Western Electric, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1972

199 N.L.R.B. 344 (N.L.R.B. 1972)

344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Western Electric, Inc. and International Brotherhood
of Electrical Workers , Local Union No. 1974, AFL-
CIO. Case 17-CA-4233
September 28, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On January 14, 1972, Administrative Law
Judge I A. Norman Somers issued the attached Deci-
sion in this proceeding. Thereafter, General Counsel
and Charging Party filed exceptions and supporting
briefs, and Respondent filed a brief and an answering
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
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his rec-
ommended Order.
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 and hereby orders that
the complaint herein be, and it hereby is, dismissed;
provided, however, that:
Jurisdiction of this proceeding is hereby retained
for the limited purposes stated in the Remedy section
of the attached Decision.
MEMBER FANNING , dissenting:
For the reasons set forth in my dissent in Collyer
Insulated Wire, A Gulf and Western Systems Co., 192
NLRB No. 150, I think the Board should not delegate
its authority to the arbitrator . Therefore , I would pro-
ceed to the merits of the case.
' The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
that of Section 8(a)(5) and (1) of the Act. The General
Counsel asserts that the Company at its Omaha Works had,
without prior notice to the Union, split up a production
division termed the "400 manager's organization" into two
smaller ones , termed the "400" and the "100" organizations,
and that this altered the collective-bargaining agreement
and changed established working conditions of the employ-
ees. The Company's defense , in essence , is that its actions
were economically motivated and in conformity with the
contract, so that the case at most presents a contract dispute
for referral to the contract's grievance-arbitration proce-
dures.
The parties at various stages of the hearing presented
oral argument on the issues and have also filed briefs, all of
which have been duly considered. On the entire record and
my observation of the witnesses, I hereby make the follow-
ing:
FINDINGS OF FACT
I JURISDICTIONAL FACTS
Respondent, a New York corporation, makes communi-
cations equipment, such as bacle and telephone apparatus. It
has numerous plants or facilities throughout the country, in-
cluding one in Omaha, known as the Omaha Works,
where it receives materials and ships products across state
lines in amounts exceeding $50,000 a year in each category.
As is not disputed, Respondent is engaged in commerce
within the meaning of the Act.
The Union is a labor organization within the meaning
of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Issue
The alleged violation of Section 8(a)(5) and (1) of the
Act stems from the Company's action, unilaterally taken as
claimed, in splitting off from a production division, or
"Manager's organization," termed the "400," certain opera-
tions , which it established as another manager's organiza-
tion, termed the "100," thereby making two such
organizations, each smaller than the 400 as it was before.
Under article 27 of the collective-bargaining contract, titled
"Movement of Personnel" (here reproduced in pertinent
part and attached as Appendix A), the outermost range of
jobs (or "comdor of movement") available to an employee
for upgrading (i.e., promotion to a higher grade), lateral
transfer (at the same grade to another kind of work), or
demotion (for bumping if "surplused" on his own job), are
jobs that are within the employee's manager's organization.'
The General Counsel claims that the Company by its
unilateral action in thus splitting up the 400 and narrowing
the scope of their job mobility altered provisions of the
A. NORMAN SOMERS, Trial Examiner: This case, with all
parties represented, was tried before me on April 8, 9, and
22, 1971, in Omaha, Nebraska, on the complaint issued by
the General Counsel on February 1, 1971, on a charge filed
by the Union on March 12, 1970. The violation alleged is
' For promotion and transfer at grades 35 and higher , the job must be in
the employee 's manager's organization, and at grades 34 or lower , it must be
in the employee's assistant manager's organization Art. 27, par 2. 1(c). Dis-
placement, or "bumping" rights, of an employee who is surplused on his own
job are limited , whatever the grade, to jobs in the surplused employee's own
manager's organization . Id, par. 3.11(b).
199 NLRB No. 45
WESTERN ELECTRIC, INC.
contract and changed established working conditions. The
Union claims this action "diluted" or "diminished" the em-
ployees' preexisting seniority rights. It claims that whether
or not the Company has the right by such a split to restruc-
ture its supervisory setup, it does not thereby have the right
during the life of the contract unilaterally to reduce the
employees' job mobility to the shrunken dimensions of the
two manager's organizations created by the split.
The Company, to the contrary, claims that it could do just
that under article 27, the Movement of Personnel clause,
taken in connection with article 2, the management rights
clause .2 It claims , however, that the breadth of these man-
agement rights , in all their starkness , are not reached here
because of its own self-restraint in their exercise. The Com-
pany asserts it did give the Union advance notice of the split
(though it had no obligation to do so), and even if it failed
to do so, no harm was done, since before any employee
sustained any detriment by the limitations of job movement
created by the split, it bargained in good faith with the
Union concerning its effects under article 27. It claims it
reaches the ultimate in the "management rights" it thus
possesses under the contract only if it were to be found that
it did not thus restrain itself . That is, even if it did not give
prior notice, as it claims it did, and even if its negotiations
concerning the effects of the split on the employees fall
short of meeting good-faith requirements, it is still immune
under the Act as long as the actual effects of the limits thus
placed on the employees under article 27 are " minimal,"
which it claims they were here, whatever their potential
effects (which it in any event claims were likewise "mini-
mal"). Respondent accordingly claims that the case at most
involves a dispute over the interpretation of the contract,
which calls for relegating the parties to the grievance-arbi-
tration clauses of the contract.
B. Background: The Practice Preceding
the Split of the 400
The Company opened its Omaha Works in April
1956.3 The Union was certified in March 1957 (for a bargain-
ing unit of all production and maintenance employees at that
Omaha facility). The parties have had continuous contrac-
tual relations since May 1957, all contracts having had their
effective starting dates in May of 1957, 1960, 1963, 1966,
and 1969 (this last being the one during which the split of
the 400 was made and which was current at the time of the
hearing). Some divisions , or manager 's organizations, are
engaged in other than unit work, but the supervisory struc-
ture, or "chain of command," in all manager's organiza-
tions, consists , in descending line of authority, of (a)
assistant managers , who head up the "subbranches," or
"Assistant Manager's organizations ," (supra, fn. 1) within
the manager's organization ; (b) the heads of the depart-
ments within the assistant manager's organizations ; and (c)
the section chiefs under the department heads.
2 It reads as follows.
ARTICLE 2-MANAGEMENT OF THE BUSINESS: The right to
manage the Plant and to direct the work forces and operations of the
Plant, subject to the limitation of this Agreement is exclusively vested
in, and retained , by the Company.
3 All references to the Company or Respondent are to the Omaha Works
plant or facility, unless otherwise indicated
345
In May 1957, the only manager's organization com-
prised of employees doing unit work was the 200. The entire
working force of the Omaha facility, then located at the
Company's "pilot plant," consisted of a few hundred em-
ployees, performing simple operations at the lowest grades
(supra, fn. 1) of 32, 33, 34 (as distinguished from the addi-
tional higher grades, from 35 and above, ibid., which came
in the wake of later expansion of the Company's opera-
tions). The unit work at this stage consisted of crossbar
work, which, stated most generally, is work done on cables
and wires that have already been made.
