Union Electric Co.

National Labor Relations Board - Board Decisions

May 2, 1972

196 N.L.R.B. 830 (N.L.R.B. 1972)

830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union Electric Company and International Brother-
hood of Electrical Workers, Local 1439, AFL-
CIO and Local 1455, International Brotherhood of
Electrical Workers, AFL-CIO. Cases 14-CA-5304
and 14-CA-5415
May 2, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND
PENELLO
On October 28, 1971, Trial Examiner Stanley N.
Ohlbaum issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions and to adopt his
recommended Order, as indicated herein.
In November 1969, Respondent decided to decen-
tralize its operations by sending project estimators to
various field locations. Respondent bargained with
the Union as to how these transfers would be accom-
plished and by late December agreement had been
reached on which individuals would be transferred to
particular locations. Nonetheless, despite 14 meet-
ings , the parties had not agreed by April 1970 as to
how nonpromotional job vacancies (lateral transfers)
in the classifications of overhead and underground
project estimator would be filled.' It is not clear that
lateral transfers had, in fact, ever taken place before
the decentralization.
In April, a vacancy occurred in the position of
overhead project estimator at one field location. After
advising the Union of its need to make an appoint-
ment and of its proposed action, the Company took
bids on the vacancy from both overhead and under-
ground project estimators, contrary to the Union's
position that classificational trees should be honored
with respect to lateral, as well as promotional, trans-
fers. As it happened, the position was eventually filled
from within the traditional classificational tree. Eight
additional meetings were thereafter held with respect
to the job transfer problem, with the parties ultimately
1 In the absence of exceptions thereto, we adopt, pro forma, the Trial
Examiner's finding that the Respondent violated Section 8(a)(1) of the Act
byZsuspending employees Leveling and Boatwright.
There was agreement that promotions would continue to be made within
the various classificational "trees."
agreeing on virtually all matters.
We are unwilling to find a violation of Section
8(a)(5) arising out of the above circumstances. There
is no contention these negotiations were not in other
respects characterized by good faith on both sides,
and agreement as to the contested subject area, as well
as to other matters, was ultimately reached. While
unilateral action as to subjects under negotiation is
indeed normally found by us to violate the duty to
bargain, the single incident complained of here, which
culminated in a selection of an individual from the
seniority tree which the Union contended was the
appropriate one, does not seem to us, under all of the
circumstances, to have justified the invocation of our
unfair labor practice procedures, nor to warrant us in
finding that a violation has occurred. One such isolat-
ed act which had no observable impact on the bar-
gaining, and which also had no practical effect on any
individual which was even arguably contrary to the
position contended for by the Union in the bargain-
ing, particularly when viewed in a context of an other-
wise harmonious relationship between Respondent
and the Union, does not rise to the level of an unlaw-
ful refusal to bargain cognizable under our statute.
We believe the policies of the Act do not, for their
effectuation, require us to base a finding of a violation
on so miniscule a bit of debatable conduct by a party
whose overall compliance with both the letter and
spirit of the good-faith bargaining requirements of our
statute is evidenced by the totality of an otherwise
successful bargaining relationship. We shall dismiss
this allegation of the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner as modified below and
hereby orders that the Respondent, Union Electric
Company, St. Louis, Missouri, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Trial Examiner's recommended Order as mod-
ified:
1. Delete paragraphs 1(b), (c), and (d) from the
Trial Examiner's recommended Order and add there-
to the following paragraph 1(b) 2.
"(b). In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed to them in Section 7 of the
Act."
2. Delete paragraph 2(d) 4 from the Trial
Examiner's recommended Order and letter the re-
maining paragraphs accordingly.
3. Substitute the attached notice for the Trial
Examiner's notice.
196 NLRB No. 115
APPENDIX
UNION ELECTRIC CO. 831
issued by the Board's Acting Regional Director for Region
X14 on November 20, 1970, based on charges filed by Local
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial before a Trial Examiner of the National
Labor Relations Board, at which all sides had the
opportunity to be fully heard and to present witnesses,
written evidence, arguments, and briefs, the decision
has been announced that we, Union Electric Compa-
ny, have failed to comply with the National Labor
Relations Act in certain respects. This notice is posted
in accordance with the Board's Order requiring it to
be posted.
The National Labor Relations Act guarantees cer-
tain rights to employees, including the right to act
together in matters concerning their jobs and working
conditions.
WE WILL NOT violate those rights of yours.
WE WILL NOT suspend, discipline, or retaliate
against, or threaten so to do, any employee for
exercising any of those rights.
WE WILL pay John R. Leveling and Duane S.
Boatwright for any pay lost, with interest at 6
percent per annum, when we suspend them on
October 30, 1969; and WE WILL eliminate from
their personnel records all indications that those
suspensions were due to any fault or misconduct
on their part.
UNION ELECTRIC COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance. with . its provisions may be 'directed to the
Board's Office, Room 448, 210 North 12th Boulevard,
St. Louis, Missouri 63101 Tel. 314-622-4167.
TRIAL EXAMINER'S DECISION
PRELIMINARY STATEMENT ; ISSUES
STANLEY N. OHLBAUM, Trial Examiner: This proceeding
under the National Labor Relations Act, as amended (29
U.S.C. Sec. 151, et seq.; the Act), on consolidated complaint
1439 on September 24, as amended November 5, 19 9 (Case
14-CA-5304), and by Local 1455 on December 23, 1969, as
amended January 27, April 21, and April 23, 1970 (Case
14-CA-5415),' was heard by me in St. Louis, Missouri, on
August 9-11, 1971, with all parties participating throughout
by counsel who were afforded full opportunity to present
testimonial and documentary evidence, cross-examine wit-
nesses, propose findings and conclusions, and file briefs.
Subsequent to the trial, briefs were received on September
21, 1971.
The basic issues presented are (1) Whether Respondent
Union Electric Company, as an Employer within the Act,
violated Section 8(a)(1) of the Act by suspending two em-
ployees for engaging in concerted activity protected under
the Act; and (2) whether Respondent violated Section
8(a)(5) and (1) of the Act by not bargaining with the Unions
through (a) unilaterally changing previously established
grievance procedures (i.e., by insisting on strict observance
of time limitations on grievance procedures-such time lim-
itations not having previously been insisted upon) and
through (b) bypassing the Unions and dealing directly with
bargaining unit employees.
Having carefully considered all evidence, testimonial 2
and documentary, as well as all contentions advanced at
trial and in briefs, upon the entire record, including my
observations of the testimonial demeanor of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
1. PARTIES; JURISDICTION
At all material times, Respondent Union Electric Compa-
ny, a Missouri electrical public utility corporation, has had
its principal office and place of business in St. Louis, Mis-
souri, and other installations in the States of Iowa and Illi-
nois. In the course and conduct of its business during 1969,
a representative year, Respondent sold electricity valued in
excess of $250,000, and also purchased and caused to be
transported and delivered into Missouri, including its St.
Louis plant there, goods and materials (including wire, insu-
lators, trucks, steel, poles, and transformers) valued in ex-
cess of $50,000, directly in interstate commerce from places
outside of Missouri.
I find that at all material times Respondent has been and
is an em loyer engaged in commerce within the meaning of
Section 22(2), (6), and (7) of the Act; that at the same times
each of the above Unions has been and is a labor organiza-
tion as defined in Section 2(5) of the Act; and that assertion
of jurisdiction in this proceeding is proper.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is an electric utility servicing parts of Mis-
1 A third case, 14-CB-1974, naming Local 1455, International Brother-
hood of Electrical Workers, AFL-CIO, as Respondent and Union Electric
Company as Charging Party, which had been consolidated with the two cases
shown in the caption, was severed and complaint withdrawn by the Board's
Regional Director for Region 14 on August 5, 1971. Accordingly, allegations
dealing therewith in the consolidated complaint herein-namely, par. 9 and
12, and in part par. 13-have been removed from litigation in this proceeding
and are not dealt with herein.
