Servomation Corp.

National Labor Relations Board - Board Decisions

Aug 21, 1984

271 N.L.R.B. 1112 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Servomation Corporation and Pennsylvania Federa-
tion of Teachers. Case 4-CA-12411
21 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 6 May 1983 Administrative Law Judge
Nancy M. Sherman issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
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, findings, and
conclusions only to the extent consistent with this
Decision and Order.
As a threshold matter, the judge found that the
instant dispute is inappropriate for deferral to the
parties' contractual grievance-arbitration procedure
pursuant to the Board's Collyerl doctrine. The
judge further found that the Respondent violated
Section 8(a)(5) and (1) by reducing the hours of
work of a substantial number of employees without
informing the Union of its intention to do so during
contract negotiations and without affording the
Union an opportunity to bargain over the reduc-
tion. For the reasons set forth below, we find that
deferral is appropriate under Collyer and its proge-
ny. We therefore express no views on the merits of
the instant dispute.
The complaint alleges that the Respondent re-
duced a number of employees' work hours without
informing the Union of its intention to do so during
contract negotiations and without affording the
Union an opportunity to bargain over the matter.
In its defense, the Respondent argues that the uni-
lateral reduction of work hours is authorized by
the management rights clause in the parties' collec-
tive-bargaining agreement, which provides:
Subject to the specific limitations, modifica-
tions, and delegations of authority contained in
this Agreement, the Company shall retain the
rights to exercise the customary functions of
management in the operation of its business in-
cluding, but not limited to, the right to hire,
promote, transfer, and assign work, to increase
or decrease the work force, to determine prod-
ucts to be handled, to change work schedules
' Collyer Insulated Wire, 192 NLRB 837 (1971).
271 NLRB No. 174
and hours of work, to establish reasonable rules
and regulations. [Emphasis added.]
The Respondent also avers that the Union agreed
to eliminate a clause from an earlier collective-bar-
gaining agreement that limited the Respondent's
ability to reduce employees' hours. Finally, the Re-
spondent asserts that the grievance-arbitration
clause of the collective-bargaining agreement 2 en-
compasses the instant dispute and that it is willing
to submit the dispute to binding arbitration.
The judge found deferral to the grievance-arbi-
tration process inappropriate on two grounds.
First, she found that the Respondent "has ex-
pressed no willingness" to waive the expired con-
tractual time limitations for the invocation of the
grievance-arbitration procedure. Second, she found
that "[t]he issues presented here do not involve any
issues of contract interpretation." We find these
reasons unpersuasive.
As for the first ground, the judge herself states
that the Respondent moved for deferral under Col-
lyer at the hearing. The Respondent reiterated its
deferral claim in its posthearing brief, its excep-
tions, and its brief to the Board. Such actions indi-
cate a sufficient willingness to waive the contrac-
tual time limitations. See Roy Robinson Chevrolet,
228 NLRB 828 (1977).
Nor can we agree with the judge's conclusion
that the issues presented here do not involve any
issues of contract interpretation. As noted above,
the complaint alleges that the Respondent unilater-
ally reduced a number of employees' work hours in
violation of Section 8(a)(5). The Respondent's ini-
tial defense is that the collective-bargaining agree-
ment enables it unilaterally "to change work sched-
ules and hours of work." Thus, on its face, the in-
stant case is a classic candidate for deferral to arbi-
tration because a determination of the Respondent's
authority unilaterally "to change work schedules
and hours of work" would necessarily resolve the
merits of the unfair labor practice alleged in the com-
plaint, and the issues in dispute are cognizable under
the parties' grievance-arbitration procedure. Roy Rob-
inson Chevrolet, supra.
The General Counsel, supporting the judge's de-
cision, disputes the apparent linkage between the
unfair labor practice pleaded and the applicable
contract provision the Respondent cites in its de-
fense. The General Counsel argues that the Re-
spondent cannot avail itself of the contract provi-
sion because, in effect, the Respondent undermined
2 That clause establishes a four-step procedure culminating in binding
arbitration. It provides that "[a] grievance is a complaint that there has
been a violation, misinterpretation, misapplication, inequitable or other-
wise improper application of any of the provisions of this Agreement"
1112
SERVOMATION CORP.
the collective-bargaining process by bargaining
generally in bad faith and engaging in a knowing
and willful effort to deceive and mislead the Union
during negotiations.
The Board has held that deferral is inappropriate
in situations where the complaint alleges that the
party seeking deferral has acted in total disregard
of its collective-bargaining obligations,3 subverted
the collective-bargaining or grievance process, 4 or
demonstrated enmity to employees' exercise of Sec-
tion 7 rights.5 There are, however, no such allega-
tions in the instant complaint. Thus, "[t]he contract
and its meaning in present circumstances lie at the
center of this dispute,"6 as framed by the com-
plaint and the Respondent's defense.7 In addition,
the General Counsel has failed to demonstrate that
collective bargaining in general or the grievance-
arbitration procedure in particular has been sub-
verted to the extent that resort to the grievance-ar-
bitration procedure would be unpromising or
futile.8 Accordingly, we find that the issues raised
in the instant dispute should be deferred to the
grievance-arbitration provisions of the collective-
bargaining agreement.
ORDER
The complaint is dismissed, provided that:
Jurisdiction of this proceeding is retained for the
limited purpose of entertaining an appropriate and
timely motion for further consideration upon a
proper showing that either (a) the dispute has not,
with reasonable promptness after the issuance of
this Decision and Order, either been resolved by
amicable settlement in the grievance procedure or
submitted promptly to arbitration, or (b) the griev-
ance or arbitration procedures have not been fair
and regular or have reached a result which is re-
pugnant to the Act.
3 Communications Workers Local 1190 (Western Electric), 204 NLRB
782, 784 (1973).
4Joseph T. Ryerson & Sons, 199 NLRB 461, 462 (1972).
6 See Collyer, 192 NLRB at 842.
e Id.
7 The maintenance of a meaningful and effective deferral policy, pursu-
ant to our expressed commitment in United Technologies, 268 NLRB 557
(1984), requires that the initial deferral decision under Collyer be made on
the basis of the complaint, the Respondent's defense, and the applicable
contract provisions. Thus, it serves few, if any, of Collyer's stated objec-
tives to make a decision regarding deferral that is based on evidence and
legal theories that are outside the specifically pleaded complaint allega-
tions. In short, the Board and its judges ought not first decide the case
and then determine whether deferral is appropriate.
s United Technologies, supra, fn. 21.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. This
case was heard before me on August 16 and 17, 1982,
pursuant to a charge filed on September 17, 1981, and a
complaint issued on December 24, 1981. The complaint
alleges that Respondent Servomation Corporation violat-
ed Section 8(a)(1) and (5) of the National Labor Rela-
tions Act (the Act), by reducing the number of hours of
work of a substantial number of employees in a unit rep-
resented by the Pennsylvania Federation of Teachers
(the Union), notwithstanding that, during collective-bar-
gaining negotiations, Respondent failed to inform the
Union of its intention to reduce these employees' hours
of work and to give the Union an opportunity to bargain
with respect to this matter.
On the basis of the entire record, including the de-
meanor of the witnesses, and after due consideration of
the briefs filed by counsel for the General Counsel and
by Respondent, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Delaware corporation which is en-
gaged in providing industrial and institutional food serv-
ices with a facility in Lancaster, Pennsylvania. During
the year preceding the issuance of the complaint, Re-
spondent purchased, in the course of such operations,
products valued in excess of $50,000 directly from points
outside Pennsylvania. I find that, as Respondent con-
cedes, it is engaged in commerce within the meaning of
the Act, and that assertion of jurisdiction over its oper-
ations will effectuate the policies of the Act.
The Union is a labor organization within the meaning
of the Act.
It. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For a number of years, the Union' has been the exclu-
sive representative of a bargaining unit consisting essen-
tially of employees working in connection with the
school lunch program of the Pottsgrove School District,
Pottstown, Pennsylvania. Prior to 1979, the school lunch
program for this public school system was under the
direct operation and control of the Pottsgrove board of
education. In 1979, in an effort to reduce costs, the board
of education decided to solicit bids from private food
service contractors for the operation of the lunch pro-
gram. In the spring of 1979, the operation was awarded
to Respondent. Either this contract or a succeeding con-
tract expired by its terms at the end of the 1980-1981
school year. Under the initial and all subsequent con-
tracts with the school board, Respondent was not enti-
tled to receive any profit from the operation of the
school lunch program. Rather, Respondent was entitled
to receive its expenses plus a flat fee. If this total amount
was less than total revenues, Respondent was required to
return the difference to the school board. If total reve-
The relevant collective-bargaining agreements state that they were
signed by the Pottstown Federation of Teachers, Local 2156, American
Federation of Teachers, AFL-CIO. The Pottsgrove Federation of
Teachers is a local affiliate of the Union. The pleadings and briefs disre-
gard any distinctions between these organizations
1113
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nues were insufficient to cover expenses plus the flat fee,
the school board was to reimburse Respondent for the
difference. The school board has always had to make
such payments to Respondent, largely because about 25
percent of the meals are served to children who are enti-
tled to free or below-cost meals by reason of low family
income.
