Southern California Edison Co.

National Labor Relations Board - Board Decisions

Jul 23, 1987

284 N.L.R.B. 1205 (N.L.R.B. 1987)

SOUTHERN CALIFORNIA EDISON CO. 1205
Southern California Edison Company and Utility
Workers of America Local 246, AFL-CIO.
Case 21-CA-21632
23 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 31 October 1983 Administrative Law Judge
Michael D. Stevenson issued the attached decision.
The Respondent filed exceptions and a supporting
brief. The Charging Party filed a brief in opposi-
tion 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
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended
Order.
1 In agreeing with the judge's conclusion that the Respondent's tempo-
rary work assignment policy for injured employees was an unlawful uni-
lateral change, we find that the Respondent did not have a "sound and
arguable" basis for concluding that the change was privileged under the
management prerogatives and wages clauses of the parties' collective-bar-
gaining agreement. The temporary work assignment policy departs from
past practice in that it provides that disabled employees shall be assigned
appropriate temporary work without regard to classification and shall be
ineligible for benefits and subject to discipline if they refuse such assign-
ments. The parties have separately negotiated a comprehensive disability
plan, however, that provides that employees unable to perform their reg-
ular and customary work are eligible for benefits. The two contract
clauses relied on by the Respondent are not sufficiently specific to over-
ride the clear terms of the comprehensive disability plan. The manage-
ment prerogatives clause simply reserves to the Respondent the right to
"transfer" employees, and the wages clause sets forth the wages to be
paid employees assigned temporarily outside of their classifications. Nei-
ther clause addresses disabled workers. The collective-bargaining con-
tract was negotiated while the comprehensive disability plan was in
effect. If the contract were intended to modify the plan, it could have
said so expressly. Such an express statement would be essential to permit
the unilateral action at issue here; for we agree with the judge that the
Respondent is arguing, in effect, that by virtue of its agreement to the
numagement rights and wages clauses, the Union waived its statutory
bargaining rights regarding benefits and work requirements for disabled
employees. It has long been settled that any such waiver may not be im-
plied but must be clear and unmistakable. Metropolitan Edison Co. V.
NLRB, 460 U.S. 693, 708 fn. 12 (1983), and cases there cited. Such a
waiter is totally lacking here. Accordingly, we agree that the institution
of the temporary work assignment policy violated Sec. 8(aX5). We do
not rely on the judge's finding that the temporary work assignment
policy was a "material, substantial, and significant" change because it
may have reduced the number of lost-time accidents. A change is meas-
ured by the extent to which it departs from the existing terms and condi-
tions affecting employees. A change is not rendered material and substan-
tial merely because it achieves the purpose for which it was instituted.
See Rust Craft Broadcasting, 225 NLRB 327 (1976) (requiring employees
to punch a timeciock to increase the accuracy of timecards not a materi-
al, substantial, and significant change from the prior requirement that em-
ployees handwrite the cards). Also, in agreeing with the judge that Su-
pervisor Kuhn's announcement did not constitute notice of the change
sufficiently clear to trigger the 6-month limitation period of Sec. 10(b),
we give no weight to his finding that the Respondent did not intend the
announcement to be formal notice to the Umon. Adequacy of notice does
not turn on the subjective intent of the parties but on whether the cir-
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Southern
California Edison Company, Rosemead, California,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
CHAIRMAN DarsoN, dissenting.
Contrary to my colleagues, I would not find that
the Respondent violated Section 8(a)(5) of the Act
by instituting a temporary work assignment policy
for disabled employees.
The Union and the Respondent negotiated a
comprehensive disability plan (CDP) effective from
1 July 1981 to 30 June 1983. The purpose of the
plan was to compensate for salary loss sustained by
eligible employees as a result of a disabling illness
or injury. The CDP provided that:
Any employee . . . who, because of physical
or mental illness or injury . . . is prevented
from doing his/her regular or customary
work, for the first six months of a disability
period, or if the disability extends beyond six
months, is prevented from performing any rea-
sonable occupation . . . will be paid benefits
for the period of such disability by this plan.
On 10 February 1982 the Respondent's corporate
medical director circulated a memo to its division
medical directors stating that the Respondent had
implemented a "temporary work assignment
policy" which would allow disabled employees to
remain on the job until they could resume regular-
ly assigned duties or up to a maximum of 15 days.
The memo stated that before any employee is in-
structed to remain off the job due to an injury, the
treating company physician should contact the
medical director or the employee's supervisor to
determine the availabilty of temporary work the
employee can perform without aggravating the
injury. On 18 February 1982 the manager of the
Respondent's steam generation division circulated a
memo to all generating station managers describing
the temporary work assignment policy. The memo
instructed supervisors to determine the need for
temporary help without regard to the injured
worker's classification but to use disabled workers
cumstances alleged to be notice clearly convey that a change has taken
place. See, e.g., L. C. Cassidy & Sons, 185 NLRB 920, 926 (1970).
