NCR Corp.

National Labor Relations Board - Board Decisions

Aug 24, 1984

271 N.L.R.B. 1212 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NCR Corporation and Allied Services Division,
Brotherhood of Railway, Airline & Steamship
Clerks, Freight Handlers, Express & Station
Employees, AFL-CIO. Case 4-CA-11744
24 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 2 March 1982 Administrative Law Judge
Thomas R. Wilks issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in opposition
to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, l findings, 2
and conclusions only to the extent consistent with
this Decision and Order.
The judge found that the Respondent violated
Section 8(a)(1) and (5) of the Act by unilaterally
transferring unit work out of its Philadelphia dis-
trict office to its Paoli, Pennsylvania Rework
Center and by eliminating the job classification of
rework technician at the Philadelphia district
office. We disagree.
The pertinent facts are as follows:
The Respondent maintains a data processing op-
eration whose Field Engineering Division in the
United States consists of 15 regions. Each region
contains one or more district offices, some of
which have sub or branch offices. Certain employ-
ees of the Respondent's Philadelphia district and
five other districts are represented by the Union
and are covered by a collective-bargaining agree-
ment for a bargaining unit which, since September
1979, has included rework3 technicians. Article
XXIII of the collective-bargaining agreement
states:
We deny the Respondent's motion to reopen the record to introduce
additional evidence relating to the parties' past practice in implementing
interdistrict work transfer.
2 We note that, in his findings of fact, the judge inadvertently refers to
the Respondent's labor relations representative Maurice Herron rather
than BRAC International representative Jesse Pelham as the individual
notified on 14 August 1980 of the Respondent's intention to transfer unit
work. The judge's decision is modified accordingly.
a Rework is the repair of faulty circuit board components of data pro-
cessing equipment performed, prior to December 1980, at the Respond-
ent's district offices. Rework also entails the repair of power supply
transformers. This latter type of rework is most often performed at the
customer's plant.
271 NLRB No. 175
TRANSFERS
1. There shall be no transfers out of this Dis-
trict except by mutual agreement between the
parties.
2. Employees transferred into the District shall
be placed on the seniority list in accordance
with their most recent date of hire except for
layoff purposes. For layoff purposes, seniority
shall be determined by the date on which such
employees entered the District. If bargaining
unit employees are transferred from one Union
represented District to another, they will
retain their seniority in their prior District so
that in the event of a layoff in the new Dis-
trict, they will be allowed to exercise their se-
niority in the prior District.
3. No employees shall be transferred or hired
into the District until all employees on layoff
status have been given the option to exercise
their recall rights as provided in Article XIX.
However, such restriction does not apply to
the demotion of management within the Dis-
trict into the bargaining unit, provided that the
manager's seniority is greater than [that of]
those employees on layoff at the time of
his/her demotion.
Article XXIV states:
1. Nothing in this Agreement shall be con-
strued to restrict the employer's right to con-
solidate, merge, or reorganize any District.
2. However, upon reaching such a decision to
consolidate, merge, or reorganize the District,
the Corporation will notify the Union no less
than six (6) weeks in advance of the effective
date of such action. The Union then has the
right, during that period of time, to request
meetings with management to discuss and ne-
gotiate the effect, if any, this consolidation,
merger, or reorganization will have upon the
affected employees. In the event the parties
fail to agree on the conditions of such a con-
solidation, merger, or reorganization, then the
Union may submit the dispute directly to Arbi-
tration. However, it is agreed that the oper-
ation of this Article shall not restrict manage-
ment's rights to make territory and work as-
signments.
On 14 August 1980 the Respondent informed the
Union that, as part of a four-step restructuring of
its data processing operations, it planned to remove
rework from its district offices and consolidate
rework functions at a newly created independent
office in Paoli, Pennsylvania. Neither party re-
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NCR CORP.
quested bargaining and by December 1980 rework
had been transferred from all district offices to
Paoli. This included the removal of bargaining unit
work from the Philadelphia district office, elimina-
tion of the job classification of rework technician,
and removal of four bargaining unit members from
that district office.
Contrary to the conclusion of the judge, we do
not find that the Respondent failed to comply with
Section 8(d) of the Act. Rather, we find that its im-
plementation of the work transfers was in accord-
ance with its reasonable interpretation of the par-
ties' contract. As the judge correctly observes, arti-
cles XXIII and XXIV of the parties' agreement
give rise to different and conflicting interpretations.
By the General Counsel's and the Charging Party's
interpretation, articles XXIII and XXIV are mutu-
ally exclusive: Article XXIII establishes an obliga-
tion on the Respondent's part to obtain the Union's
consent before proceeding with an interdistrict
transfer, and article XXIV applies only to "merger,
consolidation or reorganization" within a given dis-
trict-i.e., to intradistrict transfers. The Respond-
ent, on the other hand, argues that article XXIV
governs both interdistrict and intradistrict transfers
and constitutes an effective waiver by the Union of
its right to have the Respondent obtain its consent
before implementing the Philadelphia-Paoli work
transfer.
