Murphy Diesel Co.

National Labor Relations Board - Board Decisions

Jul 31, 1970

184 N.L.R.B. 757 (N.L.R.B. 1970)

MURPHY DIESEL COMPANY
Murphy Diesel Company and District No . 10, Inter-
national Association of Machinists and Aerospace
Workers, AFL-CIO. Case 30-CA-1 141
July 31, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On April 24, 1970, Trial Examiner George J.
Bott issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the Act, and
recommending that it cease and desist therefrom
and take' certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial Ex-
aminer's Decision and a brief in support of its ex-
ceptions.
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
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, brief,
and the entire record in this case, and hereby
adopts the findings,2 conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Murphy Diesel
Company, West Allis, Wisconsin, its officers,
agents, successors, and assigns , shall take the action
set forth in the Trial Examiner's Recommended
Order.
' The Respondent 's request for oral argument is hereby denied as the
record, exceptions , and brief adequately present the issues and the posi-
tions of the Respondent
' The Trial Examiner, under sec Ill, A, I of his Decision , inadvertently
referred to Charles Cupertino as Carpenter This error is hereby corrected
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
GEORGE J . BOTT , Trial Examiner : Upon a charge
184 NLRB No. 87
757
of unfair labor practices filed by District No. 10, In-
ternational Association of Machinists and
Aerospace Workers, AFL-CIO, herein called the
Union , on November 25, 1969, against Murphy
Diesel Company , herein called Employer or
Respondent , the General Counsel of the National
Labor Relations Board issued a complaint and
notice of hearing on January 29, 1970, in which he
alleged that Respondent had engaged in unfair
labor practices in violation of Section 8(a)(1) and
(5) of the National Labor Relations Act, herein
called the Act. Respondent filed an answer, and a
hearing was held before me on February 24 and 25,
1970, at Milwaukee , Wisconsin , at which all parties
were represented . Subsequent to the hearing,
General Counsel and Respondent filed briefs which
have been carefully considered.
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is a Delaware corporation with of-
fices and a plant located in West Allis, Wisconsin,
where it is engaged in the manufacture and sale of
diesel engines. During the year prior to the issuance
of the complaint, Respondent sold and shipped, in
interstate commerce, products valued in excess of
$50,000 to customers located outside the State of
Wisconsin.
Respondent is an employer engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Refusal To Bargain
1. Basic findings
The complaint alleges that Respondent violated
the Act by revising and expanding work rules
governing employee absenteeism and tardiness
without bargaining with the Union. In addition,
Respondent's implementation of the rules by
disciplining employees and withholding holiday pay
from four employees, as well as its refusal to
process grievances filed as a result of Respondent's
withholding holiday pay, are alleged as violations of
the Act. Finally, the complaint also alleges that
Respondent modified the terms of an existing col-
lective-bargaining contract in violation of Section
8(d) of the Act by its actions in denying employees
holiday pay and its refusal to process grievances in
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that connection. Respondent, on the other hand,
denies the basic allegations of the complaint, and,
as an affirmative defense, contends that it had no
obligation to bargain about the work rules; that it
acted in this area in accord with the collective-bar-
gaining contract ; and that the rules and practices
complained of have been effective for many years
with the knowledge and consent of the Union.
Respondent and the Union have been parties to
collective-bargaining agreements for almost 30
years. The contract which was in existence at the
time the events in this case took place is relatively
comprehensive in its coverage, but it contains no
provisions relating to work rules or shop rules as
such. It does, however, have a brief management
rights clause which provides that "except as ex-
pressly limited" in the agreement "all management
functions are reserved to the Company, subject to
the other provisions" of the agreement. The con-
tract also contains in article III provisions governing
the payment of holiday pay which are invoked by
both sides, for the Employer asserts that any denial
of holiday pay to the employees in this case was
strictly in accord with the contract, but the General
Counsel claims that the employees involved would
have been paid holiday pay in accord with past
practice and the terms of the contract if Respon-
dent had not enforced the work rules which he has
alleged were unilaterally imposed.
Lawrence Lindquist has been Respondent's fac-
tory superintendent since approximately June 1968.
Lindquist participates in collective bargaining as
part of the management team and sits in at the
second step of the grievance procedure. He
testified that he is "ultimately responsible" for the
administration and enforcement of employee work
rules but that the rules are enforced in the first in-
stance by the six factory foremen under his im-
mediate supervision.
When Lindquist began to work for Respondent
he found a set of "Shop Work Rules"' posted in the
factory on Respondent's bulletin board. The docu-
ment is only a page and one half long and it had
been prepared by Daley, Lindquist's predecessor,
who had worked for Respondent for a year or two.
As far as attendance and tardiness are concerned,
which is all that we are concerned with in this case,
the rule in the document is very brief and general,
but it does warn employees that any violation of it
"will be cause for dismissal." In essence, it states in
approximately 75 words that the Employer,
because of its relatively small size, is particularly
dependent on employees being on time and regular
in attendance. It urges employees to notify their
foreman or the company nurse if they are going to
be absent, and it cautions them that the Company
cannot condone either excessive absenteeism or
tardiness.'