On receiving the school-lunch contract in 1979, Re-
spondent recognized the Union as the bargaining repre-
sentative of the cafeteria employees and in July 1979 en-
tered into negotiations looking toward a collective-bar-
gaining agreement. The Union's bargaining agreement
with the school board (which agreement was in effect
between July 1, 1978, and June 30, 1979) contained a
provision that hours would not be reduced during the ef-
fective period of the contract, contained no provision
which dealt with the subject of layoffs, and contained no
management-rights provision. During negotiations, Re-
spondent proposed the deletion of the provision regard-
ing no reduction in hours, the addition of a clause setting
forth a system for determining who would be included in
a layoff if one took place, and the addition of a manage-
ment rights clause. When the Union asked Respondent's
reasons for wanting the clauses regarding hours reduc-
tion and layoffs, Respondent explained that it planned to
centralize in one school much of the cooking operation
for the elementary and intermediate schools, each of
which had previously had a kitchen. Further, at the
Union's request, Respondent provided the Union with a
copy of the staffing proposal which Respondent had in-
cluded in its successful bid to the school board. This
staffing proposal set forth an intention to have a particu-
lar number of employees, and to have a number of the
employees work shorter hours than previously. The
Union asked Respondent for a contractual guarantee that
hours and the number of employees would not be cut
below the level set forth in the staffing proposal. Re-
spondent stated that it would not do so because it had no
control over the level of student participation in the
lunch program, and because sometimes an entire school
will be closed during the school year owing to structural
problems or fire. 2 The bargaining agreement, as finally
executed, did not include the previous provision regard-
ing no reduction in hours; provided (in substance) that
layoffs would be effected in reverse order of seniority if
the retained senior employees were qualified to do the
work; and contained a management-rights clause which
was virtually identical to the clause, set forth in full,
infra, included in the 1981-1983 agreement directly in-
volved here. Also, the 1979-1981 contract contained a
modified union-shop clause, checkoff provisions, and a
grievance and arbitration clause. During the negotiations
which led up to this contract, Respondent's representa-
tives included Robert Grosh Jr., Respondent's area
2 The level of participation is affected by both the school enrollment
and the percentage of students who choose to participate. Also, on occa-
sion, entire classes may be absent from school because of school-orga-
nized field trips. About 75 percent of all meals are paid for at the cash
register on the day the meal is purchased. The remaining meals are paid
for by means of a ticket which is obtained in advance and, ordinarily, is
valid for I week. Almost all the meals obtained by ticket are meals which
are obtained free or at a reduced price.
dining service manager. The Union's representatives in-
cluded Clyde Dry, who is its treasurer, and who is a
public high school teacher in another unit represented by
the Union.
At the beginning of the 1979-1980 school year, and
after the execution of this agreement, the daily work
schedules of the unit employees who worked in the ele-
mentary schools were reduced from their former daily 6-
3/4 level to 2-1/2 hours a day. In other schools, some
employees' hours were reduced from their former daily
6-hour level to 4 or 5 hours a day. These reductions re-
mained in effect for the entire 1979-1980 school year.
During the 1980-1981 school year, hours were in-
creased at the West School owing to the 1980 addition
of another school with another cafeteria. The employees
at this school included the wife of union negotiator
Clyde Dry. One employee in the high school covered by
the lunch program was assigned to work 1 hour less than
usual on November 12, 1980. Four employees in lower
schools covered by the program were assigned to work
.3 hour to .5 hour less than usual on November 14, 1980.
Three employees in an elementary school covered by the
program were assigned to work 1.5 hours less than usual
on May 14, 1981, and .25 hour less than usual on May
20. Eight employees in the high school covered by the
lunch program were assigned to work from .5 to 1.4
fewer hours than usual on June 10, 1981; seven of these
were assigned to work from .5 to 1.4 fewer hours than
usual on the following day, June 11. All of these changes
in schedule were for the particular day only. Grosh testi-
monially attributed these changes partly to unspecified
changes in operation to improve quality; and partly to a
reduced participation level, perhaps owing at least partly
to class trips. Three of the employees whose schedules
were thus changed in May or June 1981 participated in
the negotiations leading to the 1981-1983 contract. 3
My findings as to the hours reductions in November
1980, May 1981, and June 1981 are based largely on Re-
spondent's Exhibits 8 and 9, compiled from Respondent's
records by food service director Ellen A. Thomson, and
received in evidence without objection. Grosh stated in
his October 1981 prehearing affidavit that hours reduc-
tions were also effected in February 1981. At the August
1982 hearing, he testified that Thomson had told him
that she thought she had made such reductions, but that
he had found his affidavit to be incorrect "just recently
when we had her check the records." However, Thom-
son was unable to recall requests from Grosh for such in-
formation about September 1981 or October 1981, and
testified that he receives such information on a current
basis in the ordinary course of business. Although Grosh
testified that there "could" also have been hours reduc-
tions during the 1979-1980 school year, the absence of
supporting records and his efforts to overstate the
number of changes lead me to infer that the reductions
during the effective period of the 1979-1981 bargaining
agreement were limited to those set forth in the preced-
ing paragraph.
I Namely, elementary school employee Hildenbrand and high school
employees Czeiner and Wilhelm.
1114
SERVOMATION CORP.
In February 1981, because of an increase in the
amount charged to students for their lunches, the number
of lunch participants decreased. In the spring of 1981,
Respondent recommended to the school board, without
telling the Union about this recommendation, that the
total budget of hours be reduced. The school board re-
jected this recommendation, on the ground that the stu-
dents' unhappiness over the price increase might be ag-
gravated by the attitude of lunchroom employees made
unhappy by a reduction in their hours of work. The
Union was not advised of the school board's decision.
In February 1981, Respondent put into final form its
proposal to the school board for the 1981-1982 school
year, including the proposed staffing and the proposed
number of hours for each school. The proposal did not
contemplate a reduction in staffing but, because of the
decrease in student lunch participation following the
price increases a few weeks earlier, did contemplate a
significant reduction in hours. Grosh testified that the
Union did not ask him whether this finalized proposal
contemplated a reduction in hours, and he did not advise
the Union of the proposed reduction. The record fails to
show whether the Union was aware that this proposal
had been finalized, or even that it was in the process of
being drafted. On May 26, 1981, Respondent gave this
proposal to the school board. Respondent did not advise
the Union that a proposal was being submitted or that it
called for an hours reduction. Grosh testified that he had
no way of knowing whether the school board would act
on Respondent's recommendation, and that he did not
tell the Union about it because "I was never asked, and I
didn't feel I had any obligation." Grosh testified that on
an undisclosed date before August 14, and inferentially
on or after June 25, 1981, he had told the Union that Re-
spondent had no contract with the school board for the
forthcoming school year.
B. The Negotiations Which Led to Execution of the
1981-1983 Collective-Bargaining Agreement
1. The Union's initial proposals
Inferentially because one or both parties gave timely
notice of a desire to terminate or modify the 1979-1981
collective-bargaining agreement, that agreement expired
by its terms on August 15, 1981. About June 18, 1981, 4
the union bargaining committee prepared written con-
tract proposals to be submitted to Respondent. Among
the proposals then drawn up was a proposal for a guar-
antee of at least 2-1/2 hours' work a day. The Union
drew up this proposal because the employees on the bar-
gaining committee knew that in the past, some employ-
ees had had their hours reduced below that level. Also,
the Union's draft proposals included a diminution to 30
days from 90 days in the length of the probationary
period and various economic improvements.