The Board is not compelled to endorse either of
these two equally plausible interpretations of the
contract's operation in this case. The present dis-
pute is solely one of contract interpretation. As the
Board has stated in Vickers, Inc., 153 NLRB 561,
570 (1965), when "an employer has a sound argu-
able basis for ascribing a particular meaning to his
contract and his action is in accordance with the
terms of the contract as he construes it," the Board
will not enter the dispute to serve the function of
arbitrator in determining which party's interpreta-
tion is correct.4
The Respondent had sound reason to believe
that its transfer of rework was not prohibited by
the contract. The judge specifically found that the
Respondent informed the Union of its plans for
centralizing rework 4 months prior to implement-
ing that stage of its reorganization plan and in fact
solicited the Union's input for another stage of the
plan. Moreover, there is no evidence that the Re-
spondent was motivated by union animus, was
acting in bad faith, or in any way sought to under-
mine the Union's status as collective-bargaining
I See also Timken Roller Bearing Co. v. NLRB, 161 F.2d 949, 955 (6th
Cir. 1947); Consolidated Aircraft Corp., 47 NLRB 694, 706 (1943), enfd.
141 F.2d 785 (9th Cir. 1944); National Dairy Products Corp., 126 NLRB
434, 439 (1960).
representative.s Here, the Respondent's action is
based on a substantial claim of contractual privi-
lege. 6 Accordingly, we shall dismiss the complaint
in its entirety.'
ORDER
The complaint is dismissed.
' See Jo. Schlitz Brewing Co., 175 NLRB 141, 142 (1969); Vickers Inc.,
supra at 570; National Dairy Products Corp., supra at 439.
6 See Joa Schlitz Brewing Co., supra at 142. See also Boise Cascade
Corp., 263 NLRB 480 (1982); Laredo Packing Co., 254 NLRB 1, 8-9
(1981); Consolidated Foods Corp., 183 NLRB 832, 833 (1970).
Assuming, arguendo, that the General Counsel's interpretation of the
contract is controlling , we would not necessarily find that the Respond-
ent has refused to bargain within the meaning of the Act because a mere
breach of the contract is not in itself an unfair labor practice. See Em-
ployees v. Westinghouse Electric Corp., 348 U.S. 437 fn. 2 (1955); National
Dairy Products Corp., supra at 439; United Telephone Co., 112 NLRB 779,
782 (1955).
' In concluding that the Respondent has not breached its obligation to
bargain over transfers resulting from district reorganization, we do not
reach the issue of whether these transfers are mandatory subjects of bar-
gaining. Although it might be inferred that a centralization of rework
would result in increased efficiency in the Respondent's data processing
operations, we are reluctant to characterize the reorganization as one in-
volving a change in the basic direction or nature of the enterprise within
the meaning of our recent decision in Otis Elevator Co., 269 NLRB 891
(1984). There is no record evidence establishing what part, if any, direct
modification of labor costs may have played in the Respondent's reorga-
nization plan. In addition, the Respondent did not raise the issue before
the Board even though the hearing in this case was held more than 4
months after the Supreme Court's decision in First National Corp. v.
NLRB, 452 U.S. 666 (1981), which we interpreted in Otis Elevator.
We note also that the parties' bargaining agreement contains a general
grievance-arbitration provision. Under the circumstances it may be
argued that the more appropriate forum for resolving the parties' con-
flicting contractual claims would have been an arbitration proceeding.
However, the Respondent has not argued at any point in these proceed-
ings that we should defer to an arbitrator under Collyer Insulated Wire,
192 NLRB 837 (1971), recently reaffirmed in United Technologies Corp.,
268 NLRB 570 (1984) (Member Zimmerman dissenting, but agreeing in
relevant part). The Board has declined to apply the principles of Collyer
when it has not been raised as a defense in an unfair labor practice pro-
ceeding. See Doaw Chemical Co., 212 NLRB 333, 339 fn. 11 (1974); Uni-
versity of Chicago, 210 NLRB 190, 198 fn. 9 (1974); Nedco Construction
Corp., 206 NLRB 150 (1973); MacDonald Engineering Co., 202 NLRB 748
(1973); ,sko, Inc., 202 NLRB 330 (1973); Montgomery Ward & Co., 195
NLRB 725 fn. 1 (1972). Accordingly, we do not find that deferral is war-
ranted.
Chairman Dotson notes that the complaint does not specifically allege
the type of violation on which the Board passes in this proceeding-
namely, that the Respondent failed to comply with the provisions of Sec.