' So titled in the document
2 It also appears from the testimony of George Cornwall, one of Respon-
dent's officials , that some type of work rule has been posted at Respondent
After Lindquist became superintendent he
prepared and, on November 16, 1968, had posted
"Shop Work Rules" which covered a number of
subjects. The document had now grown to three
pages and its treatment of "Attendance" is
somewhat but not a great deal more detailed than
what he found in the rules posted by his predeces-
sor. With respect to the subject we are concerned
with it reads:
SHOP WORK RULES
A. GENERAL: -
1. These rules have been established to
cover obvious conditions or situations
which would interfere with the orderly,
safe, productive operation of the plant. No
one could possibly cover all conditions or
situations and it may therefore be necessa-
ry to add to these rules from time to time.
2. Except where penalties have been
specified, violations of these rules will
result in disciplinary action which may
vary from a warning notice, to disciplinary
layoff, and/or to discharge depending on
severity and/or frequency.
B. ATTENDANCE:
1. All employees' are expected to be at
work each scheduled work day. Any
absence must be reported by the em-
ployees to his foreman or the company
nurse by 8:30 a.m. of that day. If the em-
ployee wishes to have an absence excused,
he must, on his return to work, present
proof or information concerning the
absence to his foreman for consideration.
Unexcused absences will subject the em-
ployee to discipline and eventual
discharge. A history of excused absences
could interfere with an employee's ability
to perform in his job classification.
2. All employees are expected to be punc-
tual in reporting to work. In order to ob-
tain excuse for lateness; the employee
must present proof or information to his
foreman for consideration. Excessive
unexcused lateness will subject the em-
ployee to discipline, and eventual
discharge.
3. Each employee will punch only his own
time card. Violation will result in
discharge.
4. Whenever an employee leaves the
company premises, except on company
business , he must punch out on his at-
tendance card. Violation will result in
discipline and eventual discharge. Em-
ployees leaving the premises on a service
for many years prior to the rules which Daley posted, but he was hazy about
their content or scope
MURPHY DIESEL COMPANY
job will also punch out their attendance
card.
Lindquist described how the November 16, 1968,
work rules relating to absenteeism and tardiness
worked in practice. Their administration was
"rather loose" and "informal" and enforcement
was "lax." The previous pattern was followed in
that there was no specific person designated to
whom employees should report their absence. Em-
ployee requests for excused absences were usually
oral, often made in a telephone call to the night
watchman, the timekeeper, the nurse, and "occa-
sionally" to the foreman, and many employees did
not call in at all. If an employee planned to be ab-
sent from work in the future he was expected to ex-
plain the case to his foreman and get his permis-
sion . This was the "basic idea," Lindquist said, but
he added that it was not always followed. The same
procedure was supposed to govern tardiness or
leaving the plant early.
When an employee returned to work under the
November 16, 1968, rules he was supposed to
"present proof or information concerning the
absence to his foreman for consideration," accord-
ing to Lindquist, and this he said was "in some in-
stances" required even if the individual had ob-
tained advance permission to be away. He readily
conceded, however, that the company did not
uniformly require the employee to submit any kind
of a written form or excuse for his lateness or
absence prior to August 15, 1969.
With respect to enforcement of the November
16, 1968, rules, Lindquist said that employees who
flagrantly violated them were warned and
disciplined, but no specific formula or procedure
was followed, and the Company attempted to ad-
minister them as reasonably and fairly as it could.
The circumstances in each individual case were
considered and the discipline might range from a
verbal warning to a written warning and on to a
layoff or discharge depending on the employee's
record and the facts in each case.
Lindquist testified that problems in production in
June 1969 caused him to review a number of fac-
tors which enter into productivity . He became
aware of a substantial increase in lost hours of
production because of tardiness and absenteeism,
both excused and unexcused. A weekly survey
revealed that the problem was getting worse and it
was "decided that something needed to be done to
control the amount of absenteeism ." Lindquist said
he reviewed the November 16, 1968, rules on the
subject and noted that they were not only stated in
a general fashion but were being administered in a
"somewhat lax and informal manner." In his words,
he "re-wrote, or reemphasized and clarified and
particularized" the rules on absenteeism and tardi-
ness and published them on August 15, 1969. It is
the publication of these rules without bargaining
with the Union which is the basic violation alleged
in the complaint. As published, over Lindquist's
signature, the rules read:
759
Dated August 15, 1969
From L.L. Lindquist
To All Employees
SUBJECT TARDINESS AND ABSENTEEISM
When an employee accepts a job, one of the
conditions of that employment is that he agrees
to:
(1) Report to work when scheduled and
(2) Report to work on time.
This is essential if the Company is to operate
effeciently. I am therefore taking this means of
re-emphasizing the importance of Shop Rules
#B-2, dated 11/16/68, which are posted on
the bulletin board, and of insisting that each
employee comply with the Shop Rules as
posted.
Each instance of tardiness or absence will be
considered as unexcused until the employee in-
volved offers an acceptable reason for his
tardiness or absence. Forms are available from
the foreman on which the employee may state
his reason for consideration. A reason must be
presented in writing, to his foreman no later
than (2) days after his return to work or follow-
ing tardiness.
Because of the seriousness of the situation,
disciplinary action will be taken for repeated
unexcused instances of tardiness or absentee-
ism. Two instances of unexcused tardiness or
absenteeism in a 3-month period will be con-
sidered sufficient to institute the disciplinary
procedure.
