Southwestern Electric Cooperative, Inc.

National Labor Relations Board - Board Decisions

Mar 13, 1985

274 N.L.R.B. 922 (N.L.R.B. 1985)

922 DECISIONS OF;-NATIONAL LABOR RELATIONS BOARD
Southwestern Electric Cooperative , Inc .and Local
Union 702, Internationalt :Brotherhood of -Elec-
trical , Workers, AFL-CIO: Case 14-CA-16460
13 March 1985
DECISION AND OR=DER,
BY,CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 2 May 1984 Administrative Law Judge
Leonard M. Wagman issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the Charging Party filed its posthearing
brief as an answering brief.
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, i and ,
conclusions and to adopt the recommended Order
as modified.
We agree with the judge that the Respondent
violated Section 8(a)(5) and (1) of the Act by refus-
ing to process the Union's grievances because the
Union did not put them in writing. For the follow-
ing reasons , we disagree with his conclusion that
the Respondent also violated Section 8(a)(5) and
(1) by bypassing the Union and dealing directly
with employees.
On 19 November 19822 the Respondent posted
two notices to its employees announcing impending
layoffs. Later that day the Union orally filed a
grievance . The parties held two unsuccessful meet-
ings attempting to resolve the grievance and decid-
ed to proceed directly to arbitration, foregoing the
grievance procedure's remaining steps. On 7 Janu-
ary, however, the Respondent's attorney demanded
that the Union's attorney submit the grievance in
writing. She refused. The Respondent reiterated
this demand on several future occasions, but the
Union continued to refuse. The Respondent de-
clined to select arbitrators to hear the grievance
unless the Union put it in writing.
On 5 April the Respondent' s co-op manager
Robert Neece sent the following letter to its "Out-
side Bargaining Unit"3 employees:
Dear Employee:
This letter is for your information. Your em-
ployer is making every effort to bring the arbi-
' In sec III,B of his decision, the judge, in discussing an early Decem-
ber 1982 grievance settlement meeting between the Union's assistant busi-
ness manager Joe Craddock and the Respondent 's co-op manager Robert
Neece , incorrectly stated that "Kaplan" rather than Neece "said nothing
about requiring that the Union 's grievances be written " We correct this
inadvertent error
2 All dates are between November 1982 and April 1983 unless other-
wise indicated
a This unit included the Respondent 's production, construction, and
maintenance employees
tration 'with the Outside Bargaining Unit to a
conclusion, however, before we can do this,
we must have in writing what they are griev-
ing.
Your cooperative is ready to pick an arbitrator
when Local #702 [advises us, in writing, what
they want to grieve.
Neece did not send the Union a copy.
The judge found this letter conveyed to employ-
ees a suggestion that the Union's refusal to submit
the grievance in writing was the only stumbling
block preventing arbitration, and the Respondent
thereby sought to persuade. employees to pressure
the Union, to submit the grievance in writing, al-
though the.-contract permitted it to file grievances
orally. He found this to be an unlawful attempt to
bypass the Union and deal directly with employees
on a significant collective-bargaining matter.
We find the judge's interpretation of the letter
incorrect. The letter was no more than a plain,
concise statement of the Respondent's position that
it would only arbitrate the grievance when the
Union put it in writing. It contained no suggestion
that the employees should take any action to pres-
sure the Union to accept the Respondent's unlaw-
ful position. Indeed, the letter's opening sentence,
"This letter is for your information," refutes any
inference that the Respondent had an additional
motive. We therefore find unwarranted the judge's
determination that the letter was an attempt to con-
vince employees to pressure the Union to comply
with the Respondent's unlawful position.4 Al-
though we agree with the judge that the Respond-
ent's refusal to arbitrate grievances unless the
Union put them in writing violated Section 8(a)(5)
and (1), the Respondent did not further violate the
Act by informing employees of this position.
Accordingly, we shall dismiss this complaint al-
legation.