Article 27 of the contract has existed in substantially its
present form from the time of this first contract in 1957.
That clause, as stated (supra, fn. 1), limits the "Movement
of Personnel" to jobs within the manager's organization for
grades 35 and higher and within an assistant manager's
organization for grades 34 and lower. (Id., par. 2.1(c).) That
is to say, although under paragraph 1.2, seniority is given
"most weight" when two or more employees "under consid-
eration" are equally qualified (under par. 1.3) for the post,
nevertheless the post must be in the manager' s organization
(at grades 35 and higher) or assistant manager's organiza-
tion (at grades 34 or lower) if the employee is to be "under
consideration" at all for it. Id at par. 2.1(c). And in the
event of a force reduction, the surplused employee's bump-
ing rights are limited to such jobs within the manager's
organization (whatever the grade, equal to or lower than his)
for which he is deemed qualified by previous experience. Id.
at par. 3.11(b).
The Movement of Personnel clause, as it has existed from
the outset, was included in this first contract of 1957 over the
Union's objection, in which it had urged, unsuccessfully, for
movement of personnel based on seniority (and other requi-
site qualifications) on a plantwide basis across organizational
lines . The Umon thus realized that the Company intended to
create more than the one manager's organization then -ex-
isting.a
By January 1, 1959, with the expansion of operations, the
Company moved from the "pilot plant" to the "permanent
plant" (supra, fn. 4). The 200 was by then engaged also in
actually making wires and cables. This is a more highly
skilled operation than crossbar work, which, as stated, is
work done on the wires and cables after they are made. The
Company then removed the crossbar work from the 200 and
established it as a new manager's organization, the 400.
Apparently, this split was not preceded by prior notice to
the Union. And after the split was made, the Union, al-
though it has the right, under paragraph 1.4 of article 27, to
° Confirming this were two witnesses who had participated in the 1957
negotiations on behalf of the Union. Howard Iske, who is now part of
management as a section chief, had in 1957 been the Union' s president. He
testified "both sides knew that when the permanent plant was occupied, that
there would be more Managers, or at least assistant managers ." Frank R.
Vondra, who is now an IBEW International representative , had, while an
employee in the Omaha Works, participated on behalf of the Union in all
the contract negotiations from 1957 on, including the one in 1969, when he
was then the president . He was its president also in November 1969, when
the Company split the 400. In describing the meetings between Union and
Company about that split after it was made (infra, In 10), Vondra admitted
that the Union had known from the beginning what art. 27 meant Vondra
also admitted that in 1960, 1963, and 1966, the Union again asked for
plantwide job mobility and was again unsuccessful.
346 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
object to any move made by the Company under article 27,
raised no such objection in this instances
From then on until November 15, 1969, these were the
only two manager's organizations , each in their own sep-
arate buildings, the "Cable" and the "Crossbar." Such splits
as the Company made thereafter were of assistant
manager's organizations within these two manager' s organi-
zations . The Union's witnesses testified that in each in-
stance the Company gave it "prior" notice of these splits.6
The Union filed no prior objections to these splits before
their effective dates. After these splits, those in which the
Union raised objections under article 27 (supra, fn. 5) and
which involved extended negotiations , were two of the four
splits made in subbranches-or assistant manager's organi-
zations , within the 400-namely, one made on December 1,
1960, and the other on March 1, 1966 7 While these griev-
ances based on the effects of the splits were pending, the
Company, by arrangement with the Union, maintained a
single corridor of movement for the employees (at grades
32, 33, and 34, supra, fn. 1) in the two subbranches (the 420
and the 450), who had had similar work experience. The
single corridor of movement was applied for the two sub-
branches in combination as if there had been no split, even
though, for the Company's supervisory purposes, each sub-
branch was headed by a separate assistant manager. When
the 420-450 grievances were settled, the Company, by ar-
rangement with the Union on November 11, 1966, contin-
ued the single corridor for these employees that had been
hired before November 11, 1966, for still 3 more years until
November 11, 1969. The arrangement is embodied in what
is termed the "Interpretive Contract Guide. "8 The guide
states that after that cutoff date of November 11, 1969, the
employees involved in the 420-450 dispute "shall no longer
be considered for single corridor treatment" and "[h]ence-
forth all movement of personnel will be in accordance with
the contract."
C. The 400-100 Split and the Ensuing
Meetings Concerning It
1. Absence of prior notification
The split on November 15, 1969, of an entire manager's
5 Under par. 1.4 objections to a move under art. 27 (if filed within 10 days)
may be processed under the grievance and arbitration procedures of, re-
spectively, art 5, 9 and 10 of the contract. The pertinent portion of art. 10,
the arbitration clause appears infra, fn. 18
6 J. O. Bosworth , manager of the labor relations division , and the
Company's designated "Bargaining Agent for the Omaha Works," testified
it was but a "courtesy" extended to the Union about the same time that the
Company announced the splits to the supervisors of the assistant manager's
organizations there involved.
The four splits of assistant manager's organizations in the 400 occurred
on April 15, 1959, December 1, 1960, March 1, 1966, and September 1, 1969
After these splits, no objections were made under art. 27 in respect to the
earliest one of April 15, 1959 The fourth one, occurring September 1, 1969,
was followed by an objection involving one or two employees, which was
immediately settled , and did not entail the extended negotiations in respect
to the effects under art. 27 of the second and third such splits , those made
on December 1, 1960, and March 1, 1966, discussed in the text.
8 The "Interpretive Contract Guide" (which is attached to the contract of
1969), covers all 40 articles of the contract. At the hearing, the parties agreed
that the guide covering art. 27 concerns the specific situation there dealt with
and neither controls nor is a binding precedent in respect to future situations.
However , insofar as a future situation may have elements in common with
those embodied in the guide, they may as the parties also agree , be referred
to for whatever bearing they may have on the parties' course of practice.
organization, the first one in the nearly 11 years since the
400 was established, was a jolting one to the Union in view
of its massiveness (reducing the size of the 400 from about
4,000 to a little under 2,500) and its suddenness , since the
Union had had no inkling of any such thing even being
under consideration.9 Officials of the Union testified the
Union learned of the split near Thanksgiving Day (or about
November 25), when a union steward mentioned it to Mi-
chael Quinlan, then the Union's executive board chairman.
Quinlan (who is now the Union's president) testified he
"nosed around" among some section chiefs, who confirmed
it, and he then relayed this to Vondra, then the Union's
president (supra, fn. 4). Vondra testified that he was sur-
prised because he had discussed union matters with Bos-
worth, the Company' s "Bargaining Agent" (supra, fn. 6), as
recently as November 21, who had said nothing about it.