Lindquist testified about how the August 15,
1969, absenteeism and tardiness rules' statement
has been administered. First, as the announcement
states, forms on which the employee can state the
reason for his absence for his foreman's considera-
tion have been supplied to the foreman. The
"clarification" of August 15 specifies that two in-
stances of absenteeism or tardiness in a 3-month
period will be considered sufficient to start discipli-
nary procedure, and Lindquist explained how that
works at present. After the second absence or late
arrival in the stated period Lindquist writes the em-
ployee's supervisor, notes the facts, and alerts him
that the absences or tardiness were unexcused. It
seems that the foreman then warns the employee
orally. After a third unexcused episode, Lindquist
sends another note to the foreman. After a fourth,
the foremen warns the employee in writing, and
after a fifth, a disciplinary layoff of 2 days is im-
posed. The sixth instance results in a 3-day layoff,
and after 7 unexcused absences or hours lost by ar-
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
riving late or leaving earlier the employee is
discharged. Lindquist said that a disciplinary
procedure in "general form" existed prior to Au-
gust 15, 1969, but he conceded that the seven-step
procedure just outlined was new.
The form which the employee may obtain from
his foreman contains space for his reason for
absence and a line for his signature. It also contains
spaces where the foreman may approve or not ap-
prove the absence and make relevant remarks. The
form has lines for the foreman's and the superinten-
dent's signatures. Such forms were never used in
the past.
Respondent maintains yearly attendance records
for each employee. If nothing appears in the blank
space for a particular day it means that the em-
ployee worked that day. If the employee was absent
all or a part of a day a symbol is entered in the
space to indicate the reason for nonattendance.
What is significant in this case is that the letter "E"
entered in the space means that the absence was
excused as far as the Respondent is concerned.
Lindquist's secretary makes a determination about
what symbol to enter based on the forms filled out
by the employee. The forms "quite plainly indicate
whether it's sickness, or whether it's excused or
not," Lindquist said, and therefore it is a fairly
mechanical operation for the secretary to deter-
mine whether she should mark the absence excused
or not. If there is nothing in writing from the em-
ployee, the absence is unexcused, regardless of
whether the employee may have discussed his
absence with his foreman. Exceptions to this rule
occur in extended illness cases, for example, and in
such cases a doctor's certificate is acceptable.
The August 15 bulletin with reference to absen-
teeism and tardiness states that the employee must
present a reason in writing to the foreman "no later
than (2) days after his return to work or following
tardiness." If nothing is submitted by the employee
in writing within the stated period the absence is
unexcused. As indicated earlier, written evidence of
the reason is a new requirement, and the 2-day
limitation also did not exist in the past. Lindquist
cited examples where employees had been listed as
"unexcused" because the form was submitted late
even though the foreman had approved it and
although the excuse was otherwise acceptable.
Since August 15, 1969, a substantial number of
verbal and written warnings have been issued and
employees have been disciplined by 2- and 3-day
layoffs for failure to comply with the directions
contained in the bulletin on absenteeism and tardi-
ness issued on that date. Generally this was true,
according to Lindquist, "because we had no infor-
mation as to why they were absent" even though
the employee may have discussed the reason for his
absence with his foreman. Lindquist said he knew
of no case where an employee's absence had been
ruled excused where he had not completed either
the excuse form or submitted something in writing
from a doctor. After August 15, many employees
refused to complete the excuse form supplied by
the company and in each case his absence was
determined to be "unexcused."3 Warnings and
disciplinary actions remain recorded in employee
personnel files permanently.
Employees Bell, Gertz, Wind, and Hoots did not
receive all or part of holiday pay for Labor Day
1969 and they did not work the day before or after
the holiday as required by article III of the labor
agreement. In each case Lindquist made the deci-
sion not to make the payments. He said Gertz left
the plant early on the day before; Bell was absent
the day before, attending a summons from his draft
board, but this information was only " gossip";
Hoots was late the day before the holiday; and
Gertz was "unexcused." In each case the basic
reason for denial, regardless of what may have been
the true facts, was that the Company had no infor-
mation about the absences because the employees
had submitted nothing in writing to the Company.
A group of employees, some of whom had
worked for the Company for many years, testified
about their experiences since the August 15 an-
nouncement about the rules and the practice and
their treatment before that time. Their testimony is
not substantially in conflict with Lindquist's or
Cornwall's, and I credit it generally, although I find
that one or more of them were in error about the
existence, prior to November 1968, of some rules
in the area we are exploring.
Harold Blunke, employed for 24 years, recording
secretary of Local 339 for 14 years, and now shop
committeeman, testified that all employee contacts
with the Company regarding absences or tardiness
were on an oral basis, usually, in his case, with his
foreman. Nothing in writing was ever required of an
employee, except in the case of an extended illness.