2 Trial transcript has been corrected in respect to obvious and typographi-
cal errors.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
souri , Iowa , and Illinois . Its princ ipal office is at 1901 Grat-
iot Street in St . Louis (Missouri). Only its installations in St.
Louis (Missouri) and Fort Madison (Iowa) are here in-
volved.
Since Board certification in 1945 following a secret ballot
election , Respondent 's electric meter readers and its
"overhead" service employees and "underground" service
employees , as well as its substation and certain other cate-
gories of employees , members of the appropriate bargain-
ing unit here involved , have been represented exclusively by
International Brotherhood of Electrical Workers (IBEW)
and/or its Local 1439 (a Charging Party herein) .4 Since a
secret ballot election and Board certification in 1946, IBEW
and/or its Local 1455 (the other Charging Party here) has
or have represented Respondent 's office , clerical , and tech-
nical employees.5
The parties ' current and recent collective agreements are
substantial 139 and 90 page documents comprehensively
regulating their relationships . Their applicable chronolo-
gies, according to their provisions, are:
Local Union Collective Agreement
No.
Execution ffec-
ate ive h.
aces
1439 (meter 10-23-67 -1-67
readers, (amending hrough
service and 0-29-46 30-69 2
maintenance agreement
men, and as
misc. other ended)
employees)
-16-70 -16-70
hrough
-1-71 3
1455 (office, (1967-69 not
clerical, supplied)
sales, and
technical
employees)
-10-7 0 0-13-69
hrough 6
-30-71
3 I.e., building service, country club, steam heating, trouble and installa-
tion, utility shop and salvage , transportation, etc.
IBEWjointly with its Local 1439 represent all employees of the foregoing
unit other than those in the East St. Louis, Illinois, area (who are represented
by IBEWjointly with its Local 309) and those in the Alton , Illinois, area (who
are represented by IBEW jointly with its Local 649).
5 Excluding supervisory, professional , labor relations , managerial , "confi-
dential" secretarial , and security employees.
B. Suspension of Employees
Respondent 's conceded temporary suspension on Octo-
ber 30 , 1969, of its employees Leveling and Boatwright-
members of the Local 1439 bargaining unit-under circum-
stances to be described , allegedly in violation of Section
8(a)(1) of the Act , presents the first subject for consideration
here.
Around 10 : 30 a.m . on October 30, 1969 , a rainy day,6
Respondent 's Lineman and Union Shop Steward Nelson
Stubblefield was called to the office of his supervisor, David
Branden (also referred to as Brandon), overhead superin-
tendent of Respondent 's Fort Madison (Iowa) District, who
instructed Stubblefield to assist in loading and rigging a
large (69,000 feet) inoperative and decommissioned elec-
trical substation transformer, from its outdoor voltage
transmission steppdown location , onto a lowboy for trans-
portation to St . Louis.? Stubblefield refused to do so upon
the ground that it was raining.
About an hour later (i.e., around 11:30 a.m .), Branden
called Stubblefield back to his office where , according to
Branden 's testimony , "I [Branden] asked him [Stubblefield]
about what he thought about the meaning of the clause in
the contract with due regard to the nature of the work to be
performed and in conjunction with the inclement weather."8
This drew from Stubblefield the retort that "I didn't know
legally because I never had it explained to me ." Around
3:30 p .m., Branden directed Stubblefield and Towery (an-
other union shop steward) to report to the office of
Respondent 's District Superintendent or Manager Hovey,
who sought unsuccessfully to persuade them to proceed
with the loading and removal assignment , which was again
refused on the ground that it was still raining . Thereupon
Hove instructed Branden to "go ahead and order the
crane ' 9 necessary for the operation.
6 The account which follows , based on testimony of General Counsel's
witnesses Stubblefield, Leveling, and Boatwright , and of Respondent's wit-
ness Branden, as credited , constitutes the facts as found relating to
Respondent 's suspension of Leveling and Boatwright.
The decommissioned, inoperative , disconnected , and deenergized trans-
former in question was located at Lee Substation , about 2 miles and a
10-minute ride from Respondent's Fort Madison installation . Lee Substation
services Fort Madison and possibly also West Point, Iowa, as well as rural
areas . The transformer in question was neither in use nor then needed for use
at Lee Substation or elsewhere, the existing transformers at Lee being suffi-
cient to answer the substation's energy load calls and requirements. The
transformer in question has not beep replaced at Lee Substation since its
removal on October 30 , 1969. According to Stubblefield , the loading in
question could have been accomplished in 30 minutes or so; thus, if travel
time in both directions is added, about an hour or somewhat over that could
have encompassed the entire job. However , according to Stubblefield, in
addition to the normal hazards involved in handling a load of this size and
bulk, "slippery footing" in wet weather presents an added peril.
8 The "inclement weather" provision of the contract, still being observed
as a term and condition of employment notwithstanding the technical expira-
tion of the contract at the time in question , is set forth infra. Branden
conceded on cross-examination that requiring work in rain on this occasion
was "contrary to established practice."
9 The proof, consisting primarily of Branden's own testimony, establishes
the following to be the facts regarding the crane and lowboy . Prior to October
30, Branden had arranged for the rental of a 35-ton crane from Keokuk,
Illinois-a distance of about 23 miles from Fort Madison, Iowa-for I p.m.
on October 30, at a cost of $50 per hour . Around 11:30 a.m . on October 30,
since it was raining and since Respondent 's lowboy trailer truck on which
the transformer was to be loaded was broken down and unavailable , Branden
notified the crane company to hold off sending the crane because of the truck
breakdown and also in view of the weather. However . around 4 p.m.-
notwithstanding his familiarity with the "inclement weather" provisions,
which he indicated he regarded as applicable (notwithstanding the fact that
technically the contract had "expired ") (Branden conceded on cross-exam-
ination that he "knew that ... employees were not required to work in
Continued
UNION ELECTRIC CO. 833
About 15 minutes before 4:30 p.m., quitting time, while
it was still raining or drizzling, Branden again sought to
obtain a three-man work crew to do the job in question, this
time on overtime, stating in response to an employee's ques-
tion that "We are working rain or shine." When Branden
asked Stubblefield if he would work overtime, Stubblefield
declined "if we had to work in the rain." All of the other
employees likewise declined to work overtime under the
circumstances. As Stubblefield was prepared to leave
around 4:30, he as shop steward was asked by Respondent's
Lineman Stephens to remain around "to see what was going
on" further concerning this overtime assignment. Stubble-
field did so. Meanwhile Branden, utilizing the overtime list,
was attempting to enlist a work crew to move the decommis-
sioned transformer. When Branden reached the name of
Overhead Repairman Leveling at or near the bottom of the
overtime list (iin view of Leveling's^uniority), Leveling asked
Branden if it was an "emergency job. When Branden an-
swered that it was, Leveling replied that he did not consider
the moving of such equipment to be an "emergency" and
that although he would go out if required he would not work
in the rain. Branden thereupon-according to his written
report (Resp. Exh. 17)-after "as expected, all refused the
assignment of overtime ... detained the Junior repairman
[i.e., Levelin^] and the 2 junior linemen [i.e., Stephens and
Boatwright]' and ordered them to go out on the overtime,
over their objections as well as those of Shop Steward Stub-
blefield. Branden continued to maintain this position with
Shop Steward Stubblefield when the latter protested that
overtime could not be required under the circumstances
"since it wasn't an emergency"-to which overtime was
limited under the terms and conditions of employment as
set out in the technically "expired" contract. Since Stubble-
field (as well as Stephens, Leveling, and Boatwright) was
thus at loggerheads with Branden on this matter, Stubble-
field proceeded-to Branden's knowledge-to telephone
the Local 1439 office in St. Louis, but was unable to reach
Business Manager Roedder there. When Stubblefield told
Branden that it would be necessary to attempt to make
another call, Branden responded that he "couldn't wait
around any longer, that he had to go in, take a crew, and
go on down to the substation." In answer to a question from
Lineman Stephens, who indicated a prior appointment con-
flicted with his working overtime, Stubblefield told Ste-
phens he could not be compelled to perform the overtime
in question. When Stephens told this to Branden, the latter
about 4:50 p.m. instructed Ste hens "to go home and ...