2. The June 25 negotiating session
At the first negotiating session, on June 25, the Union
was represented by Union Treasurer Clyde Dry, Sherry
4 All dates hereafter are 1981 unless otherwise indicated.
Dagen, Pat Foltz, Charlotte Hildenbrand, Paula Wil-
helm, Barbara Green, Cindy Olock, and (perhaps) Betty
Czeiner. All of these representatives were employees in
the cafeteria bargaining unit except Dry, a teacher in the
Pottsville school system, whose wife was a member of
the cafeteria bargaining unit. Respondent was represent-
ed by Grosh, Thomson, and Director of Employee Rela-
tions Rick Malone. Dry distributed copies of the union's
proposals and explained them, one by one. In connection
with the proposal for a guarantee of 2-1/2 hours' work a
day, Dry stated that it was important to make it worth
an employee's time to come to work, and expressed the
opinion that the employees would always need at least 2-
1/2 hours to complete their work in the "satellite
schools" (that is, those without complete kitchens). Re-
spondent's representatives then caucused. Upon their
return, they gave the Union a set of counterproposals. In
connection with the Union's proposed 2-1/2-hour guar-
antee, Grosh told the Union that Respondent could not
guarantee any minimum number of hours because of in-
herent uncertainties in the number of participants, as af-
fected by school closings and by selling price changes
caused partly by drops in Government subsidies, and in
the time needed to perform each task in the luncheon op-
eration. The subject of layoffs was not discussed during
this meeting.
3. Union Representative O'Brien's background and
experience
On June 27, Dry asked Ronald J. O'Brien to help out
in the negotiations. O'Brien, who at one time was an
English and Latin teacher, has been a union member
since 1966 and held union office continuously between
1971 and the August 1982 hearing. He has been, success-
sively, the steward of a local union, the local's executive
secretary, its president, a special assistant to the Union's
president, and the Union's executive secretary, who is its
principal financial officer. During this period, he partici-
pated in negotiations which concluded in at least nine
separate contracts; and at the time of the hearing, he was
participating in negotiations with respect to two more.
The employer parties to most, and perhaps all, of these
negotiations were governmental bodies such as school
districts. Most of these contracts had covered profession-
al personnel such as teachers, but some custodial person-
nel had also been involved. As executive secretary,
O'Brien on occasion reviews collective-bargaining agree-
ments that others are negotiating, is somewhat familiar
with the Union's Pennsylvania contracts, and sometimes
provides advice and guidance to those who are negotiat-
ing contracts. He has attended two seminars where con-
tract negotiation was discussed. During his few months
as a shop steward in 1971, he accepted grievances from
employees under the contract and sat down with repre-
sentatives of the school board to discuss problems which
had arisen under the contract. Such duties required him
to be familiar with the contract.
O'Brien testified that he had heard of the term "memo-
randum of understanding," and defined it as an agree-
ment which "has the same applicability in force as if it
were part of the contract" and is an agreement as to
1115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what certain things mean and how they work. The 1981-
1983 contract as eventually executed included a "memo-
randum of understanding" as to the hourly pay for ban-
quet work.
4. The July 15 negotiating session
At the second negotiating session, on July 15, the
Union was represented by O'Brien, Clyde Dry, Dagen,
Hildenbrand, Foltz, and Czeiner. Respondent was repre-
sented by Grosh (Respondent's principal spokesman) and
Thomson. About the middle of this session, O'Brien
became the Union's principal spokesperson. At the begin-
ning of the session, the Union gave Respondent a set of
counterproposals which included the Union's original
proposals for a minimum of 2-1/2 hours' work a day and
for shortening the probationary period. Much of the dis-
cussion during this session was directed to the Union's
proposed change in the definition of probationary em-
ployee, a proposal which particularly concerned O'Brien
because the expiring contract excluded probationary em-
ployees from the requirement that discharges be effected
only "for cause." However, the Union also brought up
again its proposal, which Dry described as "very impor-
tant," for a 2-1/2-hour guarantee. In response, Grosh re-
stated the position which Respondent had taken during
the previous meeting. 5 He did not tell the Union that
there might be a reduction in hours in the forthcoming
school year. At the conclusion of this meeting, O'Brien
told Respondent that he intended to meet with the
Union's bargaining committee to refine the proposals al-
ready on the table, and that the Union might bring in
some new proposals at the next meeting.
5. The August 3 session
At the August 3 session, the parties were represented
by about the same people who had represented them
during the July 15 session. The Union gave Respondent
a document, drafted on July 23-24, which included its
new proposals and its previously advanced proposal for
a 2-1/2-hour guarantee. Grosh stated Respondent's con-
tinued opposition to the 2-1/2-hour guarantee proposal
on the same grounds given during the earlier meetings."
Some of the employees present asserted that during the
first year of the expiring contract, someone in manage-
ment had written a letter to the Union containing such a
guarantee. Grosh said that he had no record of such a
letter, but that he would honor it if they could produce
it.7
s My findings in these two sentences are based on the testimony of
Dagen, Grosh, and Thomson. For demeanor reasons, I do not accept
O'Brien's testimony that the subject of minimum hours was not discussed
during this meeting.
6 My findings in this sentence are based on credible parts of the testi-
mony of Dagen, Grosh, and Thomson. For demeanor reasons, I do not
accept O'Brien's testimony that the 2-1/2-hour guarantee was not dis-
cussed at this meeting. See infra fn. 7.
' My findings in these two sentences are based on Grosh's testimony. I
believe that Dagen was mistaken in testifying that this conversation oc-
curred during the July 15 meeting. O'Brien's testimony that he had some
recollection of this conversation is difficult to reconcile with his testimo-
ny, which I have discredited, that during this August 3 meeting the 2-
1/2-hour guarantee was not discussed. I note, moreover, the following
typewritten entry on the contract proposal which the Union brought to
As to the Union's newly proposed ban on requiring an
unwilling employee to change his workplace, work
schedule, or hours of work, the Union said that it had
advanced this proposal because some employees were
afraid they would be required to change their workplace
or work longer than their regular work schedules called
for. The Union went on to say that if some employees
who were already scheduled to work 6 hours a day did
not want to accept additional working hours, these hours
should be given to employees whose schedules called for
less than 6 hours. Thomson said that "we would work
things out, just discuss them out."8
As to the Union's no-layoff proposal, Grosh told the
Union early in the afternoon that Respondent needed its
present employees in order to operate its cafeteria serv-
ice, believed them to be good workers, and did not
intend to engage in layoffs; but that Respondent could
not commit to writing a guarantee that there would be
no layoffs. During a discussion of that issue later that
day, O'Brien said that the matter of job security was of
the utmost importance to the Union.9 Grosh related the
importance of having flexibility in scheduling hours in
view of uncertainties as to student participation in the
lunch program and the Reagan administration's proposals
of cutting or eliminating Federal contributions to the
program. O'Brien said that the employees still needed as-
surance of their jobs, and that even a $10,000 raise would
mean nothing to the employees if Respondent worked
them only 10 seconds. Grosh replied that in conducting
the lunch program, Respondent was continuously using
up-to-date management techniques approved by consult-
ants and auditors from the Commonwealth of Pennsylva-
nia. Grosh said that while management had no intention
of engaging in layoffs, Respondent could never agree to
a guarantee of that in writing because Respondent
needed flexibility to deal with unforeseen problems.
Grosh said, "We have told you before, we need you
people and that in order for us to complete our job here
we require your services. We want you to know we
need you and we're asking you to trust us on this issue."
As the meeting broke up, O'Brien asked Respondent's
representatives to keep trying on this issue because it was
of utmost importance to the Union. O'Brien said that the
parties were moving in the direction of an early settle-
ment on all the outstanding issues, but that "the matter
involving the no-layoff proposal . . . was central to our
concern." O'Brien said that he was not going to accept
as Respondent's final answer Respondent's statement that
it had no intention of engaging in layoffs but could not
commit itself to that position in writing. O'Brien asked
Grosh to speak to his principals on the matter before
giving an answer. Grosh said that he would.
Neither during this meeting nor at any other time did
the Union ever ask Grosh to put his no-layoff assurances
in a letter of understanding, although O'Brien was admit-
the next meeting, on August 14, "Both sides agreed to try to locate a
letter which was presumably sent to each employee mandating the 2-1/2-
hours of work matter."
I This finding is based on Dagen's testimony, which as to this matter I
find more accurate than O'Brien's version.
9 This finding is based on Grosh's credible testimony.
1116
SERVOMATION CORP.
tedly familiar with that concept. Respondent has never
in fact laid off anyone in the bargaining unit. Laying to
one side the discussion of the Union's proposed 2-1/2-
hour guarantee and proposed ban on schedule changes,
the subject of reduction in hours did not come up at this
meeting.
My findings as to Grosh's statements about layoff
plans are based on O'Brien's and Dagen's testimony. For
demeanor reasons, to the extent not included in my find-
ings, I do not accept Grosh's or Thomson's testimonial
disavowals of any assurances on this subject.