Since August 15, however, he has been required to
ask his formen for a form to fill out when he returns
to work. He gave examples of cases where he had
dental appointments and has been excused by his
foreman before he left, but since he failed to
complete the required form on his return, he was
marked "unexcused." Blunke also testified credibly
and with no contradiction by the foreman involved
that Foreman Banse told him that Lindquist knew
that employee Gertz planned to be absent on his
honeymoon and that he (Banse ) knew that Gertz
had to have a blood test the day before the Labor
Day holiday. Despite Gertz' honeymoon and
Respondent's knowledge of it, he was "unexcused,"
and he also lost part of holiday pay because he was
absent part of the time before Labor Day. Blunke
has now begun to utilize the forms supplied by
3 Numerous records in evidence state in effect or literally that an em-
ployee's absence is "unexcused " because "we did not receive an absentee
or tardy report for those days" involved
MURPHY DIESEL COMPANY
Respondent . Recently he merely wrote "personal
business" in the space supplied for an excuse and
his absence was excused by the Company.
Carpenter 's testimony about a foreman 's authori-
ty to grant time off and excuse absences on an oral
basis in the past was in accord with Blunke's. He
was also involved in attempting to process
grievances for Bell , Wind , Gertz , and Hoots for
their loss of holiday pay for Labor Day. In Bell's
and Wind 's cases, he said that Foreman Boccaccio
said that he expected them to be paid because both
men had informed him that they would be in-
capacitated on the days in question and that Corn-
wall, a company official , knew about Wind 's case.
Carpenter also said that Foreman Kerstein told him
that he expected Hoots to be paid because he had
given him permission to be off work because he had
been subpenaed as a witness in a proceeding. Gertz
had a written excuse from his doctor , Carpenter
said . In his discussions with foremen or higher offi-
cials about grievances , no one suggested to Car-
penter that the men lost pay because no doctor's
certificate or other written evidence had been
presented to the Company . Carpenter 's testimony
about his conversations with foremen is undenied,
for they were not called as witnesses.
Employee Gertz testified that Foreman Banse
cleared his absence with Lindquist for the week in
September when he took his honeymoon and also
let him off work to have a blood test required for a
marriage license . Nevertheless , his absences were
determined to be unexcused , and he lost holiday
pay because he was away a few hours for the blood
test , even though he showed his foreman a note
from the clinic.
Employee Jones had been absent prior to August
1969 on a number of occasions and had not been
warned or disciplined . It was his practice when 'he
was ill to have his wife telephone an office em-
ployee and report it . Nothing was required of him
on his return . In one case since August 1969, even
though the company nurse arranged an appoint-
ment for him at a medical clinic and he remained
under treatment until released on December 1, he
did not receive holiday pay for Thanksgiving
because his December 1 absence was considered
unexcused , despite the fact that the foreman saw
the doctor 's release . When he protested to
Foreman Banse , Banse told him, after checking in
the office , that if he would sign "one of these ex-
cuse slips " the Company would consider paying
him.
Employee Brooks left the plant early in October
1969 to keep an appointment with a doctor which
had been arranged by Respondent 's nurse . He also
appeared at his draft board for his physical on Oc-
tober 24 . In both cases his foremen had approved
his absences , but in both instances they were
recorded as unexcused by Respondent because it
had not received an absentee report from the in-
dividual. Employee Pointek testified that he had
761
been absent prior to August 15, 1969 , because of a
leg injury , but was not warned verbally or in writing
even though he had supplied the Company with no
written information to support his excuse. Since
that time , however , in essentially identical situa-
tions, his absences have been considered unexcused
although the company nurse had sent him home.
Records in evidence show that Lindquist wrote
Banse to the effect that Piontek's absences or early
departure were unexcused because "we did not
receive an absentee report " from the employee.
Employee Behringer has had similar experiences.
After having been marked as unexcused , despite his
foreman 's permission to leave, he asked his
foreman how to avoid receiving warning notices
from Respondent . The foreman told him to fill out
"one of those excuse forms."
Lindquist testified that the "criteria" for deter-
mining whether an employee 's absence or tardiness
should be excused have not changed over the years.
The decision is basically the foreman's, and he said
he has advised his foremen to satisfy themselves
about the validity of the excuse before they ap-
prove the excuse slip . Lindquist , in line with
Respondent 's defense of past practice , stated that
employees have always been warned or disciplined
about absences and he identified certain records
which established that warnings had been issued
and discipline imposed prior to August 15, 1969, in
certain cases . With respect to the employees who
did not get holiday pay for Labor Day, Lindquist
maintained that this had happened to other em-
ployees on other holidays, that it was strictly in ac-
cord with the contract , and that the criteria for
determining whether a man should be paid in ac-
cord with the contract have never changed. In the
cases of the individuals who did not get Labor Day
pay, he said that the Company had no information
from them to sustain a determination that their
absences fell within the exceptions in article III,
which governs holiday pay in the contract.
Lindquist conceded , however , that if the men were
at draft boards , had doctors' appointments, or had
been subpenaed, these would otherwise have been
good excuses.
There is no question about Respondent 's failure
to advise the Union before it posted the August 15
bulletin or to consult with it about whatever
changes in practices flowed from it. There is also
no dispute about its refusal to meet and discuss the
matter thereafter upon the Union 's request.
Lindquist testified that after he became concerned
about loss of production in June 1969 and con-
tinued to survey hours lost through tardiness or ab-
senteeism he did not discuss the matter with the
Union at any time before the August 15 procedure
was adopted because he ," looked on this as purely a
problem of managing the operation of the plant."