Vondra testified he then called Bosworth, who confirmed
the split had been made. Vondra said he was "highly dis-
turbed" by it, and the two then arranged for a meeting of
the parties on December 1, to discuss the matter.1°
Bosworth, on the other hand, testified that the arrange-
ment for the first meeting was initiated by a call he made
to the Union's office the morning of Friday, November 14,
in which he informed Vondra of the split. As earlier stated,
the Company deemed itself under no obligation to give such
prior notice and, as Bosworth testified (supra, fn. 6), the
notices given during these earlier mentioned splits (in the
subbranches) were a "courtesy" extended to the Union
about the time that the Company announced them to the
respective supervisory staffs.
The weight of the evidence supports the testimony of
Vondra.... not extend the Union even that "courtesy."
Bosworth's claim that he did so is undermined by the affida-
vit he filed on April 8, 1970, before a Board agent, after the
Union filed its charge. He then stated that on November 15
(which at the hearing he corrected to November 14, since
the 15th was on a Saturday, a nonworking day), the Compa-
ny "announced" the split (which, at the hearing, he ex-
plained meant an "announce[ment]" in writing to the
supervisory staff). The only reference to the Union was the
statement that "union members were informed of the
change on November 15, 1969." The affidavit makes no
reference to any communication to gither Vondra or any
other officials of the split."
9 Bosworth (supra, fn 6) testified the Company had long been considering
the supervisory level at which to handle a continuing increase in the quantity
of the work orders and the size of the working force of the 400 . Though this
was already under consideration during the contract negotiations in May
1969, Bosworth admittedly said nothing about it to the Union during these
negotiations and, as later appears, when he was asked during the negotiations
whether the Company contemplated a change, the answer though not explicit
conveyed the negative. Bosworth testified that by September 1969 the split
of the 400 was definitely in contemplation and that the final decision to make
the split was reached about a week before its effective date , i.e., about a week
before November 15, 1969, and about the time of the expiration of the
lengthy "single corridor" arrangement concerned with the earlier split, previ-
ously described , of two assistant manager's organizations , the 420 and 450.
10 There were five meetings in all Three were held on December 1 and 8,
1969, and February 18, 1970 (before the Union filed its charge) Two later
ones were held on November 19 and December 3, 1970 (before the complaint
issued).
11 On redirect examination 2 weeks later (the hearing having been post-
poned because of other commitments of various counsel), Bosworth attrib-
uted this omission to the fact that the Board agent had not asked him whether
he informed Vondra or other union officials of the split . This was a singular
WESTERN ELECTRIC, INC. 347
Bosworth also testified that in that same talk he
claimed he had with Vondra the morning of the 14th, he
informed him that the split was only "administrative" ( i.e.,
for ordering materials, scheduling operations, and making
products) but that its "implementation" on the employees
under article 27 was being suspended for 3 months. Vondra
testified he had not been informed of such a distinction and
that when the subsequent meetings began, although he and
the union officials knew of no instances in which any em-
ployee had yet concretely felt the impact of article 27, there
was nothing in what Bosworth told him which indicated
that the split was other than in effect for all purposes.
Respondent's own minutes of that first meeting, held De-
cember 1, as well as of the second one, held December 8
(supra, fn. 10), show that the suspension of implementation
or a "grandfathering" of the employees was a proposal by
the Company, and not something which it had already insti-
tuted the same time as the split. Bosworth testified, however,
as he indeed told the Union at these meetings, that the
operations split off from the 400 had a different "experience
factor" from the operations retained in the 400, so that, even
if each manager's organization had a separate corridor of
movement, the actual impact, or specific consequences, on
the employees would be "minimal." Indeed, by the end of
these 3 months, i.e., on February 18, 1970, the Union could
point to but one instance in which an employee had during
these 3 months been deprived of a promotion he would
otherwise have gotten but for the fact that the job was
outside his manager's organization. That lone instance in-
volved R. I. Beardsley, an employee in the 400, who on
February 9, 1970, was bypassed on a job in the 100 in favor
of an employee in the 100 over whom he had more seniority
and at least equal qualifications. The Company a few days
before the hearing finally sustained Beardsley's grievance,
and at the hearing attributed the bypassing of Beardsley
within those 3 months to an "inadvertence." This last is
found to be an afterthought; the proposal for a 3 months'
suspension had been rejected by the Union, and the bypass-
ing of Beardsley is found to have been the result of the 3
months' suspension not being then regarded as in effect.12
self-imputation of innocence on the part of one of Bosworth 's responsibility
and knowledge in the field . His affidavit dealt with the Union's charge, which
abounds in the accusation that the Company acted "unilaterally" in making
the split The statement in the affidavit that "union members were informed"
of the split the day the Company "announced " it to the supervisors was thus
intended as the Company 's maximum means of having the information of
the split reach the Union.
i2 The job for which Beardsley had been bypassed on February 9, 1970,
was a grade 36 crane operator's job in the 100 It went to one O 'Donnell, an
employee in the 100 , over whom Beardsley had more seniority and at least
equal qualifications (Beardsley having had 5 years ' experience in operating
a crane and O 'Donnell, so far as appears, none) Thus, under par. 12 of art
27, the job would have gone to Beardsley , except that he was barred from
it under par. 2 1(c), which requires that to be upgraded to a job at grade 35
or higher, the job must be in an employee 's manager 's organization Supra,
In I By February 18, 1970, the grievance on behalf of Beardsley (which had
been filed February 9, 1970 , the day of the bypassing), had gone through four
of the five steps prescribed by the contract. These four steps were at all four
supervisory levels of the 100 from the section chief up to James Dunn, the
manager of the 100 . In each instance the grievance was rejected under par.
2.1(c). The fifth , or final step , before Bosworth , as the Company 's "Bargain-
mg Agent," reached him in writing on March 3, 1970. Later meetings of the
parties, held November 19 and December 3, 1970 (supra, In 10), show Bos-
worth to have been fully aware of that grievance and to have offered to
"settle" it only if the Union relented on three alternative deman&s later
As appears from the meetings later discussed, the Union
insisted that the employees be grandfathered from the ef-
fects of the split under article 27 for the duration of the
contract and rejected the 3-month moratorium as proposed
by Bosworth. Further, the Company, after the first 3 months
had passed, was asserting that during the first 3 months it
had suspended putting article 27 in force on the employees
and that it was in full effect on the employees from then on.
2. The meetings
The split in an entire manager's organization, the first,
as stated, in the nearly 11 years since the 400 was estab-
lished, with not a word concerning it of the kind that had
been given it when there had been splits in merely assistant
manager's organizations, evoked deep anxiety, which the
Union voiced at that first meeting, concerning what was
now in store for the employees. Bosworth told the Union
that the effects would be "minimal" because the operations
transferred from the 400 to the 100 had different "expe-
rience factors" from those retained in the 400. See infra, fn.