he [Branden] would call him [Stephens] when he wanted
him to come back to work," further indicating-in answer
to Stubblefield's question-that the suspension was indefi-
nite in duration. Branden refused to wait while Stubblefield
inclement weather")-Branden instructed the crane company to send the
crane out. (As indicated above, in so doing Branden was apparently carrying
out the instructions of his superior , District Superintendent or Manager
Hovey.) Since, according to Branden, Respondent's truck was not ready until
3:30 p . m., considering travel time of the crane (from Keokuk ; Branden
conceded it could not have arrived at the jobsite before 4:45 p. m.), as well
as of Respondent's lowboy to the jobsite, and the length of time required for
the job (no less than 30 minutes) as well as the end of the workday (4:30 p.m.),
it is evident that under no circumstances, regardless of what had occurred prior
to 3:30 p. m. on October 30, could the job of removing the decommissioned
transformer have been completed other than on overtime. Furthermore,
Branden's written report covering this matter (Resp . Exh. 17) indicates that
although he could have countermanded the crane ("I had not yet requested
the motor crane to come up because I didn't want the expense of it until I
could decide positively, would we or not use it.") he "made it clear to them
[i.e., the employees] we were going to load, rain or shine" (id.) and that "they
had to work rain or shine " and also that " they had to work overtime."
telephoned union headquarters again but said he would
proceed to the jobsite , taking Overhead Repairman Level-
ing and Lineman Boatwright with him.10
Upon arrival at the jobsite , although the rain or drizzle
had by then stopped or slowed (according to Supervisor
Branden 's written report (Resp . Exh. 17), on arrival at the
jobsite "the rain was practically no-existant [sic]"), the
ground was still wet . The men proceeded to remove or open
a wood slat fence enclosing the decommissioned transform-
er, first cutting down a live electrical wire . Meanwhile Stub-
blefield , having completed his telephone call to the Union,
returned to the shop to find that Branden had already left
for the job with Leveling and Boatwright . Stubblefield
therefore proceeded to the jobsite , where, in response to
Leveling's question in the presence of Boatwright , he con-
firmed that the overtime work could not be required since
"it wasn't an emergency" and also made known that Line-
man Stephens had been suspended for not coming out to the
job. Stubblefield also made known to Branden the Union's
official position regarding the alleged nonreq ,uirability of
the overtime . When Branden said he would again ask Level-
ing and Boatwright whether they wished to work or contin-
ue to work overtime , Stubblefield stood apart while
Branden spoke to them . Leveling and Boatwright thereupon
indicated to Branden that in this situation , "under the cir-
cumstances" (Branden's testimony ) they were declining to
work the 'ob. Leveling and Boatwright were thereupon also
given an 'indefinite suspension" by Branden . They accord-
ingly left the jobsite with Stubblefield . The removal of the
transformer was then accomplished by Branden and the
hired crane operator by 6:45 p .m.
On the following morning (Friday , October 31, payday),
in response to an inquiry from Stubblefield , Branden indic-
ated that the three men in question (i.e., Stephens, Leveling,
and Boatwright) were "still suspended ." Thereupon Stub-
,Y stated that under these circumstancesblefield and Tower
both of them as shop stewards were also "[not] working
either ." 11 At an ensuing second -stage grievance meeting at
2:30 that (i.e., Friday) afternoon , Respondent District Su-
perintendent Hovey announced that the suspensions would
expire at midnight of that day (Friday) and expressly de-
clined to lift the suspensions before that time . Accordingly,
Leveling and Boatwright 12 were each docked a day's pay
(Friday, October 31 ), and at least Boatwright may have lost
an additional day's pay (Monday , November 3) in conse-
quence of possibly not receiving notification to return to
work until the following Monday (November 3).
According to Stubblefield, at no time did Branden take
the position that the work in question was an "emergency."
During cross-examination , Branden conceded that when
Shop Steward Stubblefield and the other employees took
the position that no emergency was involved such as to
require the work in question to be done in the rain , Branden
told them that it "could, in effect , be called an emergency
situation . It was an imperative situation anyway ... a job
that needed to be done."13
10 The third man of the work crew was dispensed with since all other
em?loyees had by then left for the day.
1 Learning of the suspensions, the entire work crew walked out , not re-
turning to work until Tuesday, November 4, after Respondent agreed to
arbitrate the question of the suspensions. There is no indication that any such
arbitration has ever been proceeded with. The question of arbitrability as a
defense or bar to the instant proceeding is considered infra.
12 Stephens' case, if any, is not here for determination.
13 It would accordingly appear that in Branden's usage "emergency"
equates with a "job ... to be done." I find that no real emergency of any
kind requiring the work in question to be done-such as a power failure or
other immediate need for the decommissioned transformer or its replacement
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although it is stipulated 14 that on the dates (October
30-31, 1969) when the foregoing events took place there was
no formal written collective agreement, as such, technically
subsisting between Respondent and Local 1439,15 the provi-
sions thereof pertinent to, although not in themselves dispo-
sitive of, the situation here involved are:
Inclement Weather [Article 10-Working Conditions]
The department head, or his designated assistant or
assistants, shall, after consultation with the Steward or
Stewards involved, determine what constitutes incle-
ment weather, with due regard to the nature of the
work to be performed. If it is decided that weather is
inclement, the employees involved shall be released
from regular duties and will be held during regularly
scheduled working hours with pay pending emergency
calls. During this time they will be given first aid, safe-
ty, or other instructions, or may be assigned work in
sheltered locations. In co." `-n with the foregoing it
is understood that present worn practices of meter
readers, installers, troublemen, truck drivers and em-
ployees occupying positions of similar type will not be
changed by the provisions of this paragraph."
Working Hours [Article 9]
Eight (8) consecutive hours, excluding time taken out
for meals, shall constitute a regular day's work. Pre-
sently established hours of work in each department or
subdivision shall not be changed unless operating con-
ditions or necessary maintenance or repair work make
such a change necessary.
Notwithstanding these provisions, however, and whether or
not they may be regarded as definitively regulating the rela-
tionship) of the parties during the formal contractual hiatus
period," the actions of Leveling and Boatwright comprised
the type of concerted activities which are included within
the Act's protections. Cf. N.L.R.B. v. Washington Aluminum
Co., 370 U.S. 9, 16-17; Morrison-Knudsen Company, Inc.,
173 NLRB 56, and cases cited at 59, fn. 11, enfd. 418 F.2d
203 (C.A. 9). This, however, does not necessarily mean that
under all manner of attendant circumstances participation
in such activities automatically insulates employees who
engage in them from any and all employer responsive ac-
tion; for example, their protected nature may under certain
(as noted above , it has not been replaced in the 2 years since 1969)-has been
established . Branden himself conceded there was no particular reason for
removing the decommissioned transformer at the time in question "other
than the expediency of starting it back " and that "decision was made to move
it that day."
14 Notwithstanding an automatic renewal provision applicable in the event
of absence of notification of contract cancellation.
15 As shown above, October 1969, was in the hiatus period between expira-
tion of the 1967-69 agreement and inception of the 1970-71 agreement
between Respondent and Local 1439.
16 Cf. discussion and cases cited infra, section D, that such provisions may
be deemed projected forward and continuing , until lawfully changed, even
though the term of the formal collective agreement has technically expired.
The parties ' behavior and dealings in the described situation on October
30-31 are indicative of recognition of the applicability of those provisions.