8(d) of the Act governing the unilateral modification of a term of the
parties' contract. However, in the absence of exceptions, the Chairman
finds it unnecessary to pass on the sufficiency of the complaint and joins
in dismissing the complaint on its merits.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. This
case was tried at Philadelphia, Pennsylvania, on Novem-
ber 5, 1981. The charge was filed on January 1, 1981, by
Allied Services Division, Brotherhood of Railway, Air-
line & Steamship Clerks, Freight Handlers, Express &
Station Employees, AFL-CIO (BRAC), against NCR
Corporation (Respondent). The complaint was issued on
February 26, 1981, and alleges that Respondent violated
1213
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(1) and (5) of the Act by transferring certain
work out of the collective-bargaining unit without
having afforded the Union an opportunity to negotiate
and bargain as the exclusive representative of employees
in that unit with respect to such transferring of unit
work. Implicit in that allegation is that the Union did not
agree to the transfer of unit work.
All parties were given full opportunity to participate,
to produce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs
were filed by all parties. On December 4, 1981, Respond-
ent filed its brief and attached an appendix marked "Ex-
hibit A and B." On December 17, 1981, the General
Counsel filed with me a motion to strike Exhibit A as
said document had not been offered or received into evi-
dence at the trial. On January 7 the Union filed a similar
motion. About December 23 Respondent filed its oppos-
ing motion and an alternative motion to reopen the
record for the limited purpose to allow it to introduce
into evidence and authenticate Exhibit A. For reasons
more fully discussed elsewhere in this decision, I grant
the motions of the General Counsel and the Union and
deny Respondent's alternative motion to reopen the
record inasmuch as I conclude that Respondent has
failed to demonstrate good reason why it did not attempt
to adduce additional evidence at the trial, or why it did
not request additional opportunity to do so, and further
because the proferred Exhibit, on its face, is of little pro-
bative value in light of the testimony of Respondent's
witnesses concerning the subject matter to which the Ex-
hibit purports to relate.
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material, a
corporation duly organized under, and existing by virtue
of, the laws of the State of Maryland and engaged in the
manufacture, sale, and service of business equipment in
its Fort Washington, Pennsylvania facility. During the
past fiscal year Respondent, in the course and conduct of
its business, sold products valued in excess of $50,000 di-
rectly to points outside the Commonwealth of Pennsyl-
vania.
It is admitted, and I find, that Respondent is, and has
been at all times material, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
I1. THE LABOR ORGANIZATION
It is admitted, and I find, that BRAC and its Local
1933 (the Union), are, and have been at all times materi-
al, labor organizations within the meaning of Section 2(5)
of the Act.
IIl. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent, with headquarters located in Dayton,
Ohio, is engaged in the manufacture, repair, and service
of business equipment. Respondent maintains a data proc-
essing operation entitled, United States Data Processing
Group (USDPG), of which the field engineering division
in the United States is composed of 15 regions with I or
more district offices contained in each region. Some dis-
tricts contain more than one office, i.e., sub or branch of-
fices. The Harrisburg, Pennsylvania region encompasses
seven district offices. Certain employees in the Pitts-
burgh and Philadelphia, Pennsylvania district offices are
represented by BRAC.' BRAC also represents employ-
ees in five other districts, i.e., Milwaukee, Wisconsin;
Detroit, Michigan; Cleveland, Ohio; New Brunswick,
New Jersey; and Hempstead, Long Island.
The regional director of the field engineering division
in Harrisburg is Willard Feldmeier. Subordinate to Feld-
meier are the district managers, including District Man-
ager Rufus (Bruce) Clemons who manages the Philadel-
phia district. Subordinate to Clemons are, inter alia, four
zone managers. There are approximately 12 field engi-
neers subordinate to each zone manager. Within the pre-
ceding 5-year period, the Philadelphia district included
suboffices, some of which were closed or merged.
At an office located at Paoli, Pennsylvania (a suburb
of Philadelphia), Respondent employs field engineers
and, since December 1980, rework technicians. The Paoli
office is under the direct supervision of Feldmeier and is
not administratively associated with any district, and its
employees are not represented by BRAC.
The most recent collective-bargaining agreement be-
tween the Union and Respondent covering the Philadel-
phia district was effective from September 1, 1979, to
August 31, 1981, and recognized the Union as exclusive
bargaining agent for "all Technical Inspectors, Field En-
gineer Trainees, Associate Field Engineers, and Field
Engineers of the Philadelphia District Field Engineering
Department, excluding office clerical employees, ship-
ping department employees, dispatchers, supervisors,
guards and professional employees as defined in the
Act." In September 1979, the parties, by separate adden-
dum, including the rework technicians in the collective-
bargaining unit. Rework involves repair of faulty circuit-
board components of Respondent's products, generally
performed at the district office, or repair of electrical
power-supply transformers most often performed at the
customer's plant.
Article XXIII of the collective-bargaining agreement
states:
TRANSFERS
1. There shall be no transfers out of this District
except by mutual agreement between the parties.
2. Employees transferred into the District shall
be placed on the seniority list in accordance with
their most recent date of hire except for layoff pur-
poses. For layoff purposes, seniority shall be deter-
mined by the date on which such employees en-
tered the District. If bargaining unit employees are
transferred from one Union represented District to
The Philadelphia district office is actually located in the suburban
area of Philadelphia known as Fort Washington
1214
NCR CORP.
another, they will retain their seniority in their prior
District so that in the event of a layoff in the new
District, they will be allowed to exercise their se-
niority in the prior District.