17. The Union was not inclined to accept Bosworth 's fore-
cast on faith and inquired about what was in store for older
employees in the event of a reduction in force (since their
bumping rights, based on jobs in which they had had prior
experience, were limited to those in their own manager's
organizations, supra, fn. 1). Bosworth stated that article 27
would be applied against them "as it reads," but repeated
the effects would be "minimal." The Union then stated that
if the effects would indeed be minimal, there should be no
objection to the Company's grandfathering the employees
for the duration of the contract. Bosworth rejected this un-
qualifiedly. This anomaly evoked from the Union the com-
ment, as appears in the Company's minutes of the first
described, which included a demand that all the employees should be grand-
fathered from the effects of the split under art 27 for the duration of the
contract instead of the shorter period proposed by the Company A few days
before the hearing, the Company finally upheld Beardsley's grievance, and
at the hearing attributed the bypassing of Beardsley during those first 3
months to the fact that the placement list, which omitted Beardsley 's name,
had been issued some time before the end of these 3 months. It took the
Company the 14 months up to a few days before the hearing to conclude that
this was an "inadvertence" despite the fact that at all four supervisory levels
the grievance had been rejected on the ground that Beardsley was barred
from that job under par. 2.1(c).
At the hearing Respondent added that the bypassing of Beardsley had
been "inadvertent" for the additional or alternative reason that Dunn, the
manager of the 100, had thought Beardsley 's seniority over O'Donnell to
have been overcome by the fact that Beardsley was not as qualified for the
job regardless of Beardsley 's 5 years' experience and O'Donnell's apparent
absence of any experience as a crane operator Dunn, in his memorandum
on February 18, 1970 , rejecting Beardsley 's grievance , stated " the job vacan-
cy was filled with the qualified employee [i.e., O'Donnell ] in accordance with
paragraph 2 1(c)." (Emphasis supplied ) In his testimony , Dunn, after admit-
ting vagueness of recollection stated that by the use of the word "the" he
meant he had regarded O'Donnell "much more qualified" than Beardsley at
that job , and that he had compared the two men But if that had been so then
Beardsley would have been "under consideration " with O 'Donnell for that
job within the meaning of par. 12 and the rejection of the grievance would
have had to be on the ground that he was not as qualified as O'Donnell within
the meaning of pars . 1.2 and 13 Yet he rejected the grievance on the ground
that he was barred from that job under par. 2 1(c).
When the grievance was finally sustained , at the fifth step , the Company
offered Beardsley the job in the 100 on which he had been bypassed Beards-
ley now declined it because he had interveningly been advanced to a grade
36 job in his own 400 (for which he was qualified) that paid more than the
one in the 100 (The job in the 100 was "daytime ." The one in the 400 was
"incentive ")
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting (supra fn. 10), that the Company "has something
up its sleeve." Bosworth denied this and stated that the
Company was not likely soon again to split up a manager's
organization, but if it did it would "come up with some
arrangement." The Union stressed that even assuming the
ultimate accuracy of Bosworth's forecast concerning the
actual effects of this split on the employees, if the Union
were now to acquiesce in a shorter grandfathering than the
duration of the contract, it would, as the Company's min-
utes of the meeting of December 8, 1969, quote the Union,
be "bargaining away what we have already gotten." Bos-
worth replied the Company did not "see it that way."
Pursuing the same thought, the Union, as quoted in the
Company's minutes of the meeting of February 18, 1970,
stated that whatever the actual outcome on the employees
of this split, if it were now to agree to grandfathering of the
employees only for a period short of the duration of the
contract, it would "set a precedent [which] could be used as
a tool to split the group up into many more pieces." The
Union observed that the "[m]atter boils down to [the] inter-
pretation of the contract. Manager was [a] convenient de-
scription of either Cable or Crossbar shop in general."
Bosworth replied, as the Company's minutes quote him
(February 18, 1970):
We interpret it literally. A Manager is a Manager. We
all know what a manager is. The contract is clear.
However, the Union at this point reminded Bosworth
that, at the negotiations of the 1969 contract in May, he had
in answer to a question put to him by Violet Rogers, a
member of the negotiating committee, conveyed that the
Company did not contemplate a change. The Company's
minutes quote Bosworth's response to this to be:
I was aware of this being considered-I don't think this
question was really asked.
Quinlan, now the Union's president, who had been a
member of the negotiating committee during the 1969 con-
tract negotiations, testified Rogers did ask this of Bosworth
and that his answer, though not explicit, clearly conveyed
the negative. That point came up again at the meeting of the
parties 9 months later after the Union filed the charge in this
proceeding. On November 19, 1970, the Union again put
the question to Bosworth concerning whether he had not at
the 1969 negotiations said the Company contemplated no
change. His reply this time, as quoted in Respondent's own
minutes, was that in the negotiations he said, "I was not
aware at that time of such a move." (Emphasis supplied.)
This implied, contrary to what he told the Union on Feb-
ruary 18, 1970, that that question had been put to him
during these negotiations. And his admission that during
these negotiations he told the Union he was not "aware" of
any such move confirms Quinlan's testimony that Bosworth
conveyed a negative answer during the contract negotia-
tions concerning whether the Company contemplated a
change. The Union at this meeting of November 19, 1970,
accordingly claimed that had the term "manager" intended
to be "literally" interpreted it would not have agreed to the
contract as it reads.' The interchange in this later meeting
13 In the Company's minutes of the meeting of November 19, 1970, appears
the following colloquy between union representatives and J 0 . Bosworth.
OE[Eby, who had succeeded Vondra as president ]: For the record:
We bargained the contract in good faith on the basis of I manager in
just quoted (supra, fn. 13) followed the line of the discus-
sions at the meetings which preceded the Union 's filing of
the charge (supra, fn. 10). The Union's insistence on a
grandfathering of the employees for the duration of the
contract was based on its view that the employees' job mo-
bility had been stabilized as of the time the 1969 contract
was made, where the only manager's organizations had
been the 200 and the 400. At all events, in view of
Bosworth's certainty that the actual consequences on the
employees would be minimal, the Union continued to press
Bosworth concerning why the grandfathering, or "1-manag-
er concept" was not extended to the end of the contract,
when they could then take up an issue which had not been
raised during the 1969 negotiations. The Union compared
this with the accommodation the Company had made in the
420-450 situation, involving two assistant manager's organi-
zations , where after the split, it maintained a single corridor
of movement of the two assistant manager's organizations
combined, during the years it took to have the matter ironed
out. Bosworth's reply, as he is quoted in Respondent's min-
utes of the meeting of December 8, 1969, was, "We had to
give up a lot to get the 420-450 straightened out," and then,
when asked, "You don't want it an issue in bargaining," he
replied, "Yes. Want it settled before bargaining which
means now."
The groundwork for the futility of the meetings was
thus already laid that early. Though the Company was will-
ing to extend the moratorium on article 27 beyond the 3
months it had proposed, it resisted extending it to the dura-
tion of the contract because of the leverage it might give the
Union in negotiations for the succeeding contract.14 The
Union made three proposals: (1) that the employees be
grandfathered for the duration of the contract; (2) or that
they be grandfathered while article 27 is "reopened" for
discussion of the effects of the split (in the manner of the
"reopening" that occurred when there had been the 420-450
split) or (3) or that the matter go to arbitration. (The perti-
nent portion of the arbitration provision, article 10, is quot-
ed infra, fn.1 8). Bosworth rejected all three proposals during
the three meetings preceding the Union's charge.15
the X-bar building.
