NLRB v. COMMUNICATIONS WKRS. OF AMER., AFL-CIO, LOC. 1170

• Decision Date: 21 December 1972
• Docket Number: Docket 72-1298.,No. 69,69
• Citation: 474 F.2d 778
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, and Rochester Telephone Corporation, Intervenor, v. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, LOCAL 1170, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

474 F.2d 778 (1972)

NATIONAL LABOR RELATIONS BOARD, Petitioner, and Rochester Telephone Corporation, Intervenor, v. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, LOCAL 1170, Respondent.

No. 69, Docket 72-1298.

United States Court of Appeals, Second Circuit.

Argued October 17, 1972.

Decided December 21, 1972.

Joseph C. Thackery, Atty., NLRB, Washington, D. C. (Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Robert A. Giannasi, Atty., NLRB, Washington, D. C., on brief), for petitioner.

Eugene D. Ulterino, Rochester, N. Y. (Nixon, Hargrave, Devans & Doyle, Rochester, N. Y., on brief), for intervenor.

Richard Lipsitz, Buffalo, N. Y. (Lawrence A. Schulz and Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, N. Y., on brief), for respondent.

Before MANSFIELD, OAKES and TIMBERS, Circuit Judges.

TIMBERS, Circuit Judge:

The petition to enforce an order of the National Labor Relations Board, 194 N.L.R.B. No. 144 (1972), in this somewhat off the beaten path labor case, presents essentially two issues:

(1) Whether there was substantial evidence to support the Board\'s conclusion that the Union¹ violated Section 8(b)(3) of the Act² by its adoption of an embargo against acceptance of temporary supervisory assignments in contravention of a practice agreed upon between the parties, although not incorporated in the existing collective bargaining agreement.

(2) Whether there was substantial evidence to support the Board\'s conclusion that the Union violated Section 8(b)(1)(A) of the Act by subjecting employees to disciplinary action for refusing to comply with the embargo.

For the reasons stated below, we hold that there was substantial evidence to support the Board's conclusions on both issues. We enforce the Board's order.

I.

This case is concerned with the Company's³ practice of assigning unit employees to temporary supervisory positions. Such practice has never been covered by a provision in a collective bargaining agreement between the Company and the Union, including the one in effect at the time of the Union's embargo and disciplinary action to enforce the embargo referred to below. The Company and the Union have entered into successive collective bargaining agreements since the early 1950's.

In 1960, the Company began the practice of assigning unit employees to act as temporary supervisors. This was to replace supervisors who were on vacation or sick leave. The Union frequently complained about this practice. Its complaints were directed chiefly at assignments that lasted more than 30 days and those where unit employees were assigned to supervise their own work groups.

It was not until the 1967 contract negotiations, however, that the Union proposed complete elimination of the temporary supervisory assignment practice. After considerable discussion of the proposal and much backing and filling by both parties, the upshot was that the Union withdrew its proposal altogether and the Company agreed to outline in a letter to the Union (not to be incorporated in the contract) its procedures with respect to temporary supervisory assignments. On the following day, the 1967 collective bargaining agreement was signed. It contained no mention of temporary supervisory assignments.

As agreed, the Company did inform the Union by letter in June 1967 of its temporary assignment procedures, including the promise that "whenever possible" employees would not be assigned to supervise their own work groups. In an exchange of letters with the Union in October 1967, the Company reaffirmed its earlier agreement to limit such assignments to no longer than 30 days.

In 1968, at the Union's request, the entire collective bargaining agreement was renegotiated. The subject of temporary supervisory assignments was not raised by either party. The new agreement contained no restrictions on the Company's right to make such assignments. It has continued to make them.

In July 1970, the Union for the first time filed a formal grievance complaining of one temporary supervisory assignment that lasted six weeks. In settling this grievance, the Company again confirmed in writing its policy that such assignments should not exceed 30 days.

Also in 1970, the Union and the Company entered into a written agreement with respect to the equalization of overtime among unit employees. This agreement contained a provision that an employee who was away from his regular job on a temporary supervisory assignment would be charged with the actual overtime hours worked.

At no time since 1967 has the Union sought to abolish, or requested to bargain about, the Company's temporary supervisory assignment practice.

