Ohio Power Co.

National Labor Relations Board - Board Decisions

Apr 28, 1995

317 N.L.R.B. 135 (N.L.R.B. 1995)

135
317 NLRB No. 21
OHIO POWER CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
No exceptions were filed to the judge’s findings that (a) the prac-
tice of allowing union officers to take time off without pay to assist
employees with their claims at workmen’s compensation hearings
was a mandatory subject for bargaining, (b) the issue in this case
is not appropriate for deferral to arbitration, and (c) the case is not
barred by Sec. 10(b). In the latter regard, we wish to correct the
judge’s erroneous implication that Sec. 10(b) bars consideration of
conduct occurring more than 6 months before the issuance of the
complaint; in fact, Sec. 10(b) bars consideration of acts committed
more than 6 months before the filing and service of the charge.
In affirming the judge’s finding that the parties did not bargain to
impasse over the elimination of the practice in question, we do not
rely on his finding that the parties left the May 26 bargaining session
with the understanding that the Union would investigate the issue.
That was the situation at the end of the session on May 4, not on
May 26. Nor do we rely on his finding that the parties left the May
26 meeting disagreeing over whether they were at impasse.
2 Art. 5, sec. 5.1.2, of the agreement also provided that ‘‘[t]he
scheduling of employees’ daily and weekly working hours . . . shall
be determined solely by the company[.]’’
Ohio Power Company and Local Union No. 478,
Utility Workers Union of America, AFL–CIO.
Case 8–CA–25882
April 28, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On November 29, 1994, Administrative Law Judge
Elbert D. Gadsden issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed a cross-exception and an an-
swering brief, and the Respondent filed an answering
and reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order.
1. The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally, and
without affording the Union notice or an opportunity
to bargain, ending the longstanding practice of allow-
ing union workmen’s compensation (WC) officers to
take time off work without pay to attend WC hearings
at which employees of the Respondent were presenting
claims. In arriving at that conclusion, the judge found
that the Respondent had not bargained in good faith to
impasse over ending the practice during the parties’
1993 contract negotiations, and that the Union had not
waived its statutory right to bargain over that issue by
agreeing to the management-rights and zipper clauses
contained in the resulting collective-bargaining agree-
ment. The Respondent has excepted to both of the lat-
ter findings, as well as to the judge’s finding that it
violated the Act. We find no merit to the exceptions.
In affirming the judge’s ultimate findings and con-
clusions, we rely on his finding that, although the par-
ties discussed the practice during their 1993 contract
negotiations and the Respondent’s negotiator, Hendon,
indicated dissatisfaction with it, the Respondent never-
theless did not advise the Union that it intended or had
decided to terminate the practice. The judge based that
finding on the demeanor of the witnesses who testified
concerning the negotiations and on the absence of any
mention of terminating the practice in the Respond-
ent’s best and final offer, which it communicated to
the Union at the final bargaining session on May 26.
The judge found, in fact, that the Respondent never
made termination of the practice a clear proposal, as
opposed to merely an item for discussion, at any of the
negotiating sessions. Accordingly, we find it unneces-
sary to rely on the judge’s alternative finding that,
even if Hendon told the Union he was not going to
permit WC officers to attend WC hearings, that state-
ment was not a proposal but an ultimatum made to the
Union without any time specified for the action to take
place.
Turning to the Respondent’s waiver arguments, we
find, in agreement with the judge, that neither the man-
agement-rights clause nor the zipper clause of the 1993
contract constitutes a waiver of the Union’s right to
bargain over termination of the practice in question.
The management-rights clause provided, in pertinent
part, that ‘‘the company . . . shall have the right to
. . . determine the hours of work and schedules[.]’’2
The zipper clause provided that
The parties agree that this contract incorporates
their full and complete understanding and that any
prior written or oral agreements or practices are
superseded by the terms of this Agreement. The
parties further agree that no such written or oral
understandings or practices will be recognized in
the future unless committed to writing and signed
by the parties as a Supplement to this Agreement.
This Agreement shall govern the parties’ entire re-
lationship and shall be the sole source of any and
all rights or claims which may be asserted in arbi-
tration hereunder or otherwise.
The parties for the life of this Agreement hereby
waive any rights to request to negotiate, or to ne-
gotiate or to bargain with respect to any matters
contained in this Agreement except as specifically
noted otherwise herein.
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
4 Johnson-Bateman Co., 295 NLRB 180, 184 (1989).
5 Id. at 185.
6 The same finding holds for the general language in sec. 5.1.2,
quoted at fn. 2, supra.
7 We find United Technologies Corp., 287 NLRB 198 (1987), affd.
884 F.2d 1569 (2d Cir. 1989), a case relied on by the Respondent,
distinguishable from this case. In United Technologies, supra, the
management-rights clause specifically allowed the employer to make
and apply rules concerning discipline. The Board found that that lan-
guage covered changes in disciplinary rules, and that the union, by
agreeing to the language, had waived its right to bargain over such
rule changes. By contrast, the contract language here, which covers
the determination of hours and schedules, neither explicitly nor im-
plicitly covers the practice of allowing WC officers to take time off
to attend WC hearings.
8 The zipper clause also states that the parties waive their bargain-
ing rights concerning matters contained in the agreement. As the
practice in question was not among the matters contained in the
agreement, a waiver of the Union’s bargaining rights with regard to
the practice cannot be inferred from that contractual provision. See
Electrical Workers IBEW Local 1466 v. NLRB, 795 F.2d 150, 155
(D.C. Cir. 1986).
9 The zipper clause provided that the parties waived their rights to
bargain with respect to any subject, whether or not referred to in the
contract. It also stated that the agreement constituted the parties’
complete understanding and superseded all written agreements or
benefits previously made or given.
The language in those clauses was identical to the lan-
guage in the 1990 and 1987 contracts.
As the judge noted, the Board will not infer a waiv-
er of a statutory right unless the waiver is ‘‘clear and
unmistakable.’’3 Generally worded management-rights
clauses and zipper clauses will not be construed as
waivers of statutory bargaining rights.4 Waiver of such
rights may be evidenced by bargaining history, but
only if the matter at issue has been fully discussed and
consciously explored during negotiations and the union
has consciously yielded or clearly and unmistakably
waived its interest in the matter.5
We concur in the judge’s finding that the Respond-
ent has failed to demonstrate that the Union waived its
right to bargain over the termination of the practice of
allowing WC officers time off without pay to attend
WC hearings by agreeing to the cited contract clauses.
We agree with the judge that, as the contract does not
mention the practice in question, the general language
of the management-rights clause referring to the Re-
spondent’s right to determine hours of work and sched-
ules is not a clear and unmistakable indication that the
Union intended to waive its right to bargain over the
elimination of that practice.6 That finding is reinforced
by the fact that the Union not only did not ‘‘con-
sciously yield’’ its position with regard to the practice,
but stoutly maintained that position at the last negotiat-
ing session.7 As the judge also found, the fact that the
practice continued under the two previous contracts,
both of which contained identical management-rights
provisions, is further evidence that the management
rights clause in the 1993 contract was not intended to
change the practice.