JOB: That's not so
OE- For many years before 1966 you moved between 2 assistant
managers as if they were one.
JOB. But when we signed the contract we all agreed as to what
"Manager's Organization" meant.
TH[Tom Hickman, IBEW International Representative] - If that were
true, we'd have had this meeting during the last bargaining session
instead.
OE: I agree with Tom, we'd not have agreed if we had known what
you have in mind
14 At the hearing, Bosworth , in explanation of his statement that he "[did]
not want it an issue in bargaining," testified (tr. 313):
I indicated to the union, that I was unwilling to grandfather the people
to the end of the contract because when you set up a precedent and you
go into contract bargaining the practice that exists at contract bargain-
ing puts an entirely different light on how I get backed into a situation
which makes it difficult to rearrange
15 The Company's minutes of the meeting of February 18, 1970, show the
following colloquy between Vondra and Bosworth after the reference to the
answer Bosworth had given Committeewoman Rogers during the 1969 con-
tract:
FRV-We want this to be held up- so we can negotiate this into the
contract
JOB-I think we have already negotiated this into the contract. Will-
ing to have "grandfather" for a period.
WESTERN ELECTRIC, INC. 349
Bosworth also rejected these three alternatives at the
two later meetings held after the charge. (They were held in
response to the urgings of counsel to their respective clients
that they try to reach a solution.) The two meetings are
covered in this instance by minutes of the Union as well as
the Company. The minutes of both parties show their orig-
inal positions had not changed. By then the Union's com-
plaints over the effects of the split went somewhat beyond
Beardsley's case previously described (and which was then
still pending.) See supra, fn. 12. They concerned occurrences
after the expiration of the first 3 months following the split.
The Union complained that about 10 employees in the 100
had been promoted from grade 34 jobs to "selector" fobs at
grade 35, while there were hundreds of employees in the
400, at grade 34, who had more seniority than the 10 up-
graded employees in the 100. Except for two employees (in
addition to Beardsley's case) there was no specific indica-
tion that these hundreds of employees at grade 34 in the 400
had at least equal qualification for the higher graded jobs
to which the employees in the 100 had been promoted (as,
for example, the way in which Beardsley, supra fn. 12, had
both more seniority than and was at least as qualified for
the higher graded job as the employee in the 100 in favor
of whom he had been bypassed). Bosworth, as he is quoted
in the Company's minutes, stated, "This number is small in
proportion to the total number of people involved overall,"
to which one union representative replied, "One is too
many," the point being as further stated by another union
representative, "[we] don't feel we have the right to bargain
away the 'right' of our people in this matter." Bosworth
stated, "we have offered an understanding on these people
but it was refused by the Union." The Union regarded the
offer as inadequate because it did not take care of employ-
ees who might feel the impact of article 27 during the re-
maining period of the contract. This was pointed up in the
following colloquy as appears in the Company's minutes of
the meeting of November 19, 1970:
WC: What if we have 4 more Manager Splits? What
will you do then?
JOB: I've told Tom [Hickman, the International
Representative] we'd follow the same route again.
WC: You'd implement the program if we couldn't
agree anyway.
JOB: That's so.
WC: We can't accept this type of unilateral move.
This is how matters remained before the complaint
issued. The fifth and final meeting held December 3, 1970,
shows Bosworth summing up, with union acquiescense, the
Union's three-point proposal thus:
(1) Continue under 1 manager to the end of the con-
tract.
(2) Re-open contract, or
(3) Submit to arbitration.
FRV-For the duration of the present contract?
JOB-NO!' DEFINITELY NOT!! This is not new to the I . B.E.W.
although maybe not at Omaha.
FRV-We will contest this if we can't agree . We want only a "reason-
able" time.
JOB-We think 3 months is reasonable and that period is already
past.
FRV-We'll let NLRB decide.
Bosworth, after a caucus of the Company's negotiators,
stated, "We find your offer unacceptable," and in its place
offered to "move under the one manager concept to the end
of this year [to January 1, 1971]." This was a mere 4 months
before the end of the contract and 2 before the start of
negotiations for the succeeding contract. The Union found
this unacceptable, first because interveningly some employ-
ees might still be victimized under article 27 by the present
split, and because of the previously mentioned fear of the
"precedent" under which the Company could during the life
of an existing contract, split that 400 manager's organiza-
tion still further and correspondingly narrow the employees'
corridors of movement to the shrunken dimensions of each
splinter thus newly created by the split. The Company, on
the other hand, saw in the Union's demand for a grandfa-
thering of the employees for the duration of the contract a
leverage the Union might have in negotiating a change in
article 27 that would lessen its power under the "literal"
language of article 27 as it existed, and instead wanted its
own leverage to perpetuate that power. (See Bosworth's
previously quoted testimony, supra fn. 14, in explanation of
his "don't want it an issue in bargaining" statement to the
Union as quoted in the Company's minutes of the meeting
of December 8, 1969.)
4. Status as of the time of the hearing
In addition to the upgradings of about 10 employees in
the 100 who are junior to those in the 400, as mentioned by
the Union in the last two meetings of the parties, the Union,
on the last day of the hearing, put into evidence the
Company's very recent notifications of a surplusing of some
10 employees in the 400, who had more seniority than a
corresponding number of employees in the 100.6 Union
counsel's suggestion that the split had to that extent reduced
the number of jobs the surplused employees in the 400 could
have turned to for bumping purposes in the 100 was resisted
by Bosworth because there was no indication of what those
other jobs in the 100 were, and whether, apart from seniori-
ty, the surplused employees met the additional requirement,
in respect to bumping, of being qualified by prior expe-
rience to fill those jobs in the 100. Supra, fn. 1, art. 27, par.
3.11(b).17
16 The notifications were given the Union under article 34 of the contract,
which requires the Company to give advance notification to the Union of
varieties of personnel action . Among them are "[l]ay offs due to lack of work"
and "[n]ew and rehired employees " (It is on that basis that the Union was
able to compare the seniority of the 10 surplused employees in the 400 and
of employees in the 100 over whom these surplused employees had seniority.
On that basis also the Union knows of the upgrading of employees. The
pertinent item there is "[t]ransfers involving changes of an employee status.")