The Respondent did not carry its burden of proving its 10(b) defense
here, however, because the 18 February 1982 memorandum concerning
"temporary work assignments" was not given or shown to any represent-
ative of the Union until at least late April or early May, and there is in-
sufficient evidence that Kulm's reading or summary of the memorandum
to the crew (including Steward Glass) clearly conveyed the changes that
were being made in the work assiginnent policy for disabled employees.
284 NLRB No. 142
1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
productively within their medical restrictions. Both
memoranda stated that whether a disabled worker
would receive a temporary work assignment was
within the discretion of the treating physician and
local supervision.
By letter dated 7 May 1982, the Union demand-
ed that the Respondent rescind the temporary
work assignment policy because it constituted a
unilateral reduction in benefits provided by the
CDP. In a 28 June 1982 letter the Respondent ex-
plained that bargaining was unnecessary because
the temporary work assignment policy did not
result in a reduction in benefits but offered to meet
with the Union to explore more fully its reasons
for opposing the policy. In a letter dated 13 July
1982 the Union informed the Respondent that it in-
tended to file an unfair labor practice charge be-
cause the Respondent had not complied with its re-
quest that the policy be rescinded. On 7 September
1982 the Union's attorney wrote to the Respondent
requesting clarification of the policy. The Respond-
ent replied by a 29 September 1982 letter that it
would make temporary work assignments as al-
lowed by articles VI and IX(b) of the collective-
bargaining agreement and, if an employee declined
a temporary work assignment for which he was
qualified and which had been determined he was
medically capable of performing, he would not be
eligible for sick leave, disability benefits, or regular
pay, and could be subject to discipline.
The judge found that the temporary work as-
signment policy constituted a substantial departure
from the prior practice of assigning disabled em-
ployees work within their regular classifications
with light duty restrictions. He therefore conclud-
ed that the Respondent violated Section 8(a)(5) of
the Act by implementing the policy without bar-
gaining with the Union over its terms.
In its exceptions the Respondent contends, inter
alia, that articles VI and IX(b) of the collective-
bargaining agreement give it the exclusive right to
make the temporary assignments at issue here. The
collective-bargaining agreement was negotiated by
the patties separately from the CDP and was effec-
tive from 1 January 1982 to 31 December 1983.
Article VI of the agreement, "Management Prerog-
atives," provides, inter alia, that the Respondent
"retains the right to. . . transfer employees." Arti-
cle IX(b), "Wages," sets forth the wages to be paid
employees temporarily assigned to duties outside
their classifications. The Respondent argues that its
prerogative to transfer employees is not limited by
the CDP and that a "temporary work assignment
for an injured employee is no different than any
other temporary assignment."
The judge acknowledged that the Respondent's
contractual defense was not frivolous. He neverthe-
less found, contrary to the Respondent's conten-
tion, that the management-rights clause was not
sufficiently specific to constitute a waiver of the
Union's rights to bargain over the temporary trans-
fer of disabled employees outside their classifica-
tions.
The Board is not compelled to endorse either the
Respondent's or the judge's interpretation of the
collective-bargaining agreement. As the Board
stated in Vickers, Inc., 153 NLRB 561, 570-571
(1965), where an employer has a sound, arguable
basis for ascribing a particular meaning to its con-
tract and acts in accord with that interpretation,
and there is no evidence that in so construing the
contract or taking the action the employer is in bad
faith, motivated by antiunion animus, or seeking to
undermine the union as collective-bargaining repre-
sentative, the Board will not assume the role of an
arbitrator and enter the dispute to determine
whether the employer's interpretation is correct.
See also NCR Corp., 271 NLRB 1212 (1984); Jos.
Schlitz Brewing Co., 175 NLRB 141, 142 (1969). I
find that the Respondent had a sound and reasona-
ble basis for believing that it was privileged under
articles VI and IX(b) of the collective-bargaining
agreement to implement the temporary work as-
signment policy.' Moreover, there is no evidence
that the Respondent was acting in bad faith or
seeking to undermine the Union. The Respondent
offered to meet with the Union to explore its ob-
jections to the policy, but the Union elected not to
take advantage of the opportunity. Accordingly, I
cannot conclude that by instituting a temporary
work assignment policy for disabled employees the
Respondent violated Section 8(a)(5) of the Act and
I would therefore dismiss the complaint in its en-
tirety.2
Leroy Machine Co., 147 NLRB 1431 (1964), Proctor Mfg. Corp., 131
NLRB 1166 (1961), and Tide Water Associated Oil Co., 85 NLRB 1096
(1949), on which the judge relied in rejecting the Respondent's argument
that it is empowered under the contract to institute the new transfer
policy, are inapposite. In all three cases, unlike here, the issue was wheth-
er the contract term constituted a "clear and unmistakable" waiver of the
union's statutory right to bargain over a mandatory subject„
2 The Union urges m its brief to the Board that by compelling disabled
employees to accept temporary, assignments in any classification, the Re-
spondent has effected a unilateral change in the definition of eligibility in
the CD?. I note, however, that while the Respondent may take the posi-
tion that a particular employee is not entitled to disability benefits, it
cannot deny benefits unilaterally. The State of California has approved
the CDP as a voluntarily alternative to the state disability fund pursuant
to the California Unemployment Insurance Code. The Respondent's obli-
gation to compensate an employee is not triggered until the employee
files a claim for benefits. Under the CDP an employee may appeal the
denial of benefits by his immediate supervisor to the Respondent's em-
ployee benefits committee or by utilizing the contractural grievance pro-
cedure short of arbitration, but always retains the right to pursue,a simul-
taneous or subsequent appeal to the California. Employment Development
Department.