He agreed that this "general attitude has (been)
maintained constant and the same since that time,"
and is still the Respondent 's policy.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent did not bargain with the Union be-
fore it posted the November 16, 1968, work rules
and, although the Union did not file a grievance
about it, the Union objected to them orally in its
first monthly meeting with the Company in January
1969,4 and Lindquist recalled that the Union had
indicated that it did not like the rules . As found
above, in the negotiations for the last contract there
was no discussion at all about work rules and their
enforcement or about Respondent's right to make
them.
Immediately following the posting of the August
15, 1969, bulletin Blunke and the Union's shop
chairman met with Lindquist and objected to the
posting. Lindquist indicated to the Union that he
thought the issue was not grievable, but promised
to check on it. When the Union heard nothing from
Lindquist, it wrote the Respondent on September 5,
1969, noted the posting, objected to it, and advised
the Company that it would "be pleased to discuss
the matter with you at your convenience, as we feel
that any change in working conditions at your
Company is a matter for negotiations." The
Respondent replied over Assistant Secretary Corn-
wall's signature that the "matter referred to is and
has been considered a management prerogative and
function."
On November 11, 1969, the Union again wrote
Respondent and, after noting its prior objections to
the posting of work rules without first negotiating
with the Union, advised the Company that it would
refuse to recognize the work rules until " negotia-
tions are completed." The Union also requested
Respondent to discontinue issuing "reprimand
forms" to employees in the unit until the Union was
"in a position to recognize these Work Rules...."
The Company replied the next day and told the
Union that its position remained unchanged.
On November 10, 1969, Cupertino, shop com-
mitteeman , filed a grievance claiming a violation of
contract in the denial of holiday pay to employees
Bell, Wind , Gertz, and Hoots. Cornwall wrote Cu-
pertino on November 21, 1969, and told him that
the subject of the grievance was "not a grievable
matter under the collective bargaining agreement."
During the hearing in this matter, Respondent's
counsel stated more than once that he would stipu-
late that "the company will not bargain on these
work rules because of the existing law and because
of the existing facts and records in this case."
2. Analysis, additional findings, and conclusions
Plant rules, particularly where penalties are
prescribed for their violation, clearly affect condi-
tions of employment and are mandatory subjects of
collective bargaining.5 When, therefore, Respon-
' According to Blunke's credited testimony , the rules were distributed to
employees as they returned to work after a strike, and the January meeting
was the first meeting after the strike
s Miller Brewing Company, 166 NLRB 1822, enfd 408 F 2d 12 (C A 9),
dent on August 15, 1969, posted work rules
governing employee absenteeism and tardiness, ad-
mittedly without prior notice and bargaining with
the Union, it violated the Act unless the posting
was a mere statement of existing rules or unless the
Union had waived its right to bargain about the
subject. Contrary to Respondent's position, I find
that the August 15, 1969, publication was not just a
restatement of existing company policy and prac-
tice and that the Union had not in any way con-
sented to permit Respondent to act unilaterally in
this area.
It may be accepted that when Superintendent
Lindquist joined Respondent he found posted on
the Employer's bulletin board a set of shop rules,
but it stated only that the Company could not con-
done either excessive absenteeism or tardiness on
pain of dismissal. It is logical, and I accept Corn-
wall's testimony, that employees had been
disciplined in prior years under this rule and
Respondent's policy, but what was' "excessive"
tardiness or absenteeism was never defined, and
there were no detailed provisions for reporting
absences or any enforcement machinery main-
tained. The narrowness and simplicity of any rule
that did exist made the plea contained in it almost
hortatory.
As described by employees and admitted by
Respondent, any rule on the subject before
Lindquist became superintendent was loosely en-
forced and the practice remained essentially the
same after he drafted and posted another set of
rules on November 16, 1968, without consulting
with the Union which represented the employees.
These published rules had more in them than those
that existed before. Absences were supposed to be
reported to the foreman or the company nurse on
the day the employee was away. When an employee
returned to work he was supposed to "present
proof or information concerning the absence to his
foreman for consideration." But again, admittedly
and in accord with employee testimony, employees,
in individual cases, reported off to their foreman,
the nurse, the timekeeper, and even the night
watchman or a girl in the office if they unexpec-
tedly were unable to report for work. If they knew
they would be away they obtained their foreman's
permission, and whether absent, late, or leaving the
plant early, once permission was granted by the
foreman they rarely, if ever, submitted anything to
him on their return, either in writing or orally, ex-
cept in the case of extended illnesses . The system
was "loose" and "lax" in all its stages , including en-
forcement through warnings or discipline. Although
I credit Respondent's testimony that under the
November 16, 1968, rules employees were warned
and disciplined because of excessive absences, it is
The Little Rock Downtowner, 145 NLRB 1286, 1304-05, Timken Roller
Bearing Company, 70 NLRB 500, Tudee Products, Inc, 176 NLRB 968,
Donna Lee Sportswear, 174 NLRB 800
MURPHY DIESEL COMPANY
clear from Lindquist's testimony that discipline was
usually imposed in only "flagrant" cases on a case-
by-case basis and according to the circumstances in
each case. The rule itself did not provide any
specific penalties or disciplinary procedure for in-
fractions, although it stated generally that violations
would result in disciplinary action ranging from
warnings to layoff to discharge depending on
"severity" and "frequency" of violations.
