Laclede Gas Co.

National Labor Relations Board - Board Decisions

Oct 22, 1968

173 N.L.R.B. 243 (N.L.R.B. 1968)

LACLEDE GAS CO 243
Laclede Gas Company and Oil , Chemical and Atomic
Workers International Union , Local No. 5-6,
affiliated with Oil , Chemical and Atomic Workers
International Union , AFL-CIO. Case 14-CA-
4411
October 22, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On April 30, 1968, Trial Examiner Arthur M.
Goldberg issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a brief in support thereof, and the
Charging Party filed an answering brief to the
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions
and brief, the brief of the Charging Party, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified below.
The facts are not in dispute and are fully set forth
by the Trial Examiner. Briefly, the Respondent has
bargained with the Union for many years as the
representative of employees in its operating depart-
ments, and their most recent contract had an expira-
tion date of July 31, 1967. Insofar as is relevant here,
that contract provided that in the event of a need to
reduce the working force in any department because
of lack of work, the layoff should be in inverse order
of seniority within the department, with a limited
right to "bump" employees in other departments
with less than 1 year of service with the Employer.
The parties were in the process of negotiating a new
agreement, but as of the expiration date of the
contract there were a number of unsettled matters,
more fully set forth by the Trial Examiner. However,
the layoff procedures had neither been discussed nor
been in issue during the bargaining.
The prior contract was extended three times by the
parties. On August 4, at the end of the third
extension, the Respondent began laying off street
department employees who worked on the con-
struction crews. These layoffs concededly were made
without regard to departmental seniority and not-
withstanding the fact that there were employees in
other departments with less than 1 year's service. No
notice was given to the Union of the Respondent's
desire or intention to disregard seniority, and no
discussion was had concerning this. The employees
were told they were laid off because no work was
available.
The complaint alleges that the Respondent acted
unlawfully in effectuating its decision to lay off
because it laid off employees without regard to the
contractual seniority and layoff provisions and with-
out any discussion with the Union concerning this
departure from prior practices. The Trial Examiner
concluded that this action by the Respondent vio-
lated Section 8(a)(5), whether or not an impasse had
occurred in the negotiations, because even if there
were such an impasse it did not occur over any
negotiations looking toward modification of seniority
or layoff procedures. While we agree with the Trial
Examiner's conclusion that the Respondent violated
its statutory obligation, we are of the view that our
reasons for so finding should be clarified.
The Respondent argues that because it did not
select employees for layoff purposes in order to
discourage union membership or to disparage the
Union but, rather, made its selection by the type of
job the employees performed, and, because the layoff
was temporary and did not amount to a permanent
change of layoff policies, no violation of the Act
resulted. Further, the Respondent contends that
because the parties had reached an impasse in the
negotiations, it had the right temporarily to lay off
employees out of seniority, in order to carry on its
business and in order to strengthen its hand at the
negotiating table.' However, we are aware of no
holding or principle which permits an employer, with
impunity, to modify existing conditions of employ-
ment, whether temporarily or otherwise, without
notice to and discussion with the employees' desig-
nated bargaining representative at some time during
the negotiations. For notwithstanding the expiration
of a contract, absent an impasse, an employer may
not unilaterally make changes in employment condi-
tions, such as seniority, previously established by the
I The Respondent requested that the Board take note of its recent
decision in Darling and Company, 171 NLRB No 95, in which the
Board (Member Brown dissenting on the facts ) found a lockout prior to
impasse valid under the test of American Ship Building Co v. N L R B ,
380 U S 300, because there was no evidence of unlawful motive and
the lockout was neither inherently prejudicial to union interests nor
devoid of significant economic justification However, in the instant
case there is no issue concerning the legality of the lockout, while in the
above-cited cases the conduct in question was not attacked on the
specific ground that it was unilateral action.
173 NLRB No. 35
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract.' And, while it is well settled that "after
bargaining to an impasse, that is, after good-faith
negotiations have exhausted the prospects of con-
cluding an agreement, an employer does not violate
the Act by making unilateral changes that are
reasonably comprehended within his pre-impasse pro-
posals,"3 it is also settled that a unilateral change
with respect to a matter which was not within the
area of negotiations during the bargaining sessions is
not a permissible act even after an impasse.'