Nor do we agree with the Respondent that the Union
waived its bargaining rights by agreeing to the zipper
clause in the 1993 contract. Although that clause states
that the contract supersedes all prior agreements and
practices and is to be the parties’ complete understand-
ing and sole source of all rights or claims arising out
of the parties’ relationship, we think the judge was
correct in finding that, under these circumstances, the
parties did not mutually intend the zipper clause to
abolish the practice of allowing WC officers unpaid
time off to attend WC hearings.8 The contract does not
address the practice, and, as we have noted, the Union
maintained its position concerning the practice instead
of consciously yielding it. And the practice was contin-
ued under the prior contracts even though the 1990 and
1987 agreements contained the same zipper clause as
the one in the 1993 agreement.
In Pepsi-Cola Distributing Co., 241 NLRB 869
(1979), enfd. 646 F.2d 1173 (6th Cir. 1981), the Board
found that the union had not waived its right to bar-
gain over the elimination of an annual bonus that was
not mentioned in the collective-bargaining agreement,
even though the agreement contained a zipper clause
similar to the one in this case.9 There, as here, the
practice had continued despite the zipper clause stating
that prior agreements and benefits were superseded by
the contract. Nothing was said during contract negotia-
tions that would have caused the union to believe that
its failure to include the bonus practice in the contract
would preclude it from further bargaining on the sub-
ject; indeed, the employer indicated that it intended to
continue the practice. On those facts, which are strik-
ingly similar to those presented here, the Board found
the absence of a clear and unmistakable waiver of the
union’s right to bargain over the elimination of the
bonus.
In reaching the same result in this case, we recog-
nize that the Respondent did not affirmatively indicate,
as did the employer in Pepsi-Cola, supra, that it would
continue the practice in question, but rather, expressed
displeasure with it. However, we do not find the dis-
tinction dispositive, because the subject was discussed
in negotiations and the Union indicated its intention
that the practice continue. Given the Union’s adher-
ence to its position, and the Respondent’s mere indica-
tion of displeasure about the practice, we are unwilling
to find that the Union waived its right to bargain mere-
ly because the Respondent did not state its intention to
continue the practice.
In support of its waiver argument, the Respondent
cites Radioear Corp., 214 NLRB 362 (1974), and
Electrical Workers IBEW Local 1466 v. NLRB, 795
F.2d 150 (D.C. Cir. 1986), affg. Columbus Electric
Co., 270 NLRB 686 (1984). In both of those decisions,
the Board found that unions had waived their rights to
137OHIO POWER CO.
10 Similarly, we find TCI of New York, Inc., 301 NLRB 822
(1991), to be distinguishable from this case. In TCI, supra, the Board
found that the union had waived its right to bargain over the elimi-
nation of an established bonus plan. There, however, the union had
first opposed but later agreed to a change in the language of the zip-
per clause which added a provision that the contract superseded all
prior agreements and past practices. It was the parties’ course of bar-
gaining that persuaded the Board that (in contrast with Pepsi-Cola,
supra), the union was on notice that the employer contemplated a
change in the bargaining relationship. As we have noted, no such
change in the zipper clause was negotiated in this case.
11 In affirming the judge’s finding that agreement to the zipper
clause did not constitute a waiver of the Union’s right to bargain
over the practice here, we do not rely solely on the fact that the lan-
guage of the zipper clause was unchanged from the prior contract(s).
Instead, we consider that factor and others, discussed in text above,
in finding that the Union did not clearly and unmistakably waive its
right to bargain in this regard. The Respondent’s reliance on the
D.C. Circuit’s decision in Gannett Rochester Newspapers v. NLRB,
988 F.2d 198 (1993), therefore is misplaced. In Gannett, supra, the
court was troubled by language in the Board’s decision stating that
a zipper clause carried over without modification from a prior con-
tract cannot be used to eliminate a past practice, and therefore can-
not establish a waiver of bargaining rights. The court read that lan-
guage as indicating that the Board would not find a waiver based
on a zipper clause unless the clause was renegotiated and reaffirmed
each time it was incorporated into a new contract. The court found
this ‘‘reaffirmation’’ theory erroneous. Id. at 204. We rely on no
such blanket reaffirmation theory here; our finding that the Union
did not waive its bargaining rights is based on all the factors dis-
cussed above, one of which is the unchanged language of the zipper
clause.
We note that certain courts of appeals have faulted the Board in
similar cases for applying waiver analysis when, in the courts’ view,
the precise issue was not whether the union waived its bargaining
rights concerning a subject but whether, in agreeing to contract
terms, the union had exercised its bargaining rights in such a way
as to foreclose further bargaining on the subject. See, e.g., NLRB v.
Postal Service, 8 F.3d 832 (D.C. Cir 1993); Chicago Tribune Co.
v. NLRB, 974 F.2d 933 (7th Cir. 1992). The record evidence does
not establish that the Union here exercised its bargaining rights con-
cerning the practice at issue in such a fashion as to preclude further
bargaining on the subject. That practice is not covered by or even
alluded to in the contract, either directly or by implication; and as
it has never been included in any previous contract, its absence from
the current agreement does not bespeak a negotiated change in con-
tract terms. Accordingly, we find that, even under the courts’ analy-
sis, the Union did not lose its right to bargain over the termination
of the practice.
12 The General Counsel states that no such remedy was requested
from the judge because there was no evidence at the time of the
hearing that any employee had sustained monetary losses as a result
of the unilateral change. He further avers that, since the hearing, he
has been apprised that several employees have incurred such losses.
bargain over the elimination of extracontractual bene-
fits. Both cases, however, are materially distinguish-
able from this one. In Radioear, supra, the parties were
bargaining for a first contract, and the union asked for
a clause preserving all existing benefits, but the em-
ployer rejected that request. Instead, the parties agreed
to include a zipper clause in which they stated that the
union had had the opportunity to bargain over all prop-
er bargaining subjects and that the employer would not
be obligated to bargain over any matter not referred to
or covered in the contract. Unlike this case, then, there
was no history in Radioear, supra, of the benefit’s hav-
ing been granted repeatedly notwithstanding apparently
conflicting language in the zipper clause, and the em-
ployer, unlike the Respondent, had refused the union’s
explicit request to maintain all existing benefits. In Co-
lumbus Electric, supra, the parties agreed on a zipper
clause much like the one in this case. During negotia-
tions, the union requested a list of all agreements that
would be terminated pursuant to the (apparently newly
proposed) zipper clause; the employer refused to pro-
vide such a list on the ground that none was main-
tained, but stressed to the union that ‘‘all’’ in the
clause meant just that—all agreements. The Board and
the court found that the union understood the import
of the contract language, and that by agreeing to it, the
union had waived its right to bargain over the elimi-
nation of the established bonus. Here, there was no
discussion of the zipper clause as it related to the prac-
tice of allowing WC officers to take time off work
without pay to attend WC hearings and, in contrast
with Columbus Electric, supra, the practice had contin-
ued despite identical language in the zipper clause in
the two prior contracts.10 Thus, there is no indication
that the Union understood, or should have understood,
that the zipper clause was meant to end the practice.11
2. The General Counsel has excepted to the judge’s
failure to order the Respondent to make employees
whole for any losses they may have incurred because
of its unlawful termination of the practice of affording
WC officers time off without pay to attend WC hear-
ings. The General Counsel claims that because of the
Respondent’s unlawful action, employees who for-
merly would have been represented by WC officers
have found it difficult or impossible to obtain such
representation and at times have been forced to retain
attorneys to represent them instead.12
We find no merit to the General Counsel’s excep-
tion. Although the Respondent ceased to allow WC of-
ficers to take time off work without pay to attend WC
hearings, either WC officers or other union representa-
tives are free to attend such hearings on their days off
or on vacation days. Also, according to the unrebutted
assertions in the Respondent’s answering brief, attor-
neys are able to provide a much wider range of rep-
resentation than union officers can offer. Thus, if we
were to order the Respondent to pay the expenses of
legal counsel, we would be forcing the Respondent to
pay for services that union representatives could not
have provided in any case. In sum, we find insufficient
foundation for the General Counsel’s claim for make-
whole relief.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The facts set forth above are not in conflict in the record.
orders that the Respondent, Ohio Power Company,
Brilliant, Ohio, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Allen Binstock, Esq., for the General Counsel.