3. No employees shall be transferred or hired into
the District until all employees on layoff status have
been given the option to exercise their recall rights
as provided in Article XIX. However, such restric-
tion does not apply to the demotion of management
within the District into the bargaining unit, provid-
ed that the manager's seniority is greater than those
employees on layoff at the time of his/her demo-
tion.
Article XXIV states:
1. Nothing in this Agreement shall be construed
to restrict the employer's right to consolidate,
merge, or reorganize any District.
2. However, upon reaching such a decision to
consolidate, merge, or reorganize the District, the
Corporation will notify the Union no less than six
(6) weeks in advance of the effective date of such
action. The Union then has the right, during that
period of time, to request meetings with manage-
ment to discuss and negotiate the effect, if any, this
consolidation, merger, or reorganization will have
upon the affected employees. In the event the par-
ties fail to agree on the conditions of such a consoli-
dation, merger, or reorganization, then the Union
may submit the dispute directly to Arbitration.
However, it is agreed that the operation of this Ar-
ticle shall not restrict management's right to make
territory and work assignments.
According to the testimony of Regional Director
Feldmeier, Respondent began drafting a plan for the re-
organization of USDPG Field Engineering Division in
1979, and "finalized-most of the details" by January or
February 1980. That plan was to be effectuated in a se-
quence of four phases. The first phase provided for the
organization of field engineers into groups of about five
to seven engineers under a newly created group leader
position subordinate to the zone manager. The next
phase called for the removal of all rework functions
from the district offices and relocation at a single, newly
created office independent of the district and subordinate
directly to the regional director. Phases three and four
involved the removal of the parts managers and dis-
patching function from the district office.
In early April 1980, a meeting was held by Feldmeier
and his superior, Vice President Russ Gilbert of Dayton,
Ohio, with all district managers who were instructed to
return to their districts and conduct meetings, as Feld-
meier testified:
to discuss with the people just to prevent a bunch
of rumors starting up that somebody is going to do
this and this. So everybody does exactly the same
thing. So every district went back and said, you
know, here's what it's going to look like ....
Clemons testified that in June 1980 he conducted a
meeting of field engineers and zone managers who were
not absent. From January to November 1980, Local
Chairman Art Blanchette, who had represented the
Union in dealing with Clemons, was absent due to illness
which led to his ultimate hospitalization. During his ab-
sence and thereafter, his duties were assumed by Union
Representative Lawrence Nelms. Nelms had no recollec-
tion of attending the June district meeting. Clemons did
not recall whether Nelms was present. Clemons testified
that at the June district meeting he explained to those
present the "forthcoming changes," and the "long range
plans to move the rework facility when and if a building
was located," and that he had "no idea when this would
occur."
Maurice Herron holds the position of labor relations
representative for Respondent. He testified that prior to
August 14, 1980, he invited BRAC International Repre-
sentative Jesse Pelham to a meeting in Dayton, Ohio, to
discuss the "group leader concept" which had already
been implemented a month earlier at all nonunion loca-
tions in Respondent's operations. He characterized that
purpose "as the primary reason for the meeting." He tes-
tified that at the meeting with Pelham on August 14 that
"as part of that discussion, we talked about the long
range plans of removal of rework, the removal of parts
and the removing of dispatching, long range." He further
testified that he was acting pursuant to article XXIV of
the collective-bargaining agreement in order to "let him
know that a decision had been made to make this move
. . .the decision to regionalize rework" and to provide
the Union an opportunity to negotiate the effects upon
unit employees of that decision. Herron testified that
during his meeting with Pelham he presented slide trans-
parencies which reflected the reorganization plan.
Pelham testified that he did indeed attend a meeting
with Herron on August 14 in Dayton for the purpose of
discussing the proposed group-leader position, and that a
proposed reorganization plan was presented to him for
viewing during the meeting. According to Pelham's un-
contradicted, more detailed, and credible testimony, vir-
tually all of the conversation concerned the group-leader
proposal, and that the discussion concerning the removal
of rework from the district arose upon Pelham's observa-
tion of the slide transparencies and inquiry concerning
the apparent removal of work from the district, and that
Herron stated that the Respondent intended to remove
unit work "at some time in the future." Further, Pelham
testified that Herron asked him what the Union's reac-
tion would be to such a removal, and that Pelham re-
sponded that he was not in a position to make a decision
but that it was his "impression" that if the employees
were "kept whole," i.e., if no employee would lose
work, there would probably be no resistance to the re-
moval of the circuit board rework functions, but that
"under no conditions" would there be any agreement to
the removal of power supply rework. According to
Pelham, the discussion regarding rework consumed
about 2 minutes at the end of the meeting. As to the sub-
ject of the group leader concept, Pelham was to return
and discuss it with his superior, Union President Tom
1215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fitzgibbons, and with "the people at the different loca-
tions." Herron did not explicitly contradict Pelham's tes-
timony, but merely testified that he did not recall Pel-
ham's reference to the terminology "make whole."