Accordingly, the critical question in the instant
case is whether seniority and layoff procedure were
reasonably within the area of the negotiations be-
tween the parties. In resolving this issue, we assume,
without deciding, that the parties here had bargained
to an impasse, since this is the view most favorable to
the Respondent. It is clear, however, that the seniori-
ty provision and layoff procedure were never in issue
nor a subject of discussion during the course of the
bargaining sessions . It therefore seems patent to us
that the Respondent was not privileged to alter the
requirements of those provisions without prior dis-
cussion with the Union, notwithstanding the absence
of any illegal motive for the layoff. We are not
persuaded by the Respondent's argument that a
temporary change is permissible although a perma-
nent modification would not be lawful. The layoff
provisions are themselves intended to deal with and
relate specifically to temporary cut-backs in opera-
tions and the Respondent thus was failing to apply
the established practice to the very situation for
which it was adopted. In addition, to adopt the
Respondent's view in this respect would permit an
employer, at any time in the hiatus period between
contracts to eliminate all the contractually established
protections and working conditions and substitute its
unilaterally adopted practices, so long as the change
was said to be temporary. Such a rule would virtually
overrule all the Board and Court decisions which have
dealt with the rights of the parties during negoti-
ations.
Although the testimony at the hearing does not
appear to support the contention, the Respondent
argues in its brief that the layoff was a partial lockout
designed to " . . . strengthen its hand at the negotia-
ting table." The Respondent contends that such a
lockout, even though partial, is a permissible exercise
of employer power in a bargaining situation under the
doctrine of American Ship Building Co v. N L R B.,
380 U.S. 300, and that the right of lockout neces-
sarily carries with it the right to deviate unilaterally
from existing seniority practices as a temporary
measure, without abridging Section 8(a)(5).
We need not consider that contention because the
evidence does not support the premise upon which
the Respondent builds its "lockout" argument. For
while the Respondent now contends that the layoff
was an affirmative bargaining stratagem, the evidence
points to a finding that the layoff was actually
necessitated by the exigencies of the business opera-
tion. The Respondent's officials anticipated a strike
by the Union and found that operating on the basis of
daily contract extensions was difficult, unproductive,
and potentially dangerous to the public. According to
the testimony of Robert Hebeler, vice president in
charge of the Respondent's operating department,
nonessential construction was terminated because it
"could not work efficiently or expeditiously." All of
the evidence as to the reason for the carefully
selective layoff indicates that it was motivated by a
desire to eliminate those operations which negotia-
tions had rendered tentative and to protect the
Respondent from over-extending itself at a critical
moment. A layoff for these essentially defensive
purposes does not justify a unilateral departure from
the accepted layoff seniority practices of the Re-
spondent. If, as the evidence indicates, the layoff was
simply dictated by considerations of efficiency and
apprehension of the effects of a strike, it seems quite
apparent that the employees would have to be laid off
in accordance with the regular method of layoff
unless the Respondent has satisfied its obligation to
bargain with the Union before changing that pro-
cedure.
As we have concluded that the Respondent was not
privileged to ignore the seniority and layoff provisions
of the expired contract in laying off its employees in
the absence of prior discussion with the Union, we
find that the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) of the
Act. Accordingly, we shall adopt the order recom-
mended by the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Laclede Gas Company,
St. Louis, Missouri, its officers , agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
MEMBER BROWN , concurring:
I agree with my colleagues' conclusion that the
Respondent herein violated Section 8(a)(5) of the
2 Bethlehem Steel Co. (Shipbuilding Div.) v N.L.R B., 320 F.2d 615
(C.A. 3), enfg. in relevant part 136 NLRB 1500, cert . denied 375 U.S.
984, FrontierHomes Corporation , 153 NLRB 1070, 1072 -73, enfd. 371
F.2d 974 (C.A 8). Of course, an employer does not violate the Act if it
ceases to give effect to other types of contract provisions, such as
clauses requiring that employees join the union 30 days after hire and
providing for checkoff of union dues . Bethlehem Steel Co (Shipbuild-
ing Div. ), 133 NLRB 1347 and 136 NLRB 1500.
3 Taft Broadcasting Co , WDAF AM-FM TV, 163 NLRB No 55.
4N.L R B. v Intracoastal Terminal, Inc., 286 F.2d 954 (C.A 5 ), enfg.
as modified in other respects 125 NLRB 359.
LACLEDE GAS CO 245
Act. However, I would so find whether the employees
were laid off or locked out. Thus, even if a partial
lockout occurred after an impasse,' as the Respon-
dent contends, it is clear that the seniority and layoff
practices had not been at issue in the negotiations
prior to such impasse. Therefore, the Respondent was
not privileged to take unilateral action with respect
thereto. By temporarily departing from the establish-
ed practices, the Respondent violated Section 8(a)(5)
of the Act.'