James R. Blake, Esq. (Day, Ketterer, Wright & Rybolt), of
Cleveland, Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSEN, Administrative Law Judge. A charge
of unfair labor practices was filed on October 25, 1993, by
Utility Workers of America, Local 478 (the Union or the
Charging Party) against Ohio Power Company (the Respond-
ent).
On December 9, 1993, the Regional Director for Region
8 issued a complaint on behalf of the General Counsel. The
complaint in essence alleges that Respondent unilaterally ter-
minated its past practice of permitting the Union’s work-
men’s compensation officer or other union officers to take
leave, without pay, to attend workmen’s compensation hear-
ings involving claims of unit employees. Respondent termi-
nated the practice without giving prior notice to the Union
and without affording the Union an opportunity to bargain
with the Respondent about its termination of the practice and
the effects of its action, in violation of Section 8(a)(1) and
(5) of the Act.
The Respondent filed an answer to the complaint on De-
cember 20, 1993, denying that it has violated the Act as al-
leged, and affirmatively asserting that: (1) it had engaged in
good-faith bargaining with the Union prior to abolishing the
subject practice; (2) the Union waived the right to bargain
over the termination of union officers being permitted to rep-
resent unit employees at workmen’s compensation hearings
on company time; (3) the collective-bargaining agreement
between the parties provided a procedure for grievance filing
and binding arbitration, and this matter should be deferred to
that procedure; and (4) the Union’s claim is barred by the
statute of limitations and therefore, the complaint should be
dismissed.
The hearing in the above matter was held before me April
19, 1994, in Steubenville, Ohio. Briefs have been received
from counsel for the General Counsel and counsel for Re-
spondent, respectively, which have been carefully considered
along with the entire record.
On the entire record in this case, including my observation
of the demeanor of the witnesses and my consideration of the
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent an Ohio corporation,
with an office and place of business in Brilliant, Ohio (Re-
spondent’s facility), has been engaged as a public utility in
the generation, transmission, and distribution of electrical en-
ergy.
In conducting its business operations, Respondent annually
purchases and receives at its Brilliant, Ohio facility goods
valued in excess of $50,000 directly from points outside the
State of Ohio.
The complaint alleges, Respondent’s answer admits, and I
find that Respondent is now, and has been at all times mate-
rial, an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent’s answer admits,
and I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
On May 25, 1971, the Union was certified the exclusive
collective-bargaining representative of Respondent’s produc-
tion and maintenance employees at its Brilliant, Ohio power
plant. Respondent and the Union has had a longstanding col-
lective-bargaining relationship and their current contract is
effective from June 1, 1993, through May 31, 1996. Sections
6 and 7 of the current agreement, grants members of the
Union’s bargaining committee and other employees paid time
off from work to participate in contract negotiations and
meetings concerning the adjustment of grievances. The con-
tract does not provide for paid time off for any other union
officers to conduct union business.
The below-named employees of Respondent (the unit)
constitute a unit appropriate for the purposes of collective-
bargaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees, including
performance employees, at Cardinal Plant, located in
Brilliant, Ohio; excluding office clerical employees and
guards, professional employees, supervisors as defined
in the Act, as amended, and all other employees.
Since its certification on May 25, 1971, the Union has
been the exclusive collective-bargaining representative of Re-
spondent’s unit employees.
At all times material, the following individuals held the
positions set forth opposite their respective names, and have
been supervisors of Respondent within the meaning of Sec-
tion 2(11) of the Act, and agents of Respondent within the
meaning of Section 2(13) of the Act:
Mahlon Rice Director of Human Resources
Gene Hendon Labor Relations Manager
Wayne Grimm Human Resources Supervisor
Everett Townley Plant Manager
Ron Weisenborn Department Manager
Prior to August 12, 1993, Respondent had an established
practice of allowing union workmen’s compensation officers
or other union officers to leave their work shifts, without
pay, to attend or represent unit employees in workmen’s
compensation hearings.1
139OHIO POWER CO.
B. Respondent’s Unwritten Policy of Permitting Union
Workmen’s Compensation Officers to Attend
Workmen’s Compensation Hearings with Unit
Employees Claiming Benefits
Article 10, sections 6 and 7 of the current collective-bar-
gaining agreement between the parties contain provisions
which grant certain union member employees paid time off
from work to participate exclusively in contract negotiations
and meetings to adjust grievances.
The uncontroverted evidence of record shows that for
more than 10 and as much as 25 years Respondent has fol-
lowed an established practice of allowing union officers un-
paid time off from work to attend national conventions, edu-
cational or training conferences, to process complaints or
charges filed before various governmental agencies, and to
attend and assist or represent unit employees in workmen’s
compensation hearings. The latter well-established practices
remain essentially in effect to the present time in four of five
of Respondent’s plants, except with respect to union officers
attending workmen’s compensation hearings.
The 1993 negotiations for a contract
The long-established practice of WC officers being al-
lowed time off without pay to attend WC hearings did not
become a subject of consideration by the parties until the
parties commenced negotiations for a new collective-bargain-
ing agreement on April 8, 1993. At that time Respondent
presented the Union with a set of proposals. On Respond-
ent’s list of proposals was item 5 which Respondent calls a
‘‘proposal’’ but the Union calls ‘‘item for discussion,’’
which reads: ‘‘Discuss work hours and lunch periods.’’
Respondent contends the language in item 5 included its
intention to discuss ‘‘Union Officers taking time off to attend
WC hearings.’’ The Union contends that, under past bargain-
ing procedures, items such as item 5 was not a ‘‘proposal’’
but only a ‘‘subject for discussion.’’
When the parties met in bargaining session on May 4,
1993, Respondent (Labor Relations Manager Gene Hendon)
explained that the Company was looking at down sizing and
determining how many people had to be laid off. In an effort
to prevent losing worktime as a result of employees not per-
forming work because of taking off for one purpose or an-
other, including returning late from lunch or breaktime, Hen-
don testified he specifically informed the Union that WC of-
ficers would not be permitted to attend WC hearings and
classify such attendance as union business and he said that
included union officers discussing union business on com-
pany time.