17 Bosworth explained that the operations retained in the 400 were those
of wiremen , cable formers, and testers of apparatus , while those transferred
to the 100 consisted of punch press, drill press, and screw machine operations
and also operations in a subbranch termed "Merchandise and Service." He
testified the operations in both organizations had differing lines of expe-
rience . However, he admitted that there was some overlapping between the
work of the two organizations He testified these overlappings involved
"muscular kind of work" such as "material handhngjobs" (which concerned
less than 1 percent of the total work force), and work of packers and stock-
keepers, which could involve two or three occupations comprised of some 30
or 40 persons (tr. 391) With one exception , the surplused employees in the
400 are all "wiremen" at grade 32 (the lowest of grades) who had been
employed during 1970 (after the split) but who, when surplused, had the
requisite minimum seniority over persons in the 100 Though the work of
Continued
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Analysis and Conclusion
1. The Company's belated proposal
for arbitration
Although during the meetings of the parties, Respon-
dent had rebuffed the Union's overtures for arbitration,
now it is the Company that embraces it and the Union that
opposes it.18 The issue the Company proposes is whether,
when it has split up a manager's organization, the Company
is nevertheless obligated by the contract to continue the
employees under the single corridor of movement, de-
scribed in article 27, as it had existed before the split, or
whether the split, when made, creates a separate corridor of
movement for each separate manager's organization, with
the Company having the option to decide whether and for
how long to suspend its implementation on the employees
under article 27. That issue has a familiar ring. It sounds
much like the one the Union had been proposing during the
meetings, and the Company was rejecting. Toward the close
of the hearing, Company counsel proposed this issue for
arbitration as the basis for disposing of the controversy.
Union counsel opposed it first because it does not take care
of the Company's alleged violation of Section 8(a)(5) in not
having given the Union prior notice of its action and also
because the issue the Company proposes is excluded from
arbitration under Article 10 as one "related . . . to the
exercise of any of the Company's rights of management."
Supra, In. 18. Vondra and Quinlan of the Union credibly
testified that it was on that very ground of nonarbitrability
that Bosworth, at the meetings, had rejected the Union's
overture for arbitration. The Company, in its brief, howev-
er, explains that at the meetings the Union's proposal did
not specify the issue to be arbitrated as required by article
10 (Id. at par. 5), and so it was uncertain whether the Union
was then challenging the Company's right to make the split
but only its effects, but that at the hearing the Union having
now made it plain that it did not challenge the Company's
right to make the split but only its effects on the employees
under article 27, it is now an eminently arbitrable issue for
submission to the arbitrator.
What the Company claims the Union made plain at the
hearing is not that plain to the General Counsel, for he
disputes the Company's right to have split up the 400
manager's organization without previous notice to or con-
sultation with, the Union. Neither is it that plain to the
wiremen is different from work in the 100 , Harlan (Whitey) Clark, vice
president and the main grievance representative of the Union, testified that
on the basis of his 7 years' experience in grievance handling, he could state
that had there not been the split, these surplused wiremen in the 400 could
have bumped such employees on jobs now in the 100 , as press operators,
material handlers, assembly operators , and "what have you " There was no
specification of which employees in the 100 could have been bumped by the
surplused employees in the 400, and how under their work as "wiremen" they
would have acquired the requisite experience to qualify them for other jobs
in the 100 to entitle them to displace employees junior to them.
^s ARTICLE 10: ARBITRATION
1. Any dispute arising between the Union and the Company with respect
to the arbitration of any provisions of this Agreement or the perfor-
mance of any obligation hereunder , except where the subject matter of
the dispute is excluded from Arbitration by other provision of this
Agreement, or is related in any manner to the exercise of any of the
Company's rights of management may be referred [to arbitration on
exhaustion of the grievance procedure under Article 91.
Union's counsel, who too sees the Company's unilateral
action in malting the split as a precommitment which pre-
vented the parties reaching a "meaningful agreement" at the
meetings held subsequent to the split.
2
I have treated the facts rather extensively, acknowl-
edgedly because the Company's conduct so closely skirts
the edges of the good-faith requirement as to invite an effort
to seek what could be done about it under the Act. The
observation above is made after making full allowance for
the fact that the split of the 400 was economically motivat-
ed, and that the operations it transferred out of the 400 to
the newly formed 100 were calculated to make the applica-
tion of article 27 upon the employees "minimal" in their
practical consequences even if their eligibility for jobs was
now confined to the reduced dimensions of the two
manager's organizations resulting from the split.
Granting all this, the Company hardly distinguished
itself in the manner in which it dealt with the Union con-
cerning the power of the Company envisages for itself under
a combination of article 2, its "management rights" clause
(supra, fn. 2), and article 27, the Movement of Personnel
clause. It is a rather awesome one, for the employee's
growth, stagnation, or survival hinges on the occupational
world the Company delimits for the employees by the
manager's organizations it chooses to make. In apparent
recognition of such a power when "literally" applied, the
Company had in the past softened its impact in various
ways. After the first and only prior split in a manager's
organization nearly 11 years earlier (which occurred during
the first contract when it emerged from its "pilot" stage), it
gave the Union "prior" notice of splits in a mere assistant
manager's organization at least to the extent of the "courte-
sy" preceding the effective date, and when after these splits
were made and the Union raised objections, the Company,
as exemplified by the splits, involving the 420-450 assistant
manager's organization, suspended their implementation
under article 27 for the years that these objections were
under consideration.
In contrast, when the Company split up an entire
manager's organization, the first, as stated, in the nearly 11
years before the only preceding one, it gave it no prior
notice and left the Union to learn about it through the
grapevine. It made the split only 6 months after the execu-
tion of the 1969 contract, during the negotiations for which
Bosworth told them that no change was "contemplated,"
even though, as he later admitted to the Union at the meet-
ing on February 18, 1970, and to us at the hearing, he was
at that time "aware of this [the split in the 400 organization]
being considered." Further, in contrast with the kind of
accommodation it had made when there had been the split
involving the 420-450 assistant manager's organizations,
this time it refused to give the employees the single corridor
of movement to the end of the 1969 contract, despite their
complaint that but for the assurance given them at the nego-
tiations in May 1969, they would have resisted signing the
contract with article 27 in the "literal" manner he was now
advancing, and even though, since Bosworth was sure the
actual consequences of article 27 on the employees' were
"minimal," the grandfathering of the employees for the du-
ration of the contract would not have impaired the
WESTERN ELECTRIC, INC. 351
Company's economic purpose in making the split; namely,
to insure the efficiency of its supervisory operations.
3
However, though equitable consideration are indeed
relevant in many of these matters, pitted against them here
for purpose of determining whether the Act has been viola-
ted is the hard fact of the contract the parties signed. Thus
this case involves the balance or "accommodation," re-
ferred to by the Board in its decision in Collyer Insulated,19
"between on the one hand, the statutory policy favoring the
fullest use of collective bargaining and the arbitral process,
and on the other, the statutory policy reflected by Congress'
grant to the Board of exclusive jurisdiction to prevent unfair
labor practices." While, as there stated, the Board, in
evolving its policy concerning when to defer to the arbitral
process, has generally struck the balance at the stage where
there has been an actual award, 20 "[i]n those cases in which
no award had issued, the Board's guidelines have been less
clear." Whatever the prior fluctuations of emphasis con-
cerning where the balance is to be struck when there has
been no arbitration award, the Board in Collyer Insulated
has pronounced the policy now applicable when the parties
have a contract containing a grievance-arbitration proce-
dure. It is now striking the balance in the manner articulated
in Jos. Schhtz Brewing Company, 175 NLRB No. 23. where
it was stated that
[W]here ... the contract clearly provides for grievance
and arbitration machinery, where the unilateral action
taken is not designed to undermine the Union, and is
not patently erroneous but rather is based on a substan-
tial claim of contractual privilege and it appears that
the arbitral interpretation of the contract will resolve
both the unfair labor practice issue and the contract
interpretation issue in a manner compatible with the
purposes of the Act, then the Board should defer to the
arbitration clause conceived by the parties.