6. The preparation of notices to employees
diminishing their scheduled work hours
Throughout the summer, Thomson had been drafting
for each employee a job description and a work schedule
specifying his hours. In drafting the individual work
schedules, Thomson worked off Respondent's pending
May 26 proposal to the board of education. On August
II1, Respondent was advised that the board of education
had accepted this proposal which, as previously noted,
contemplated reductions in hours for about half the unit
employees. During the interval between the August 3 ne-
gotiating session and the next and last one on August 14,
Thomson prepared for each employee a slip of paper
containing his name, job description, and the hours (for
example, 11 a.m. to 1 p.m.) during which he was sched-
uled to work during the 1981-1982 school year.
Throughout the summer, Thomson kept Grosh ad-
vised that hours were being scheduled which reflected
decreases for individual employees. Accordingly, by the
time of the August 14 negotiating session, Grosh knew
which individual employees would have their hours re-
duced. However, Thomson never told anyone on the
union negotiating committee about this activity. She tes-
tified that none of her superiors ever gave her any in-
structions about what to tell the Union and what not to
tell the Union about the schedules. She further testified
that she never asked Grosh why he had not, during ne-
gotiations, informed the Union of this scheduling activi-
ty, and that he never told her why he did not.
7. The August 14 negotiating session
During the August 14 negotiating session, each party
was represented by about the same people who had rep-
resented it at the August 3 meeting. Grosh began the
meeting by stating that the board of education had ap-
proved Respondent's contract, that Respondent now
knew that it would be operating at Pottsgrove for the
1981-1982 school year, that Respondent had been grant-
ed the 15-cent increase per plate (the largest Respondent
had ever obtained) that it had sought from the school
district, that Respondent was now in a position to tell
the employees that they would have their jobs, that Re-
spondent knew the Union was concerned about this, and
that Respondent hoped this information would assist the
Union in anything having to do with morale. O'Brien
thanked Grosh, and stated that the Union was still await-
ing Respondent's position on the Union's concerns about
no layoffs. Grosh replied that Respondent's position re-
mained the same, but that the employees were doing a
good job, and that any union fears respecting Respond-
ent's intentions should no longer exist, because Respond-
ent now had a per-plate increase sufficient to enable it to
operate successfully.
The Union then gave Respondent, in writing, the
Union's proposal regarding unresolved bargaining issues.
These proposals included the Union's proposed no-layoff
clause, the Union's proposed ban on employer changes in
an employee's schedule or hours without the employee's
consent, and the Union's proposed 2-1/2-hour guarantee.
The Union stated that it had been unable to find any
copies of the alleged letter, discussed during the preced-
ing bargaining session, in which Respondent had sup-
posedly guaranteed 2-1/2-hours' work a day. After a
short caucus requested by Grosh, the Union stated that
the no-layoff clause was its overriding concern. At this
point, Grosh became very impatient and very testy. He
said, "You have our position on it. I've explained to you
why we can't do this. I've also told you that you have
no need to fear respecting layoffs."
Immediately thereafter, the Union caucused. O'Brien
told the bargaining committee that he felt the Union had
gone as far as it could regarding the no-layoff clause;
that agreement had been reached on the rest of the items,
and that the time had come for the Union to decide
whether to come to an agreement. The union representa-
tives decided to come to an agreement. At the end of the
caucus, the Union advised Respondent, in effect, that the
Union was willing to recommend that its membership
ratify a contract which consisted of the terms of the ex-
piring contract with the changes, but only the changes,
which had already been agreed to by both parties. Re-
spondent's negotiators stated that such a contract was ac-
ceptable to Respondent. This tentative 1981-1983 con-
tract contained substantially the same provisions as the
1979-1981 contract with respect to, inter alia, union se-
curity, checkoff, and the grievance-arbitration procedure.
The tentative 1981-1983 contract did not contain the
Union's proposed no-layoff clause, and did contain provi-
sions regarding how employees would be selected for in-
clusion in any layoff. Further, the tentative contract did
not contain the Union's proposed clause (not discussed at
all on August 14) which, inter alia, forbade Respondent
to change an employee's work schedule or hours of
work without his consent, Also, the tentative contract
did not contain the 2-1/2-hour guarantee.' ° Laying to
one side the discussion of the alleged letter containing
such a guarantee, the Union's proposal for a 2-1/2-hour
guarantee was not discussed on August 14; nor did the
Union state in terms that it was withdrawing this propos-
al.
'° Both the 1979-1981 and the 1981-1983 contracts provided that Re-
spondent "shall not be responsible for pay where work is not available
due to reasons beyond the control of the Company, including but not
limited to emergencies, or acts of God." The contractual context of these
provisions and the documents used during the negotiations suggest that
the foregoing provisions were directed to situations where the employees
had reported to work as scheduled, but work was unavailable because
(for example) the schools were closed owing to bad weather. There is no
evidence that either party regarded this provision as related to the pro-
posed 2-1/2-hour guarantee.
1117
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
My findings as to the August 14 negotiations are based
on a composite of credible parts of the testimony of
O'Brien, Dagen, Grosh, and Thomson. Grosh's and
Thomson's testimony, denied by O'Brien and Dagen,
that Grosh said his no-layoff assurances extended to the
first day of school only, is rejected for demeanor reasons
and because Grosh's prehearing affidavit contained no
reference to such a limitation. I Nor do I accept Grosh's
and Thomson's testimony, denied by O'Brien and Dagen,
that the Union stated in terms that it was withdrawing its
proposal for a 2-1/2-hour guarantee. I so find for de-
meanor reason, because Thomson was somewhat hesitant
in testifying about the alleged specific withdrawal, and
because Grosh and Thomson gave different versions of
the discussion surrounding the withdrawal. More specifi-
cally, Grosh (but not Thomson) testified that the Union
expressly based its action on its inability to find the al-
leged letter containing the guarantee, and that during the
previous negotiating session he had told the Union that
he would honor any such letter; whereas Thomson (but
not Grosh) testified that Respondent replied to the 2-1/2-
hour proposal by saying "that there was no way they
could ever guarantee-ever, a minimum number of hours
to be worked a day." In finding that the Union did not
in terms withdraw its 2-hour proposal, I am aware of
Grosh's testimony that the notations on Respondent's
working copy of the Union's August 14 proposals were
made by him during the negotiations, and that the nota-
tion "Withdrawn .... No Change for 1979-1981 agree-
ment" appears next to the 2-1/2-hour guarantee section.
However, I infer that he inserted this notation in the
belief that the execution of an agreement without this
guarantee would effect a withdrawal in view of the re-
tention in the new agreement of the management-rights
clause.
During this August 14 negotiating session, Respondent
said nothing at all about the fact that the company pro-
posal accepted by the school board contained a staffing
proposal anticipating that the hours of a number of the
employees would be cut; and nothing at all about the
fact that negotiator Thomson had completed the prepara-
tion of the slips to be given to each individual employee
reciting his schedule for the forthcoming school year,
many of which slips called for substantial cuts in hours.
At least until after the end of negotiations and the em-
ployees' ratification of the contract, Respondent never
advised the Union that the proposal submitted in late
May by Respondent to the school board, which eventu-
ally accepted it, called for many employees to work
fewer hours than previously. Neither during the August
14 negotiating session nor at any other time did the
Union ask Respondent whether it planned to reduce any-
one's working hours for the 1981-1982 school year. The
bargaining agreement as submitted to and ratified by the
' In this connection, I note that Respondent had never laid and never
did lay anyone off, the fact that the staffing proposal approved by the
school board on August II did not call for a layoff, the fact that at least
as a practical matter the school board would have to approve a layoff
(see supra part II,A and infra part II,D,2), and the fact that Respondent
was supposed to be reimbursed by the school board if total revenues
were insufficient to cover expenses plus Respondent's flat fee.
employees included the same management-rights clause
as the 1979-1981 agreement. That clause states:
ARTICLE IV
Management Rights
Subject to the specific limitations, modifications,
and delegations of authority provided by this
Agreement, the Company shall retain the rights to
exercise the customary functions of management in
the operation of its business including, but not limit-
ed to, the right to hire, promote, transfer, and assign
work, to increase or decrease the work force, to de-
termine products to be handled, to change work
schedules and hours of work, to establish reasonable
rules and regulations.
The bargaining unit set forth in the 1981-1983 contract
is admittedly appropriate, and is fully described in Con-
clusion of Law 3, infra.