The August 15, 1969, publication of rules
governing absences and tardiness was occassioned
by Lindquist's determination that production
problems were related to excessive lost hours. Ap-
parently' the old rules were not effective and
something else was needed. Although Lindquist
said that he "re-wrote, or reemphasized and
clarified and particularized the rules on absentee-
ism and tardiness and published them on August
15, 1969," the newly published rules were mote
than this because they contained new requirements
on their face and radically changed the past prac-
tice in their operation.
Where the old rules did not require a written ex-
planation for excuse for an absence but asked only
that the employee supply his foreman with "proof
or information" on his return, the new rules pro-
vided that the "reason must be presented in writ-
ing," and forms for this purpose to be signed by
employee and the foreman for Lindquist's final ap-
proval were made available. A second change ap-
peared in the requirement that the written excuse
must be presented "no later than (2) days" after
the employees returned to work. A third resulted
from the announcement that "two instances of
tardiness or absenteeism in a 3-month period will
be considered sufficient to institute the disciplinary
procedure." There had been no time limit within
which an employee needed to present an excuse in
the past, and, as a matter of fact, as already found,
if prior approval had been obtained or the Com-
pany notified in some way about the absence, no
further communications of any kind were necessary
upon return to work in the usual case. Similarly,
there had been no quota of absences or other hours
lost or time period in which to count them in the
past, but, as indicated in more detail earlier, it was
administered on an individual basis.
The added requirements found in the August 15
publication were not just appeals for employee
cooperation for they were literally enforced. Em-
ployee Becker, according to Lindquist, twice had
his absences disapproved by Lindquist, even though
his foreman had approved the written excuses he
had submitted, only because the excuses were
presented beyond the 2-day limit. And as found
earlier and noted again below in respect to holiday
pay, employees who had obtained prior permission
from their foreman to be absent or whose absences
would have been approved on their merits had their
' N L R B v Miller Brewing Company, 408 F 2d 12, 15 (C A 9), in
N L R B v Hilton Mobile Homes, 387 F 2d 7 (C A 8), relied on by
763
absences considered unexcused only because they
had submitted nothing in writing to support them.
This was true in some cases even though the com-
pany nurse had arranged for the employee to obtain
medical attention. In short, Lindquist and Cornwall
conceded that, except in the exceptional case, if
there is nothing in the records in writing from the
employee, the absence is automatically and
"mechanically" recorded as "unexcused" by cleri-
cal employees.
Lindquist' also set up a formalized seven-step
disciplinary procedure to enforce the new rules,
and he admitted that this procedure was new. After
a number of offenses of unexcused absences or
tardiness after which an employee had been in
sequence orally warned, warned in writing, and laid
off for 2 days and then 3, he is finally discharged.
There was nothing so formal, final, and inevitable
in the Company's rules or practices before August
15, 1969, and records in evidence show that
Respondent has strictly enforced these revisions
and expansions since that time by issuing a great
many warnings in all stages of the new procedure
and has imposed a substantial number of disciplina-
ry layoffs for failure to comply with the changes.
All these disciplinary actions remain permanently
recorded in the employee's personnel file.
Even if the Union had indicated acquiescence by
silence when Respondent posted rules or
disciplined employees in this area in the past, there
would be no waiver in the circumstances of this
case, not only because the August 15, 1969, posting
made sufficient changes, in Respondent's rules and
practices to require bargaining about them, but also
because a right once waived is not necessarily lost
forever.6 I also find that there is nothing in the
labor agreement between the parties which existed
at the time the events in this case took place which
could conceivably give Respondent the right to
take unilateral action on this subject.
I find and conclude, therefore, that Respondent
made a material, substantial, and a significant
change in its rules and practices on and after Au-
gust 15, 1969, which vitally affected employee
tenure and conditions of employment generally.
Since these changes were made without bargaining
with the Union, Respondent violated Section
8(a)(5) and (1) of the Act.
I also find that Respondent, since August 15,
1969, by issuing verbal and written warnings, and
by assessing 2- and 3-day disciplinary layoffs to em-
ployees for failure to comply with its illegally im-
posed and implemented work rules, violated Sec-
tion 8 (a)(5) and (I) of the Act, in that it continued
to change the terms and conditions of employment
of employees in the unit without consulting or bar-
gaining with the Union about the very premise
which purported to support these disciplinary ac-
tions.
Respondent, the change was insignificant and the parties had bargained
about it
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the Union wrote Respondent shortly
after the August 15, 1969, rules were posted and
asked to discuss the matter on the ground that
"changes in working conditions ... is a matter for
negotiations ," and although the Company refused,
advising the Union by letter of September 8, 1969,
that the subject was "a management prerogative
and function," there is no allegation in the com-
plaint that this refusal to bargain after the Respon-
dent had taken unilateral action in posting and im-
plementing the rules was also a violation of Section
8(a)(5) of the Act. The issue was thoroughly
litigated, however, for the evidence went in without
objection and company witnesses were examined
about their positions in the matter. Moreover, as set
out earlier, Respondent's counsel stipulated that
Respondent refused and continues to refuse to bar-
gain about the particular work rules governing
tardiness and absenteeism involved in this case. I
find, therefore, -that by refusing to bargain about
work rules on absenteeism and tardiness since Au-
gust 15, 1969, Respondent also violated the-Act.'