5 There is no allegation that the Respondent violated the Act by its
lockout, as such. Accordingly, I assume the validity of a partial lockout
as a privileged offensive economic weapon to strengthen the Respond-
ent's hand at the bargaining table.
6 Bethlehem Steel Co (Shipbuilding Div ) v. N L.R B , 320 F.2d 615
(C.A. 3), enfg. in relevant, part 136 NLRB 1500, cert. denied 375 U S.
984, N.L.R.B v. Intracoastal Terminal, Inc., 286 F.2d 954 (C.A 5),
enfg. as modified in other respects 125 NLRB 359.
TRIAL EXAMINER'S DECISION
same time it locked out its production and maintenance
employees was motivated by any consideration other than
its own convenience.
Accordingly, the legality of the Company's action in laying
off the affected employees is not before me for decision and
no view is expressed herein as to the correctness of the General
Counsel's action. Additionally, the question of impasse con-
cerns me only as it would be a defense to the allegation that
the Company's change of the established seniority system,
without prior notice to the Union or bargaining in connection
with its modification of the procedure, was a violation of
Section 8(a)(5) and (1) of the Act.
All parties participated at the hearing in St. Louis, Missouri,
on February 12 and 13, 1968, and were afforded full
opportunity to be heard, to introduce evidence, to examine
and cross-examine witnesses, to present oral argument, and to
file briefs. Oral argument was waived and briefs were filed by
the General Counsel, the Respondent, and the Charging Party
Upon the entire record in the case, my reading of the
briefs, and from my observation of the witnesses and their
demeanor, I make the following
STATEMENT OF THE CASE
ARTHUR M. GOLDBERG, Trial Examiner: Upon a charge
filed on August 4, 1967,1 by Oil, Chemical and Atomic
Workers International Union, Local No. 5-6, affiliated with
Oil, Chemical and Atomic Workers International Union,
AFL-CIO (herein called the Union or the Charging Party), the
complaint herein issued on November 21. The complaint
alleged that Laclede Gas Company (herein called the Company
or the Respondent), failed in its bargain obligation under the
National Labor Relations Act, as amended (herein called the
Act), when it failed to follow the established seniority system
in selecting employees for layoff during a reduction in force.
Respondent denied all the material allegations of the com-
plaint.
The Union's charge had alleged as well that the reduction in
force was a lockout designed to discourage membership in or
activities on behalf of the Union and a violation of Section
8(a)(1) and (3) of the Act. This aspect of the charge was
dismissed by the Regional Director and his action was
sustained on appeal by the General Counsel's Office of
Appeals. In denying the Union's appeal the General Counsel
held that.
the evidence in its entirety established that at the end
of the last bargaining session prior to the lockout the parties
were at impasse on two substantial issues, i.e ., wages and
the performance by foremen of unit work. See American
Shipbuilding Co. v. N.L.R.B., 380 U.S. 300. It was noted
that after many years of refusal, the Company had made a
major concession by offering to include a clause placing
restrictions on the performance of unit work by foremen,
but that the Union had refused to make the major
concession on wages on which the Company's offer was
conditioned. The contention on appeal that the Company's
action was motivated by Tibb's testimony before a U.S.
Senate Committee was not supported by substantial evi-
dence. In this connection there was no showing that the
Company's failure to lock out clerical employees at the
I Unless otherwise noted all dates herein were in 1967.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Laclede Gas Company, is, and has been at all times material
herein, a Missouri corporation with its principal office and
place of business in St. Louis, Missouri. In addition, Respon-
dent maintains other installations and construction sites in the
State of Missouri. Respondent is engaged in the manufacture,
sale, and distribution of natural petroleum gas and related
products as a public utility company.
During a representative 12-month period Respondent, in
the course and conduct of its business operations, manufac-
tured, sold, and distributed at its several installations products
valued in excess of $250,000, of which products valued in
excess of $50,000 were furnished to enterprises each of which
manufactured, sold, and delivered, directly from its plant or
plants in the State of Missouri to points in other States, goods
and materials valued in excess of $50,000.
Respondent is, and has been at all times material herein, an
employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and meets the Board's standards for
asserting jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
Oil, Chemical and Atomic Workers International Union,
Local No. 5-6, affiliated with Oil, Chemical and Atomic
Workers International Union, AFL-CIO, is, and has been at all
times material herein, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A Background
The Company, a public utility, supplying gas to the St.