A copy of the "Proposal for U.S.D.P.G. Field Reorga-
nization," as depicted in the slide transparencies, was for-
warded to and received by the Union on or shortly after
August 14. Included therein was a "District Reorganiza-
tion Implementation Schedule" which, inter alia, reflect-
ed by way of a chart entry, "Rework Fully out of Dis-
trict and into Regions," and a corresponding arrow
reaching to December 31. Pelham had no recollection of
viewing that transparency, but I credit Herron's some-
what more certain testimony that the slide projections
contained the "District Reorganization Implementation
Schedule." Pelham conceded that he was aware of the
reorganization schedule as having been included in the
proposal that was mailed to and received by the Union.
He also conceded similar awareness of the section enti-
tled "How We Intend to Accomplish It" which contains
the entry, "Centralize Support Function at Region level:
Rework; Inventory Management and Dispatching."
Within the next several weeks, Pelham and Herron
conversed on the telephone regarding the group-leader
proposal, but nothing was said about any other phase of
the proposed reorganization by either party. In a letter
dated October 16, 1980, addressed to Pelham, Herron al-
luded to the August 14 meeting by referring to the
group-leader proposal and Herron's expectation that
Pelham would take the "group leader proposal to the
membership and get back [to Herron] within 2-3 weeks."
Herron concluded:
Since two months has elapsed from the date of our
first discussion on this matter and you have been
unable to give me a definite answer regarding our
offer, we must assume the Union is not interested in
the Group Leader program. Therefore, our offer is
withdrawn as of this date.
The letter contained no reference to the subject of
rework, or any other phase of the proposed reorganiza-
tion.
District Manager Clemons testified that in mid-No-
vember he discussed the removal of rework with district
rework technicians Brennan and Black and offered them
the opportunity to move to Paoli, the site of the new
rework office, or to remain at Philadelphia, inasmuch as
Respondent was hiring field engineers for that location at
that time. Both Black and Brennan opted to transfer to
Paoli. Other rework technicians were offered similar op-
portunities. Seven other persons who were ultimately
hired to perform rework at Paoli had been interviewed
by Clemons sometime in September-October. Clemons'
testimony as to when he first learned that Paoli was to
be the site of the rework office is unclear and uncertain.
He testified that he became aware that rework would be
removed from his district as early as May, that at the
meeting of district managers he received the impression
that it would occur in 6 or 8 months, and that sometime
between May and December, he became aware that
Paoli was the selected site, that he learned the exact re-
moval date "probably" during the last week of Novem-
ber.
Pelham testified that by mid-November he began to
receive telephone calls from BRAC local chairmen, in-
cluding Nelms, informing him of "strong and heavy
rumors" of an impending removal of rework from the
district, and that when Nelms called him a second time
advising that new employees were being hired for
rework at the new center, he decided to raise the matter
with Herron. Accordingly, at a negotiation meeting con-
cerning other matters at the Milwaukee District at that
time, Pelham asked Herron about the rumors. Herron de-
ferred answering and, after calling Clemons, advised
Pelham at the next negotiation meeting that the Philadel-
phia district rework was, in fact, being moved to Paoli at
that time. According to Pelham, he protested to Herron
that the Union had not agreed to remove any rework
from the district and that it had "never indicated any
agreement under any conditions" for the removal of
power supply rework. Pelham testified that this discus-
sion provided the first occasion for the Union's receipt of
any information that Respondent "had a definite inten-
tion to remove rework from the Philadelphia District."
Herron substantially corroborated the foregoing testimo-
ny but added that he responded to Pelham at that time
that he had notified Pelham on August 14 of the removal
of rework from the districts and its "regionalization"
throughout the United States and that Pelham had been
given a time schedule for the effectuation of the removal.
During the first week of December, Nelms received a
notification from Respondent of associate field engineer
Glenda Jacob's requested and approved transfer "to the
Rework Center in Paoli," effective as of December 1.
Nelms immediately spoke to Clemons and asked about
the transfer and the rework center and was told that all
rework was in the process of being transferred from the
Philadelphia district office to Paoli, and that rework
technicians Brennan and Black and field engineer Harry
Glasgow, all bargaining-unit members, were being trans-
ferred from the Philadelphia district office to the Paoli
rework center. Nelms then ascertained from Clemons
that rework was being similarly transferred from other
districts but that the employees elsewhere chose not to
transfer and had accepted other positions and that ac-
cordingly new rework employees were being hired at
Paoli.
By the middle of December rework had been removed
from all districts and consolidated at the Paoli office.
The collective-bargaining unit work at the Philadelphia
district office was thereby altered by the elimination of
rework and the job classification of rework technician,
and the removal of four bargaining-unit members. There-
after, the Union filed the instant unfair labor practice
charge.