Respondent's denial of Labor Day holiday pay to
employees Gertz, Hoots, Wind, and Bell and its
refusal to recognize or process the grievance filed
by the Union on their behalf over the denial on the
ground that "this is not a grievable matter under
the collective bargaining contract" was a logical
but illegal extension of its position that it had no
duty to bargain about rules on absenteeism and
tardiness because they involved management
prerogatives.
Respondent argues that the denial of holiday pay
was unrelated to the August 15 rules and governed
solely by the criteria for determining holiday pay
set forth in the labor contract which it maintains
have never changed. The fallacy in this argument is
that although the criteria have not changed, that is,
to be paid for the holiday an employee must work
all or part of the day before or after a holiday un-
less his absence is caused by such things,,for exam-
ple, as "bona fide illness ... jury duty, being sub-
poenaed as a witness, or ... conditions beyond his
control . . " the method for substantiating the
reason for the absence has changed by reason of
Respondent's unilateral action in requiring written
proof in each case. Respondent's denial of holiday
pay to four men flows from the modified rule,
because, as set out earlier, each of the four had a
reason for being absent which Lindquist admitted
would have qualified them for holiday pay if true.
Management representatives knew what the
reasons were, and the only action the men had not
taken to qualify was to submit written absence ex-
cuse forms on their return to work. Since this was
r Miller Brewing Company, I I 1 NLRB 831 This is not inconsistent with
my position in denying General Counsel 's motion , made at the hearing, to
amend the complaint to add an allegation that "Since on or about February
18, 1970, during negotiations for a new collective bargaining agreement,
by refusing to bargain with the Union over the subject of employee work
rules," Respondent also violated the Act General Counsel appealed by rul-
an illegally prescribed condition, the employees had
no duty to comply with it.
When Respondent refused to consider the
grievance filed in connection with the lost holiday
pay on the ground that they were not "grievable
matters under the collective bargaining contract,"
it could not and does not claim to have been taking
the position that claims for vacation pay were
generally not grievable. All that it could have
meant was that its actions in the four cases were
controlled by the August 15 rule requiring written
evidence to support an absence. The men had not
complied with the rule, and so their complaints
were not "grievable" in Respondent's view because
they were the result of an action which Respondent
felt fell within its prerogative. This action was not
merely a good-faith determination that there was
no contractual obligation to process a particular
grievance up to and through arbitration, but a re-
jection of any obligation to consult, discuss, and
bargain about rules on absenteeism and tardiness
generally.'
By denying holiday pay to the four men, and by
failing to process their grievances, Respondent vio-
lated Section 8(a)(5) and (1) of the Act, as the
complaint alleges.
For a number of years prior to August 15, 1969,
there had been no requirement that employees
must submit written evidence to support an absence
in order to qualify for holiday pay under the con-
tract. By imposing this condition after the most
recent contract was signed, Respondent modified
the terms of the labor agreement without the con-
sent of the Union in violation of Section 8(d) of the
Act, thereby violating Section 8(a)(5) and (1) of
the Act.
It ought to go without saying after the 35 years
that collective bargaining has been the national pol-
icy that the duty to bargain does not require the
parties to agree, but it is also worth pointing out
that the record in this case shows some confusion
on both management's and the employees' part
about what the new rules really mean, as well as
some resentment over and rebellion against their
enforcement. This, of course, is not conducive to
the best kind of bargaining in the negotiations for a
new agreement which are presently taking place
and could lead to the kind of industrial unrest
which the Act was designed to prevent. It is at least
conceivable that if the Union had been or should be
consulted about the rules, it might come up with
some reasonable suggestions which might help al-
leviate some of the confusion and unrest existing in
ing to the Board, and the Board denied the appeal General Counsel has
renewed his motion in his brief, and I deny it again for essentially the same
reasons which I stated on the record at the hearing
" Danner Press , Inc , 153 NLRB 1092, 1107, enforcement denied 354
F 2d 230 (C A 6), cf Central Illinois Public Service Company, 139 NLRB
1407, 1417-18, P R Mallory & Co., Inc, 171 NLRB 457
MURPHY DIESEL COMPANY 765
its ranks.9 At least, it seems to me, it is worth a try,
and in case this last paragraph of a much too long
decision is overlooked, I will recommend that the
Board issue an order to that effect.
Upon the foregoing findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is` an employer engaged in com-
merce, and the Union is a labor organization within
the meaning of the Act
2. The Union is the statutory representative of
employees in the following appropriate unit:
All employees engaged in production and
maintenance of the plant, including stockroom
and shipping employees, but excluding
foremen, chief inspector, engineering depart-
ment personnel, tool design engineers, all cleri-
cal or office employees, and plant guards.