Hendon (Respondent), in reference to item 5, explained
that the Company’s concern was productivity and loss of
worktime by employees returning late from lunch and
breaktime, as well as union WC officers taking unpaid time
off to attend WC hearings. Hendon also advised the Union
that based upon his research, he did not believe the Union
had any responsibility for representing employees at WC
hearings, and that WC officers were losing too much time
from work attending such hearings. Union Representative
James Kelly informed Respondent it would have to look into
the accuracy of Hendon’s contention that WC officers were
taking too much time off from work. Assuming that Hendon
is correct, if the practice is a mandatory subject of bargain-
ing, Respondent was nevertheless obligated to bargain on the
longtime practice, irrespective of the responsibility of the
Union in WC hearings.
At the May 13 bargaining session, Union Representative
Keller informed the Company that the Union understood the
Company’s concern about union WC officers and that he
would relay those concerns to each Local so that they may
address the matter.
During the last bargaining session on May 26, 1993, Kel-
ler informed the Company that from his research it did not
appear that the amount of time WC officers were away from
work was excessive or an abuse of the practice. Respondent
(Hendon) told the Union there was an abuse; and that the
Company would not grant anyone time off for union busi-
ness to attend WC hearings.
Union Representatives James Keller and Randy Blue, how-
ever, denied Hendon or the Company ever proposed or said
it was terminating or going to terminate WC officers from
attending WC hearing. In support of their testimony, they
cite Respondent’s written best and final offer dated May 26,
1993 (G.C. Exh. 2), in which there is no written expression
of intent to change, or any statement changing the longstand-
ing practice of WC officers attending WC hearings.
Based upon my observation of the demeanor of witnesses
Hendon, Keller, and Blue, as well as a copy of Respondent’s
best and final offer (G.C. Exh. 2), I am persuaded that during
the bargaining sessions Respondent did not advise the Union
that it had intended, or had in fact decided to terminate the
practice of WC officers attending WC hearings during
workhours. The record also fails to show that Respondent
ever made termination of such practice a clear ‘‘proposal’’
rather than an item for ‘‘discussion’’ during any of the nego-
tiation sessions held April 8, and May 4, 13, 14, or 26, 1993.
The record clearly shows, however, that the parties discussed
the subject in the May 4 and 26 sessions without a definite
and formal proposal, or an agreement on the matter. More-
over, if Hendon simply told the Union he was not going to
permit the WC officers to attend WC hearings, I find his
statement was not a proposal but more of an ultimatum to
the Union without any time specified for such action.
Hendon testified he informed the Union he was not deny-
ing employees representation at WC hearings by union offi-
cers. He said union officers could still attend WC hearings
on their personal day off or their vacation or other time off,
but not on company time. At that juncture, Union Represent-
ative Keller told Hendon ‘‘[Y]ou do what you have got to
do and we have got to do what we have to do.’’ As Keller
later reviewed Respondent’s proposals (G.C. Exh. 3), he said
in reference to item 5, ‘‘[T]hat’s been discussed.’’
Keller has been the union representative servicing the
Local since July 1991 on grievances and arbitration, and he
helped to negotiate the current collective-bargaining agree-
ment between the parties. He testified without dispute that
Respondent has permitted union officers to take time off to
attend union national conventions, educational conferences
for educational purposes, NLRB proceedings, to file NLRB,
OSHA, and EEO complaints, as well as to attend WC hear-
ings.
At the May 26 meeting Keller told the Company WC offi-
cers were not abusing the time off because at the Cardinal
plant, WC officer, Saunders, was off from work on WC
hearings about 45 hours a year. In response, Hendon said in
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the judgement of the Company, any hours off was an abuse
because the Company needs WC officers on the job. Union
Representative Blue told the Company he believed the Union
had a responsibility to represent unit employee claimants at
WC hearings. Hendon said he researched the matter and he
did not believe such representation was the responsibility of
the Union; that the claimant is often represented by an attor-
ney; that the Company was looking at productivity and it
was not granting any employee time off to conduct union
business (attend WC hearings); and that the Union had full-
time employees who could attend such hearings. Keller then
told Hendon you have to do what you have to do.
Keller further testified that the parties had no discussion
during the negotiation sessions on changing article 13 of the
contract (dealing with the terms and completeness of the con-
tract); that the subject company practice on WC hearings is
not included in the contract, and nor are other subjects such
as 3 months of overtime, staffing, vacation staffing, holiday
vacation for 24 hours, or 7 days a week been included in the
contract since 1969. During the discussions the Union never
indicated it was waiving its right to bargain over these or any
of the Company’s past practices. Keller further stated that the
Union pays a WC officer only for time lost—time for which
the officer was not paid by the Company, and not for an of-
ficer attending a hearing on his own vacation or personal day
off for which the Company pays him.
C. Respondent Terminated the Practice of Allowing
Union WC Officers to Attend WC Hearings
During Worktime
Jeffrey Saunders has been serving as the Union’s work-
men’s compensation (WC) officer. In the latter capacity,
Saunders informs employees of their rights under the WC
Act, and until August 12, 1993, he accompanied unit em-
ployee-claimants at WC hearings. He has also talked at unor-
ganized plants, including Respondent’s Galvin plant, about
the employees’ need to have a WC officer.
For the past 10 years, whenever Saunders had an em-
ployee who wanted him to accompany the employee to a
WC hearing, Saunders would simply notify his supervisor of
the time he needed to be off from work and he was always
granted permission to be off without pay. The Union would
in turn pay Saunders for his time off from work. This prac-
tice has been in effect for many years until August 12, 1993,
when Saunders was called to the office and advised by de-
partment Head Ron Weisenborn, in the presence of Chief
Union Steward Bill Duncan, that Weisenborn had been in-
formed by his superior that Saunders was not allowed to at-
tend any WC hearings, unless he did so on his vacation or
personal day off.
Saunders said he asked Weisenborn why was he no longer
allowed to attend the hearings; that he believed he was no
longer allowed to do so because he was so successful in rep-
resenting employees; and that the prohibition against his
going to the hearing was a retaliation by the Company
against him because he attended and attempted to organize
Respondent’s nonunion Galvin plant. The latter testimony of
what Saunders said to Weisenborn is essentially corroborated
by Union Chief Stewart William Duncan and I credit their
account not only because I was persuaded by their demeanor
that they were testifying truthfully, but also because their ac-
counts are supported by the record evidence as a whole.
Saunders further testified, without dispute, that whenever
he interrupted work to attend WC hearings he would make
up the work the next day, or the other senior technician
would fill in for him and do the job. Saunders has not at-
tended or represented any unit employees at a WC hearing
since August 12, 1993, because he was prohibited from
doing so by management. Prior thereto, he said he was in-
volved in approximately 8 hearings a year, some of which
involved more than 1 hearing, which resulted in about 12
hearings a year. He said favorable results were obtained at
those hearings on 75 percent of the claims, which consumed
from about 2 to 8 hours away from work, for a total of ap-
proximately 40 to 50 hours a year.
The day after Saunders was told he could not attend WC
hearings, Union Officer Blue testified without dispute that he
was called by human resources supervisor, Wayne Grimm,
who told him that Everett Towne, plant manager, told
Grimm to make it clear that no union officer was allowed
to attend WC hearings and that included all officers, not sim-
ply Saunders, and he wanted that understood. Blue said Re-
spondent had not given him or the Local prior notice of this
change in the longstanding practice. Nor had Respondent of-
fered to bargain with the Union on the change in practice.