4 The cases the judge cites are not controlling In Texaco, Inc, 233
NLRB 375 (1977), the respondent unilaterally changed the employees'
starting time and informed employees that it would not revert to the pre-
vious starting time or even discuss the issue unless their union dropped a
separate premium pay grievance , and a supervisor suggested to employ-
ees that they "get up a petition " to drop the premium pay grievance and
present it to the union 's vice president By contrast , in this case the Re-
spondent did not suggest that the employees take any action to pressure
the union or attempt to make a separate deal with the employees Senile
Trucking Corp, 260 NLRB 596 (1982 ), has minimal precedential value be-
cause the Board adopted the judge 's bypass violation finding in the ab-
sence of exceptions
Member Dennis finds, in contrast to her colleagues, that the Respond-
ent's 5 April letter was an attempt to persuade employees to pressure the
Union to put its grievance in writing Nevertheless, she finds the letter
did not independently violate the Act because it was protected by Sec
8(c), as it was not coercive, contained no threats , and did not undermine
the Union 's status as the employees ' exclusive bargaining representative
274 NLRB No. 135
SOUTHWESTERN, ELECTRIC
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 6.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Southwestern Electric Cooperative, Inc.,
Greenville, Illinois, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified.
1. Delete paragraph 1(b) and reletter the subse-
quent paragraph.
2. Substitute the attached notice for that of the
administrative law judge.
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
Local Union 702, International Brotherhood of
Electrical Workers, AFL-CIO as the exclusive
bargaining representative of employees in the ap-
propriate unit listed below:
All production, maintenance and construction
employees excluding office clerical and profes-
sional employees, guards and supervisors as
defined in the Act.
WE WILL NOT unilaterally modify during its ef-
fective term any collective-bargaining contract en-
tered into between us and the bargaining represent-
ative of our employees, nor will we refuse to abide
by the terms or conditions of the contract.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL withdraw our insistence as a condition
precedent to processing grievances that Local
Union 702, International Brotherhood of Electrical
Workers, AFL-CIO put its grievances in writing.
WE WILL, on Local 702's request, select arbitra-
tors for the resolution of the grievance or griev-
ances arising out of the Co-op's layoffs which we
announced on 19 November 1982.
SOUTHWESTERN ELECTRIC COOPERA-
TIVE, INC.
DECISION
STATEMENT OF THE CASE
923
LEONARD M. WAGMAN,. Administrative Law Judge.
Upon an unfair s.labor practice charge filed by Local
Union 702, International - Brotherhood of Electrical
Workers, AFL-CIO (the Union) on January 31, 1983,
and an amended charge which the Union filed on May
26, 1983, the Regional Director for Region 14 of the Na-
tional Labor Relations Board (the Board) issued a -com-
plaint and notice of hearing on February 18, 1983, alleg-
ing that the Respondent, Southwestern Electric Coopera-
tive, Inc. (the Co-op) has unilaterally changed the terms
of a collective-bargaining agreement and thereby violat-
ed Section 8(a)(5) and (1) of the National Labor Rela-
tions Act, 29 U.S.C. § 151 et seq (the Act), by insisting
that the Union submit its grievances in writing prior to
arbitration and by refusing to arbitrate the Union's griev-
ances pursuant to-the terms of the collective-bargaining
agreement unless the Union submits its grievances in
writing Thereafter, on July 28, 1983, the Regional Di-
rector issued an amended complaint alleging that the Co-
op bypassed the Union and dealt directly with its em-
ployees in the bargaining unit represented by the Union
The Co-op by its timely answer denied commission of all
the alleged unfair labor practices. A hearing was held
before me on September 30, 1983, at St. Louis, Missouri.
On the entire record in this case, my observation of
the witnesses, and on consideration of the briefs filed by
the General Counsel and the Co-op, I make the follow-
ing
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS
The Co-op, Southwestern Electric Cooperative, Inc.,
has at all times material maintained its principal office
and place of business in Greenville, Illinois. At all times
material, the Co-op has been engaged as a public utility
in the generation, transmission, and sale of electricity and
related services. During the 12-month period ending Jan-
uary 31, 1983, which period is representative of its oper-
ations during all times material herein, the Co-op, in the
course and conduct of its business operations, derived
gross revenues in excess of $250,000 and purchased and
caused to be transported and delivered to its facility in
Greenville, Illinois, goods and materials valued in excess
of $5000, which were transported and delivered directly
from points located outside the State of Illinois. The Co-
op admits and I find that it is now, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union, Local 702,
International Brotherhood of Electrical Workers, AFL-
CIO is, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the
Act, and the exclusive collective-bargaining representa-
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive of the Co-op's production, maintenance, and con-
struction employees.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues Presented
The issues presented are: (1) whether the Co-op violat-
ed Section 8(a)(5) and (1) of the Act by unilaterally
changing the terms of the collective-bargaining agree-
ment by insisting that the Union submit its grievances in
writing prior to arbitration and by refusing to select any
arbitrator and proceed to arbitration unless the Union
agreed to said unilateral change; (2) whether the Co-op
violated Section 8(a)(5) and (1) of the Act by bypassing
the Union and dealing directly with employees in the
bargaining unit represented by the Union.
