)(5) of the Act by refusing to arbitrate
contract grievances anywhere except Indianapolis, Indi-
ana. An answer thereto was timely filed by Respondent.
Pursuant to notice a hearing was held before me in Chi-
cago, Illinois, on January 21, 1980. Briefs have been
timely filed by General Counsel, Charging Party, and
Respondent which have been duly considered.
FINDINGS OF FACT
1. JURISDICTION
The Employer is an Indiana corporation maintaining a
place of business in Highland, Indiana, and at other facil-
ities located in Lake County, Indiana, where it is en-
252 NLRB No. 85
gaged in providing long-distance interstate and interna-
tional telecommunications services. During the past cal-
endar or fiscal year, Respondent in the course and con-
duct of its business operations, received gross revenues in
excess of $1 million and purchased and received at its
facilities in Lake County, Indiana, goods and materials
valued in excess of $50,000, which goods and materials
were shipped to the Employer from points located di-
rectly outside the State of Indiana. The complaint al-
leges, the Respondent in its answer admits, and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11. THE ABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. Al.I.EGID UNFAIR ABOR PRACTICE S
A. Facts
The employees in the unit involved in this matter are
employed by Respondent in Lake County, Indiana, locat-
ed in the northwest corner of Indiana. Beginning in 1947
these employees were represented by the Union under a
succession of contracts with Illinois Bell Telephone
Company. The contracts with Illinois Bell contained
grievance and arbitration procedures. The Union's offices
are located in Oak Brook, Illinois, a suburb of Chicago, a
distance of some 60 miles from Merrillville in north cen-
tral Lake County. The Respondent's headquarters are in
Indianapolis, Indiana, some 160 miles from Merrillville.
In July 1976, Illinois Bell's Lake County operations
were purchased by Respondent. After this acquisition,
Respondent employed about 11,000 employees, all locat-
ed in Indiana, including about 7,300 represented by the
Communication Workers of America (CWA), in a sys-
temwide unit. About 600 are represented by the Union in
the Lake County area. Another 200 employees represent-
ed by CWA are also located in Lake County.
After the purchase, an issue arose over the representa-
tion of the Lake County employees, with the Union con-
tending that it was entitled to represent them in a sepa-
rate unit, while Respondent and CWA contended that
they were an accretion to the existing statewide unit rep-
resented by CWA. The matter was eventually resolved
when the CWA disclaimed any interest in representation
as to the Lake County employees and in July 1977 Re-
spondent voluntarily recognized the Union.
Effective August 7, 1977, Respondent and the Union
entered into a 3-year contract containing grievance ma-
chinery including an arbitration provision, which is silent
as to the location where the arbitrations are to be held.
That matter was never discussed in the contract negotia-
tions leading to the contract. It is undisputed that Re-
spondent has never refused to meet to discuss the matter
of the situs of arbitration.
Prior to the purchase, while the Lake County employ-
ees were employed by Illinois Bell, all the arbitrations
were held in Chicago. Also, prior to the purchase, all the
arbitrations under the CWA contracts were held in In-
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INDIANA BELL TEI.EPHONE COMPANY, INCORPORATED
dianapolis, where some 55 percent of Respondent's em-
ployees are employed.
After the execution of the August 7, 1977, contract,
the problem of the situs of arbitrations mainifested itself
when the first grievance came to arbitration. Thomas
Beagley, president of the Union, testified that in a tele-
phone conversation between himself and Thomas Do-
herty, Respondent's assistant vice president of personnel,
Beagley suggested that the arbitration be conducted in
Merrillville. Doherty responded that he wanted the arbi-
tration held in Indianapolis since that was the headquar-
ters of Respondent. Beagley complained about the addi-
tional expense involved for the Union in travel and lodg-
ings, but Doherty reiterated that the Company preferred
that arbitrations be held in Indianapolis. Rather than
delay the arbitration, Beagley agreed to hold the arbitra-
tion in Indianapolis, where he told Doherty that the next
arbitration was going to be held in "our territory," and
again Doherty expressed Respondent's preference for ar-
bitrations to be held at Employer headquarters in Indian-
apolis.
