St. Louis Telephone Employees Credit Union

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 625 (N.L.R.B. 1984)

ST LOUIS TELEPHONE EMPLOYEES CREDIT UNION 625
St. Louis Telephone Employees Credit Union and
Office and Professional Employees Internation-
al Union, Local No. 13, AFL-CIO. Case 14-
CA-15991
14 December 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 20 April 1983 Administrative Law Judge
Thomas E. Bracken issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief in opposition to the Respondent's exceptions.1
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, 2 and
conclusions only to the extent consistent with this
Decision and Order.
The issue presented is whether the Respondent
failed to bargain in good faith with the Union over
its decision to create new supervisory positions,
and to staff those positions by promoting unit em-
ployees. The judge found that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by unilater-
ally removing 21 employees from the bargaining
unit; by refusing to honor and apply the terms of
the current collective-bargaining agreement to
those employees; by failing and refusing to with-
hold from the promoted employees' wages dues au-
thorized to be deducted by dues checkoff and fail-
ing to remit those dues to the Union; and by failing
and refusing to bargain with the Union over the
impact of the promotions. We disagree.
The operative facts begin with the Union's certi-
fication on 19 September 1979 in the following
unit:
All office employees employed by the Em-
ployer at its facilities located at 4650 Hampton
Avenue, St. Louis, Missouri, and 1111 Woods
Mills Road, St. Louis County, Missouri, EX-
CLUDING managerial employees, confiden-
1 The General Counsel's motion to strike the Respondent's first excep-
tion for lack of clarity is hereby denied
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cr 1951)
We have carefully examined the record and find no basis for reversing
the findings
In agreeing with his colleagues that the facts of the instant case distin-
guish it from those relied on by the judge, Member Hunter expresses no
view on the merits of those cases
tial employees, professional employees, guards
and supervisors as defined in the Act.
Negotiations for the parties' first contract com-
menced in April 1980. At that time the Respondent
employed approximately 16 employees plus Gener-
al Manager Mitchell, Manager Mann, Assistant
Manager Reese, and four persons—Hoepfinger,
Beal, Ukena, and Harster—who were called super-
visors by the parties. The latter four individuals
had asked Mitchell if they could be included in the
bargaining unit. Consequently, during the negotia-
tions, Mitchell told union representative O'Toole
that the Respondent would include the supervisors
in the bargaining unit. There was never any discus-
sion as to whether the supervisors met the defini-
tion of a supervisor within the , meaning of Section
2(11) of the Act.
The Union submitted a proposed recognition
clause which read as follows: "The Company
agrees to recognize the Union as sole collective
bargaining agent for all office and office clerical
employees including supervisors, excluding the
manager and assistant manager." The Respondent
offered a counterproposal, which was accepted by
the Union, recognizing the Union in a unit "of all
employees working as office employees and ex-
cluding managers." The parties then agreed to clas-
sify Hoepfinger, Beal, Ukena, and Harster as "ad-
ministrators" and to include them in the bargaining
unit. The parties reached agreement on a contract
which was effective from ,16 July 1980 through 15
July 1983.
From the summer of 1980 until the end of 1981,
the Respondent experienced a phenomenal growth
in its operations which resulted in the augmenta-
tion of its two facilities 'with four new branch of-
fices. Also, the employment complement grew
from a total of 23 to 60 employees.
Throughout this time, General Manager Mitch-
ell, Manager Mann, and Assistant Manager Reese
were the only individuals not covered by the col-
lective-bargaining agreement. Only Mann and
Reese had the power to hire, fire, discipline, and
process grievances during that period of time. Ad-
ditionally, Mann was the only person who estab-
lished employee breaktimes or authorized overtime,
and he, together with Reese, approved scheduled
vacations and float days.
The four administrators did not have the author-
ity to hire, fire, discipline,' effectively recommend
the same, or to assign work to employees. In fact,
they performed bargaining unit tasks in addition to
having responsibility for the administration of their
respective departments. Accordingly, it does not
273 NLRB No. 90
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appear that the administrators were supervisors
within the meaning of Section 2(11) of the Act.