For the reasons stated below, I find that the Co-op
violated Section 8(a)(5) and (1) of the Act as alleged.
B. The Facts
The Co-op generates, transmits, and sells electricity
and related services in rural Illinois . Prior to November
1982, the Co-op maintained four separate facilities at var-
ious locations, including Holiday Shores, with its princi-
pal office located in Greenville, Illinois.
In 1952 the Board certified the Union as exclusive bar-
gaining representative of the Co-op's production, mainte-
nance, and construction employees The Union has rep-
resented employees in this unit, referred to as the outside
bargaining unit, since its certification in 1952. Since its
certification, the Union and the Co-op have executed a
succession of collective-bargaining agreements covering
this unit, the latest one effective from July 16, 1982,
through July 15, 1984.
Since 1970, the Union has also represented the Co-op's
clerical employees, referred to as the inside bargaining
unit However, the allegations of the complaint do not
concern the latter unit.
The current collective-bargaining agreement between
the Co-op and the Union covering the outside unit was
in effect at the time that the alleged unfair labor prac-
tices occurred. It includes the following provisions re-
garding grievance negotiation and arbitration.
Article III Negotiations and Arbitration
Sec. 3.02: The Cooperative agrees to meet and to
treat with the duly accredited officers and commit-
tees of the Union in the following manner on differ-
ences that may arise between the Cooperative and
the Union.
Sec. 3.03: In case of any disagreement arising be-
tween the Cooperative and any employee and/or
employees under this Agreement, such disagreement
shall first be presented by the steward to the Fore-
man or Operations Supervisor of the Cooperative in
charge of the work and the Business Representative
of the Local Union
Sec. 3.04: In case of a failure to agree in this
manner, the Business Manager of the Local Union,
who may be accompanied by a committee of the
employees of the Cooperative, shall endeavor to
adjust disagreements with the Labor Relations
Committee of the Cooperative. In case of failure to
then reach an agreement, the matter shall be submit-
ted to aribtration [sic] in the manner provided in
Section 3.05.
Sec 3 05• The party desiring arbitration shall
give notice in writing by registered mail to the
other party and shall on or before the fifth (5th)
working day following the date of the mailing of
such notice, advise such other party in writing by
registered mail of the names of two (2) representa-
tives to serve on the Board of Arbitration herein-
after referred to. Such other party shall, on or
before the fifth (5th) working day following the re-
ceipt of such notice, advise the party seeking arbi-
tration, in writing by registered mail, of the names
of two (2) Representatives to serve on said Board of
Arbitration. The four (4) Representatives so desig-
nated shall constitute a Board of Arbitration and
shall meet promptly and endeavor to settle the
grievance or grievances submitted, and in case of
failure to reach a settlement within five (5) days
(Sundays and Holidays excluded) from the date of
their initial meeting, the four (4) members so desig-
nated shall select a fifth member of said Board. In
the event the four (4) members of the Arbitration
Board cannot agree on a fifth arbitrator within five
(5) days of the date on which they decide the dis-
pute can be settled in no other manner, then either
or both parties may call upon the Director of Fed-
eral Mediation and Conciliation Service at Washing-
ton, D C., to appoint the fifth member who shall act
as an impartial member and as the Chairman of said
Board The Arbitration Board so constituted shall
hear and consider the evidence submitted to it and
render a decision on the grievance or grievances
presented without avoidable delay. It is agreed that
a majority decision rendered by said Board shall be
final and binding on both parties.
Sec. 3.06: Each party shall bear the expense of its
own arbitrators, and the expense of the fifth arbitra-
tor shall be borne equally between both parties.
Counsel for the Co-op stipulated that the identical
contract language quoted above has been in every collec-
tive-bargaining agreement since 1952. Both union and
Co-op representatives credibly testified that they had
never processed written grievances, and I so find. Coun-
sel for the Co-op also stipulated that in none of the four
cases which have gone to arbitration since 1975 has the
Co-op requested that the grievances be in writing.