C. The Ratification of the Contract and the
Subsequent Announcement of the Cuts in Hours
On an undisclosed date on or after August 14, the
Union arranged for a meeting on August 24 where the
contract as agreed to by Respondent and the union nego-
tiators was to be ratified or rejected by the employees.
On an undisclosed date prior to the date on which the
Union made its arrangements for an August 24 meeting,
Respondent arranged for an employee meeting before
the opening of school, to be held on September 1 at 10
a.m. in the Pottsgrove Intermediate School cafeteria,
during which Respondent planned to give the employees
information relevant to the forthcoming resumption of
their cafeteria work, including the hours they would be
scheduled to work. After Respondent had scheduled its
10 a.m. September 1 meeting, the Union rescheduled its
contract ratification meeting for September I at 8:30
a.m., also in the Intermediate School cafeteria.
On August 31, Thomson telephoned lead helpers Mary
Tutoris, Thelma Trout, and Mildred Baradgie, all of
them unit employees, to tell them that Respondent was
going from a bulk to a semi-bulk satelliting program
which would lengthen their hours and otherwise change
their jobs. Thomson was able to reach Tutoris and
Trout, but not Baradgie. Thomson did not tell Tutoris or
Trout that other employees were going to have their
hours reduced. Thomson testified that she decided to call
these three employees because she thought they might
not want their jobs as so changed, and the sooner Re-
spondent learned of any rejections, the faster it could
proceed with the job-posting procedure. All three of
these employees were probably union members, 12 but
none of them was likely a union official or steward.' 3
12 The record specifically so shows as to Tutoris. As previously noted,
both the 1979-1981 and 1981-1983 contracts contained modified union-
shop provisions.
i3 The record specifically so shows as to Tutoris and Trout. The
record shows that Baradgie did not particiate in the negotiating sessions,
during which the Union was represented by (inter alia) its bargaining
committee; and there is no evidence that she was otherwise a union offi-
cial.
1118
SERVOMATION CORP.
Before September 1, Thomson never told the Union, any
union officials, or any negotiating committee member
that hours were going to be changed.
At the 8:30 a.m. union meeting in the cafeteria on Sep-
tember 1, O'Brien submitted to the employees a compre-
hensive statement of the improvements they were to re-
ceive under the tentative contract before them. The em-
ployees unanimously ratified the contract, which stated
that it was effective between August 16, 1981 (the day
after the expiration of the 1979-1981 contract) and
August 15, 1983. At 9:45 a.m., it was signed by Dagen
and Clyde Dry for the Union and by Grosh and Thom-
son for Respondent. Thereafter, Respondent served to all
those present the coffee and sweet rolls which Thomson
had been preparing in the cafeteria during the Union's
meeting. The employees remained in the cafeteria for the
staff meeting called by Respondent. Among the employ-
ees present were all but one of the unit employees who
had been on the Union's bargaining committee. At this
meeting, Respondent gave each employee a slip of paper
stating, inter alia, what his hours of work would be
during the forthcoming school year. Of the approximate-
ly 34 unit employees, 17 had suffered a reduction in
hours ranging from 15 minutes to 4 hours a day, with an
average reduction of about I hour.14 Before the cut in
hours, these employees' daily hours had varied between
3-1/2 hours and 6-1/2 hours, with an average of about 5
hours. Assuming that a given employee was a helper
who had previously worked 5 hours a day and his hours
were cut to 4 a day, his total daily earnings under the
old contract would have been $18.20 ($3.64 an hour) and
under the new contract $16.16 ($4.04 an hour). Of the
employees whose hours were thus cut, seven whose
hours were cut to fewer than 6 hours had previously
been scheduled to work at least 6 hours a day, the work
schedule which qualified them for the Respondent's
group insurance and profit sharing plan under both the
1979-1981 and 1981-1983 contracts. During negotiations,
Respondent had successfully resisted the Union's efforts
to make part-time employees eligible for these programs
and to reduce to 4-1/2 the number of daily hours re-
quired to give an employee full-time status. Of these
seven employees who had previously worked at least 6
hours a day, the new schedules of four called for them to
work 4-1/2 hours a day or more.
The employees at each school were seated at different
tables, and could not hear what was being said at other
tables. After the distribution of the new schedules, pro-
tests were made to Thomson by high school cafeteria
employees Czeiner and Wilhelm (both of whom had
been members of the negotiating committee) and
Saylor. s The record fails to show exactly what they
14 Those whose hours were cut included the wife of union
negotiator/treasurer Clyde Dry (three-fourths hour), and union bargain-
ing committee members Hildenbrand (one-fourth hour), Czeiner (I hour),
Wilhelm (1-1/2 hours), Dagen (one-fourth hour), and Foltz (one-fourth
hour). Respondent also cut the hours of an employee named Trout, pre-
sumbly a different person from Thelma Trout, whose hours (according to
Thomson) had been increased.
"6 Czeiner's hours were cut from 6-1/2 to 5-1/2; Wilhelm's from 6-1/2
to 5; and Saylor's from 6 to 5.
said. Speaking on behalf of the four other employees (in-
cluding union bargaining committee member Foltz) who,
like Dagen, worked at the intermediate school and
whose hours had been cut,1 6 Dagen said that she did not
think it was fair that after Respondent and the Union had
gone through the whole contract, and discussed the cuts
and the hours, for Respondent to turn around and cut
the employees' hours, because with so few hours the em-
ployees could not get the job done the way Respondent
wanted it done. She did not protest the cut in hours as
being in breach of anything that was said in the negotia-
tions.
So far as the record shows, the employees worked
during the entire 1981-1982 school year the schedules
which they had been given on September 1, 1981. The
student participation in the lunch program during this
period was lower to an undisclosed extent than in the
previous school year.
D. Analysis and Conclusions
1. Respondent's contention that the matter should
be deferred to arbitration
Respondent contends that the issues herein should be
deferred to the contractual grievance/arbitration proce-
dure, and the complaint should be dismissed with the
qualifications set forth in Collyer Insulated Wire, 192
NLRB 837 (1971). This contention is rejected on the
ground that Respondent has expressed no willingness to
waive the long-since expired contractually specified time
limit for requesting arbitration of the grievance filed by
the Union regarding the reduction in hours. Southern
Florida Hotel & Motel Assn., 245 NLRB 561, 600 (1979).
In any event, deferral would be inappropriate because, as
discussed infra, the issues presented here do not involve
any issues of contract interpretation. See Struthers Wells
Corp., 245 NLRB 1170 (1979); Branch Motor Express Co.,
260 NLRB 108 (1982). 17
2. The allegedly unlawful unilateral change in hours
The length of the employees' workday and workweek
is, of course, a mandatory subject of collective bargain-
ing. Steelworkers v. NLRB, 530 F.2d 266 (3d Cir. 1976),
cert. denied 429 U.S. 834 (1976);8s Weston & Brooker
18 These four employees' cuts in hours ranged between one-fourth
hour and 4 hours, with an average of about 2 hours. Dagen's hours were
cut one-fourth hour, but this did not concern her personally.
17 In denying during the hearing Respondent's motion for deferral to
arbitration, I assumed that deferral would be inappropriate where, as
here, the conduct attacked in the complaint is not alleged to constitute a
breach of contract. See Collyer, supra, 192 NLRB at 841. ("The question
whether the Board should withhold its process arises, of course, only
where a set of facts may present not only an alleged violation of the Act
but also an alleged breach of the collective-bargaining agreement subject
to arbitration.") In thus assuming a requirement of a breach allegation, I
was apparently in error. General American Transportation Corp., 228
NLRB 808, 809 (1977); Roy Robinson Chevrolet, 228 NLRB 828 (1977);
Croatian Fraternal Union of America, 232 NLRB 1010 (1977); Standard
Oil Co., 254 NLRB 32 (1981).
18 Decision on remand, 244 NLRB 1060 (1979), enf. denied 636 F.2d
1352 (3d Cir. 1981), cert. denied 454 U.S. 818 (1982). These subsequent
decisions have no bearing on the point for which the case is cited here.
1119
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Co., 154 NLRB 747, 763 (1965), enfd. 373 F.2d 741 (4th
Cir. 1967); see also Meat Cutters Local 189 v. Jewel Tea
Co., 381 U.S. 676, 691 (1965). Accordingly, an employer
at least prima facie violates Section 8(a)(5) and (1) of the
Act by changing the length of his employees' workday
and workweek without giving the statutory representa-
tive an opportunity to bargain about the change. Such an
opportunity has not been afforded unless the union has
received notice of the proposed change sufficiently in ad-
vance to allow reasonable scope for bargaining. Soule
Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1084 (Ist
Cir. 1981); NLRB v. Carbonex Coal Co., 679 F.2d 200,
204 (10th Cir. 1982); M. A. Harrison Co., 253 NLRB 675
(1980).