It is noted that the 1970-71 collective agreement also contains the same
quoted "Inclement Weather" and "Working Hours" provisions.
circumstances be waived or their assertion estopped. Fur-
thermore, the employer may be privileged to continue his
o erations-even with worker replacements-in the event
o work stoppage by employees engaging in such activities,
even where protected.
In this case, to begin with, as shown above (fn. 9, supra),
the work in question could not have been done on October
30 except on overtime. Leveling and Boatwright declined
Supervisor Branden's invitations to work overtime on the
afternoon of that day. Their ostensible reasons for so doing
were that no "emergency" (i.e., "emergency" and "neces-
sary maintenance or repair work," quoted supra from con-
tract) was involved and possibly also the inclement weather.
They were thereupon drafted or ordered by Branden to go
out overtime on the job in question, with refusal at this point
clearly at peril of suspension if not worse. Before the sub-
stantial question of their obligation to work overtime under
these circumstances could be clarified by the Union, they
complied with Branden's direction to accompany him to the
jobsite because Branden-not unreasonably, from his point
of view-refused to wait any longer, until contact could be
made with the Union. At the jobsite, after commencing a
phase of the work (i.e., fence removal) to be done, they were
informed by Shop Steward Stubblefield that he had ascer-
tained the Union's position to be that the overtime work
could not be required and that their fellowworker, Lineman
Stephens, had been suspended for declining to come out on
the same job.17 Under these circumstances, Leveling and
Boatwright declined to work further on the overtime, result-
in in their immediate suspension by Branden.
in declining to proceed with the required overtime in the
situation and under the circumstances shown (i.e., (1) at
least arguably "inclement weather," (2) clearly no "emer-
gency" Justifying mandatory overtime,' and (3) indefinite
suspension of a fellow-worker having a prior engagement,
for refusing to go out on overtime under conditions (1) and
(2)), Leveling and Boatwright were engaging in concerted
activities touching their contractually established and ex-
isting working conditions, protected under the Act. Cf. N.L.
R.B. v. Washington Aluminum Co., supra; Morrison-Knudsen
Company, Inc., supra; First National Bank of Omaha, 171
NLRB No. 152, enfd. 413 F.2d 921 (C.A. 8); Louis Page
Contracting, 166 NLRB 629; Louis Rosenberg, Inc., 122
NLRB 1450; Modern Cleaners Company, 100 NLRB 37,
enfd. 208 F.2d 243 (C.A. 2).18 It will be recalled that their
walking off the overtime job was accompanied by their
being suspended by Branden. Since Branden' s suspension
action precluded their working until it was lifted, effective
17 Leveling testified that he had learned about Stephens' suspension on the
way out to the jobsite.
(8 N.L.R.B. v. John S. Swift Company, Inc., 277 F.2d 641, 646 (C.A. 7);
N.L.R.B. v. Kohler Company, 220 F.2d 3, 11 (C.A. 7); and C. G. Conn, Limited
v. N.L.R.B., 108 F.2d 390, 397 (C.A. 7), relied on by Respondent, are distin-
guishable from the situation presented here. In each of those cases (involving
alleged violation of Sec . 8(a)(3) and (I)), the employees were unilaterally
attempting to set their own work terms and conditions ; in none of those
cases-unlike the instant case (involving alleged violation of Sec. 8(a)(1))-is
there indication that the employees ' actions were founded on contractually
established terms and conditions of employment (i.e., terms and conditions
under a formal , technically subsisting agreement or, as here , founded on a
technically "expired" but nevertheless carried-forward and observed agree-
ment-as both parties' actions and dealings on October 30-31 show). An
employee who asserts a claim arising out of a term or condition of employ-
ment established by collective agreement is engaged in furtherance of the
concerted activity resulting in that agreement . See the scholarly discussion
on this point by Circuit Judge Lay in Illinois Ruan Transport Corporation v.
N. L. R. B., 464 F.2d 274, 284 (C.A. 8). (Although Judge Lay's exposition is
contained in a dissenting opinion, the majority took no issue with those
views , but reached its conclusion that a discharge was justified on the as-
sumption that the activity resulting in the discharge was concerted.)
UNION ELECTRIC CO.
at midnight, October 31, by reason of that suspension they
lost regular pay, for which they should be compensated,
until they were notified of the revocation of the suspen-
sion.t9
It is accordin y found and held that under the described
circumstances espondent's employees Leveling and Boat-
wright were engaged in concerted activities protected under
Section 7 of the Act in not carrying out the overtime on
October 30, 1969; that their suspension by reason thereof,
by Respondent through its supervisor Branden, was in vio-
lation of Section 8(a)(1) of the Act; and that said employees
are entitled to backpay as indicated.
C. Unilateral Change in Grievance Procedures
It is further alleged that around November 21, 1969, Re-
spondent violated Section 8(a)(5) and (1) of the Act by
insisting-contrary to "established procedures"-on ad-
hering strictly to the time limits established in the expired
collective agreement, without notifying or bargaining with
the Union about this "change in established procedures."
It became evident at the hearing that the thrust or intend-
ment of this allegation is that although the parties' 1967-69
collective agreement-which, it will be recalled, ran until
June 30, 1969, and was technically in hiatus on October
30-31, 1969 20 -contains certain time limitations for griev-
ing, allegedly these time requirements were honored in the
breach rather than in the observance or were at any rate not
invariably rigidly insisted on b Respondent; but that there
unexpectedly came a time in November 1969 when Respon-
dent suddenly insisted that they be observed. In so doing,
it is claimed, Respondent violated Section 8(a)(5) and (1) of
the Act by not notifying and bargaining with the Union
about this "change" from noninsistence to insistence on the
contractually established time requirements.
At the outset, it is again assumed without analysis or
citation of authority at this point 21 that the time limitation
provisions of the "expired" 1967-69 collective agreement-
whatever their effect or status-were, in the same way as
other provisions exce t for the contract term itself, together
with any "change in such] established procedures" (quoted
from the complaint), projected forward into the hiatus peri-
od or interregnum following the "expiration" of that agree-
ment, at least to the extent of requiring bargaining with the
Union before being altered.
Uncross-examined testimony of Union Business Manag-
19 It is true that, as Respondent argues, employees do not have the unfet-
tered right to walk off a job which they have started . However , under the
circumstances here it cannot fairly be considered that the employees in
question entered on the particular overtime job assignment in question other
than involuntarily and over their expressed objection and under the compul-
sion or hazard of suspension if not worse in case of refusal . Since under the
circumstances shown the employees could not lawfully have been suspended
for refusing to go out on the overtime assignment , they should not be in a
worse position for having complied, under the circumstances , with such an
improper requirement . According to Branden , in advance of the aforedes-
cribed events he had received "instructions from [Respondent's] District
Superintendent or Manager Hovey to suspend them [i.e., any employees] if
they refused to work even if it'were raining" ; and he (Branden) had instruct-
ed the men that "they had to work rain or shine " and that "they had to work
overtime."
Nor, in view of their suspension , was it necessary for the employees to
apply for reinstatement as a condition to entitlement to backpay during the
suspension period . Cf. N. L. R. B. v. Southern Greyhound Lines, 426 F.2d 1303-
4, (C.A. 5).
2 See fns. 14 and 15, supra . The 1970-71 collective agreement likewise
contains the same time limitation provisions for grieving as the 1967-69
agreement.