He said some long-term practices were changed after mid-
term discussions, but ‘‘WC officers attending hearings’’ was
not one of the subjects of past discussions for change.
When the subject of WC officers attending WC hearings
was discussed during negotiations, Blue testified that he be-
lieved Respondent (Hendon) may have referred to Jeffrey
Saunders, when he stated that Saunders’ attendance at edu-
cational conferences did not present a problem. Other locals
did not present any research on the length of time WC offi-
cers spend away from the job. It was not until August 13,
1993, when Respondent clarified its prohibition by stating
that no WC officers (in any of its plants) will be allowed to
go to WC hearings.
Curtis Koshena, employed 6 years by Respondent and now
works as mechanic welder, was vice president and is now
president of the Union. He testified he was involved in nego-
tiations for three contracts including the current one; and that
the parties have engaged in midterm negotiations on proce-
dural matters in the past but did not address the contract on
past practices of union officers attending WC hearings. His
testimony is consistent with the testimony of union witness
Blue.
Gene E. Hendon, manager for Respondent testified that
Respondent has five plants, seven divisions, and one general
office. It has 11 collective-bargaining agreements with unions
involving two International Unions. He said he negotiated the
contracts with the Unions, including the current one with the
Cardinal plant near Steubenville, Ohio. He said he deter-
mined that workmen’s compensation officers representing
employees in WC hearings was not necessary. Although
union officers do not receive pay by the Company for doing
union business (WC hearings) their benefits of $7 an hour
are not tolled when they are off on union business.
Hendon said he further stated that WC officers do not rep-
resent the claimant in these hearings and they have little to
do with the decision that is made by the hearing officer upon
an established formula. The Company is not contesting the
claim in the hearing but it only evaluated the claim for the
percentage owed. The Company’s decision to terminate the
141OHIO POWER CO.
practice of WC hearing officers was not directed at Saunders,
and the decision was made prior to implementing it in other
locals. He acknowledged termination of the officers attending
WC hearings was not discussed during the May 13 or 14
meeting because the Union stated it was not prepared to dis-
cuss the matter on those occasions.
Manager Hendon acknowledged that the Company’s best
and final offer did not contain any language about attending
workmen’s compensation hearings. He said the Company did
not believe anything needed to be discussed about terminat-
ing the practice of union officers attending WC hearings, be-
cause it never has been any language in the contract on the
subject. The Company implemented the change on WC offi-
cers attending hearings on June 1, 1993, the date the contract
was ratified with the Cardinal plant. It was implemented on
July 1 for the other six plants. Local Union 478 nor any of
the other plants employees filed a grievance against the
change in policy.
Finally, Hendon testified, and Respondent’s counsel ar-
gues, that the Company changed its policy of WC officers
attending WC hearings pursuant to the management-rights
clause of the current collective-bargaining agreement, which
provides in pertinent parts as follows:
Article 3
Rights of Management
3.1 Except as otherwise provided in this agreement,
the company, in the exercise of its functions of man-
agement, shall have the right to decide the policy,
methods, safety rules, direction of employees, assign-
ment of work, equipment to be used in the operation
of the company’s business, and to determine the hours
of work and schedules, the right to hire, discharge, sus-
pend, discipline, promote, demote, and transfer employ-
ees, and to release employees because of lack of work
or for proper or legitimate reasons, subject, however, to
employee’s privilege of bringing a grievance as pro-
vided in this agreement. The enumeration of the above
management prerogatives shall not be deemed to ex-
clude other prerogatives not enumerated.
. . . .
Article 5
Working Conditions
5.1 Work week and work day
5.1.1 The work week shall consist of seven consecu-
tive calendar days beginning and ending with Friday
night (midnight between Friday and Saturday) or the
starting time of a shift that overlaps Friday midnight.
The work day shall be a period of 24 hours beginning
and ending at midnight or the starting time of the shift
that overlaps midnight.
5.1.2 The scheduling of employees’ daily and weekly
working hours, including the scheduling of employees
to work more or less than eight (8) hours in a work day
or forty (40) hours in a work week, shall be determined
solely by the company. To the extent practicable, how-
ever, work schedules shall include work days between
eight (8) and twelve (12) consecutive hours (exclusive
of an unpaid lunch period where provided by the com-
pany) and work weeks of between thirty-six (36) and
forty-eight (48) hours. This section 5.1.2 shall not be
construed as a guarantee of hours of work or pay.
. . . .
Article 13
Conclusion
The parties agreed that this contract incorporates their
full and complete understanding and that any prior writ-
ten or oral agreements or practices are superseded by
the terms of this agreement. The parties further agreed
that no such written or oral understandings or practices
will be recognized in the future unless committed to
writing and signed by the parties as a supplement to
this agreement.
This agreement shall govern the parties’ entire rela-
tionship and shall be the sole source of any and all
rights or claims which maybe asserted in arbitration
hereunder or otherwise.
The parties for the life of this agreement hereby
waive any rights to request to negotiate, or to negotiate
or to bargain with respect to any matters contained in
this Agreement except as specifically noted otherwise
herein.
Manager Hendon explained that witness Koshena’s testi-
mony about midterm discussions involved a provision in the
contract on overtime procedures. It was on language that was
in the contract. There was no signed agreement on the mat-
ter. He said the same thing is true with respect to the discus-
sion about vacation and shift scheduling. There was no
signed agreement and the problem was resolved. The Union
never made a proposal on WC officers attending WC hear-
ings. The Company changed a practice for which it did not
have to go to the contract in order to change it. Hendon ac-
knowledges there was no discussion on the zipper clause dur-
ing their discussions with the Union about WC hearings.
Analysis and conclusions
It is well established by the uncontroverted evidence of
record that Respondent’s longstanding practice of permitting
union officers to take off from work without pay, to attend
and participate in workmen’s compensation (WC) hearings
on behalf of a unit employee claimant. On August 12, 1993,
the Respondent terminated its practice of permitting union
officers to attend workmen’s compensation hearings during
worktime, except on the union officer’s vacation or personal
day off.
The General Counsel contends that the longtime practice
of permitting union officers unpaid time off from work to at-
tend WC hearings is a mandatory subject of bargaining; and
that the Respondent could not unilaterally terminate the prac-
tice without first notifying the Union it was going to do so,
and affording the Union an opportunity to bargain on the ter-
mination of the practice. In support of his contention, the
General Counsel cites BASF Wyandotte Corp., 278 NLRB
173 (1986); and Axelson, Inc., 234 NLRB 414 (1978).
It is particularly noted that in Axelson, supra, the Board
stated at 415:
We have defined mandatory subjects of bargaining as:
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Those comprised in the phrase ‘‘wages, hours and
other terms and conditions of employment’’ as set forth
in Section 8(d) of the Act. While this language is
broad, parameters have been established, although not
qualified. The touchstone is whether or not the pro-
posed clause sets a term or condition of employment or
regulates relation between the employer and employees.