3. Respondent refused to bargain with the Union
in violation of Section 8(a)(5) and (1) of the Act
since on or about August 15, 1969, by revising and
expanding rules governing employee absenteeism
and tardiness without prior notice or bargaining
with the Union; by refusing to meet and discuss
such work rules and the discipline imposed
thereunder with the Union on request since Sep-
tember 8, 1969; by issuing and continuing to issue
verbal and written warnings since August 15, 1969,
and assessing 2- and 3-day disciplinary layoffs to
unit employees for failure to comply with said uni-
laterally promulgated and implemented work rules;
by withholding holiday pay from employees Gertz,
Bell, Wind, and Hoots as a result of enforcement of
new work rules and by refusing to recognize or
process a grievance filed on their behalf in connec-
tion with said denial; by modifying the terms of the
then-existing collective-bargaining contract in
violation of Section 8(d) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices , it will be recommended that
it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally promul-
gating and implementing rules on absenteeism and
tardiness , it will be recommended that said rules
and the procedure devised to enforce them shall be
rescinded and withdrawn. It will also be recom-
mended that Respondent restore the status quo
which existed at the time of its unlawful actions by
rescinding all disciplinary actions resulting from
violation or failure to comply with the unilaterally
revised rules and to make whole those employees
who were laid off solely as a result of the uni-
laterally revised rules. It shall also be recommended
that employees Gertz, Bell, Wind, and Hoots be
paid full holiday pay for the 1969 Labor Day
holiday.10 In all cases of lost pay the amounts shall
be computed in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289, with interest added
thereto in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716. It may be that in cer-
tain cases an employee's absence would not have
been excused even if he had submitted a written ex-
cuse on one of Respondent's forms, however, it will
be Respondent's obligation at the compliance stage
of this proceeding to disentangle the effects of its
own unfair labor practices."
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in
the case, it is recommended that Respondent, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Revising, expanding, promulgating, and
thereafter enforcing work rules governing employee
absenteeism and tardiness without bargaining with
the Union.
(b) Refusing on request of the Union to discuss
and negotiate with it about the revision, expansion,
promulgation, and enforcement of work rules
governing absenteeism and tardiness affecting em-
ployees in the appropriate unit.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their bargaining rights.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Cancel and withdraw the August 15, 1969,
rules on absenteeism and tardiness.
(b) Cancel and withdraw from employee files all
disciplinary actions which resulted from failure to
comply with the revised rules and make whole all
employees who were laid off solely as a result of the
unilaterally imposed rules in the manner set forth in
"The Remedy" section of this Decision.
(c) Make whole employees Gertz, Bell, Wind,
and Hoots for the holiday pay they did not receive
for Labor Day' 1969, in the manner set forth in
"The Remedy" section of this Decision.
(d) Upon request bargain with the Union about
"There was no emergency Lindquist studied the problem for many
weeks and had ample time to consult with the Union Even if Respondent
were acting in good faith and motivated only by legitimate business con-
siderations, it was obligated to bargain with the Union before it made the
changes in the circumstances of this case N L R B v Katz, 369 U S 736,
743, 747, 748, Murphy Motors, Inc, 178 NLRB 15, The Little Rock
Downton ner , Inc , supra at 1304-05
10 Fibreboard Paper Products Corp v N L R B , 379 U S 203, Overnite
Transportation Co v N L R B , 372 F 2d 765, 768 (C A 4), cert denied
389 U S 838
ii See N L R B v Remington Rand, Inc, 94 F 2d 862, 872 (C A 2),
Bigelow v RKO Radio Pictures , 327 U S 251, 264-265
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the promulgation, content, and enforcement of
plant rules governing absenteeism and tardiness af-
fecting employees in the bargaining unit and if
agreement is reached embody it in a signed con-
tract.
(e) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due and to assist in determining
compliance with the recommendation respecting
rescission of all disciplinary actions.
(f) Post at its plant in West Allis, Wisconsin, co-
pies of the attached notice marked "Appendix. 1112
Copies of said notice, on forms provided by the Re-
gional Director for Region 30, after being duly
signed by an authorized representative, shall be
posted by Respondent upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(g) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.13
12 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals , the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
13 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read " Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps 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
WE HAVE canceled and withdrawn the Au-
gust 15 , 1969, revision of plant rules governing
absenteeism and tardiness.
WE HAVE canceled and withdrawn from em-
ployee files all disciplinary actions which
resulted from failure to comply with the Au-
gust 15 , 1969, revised rules.
WE WILL make whole any employees laid off
solely for their failure to comply with the Au-
gust 15 , 1969, revisions in our rules on absen-
teeism and tardiness by paying to them the
wages they lost by reason for the layoffs.
WE WILL pay employees Gertz, Wind, Bell,
and Hoots the holiday pay they did not receive
for Labor Day 1969.
WE WILL , upon request of District No. 10,
International Association of Machinists and
Aerospace Workers , AFL-CIO, bargain about
the posting , content, and enforcement of plant
rules governing absenteeism and tardiness.
WE WILL NOT adopt or post new rules about
absenteeism and tardiness without first bar-
gaining with the Union.
WE WILL NOT in• any other like or related
manner interfere with , restrain , or coerce em-
ployees in their right to bargain collectively
through the above Union.
MURPHY DIESEL
COMPANY
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be de-
faced by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not
be altered , defaced, or covered by any other
material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board 's Office , Second Floor , Commerce Build-
ing, 744 North Fourth Street , Milwaukee, Wis-
consin 53203, Telephone 414-272'-3861.