With respect to past implementation of article XXIV
of the collective-bargaining agreement, Herron testified
that "whenever there's been a decision to consolidate,
merge, or reorganize a district that is represented by the
BRAC Union, we had notified the Union prior to such a
decision." Pelham, who participated in the negotiation of
article XXIV and its drafting, testified in conclusionary
1216
NCR CORP.
terms as to his interpretation of that article, i.e., that re-
organization of a district constitutes an intradistrict reor-
ganization such as the closing or moving of an office or
suboffice within the district. On cross-examination, he
testified that in his opinion article XXIV was not utilized
in the removal of certain "EDP" field engineers from the
Philadelphia district. Nelms testified that in the preced-
ing 5 years a district suboffice was moved within the dis-
trict, and two intradistrict offices were merged, and sev-
eral field engineers were transferred from one zone man-
ager to another zone manager but that no diminution of
unit work occurred. He did not know, however, what
article of the collective-bargaining agreement was ap-
plied in those situations.
Herron testified that in 1974 "EDP" field engineers
were removed from the bargaining unit at the Philadel-
phia district, and that he participated in negotiations with
the Union concerning the removal. Herron testified that
the Union was first notified that the removal of EDP en-
gineers was being "contemplated" by Respondent prior
to negotiations, and that at the subsequent negotiations
the Union resisted the removal of a certain piece of
equipment. Respondent accordingly agreed to retain that
equipment at the Philadelphia district, but the remainder
of the EDP equipment was moved with the EDP engi-
neers to the office at Paoli. Herron, who testified that 3-
1/2 years prior to the hearing, the Ashtabula territory
and three unit employees were removed from the Cleve-
land district, which was represented by BRAC, after the
Union was notified and after negotiations with the
BRAC attorney. Herron testified that there was no
movement until after agreement with BRAC was
reached. Herron also testified that, with respect to the
EDP removal to Paoli, the Union requested a meeting
upon notification and that negotiations and agreement
with the Union preceded actual implementation of the
transfer. Herron testified that in those negotiations not
only the effects of the decision, but also the basic deci-
sion itself, was discussed with the Union.
Respondent attached to its brief as Exhibit A, a docu-
ment purporting to be a letter dated April 2, 1974, ad-
dressed to BRAC President Thomas Fitzgibbon and
signed by R. F. O'Connor, director, personnel and em-
ployee relations of Respondent, wherein notice was
given of intent to transfer EDP field engineers from the
Philadelphia district to a consolidated center in Paoli
pursuant to article XXIV of the collective-bargaining
agreement. Also attached as Exhibit B was a purported
letter dated September 26, 1974, addressed to Respond-
ent, signed by Fitzgibbon, referring to enclosed signed
copies of an agreement relative to the establishment of
the Paoli EDP center. As noted earlier, I granted the
motions of the General Counsel and Charging Parties to
strike reference to Exhibit A, and I have denied Re-
spondent's motion to reopen the record for receipt of
said document upon authentication. Respondent offered
no convincing argument as to why it did not adduce this
evidence at the hearing or why it did not ask for a con-
tinuance in order to do this. More importantly, the prof-
fered document is, of itself, of no probative value and
has no materiality in light of Herron's testimony because,
regardless of how Respondent's conduct in 1974 was
characterized in the purported letter, Respondent, in
fact, provided the Union then with notice of the elimina-
tion of unit work, after which the decision itself was dis-
cussed with the Union, not merely the effects upon unit
employees, and agreement was obtained prior to the re-
moval of unit work. Thus what had occurred in 1974
could arguably have been in de facto accordance with
article XXIII.
Thus there is no clear evidence in the record to estab-
lish that the parties have historically applied article
XXIV to situations where unit work was transferred out
of the district pursuant to a unilateral decision of Re-
spondent, and where only bargaining as to the effects of
that decision upon unit employees was offered to the
Union upon prior notice. Rather, the evidence indicates
that historically Respondent has discussed the decision
itself to remove unit work and its effects upon employees
with the Union and agreement had been reached prior to
the execution of that decision.
Finally, Pelham's conclusionary testimony as to the
meaning of article XXIV is of no probative value as it
does not run to any discussion between the parties rela-
tive to the meaning of that article during negotiations of
it. His testimony amounts to nothing more than his opin-
ion as to its meaning, after the fact of its negotiation.
Analysis
Section 8(a)(5) and (1) of the Act obliges an employer
to notify and consult with the designated exclusive bar-
gaining agent concerning changes in wages, hours, and
conditions of employment. NLRB v. Williamsburg Steel
Products, 369 U.S. 736 (1962). On notice of such pro-
posed change, the employees' bargaining agent must act
with due diligence in requesting bargaining; otherwise it
may be deemed to have waived its right to bargaining.