SOUTHERN CALIFORNIA EDISON CO. 1207
William J. McCauley, Esq., for the General Counsel.
William D. Closter, Esq. (Gibson, Dunn & Crucher), of
Newport Beach, California, for the Respondent.
Glenn Rothner, Esq. (Reich, Adell Crost), of Los Ange-
les, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me at Los Angeles, California,
on June 23, 1983, 1 pursuant to a complaint issued by the
Regional Director for Region 21 on March 23, 1983, and
that is based on a charge filed by utility Workers of
America, Local No. 246, AFL-CIO (the Union or the
Charging Party) on October 4. The complaint alleges
that Southern California Edison Company (Respondent)
has engaged in certain violations of Section 8(a)(1) and
(5) of the National Labor Relations Act.
Issues
Whether Respondent violated the Act, by making cer-
tain unilateral changes in the terms and conditions of em-
ployment, as set forth in the comprehensive disability
plan, by which changes Respondent allegedly instituted a
new temporary work assignment policy for disabled em-
ployees, without notification to or bargaining with the
Union.
Ali parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel, the Charging Party, and
the Respondent.
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
I. RESPONDENT'S BUSINESS
Respondent admits that it is a California corporation
that operates a public utility transmitting and selling elec-
tricity to private, commercial, and industrial users locat-
ed within the State of California, with its main office lo-
cated in Rosemead, California. It further admits that
during the past year, in the course and conduct of its
business that its gross volume exceeded $250,000 and that
annually it purchases and receives goods and products
valued in excess of $50,000 directly from suppliers locat-
ed outside the State of California. Accordingly, it admits,
and I fmd, that it is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
IL THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Utility Workers of
America, Local No. 246, AFL-CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
All dates refer to 1982 unless otherwise indicated.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts2
Respondent operates several electrical generating sta-
tions located in and around the area of Southern Califor-
nia. Approximately 1900 of Respondent's employees are
represented by the Union. The Union's exclusive collec-
tive-bargaining representative status is recognized by Re-
spondent and is embodied in successive collective-bar-
gaining agreements, the most recent of which is effective
by its terms for the period January I to December 31,
1983. (Jt. Exh. I,A.)
In addition to the collective-bargaining agreement de-
scribed above, Respondent and the Union have been par-
ties to negotiated supplemental employee benefit plans,
including a comprehensive disability plan (plan) (Jt. Exh.
1,B). Pursuant to the terms of the plan, employees repre-
sented by the Union may be compensated for certain
salary losses sustained as a result of physical or mental
illness or injury.
The gist of this case involves a practice relating to the
plan. According to Union Business Agent Charles
Carter, the practice prior to February, was that disabled
employees who were able returned to their prior jobs
with light duty restrictions. The decision about when the
employee could return involved input from the line su-
pervisor, company physician, and the employee himself.
On April 28 or 29 Carter heard a rumor that Respond-
ent had changed its practice and was treating disabled
employees in a different way. Carter reported this rumor
to the officers of the Union, who directed Carter to
check into it. Before he was able to carry out this direc-
tive he received an anonymous letter.
On May 3 or 4 Carter received an envolope containing
an unsigned note that read, "Charlie, you may be inter-
ested in this." Also contained in the envelope were two
other documents authorized by company officials. The
first document read as follows:
February 10, 1982
DIVISION MEDICAL DIRECTORS
Temporary Work Assignments for Injured Edison
Employees
Most Edison work locations have implemented a
"temporary work assignment" policy. This policy is
an effort to both reduce the number of Employee
Lost Workday cases due to injury, industrial and
non-industrial, and preserve sick leave for more
necessary situations. This policy will allow an em-
ployee to remain on the job until regularly-assigned
duties can be resumed, or up to 15 days. Whether
or not an injured worker will receive a temporary
work assignment will be decided at the discretion of
the treating physician and local supervision. The de-
termination will be based on the nature and extent
of the injury, the projected duration of the disabil-
2 In finding the facts of this case, I have relied on, in part, a "Partial
Stipulation of Facts" and attached exhibits submitted by the parties. (Jt.
Exhs. 1, A-L.)
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ity, and whether there is work available that can be
performed without adversely affecting the injury
being treated.