[International Union of Operating Engineers, Local
Union No. 12, 187 NLRB 430, 432 (1970).] [Emphasis
added.]
In reference to terminating the payment of wages or time
spent in negotiations as a mandatory subject of bargaining,
the Board further stated that: ‘‘a matter that concerns the re-
lations between an employer and his employees . . . .’’ or
as the Supreme stated in Allied Chemical & Alkali Workers,
Local Union No. 1 v. Pittsburgh Plate Glass, 404 U.S. 157,
178–180 (1971):
a matter that ‘‘vitally affects’’ the relations between an
employer and employees is a mandatory subject of bar-
gaining, whereas a matter that bears a ‘‘speculative and
insubstantial’’ impact on the relations between an em-
ployer and employees is a permissive subject of bar-
gaining.
In concluding, the Board said, as it had previously found,
wages paid to employees during presentation of griev-
ances constitute a mandatory subject of bargaining and
that the unilateral abrogation of such a contractual term
or past practice, [Hilton-Davis Chemical Co., 185
NLRB 241, 242–243 (1970)], violates Section 8(a) (5)
and (1) of the Act. . . . [and so does] union-related
matters inure to the benefit of all the members in the
bargaining unit by contributing to more effective collec-
tive-bargaining representation and thus, ‘‘vitally affect’’
the relations between an employer and employees.
Although the practice of allowing union officers to attend
WC hearings during worktime was without pay, it is noted
that the services of Union Officer Saunders nonetheless in-
ured to the benefit of individual unit employee claimants.
This is so even though Saunders was not paid by Respondent
for time off from work; and even though Saunders may not
have been representing employees as an advocate or in an
adversarial role as an attorney at law. Saunders nevertheless
assisted unit employees by explaining their rights to them
under the law, helping them complete WC forms, impliedly
giving them moral or emotional support before and during
WC hearings, as well as by helping to maintain health and
safety conditions in Respondent’s plant.
It was on August 12, 1993, when Union Officer Saunders
was first precluded by Respondent from attending a WC
hearing. This was the first time the Union learned that Re-
spondent was implementing termination of the practice of al-
lowing union officers to attend WC hearings. Since Respond-
ent had not given the Union prior notice that it was going
to implement or change the longstanding practice, the change
was not only unilateral but Respondent also failed to afford
the Union a reasonable opportunity to bargain on the change
of this longstanding practice.
Respondent’s unilateral termination of the practice also
‘‘vitally affected’’ the benefits which inured to Union Officer
Saunders because it restricted him from attending and partici-
pating in WC hearings, only to times when Saunders is on
vacation or on a personal day off. The Union, however, does
not pay union officers when they attend WC hearings on
their own vacation time or personal days off, because the of-
ficers are being compensated for such days by the employer.
Consequently, I find that Respondent’s unilateral termination
of the longstanding practice affected unit employees, as well
as union WC officers in their relationship with the Respond-
ent, concerning safety and wages. As such, the longstanding
practice constituted a mandatory subject of bargaining. BASF
Wyandotte Corp., supra; Axelson, Inc., supra.
Although Respondent contends it notified the Union of its
intent to change the practice of allowing union officers to at-
tend WC hearings during work hours, it is particularly noted
that during the last negotiation session on May 26, Manager
Hendon simply exclaimed on one or two occasions that he
was not going to permit WC union officers to attend WC
hearings on company time; that union WC officers could at-
tend such hearings on their vacation or personal days off;
and that Respondent was not denying union WC officers an
opportunity to attend WC hearings on their vacation or per-
sonal day off. The parties did not agree on any resolution of
‘‘the time off practice’’ discussed in the May 26 bargaining
session. Consequently, I find that Respondent’s mere excla-
mation that it was not going to permit union officers to at-
tend WC hearings on company time did not definitely an-
nounce that it was terminating the practice at a specific time,
and its exclamation alone did not constitute notice to the
Union that Respondent was actually terminating the practice
at that time.
In fact Respondent contends it implemented termination of
the practice on June 1, 1993, when the negotiated contract
with the Union at its Cardinal plant became effective and
that it implemented termination of the practice at its five
other plants when the contract at those plants became effec-
tive July 1, 1993. Respondent, however, neglected to estab-
lish and the record evidence fails to show that Respondent
ever communicated notice to the Union that it was imple-
menting the longstanding practice of allowing union officers
unpaid time off to attend WC hearings. In fact, if Respond-
ent’s simple exclamation that it was going to terminate the
practice amounted to an ultimatum, or fait accompli. Id. SGC
Control Services, Inc., 275 NLRB 984 (1985).
Did the parties bargain to impasse?
Respondent alleges and argues that it engaged in good-
faith bargaining with the Union; and that it bargained to im-
passe with the Union on the subject of time off of WC offi-
cers, prior to terminating the practice.
With respect to bargaining to impasse, in Taft Broadcast-
ing Co., 163 NLRB 475 (1967), enfd. sub nom. Television
Artists, AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1986), the
Board stated:
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of the
parties in negotiations, the length of the negotiations,
the importance of the issue or issues as to which there
is agreement, the contemporaneous understanding of the
parties as to the state of the negotiations are all relevant
143OHIO POWER CO.
factors to be considered deciding whether an impasse in
bargaining existed.
In the instant case, the parties met in bargaining sessions
on April 8 and May 4, 13, and 26, 1993. The record shows,
however, that the Respondent mentioned the subject of the
union officers attending WC hearings in the May 4 meeting.
Respondent raised the same subject in the May 13 meeting
when the Union said it was not prepared to discuss the sub-
ject.
The only real discussion of the subject of union officers
attending WC hearings occurred in the May 26 meeting,
when the Union did not agree with Respondent that too
much time was being spent by union officers attending WC
hearings; or that unpaid time off allowed union officers to
attend WC hearings was not being abused by union officers
and such time off should not be terminated. The parties left
the meeting disagreeing that they were at impasse in their
discussion, and the Union promising to get back with Re-
spondent after it investigated the matter with the membership
in 10 days. Although the Union did not get back to Respond-
ent until 5 weeks later, I find that the parties had not bar-
gained to impasse for the following reasons:
1. The discussion or bargaining history of the parties on
the subject of union officers attending WC hearings was
brief, in one session, and of short duration.
2. The importance of the issue of union officers attending
WC hearings was not explicitly listed in item 5 of Respond-
ent’s proposals, while all other items in Respondent’s pro-
posals were explicitly stated therein as proposals.
3. The contemporaneous understanding of the parties on
May 26 was one of disagreement that union officers were
spending too much time at WC hearings, and that Respond-
ent did not submit any written estimated or statistical proof
that they were. The parties left the meeting without an agree-
ment and with the understanding that the Union would get
back to the Company after hearing from the Locals on the
matter. Taft Broadcasting Co., supra, and Television Artists,
supra.
In any event the employment condition which Respondent
sought to change (allowing union officers to attend WC hear-
ings on work time) was not in the contract between the par-
ties, and the bargaining obligation of the Respondent re-
mained the general one of bargaining in good faith to im-
passe before instituting change. Michigan Bell Telephone
Co., 306 NLRB 281 (1982).