Beagley also testified about another conversation with
Doherty in January 1979 pursuant to a second grievance.
After having been advised by Robert Tunnell, chief ste-
ward of the Union, that a Baldauf, district manager for
labor relations for Respondent, had refused as a matter
of company policy to hold the arbitration in Lake
County, Beagley called Doherty, who again told him
that it was Employer's preference to hold arbitrations in
Indianapolis. During this conversation, Doherty rejected
suggestions by Beagley that they alternate the arbitra-
tions between Indianapolis and Lake County, or that the
arbitrator be allowed to select the location. In August
1979, Bob Bloss, Respondent's division manager of Per-
sonnel, in a telephone conversation with Beagley, was
asked by Beagley about Respondent's position on the lo-
cation of arbitrations. While Bloss indicated that he was
interested in settlement of this matter, he rejected sugges-
tions by Beagley that all arbitrations be held in Lake
County or that the situs be alternated between Indiana-
polis and Oak Brook, Illinois.
In early December 1979 Beagley and Doherty met
again. Doherty testified that Beagley told him that the
Union "was contemplating joining the bargaining issue
with the situs of arbitration issue in this proceeding and
that he wanted me to come back to him with a position
regarding the situs of bargaining after we had an oppor-
tunity to discuss it internally."
On December 20, 1979, in a telephone conversation
with Beagley, Doherty testified about the possibility of
settling the issue "on the basis of alternating the locations
of arbitrations between Lake County and Indianapolis."
He further testified, "We also discussed the status of bar-
gaining. That we will be willing to bargain early on in
the bargaining process in Lake County. I think I alluded
to perhaps the first 45 of the 60-day period, during
which bargaining is normally conducted. The first 45
days being conducted in Lake County and then, at that
point in time, the bargaining would revert to Indianapo-
lis until its conclusion." This proposal was unacceptable
to Beagley who took the position that all the contract
negotiations and arbitrations should take place in Lake
County, except for the possibility of a final week of bar-
gaining as to local negotiations being held in Indianapo-
lis. This counterproposal was not acceptable for Re-
spondent. This same proposal was reiterated by Doherty
to Beagley in January 1980 and was again rejected by
the Union. Respondent's revised position, as of the date
of the instant hearing, is that it is willing to hold half of
the arbitrations in Lake County and half in Indianapolis.
B. A4nalysis and Conclusion
The General Counsel takes the position that it is un-
lawful, as a refusal to bargain, for Respondent to insist
that all arbitration be held in Indianapolis. Further, that
Respondent is legally obligated to hold contract arbitra-
tions near the location of the facilities where the Re-
spondent's employees are employed, i.e., Lake County.
The essential facts are not in dispute. The Union wants
the arbitrations held in Lake County, primarily because
of the additional expense and inconvenience which it
incurs by reason of the distance between Lake County
and Indianapolis. Respondent's position is that arbitra-
tions should be held in Indianapolis since all of its arbi-
trations of all other represented employees are held
there, and necessary employer records and personnel are
located there.
Initially Respondent took the position that all arbitra-
tions would have to be held in Indianapolis. However, in
later discussions that position was modified, as set out in
the record, until at the time of the hearing Respondent
was willing to alternate arbitrations between Indianapolis
and Lake County. However this proposal was not ac-
ceptable to the Union, which felt that all arbitrations
should be held in Lake County.
These facts do not reveal an intransigent employer
taking an inflexible position. While no formal negotia-
tions have taken place on the issue, the record discloses
substantial movement by the Employer and is simply an
example of a negotiable item on which the parties have
failed after some discussion and compromised to reach
agreement. Section 8(d) of the Act, in defining the
mutual obligation of employers and unions to bargain
provides, "but such obligation does not compel either
party to agree to a proposal or require the making of a
concession." It is not within the province of an adminis-
trative law judge or any other tribunal to impose on
either party a concession where they were unable to
reach agreement after bargaining in good faith thereon. I
shall not impose any concession on Respondent despite
the fact that good-faith bargaining has not produced a
solution.