In the instant case, the Union did not receive actual
notice until September 1, 4, or 5 working days before the
beginning of the 1981-1982 school year, that Respondent
intended to cut the hours of about half the employees in
the unit. Entirely apart from the execution of the 1981-
1983 agreement a few minutes earlier (see infra fn. 20), I
find that the September 1 notice was not sufficiently
early to allow reasonable scope for bargaining. Upon a
union request to bargain about the matter, the statute for-
bade Respondent unilaterally to effectuate the cut in
hours unless Respondent had entertained the Union's
proposals with a "serious intent to adjust differences and
to reach an acceptable common ground" (NLRB v. In-
surance Workers (Prudential), 361 U.S. 477, 484-485
(1960)). Printing Pressmen Local 51 (Milbin) v. NLRB,
538 F.2d 496, 501 (2d Cir. 1976); United Contractors, 244
NLRB 72, 73 (1979), enfd. 108 LRRM 3152 (7th Cir.
1980). Respondent could not discharge its duty thus to
entertain union proposals where it had consciously
placed itself in a position where it could not give unfet-
tered consideration to the merits of any proposals that
the Union might offer. General Electric Co., 150 NLRB
192, 196, 279-280 (1964), enfd. 418 F.2d 736, 759-760 (2d
Cir. 1969), cert. denied 397 U.S. 965 (1970); Firch Baking
Co. v. NLRB, 479 F.2d 732, 736 (2d Cir. 1973), cert.
denied 414 U.S. 1032 (1973). The statute forbids "behav-
ior . . . which directly obstructs or inhibits the actual
process of discussion" (N.L.R.B. v. Katz, 369 U.S. 736,
747 (1962)). On August 11, 3 weeks before the Union's
September I receipt of notice of Respondent's decision
to cut hours, the school board had already accepted Re-
spondent's May 26 proposal, including that portion
which contemplated cutting the hours of about half the
unit employees. If a deviation from the staffing scheme
would have constituted a breach of Respondent's con-
tract with the school board, notice to the Union after the
consummation of this contract would obviously have
been too late to enable Respondent seriously to entertain
union proposals to alter the staffing scheme. To be sure,
there is no contention that Respondent's contract with
the school board required Respondent to adhere to the
hours contemplated in its staffing scheme (see infra fn.
22). However, Grosh testified that because Respondent's
flat-fee reimbursement basis means that Respondent is, in
essence, spending the school board's dollars, Respondent
always reviews proposed hours reductions (as well as
any other type of cost-related item) with the school
board before making changes. Before approving on
August 11 Respondent's staffing proposal, for which Re-
spondent gave the Union no notice, the school board had
already had that proposal under consideration for 2-1/2
months. When entertaining a union request after August
11 for any work schedule, which from the September 8,
outset of the school year significantly deviated from the
schedule approved by the school board, Respondent
would likely have anticipated reluctance by the school
board to reconsider the entire scheduling matter and
(perhaps) agree to reimburse Respondent for higher
labor costs, particularly because (as the school board
would necessarily know) Respondent could have elimi-
nated (or at least minimized) the need for such hurried
additional toil by the school board if Respondent had
discussed the matter with the Union earlier that summer.
Indeed, Respondent might well have apprehended that a
seeming change of mind by Respondent after August 11
as to the work schedule effective at the September 8 be-
ginning of the school year would lead the school board
to be generally dubious about any proposals or an-
nounced plans which Respondent might make in the
future. Such expected confrontations with the school
board would almost certainly have inhibited Respond-
ent's receptivity to union proposals for change.19 I note,
moreover, that Thomson had consumed the entire
summer in drafting work schedules announced on Sep-
tember 1 to be effective on September 8 or 9, and that
she had consumed up to 11 days in preparing the written
schedule slips to be given to the individual employees.
While she was obviously performing many other tasks
during this period, its length, when Thomson was not
concerning herself with union input, casts serious doubt
on whether the schedule prepared by her could have
been adequately discussed during the 7-day period (in-
cluding the Labor Day weekend) between the notice to
the Union and the effective date of the schedule.2 0
Union negotiators O'Brien and Dagen both credibly
testified that, until Respondent's September I distribution
of the employees' 1981-1982 work schedules, these union
representatives did not know that Respondent contem-
plated reducing the individual employees' hours. The
events when the employees received these schedules
shows that union negotiating committee members
Czeiner, Wilhelm, and Foltz had also been unaware of
Respondent's plan. Thomson credibly testified that she
had never previously revealed these plans to anyone on
the union negotiating committee or heard Grosh tell the
union representatives about them; and Grosh credibly
testified that he had never told the Union about them. I
conclude that before the September 1 ratification and
execution of the bargaining agreement and the employ-
ees' receipt a few minutes later of their 1981-1982 sched-
ules, no union representative knew about Respondent's
plan to cut hours.
19 Cf. General Electric, supra, 150 NLRB at 280, where the inhibiting
factor was the employer's desire to avoid looking publicly "foolish."
20 In view of my findings in the text, I need not and do not consider
whether, as a matter of law, the imminent execution of the 1981-1983
bargaining agreement could be said to affect the date by which the Union
was entitled to notice of the proposed cut in hours. See, however, my
subsequent discussion regarding Respondent's contention that the Union
should have known about the planned cut.
1120
SERVOMATION CORP.
Moreover, I conclude that if the Union had known
that Respondent planned to cut the hours of half of the
unit employees at the beginning of the 1981-1982 school
year, the Union's bargaining tactics would probably have
been substantially different and, in consequence, the col-
lective-bargaining contract, as finally agreed to, might
have included some protection against the cutting of
hours. I so conclude because the Union initially proposed
a guarantee of 2-1/2 hours' work a day, on the express
ground that it was important to make it worth an em-
ployee's time to come to work, and adhered thereto until
almost the end of the final bargaining session; because
the Union's eventual agreement to retain the 6-hour qual-
ification for Respondent's insurance and profit-sharing
program represented a withdrawal from the Union's ini-
tial proposal for a 2-1/2-hour qualification; because of
the Union's partly successful efforts to obtain a wage in-
crease; and because of O'Brien's statement during negoti-
ations (as testified to by Respondent's principal negotia-
tor) that a large hourly raise would mean nothing if the
employees were given no work. So far as I am aware,
there is no case holding that, under such circumstances,
an employer's unilateral action with respect to a manda-
tory subject of collective bargaining was not unlawful
because, at a time when meaningful bargaining could
have taken place, the union should have known of the
employer's plans. 2 1 However, Respondent relies on such
a defense.
Because the adequacy of actual notice depends on its
being received at a time when meaningful bargaining can
take place, Respondent is necessarily contending that by
such a time the Union should have known about the
planned cuts in hours. Although this period had clearly
expired by the time the school board had accepted Re-
spondent's proposal, the record is otherwise barren of
evidence regarding the period when Respondent's staff-
ing plans were still sufficiently flexible to permit mean-
ingful bargaining. Because evidence regarding this matter
is most accessible to Respondent, it is Respondent which
bears the burden of coming forward with such evidence.
NLRB v. Great Dane Trailers, 388 U.S. 26, 34 (1967);
NLRB v. Wallick, 198 F.2d 477, 483 (3d Cir. 1952);
Zapex Corp., 235 NLRB 1237 (1978), enfd. 621 F.2d 328
(9th Cir. 1980).22 Accordingly, even assuming that
21 The dictum relied on by Respondent in Valley Mould A Iron Co.,
226 NLRB 1211, 1212-1213 (1976), addressed a situation where, in pro-
tecting the employees' interests, the union was not significantly handi-
capped by the employer's failure to disclose an alleged fixed plan to
eliminate certain jobs. The Board went on to find that this fixed plan did
not exist. Respondent also relies on NLRB v. Cone Mills Corp., 373 F.2d
595 (4th Cir. 1967). However, the majority relied on the General Coun-
sel's failure to show that the Union did not know about material changes
in the employer's policy manual, 373 F.2d at 600-601.