In that regard, before any Edison employee is in-
structed to remain off the job due to an injury, the
treating physician shall contact this office to discuss
with myself or my representative the ability of the
injured worker to be on the job and the availability
of temporary work. If unable to contact this office,
appropriate supervision at the employee's payroll
location shall be contacted.
/s/ Jack E. Hauck, M.D.
cc: Contract Doctors [Jt. Exh 1,C.]
The second document read as follows:
February 18, 1982
Generating Station Managers
Steam Generation Division
Temporary Work Assignments
In an effort to both reduce the number of Em-
ployee Lost Workday cases due to injury (industrial
and non-industrial), and preserve sick leave for
more necessary situations, a policy of utilizing tem-
porary work assignments will be implemented im-
mediately. This policy will allow an employee to
remain on the job until regularly-assigned duties can
be resumed, or up to 15 working days.
Whether or not an injured worker will receive a
temporary work assignment will be decided at the
discretion of the treating physician and local super-
vision. The determination will be based on the
nature and extent of the injury, the projected dura-
tion of the disability, and whether there is work
available that can be performed without adversely
affecting the injury being treated.
In determining available work, local supervision
should analyze the need for temporary help without
regard to the injured worker's classification. All
temporary work assignments, however, should pro-
ductively utilize the employee within his medical
restrictions.
Supervision should comply with the general pro-
cedures outlined below:
The treating company physician will contact
local supervision to determine the availability of
temporary work consistent with the employee's
temporary medical restrictions.
Before any employee is instructed by a compa-
ny physician to remain off the job due to an
injury, the treating physician will contact the
Medical Director to discuss the ability of the in-
jured worker to be on the job and the availability
of temporary work.
If an employee is being treated by an Edison
panel doctor and supervision is not contacted by
the physician to assess availability of work, local
supervision should contact the Division Medical
Director to verify that the employee is to remain
off the job (prior to sending the employee home,
if possible).
If an employee is being treated by their per-
sonal physician and informs supervision of the
need to be off the job, local supervision should
contact the Division Medical Director requesting
him to verify with the treating physician the need
for the employee's absence and appropriate work-
ing restrictions.
Each temporary work assignment must be re-
ported to Occupational Safety and Health, PAX
21540. A copy of the report taken by phone
(copy attached) will be sent to the field location
confirming that the temporary work assignment
has been made. The field location reporting the
temporary work assignment should notify the
Occupational Safety and Health Divsion when
the employee returns to regularly assigned duties.
Your cooperation in implementing this program
is appreciated.
/s/ R.S. Currie
Manager of Steam Generation
cc: Steam Staff Dr. J. Hauck [Jt. Exh. 1,D.]
The day after receipt of these documents, Carter present-
ed them to the Union's grievance review board, which
consisted of himself, the president, vice president, and
chief steward of the Union. After examining and discuss-
ing the documents, the union officials decided that Re-
spondent had changed its policy without proper notifica-
tion to or negotiations with them.
About May 7, Carter, acting on behalf of the Union,
sent a letter to J. Michael Mendez, Respondent's manag-
er of labor relations. The gist of the letter is that Carter
claimed that the policies (Jt. Exh. 1,C, D) were new,
that they constituted a "reduction in the benefits negoti-
ated by the parties," and that they constituted an "unfair
labor practice by the Company." Carter concluded by
demanding recision of the two directives and insisting
that if they were to be reintroduced, such proposals
should be introduced in the course of negotiations at the
appropriate time. (Jt. Exh. 1,E.)
On June 15 Carter sent a second letter to Mendez re-
questing a reply to the first letter. (Jt. Exh. 1,F.)
About June 28 a letter, inadvertently dated July 28,
was sent from Mendez to Carter. This letter denied that
any reduction in benefits had occurred, and stated that
negotiations were therefore unnecessary. However, the
letter concluded by stating that the Company would be
willing to meet with union representatives "to more
clearly determine the reasons in support of the Union's
position on the matter." (Jt. Exh. 1,0.)
Carter never responded to the invitation of Mendez
for Carter to meet with him. Carter believed that such a
meeting was pointless as the Company had already im-
plemented the plan.
On July 13 Carter sent to Mendez a letter stating that
because the Company had not rescinded the policy
changes referred to above, the Union intended to file
charges with the Board. The letter went on to assert the
SOUTHERN CALIFORNIA EDISON CO. 1209
basis for the Union's belief that the Act had been violat-
ed: Section 1 of the plan provides for compensation to
employees who are unable to perform their regular and
customary work, while the February 18 directive (Jt.
Exh. 1,D) states that employees who are unable to per-
form their regular duties shall be assigned to other, tem-
porary jobs rather than receive disability pay. The letter
concluded by again stating that the Company must nego-
tiate any desired changes. (Jt. Exh 1,H.)