On November 19, 1982, the Co-op posted a "Notice to
all Employees" signed by its manager Robert H. Neece,
announcing a temporary reduction in the outside unit
work force because of financial and economic conditions.
The notice stated the classifications which would be re-
duced were: Madison County forestry crew, Bond
County forestry crew, two groundman-truckdrivers,
eight linemen or apprentice linemen, and one mechanic.
The notice then listed the names of the 15 employees
being laid off effective November 22, 1982, for an indefi-
SOUTHWESTERN ELECTRIC
rote time period A "notice of clarification" explained
that-
1. Dave Barbey, who is an Apprentice Lineman,
will remain employed (Sec. 2.02 par. C)
2 Mechanic work will be performed by Lynn
Hempen, Electric Maintenance Repairman and
Tester. This classification has provided help to the
mechanic numerous times and possesses the neces-
sary skill and ability.
On November 19, 1982, the Co-op also posted a notice
regarding the status of benefits for employees during the
layoff and a notice announcing the elimination of service
at the Co-op's Holiday Shores facility which would now
only be used as a storage facility The latter notice also
announced that Gene McCormick and John Camplain
would report to the Edwardsville warehouse facility and
carry the classification of journeyman lineman. It was
signed by Director of Operations Tom J. Hentz, and fur-
ther stated that such change was "due to the general
economy and also pursuant with management rights to
more effectively utilize the available work force."
After reading the notices, John Camplain, who was
the union steward at the Edwardsville facility, filed an
oral grievance and called Union Business Representative
James (Bill) Moore Thereafter, on November 22, 1982,
Moore and Shop Stewards Terry Donaldson, John Cam-
plain, and Bob Hechert representing the Union, met at
the Co-op's Greenville facility with Manager Robert
Neece, Director of Plant Operations Tom Hentz, Operat-
ing Supervisor Bill Short, and Engineer Richard Powell,
who represented the Co-op
At this meeting, the Co-op gave to the Union copies
of each of the three notices which it had posted on No-
vember 19 The Union had no objection to the notice re-
garding the status of benefits during the layoff. However,
Moore, speaking for the Union, contended that the layoff
had not been by inverse seniority, and therefore violated
section 2.02 of the collective-bargaining agreement.
Moore also complained specifically that sections 5.14 and
5.11 of the collective-bargaining agreement had been vio-
lated by the laying off of truckdrivers who had greater
seniority than those retained. Moore requested a seniori-
ty list and listed the following specific complaints about
the layoff- the Co-op continued to employ an apprentice
lineman while laying off journeymen; the Co-op laid off
a garage mechanic while retaining Hempen to perform
the mechanic's work; the closing of the Holiday Shores
facility; and the demotion of Gene McCormick back to
journeyman and his transferral to Edwardsville. At the
end of this meeting, the parties scheduled a second meet-
ing for November 29, 1982 The Co-op did not request
any more information, explanation, or details regarding
the grievances. Nor did the Co-op insist that the Union
submit its grievance in writing.
On November 29, the parties met again at the Green-
ville facility. Union Assistant Businesss Manager Joe
Craddock was the only new participant. Moore again
stated the Union's position that the Co-op had laid off by
classification instead of by inverse seniority and reiterat-
ed the specific layoffs which the Union considered to
925
have violated the contract Neece agreed to Craddock's
suggestion to bypass the intermediate steps in the griev-
ance procedure and go to arbitration The Union agreed
to contact the Federal Mediation and Conciliation Serv-
ice and request a panel of arbitrators Neece accepted the
Union's offer to write for a panel of arbitrators
At the same meeting, Co-op Operations Director
Hentz raised the issue of the shutdown of the Holiday
Shores facility. He asked if the Union wanted to resolve
the problems arising from the closing of that facility.
After caucusing, the Union informed the Co-op that it
was not yet ready to resolve the Holiday Shores issue
but would get back to the Co-op about that later The
meeting then ended. Again, the Co-op's representatives
did not request further details or information, nor did
they express any confusion about what the Union was
grieving about Again, the Co-op did not request the
Union to put its grievance in writing.
Early in December 1982, Craddock met with Neece at
Nashville, Illinois, and settled the Holiday Shores griev-
ance Craddock and Neece gave conflicting testimony
concerning whether they also discussed the other out-
standing grievances. In light of my resolution of this
case, I find it unnecessary to deal with this conflict.