Respondent (Manager Hendon) admitted that its best and
final offer to the Union did not contain any language about
union officers attending WC hearings, because Respondent
did not believe the latter subject needed to be discussed,
since the language of the practice was never in the contract
between the parties. If Respondent really believed this, it
may be reasonably inferred from this impression that the par-
ties were not at impasse in bargaining and Respondent was
not bargaining in good faith.
I therefore conclude and find upon the above uncon-
troverted and credited testimonial and documentary evidence,
that Respondent did not bargain in good faith to impasse be-
cause Respondent not only did not believe it had an obliga-
tion to bargain on this longstanding practice, since language
on the practice was not a part of the contract; and that the
parties only engaged in minimal dialogue on changing the
practice of union officers attending WC hearings in the nego-
tiation session on May 26, 1993. The bargaining history on
the subject in the latter session was of extremely short dura-
tion. The evidence also fails to show that the parties ever
reached a contemporaneous understanding that they were at
impasse on the subject. In fact the evidence shows the issue
of impasse was disputed by the parties. Finally, the evidence
fails to show, and I find that the parties did not in fact bar-
gain to impasse on the longstanding practice. Michigan Bell
Telephone Co., supra.
Did the Union waive its right to bargain on the subject
pursuant to the management-rights clause of
the contract?
Finally, Manager Hendon testified that the Company
changed its policy on union officers attending WC hearings
pursuant to the management-rights clause of the current col-
lective-bargaining agreement. As discussed above, however,
Respondent’s unilateral change of the longstanding practice
of allowing union officers to attend WC hearings is a manda-
tory subject of bargaining by statute.
Whether or not the Union waived its right to bargain on
this mandatory subject of bargaining is not limited to a con-
struction of the language in the management-rights clause of
the contract between the parties. As the Supreme Court has
stated in Metropolitan Edison Co. v. NLRB, 460 U.S. 693,
708 (1983):
We will not infer from a general contractual provision
that the parties intended to waive a statutorily protected
right unless the understanding is ‘‘explicitly stated.’’
More succinctly, the waiver must be clear and unmis-
takable.
While the management-rights clause of the current con-
tract, as well as the last two contracts between the parties
provided that the Company shall determine ‘‘hours of work
and schedules’’; ‘‘that the contract incorporated the full and
complete understanding of the parties and no oral under-
standing or practice will be recognized unless in a signed
writing’’; ‘‘that the agreement shall be the sole source of any
and all rights and claims’’; and ‘‘that the parties waived any
rights to request to negotiate or bargain on any matter con-
tained in the contract.’’ Clearly, the latter waiver clause ap-
plies to terms or matters in the contract.
Conspicuously absent in the language of the clause, how-
ever, is any mention of the longstanding (25 years) practice
of the Company allowing union officers unpaid time off to
attend WC hearings, or that the Union has waived its right
to bargain on the Company’s termination of that longstand-
ing practice, which by statute, is a mandatory subject of bar-
gaining.
Consequently, I cannot infer from the language in the
above management-rights clause that the Company’s right to
determine ‘‘hours of work and schedules,’’ that the Union in-
tended to waive its right to bargain on the Company’s termi-
nation of the unwritten practice of allowing union officers
time off to attend WC hearings with unit employees. Since
such comparable language was not used in the clause, the
clause does not contain the required clear and unmistakable
language that the Union has waived its right to bargain on
Respondent’s termination decision. Metropolitan Edison Co.
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
v. NLRB, supra; Dearborn Country Club, 298 NLRB 915
(1990).
Since the language in the management-rights clause cited
by the Respondent was a part of the two previous contracts
while the Respondent acquiesced in continuation of the prac-
tice, it may be reasonably concluded that the management-
rights clause was not intended to address the Company’s
practice on WC hearings. At no time during the bargaining
sessions between the parties did the Union willingly concede
to Respondent’s desire to change the practice. In fact the
Union (Blue and Keller) made it clear that the Union in-
tended to adhere to the longstanding practice on WC hear-
ings. Nor does the phrase in the clause ‘‘oral understanding
or practices’’ excuse the Respondent for its action, since this
language alone is ambiguous, and is not clear and unmistak-
able that the Union waived its right to bargain on a change
of the practice. Such ambiguous language may not be used
to justify Respondent’s unilateral changes.
More specifically, article 13 of the contract appears to in-
dicate that prior practices which the parties intended to abol-
ish were superseded by provisions recited in the contract.
The contract in the instant case does not mention the practice
of union officers attending WC hearings, which practice con-
tinued long after the effective dates of the management-rights
clause in the current and two past contracts. Associated Serv-
ices for the Blind, 299 NLRB 1150, 1151–1152 (1990); Mur-
phy Oil U.S.A., Inc., 286 NLRB 1039 (1987). As the Board
stated there:
As the Board has recognized, the normal function of
such clause is to maintain the status quo, not to facili-
tate unilateral changes. GTE Automatic Electric, 261
NLRB 1491, 1492 (1992).
The Board also stated in Southwestern Portland Cement
Co., 303 NLRB 473, 479 (1991):
Where an employer is relying on zipper clauses, such
as those herein, to enable it to make unilateral changes,
or to institute new terms and conditions of employment
not contained in the agreement the record must disclose
that the particular matter in issue was fully discussed or
consciously explored in negotiations, and that the Union
consciously yielded, or clearly and unmistakable waived
its interest in the matter. Angelus Block Co., 250 NLRB
868 (1980); Rockwell International Corp., 260 NLRB
1346 (1982).
The evidence of record clearly shows that during the nego-
tiations the parties did not fully discuss or consciously ex-
plore Respondent’s complaint that union officers were spend-
ing too much time at WC hearings, or whether the long time
practice of attending such hearings would continue or be ter-
minated. Respondent did not present any evidence in support
of its complaint that the WC officers were spending too
much time at WC hearings. More significantly, Respondent
did not contradict or present evidence to refute Saunders’ tes-
timony or the Union’s report that Saunders was spending ap-
proximately 40 or 45 hours a year at WC hearings. Respond-
ent did not offer any proposals on this subject and it did not
state that it had intended to terminate the practice at any spe-
cific time before it precluded Saunders from attending a WC
hearing on April 12, 1993.
Are issues in the instant matter barred by Section 10(b)
of the Act?
Respondent argues that the charge and complaint in the in-
stant case is barred by Section 10(b) of the Act. As counsel
for the General Counsel argued, however, presumably Re-
spondent is contending that the practice on attending WC
hearings was terminated by the effective dates of the current
contracts (June 1 and July 1, 1993). The evidence fails to
show, however, that the Union had any knowledge that the
practice on WC officers had been terminated by Respondent
until August 12, 1993, when officer Saunders was forbidden
to attend a WC hearing. Under these circumstances the time
frame for limitations did not begin to run until August 12,
1993, and the complaint was issued December 9, 1993, well
within the period of 10(b) limitations.
Should the issues in the instant matter be deferred
to arbitration?
Finally, Respondent argues that the matter in issue is one
for deferral to the grievance arbitration procedure under the
current contract. Respondent, however, does not cite any pro-
vision of the contract pursuant to which the current issue
should be deferred. The contract does specify what con-
troversies arising under the contract should be deferred to
grievance arbitration, but the matter of attending WC hear-
ings is not a subject in the contract. In fact, the contract is
silent on the practice of union officers attending WC hear-
ings. Under these circumstances, deferral for grievance arbi-
tration of this matter is not appropriate.