22 Before the hearing, the General Counsel obtained a subpoena duces
tecum which called for Respondent to produce, inter alia, correspond-
ence between Respondent and the school board relating to changes, pro-
posed or otherwise, in labor scheduling and mode of operations for the
1980-1982 school year; Respondent's 1980-1982 financial proposals to the
school board and its responses; Respondent's 1980-1982 efficiency studies
in connection with labor scheduling and mode of operations: Respond-
ent's 1980-1982 service agreement and/or contracts with the school
board; and the 1980-1982 budgets approved by the school board for Re-
spondent. Respondent thereupon moved to revoke the subpoena on the
ground, inter alia, that the foregoing material "is of a confidential nature;
thus, if such material became known to the Respondent's competitors, it
actual notice to the Union was not required, the record
fails to show that the Union should have known about
Respondent's plans at a time when meaningful bargaining
could have taken place.
Moreover, even laying to one side the absence of
record evidence as to the timeliness issue. I would be dis-
posed to reject Respondent's "should have known" de-
fense.
In support of Respondent's contention that by an un-
specified date the Union should have known about Re-
spondent's plan to reduce hours, Respondent relies on
the following evidence: The daily work schedules which
Respondent put into effect at the beginning of the 1979-
1980 school year called for much shorter hours than did
the work schedules for the preceding school year. On 5
days between November 12, 1980, and June 11, 1981, a
total of 16 employees (almost half the bargaining unit)
had their regular work schedules shortened, for that par-
ticular day only, for periods ranging between one-half
hour and 5 hours. Further, although the Union's pro-
posed 2-1/2-hour guarantee remained on the table from
the June 25 outset of negotiations until almost the end of
the last session on August 14, the Union never asked Re-
spondent whether it intended to reduce hours, notwith-
standing the 1979-1981 contractual clause which obligat-
ed Respondent "to make available to the Union, upon its
reasonable request, information, statistics, and records in
their readily available form which are relevant to negoti-
ations." 23 Finally, O'Brien (who first joined negotiations
on July 15, 1981) had a considerable amount of experi-
ence as a negotiator, although primarily with respect to
government professional personnel; and teacher Clyde
Dry represented the Union during both the 1979 and the
1981 negotiations.
In reply to Respondent's factual argument, it might be
pointed out that before making the 1979 scheduled cuts
in hours, Respondent had advised the Union of Respond-
ent's plans and (at the Union's request) had given the
Union a copy of the staffing proposal which Respondent
had included in its successful bid to the school board. It
might also be pointed out that the cuts made during the
1980-1981 school year were effective for only a particu-
lar day, and that thereafter, the employees returned to
their former schedules. Further, it might be pointed out
that Grosh urged the Union to "trust us" after learning
during earlier negotiations that the Union was appre-
hending increased (not reduced) hours and (perhaps)
after hearing O'Brien point out that even a $10,000 raise
would mean nothing to the employees if Respondent
worked them only 10 seconds. Also, the evidence shows
that the Union's negotiators (who included only one full-
time representative) had to consider a number of bargain-
could place Respondent at a serious competitive business disadvantage"
Prior to the hearing, the parties disposed of the matters so raised, and
none of these documents is in evidence.
23 Grosh testified that if on July 15 or August 3 or 14 the Union had
asked for any information about reductions in hours, he would have pro-
sided it. See, however, supra, fn. 22.
1121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing subjects in addition to those related to the length of
the workday. 2 4
However, whether the bargaining representative
"should have known" about the employer's intentions
could not be treated as a purely factual issue. Rather,
such a question could be resolved only after resort to the
policy considerations which would underlie such a stand-
ard. Moreover, in the present state of the precedents re-
garding whether a union forfeits its right to compel bar-
gaining where it should have known in advance (al-
though it did not) about the employer's plan to change
conditions of employment, ascertainment of such policy
considerations must be preceded by an inquiry as to
whether the bargaining representative thereby loses such
a right. I conclude that where (as here) the bargaining
representative would be significantly handicapped by
failing to receive actual notice, the representative's right
to compel bargaining should be affected by actual notice
only. Requiring that the union receive actual notice im-
poses little burden on the employer, who obviously
knows and can describe his plans better than anyone
else.2 5 Moreover, a "should have known" rule would
exert strong pressure on the bargaining representative to
try to figure out anything the employer might be plan-
ning to which the bargaining representative could con-
ceivably object, and to investigate any possibilities that
thus came to mind. Encouragement of such an attitude of
continuous suspicion would hardly contribute to a har-
monious bargaining relationship. See NLRB v. Ladies
Garment Workers (Slate Belt), 274 F.2d 376, 379 (3d Cir.
1960).26 Furthermore, such a rule might well encourage
some employers to engage in at least arguably devious
conduct in order to create a situation where the union
does not in fact know, but at least arguably "should have
known." For example, in the instant case Grosh told the
Union during each of the first three bargaining sessions
that Respondent did not want to agree to a 2-1/2-hour
guarantee because of inherent uncertainties in the
number of participants and in the time needed to perform
each task in the luncheon operation. However, I infer
24 The first three bargaining sessions lasted all day; the first session
lasted from 10 a.m. to 5 or 6 p.m. A by no means exhaustive list of the
subjects discussed during negotiations includes wages, overtime pay, a
health and welfare plan, company provision of uniforms, sick leave,
number of and entitlement to paid holidays, payment for Saturday holi-
days, paid emergency and "personal" days, pay for time lost during
school shutdowns due to acts of God, the "no-discrimination" clause,
length of probationary period, posting of work schedules, inclusion of
truckdrivers in the unit, union bulletin boards, arrangements for periodic
union-company conferences, and certain aspects of the grievance proce-
dure.
25 Indeed, the language in some court decisions suggests that the
union's right to compel bargaining is affected only by notice from the
employer. See, e.g., Soule, supra, 652 F.2d at 1084 (Ist Cir. 1981); Hotel
Holiday Inn v. NLRB, 702 F.2d 268 (Ist Cir. 1983); Olinkraft, Inc. v.
NVLRB, 666 F.2d 302, 308 (5th Cir. 1982); Carbonex, supra, 679 F.2d at
204 (10th Cir. 1982); Auto Workers (Udylite) v. NLRB, 455 F.2d 1357,
1365 (D.C. Cir. 1971); see also Katz, supra, 369 U.S. at 744. However, the
Board apparently regards as sufficient a showing of actual notice, regard-
less of source. Medicenter. Mid-South Hospital, 221 NLRB 670, 678
(1975); Talbert Mfg., 264 NLRB 1051 (1982); but see Bob's Big Boy, 264
NLRB 432 (1982); Admiral Merchants Motor Freight, 265 NLRB 134
(1982); Knogo Corp., 265 NLRB 935 (1982).
2' Thus, O'Brien testified that his normal practice is to always assume
he is dealing with honest people, and that he is used to dealing with hon-
orable people who do not engage in deception.
that at least one reason for Respondent's objections, and
perhaps the principal reason, was its knowledge that Re-
spondent's pending proposal before the school board
contemplated reductions below the 2-1/2-hour level. 27
However, "if the purpose of collective bargaining is to
promote the 'rational exchange of facts and arguments'
that will measurably increase the chance for amicable
agreement, then sham discussions in which unsubstantiat-
ed reasons are substituted for genuine arguments should
be anathema." General Electric, supra, 418 F.2d at 750;
see also NLRB v. Truitt Mfg Co., 351 U.S. 149, 152-153
(1956) ("Good-faith bargaining necessarily requires that
claims made by either bargainer should be honest
claims"); NLRB v. George P. Pilling & Sons Co., 119 F.2d
32, 37 (3d Cir. 1941) ("there must be common willing-
ness among the parties to discuss freely and fully their
respective claims and, when these are opposed, to justify
them on reason"). Moreover, the Union's conduct at the
bargaining table made it clear that the Union did not in
fact have notice of Respondent's plans. Thus, the Union
stated that job security was of the utmost importance,
and pointed out that Respondent's agreement to wage in-
creases would mean nothing if the employees did not
work. However, the Union connected these arguments to
fears of layoffs, which Respondent did not contemplate
and has never effected. Further, the Union tendered a
concern in protecting employees against unwanted over-
time as the Union's reason for a proposed ban on requir-
ing an employee to change his work schedule or hours
of work, although the language of that proposal would
at least arguably have restricted Respondent's right to
cut hours. Nevertheless, Respondent said nothing at all
about its plan to cut hours. Rather, Respondent respond-
ed on the narrowest grounds permitted by the Union's
specific remarks to all of the proposals which might have
limited Respondent's discretion to cut hours; and in re-
sponse to the Union's no-layoff proposal, said, "in order
for us to complete our jobs here we require your serv-
ices. We want you to know we need you and we're
asking you to trust us on this issue." I infer that Re-
spondent wanted to delay as long as possible any receipt
by the Union of Respondent's hour-cutting plans, and to
divert the Union from asking in terms about whether Re-
spondent intended to use less labor by cutting hours (in-
stead of asking, as the Union did ask, whether Respond-
ent intended to use less labor by effecting layoffs). As
matters turned out, the Union did not, in fact, receive
notice of Respondent's plans until after the execution of
a bargaining agreement with a management-rights clause
applicable to cuts in hours and after the employees' re-
ceipt of their new schedules.