City Hospital of East Liverpool, 234 NLRB 58 (1978); Citi-
zens Bank of Willmar, 245 NLRB 389 (1979). The
Union's obligation arises upon actual notice regardless of
whether it was received from a source other than direct
communication from the employer. Hartman Luggage
Co., 173 NLRB 1254 (1968). A union may elect to waive
its right to notice and bargaining by a contractual agree-
ment, Bancroft Whitney Co., 214 NLRB 57 (1974). A
contractual waiver will not lightly be inferred but must
be clearly demonstrated by the terms of the collective-
bargaining agreement and, under certain circumstances,
from the history of negotiations, Southern Florida Hotel
Assn., 245 NLRB 561 (1979); Hilton Hotel Corp., 191
NLRB 283 (1971); or from unequivocal extrinsic evi-
dence bearing upon ambiguous contractual language. Op-
erating Engineers Local 18, 238 NLRB 652 (1978). Fur-
thermore, contractual language which reserves to the
employer the right to make unilateral changes with re-
spect to certain areas will be strictly construed and will
not be interpreted to extend to other areas in the absence
of specific evidence of such intent. Southern Florida
Hotel Assn., supra (see also Capitol Trucking, 246 NLRB
135 (1979)).
However, when the proposed change concerning
wages, hours, or conditions of employment encompasses
a change or modification of an existing collective-bar-
1217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining agreement, a stricter obligation is imposed on the
employer. It is well settled law that a modification of a
clear and unambiguous term of contract of fixed dura-
tion, regardless of economic motivation, must be ob-
tained pursuant to a positive affirmance by the employ-
ees' bargaining agent, otherwise the requirements of Sec-
tion 8(d) of the Act are not met and a violation of Sec-
tion 8(a)(5) results. C & S Industries, 158 NLRB 454,
456-457 (1966); Oak Cliff Baking Co., 207 NLRB 1063
(1973); Sun Harbor Manor, 228 NLRB 945 (1977); Fair-
field Nursing Home, 228 NLRB 208 (1977); Airport Lim-
ousine Service, 221 NLRB 932 (1977); Keystone Consoli-
dated Industries, 237 NLRB 763 (1978); Precision Anodiz-
ing & Plating, 244 NLRB 846 (1979); Struthers Wells
Corp., 245 NLRB 1170 (1979). Thus, contractual modifi-
cation cannot be effectuated by merely providing an op-
portunity for negotiation to the bargaining agent.
In the instant case the rework function was conceded-
ly part of the work of the collective-bargaining unit, and
the job classifications which performed that function
were explicitly conceded by Respondent at the hearing
to have been encompassed within the contract unit de-
scription. Moreover, Respondent, according to Herron's
testimony, offered to discuss with the Union only the ef-
fects of the unit modification.
. . .we have held that a unilateral removal of bar-
gaining unit work during a contract term is the type
of contract modification proscribed by the Act, re-
gardless of economic justification. Further, under
Section 8(d) of the Act, a party to the contract
cannot be compelled to bargain about such a modi-
fication and, accordingly, any modification can be
implemented only with the consent of the other
party. 4
4 See Los Angeles Marine Hardware Co., a Division of Mission
Marine Associates, Inc., and California Marine Hardware Co., a Divi-
sion of Mission Marine Associates, Inc., 235 NLRB No. 88 (1978),
and cases cited therein.
See also Park-Ohio Industries, 257 NLRB 413 (1981).
I conclude that the Union was notified of Respond-
ent's intention to transfer unit work by the August 14
presentation of the proposed USDPG Field Reorganiza-
tion. Herron told Pelham that Respondent intended to
remove the rework functions and demonstrated the
rework removal was but one phase, as was the institution
of the concept of group leader position. That presenta-
tion included a target date. Although the preponderance
of that discussion related to the group-leader position,
there was nothing said by Herron which should have led
Pelham to conclude that the reorganization was merely a
vague contemplation. Herron could not have failed to
grasp that Respondent was making such notification by
its elaborate projection of slide transparencies reflecting
all phases of the reorganization with time targets. The
subsequent October letter withdrawing the offer of a
group-leader position was limited solely to that subject
and cannot reasonably be interpreted as an indication
that Respondent was abandoning its reorganization plan.
However, as the removal of unit work clearly amounts
to a contract modification, Respondent cannot justify its
conduct by failure of the Union to request bargaining
and negotiations concerning the proposed modification.
Rather, positive affirmance was required in the absence
of a waiver by the Union of its right to such positive af-
firmance. Pelham's tentative reactions at the August 14
meeting did not amount to an agreement in whole or in
part to the announced removal of all rework functions
from the bargaining unit. On the contrary, the last state-
ment of position of the Union was that it would be unal-
terably opposed to the removal of power-supply rework.
Thus the silence of the Union cannot be construed as a
tacit agreement.