Louis, Missouri, metropolitan area and the Union have
maintained a bargaining relationship for many years. The
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union represents approximately 1,400 employees who work in
the Company's operating departments.2 A sister local of the
Union, Local 5-194, represents Respondent's 400 clerical
employees The two locals have historically conducted joint
contract negotiations with the Company.
The bargaining unit represented by the Union is broken
down into departments of which the Street department, with
700 employees, is the largest Although the Street department
is in turn divided into operating divisions3 the collective-bar-
gaining agreement provides for departmental seniority for
purposes of layoff. The last contract between the parties,
which expired on July 31, contained the following provision
on seniority for layoff
Article V
Section 2 ....
In the event it becomes necessary to reduce the working
force in any department because of lack of work, em-
ployees in such department shall be laid off in inverse
seniority order, that is, the employee with the least
departmental seniority shall be the first laid off. Family
status shall be given consideration when seniority is equal
In addition the contract provides for a limited company-
wide seniority to be applied in the event of a layoff. Under this
procedure men with less than 1 year of service with the
Company must stand aside if senior employees slated for
layoff in other departments seek to bump into the junior
man's department,
Robert C. Tibbs, Jr., business manager of the Union,
testifed that the last major layoff of company employees had
occurred in 1952. It was Tibbs' understanding that the 1952
layoff was handled in accordance with the contractual provi-
sions by inverse order of seniority and with employees
bumping into other departments where there were employees
with less than 1 year of seniority. In addition, Tibbs testified
that when an employee in a department assigned to one type
of work runs out of tasks to do, he is reassigned to other
existing work There are provisions, Tibbs stated, for lateral
assignments and upgrading and downgrading of employees.
During vacation periods personnel of construction crews are
interchanged. Robert Hebler, company vice president and
general manager, testified that, while to a great extent crews
work together during the year on the same type of work,
personnel are moved from crew to crew. Hebler stated that
employees in lower classifications will work in a higher
classification on a temporary basis without bidding for the
work.
In the past, collective-bargaining negotiations looking to-
ward new contracts have led to strikes on a number of
occasions. Francis R. Leonard, company vice president for
industrial relations, testified to this history as follows: In 1956
there was a strike lasting approximately 14 days, in 1960 a
2-day strike; 1962 a 9-day strike, the 1964 agreement was
reached without a strike after the Union had worked for
one-half day without a contract, and, in 1965 there had been a
32-day strike. Leonard recalled that in 1962 and in 1965 there
had been extensions of the agreement after its expiration and
before the strikes.
B. The Negotiations
The 1967 negotiations began on July 10. Leonard, the
Company's vice president for industrial relations, testified that
after that date, the Company and Union met almost every day
except for a 1-week period when he was unavailable because of
surgery. Even during that period some meetings were held in
his absence.
As of July 31, the contract's expiration date, the following
matters were still unsettled wages, the Union having started
with a demand for an increase of 40 cents per hour, a union
proposal for a contract provision limiting performance of
bargaining unit work by foremen or supervisors, the length of
the new contract; and, the addition of Christmas Eve and New
Year's Eve as full holidays. In addition, two open items
affecting Local 5-6 only were a proposal that meters be read
by a remote reading device and the granting of additional
Saturdays off for service and installation department person-
nel.
On the afternoon of July 31, the Company offered a wage
increase of 5 cents per hour after the Union had reduced its
demand to 35 cents Thereafter, the Union dropped its request
to 30 cents per hour and the Company raised its offer to 8
cents. The Union had a scheduled membership meeting for 6
p.m. at which time the Company's proposal was submitted to
and rejected by the membership. After that meeting, at the
Union's suggestion, negotiations were resumed and at or about
midnight the parties agreed to extend the contract for 24
hours
The following day, August 1, negotiations resumed in the
office of the Federal Conciliator who met separately with
company and union negotiators.
The Conciliator informed the Company that he found the
failure to agree on language restricting foremen from doing
bargaining unit work was the biggest stumbling block to an
agreement between the parties. The Company had constantly
refused to restrict foremen in the work they could do,
although this had been a union demand since 1960 The
Conciliator then presented to the Company a proposed clause
performance of bargaining unit work by supervisors. This
suggested contract clause was rejected by Respondent's negoti-
ators.5
During negotiations on the following day, August 2, the
Union submitted directly to the Company a revised proposal
to limit foremen and supervisors in their performance of
2 The complaint alleged, the answer admitted , and I find that the
following constitutes an appropriate bargaining unit the employees in
the following departments of the Company. gas supply and control
department , service and installation department , street department,
meter reading department , meter department , transportation depart-
ment , and in the storeroom and building service departments , excluding
office clerical employees, professional employees, guards and supervi-
sors as defined in the Act.