On November 9, 1970 — eleven months before the expiration of the 1968 collective bargaining agreement — at a regularly scheduled membership meeting, the Union voted (1) an embargo on acceptance of all temporary supervisory assignments effective December 1, 1970, and (2) to penalize those who violated the embargo.

Since imposition of the embargo, the Company has had difficulty getting unit employees to accept temporary supervisory assignments. Two employees, one a Union member and one a nonmember, who accepted such assignments despite the embargo have had charges filed against them by the Union.

Following the filing of charges against the Union by the Company on February 23, 1971, pleadings were filed and in due course an evidentiary hearing was held before a trial examiner in Rochester, New York on May 28, 1971. The examiner on August 19, 1971 filed his decision which included findings of fact, conclusions of law and a recommended order. The Board on January 6, 1972 filed its decision and order. 194 N.L.R.B. No. 144. The Board's order, which adopted the examiner's recommended order with certain modifications,⁴ required the Union to cease and desist from conduct found to be in violation of §§ 8(b)(3) and 8(b)(1)(A) of the Act and to take certain affirmative action to remedy such violations.

II.

In the light of the foregoing summary of the evidence and prior proceedings leading to the instant petition by the Board for enforcement of its order, we turn directly to the central issue before us: Whether the Union's action of November 9, 1970 in voting an embargo on acceptance of all temporary supervisory assignments constituted an unfair labor practice in violation of § 8(b)(3). We hold that it did.

Under § 8(b)(3), it is an unfair labor practice for a representative union "to refuse to bargain collectively with an employer." The collective bargaining obligation, as defined in § 8(d), includes a duty not to terminate or modify an existing contract unless the party seeking such termination or modification gives to the other party specified notification in advance of the expiration date or offers to reopen negotiations. Concededly there was no such notification or offer to reopen negotiations on the part of the Union here.

The crux of the controversy therefore is whether the Union's unilateral adoption of an embargo on acceptance of temporary supervisory assignments in midterm of the Union's collective bargaining agreement with the Company was in derogation of an agreed-upon practice not incorporated in the collective bargaining agreement.

We hold that the evidence clearly established a contemporaneous bargain, made at the time the parties entered into the 1967 collective bargaining agreement, with respect to the Company's practice of assigning unit employees to temporary supervisory positions. In short, we hold that there was substantial evidence to support the Board's specific finding in this regard:

"In the instant case . . . the parties bargained about abolishing the Company\'s practice of assigning unit employees to temporary supervisory positions and reached an accord, pursuant to which the Union agreed to withdraw, and did withdraw, its demand to abolish the practice, in return for a letter of commitment from the Company outlining its procedures in implementing the practice. This agreement, therefore, became part of the contemporaneous bargain which the parties made in executing their 1967 contract. (citing The Jacobs Manufacturing Company, 94 N.L.R.B. 1214, 1227-28 (1951), enforced, 196 F.2d 680 (2 Cir. 1952)). And, since the Union did not renew its demand in the 1968 contract negotiations, the Company had a right to rely on the Union\'s prior acquiescence in the practice, subject to the limitations agreed to by the Company, and to assume that its rights remained unchanged."

Under similar circumstances, we recently have held that a union's attempt unilaterally and in midterm to alter an existing collective bargaining agreement constituted a violation of § 8(b) (3). New York Dist. Council No. 9 v. NLRB, 453 F.2d 783 (2 Cir. 1971), cert. denied, 405 U.S. 988 (1972) (the Westgate case). In Westgate, the collective bargaining agreement provided for a 35 hour work week. The union, during the term of the bargaining agreement, adopted a rule limiting to 10 the number of rooms which unit employees were allowed to paint per week, thus reducing the average weekly output per man from 11.5 rooms to 10. The contract was silent regarding the matter on which the union acted unilaterally. We held that:

"By enforcing the rule the Union is in substance modifying this term to stipulate that journeymen are not to work a five day, seven-hour per day work week, but are to work only so long as it takes them to paint 10 rooms. We therefore agree with the Board that before the Union can enforce this modification of the collective bargaining agreement, it must bargain collectively with the Association over the issue." 453 F.2d at 787.

The evidence in the instant case establishes even more clearly than in Westgate the existence of an agreement between the parties on the matter with respect to which the Union acted unilaterally, although the contracts in both cases were silent on the matter. In Westgate, the contract's silence was...