On September 7 the Union's attorney Paul Crost
mailed a letter to Mendez asking the Company to con-
firm six separate understandings that the Union had with
respect to the policies related above, or otherwise clarify
the Union's perception of this policy. (Jt. Exh. 1,L)
On September 29 Mendez wrote back to Crost pur-
porting to answer the Union's questions. Essentially, Re-
spondent asserted its rights to evaluate an employee's
medical condition through use of its medical personnel,
to assign temporary work without necessarily restricting
assignment to an employee's regular and customary
duties, and to decide whether temporary work is avail-
able. Any medically capable employee declining assign-
ment would not qualify for sick leave, disability benefits,
or regular pay. Finally, the Company took the position
that its medical evaluation for an employee's fitness to
perform temporary work is not subject to arbitration. (it.
EA. 1,J.)
The Union has approximately 80 stewards, including
alternates. One of these stewards was John Glass, a wit-
ness at hearing. An employee since 1969, Glass presently
is employed at Respondent's smallest facility at Manda-
lay, which is located near Oxnard, California. He is em-
ployed as a boiler and condenser mechanic and works
with a crew of about nine. His foreman is Tom Kuhn,
also a witness at hearing.
Every Friday morning for about 15-30 minutes, Kuhn
convened his crew for a routine meeting to deal with
matters of interest. All agree that Kuhn held such a
meeting in late February or early March, after his super-
visor had called to his attention Currie's memo set out
above. According to Kuhn, he read Currie's memo to his
crew, including Union Steward Glass. Glass testified that
the letter was summarized only. For purposes of this
case, it is immaterial which occurred. It did not appear
to Glass to be a new policy and it was not unusual for
Knim to reiterate old policies at these Friday meetings.
Glass did not perceive either that the new policy was in-
voluntary, or that it could involve work out of the em-
ployees' customary classification. All agree that Kuhn
did not distribute copies of the memo, nor any other
writing at this meeting. All further agree that Glass
made no report to Carter about the Company's new
policy.
B. Analysis and Conclusions
In its amended answer, Respondent raises eight sepa-
rate defenses to the allegations of the complaint. In its
39-page brief, Respondent has condensed these eight de-
fenses into four. None of these defenses are frivolous but
some are more easily disposed of than others. I turn now
to discuss all matters in controversy.
I. Is the statute of limitations defense applicable to
this case?
The charge in this case' was filed on October 4. Under
Section 10(b) of the Act, a person is required to file a
charge not later than 6 months after an unfair labor prac-
tice occurs. In this case, therefore, any unfair labor prac-
tice that occurred prior to April 4 is untimely and is
therefore barred. Of course, this rule is applicable only if
the Union had actual or constructive knowledge of the
alleged unfair labor practices since the 10(b) period does
not begin until that time. 3 This issue then presents two
derivative issues regarding the nature of the notice given
to Glass in late February or early March, and regarding
the agency status of Glass at the time.
I begin with the case cited by the General Counsel,
Strick Corp., 241 NLRB 210 fn. 1 (1979), There, the
Board held that
• • notice, whether actual or constructive, must be
clear and unequivocal, and that the burden of show-
ing such notice is on the party raising the affirma-
tive defense of Section 10(b). [Citation ornitted.14
I fmd here, as was found in Strick Corp., that Respond-
ent has not met its burden and that the instant proceed-
ing is not time barred by Section 10(b). The basis for this
conclusion follows below.
Respondent contends (Br. 22) that "a crew meeting at
the Mandalay station in late February or early March"
was adequate notice to the Union under Board law. Sig-
nificantly, the exact date of the meeting, like the exact
content of the meeting, cannot be established. It is true,
however, that Kuhn read or summarized Cunie's memo-
randum to his crew at Mandalay, Respondent's smallest
facility. This occurred at a routine Friday morning meet-
ing which lasted in toto only 15-30 minutes, The part of
the meeting dealing with the memorandum lasted 10
minutes or less. The reading or summarizing of the
memorandum to the approximately nine employees could
in no conceivable way be characterized as adequate
notice to the Union.
First, purely by coincidence, it now appears, the meet-
ing was attended by Glass, a union steward and union
trustee. It is unnecessary to determine whether he was an
agent of the Union for purposes of receiving notice of
the unilateral change, because the notice was not clear
and unequivocal. 3 Glass testified that he was unaware
that what Kuhn recited represented a change in Re-
spondent's policy. I credit this testimony, because Kuhn
did not clearly state that he was announcing a change in
policy. Moreover, it was not an uncommon practice for
Kuhn to reiterate to employees at the Friday meetings
a Southern Newspapers, 255 NLRB 154, 160 (1981).
4 See also Henry Vogt Machine Co., 251 NLRB 363, 364 (1980), enf.
denied 718 F.2d 802 (6th Cir. 1983).
'In Southern Newspapers, supra, 255 NLRB at 160, a case cited by Re-
spondent, the LAF found that a union steward who held additional of-
fices with the Union was its agent for purposes of receiving notice of a
unilateral change. That case does not apply here because even assuming
that Glass was in a comparable position as agent of the Union, he did not
have adequate notice in late February or early March so as to make the
10(0 period applicable.
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
old policies for emphasis. Further, Kuhn did not distrib-
ute to employees copies of Currie's memorandum nor
even post a copy on a bulletin board.