3In the Street department there are nine divisions , three street
divisions , three equipment divisions , and three leak divisions . There is
no provision whatever for divisional seniority.
4 Art. VI, sec. 5
When lay-offs occur in any department due to lack of work, such
employees laid off shall be given preference over new employees in
other deparments with less than one (1 ) year's service. It is
understood that an employee in order to exercise such preference
must have more seniority than the employee he replaces.
5 The proposed contract clause presented by the Conciliator on
August I and rejected by the Company reads as follows
Work presently performed by bargaining unit employees shall remain
in the bargaining unit and shall be performed by regular bargaining)
unit employees . Supervisors shall be allowed to perform work only
of an instructional or emergency nature.
LACLEDE GAS CO. 247
bargaining unit work .6 The Company rejected the Union's
suggested language and for the first time in its dealings with
the Union submitted, on August 2, a proposal to satisfy the
Union's demand for a contractual limitation on foremen doing
the work of bargaining unit employees.? The Company
conditioned its proposal on the Union dropping all contract
requests other than that for a wage increase, and as to that
item the Company called upon the Union to revise downward
its demand which then stood at 30 cents per hour
Following the 24-hour contract extension agreed to at
midnight July 31, there were two additional extensions, one of
32 hours and another of 24 hours There was conflicting
testimony as to which of these two extensions was first agreed
upon and as to whether Company, Union, or Conciliator had
suggested the extensions. I do not find it necessary to resolve
these conflicts.
During the negotiations of August 3, the Union submitted a
revised counterproposal to the Company's suggested language
limiting work by foremen.8
The Company counterproposed language and at the same
time raised its offer on wages to 12 cents per hour plus 1.8
cents per hour in fringe benefits, a total wage offer of 13.8
cents per hour.9
The mediator reported back to the Company that the
Union had rejected its latest offer and had suggested that the
union and company lawyers meet in an effort to work out
acceptable contract language. This meeting was held at
dinnertime that evening.
Later that evening, August 3, the mediator brought back to
the Company new language which the Union had suggested to
cover limitation on foremen working At the same time the
Union reduced its wage demand to 28.9 cents per hour from
its prior 30-cent-per-hour request.10 The mediator also advised
Respondent that the Union had offered to continue work on a
day-to-day basis without a contract. The Company rejected the
Union's offer as unacceptable and made no further proposals
The mediator informed the Union of the Company's rejection
of its proposals at which time the Union told the mediator that
its members would remain at work and that it stood ready to
resume negotiations at any time.
At no time during the negotiations did either of the parties
make any proposal in any way affecting the seniority
provisions of the collective-bargaining agreement which ex-
pired on July 31. The Company did not inform the Union that
it wished to change the seniority system or that it did not
intend to follow the established seniority system in fur-
loughing employees.
During the course of the negotiations, when extensions of
various lengths were proposed by the Union, the Company
took the position that the Union was seeking to extend the
contract so that it would expire during the heating season
when a strike would be more effective The Company's
suggestions for contract extension were of a length to bring the
expiration date beyond the heating season.
While negotiations were in process, Tibbs, the Union's
business manager, testified before a committee of the United
States Senate chaired by Senator Magnuson at which time
Tibbs stated that there would be no strike by the Union
because "public necessity and welfare" would not permit such
action.
Following the Company's rejection of the Union's pro-
posals made during the evening on August 3, the collective-
gaining agreement expired at 8 a.m., August 4.
C. The Layoffs
As noted, at the end of the third extension, the contract
expired at 8 a.m. on August 4. At that time the Company
began laying off employees in the Street department who
worked on construction crews Also, at approximately the
same time, the Union prepared and was distributing to its
members a report on the status of negotiations with instruc-
tions to the employees that they remain at work even though
the contract had expired. The only employees laid off were
6 The Union's August 2 proposal read as follows.
The following language is not intended by the Union to exclude
Foremen or Supervisors from performing such incidental work
which has been their practice to perform ; nor is it the intent of the
Company to remove such work from the bargaining unit.
Foremen and Supervisors shall not be permitted to perform any
work normally performed by the employees covered by this
agreement except for the purpose of instructing employees, includ-
ing demonstrating proper methods and procedures for performing
work operations, or in the course of an emergency.
7 The Company's August 2 proposal reads as follows
It is not intended by the Union to exclude the Foremen or
supervisors from performing such work as it has been their practice
to perform, nor is it the intent of the Company to remove such work
from the bargaining unit.