I therefore conclude and find upon the foregoing credited
evidence and cited legal authority that Respondent unilater-
ally terminated its longstanding practice of allowing union
officers unpaid time off to attend WC hearings on claims of
unit employees; that the said practice was a mandatory sub-
ject of bargaining; that Respondent terminated the practice
without giving the Union prior notice of the termination, and
without affording the Union an opportunity to bargain with
Respondent about termination of the practice, and the effects
of its action; that Respondent failed to bargain to impasse
with the Union before it terminated the practice; and that Re-
spondent’s action in unilaterally terminating the practice con-
stituted an interference with, restraint upon, and coercion
against employees in the exercise of rights guaranteed them
in Section 7, in violation of Section 8(a)(1) of the Act, and
its action also constituted failure and refusal to bargain in
good faith with the exclusive collective-bargaining represent-
ative (the Union) of its employees, in violation of Section
8(a)(1) and (5) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices warranting a remedial order, I shall recommend that
it cease and desist from engaging in such conduct, and that
it take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent failed and refused to bar-
gain with the Union, the designated collective-bargaining
representative of its unit employees, by unilaterally terminat-
ing its longstanding practice of allowing union officers un-
paid time off to attend workmen’s compensation (WC) hear-
ings, without notifying the Union and affording it an oppor-
145OHIO POWER CO.
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
tunity to bargain on the termination, Respondent has inter-
fered with, restrained, and coerced its employees in the exer-
cise of rights guaranteed them in Section 7, in violation of
Section 8(a)(1) of the Act; and that the same conduct of Re-
spondent also constituted failure and refusal to bargain with
the Union in good faith, in violation of Section 8(a)(1) and
(5) of the Act, the recommended Order will provide that Re-
spondent cease and desist from engaging in such unlawful
conduct, and that it take certain affirmative action to effec-
tuate the policies of the Act.
Because of the character of the unfair labor practices here-
in found, the recommended Order will provide that Respond-
ent cease and desist from or in like or related manner inter-
fering with, restraining, or coercing employees in the exer-
cise of their rights guaranteed by Section 7 of the Act. NLRB
v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941).
On the basis of the above findings of fact and upon the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. Respondent Ohio Power Company is, and has been at
all times material, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union, Local Union No. 478, Utility Workers of
America, AFL–CIO, is, and has been at all times material,
a labor organization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees, including
performance employees, at the Cardinal plant, located in
Brilliant, Ohio; excluding office clerical employees and
guards, professional employees, supervisors as defined in the
Act, and all other employees, constitute a unit appropriate for
collective-bargaining within the meaning of Section 9(b) of
the Act.
4. At all times material, the Union has been the designated
and exclusive collective-bargaining representative of employ-
ees described in the above unit for purposes of collective-
bargaining with respect to rates of pay, wages, hours, and
other terms and conditions of employment.
5. At all times material, the Respondent and the Union
have been parties to successive collective-bargaining agree-
ments for more than 10 years, the last of which was effective
by its terms from June 1, 1990, through June 1, 1993.
6. By unilaterally deciding and implementing termination
of its longstanding practice (of allowing union officers un-
paid time off to attend WC hearings on behalf of a unit em-
ployee), without the consent of the Union and without af-
fording the Union an opportunity to bargain on the proposed
change, Respondent has interfered with, restrained, and co-
erced its employees in the exercise of rights guaranteed them
by the Act, in violation of Section 8(a)(1) of the Act, and
by failing and refusing to bargain with the Union in good
faith, in violation of Section 8(a)(1) and (5) of the Act.
7. By unilaterally deciding and implementing the termi-
nation of the longstanding practice of allowing union officers
unpaid time off to attend WC hearings on behalf of claimant
employees, without the consent of the Union and without
bargaining with the Union to impasse, Respondent has vio-
lated Section 8(a)(5) of the Act.
The aforesaid unfair labor practices affect commerce with-
in the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Ohio Power Company, Brilliant, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with the
Union by implementing the termination of its longstanding
practice without prior notice to the Union and not allowing
the Union an opportunity to bargain on the change.
(b) Failing and refusing to bargain collectively with the
Union to impasse on Respondent’s decision to terminate the
practice of allowing union officers unpaid time off to attend
WC hearings with unit employee claimants.
(c) Unilaterally terminating its longstanding policy of al-
lowing union officers unpaid time off to attend WC hearings
with unit employee claimants, without notifying the Union
and without bargaining with the Union in good faith to im-
passe.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees of Respondent in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind the termination of the policy of allowing union
officers unpaid time off to attend WC hearings of unit em-
ployee claimants.
(b) Reinstitute the longstanding policy of allowing union
officers unpaid time off to attend WC hearings of unit em-
ployee claimants from August 12, 1993, until such policy is
changed pursuant to agreement with the Union or by valid
good-faith bargaining to impasse, on behalf of employees in
the below appropriate bargaining unit:
All production and maintenance employees, including
performance employees, at Cardinal Plant, located in
Brilliant, Ohio; excluding office clerical employees and
guards, professional employees, supervisors as defined
in the Act, as amended, and all other employees.
(c) On request, bargain in good faith with the Union on
Respondent’s practice of allowing union officers unpaid time
off to attend WC hearings on behalf of unit employees.
(d) Post at Respondent’s Brilliant, Ohio and other plants
with which it has collective-bargaining agreements with the
Union, copies of the attached notice marked ‘‘Appendix.’’3
Copies of the notice, on forms provided by the Regional Di-
rector for Region 8, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT interfere with, restrain, or coerce our em-
ployees in the exercise of rights guaranteed them by the Act,
by unilaterally deciding and implementing termination of our
longstanding practice of allowing union officers unpaid time
off to attend WC hearings with unit employee claimants,
without first notifying the Union and affording it an oppor-
tunity to bargain on the proposed termination of the policy.
WE WILL NOT unilaterally terminate our longstanding pol-
icy of allowing union officers unpaid time off to attend WC
hearings with unit employee claimants, without notifying the
Union and without bargaining with the Union in good faith
to impasse.
WE WILL rescind the termination of our practice of allow-
ing union officers unpaid time off to attend WC hearings
with unit employee claimants.
WE WILL NOT fail and refuse to bargain with the Union
as the duly designated collective-bargaining representative of
our employees in the below described appropriate unit:
All production and maintenance employees, including
performance employees, at Cardinal Plant, located in
Brilliant, Ohio; excluding office clerical employees and
guards, professional employees, supervisors as defined
in the Act, as amended, and all other employees.
WE WILL, on request, bargain in good faith with Local
Union No. 478, Utility Workers of America, AFL–CIO on
our practice of allowing union officers unpaid time off to at-
tend WC hearings with unit employee claimants.
WE WILL apply and honor the terms of the collective-bar-
gaining agreements, effective June 1, 1993, and July 1, 1993,
or any added or successor agreement thereto, at our Brilliant,
Ohio, and our other plants, until such policy or practice is
changed pursuant to agreement with the Union or after valid
bargaining with the Union to impasse.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
OHIO POWER COMPANY