Although I find above that Glass did not understand
that Kuhn was announcing a new policy, I also find no
evidence to suggest that he should have understood this
to be the case. Clearly, the meeting attended by Kuhn
and Glass was never intended by Respondent to be offi-
cial notice to the Union of its new policy on sick leave.°
Rather, the evidence is now offered after the fact to
shore up Respondent's case.
Respondent's claim of adequate notice must fail for an-
other reason as well. It is clear from a reading of Cur-
re's memorandum that the policy change had already
been implemented as of late February or early March. In
Kay Fries, 265 NLRB 1077 (1982), the Board found
under facts similar to those here that the union was faced
not with a mere proposed change, but rather a fait ac-
compli. When the union in Kay Fries, as is true of the
Union here, learned of the unilateral change, it did not
acquiesce in it, but rather protested it. 7 In the instant
case, after Carter received the anonymous mailing on
May 3 or 4, he conferred with the Union's grievance
review board and then sent a letter to Mendez protesting
the unilateral change.8
2. Did Respondent institute a unilateral change and
if so, was it material, substantial, and significant?
I begin by finding without question that a sick leave
policy or temporary work assignment practice derived
from a sick leave policy is a mandatory subject of bar-
gaining under Section 8(d) of the Act because these are
within the category of wages, hours, and terms and con-
ditions of employment.° Without disputing this threshold
fmding, Respondent argues (Br. 28-29) that its temporary
work assignment policy "was in effect long before the
February memoranda and, as such, did not constitute an
unlawful unilateral change." I must reject this claim as
lacking in merit, although it is true, as found above, that
Respondent did not give the Union adequate notice in
advance.
6 In Clear Pine Mouldings v. NLRB, 632 F.2d 721 (9th Cir. 1980), cert.
denied 451 U.S. 984 (1981), the court held an employer's unilateral
change in employees' health care benefits constituted a umlateral refusal
to bargam. In that case "the parties talked about" this issue, but said con-
versation was not notice withm the purposes of the National Labor Rela-
tions Act
Compare City Hospital, 234 NLRB 58, 59 (1978).
8 Respondent does not specifically argue that the Union waived its
right to bargain over the unilateral change in this case. To the extent
such an issue is present m this case, I fmd that no waiver occurred. J.P.
Stevens & Co., 239 NLRB 738, 743 (1978), enfd in part 623 F.2d 322 (4th
Cir. 1980), the Board reaffirmed a statement of law taken from Garment
Workers (McLoughlin M) v. NLRB, 463 F.2d 907, 919 (D.C. Cir. 1972),
"Notice, to be effective, must be given sufficiently in advance of actual
implementation of a decision to allow reasonable scope for bargaining."
Thus, even if notice was given in late February, it was inadequate be-
cause Respondent had already implemented the unilateral change. There
was no clear and unequivocal waiver by the Umon of its right to bargain.
Finally, it is true that Carter did not respond to the Mendez letter of
June 28 to meet with him or his deputy. Agam, I fmd no clear and un-
equivocal waiver based on a fait accompli, which by then was almost 6
months old.
9 NLRB v. Katz, 369 U.S. 736, 744 (1961).
I look first at Curries memorandum reprinted above.
There Currie makes reference to "a policy of utilizing
temporary work assignments [which] will be implement-
ed immediately." Without more, this introductory sen-
tence clearly shows that what is about to be described in
the remainder of the memorandum is different from what
had come before.
I turn next to the Disability Plan (Jt. Exh. 1,B, p. 51,
par. 3). There, Respondent's obligation to provide bene-
fits to employees is stated as follows:
Any employee covered under this Plan who be-
cause of physical or mental illness or injury. . . i,s
prevented from performing his or her regular or cus-
tomary work, for the first six months of a disability
period, and if the disability extends beyond six
months, is prevented from performing any reasona-
ble occupation at any working location within the
Company, will be paid benefits for the period of
such disability by this plan. [Emphasis added.]
This paragraph is taken from an agreement in force and
effect between July 1, 1981, and June 30, 1983. I agree
completely with Charging Party's claim (Br. 4) that for
the first 6 months of a disability, an employee's entitle-
ment to sick leave benefits is measured by whether the
employee is able to perform his regular and customary
work. Turning back to Currie's memorandum, I note
that it reads in pertinent part
In determining available work, local supervision
should analyze the need for temporary help without
regard to the injured worker's classification.
This is a clear change from the relevant part of the plan
negotiated by the parties.
However, Respondent also seems to argue that past
practice prior to February changed the plan in such a
way that the two February memoranda merely made
formal that which the parties had been doing anyway.