21 See In . 16, supra.
835
er-Financial Secretary Roedder and related documentary
proof establish that the parties' 1967-69 collective agree-
ment (G.C. Exh. 2, art. V, pp. 6-12) sets forth time limita-
tions and requirements for "settlement of grievances or
differences." At the first three steps of the grievance proce-
dure these are brief; viz, at the first step within 3 days,
thereafter at the second step within 5 days, thereafter at the
third step a meeting is to be held within 10 days after re-
quest. Finally, the matter may within 90 days thereafter be
submitted to binding arbitration. The setting out of these
time provisions is, however, preceded by a preamble stating
explicitly that "it is the intention of the parties that the time
limits set forth in this Article shall be considered as guides
to indicate that grievances should be handled as expeditiously
as practicable. It is expected that when matters maybe resolved
in shorter periods of time than are mentioned herein, settlement
of such grievances shall not be delayed to the extent of the time
periods detailed below." (Emphasis supplied.)
In an effort to establish unilateral change by Respondent
in the system of processing grievances during the mterreg-
num between the formal written contracts of 1967-69 and
1970-71, there was introduced into evidence an exchange of
correspondence between the parties in the latter part of
November 1969. This correspondence (G.C. Exhs. 4 & 5),
however, consists merely of an inquiry from Local 1439 to
Respondent as to whether or not Respondent "will process
grievances which have arisen since the expiration ofits last
agreement with ... Local 1439 on June 30, 1969, in accord-
ance with the method provided for by the terms of the said
expired agreement, incpluding arbitration where resolution is
not reached on such grievances"; and a reply by Respon-
dent that it was not only willing to do so 'in accordance
with all provisions of Article 5 of the previously existing
Labor Agreement"-except for matters under negotiation
for the new collective agreement or matters regarding which
employees are on strike-but that it had in fact been doing
so in all grievances which had been presented during that
period. Respondent's reply in turn raised the question as to
whether Local 1439 intended to utilize the stipulated griev-
ance-arbitration procedure for all grievances, or only for
those regarding which the employees did not strike, during
the interregnum period between contracts. There is no evi-
dence here that the Union responded to this inquiry.
Assuming that Respondent was not privileged-both as
a matter of general law 22 and because of its described No-
vember 1969 correspondence with the Union-to make a
unilateral "change in established procedures" (as alleged in
the complaint) in relation to the time processin& of griev-
ances and arbitration, the credited factual proof not only
fails to establish such a change in November 1969, as alleg-
ed in the complaint, or at any other time, but, indeed, the
contrary. The following [attached as appendix] is an analy-
sis of the factual, documentary evidence submitted in this
connection, which I find (1) establishes that Respondent
was insisting prior to November 1969 on adherence to the
contractually established time requirements for the pro-
cessing of grievances and arbitration and (2) fails to estab-
lish, as alleged in the complaint, unilateral "change in
established procedures" governing the same.
It is accordingly found and held that it has not been
established by substantial credible evidence that, as alleged
in the complaint, Respondent on or about November 21,
1969 (or at any other time), unilaterally announced or ef-
fected any change in established procedures by insisting
that Local 1439 adhere strictly to the time limits in the
22 See fns. 14 and 16, supra, and 35, infra.
23 As distinguished from vague, general, unsupported, and not factually
established, conclusory statements by Union Business Agent Roedder.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievance procedure as set forth in the parties' 1967-69
collective agreement. Respondent's mdtion, upon which de-
cision was reserved at the hearing, to dismiss this allegation
(i.e., paragraph "8A") of the complaint is accordingly here-
by granted.
D. Direct Dealing With Employees Represented by Local
1455
It is, finally, alleged that on or about April 16, 1970,
Respondent dealt directly with employees represented by
Local 1455 concerning job bids in the estimator classifica-
tions, thereby violating Section 8(a)(5) and (1) of the Act.
The evidence concerning this phase of the case-much
like that in the other aspects of the case-is largely undis-
puted, leaving essentially a question or questions of law.
As is apparent from the collective agreements and other
documentary evidence, Respondent in its public utility op-
erations employs a large variety of categories or classifica-
tions of employees. These include, at grade 29 (a top level),
project estimators (job no. 4007) and underground project
estimators (job no. 4010).24 Two major classification group-
ments of employees are (1) overhead project estimators and
(2) underground project estimators. Traditionally (i.e., for
some 20 years) each of these groupments has formed a
separate branch of the classificational series promotional
tree. Thus, traditionally, if a job vacancy occurred in the
classification of "Project Estimator" (job no. 4007, an
"Overhead" classification), nonpromotional bidding for
that vacancy-limited to employees in the "Overhead" cate-
gory or classification series or "tree' -would be open to those
in the same classification (i.e., "Overhead" project estima-
tors desiring transfer to the particular vacancy). Similarly,
if a job vacancy occurred in the classification of "Under-
ground Project Estimator" (job no. 4010), nonpromotional
bidding for that vacancy-likewise limited to employees in
the "Underground" category class cation series or
"tree"-would be open to those (i.e., ` Underground" pro-
ject estimators) in that vacant job classification. On the
printed applicable classification series (i.e., "Estimating-
Clerical-Drafting" of "Distribution Engineering") promo-
tional tree (Resp. Exh. 5), one branch of the promotional
tree consists of ' Overhead Project Estimator" grade 29 (job
No. 4007); whereas another, separate, and distinct branch
is that of "Underground Project Estimator," grade 29 (job
no. 4010).25 Furthermore, Respondent's monthly seniority
24 These jobs, being "technical," are within the exclusive representation of
Local 1455.
25 We are here concerned directly with lateral transfers from "Overhead
Project Estimator," grade 29 (job no. 4007) to "Underground Project Estima-
tor," grade 29 (job no. 4010), or vice versa . Although the jobs of "Senior
[Overhead] Estimator," grade 24 (job no. 4014) and of "Senior Underground
Estimator," grade 24 (job no. 4018) are shown in the distribution engineering
promotional series tree ( Resp . Exh. 5) aspromotional to the respective forego-
ing (i .e., "Overhead" or "Underground") grade 29, project estimatorjobs, the
testimony of Local 1455 Business Manager-Financial Secretary Mattingly
establishes that as a result of arbitration around 1966 the two lower grade
(i.e., grade 24, senior estimator) jobs were permitted to be combined for
promotional purposes to either of the higher grade (i.e., grade 29, project
estimator) jobs. This, however, left unchanged the distinctly separate integri-
ty of the top level (i .e., grade 29, project estimator) jobs-"Overhead" vs.
"Underground"-for lateral bidding, transfer, or assignment in the event of
vacancy. (In this connection, the filling of a job "vacancy" is not to be
confused with temporary job "assignment"; the latter-i.e., temporary job
"assignment"-occurred from time to time to cope with sudden work surges
or transitory situations , quite regardless of whether the temporarily assigned
person was basically classified as and held a permanent job in "Overhead"
or "Underground.") Although, as stated, we are here directly concerned with
lists do not commingle the "Underground " with the "Over-
head" project estimators. Likewise the evidence establishes
that in reductions in force , effected according to union (i.e.,
Local) unit seniority , there is no consolidation of "Under-
ground" with "Overhead" project estimators . The same is
true for demotions.