Other than as stated in the foregoing paragraph , Foremen and
Supervisors shall not be permitted to perform any work normally
performed by the employees covered by this agreement except for
the purpose of instructing employees, including demonstrating
proper methods and procedures for performing work operations, or
to assure proper performance of work or in the course of an
emergency.
8 The Union's August 3 revised counterproposal read as follows
Foremen and Supervisors shall not be permitted to perform any
work performed by the employees covered by this agreement except
for the purpose of instructing employees , including demonstrating
proper methods and procedures for performing work operations, or
in the course of an emergency , or such incidental work as it has been
their practice to perform in the past, such as to add a helping hand
where there is an immediate need and only for a period of time to
satisfy the immediate need or in the avoidance of an accident.
9 The Company's counterproposal read
Foremen and Supervisors shall not be permitted to perform any
work performed by the employees covered by this agreement except
for the purpose of assuring proper performance of the work, or of
instructing employees , including demonstrating proper methods and
procedures for performing work operations , or in the course of an
emergency , or such incidental work as it has been their practice to
perform in the past; or to add a helping hand where there is an
immediate need and then only for a period of time to satisfy the
immediate need, or in the avoidance of an accident.
10 This union proposal read
Foremen and Supervisors shall not be permitted to perform any
work performed by the employees covered by this agreement except
for the purpose of instructing employees, including demonstrating
proper methods and procedures for performing work operations, or
in the course of emergency, or such incidental work of an immediate
need as it has been the practice of foremen and supervisors to
perform in the past, including but not limited to the following
examples
a. Lighting a lantern which is out;
b. Picking up a piece of pipe which is obstructing a driveway or
street,
c. Shoring up a ditch about to cave in,
d. Answer a telephone when employees are tied up on other
telephones and unavailable;
e. Delivery of small parts that are needed immediately to
complete a job and no one in the bargaining unit is available to
deliver same.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members of construction crews who work on the installation
and construction of mains in the city streets. With them some
equipment operators who worked with the construction crews
were also furloughed. There were no layoffs of leak crews, leak
and dnp inspectors, or corrosion inspectors although such
employees are also members of the Street department. There
were no layoffs of office employees.
Robert Hebler, vice president and general superintendent of
the Company, testified that Respondent began its preparations
for a shutdown of construction activities about a week or 10
days before the scheduled expiration of the contract on July
31. At that time plans were made to limit excavation and to
curtail starts on major projects. Hebler testified that the
Company began to consolidate crews so that jobs could be
completed before the contract expiration date, deliveries of
material to the field were curtailed and a start was made on
bringing equipment in the field back to operating centers. It
was the Company's hope, Hebler stated, that at strike time
there would be as little excavation exposed as possible so as to
minimize hazard to the public and to reduce the exposure of
company facilities to the danger of sabotage.
The construction crews which were laid off following
expiration of the agreement construct and maintain under-
ground facilities such as gas mains. This work involves digging
up and blocking public streets. The crews may be working in
the street itself or in the greenways alongside the street. If a
job is being worked continuously it is barricaded and lighted or
flagged. If the construction work is at or near the traveled part
of the road, the work is bridged over and the "spoil pile" is left
on the street side and one or two lanes of traffic are blocked,
all in an effort to keep traffic away from the ditch line.
Industrial Relations Manager Leonard explained that 24-
hour extensions of the collective-bargaining agreement were
unacceptable to the Company because such a limited period of
time did not permit for efficient planning. In explanation,
Leonard testified that a company foreman in the circum-
stances of a 24-hour contract extension would report for work
at 8 a.m , put in a full day's work, go home for dinner and a
change of clothes, and then was required to report to an
assigned point to be on hand in the event contract negotiations
broke down If the contract was extended for an additional 24
hours, word of this agreement would not reach the foreman
affected until past midnight at which time he would return
home to get what rest was available before reporting back to
work again at 8 a.m. Thus, Leonard stated, the 24-hour
extension was unworkable.
At the time employees were instructed to return home on
August 4, they were informed that there was no work
available. In the words of Company Counsel Elbert, "We admit
we told some people to go home. The only thing they were
told was to go home for lack of work. He used the word no
work." Company Vice President Hebler testified that if there
had been a contract work would have been available for the
laid-off men.