During this conversation Kaplan said nothing about re-
quiring that the Union's grievances be written.
Following the meeting of November 29, Moore ob-
tained a panel of arbitrators from the Federal Mediation
and Conciliation Service Moore sent the panel of arbi-
trators to the Union's attorney Marilyn Teitelbaum with
a request that she contact the Co-op's attorney and select
arbitrators from the panel
On December 20, 1982, Attorney Teitelbaum called
Co-op Attorney Lawrence Kaplan to discuss the selec-
tion of arbitrators. Kaplan discussed the issues in the
Union's grievances and asked her to obtain the names of
employees involved in the grievances and furnish that in-
formation to him before they selected arbitrators. During
this conversation, Kaplan said nothing about requiring
that the Union's grievance be written
Teitelbaum obtained the requested information and
called Kaplan on January 7, 1983. She explained the
Union's position, that the layoff had been by classifica-
tion rather than seniority; that the layoff of groundman-
truckdrivers violated sections 5.14 and 5 17 of the con-
tract, that Dave Barbey, an apprentice lineman, should
not have been retained while journeymen were laid off,
and that truck mechanic Dale Lurkins should have been
retained instead of Lynn Hempen.
Kaplan replied that he had not heard of two issues,
layoff by classification and the layoff of the groundman-
truckdrivers, and told Teitelbaum he wanted the griev-
ances put in writing as there might be four separate
grievances. Teitelbaum insisted there was but one griev-
ance with several issues. She also protested that the con-
tract did not require that the greivance be put in writing.
Kaplan persisted in his demand that the Union submit its
grievance in writing before he would select an arbitrator.
Teitelbaum offered to exchange written statements of
issues as a courtesy prior to the arbitration hearing, but
told Kaplan he had no right to require writing as a pre-
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition to selecting arbitrators. Kaplan remained ada-
mant, insisting that he would not select arbitrators absent
a written statement of the grievance
Teitelbaum sent a letter to Kaplan dated January 11,
1983, confirming their telephone conversation of January
7. She received a letter from him on January 13, dated
January 12, confirming the same conversation from his
point of view. Teitelbaum responded to Kaplan's letter
by her letter of January 17, in which she pointed out
what she perceived were inaccuracies in his letter. In a
third letter of January 18, Teitelbaum informed Kaplan
that the Union was considering filing an unfair labor
practice charge if the Co-op continued its refusal to
select arbitrators. Teitelbaum again asked that the Co-op
select arbitrators.
On January 20, Teitelbaum received a letter dated Jan-
uary 19, in which Kaplan requested that she "set forth
with some particularity the names of each individual that
has a grievance with my client, alongside of or with the
specific action of my client over which the grievance
arose." On January 26, Teitelbaum telephoned Kaplan
and again asked if he would select arbitrators. He again
said no.
Finally, on January 28, after meeting with the Union,
Teitelbaum called Kaplan and again recited the issues to
be arbitrated, as she had done on January 7. After Teitel-
baum asked him to select arbitrators, Kaplan reiterated
his position that he would not do so until she had re-
duced her recitation to writing Thereafter, Teitelbaum
sent Kaplan a letter dated January 28, 1983, confirming
the two telephone conversations of January 26 and 28. In
this letter, Teitelbaum reviewed her offer to exchange
written statements of issues prior to arbitration, in suffi-
cient time for adequate preparation for arbitration. On
January 31, the Union filed the instant unfair labor prac-
tice charge.
On February 5, Teitelbaum met Kaplan at a party and
again stated all the issues included in the Union's griev-
ance. Kaplan responded, conceding that she had ex-
plained the issues involved in the grievance but insisting
that the Union provide them in writing.
On April 5, Co-op Manager Neece sent the following
letter to all employees in the production, maintenance,
and construction unit, also referred to by the parties as
the outside bargaining unit.
Dear Employee:
This letter is for your information. Your employer
is making every effort to bring the arbitration with
the Outside Bargaining Unit to a conclusion, how-
ever, before we can do this, we must have in writ-
ing what they are grieving.
Your cooperative is ready to pick an arbitrator
when Local 702 advises us, in writing, what they
want to grieve.
The Co-op did not provide the Union with a copy of
this letter
On April 11, Shop Steward Terry Donaldson went to
the office of Co-op Operations Director Hentz and asked
why the Co-op had sent the quoted letter Hentz an-
swered that the Co-op wanted to make sure that all em-
ployees knew what was going on with the grievance.