It will be recalled that Respondent 's public utility opera-
tions spread over a number of States , with branches , instal-
lations, or "districts," in addition to Respondent's
headquarters on Gratiot in St . Louis. Respondent's
"Overhead" as well as "Underground" project estimators
have traditionally been centralized ; that is, assigned to and
working out of its Gratiot Street , St. Louis, headquarters 26
In mid-November 1969 Respondent decided to decentralize
its project estimators from its Gratiot Street headquarters to
various field or "works" installations or distribution "dis-
tricts."27 After negotiations with the Union , by late Decem-
ber (1969) it was agreed , without changing the existing
system of series classificational "trees" under the collective
agreement , which project estimators would be assigned to
the various districts , effective on January 1, 1970. (One such
assignment was McNerney to DesPeres District .) However,
no agreement was reached , and negotiations continued, re-
garding the method of filling nonpromotional job vacancies
in the classifications of (1) project estimator (overhead) and
(2) underground project estimator . Such a vacant , in the
job of an overhead project estimator (job no . 4007, in fact
occurred at Respondent 's DesPeres District with the retire-
ment of Overhead Project Estimator McNerney, scheduled
to take place on April 1, 1970. How to fill this vacancy (as
well as others in that category which might arise and also
related matters) had become and continued to be a matter
of lively debate between the Union and the Company, the
latter taking the position , at least in part because of the
recent decentralization of its project estimators , that bid-
ding for an "Overhead" vacancy should no longer be limit-
ed to its "Overhead" force but should be thrown open to its
"Underground" employees as well-a position with which
the Union strenuously disagreed-and that the classifica-
tional series be revised so as to combine the overhead pro-
ject estimator and the underground project estimator jobs
into a single job. Lengthy negotiations ensued in an effort
to resolve the controversy . In 14 bargaining sessions held in
the period from December 1969 or January 1970 to April 10,
1970, this particular matter was not definitively resolved.28
lateral transfers at the grade 29, project estimator level, it is obvious that if
such lateral transfers may be made-as Respondent contended they should
be made and as Respondent actually did make in the case of the McNerney
vacancy at DesPeres District , discussed infra-from a combined pool com-
prised of both the grade 29, overhead project estimators and the grade 29,
underground project estimators, it would reduce the chances of a grade 24,
senior estimator (overhead or underground) to move up promotionally into
a §rade 29, project estimator vacancy.
6 Prior to 1949, all of Respondent's project estimators worked out of its
headquarters (then on 12th Street) and served the entire St. Louis metropoli-
tan area. In 1949, that area was divided into 2 service areas, north and south.
In 1966, by collective agreement, the same area was redivided into 3 service
areas-north, south, and west-with a project estimator assigned to each of
those areas but still working out of Respondent 's headquarters (then on
Gratiot Street), and with the separate series classificational branches pre-
served for "Underground" as distinguished from "Overhead" project estima-
tors.
27 I.e., Berkeley, DesPeres, Geraldine, Mackenzie, Page, and Ray Districts.
Even prior thereto, in 1966, Underground Project Estimators Rekowski,
Marxkors, and Pfeiffer had been assigned or detailed away from head-
quarters or central district to local works stations, but this had been by
specific agreement with the Union and without affecting the underground
project estimators' separate seniority and separate position on the series
classificational "tree."
28 Another subject in issue between the parties, namely, wage rates of
UNION ELECTRIC CO. 837
In these circumstances , in mid-April 1970 , Respondent an-
nounced directly to its employees that the McNerney
Overhead Project Estimator vacancy at DesPeres was open
for bidding from those in the underground as well as in the
overhead classification and would be filled on the basis of
seniority in those two classifications as combined-charac-
terized in the testimony of Respondent 's personnel supervi-
sor and witness Carr as a "break with ... tradition ."29 There
is no evidence that at any time in its negotiations with the
Union , Respondent took the position that an impasse had
been reached and that it would therefore act on its own
unless the impasse were broken. Indeed , it is conceded by
Respondent 3 that at this time the subject was still under
active discussion and that no impasse had been reached in its
negotiations with the Union concerning this matter . Over the
Union 's objections , the overhead project estimator vacancy
in question was filled b7 Respondent-in the indicated
"break with ... tradition ' -through bidding by its employ-
ees in response to Respondent 's described direct invitation
to them.3
Although the parties continued negotiations through at
least mid-July 1970 , Respondent's Vice President for Indus-
trial Relations Stephens conceded on cross-examination
that so far as its DesPeres District or any other location is
concerned , or overall, no agreement has been reached as to
the method of filling vacancies among its project estimators.
In this situation , it is unnecessary to consider the merits
of the parties ' differing positions concerning the proper
method , under their collective agreements or otherwise, of
filling the McNerney or any future overhead or under-
ground nonpromotional project estimatorjob vacancy. The
only issue for consideration here is whether Respondent's
direct announcements to and polling of its employees in
mid-April 1970 , inviting their bids for the described job
vacancy at DesPeres District , was in violation of Section
8(a)(5) and ( 1) of the Act . In dealing with this issue, two
undisputed facts are at once apparent . The first is that at the
time Respondent made the announcements in question, di-
rectly to its employees, those employees were represented by
the Union as exclusive collective -bargaining representative.
The other is that Respondent 's announced method of filling
the job vacancy constituted a change from the previous
practice of adhering to distinct bidding by separate "trees"
for "Overhead" and for "Underground" project estimators.
It may be that , as Respondent claims, there was reason for
change in that system to reflect its decentralization of its
project estimators . It is not open to debate , however, that
throwing open the bidding for a job vacancy to a larger
group of applicants mathematically reduces the chances of
a formerly smaller group to obtain the job and may even
dilute the seniority of the smaller group .32 This was the very
matter which Respondent was in process of negotiating with
the Union . It is no answer for Respondent to urge that no
formal written collective agreement was technically in effect
covering this specific situation at the time this occurred,
since in the absence of specificiall applicable provision
Respondent 's announced method ofyfilling the job vacancy
senior estimators (who are below project estimators in Respondent 's hier-
archy), was submitted to arbitration , unresolved as of the date of the instant
hearing.
29 Tr. 386
30 Tr. 374 and 488. But cf ., In. 34, infra.
J1 The vacancy was filled by Overhead Project Estimator Gallagher (18th
on the seniority list) after declination by various underground project estima-
tors whom Respondent had polled in accordance with its April 15 announce-
ment, by combining the "Underground" seniority list with the "Overhead"
seniority list.
32 See In . 25, supra.
in question was novel, constituting a departure from or
innovation or change in the existing system, requiring nego-
tiation with the employees ' collective -bargaining represent-
ative .Fibreboard Paper Products Corp. v. N.L.R.I3. 379 U.S.
203, 209-14; Conley v . Gibson, 355- U.S. 41, 46 ; Hinson v.
N. L. R. B., 428 F.2d 133 , 137-39 (C.A. 8); Industrial Union of
Marine & Shipbuilding Workers, AFL-CIO v. N. L. R. B., 320
F.2d 615, 620 (C .A. 3), cert . denied sub nom. Bethlehem Steel
Co. v. N.L. R.B., 375 U . S. 984 ; Frontier Homes Corporation,
153 NLRB 1070, 1072-73 , enfd . as modified 371 F.2d 974,
979-981 (C.A. 8); The Crestline Company, 133 NLRB 256,
257. It is clear from the cited cases that absence of specifi-
cally applicable provision in, and even expiration of, a col-
lective agreement does not authorize unilateral changes in
its provisions defining the terms and conditions of employ-
ment since , until lawfully abrogated , modified , or supple-
mented , those terms and conditions continue.33 And,
inasmuch as the Union concededly remained the exclusive
collective -bargaining representative of Respondent's em-
ployees at the time Respondent made its described an-
nouncements to its employees , those announcements and
the subsequent polling of employees by Respondent-dur-
ing the process of active negotiations with the Union on the
very subject-constituted direct dealing by Respondent
with its individual emplo ees, in violation of Section 8(a)(5)
and (1) of the Act. Fibreboard Paper Products Corp. v. N.L.
R.B., 379 U.S. 203 , 209-14 ; N.L.R.B . v. Katz, 369 U . S. 736,
742-747; United Steelworkers of America, AFL-CIO v. N.L.
R.B. [Roanoke Iron & Bridge Works, Inc.], 390 F .2d 846, 851,
and cases cited (C.A.D.C.),, cert . denied 391 U.S. 904.34
33 To give an obvious example, an employer 's obligation to continue to pay
wages to his employees does not cease because the collective agreement is
silent on the point or has expired . (But cf . Hilton -Davis Chemical Company,
185 NLRB No. 58, that a contractual obligation to arbitrate does not survive
expiration of the contract.)