As in Schlitz and Collyer Insulated, the dispute here
would be "well suited to resolution by arbitration," except
that instead of a comprehensive arbitration clause as in
Schlitz and Collyer Insulated the arbitration clause here
excludes from its scope "subject matter [which'is] related in
any manner to the exercise of any of the Company's rights
of management." The Company justifies its immunity from
an obligation to give the Union prior notification or an
opportunity to discuss the split of the 400 manager's organi-
zation on the ground that it is a "management right" under
article 2 (supra, In. 2). Since this is not encompassed by the
arbitartion clause, it would normally be a matter for us to
determine. Cf. Zenith Radio Corp., 177 NLRB No. 30. We
would then weigh two opposing positions. On the one hand,
there is the Company's position that a split in a manager's
organization, being a change in supervisory structure, is an
exercise of a management prerogative, here butressed by the
management right clause in the contract, which an employ-
er is free to resort to without a requirement to notify or
19 Collyer Insulated Wire, 192 NLRB No. 150.
20 Subject , however, to the requirement that the procedures be "fair and
the results not repugnant to the Act," citing Spielberg Mfg Co, 112 NLRB
1080, 1082 . See also Precision Fittings, Inc., 141 NLRB 1034
discuss it with the Union 21 On the other hand, the position
of the General Counsel and the Union is that a manager's
organization prescribes the limits of the employee's occupa-
tional world and that a split in it narrows its scope for the
employee and accordingly changes the employees' condi-
tions of employment, and thus the Company is required
under the Act to give the Union prior notice or opportunity
to discuss it. In the past, the Company gave the Union that
prior opportunity in the form of at least a notification or
"courtesy" before the effective date of these splits. The fact
that the Union made no protest against these splits prior to
their being instituted was not, as the Company' s claim it
was, a waiver by the Union of its right to be given that prior
notice 22 In that connection the General Counsel and the
Union bear down heavily on the doctrine in Fibreboard 23
involving the partially analogous conduct of an employer in
subcontracting work. There it was held that:
[C]ontracting out work "albeit for economic reasons, is
a matter within the statutory phrase `other conditions
of employment' and is a mandatory subject of collec-
tive bargaining within the meaning of Section 8(a)(5) of
the Act." [Emphasis supplied.]
However,the Company points to a series of cases which
qualify the Fibreboard doctrine. These are to the effect that
an employer may, without violating its bargaining obliga-
tion of the Act, subcontract its operations without previous-
ly notifying the union, assuming certain other factors,
including also the fact that the subcontracting has not had
an actual "significant impact on unit employees' job inter-
ests" as distinguished from their potential ones24 In the
General Counsel's and Union's briefs, I find no mention of
these cases, or so far as I can see , no efforts to distinguish
them on the basis above mentioned.25
This matter aside, a failure to give prior notice is not
21 Citing, among other cases , Cessna Aircraft Co, 172 NLRB No 86,
Providence Journal Co, 180 NLRB No 103, KONO-TV-Mission Television
Corp., 163 NLRB 1005
2 A right under the Act is not deemed waived unless clearly and unequivo-
cally expressed. The Timken Roller Bearing Co, 136 NLRB 15, enfd 325 F.2d
746 (C.A. 6) A union's unsuccessful prior efforts to include in the contract
a statement of its statutory right to bargain about a change in working
conditions is not evidence of a waiver to advance notice to bargain about
such a change Cloverleaf Div of Adams Dairy Co, 147 NLRB 1410, 1413,
citing Timken, supra. See also T T.P Corp., 190 NLRB No. 48.
23 Fibreboard Paper Products, Inc v N L R B, 379 U S. 203.
24 Westinghouse Electric Corp. (Mansfield Plant), 150 NLRB 1574 ; applied
in Allied Chemical Corp, 151 NLRB 718, affd sub nom District 50 UMWv.
N L R B, 358 F 2d 778 (C A. 4), American Oil Co, 151 NLRB 421, Shell Oil
Co, 149 NLRB 305 Cf. Cities Service Oil Co, 158 NLRB 1204.
25 The General Counsel does cite T T P Corp, supra, fn. 22, which I have
included under the general proposition that a waiver of a right under the Act
must be clearly and unequivocally expressed before being considered such.
There the employer unilaterally terminated its contributions to a retirement
plan which the employer had voluntarily instituted 5 years earlier . It was held
that the employee's silence about it when it was instituted did not constitute
a waiver of the right to bargain about later changes in it The General
Counsel attaches to that case still another significance. It relies on the fact
that a change in a retirement plan is a change in conditions of employment
even though the change does not immediately deprive employees of its bene-
fits and that the employees' later entitlement to these benefits involves future
contingencies . By parity of reasoning the General Counsel claims that the
fact that a split in a Manager's organization does not immediately visit its
impact on the employees and hinges upon future events , does not mean that
employees' terms of employment have not thereby been changed by a split
in a Manager's organization Without laboring the matter , the two are not
quite analogous. The T T P Corp case does not deal with the Fibreboard
doctrine or with the cases that qualify it
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessarily fatal if the Union is otherwise given the opportu-
nity to discuss a change before its implementation. Cf. Hart-
mann Luggage Co., 145 NLRB 1572; Holiday Inn Central,
181 NLRB No. 16 (TXD). The Company points to the fact
that when the parties met on December 1 and again on
December 8, 1969, no employee had felt the impact of the
split, and that by proposing a 3-month suspension of imple-
mentation of the split and meeting with the Union it gave
it full opportunity to discuss both its action in making it and
the length of time in which the employees should be "grand-
fathered" from the effects of the split under article 27 before
taking effect. As it turned out, the effects of the split were
"minimal," as indeed Tom Hickman, the IBEW Interna-
tional representative, stated at the meetings on February 18,
1970, and again on November 19, 1970. The thrust of these
prolonged discussions was basically whether, as the Union
claimed, the employees should have a single corridor of
movement for the duration of the contract on the ground
that the execution of the contract fixed their corridor of
movement as of the time of the execution of the contract,
or as the Company contended, whether the split in the 400
manager's organization created two separate corridors of
movement, the decision resting with the Company concern-
ing how long if at all to continue the employees under a
single corridor of movement. Although at the hearing, the
Union's witnesses at first vacillated between whether they
were challenging the Company's right to make the split, they
ultimately agreed, as did also union counsel at the hearing,
that the nub of the dispute was whether the employees
should be "grandfathered" from the "literal" language of
article 27 for the duration of the contract. The fact that the
Union does not now challenge the Company's action of
having split the manager's organization is again not to be
construed as a waiver of its right in the future to challenge
a split in a manager's organization which is shown to affect
employees' jobs. All that is meant here is that on the facts
of this case, the parties' dispute turned on whether regard-
less of the split here made, the Company should have never-
theless continued the employees under a single corridor of
movement for the duration of the contract or whether it had
the option to decide upon the extent, if at all, tto which the
employees wereto be grandfathered from the effects of arti-
cle 27 in consequence of the split. Since the Company now
acquiesces in what the Union had itself originally urged and
since the basic point of the discussion was a dispute over the
interpretation of article 27 as expressed by these two oppos-
ing positions, it would seem fair to say that an arbitral
decision concerning these opposing positions should termi-
nate this particular controversy in the manner indicated in
Collyer Insulating. In that respect, we note the following
additional observation by the Board in the Collyer case that:
[T]he courts have long recognized that an industrial
relation dispute may involve conduct which, at least
arguably, may contravene both the collective agree-
ment and our statute. Where the parties have contrac-
tually committed themselves to mutually agreeable
procedures for resolving their disputes during the peri-
od of the contract, we are of the view that those proce-
dures should be afforded full opportunity to function.