Hentz said he did not know what the issues were and
asked Donaldson to state them. Hentz wrote down three
of the issues Donaldson mentioned and asked him to sign
the paper. Donaldson refused to sign , saying he had no
authority to do so. Hentz then asked Donaldson if the
issues were put in a letter and sent to the Union, would
Business Representative Moore sign it. Donaldson re-
plied that he did not know.
On April 15, Co-op Manager Neece sent a letter to
Union Business Representative Moore listing three of the
issues mentioned by Donaldson to Hentz. Neece request-
ed that Moore sign where indicated, if he concurred
with this listing for arbitration The letter further stated,
"By so doing, our requirement for the items to be sent
down in writing will be handled and thus the arbitration
may be handled at an early date by our choosing an arbi-
trator and your requesting to cancel the NLRB hearing."
Moore did not comply with Neece's request. It was
Moore's view that the collective-bargaining agreement
did not require that the Union sign such a letter, nor was
there any precedent for the Union to do so.
On May 2, Donaldson filed an oral grievance concern-
ing installation of shelving by outside contractors while
unit members were on layoff. The Union contended that
this employment of outside contrators violated section
1.05 of the collective-bargaining agreement which allows
contracting "provided that no regularly employed man is
laid off in order to contract such work."
Eleven days later, the Union and Co-op representa-
tives met concerning the shelving grievance. The Co-op
took the position that the work was not bargaining unit
work and thus no contract violation had occurred No
agreement was reached but the parties agreed to meet
again.
At the outset of the next meeting, on May 24, Kaplan,
on behalf of the Co-op, stated- "You know we're going
to-we want this grievance in writing." Moore, the
Union's spokesperson, replied that there was no such re-
quirement in the collective-bargaining agreement. The
parties went on to discuss the grievance at length.
Kaplan then said . "You know how we feel You know
where we're at and we know where you're at. So we've
got to have this grievance in writing." Moore again re-
minded Kaplan that the collective-bargaining agreement
did not require grievances to be written. Kaplan replied
that no court in the country would make him go to arbi-
tration without the grievance being put in writing.
Moore replied that they would have to wait and see how
to courts would rule, to which Kaplan replied, "I
haven't lost one yet." Thereafter, the Union withdrew
this grievance.
C. Analysis and Conclusions
It is well settled "that an employer acts in derogation
of his bargaining obligation under Section 8(d), and
hence violates Section 8(a)(5), when he unilaterally
modifies contractual terms or conditions of employment
during the effective period of a contract and this even
though he has previously offered to bargain with the
Union about the change and the Union has refused." C &
SOUTHWESTERN ELECTRIC
S Industries, 158 NLRB 454, 457 (1966). This principle is
wholly applicable to the grievance procedures set forth
in a collective -bargaining agreement . Independent Stave
Co, 233 NLRB 1202, 1204 (1977).
I find that the collective -bargaining agreement in
effect at all times material to this case , and which cov-
ered the Co -op's production , maintenance , and construc-
tion employees , did not require the Union to submit
grievances in writing at any stage of the grievance pro-
cedure. Nor did those provisions require written submis-
sion as a condition precedent to the selection of arbitra-
tors Nor was there any showing that the Union had
adopted a practice of submitting its grievances to the Co-
op in writing at any stage of the contractual grievance
procedure . Instead , the evidence showed only that in the
course of the procession of a grievance , the Union, on
occasion , has voluntarily recited its essential elements in
correspondence.
Further, it was undisputed that prior to the November
19, 1982, grievance , the Co-op had neither requested nor
demanded that Union submit a grievance in writing as a
condition precedent to its processing or to the selection
of arbitrators . Indeed , neither the Co-op nor the Union
hase ever provided grievance forms for use by the unit
employees . This circumstance strongly suggests that the
parties did not contemplate a need of written grievances.
Finally, I find no merit in the Co-op's contention that
its need for adequate notice of the Union 's specific com-
plaints excused its insistence on a written statement of
the November 1982 grievance. For, the Co-op has not
shown any Board or court precedent , nor have I found
any, which would compel me to depart from the princi-
ples recited above.