° While it is true , as Respondent contends in its posthearing brief, that an
employer is not obligated (any more than a union ) to bargain indefinitely in
an endless and fruitless marathon , the answer to this is to be found in
Respondent 's own concession at the hearing (Tr. 374 and 488) that at the time
of its direct announcements to and polling of its employees it had not arrived
at an impasse with the Union in those negotiations , which , indeed , continued,
and fruitfully so, for at least some eight meetings thereafter until mid-July
1970. In its proposal of July 13, 1970 (Resp . Exh. 12), according to
Respondent 's Personnel Supervisor Carr, Respondent for the first time rec-
ognized or acceded to basic principles for which the Union had been con-
tending, i.e., to keep separate the, overhead from the underground project
estimators in filling vacancies-constituting, in Carr's words, "a remarkable
change on our [i .e., the Company's] part from any prior proposal."
Notwithstanding the foregoing , however , Respondent now contends in its
posthearing brief (pp. 17 and 16) for the first time that "while the Company
never specifically asserted the existence of an impasse , objectively all neces-
sary elements were present for the law to recognize an impasse ," since "it was
apparent from the extremely slow progress made during the 14 meetings that
the parties were at a stalemate with respect to the matter of filling vacancies."
Such an interpretation simply does not accord with the facts established at
the hearing . Although it is true that , as Respondent claims, continuation of
negotiations is not necessarily inconsistent with the existence of impasse, it
is also true that continuation of negotiations does not establish impasse. A
party who, as here, engaged in uninterrupted negotiations and then, after
acting unilaterally , claims "impasse ," has the laboring oar of establishing the
claimed impasse . I find that Respondent has failed to establish by substantial
credible evidence on the record, as required, that the parties had arrived at
an impasse in their negotiations at the time Respondent filled the McNerney
vacancy at DesPeres in the way that it did; I find , rather, that the record
establishes the contrary-namely, that no impasse had been reached at that
time . Furthermore , Respondent 's failure clearly to raise the alleged issue of
"impasse" prior to its posthearing brief precluded what would otherwise have
been orderly and proper litigation of that issue at the hearing ; under these
circumstances , it would in any event be unfair to permit the issue to be
tendered for the first time subsequent to the hearing . Cf. Racine Die Casting
Co., Inc., 192 NLRB No. 73.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Arbitrability of Questions Presented the following:
Mention has been made of the existence of grievance-
arbitration provisions in the collective agreements. Whether
or not such grievance-arbitration procedures were here
available to the parties,35 and, if they were, whether they
could have precedential force governing the filling of future
job vacancies,36 the facts are that no such defense, ob]'ec-
tion, or application in arrest or abatement of this proceeding
has here been interposed, raised, or made, by answer or
otherwise, and that the matters dealt with herein have been
fully litigated in this proceeding by able counsel. The
Board's recent Collyer decision 3 dismissing (while at the
same time retaining continuing jurisdiction over) a com-
plaint proceeding because of the supposed availability of
grievance-arbitration procedures under the parties' collec-
tive agreement, indicates that in that case the defense, objec-
tion, or contention of arbitrability was expressly raised. That
is not the situation here. Where neither of the parties has
interposed such a defense or contention, by answer or other-
wise, and has raised no such issue (or has raised it without
credibility or seriousness), but has instead elected to litigate
the matter in full on the merits, the Trial Examiner does not
regard it as his obligation, in this statutory adversary pro-
ceeding, sua sponte to raise the issue and to assume or devel-
op facts in camera after the hearing without benefit of or
opportunity for full adversary factual exploration and argu-
ment by the parties and to dismiss or abate the proceeding
on the Trial Examiner's own motion. For the reasons indic-
ated, the Trial Examiner does not regard Collyer as being to
the contrary .38
It is accordingly found and held that by its mid-April,
1970 direct announcements to and polling of its employees,
inviting job bidding by them for the DesPeres overhead
project estimator job vacancy under the circumstances de-
scribed, Respondent violated Section 8(a)(5) and (1) of the
Act.39
Upon the foregoing findings and the entire record, I state
35 It could be urged that, in view of Hilton-Davis Chemical Company, 185
NLRB No. 58, arbitration was no longer available in the matters involving
Local 1439 (i.e., the Leveling-Boatwright suspensions and the alleged unilat-
eral change in grievance procedures) because of the expiration of the Local
1439 contract (but consider in this connection Respondent 's expressed will-
ingness to continue the arbitration procedures established under the expired
contract , during the contractual hiatus period , as set forth in its letter of
November 21, 1969, to the Union (G.C. Exh . 5)-seemingly not responded
to, however , by the Union-and Taft Broadcasting Co., 185 NLRB No. 68,
enfd . 441 F.2d 1382 [C.A. 8]). However , this argument would not apply to
the issue involving Local 1455 (i.e., the postdecentralization method of filling
project estimator vacancies ) since that contract had not expired . Complicat-
ing the foregoing is the indication (Tr. at 88-89) that, in consequence of an
employees' walkout on November 3, 1969 (Monday), following the described
suspensions , the Company agreed to arbitrate the suspensions . There is,
however, no indication of any steps to proceed with such an arbitration.
36 That arbitration would be therapeutic rather than preemptive and would
lack controlling precedential effect ; see Carey v. Westinghouse Electric Corp.,
375 U.S. 261, 272; N.L.R.B. v. Wagner Iron Works, 220 F.2d 126, 137 (C.A.
7), cert. denied 350 U.S. 981; N.L.R.B. v. UA W, Local 291, 194 F.2d 698, 702
(C.A. 7). Cf. Office & Professional Employees, Local 425 v. N. L. R. B., 419 F.2d
314, 317-320 (C.A.D.C.), upholding the jurisdiction of the Board to find an
8(a)(5) violation where the employer asserts a unilateral right under a con-
tract containing an arbitration provision.
37 Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB No.
150.
38 The same is true for Jos. Schlitz Brewing Company, 175 NLRB No. 23,
relied on and quoted by the Board in Collyer, to the effect that Respondent
there had been "urg[ing]" the Union to resolve the matter through the con-
tractually established arbitration route.
39 Respondent 's motion, on which decision was reserved at the hearing, to
dismiss this allegation (i.e., paragraph 8B) of the complaint is hereby denied.
CONCLUSIONS OF LAW
A. At all times here material, Respondent Union Electric
Company has been and is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
B. At all times here material, International Brotherhood
of Electrical Workers, Local 1439, AFL-CIO, and Local
1455, International Brotherhood of Electrical Workers,
AFL-CIO, have each been and are each a labor organiza-
tion within the meaning of Section 2(5) of the Act.
C. Assertion of jurisdiction herein is proper.
D. By its suspension from its employment of its employ-
ees John R. Leveling and Duane ( Blaine") S. Boatwright,
on October 30, 1969, under the circumstances set forth and
found in section II B, supra, of this Decision, Respondent
violated Section 8(a)(1) of the Act.
E. By its direct dealing with its employees in the matter
of filling the vacancy in the overhead project estimator job
at its DesPeres District iri April 1970, under the circum-
stances set forth and found in section II D, supra, of this
Decision, Respondent violated Section 8(a)(5) and (1) of the
Act.
F. It has not been established by substantial credible
evidence that Respondent violated Section 8(a)(5) of (1) of
the Act on or about November 21, 1969, as alleged in the
complaint, through unilaterally changing established proce-
dures concerning time limitations for handling or pro-
cessing grievances.
G. The unfair labor practices referred to in Conclusions
of Law D and E, supra, and each of them, affect commerce
within the meaning of Section 2(6) and (7) of the Act.