The Company admits that among the employees laid off on
August 4 through 10 were a number who were laid off outside
of departmental seniority. In all, although the number varies
from day to day, approximately 340 Street department
employees were laid off. In addition, a number of those who
were laid off on Friday, August 4, had thereafter, in the
opinion of Robert Rapp, supervisor of Respondent's payroll
department, switched to vacation status so as to remain eligible
for wage payments. Further, it was stipulated by the parties,
during the period August 4 through 10, that there were
employees at work in other departments in the bargaining unit
who had acquired less than 1 year's seniority with the
Company.
The laid-off Street department employees were returned to
work on August 11 pursuant to a company-union agreement
reached with the assistance of the governor of the State of
Missouri. Part of this agreement provided that the parties
would attempt to reach agreement with the assistance of the
conciliators. If by an agreed-upon date this effort was
unsucessful, the conciliators were empowered to issue binding
recommendations for a new contract. Before that agreed-upon
date the parties reached agreement on the terms of a new
contract with an expiration date of July 31, 1968.
D. Conclusions and Findings 1 i
The Board, with court approval, has held that an employer
violates Section 8(a)(5) and (1) of the Act when, after
expiration of a collective-bargaining agreement, it unilaterally
changes the established practice controlling, selection for
layoff. Frontier Homes Corporation, 153 NLRB 1070,
1072-73, enfd. 371 F.2d 974 (C.A. 8); Industrial Union of
Marine and Shipbuilding Workers of America, AFL-CIO v.
N.L.R.B., 320 F.2d 615 (C.A. 3), cert. denied 375 U S. 984.
This is what Respondent has done here. By disregarding the
established requirement that employees be selected for layoff
in inverse order of seniority, without notice to the Union and
affording an opportunity for bargaining concerning such
change of procedure, the Company has failed to meet its
bargaining obligation under the Act.
Both the expired bargaining agreement' 2 and Tibbs'
uncontroverted testimony concerning the 1952 layoff establish
that departmental seniority controls for layoff purposes and
that this procedure had "become a part of the established
operational pattern and thus become a part of the status quo
of the entire plant operation." N.L.R.B. v. Frontier Homes,
supra at 981.
The rationale of the court of appeals in NL.R.B. v.
Frontier Homes controls this case•
... since semonty and layoff practices are subjects for
mandatory bargaining, the employer is not free to make
changes at will. Any change in the established practices
requires that the employer notify the bargaining representa-
tive and submit the proposed change to negotiation. The
unilateral alteration of this established condition of employ-
ment is a proscribed refusal to bargain under the Act.
Industrial Union of Marine & Shipbuilding Workers of
America, AFL-CIO v. N.L.R.B., supra." 371 F.2d at 980.
1 t As noted earlier , the propriety of the layoff itself is not before
me for decision.
12 See the portions quoted above at page 248 To argue that work
would have been available for the laid-off employees had agreement
been reached on a new contract and therefore Respondent was not
required to follow the established procedure and use inverse order of
seniority for layoff "because of lack of work" is a specious postulate.
Company counsel stated that the employees were told "to go home for
lack of work ." In fact , there was no work for the employees to perform.
Whether this lack of work was caused solely by an independent decision
of the Employer, or forced upon him by real or fancied external
economic forces, the lack of work existed. Accordingly , the established
procedure applied.
LACLEDE GAS
Respondent's defense that the parties had reached impasse
on August 3, on the items then pending on the negotiating
table and that therefore the Company was free to ignore the
established layoff procedure misconceives the thrust of its
bargaining obligation. It is not necessary here to decide
whether, in fact, the Company and Union had reached impasse
on the question of a wage increase and of contractual
restrictions on supervisory personnel performing bargaining
unit work. It is sufficient to find that there was no suggestion
of impasse in negotiations looking toward modification of
seniority or the layoff procedures which had become estab-
lished conditions of employment. Indeed, no issue had been
raised during the entire negotiating period concerning this
mandatory subject of bargaining Accordingly, absent special
circumstances, unilateral action by the Company without prior
discussion with the Union amounted to a refusal to bargain in
violation of the Act. N.L.R B. v. Katz d/bla Williamsburg Steel
Products, 369 U.S 736, 747. Cf. W.L McKnight d/b/a Webster
Outdoor Advertising Company, 170 NLRB No. 144.
There are no such extenuating circumstances in this case.
Company Vice President Hebler testified that Respondent
began its preparations for the layoff of Street department
employees a week to 10 days before July 31. The layoff
commenced on August 4, and it was solely Respondent's
refusal to agree to further contract extensions which deter-
mined the time and date of the layoffs. Certainly, during this
period of almost 2 weeks it would have been possible for the
Company to notify the Union that in the event of such a
layoff it wished to bypass the established seniority practice.