In sum , I find the Co-op, by refusing to select arbitra-
tors or otherwise process the Union 's grievances of No-
vember 19, 1982, and May 2, 1983, because the Union
failed to submit the grievances in writing , acted in dero-
gation of its obligations under the contract and Section
8(d) of the Act and thereby violated Section 8(a)(5) of
the Act. Chicago Magnesium Castings, 240 NLRB 400,
406-407 (1979), enfd. 612 F.2d 1028, 1034 (7th Cir. 1980);
Independent Stave Co., supra at 1204.
I also find merit in the General Counsel 's contention
that the Co-op unlawfully bypassed the Union when it
sent the letter of April 5, 1983, to the production, main-
tenance, and construction employees. Ample precedent
supports my finding.
It is well established that the Act prohibits an employ-
er from dealing directly with employees at a time when
they are represented by an exclusive collective-bargain-
ing representative E.g, Medo Photo Supply Corp. v.
NLRB, 321 U.S. 678, 684 (1944).
In the instant case, I find that the Co-op 's letter of
April 5 , 1983, to its employees carried the suggestion
that the Union 's refusal to submit the bargaining unit's
grievance in writing was the only stumbling block pre-
venting arbitration By this suggestion , the Co-op sought
to enlist the unit employees in its effort to pressure the
Union into abandoning the contractual right to present
grievances orally. I find that by its letter of April 5,
1983, the Co-op attempted to bypass the Union and deal
directly with the individual bargaining unit employees on
927
a significant collective-bargaining matter, and thereby
violated Section 8(a)(1) and (5) of the Act Sentle Truck-
ing Corp., 260 NLRB 596, 600 (1982); Texaco, Inc., 233
NLRB 375, 376 (1977).
CONCLUSIONS OF LAW
I Respondent , Southwestern Electric Cooperative,
Inc., is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act
2. Local Union 702, International Brotherhood of
Electrical Workers, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All production, maintenance and construction em-
ployees excluding office clerical and professional
employees , guards, and supervisors as defined in the
Act.
4. Since January 1952, and at all times material herein,
the Union has been , and is, the exclusive representative
of the employees in the unit described above, and since
said date , the Respondent has recognized it as such.
5. By insisting that the Union submit its grievances in
writing prior to the selection of arbitrators , since about
January 7, 1983, Respondent has violated the terms of its
1982 collective-bargaining agreement and has unilaterally
changed the terms of the collective- bargaining agreement
in violation of Section 8(a)(5) and (1) of the Act.
6. By its letter of April 5, 1983, Respondent violated
Section 8(a)(5) and (1) of the Act by thus bypassing the
designated collective -bargaining representative of its em-
ployees.
REMEDY
Having found that Respondent engaged in certain
unfair labor practices , I shall recommend that it be or-
dered to cease and desist therefrom, and take certain af-
firmative action designed to effectuate the policies of the
Act. Thus, I shall order that Respondent honor the terms
of its current collective-bargaining agreement with the
Union with respect to the processing of grievances and
the selection of arbitrators and, upon the Union 's request,
select arbitrators for the processing of the grievances
arising from the layoff announced on November 19,
1982.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent , Southwestern Electric Cooperative,
Inc , Greenville, Illinois, its officers , agents, successors,
and assigns, shall
1 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
928 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
1. Cease and desist from
(a) Refusing to bargain collectively with Local 702,
International Brotherhood of Electrical Workers, AFL-
CIO as the exclusive bargaining representative of the em
ployees in the aforesaid appropriate unit, by unilaterally
modifying the terms of any collective -bargaining agree-
ment entered into with the bargaining representative of
its employees , including those terms pertaining to the
processing of grievances under the agreement.
(b) Bypassing the designated collective -bargaining rep-
resentative of its employees and dealing directly with
those employees concerning the grievance arbitration
procedure under the existing collective-bargaining agree-
ment covering the unit described above.
(c) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(4) Withdraw as a condition precedent to processing of
grievances that Local 702, International Brotherhood of
Electrical Workers, AFL-CIO submit grievances in
writing.
(b) On the request of Local 702, International Brother-
hood of Electrical Workers, AFL-CIO select arbitrators
for the resolution of the grievance or grievances arising
out of the Co-op's layoffs announced on November 19,
1982.
(c) Post at its Greenville , Illinois facility copies of the
attached notice marked "Appendix." Copies of the
notice, on forms provided by the Regional Director for
Region 14 , 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.2
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
had taken to comply
2 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."