V. REMEDY
Having found and concluded that Respondent has en-
gaged in unfair labor practices, it will be recommended that
it be required to cease and desist therefrom and to take
certain affirmative actions designed to effectuate the poli-
cies of the Act. With regard to the suspension of Leveling
and Boatwright on October 30, 1969, it will be recom-
mended that Respondent desist from repetition of such con-
duct, delete said suspensions from the personnel records of
said employees, and make the employees whole for any loss
of earnings suffered by reason of said suspensions, less their
net earnings if any during such period, backpay and interest
to be computed in the manner prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., Inc., 138 NLRB 716. In implementation of
these backpay requirements, Respondent should preserve
and make available necessary records for computation of
such backpay. With regard to Respondent' s direct dealing
.with its employees in the filling of the McNerney overhead
project estimator vacancy in its DesPeres District, it will be
recommended that Respondent desist from a repetition of
such conduct, and that it bargain with the Union (Local
1455) regarding the appropriate manner of filling that va-
cancy and effectuate any agreement reached in that regard.
Finally, it will be recommended that Respondent be re-
quired to post the usual notice concerning the foregoing.40
40 Respondent urges that in any event no remedy is required or appropriate
herein because , as to the Leveling and Boatwright suspensions , the matter is
trifling and of no significance; and, as to its direct dealing with its employees
in filling the DesPeres District vacancy, in July 1970 it reached agreement
with the Union regarding the manner in which such vacancies were thence-
UNION ELECTRIC CO. 839
Upon the basis of the foregoing findings of fact and con-
clusions of law and the entire record in this proceeding, and
pursuant to Section 10(cI of the Act, I hereby issue the
following recommended: 1
ORDER
It is hereby ordered that Union Electric Company, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Suspending from employment or otherwise disci-
plining or retaliating against, or threatening so to do, any
employee for engaging or proposing or attempting to engage
in concerted activity protected under the National Labor
Relations Act, as amended.
(b) Dealing directly or negotiating with any employee or
employees, in violation of the National Labor Relations
Act, as amended, concerning any term or condition of em-
ployment, while such employee or employees are repre-
sented for that purpose by any duly designated exclusive
bargaining representative of such employees.
(c) Placing into effect, changing, modifying, amplifying,
or varying any term or condition of employment of its em-
ployees without bargaining, as and to the extent required by
the National Labor Relations Act, as amended, with said
employees' duly designated exclusive bargaining represent-
ative.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their right
to self-organization; to form, join, or assist any labor organ-
ization; to bargain collectively through representatives of
their own choosing; to engage in concerted activity for the
purposes of collective bargaining or other mutual aid or
protection; or to refrain from any and all such activities.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act:
(a) Make its employees John R. Leveling and Duane S.
Boatwright whole for any loss of pay suffered in conse-
quence of their suspension from employment on October
30, 1969, in the manner set forth in the Remedy" portion
of the Decision of which this Order forms a part.
(b) Expunge from its records all notations or entries indic-
ating that said employees were suspended from employ-
ment on October 30, 1969, for any fault, misconduct, or
im ropriety.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
determine the amounts of backpay due and the extent of
compliance with the terms of this recommended Order.
(d) Upon request, bargain collectively with Local 1455,
International Brotherhood of Electrical Workers, AFL-
CIO, as the exclusive bargaining representative of the em-
forth to be filled. As to the Leveling and Boatwright suspensions, remedy
thereof cannot be regarded as trifling or insubstantial without riding
roughshod over economic rights of the employees involved; furthermore, the
necessity for avoiding repetition of future violation of the same kind is also
involved. Indeed, we have been admonished that even purely "technical"
violations are under the statute required to be remedied. International Union,
UAW [Omni Spectra, Inc.] v. N.L.R.B., 427 F.2d 1330, 1332-33 (C.A. 6);
United Steelworkers of America, AFL-CIO v. N.L.R.B., 386 F.2d 981, 983
ployees in the appropriate bargaining unit, concerning the
method and manner in which the job vacancy in the job
formerly held by (overhead) project estimator McNerney at
Respondent's DesPeres District should be filled; and em-
body in a signed agreement any understanding reached.
(e)Post at its headquarters location at Gratiot in St. Louis
and at its field installations, including its works installations
and districts, copies of the attached notice marked "Appen-
dix."42 Copies of said notice, on forms provided by the
Board's Regional Director for Region 14, after being duly
signed by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced,
or covered by any other material.
(f) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps Respon-
dent has taken to comply herewith 43
IT IS HEREBY FURTHER ORDERED, that, as to all alleged viola-
tions set forth in the complaint herein dated November 20,
1970 and not herein found, said complaint be, and the same
is, hereby dismissed.
(C.A.D.C .); International Woodworkers of America, Local 3-10 [Long Lake
Lumber Co.] v. N.L.R.B., 380 F.2d 628, 630, 631 (C.A.D.C.); Eichleay Corp.
v. N.L.R.B., 206 F.2d 799, 805 (C-A. 3). Here, as indicated, the violations in
question may not fairly be regarded as merely "technical." Insofar as the
violation involving the filling of the DesPeres job vacancy is concerned,
certainly that is a substantial matter, not only as to thejob itself-a top level
job-but also to prevent future repetition. Prevention of future repetition is
not only of importance to the Charging Parties and the employees, but is also
squarely within the public responsibilities which the statute requires the
Board to administer. Since, as here held, the manner of filling that vacancy
was in violation of the Act, it requires remedy. See cases cited supra; Act, Sec.
10(c); Administrative Procedure Act, Sec. 8(b), 5 U.S.C. Sec. 557(B). Respon-
dent further urges that no remedy is required in the matter of its filling of
the McNerney vacancy at DesPeres, since the job would in any event have
been awarded to the same man (i.e., Gallagher, an overhead project estima-
tor). It is difficult, however, to draw this argument into sharp focus in the
conceded absence of any properly bargained system for filling that and
comparable vacancies; lacking such a frame of reference, to conclude that
the individual who was awarded the job would have gotten the job anyway,
involves forbidden conjecture on various matters, including what the parties'
agreed system would have been if they had agreed on it prior to Respondent's
unilateral filling of the vacancy. If, as Respondent suggests, subsequent to
the events here complained of the parties reached agreement on the manner
in which future project estimator jobs are to be filled, and if, as General
Counsel suggests, the Union does not now challenge Gallagher's hold on
McNerney's former project estimator job at DesPeres, the parties need mere-
ly formally execute an agreement to that effect and carry it out.
41 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
42 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the Notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a'Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
43 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read: "Notify
said Regional Director, in writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith."
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
Exh. Date (s) From To Subject Disposition Remarks
No.
Resp . 7-69 Reap; Union ; Union re- Declined by During &
15 (refers Union Resp . quest for Reap . as un- immediate-
(3 let- to arbitra- timely under ly after
ters ) 6-69) tion of 90-day con- 1967-69
Carter tract provi- contract
discharge sion for arbi- term
tration
GC 8 9-15- Reap . Union Union re- Declined by During
69 quest for Reap. as un- hiatus
3d step timely under between
meeting contract pro- 1967-69,
re griev- vision for 3d & 1970-
ances of step (Union 71 con-
Miramonti requests , 1 tracts
(10-4-67), yr. & 11 mos.,
Luley (4- 4 yrs. & 4
24-65), & mos., & 3
Kurtz (7- yrs. & 1 mo.
29-66 ) later)
GC 7 10-1- Reap . Union Union Declined by During
69 request Reap . as un- hiatus
for 3d timely under between
step contract pro- 1967-69
meeting vision for 3d & 1970-
re "Griev step (Union 71 con-
ance #D- request, 1 yr. tracts
43" later)
Reap . 5-22- Reap. Union Union re- Declined by During
13 70 quest for Reap. as un- 1970-
arbitra- timely under 71 con-
tion of 90-day con- tract
Haney tract pro- term
grievance vision for
arbitration
(Union re-
quest was
5-1/2 mos.
later)
Reap. 6-23- Reap. Union Union re- Declined by During
14 70 quest for Resp. as un- 1970-
arbitra- timely under 71 con-
tion re 90-day con- tract
suspen- tract pro- term
sion of 7 vision for
DesPeres arbitration
mechanic (Union re-
leaders quest was
11 mos.
later)