Again the record refutes this claim. I credit the testimo-
ny of Carter that the past practice of the parties was in
all or most cases to place the disabled employee back in
his former classification with light duty restrictions as
necessary. This practice is consistent with the plan
quoted above.10
It is true, as Respondent points out, (Br. 28) that the
Union filed two grievances on behalf of bargaining unit
employees. The first (R. Exh. 1) was filed on July 16 by
an employee named Stick and the second (R. Exh. 2)
was filed on September 24 by an employee named Prod-
homme. Both employees desired to return to work after
an unstated period of disability. Stick desired a tempo-
rary upgrade to a management position as a "planner,"
and Prudhommen was seeking a return to her normal job
with light duty restrictions. Both grievances were denied
by Respondent through step 2; both grievances are still
pending at step 3; and neither grievant testified. I fmd
that this "evidence" does not in any way support Re-
spondent's position that the February memoranda was in
10 See Van Dom Plastic Machinery Co., 265 NLRB 864 (1982).
SOUTHERN CALIFORNIA EDISON CO. 1211
accord with past practice of the parties. Arguably, it sup-
ports the General Counsel because Respondent denied
the two grievances, in effect claiming that no past prac-
tice existed, such as was claimed by the grievants. Even
if said past practices existed, the one for a temporary up-
grade, and the other to return to normal classification
with light duty restrictions, 11 this is a far cry from the
new policy of assigning work, "without regard to the in-
jured worker's classification."
Respondent next contends (Br. 33-38) that if a change
occurred it was not material, substantial, and significant.
To refute this argument, I begin with the testimony of
Hal Lindsey, a witness called by Respondent. He testi-
fied that in December 1981, a meeting of Respondent's
managers and department heads was called. As Respond-
ent's manager of occupational safety and health for the
past 21 years, Lindsey attended the meeting. The pur-
pose of the meeting was to formulate company policy to
reduce long-time industrial accidents. Part of the strategy
was to reduce the accidents themselves by more involve-
ment of supervisory personnel in enforcement of safety
rules. Another part was to expedite the return to work of
those disabled employees whom a supervisor and a com-
pany physician felt were capable of returning. This new
policy is reflected in the memoranda of Hauck and
Currie published above. Presumably, as a result of these
new policies, Respondent's lost-time accidents have been
reduced 25 percent during 1982. The trend is continuing
during 1983. (R. Br. 106.) I find that the change in Re-
spondent's temporary assignment procedures was materi-
al, substantial, and significant. A basis for this finding is
shown by the 25-percent reduction in lost-time accidents
that is, at least in part, the result of the unilateral change
at issue in this case. In P.J.R. Enterprises, 240 NLRB 274,
279 (1979), the Board affirmed the finding of an 8(a)(5)
unilateral change in sick leave policy—to require a doc-
tor's certificate for even 1 day of sick leave and to
charge all illness-related absences against the sick leave
allotment. 12 The Board has also found substantial impact
in other cases that do not relate to sick leave policy. For
example, in Hedison Mfg. Co., 260 NLRB 590, 592-594
(1982), the Board held the addition of 5 minutes at the
start of a work shift had substantial impact, and in Larsen
Supply Co., 251 NLRB 1642, 1648 (1980), a change from
a floating lunch hour to a fixed lunch hour was also
'found to have substantial impact.
In the instant case, the employee was required under
the new policy to return to work if the supervisor and a
company physician determined the employee was able,
and if work was available without regard to the injured
worker's classification. Of course, if the employee re-
fused to comply he was subject to disciplinary action.
This is a substantial change from prior policy as de-
scribed above and I so find.
Regarding the latter, the Union seems to agree that there was a past
practice of returning disabled workers to their former classification with
light duty restrictions. Respondent seems to agree and then argue that
this past practice is tantamount to a temporary work assignment such as
is described m the Currie memorandum. This argument is rejected as
lacking in merit.
13 Compare Brown & Connally, 237 NLRB 271, 279-280 (1978).
3. Did Respondent have a contractual right to make
temporary work assignments in its sole discretion?
As its concluding argument, Respondent maintains (Br.
30-33) that it had a contractual right to make the unilat-
eral changes at issue in this case. More specifically, Re-
spondent asserts that a management-rights clause exists in
the collective-bargaining agreement (Jt. Exh. 1,A), not to
be confused with the plan (Jt. Exh. 1,B).
The first response to this claim is to understand that
Respondent again is arguing, in effect, waiver by the
Union of its right to object to the unilateral change in
issue, by virtue of the Union's agreement to the manage-
ment-rights clause in the collective-bargaining agree-
ment. A waiver of bargaining rights, as stated above in
another context, will not be lightly inferred and must be
clearly and unequivocally conveyed." I fmd here that
there is no clear and unequivocal waiver in this case and
Respondent's argument must fail. There is no showing
that the management-rights clause in the contract was
understood by the Union to waive its right to object to
assignments for disabled employees outside of their clas-
sification. This is particularly true because the plan is a
separate supplemental agreement that does not clearly re-
flect that the parties intended it to be modified by the
management-rights clause.
At page 18 of its brief, Respondent sets forth two sec-
tions of the contract that it states supports its theory.