If the arbitration award should favor the Union, then
it would be entitled to full redress on behalf of the few em-
ployees who specifically felt the impact of the split in that
they would have gotten (as had Beardsley) jobs to which
they would have been entitled but for the split. It may well
be that the Union feels it does not have sufficient informa-
tion on which to determine what grievances to advance in
consequence of the split, and whether to press them to arbi-
tration. The Company points to article 34 of the contract
under which the Union is entitled to information relevant
to these matters. During the hearing company counsel stat-
ed it provided the Union with all relevant information it
sought, including, for example, the information concerning
the work experience and qualifications of the hundreds of
employees in the 400 at grade 34 that had more seniority
than the 10 employees in the 100 who had been promoted
to grade 35 "selector" positions. Union counsel stated it did
not have "all" such information, but did not specify what
items were missing . Until it does, we are in no position to
apply the doctrine in N.L.R.B. v. Acme Industrial Products,
385 U.S. 432, which requires the employer to supply the
union with information needed to enable it to perform its
representative function of deciding which grievances to
press or to pursue to arbitration. When and as the Union
determines which relevant information the Company is re-
fusing to supply to it, the matter can be considered in con-
nection with the retention of jurisdiction comparable to the
one reserved in the remedy in the Collyer Insulated case.
CONCLUSION OF LAW
Accordingly, on the basis of all of the foregoing and the
entire record, I conclude that it would effectuate the policies
of the Act if, "without prejudice to any party and without
deciding the merits of this controversy," the parties are
relegated to the grievance-arbitration procedures of the
contract.
REMEDY
Applying the language in Collyer Insulated-
[J]urisdiction is [hereby retained] over this dispute sole-
ly for the purpose of entertaining an appropriate and
timely motion for further consideration upon a proper
showing that either (a) the dispute has not, with reason-
able promptness after the issuance of this decision,
either been resolved by amicable settlement in the
grievance procedure or submitted promptly to arbitra-
tion or (b) the grievance or arbitration procedures have
not been fair and regular or have reached a result which
is repugnant to the Act.
In specific amplification of item (a), the retention of
jurisdiction includes the right of the General Counsel or the
Union to make an appropriate and timely motion to require
the Company to supply such additional information, re-
quested by the Union and refused by the Company, which
the Union needs in order to perform its representative func-
tion within the principle of the Acme Industrial case, of
determining which grievances to advance or to pursue to
arbitration.
On the basis of the entire record, I accordingly issue the
following recommended:
WESTERN ELECTRIC, INC. 353
ORDER
That the complaint herein is dismissed ; provided, how-
ever that:
Jurisdiction of the proceeding is hereby retained for the
purposes stated in the Remedy.
APPENDIX A
ARTICLE 27-MOVEMENT OF PERSONNEL
1. General
1.2 TERM OF EMPLOYMENT shall be given most
weight in the selection of an employee to fill a vacancy
when two or more employees under consideration pos-
sess substantially the same qualifications needed for
such vacancy.
1.3 Qualifications as used in this Article shall be de-
termined by the Company based on the employee's
experience , demonstrated productive efficiency , skill or
ability and conduct on the job.
1.4 If the Union objects to any move made in accord-
ance with the provisions of this Article within ten (10)
days after the effective date of such move , the matter
may be processed in accordance with ARTICLE 9,
GRIEVANCE PROCEDURE, and ARTICLE 10,
ARBITRATION, provided that in any such case the
authority of the Arbitrator shall be limited to a deter-
mination as to whether the Company's judgment has
been unreasonably exercised.
2. Filling Job Vacancies
2.1 When a vacancy occurs, employees of the Company
who have qualifications for the vacancy will be consid-
ered in successive steps in the following order until the
vacancy is filled:
s s s s
(c) Graded employees in successively lower grades
from within (1) the Assistant Manager's organization
having the vacancy for vacancies in grade 34 and low-
er, or (2) the Manager 's organization having the vacan-
cy for vacancies in grade 35 and higher or in the
JOURNEYMAN TRADES OCCUPATIONS or
JOURNEYMEN from within the Manager 's organiza-
tion having the vacancy.
2.2 Employees may also be considered as candidates
for lateral transfer or upgrading to a vacancy in the
order of their TERM OF EMPLOYMENT provided
their supervisors have recommended them for consid-
eration beyond that provided by the provisions of Para-
graph 2.1(c) above. The Company agrees that in order
to afford opportunities for advancement to longer
service employees where such opportunities are not
available under the application of the provisions of
Paragraph 2.1(c) above, every effort will be made to
apply uniformly this recommendation procedure.
3. Effect of Lack of Work
3.1 When lack of work necessitates decreasing the
working force , employees shall be selected as surplus in
the inverse order of their TERM OF EMPLOYMENT
from the occupation; grade, if applicable; and Depart-
ment Chief 's organization affected ; except that the
Company may exempt from such selection certain em-
ployees on the basis that their skill , training or expe-
rience is necessary for the efficient operation of the
business . An employee selected as surplus or an em-
ployee who becomes surplus by displacement shall be
considered for placement in the order of the following
successive steps:
3.11 Graded Employees
s s s s 0
(b) Displace in his same grade in his own
Manager's organization another employee who has the
shortest TERM OF EMPLOYMENT, provided the
surplus employee is considered by reason of his previ-
ous experience to be able to perform the assignment
efficiently within a limited training period of two (2)
weeks, and further, provided the surplus employee has
at least three (3) months more TERM OF EMPLOY-
MENT than the employee to be displaced. If the em-
ployee is not thus placed, then
(c) In the next lower grade in accordance with (a)
and then (b) above and in the same manner in succes-
sively lower grades.
(d) A surplus employee who cannot be placed as
provided in Paragraphs 3.1 (a), (b) or (c) above, shall
be considered outside his Manager 's organization for
displacement on a job, first in the same grade and
failing that in successively lower grades , which he has
performed satisfactorily , provided the surplus employ-
ee has at least three (3) months more TERM OF EM-
PLOYMENT than the employees to be displaced.