Respondent argues that article XXIV of the collective-
bargaining agreement constitutes a clear waiver of the
Union's right to agree as a condition precedent to the re-
moval of unit work since such removal occurred as part
of a reorganization of the district. The General Counsel
argues that article XXIV, on its face, applies to merger,
consolidation, or reorganization of the district, not dis-
tricts, and cannot be interpreted as extending to mergers,
consolidations, and reorganizations involving offices out-
side of the district, or the transfer of employees outside
of the district, the latter of which is covered explicitly
by article XXIII which requires agreement of both par-
ties. Accepting the General Counsel's argument, there
would then be no inconsistency between article XXIII
and article XXIV, whereas such inconsistency appears to
exist if Respondent's interpretation is accepted. More-
over, it can be argued that article XXIV is more generic
in its description of Respondent's rights, i.e., a district re-
organization does not necessarily entail a transfer of unit
employees, whereas article XXIII is specifically ad-
dressed to the interdistrict transferring of employees.
However, conversely it can be argued that article XXIII
applies to situations of individual employee transfer and
does not apply to reorganization where work is trans-
ferred, and which is addressed in article XXIV, and
therefore no inconsistency exists. Moreover, it can be
argued that the reference to merger, consolidation, or re-
organization cannot be interpreted to apply solely to in-
ternal restructuring. The language of article XXIV does
not refer to mergers and consolidations of branch offices
or suboffices, but refers to a merger or consolidation of
the district, not a merger or consolidation within the dis-
trict, and a district can only be merged or consolidated
with other districts, not with itself. Further, it can be
argued that the term reorganization implies contraction
and expansion, as well as restructuring of functions
within the district.
I conclude that the language of article XXIV is, at
best, ambiguous and does not clearly constitute a waiver
of the Union's right to be consulted and to agree to the
transfer of unit work out of the district. I also conclude
that the evidence does not demonstrate that such waiver
was intended by the parties who negotiated article
XXIV, and that no unequivocal extrinsic evidence was
adduced to establish such intention.
Respondent finally argues that the Supreme Court's
recent decision in First National Corp. v. NLRB, 452 U.S.
666 (1981), is controlling herein. However, the Court in
that case dealt with the shutdown by the employer of an
1218
NCR CORP.
economically failing part of its business which changed
the scope and direction of the enterprise. Furthermore,
the court explicitly stated that it was not encompassing
within its decision other types of management decisions
such as plant relocations, subcontracting, changes in
methods of distribution, or sales of portions of business.
Clearly then, Respondent's conduct is distinguishable
from that conduct which the Supreme Court found
lawful in the First National case.
I conclude that Respondent violated Section 8(a)(5)
and (1) of the Act by its unilateral modification of the
collective-bargaining agreement consisting of the trans-
ferring out of unit work and elimination of unit job clas-
sifications without bargaining with and obtaining the
agreement of the exclusive collective-bargaining agent of
employees in that bargaining unit.
CONCLUSIONS OF LAW
1. The Respondent, NCR Corporation, is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Allied Services Division, Brotherhood of Railway,
Airline & Steamship Clerks, Freight Handlers, Express &
Station Employees, AFL-CIO, and its Local 1933, are
labor organizations within the meaning of Section 2(5) of
the Act, and have been designated and are the exclusive
bargaining representative of the employees in a unit ap-
propriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act consisting of all
technical inspectors, field engineer trainees, associate
field engineers, field engineers, and rework technicians of
the Philadelphia district field engineering department, ex-
cluding office clerical employees, shipping department
employees, dispatchers, supervisors, guards and profes-
sional employees as defined in the Act.
3. About December 1, 1980, Respondent, without bar-
gaining and agreement with the designated exclusive bar-
gaining agent, and by failing to comply with its obliga-
tions under Section 8(d) of the Act, unilaterally modified
the collective-bargaining agreement by transferring out
of the Philadelphia district office to the Paoli rework
center the unit work consisting of rework functions and
eliminating the job classification of rework technician at
the Philadelphia district office and has engaged in unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) and Section 8(a)(1) and (5) of the
Act.
THE REMEDY
Having found that Respondent violated Section 8(a)(1)
and (5) of the Act by unilaterally transferring unit work
out of the Philadelphia district office to the Paoli rework
center and by eliminating the job classification of rework
technician at the Philadelphia district office, I recom-
mend that Respondent be ordered to cease and desist
from such conduct, and to post an appropriate notice,
and to take certain affirmative action. I conclude that a
status quo ante remedy is appropriate and necessary in
this case, and I recommend that Respondent be ordered
to transfer back to the Philadelphia district office all
rework functions performed there prior to the unilateral
action, and to restore there the job classification of
rework technician, if, after an elapse of a reasonable
period of time not to exceed 60 days, it has bargained in
good faith with the Union but has failed to obtain the
positive affirmance of the Union to the aforesaid transfer
of unit work and elimination of unit job classifications.
Inasmuch as there is no evidence of loss of earnings or
benefits of any employee involved in the transfer of unit
work from one suburban area to another suburban area
of Philadelphia, I shall not recommend a make-whole
remedy.
[Recommended Order omitted from publication.]
1219