First is article VI, page 20 (Management Prerogatives),
which reads in pertinent part, as follows:
The Company has and will retain the right and
power to manage the plant and direct the working
forces, including the right to hire, to suspend, or dis-
charge for just cause, to promote, demote, and
transfer its employees, subject to the provisions of
this Agreement. [Emphasis added.]
The second is article IX, (B), pages 31-32 (Wages),
which reads in pertinent part as follows:
Each employee shall be assigned to his appropri-
ate job classification and shall receive the rate of
pay of that classification when performing the
duties thereof, except that when an employee is tem-
porarily assigned to work in a higher-rated classifica-
tion he shall receive the temporary relief rate of pay set
forth in Exhibit A for such higher-rated classification
for all hours worked therm. If an employee is tempo-
rarily assigned to perform work of a lower-rated
job classification, his rate of pay shall not be
changed. [Emphasis added.]
Taken together, Respondent argues, the two provisions,
quoted above, give the Company the right to make tem-
porary work assignments in its sole discretion.
In further reply to Respondent's arguments cited
above, I turn to Professor Gorman,"
13 Kroehler Mfg. Co., 222 NLRB 1269, 1270 (1976).
14 R. Gorman, Labor Law, 470-471 (1976).
1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
[S]harp limits have been placed upon the extent to
which the relinquishment of privileges to manage-
ment will be treated as a waiver of the statutory
right to challenge unilateral actions. First, the
Board and courts will not conclude from an express
Waiver on one subject, that the Union has waived
on others, even though closely related."
Second, and more commonly, the Board has refused
to infer a waiver from a blanket management rights
provision which fails to mention with specificity the
subject on which the employer has taken unilateral
action."
Based on the authority cited above, I conclude that Re-
spondent may not rely on its management-rights clause
as a defense to this allegation.
In conclusion, I fmd that Respondent violated Section
8(a)(I) and (5) of the Act by making the unilateral
changes at issue in this case.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondeent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. Southern California Edison Company is, and at all
times material has been, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Utility _Workers of America, Local No. 246, AFL-
CIO is, and at all times material has been, a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The following unit is appropriate for purposes of
collective bargaining within the meaning of Section 9(b)
of the Act:
All employees with designated exclusions at the
Long Beach, Redondo, Etiwanda, Mohave,
Ormond Beach and San Onofre Generating Sta-
tions.
4. The Union is, and at all times material has been, the
exclusive bargaining representative of all employees in
the appropriate unit described abvoe.
5. Respondent violated Section 8(a)(1) and (5) of the
Act by failing and refusing to bargain with the Union
concerning the change in policy with respect to tempo-
rary work assignments for disabled employees.
In Tide Water Assn. Oil Co., 85 NLRB 1096 (1949), the contract had
4, management-rights clause that gave to the company the power of deci-
sion on transferring, retiring, discharging, and 'laying off employees.
However, the Board affirmed the 8(aX5) violation by which the employ-
er unilaterally modified the employee retirement plan.
16 LeRoy Machine Co., 147 NLRB 1431 (1964); Proctor Mfg. Corp., 131
NLRB 1166 (1961).
6. The aforesaid unfair labor practice is an unfair labor
practice within the meaning of Section 2(6) of the Act.
THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, an unfair labor practice in violation of Sec-
tion 8(a)(1) and (5) of the Act, it will be recommended
that Respondent be ordered to cease and desist there-
from, and to take certain affirmative action designed and
found necessary to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed17
ORDER
The Respondent, Southern California Edison Compa-
ny, Rosemead, California, its officers, agents, successors,
and assigns, shall
1.Cease and desist from
(a) Violating Section 8(a)(5) and (1) of the Act by fail-
ing and refusing to bargain with the Union concerning
the change in policy with respect to temporary work as-
signments for disabled employees.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the change in policy with respect to tem-
porary assignments for disabled employees as reflected in
company memoranda dated February 10 and 18. (Jt.
Exh. 1(C and D).)
(b) On request, bargain with the Union as the exclu-
sive representative of all employees in the appropriate
unit described above, relative to temporary assignments
for disabled employees.
(c) Post at its Rosemead, California facility copies of
the attached notice marked "Appendix."" Copies of the
notice, on forms provided by the Regional Director for
Region 21, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
"If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the Umted States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
SOUTHERN CALIFORNIA EDISON CO. 1213
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT violate Section 8(a)(5) and (1) of the
Act by failing and refusing to bargain with the Union
concerning the change in policy regarding temporary as-
sigmnents for disabled employees. The appropriate unit
involved herein is:
All employees with designated exclusions at the
Long Beach, Redondo, Etiwanda, Mohave,
Ormond Beach and San Onofre Generating Sta-
tions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their section 7 rights.
WE WILL rescind the change in policy with respect to
temporary assignments for disabled employees as reflect-
ed in company memoranda dated February 10 and 18,
1982.
WE WILL, on request, bargain with the Union as the
exclusive representative of all employees in the appropri-
ate unit described above, relative to any change in policy
with respect to temporary assignments for disabled em-
ployees.
SOUTHERN CALIFORNIA EDISON COMPANY