Such notice to the Union would have afforded the bargaining
representative an opportunity to negotiate about the suggested
change in layoff procedure. On the other hand, assuming that
the layoff of construction crew personnel was undertaken by
the Company out of a concern to minimize public inconve-
mence, nothing has been shown here to establish that this
period of almost 2 weeks was insufficient to allow the
Company to arrange the layoff of personnel pursuant to
departmental seniority. In this connection, I note the uncon-
tradicted testimony that during vacation periods personnel are
shifted from job to job within the department and that in
preparation for this very layoff the Company consolidated
construction crews to expedite completion of jobs in process.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's opera-
tions described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the
several states and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action designed
to effectuate the policies of the Act.
The General Counsel requests that Respondent be required
to make whole its employees who were improperly laid off as a
result of the unilateral change in the layoff procedure. I shall
recommend that the Company be required to do so, with
interest added to moneys due in the manner set forth in Isis
CO 249
Plumbing & Heating Co , 138 NLRB 716. In the course of this
proceeding voluminous seniority lists and employment records
covering the period of the layoff were introduced into
evidence. However, in view of the testimony by a company
official that it was his belief laid-off employees switched to
vacation status so as to continue receiving wages for the period
of their layoff, I deem it more appropriate to refer to
supplementary investigation and compliance proceedings deter-
mination of the identity of those employees who should
properly have worked during the days in question had the
layoff been scheduled in accordance with the inverse order of
seniority as well as the determination of those employees who
were entitled to bump into departments other than the Street
department to replace employees with less than 1 year of
service with the Company
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following.
CONCLUSIONS OF LAW
1. Laclede Gas Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act
2. Oil, Chemical and Atomic Workers International Union,
Local No. 5-6 affiliated with Oil, Chemical and Atomic
Workers International Union, AFL-CIO, is a labor organiza-
tion within the meaning of the Act.
3. All employees in the following departments of the
company gas supply and control department, service and
installation department, street department, meter reading
department, meter department, transportation department,
and in the storeroom and building service departments,
excluding office clerical employees, professional employees,
guards and supervisors as defined in the Act constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of the Act.
4 At all times material herein the Union has been and is
the exclusive bargaining representative of Respondent's em-
ployees in the aforesaid bargaining unit.
5. By failing to follow the established procedure for
selection of employees for layoff and by failing to afford the
Union an opportunity to bargain concerning such deviation
from the established condition of employment, Respondent
has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) of the Act
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
The Respondent, Laclede Gas Company, its officers,
agents, successors, and assigns, shall
I Cease and desist from refusing to bargain collectively
with the Union as the exclusive collective-bargaming represen-
tative of its employees in the appropriate bargaining unit
found herein or in any related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed by the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act-
(a) Upon request, bargain collectively in good faith with
the Union as the exclusive representative of all the employees
in the appropriate unit found above covering all mandatory
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subjective bargaining including seniority and procedures for
selection of employees for layoff.
(b) Make whole all employees improperly laid off during
the period August 4 through 10, 1967, as a result of its
unilateral change of the established practice controlling selec-
tion for layoff in the manner set forth in the section of this
Decision entitled "The Remedy "
(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, personnel
records and reports, and all other records necessary to analyze
the amount of backpay due under the terms of this Recom-
mended Order.
(d) Post at its facilities in St. Louis, Missouri, copies of the
attached notice marked "Appendix."13 Copies of said notice,
on forms provided by the Regional Director for Region 14,
after being duly signed by its 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 by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 14, in writing,
within 20 days from the receipt of this Decision, what steps it
has taken to comply herewith.14
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board, and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that.
WE WILL NOT fail in our obligation to bargain collect-
ively with Oil, Chemical and Atomic Workers International
Union, Local No. 5-6, on all of your conditions of
employment, including procedures controlling selection of
employees for layoff.
WE WILL NOT in any like or related manner interfere
with the rights of our employees under the law.
WE WILL make up the wages of any employee laid off in
disregard of his seniority rights.
LACLEDE GAS COMPANY
(Employer)
Date By
(Representative ) (Title)
13 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order " shall be substituted for the
words "the Recommended Order of a Trial Examiner " in the notice. In
the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order "
14 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the Regional
Director for Region 14, in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
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.
If employees have any question concerning this notice or
compliance with its provisions, they may communicate direct-
ly with the Board's Regional Office, 1040 Boatman's Bank
Building, 314 North Broadway, St. Louis, Missouri 63102,
Telephone 622-4167.