The General Counsel also argues that Respondent is
legally obligated to conduct all arbitrations in Lake
County and that Respondent's position or "insistence" to
the contrary violates Section 8(a)(5) of the Act.
In the first place, I have found no "insistence" on the
part of Respondent that all arbitrations be conducted in
Indianapolis. Indeed, through discussion, this position
was modified substantially to the point where alternating
arbitration locations would have been acceptable, but
this compromise was rejected by the Union. As to the
contention that all arbitrations must be held in Lake
545
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
County. since that is where the employees are employed.
I reject this per se approach. In order to find an 8(a)(5)
violation in Respondent's proposal that arbitrations be
held in Indianapolis the facts must disclose that such pro-
posal is unreasonable or predictably unacceptable and
they do not.
General Counsel's reliance on the Board's Semlperfit
case' is misplaced. This was a case in which an employ-
er refused to accede to a union's request that the next
bargaining session be conducted in Oakland, California,
near where the bargaining unit employees were located
rather than in Los Angeles, California. Since this posi-
tion caused a strike, the Board concluded, in an agree-
ment with an administrative law judge, that it was an
unfair labor practice strike. The Board held that the em-
ployer's refusal to meet or negotiate at or near the plant
whose employees were involved in the negotations was
an 8(a)(5) violation. An administrative law judge's deci-
sion, adopted by the Board, after an exposition of several
cases, states, "Although in none of the cases was the sole
evidence of refusal to bargain in good faith the refusal to
meet at or near the site of the plant in controversy, it
does appear from said cases that such a refusal is evi-
dence of a violation of Section 8(a)(5) and (I) of the Act.
Therefore, I am forced to conclude that Respondent's in-
sistence that the fourth session be held in Los Angeles
instead of Oakland was violative of said section of the
Act." 2
However, there are compelling distinctions to be
drawn between Semperfit and the instant case. In Semnper-
fit, the dispute involved the situs of contract negotiations
and the fundamental question of representation. In the in-
stant case the parties are operating under a negotiated
contract, which includes a grievance procedure and the
dispute involves only the locus of the arbitrations.
Whether or not the Board will adopt the "per se" ap-
Semperfit. Inm., 237 NLRB 478 (1978).
2 Snper.fi was ordered to "bargain in good faith with the aforesaid
union at a reasonable location near its Union City [Oaklandl plant."
proach it appears to have taken in Senperfit on the facts
of the instant case is at least an open question.
Moreover, the reasonableness of the basis for the posi-
tion taken as to the situs of the contract negotiations may
involve different criteria in contract negotiations where
the basic issue of representation is involved, as compared
to the issue here, involving only the situs of arbitrations
under an existing grievance procedure. Whatever consid-
erations may have prompted the Board to adopt an ad-
ministrative law judge's conclusion that Semperfit violat-
ed Section 8(a)(5) of the Act, by insisting that the next
negotiating session be held in Los Angeles, and his order
that bargaining be conducted near the Oakland plant,
those considerations should not be transferred and ap-
plied to the instant case since the subject matter of the
dispute and the facts herein clearly distinguish it from
Semperfit.
In summary, I conclude that Respondent has not, as
alleged in the complaint, refused to arbitrate anywhere
except Indianapolis, Indiana, and further that Respondent
was not obligated to agree to conduct all the arbitrations
in Lake County. Accordingly, I shall recommend that
the complaint herein be dismissed.:3
CONCI.USION Or: LAW
Respondent has not engaged in any conduct violative
of the Act.
Upon the foregoing findings of fact and conclusions of
law, I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.
:' In the esenrt no exceptions are filed as provsided by Sec 10246 of the
Rules and Regulalions of the National .abhor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec 102 48 of the Rules ad Regulations. be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall he deerelld waived for all purposes.
546