Furthermore, Respondent's proposed "should have
known" test creates uncertainties not contained in a re-
quirement of actual notice. Even to the extent that a
"should have known" test would present merely a factu-
al issue, it is harder for both the parties and the Board to
27 The schedule put into effect in September 1981 called for three em-
ployees to work less than 2-1/2 hours a day. There is no evidence that
different hours were specified in the material before the school board at
the time Respondent thus explained its opposition to the Union's guaran-
tee.
1122
SERVOMATION CORP.
determine whether the union "should have known" by a
particular date than to determine whether and when the
union received actual knowledge. Moreover, application
of a "should have known" test would likely involve a
series of Board determinations as to the degree of alert-
ness, inquisitiveness, and aggressiveness which must be
displayed by union negotiators in order to preserve the
union's right to compel bargaining about unilateral con-
duct of which the union had no prior notice. By relying
on (inter alia) O'Brien's experience as a negotiator, Re-
spondent seems to assume that as to such characteristics
a higher standard is to be exacted of experienced profes-
sional representatives. However, such a rule would en-
courage unions to employ inexperienced amateur repre-
sentatives. On the other hand, use of a "reasonable man"
standard similar to that used in negligence cases would
discourage unions from using unit employees who are in-
experienced in bargaining techniques, but whose partici-
pation could contribute to the negotiations such other
benefits as (for example) a first-hand knowledge of actual
plant operations and a feeling by the unit employees that
their interests were being seriously considered.
For the foregoing reasons, I find that laying the 1981-
1983 contract to one side, Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally cutting the
working hours of unit employees without the Union's
having received timely notice of such action. According-
ly, and still laying the 1981-1983 contract to one side,
the Union retained its right to compel bargaining about
the matter even though (so far as the record shows) it
made no postchange bargaining demand, but merely pro-
tested to Respondent (at least through bargaining com-
mittee member Dagen, and perhaps through bargaining
committee members Czeiner and Wilhelm as well) about
Respondent's action,2 8 filed a grievance, and filed the
charge herein. Champion Parts Rebuilders, 260 NLRB
731 (1982).
Respondent contends that the 1981-1983 collective-
bargaining agreement effectively waived whatever right
the Union may have had to bargain about the cuts in
hours. I would unhesitatingly agree with Respondent if,
during the period which ended no later than August 11
and preceded both the September I execution of that
contract and its August 16 effective date, Respondent
had conducted itself in a manner which did not inhibit it
from discharging its statutory bargaining obligation to
bargain with the Union, on request, with respect to the
planned September 8 reduction in hours. Laredo Packing
Co., 254 NLRB 1, 6-9 (1981); Consolidated Foods Corp.,
183 NLRB 832 (1970). Nor do the General Counsel or
the Union appear to interpret the agreement otherwise.
However, I have found that at least 3 weeks before the
1981-1983 contract was executed and the Union immedi-
ately thereafter received notice of Respondent's decision
to cut hours, Respondent had consciously placed itself in
a position where it could no longer give unfettered con-
sideration to the merits of any proposal that the Union
might offer regarding the hours matter. Moreover, I
28 Dagen's testimony that she spoke in her capacity as a union repre-
sentative is corroborated by the fact that she had no complaint about the
15-minute daily cut in her own hours
have concluded that if the Union had received timely
notice of such plans, the Union's bargaining tactics might
have been substantially different and, in consequence, the
contract as finally agreed to might have included some
protection against the cutting of hours and/or the con-
comitant cutting of benefits.2 9 Accordingly, the execu-
tion of the contract does not operate as a defense to the
unilateral cut in hours. See Henry I. Siegel Co. v. VLRB,
340 F.2d 309, 310 (2d Cir. 1965); Milbin, supra, 538 F.2d
at 501.
CONCI USIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for collective bargaining within the
meaning of Section 9(b) of the Act: Head cooks, assistant
cooks, lead helpers, helpers, drivers, and substitutes at
the Pottsgrove School District, Pottstown, Pennsylvania,
excluding all clerical employees, confidential employees,
guards, janitors, professionals, supervisors, and managers.
4. The Union has been at all material times the desig-
nated collective-bargaining representative of the employ-
ees in said unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. Respondent has violated Section 8(a)(5) and (1) of
the Act by reducing the hours of work of a substantial
number of employees in said unit notwithstanding that
Respondent failed to inform the Union of its intention to
reduce these employees' hours of work and to give the
Union an opportunity to bargain with respect to this
matter.
6. The unfair labor practice set forth in paragraph 5 af-
fects commerce within the meaning of Section 2(6) and
(7) of the Act.
THE RLEMDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist from such conduct and from
like or related conduct.
The General Counsel requests a make-whole order and
an order requiring Respondent, on request, to bargain
collectively with the Union over the reduction of unit
employees' hours and reduce to writing any agreement
reached as a result of such bargaining. Respondent con-
tends that affording such affirmative relief exceeds the
Board's powers, essentially on the ground that the col-
lective-bargaining agreement permits Respondent to cut
29 As previously noted. Grosh did not regard as impossible the claim
that another member of management had written a letter with a mini-
mum-hour guarantee, and he admittedly undertook to honor any such
letter which could be located. Accordingly. the possibility of a minimum-
hour guarantee cannot be excluded by Grosh's testimony that he told the
Union he had never agreed to such a provision in any contract, and
could not agree to it in the future Grosh testified that he told the Union
that Respondent's "standard insurance program" provided for "no flexi-
hiity" in the minimum daily hours required for coverage. Although his
testimony indicates that this ninimum exceeded 2-1/2 hours, the record
otherwise fails to shos.w. what it sras
1123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours. As previously found, the agreement might not
have contained such provisions if Respondent had con-
ducted itself in a manner which did not inhibit it from
discharging its statutory obligation to bargain with the
Union, on request, with respect to the September 8 re-
duction in hours. The doubts thus created by Respondent
should in fairness be resolved against it. Leeds & North-
rup Co. v. NLRB, 391 F.2d 874, 879-880 (3d Cir. 1968);
NLRB v. Stackpole Carbon Co., 105 F.2d 167, 176 (3d
Cir. 1939), cert. denied 308 U.S. 605 (1939); Television
Wisconsin, 224 NLRB 722, 780-781 (1976). Accordingly,
Respondent will be required to restore to the schedule
for the 1980-1981 school year the employees whose
hours were cut in September 1981, and make them
whole for any loss of income and benefits they may have
suffered by reason of the cut in their hours, with interest
as prescribed in Florida Steel Corp., 231 NLRB 651
(1977).30 However, Respondent's execution of the bar-
gaining agreement is material to the proper scope of the
requested bargaining order. Respondent would have
been within its rights in refusing to accept a contract
which limited its right to cut hours, either unconditional-
ly or unless the Union agreed as to other matters to
:" See generally Isis Plumbing Co., 138 NLRB 716 (1962).
make concessions which are not included in the contract
as it was actually executed. Such employer rights would
be substantially limited by an order empowering the
Union to compel bargaining about employer cuts in
hours, while being permitted to retain the benefits of its
bargain as to all other matters. See H. K. Porter Co. v.
NLRB, 397 U.S. 99 (1970).31 Accordingly, although I
shall issue the requested prospective bargaining order,
the Union's request for such bargaining with respect to
the effective period of the 1981-1983 contract shall privi-
lege Respondent to require the Union to bargain with re-
spect to any or all other provisions of that contract.
Backpay shall run from September 8, 1981, until the oc-
currence of any of the following events: (1) the date of
an agreement as to hours reductions and any other mat-
ters Respondent has elected to reopen; (2) a bona fide
impasse in bargaining; (3) any failure by the Union to re-
quest bargaining within 5 days after receiving notice
from Respondent of its desire to bargain in good faith; or
(4) any subsequent failure by the Union to bargain in
good faith. Whitehead Brothers Co., 263 NLRB 895
(1982).
[Recommended Order omitted from publication.]
"3 I do not read the contractual separability clause as applicable to the
kind of unfair labor practice findings made here.
1124