In November 1981, the Respondent initiated
plans for a reorganization in response to its acceler-
ated growth. Effectiye . 1 January 1982, the Re-
spondent established a -new management hierarchy
and promoted 22 employees into the new supervi-
sory and s _man.agenal positions. : Hoepfinger, Ukena,
Krems, and Stinnett, the administrators at that
trine, were among those promoted. 3 Assistant Man-
ager Reese, also among the 22, was given the addl-
. tiorial responsibility of branch office operations.
' The Respondent effectuated its reorganizationt
without notice , to 'or prio-r bargaining with the
Union. IvidreOve'r, the Respondent announced that
those' promoted would no longer be covered by the
collective-hargaining . agreement and therefore
would not he required to pay union dues. Accord-
ingly, the Respondent ceased to deduct dues from
their paycheeks:
The parties subsequently met _on 10 February
1982 to' discuss the reorganization. O'Toole com-
plained to Manager Mann that the new managers
-Were 'still "performing bargaining • unit work. Mann
responded that lie -'needed more time to hire addi-
tional people to fill the bargaining unit vacancies
' created by the - promotions and the Union raised no
objections.. In fact, between 31 December 1981 and
mid-July 1982, the Respondent opened two more
branch offices and its work force was increased
from approximately 60 to 135- employees, supervi-
sors, and managers.
The Respondent contended that it had no obliga-
tion to bargain with the Union because those who
were promoted became Section 2(11) supervisors
who occupied positions not intended by the parties
to be included in the bargaining unit. Consequent-
ly, the Respondent felt justified in ceasing to
deduct union dues from the employees' pay.
The General Counsel argued, and the judge con-
curred, that the parties had agreed to include su-
pervisor in the bargaining unit, that whether those
,promoted in January 1982 were , actually Section
2(11) supervisors was irrelevant, and that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
by unilaterally promoting the employees and refus-
ing to bargain with, the Union thereafter. Both the
Geneial -Counsel- and the judge relied on Arizona
, Electric Coopérative, 250 NLRB 1132 , (1980), and
Carohnd Telepho. ne Co.,' 258' NLRB :1387 (1981).
Further, the judge relied on Kendall College, 228
NLRB 1,083 "(1977), 'in holding that the Respond-
ent's promotions had a significant impact on the
• 3 The General Counsel initially alleged that the promotion of these
'nunistrators was violative. -but amended the complaint at trial to *delete
them
bargaining unit such that the Respondent had an
obligation to bargain with the Union over the Re-
spondent's reduction of the bargaining unit.
First, we disagree with the judge's conclusion
that the parties agreed to include supervisors in the
bargaining unit. The parties did agree to include
four employee administrators, but it is clear that
these individuals were not supervisors within the
statutory definition. This is especially true in light
of the very small work force in existence at the
time the contract was negotiated. Furthermore, the
Respondent objected to the Union's specific refer-
ence to "supervisors" in the recognition , clause pro-
. posed by the Union and instead included only
office employees and excluded managers.
Second, we reject the notion that it is irrelevant
whether or not the promoted employees were stat-
titory supervisors. In this regard the judge has mis-
placed his reliance on Arizona Electric, supra and
Carolina Telephone, supra. In Arizona Electric,
supra, the Board held that the respondent had vio-
lated the Act by unilaterally removing certain em-
ployees from the bargaining unit during the mid-
term of the contract, and reclassifying them as su-
pervisors. The Board found it irrelevant to deter-
mine whether the promoted individuals were su-
pervisors but focused on the fact that the 'parties
had previously agreed to the inclusion of these em-
ployees in the bargaining unit and that there had
been no change in either the employees' job duties
or in the Respondent's operations. Similarly, the
'Board held in Carolina Telephone, supra, that the
Respondent violated the Act by unilaterally ex-
cluding a. group of secretaries from the unit when
the parties had initially agreed to their inclusion
and their duties had not materially changed before
-their removal from the unit.
In the instant case, unlike the factual settings in
Arizona Electric and Carolina Telephone, supra, the
'duties of the unit employees who were promoted
had changed. The Respondent did not merely reti-
tle bargaining unit employees who, but for a classi-
fication change, would have continued to perform
bargaining unit work. Instead, the Respondent re-
quired the promoted employees to perform super-
visory tasks and imbued them with the authority of
statutory supervisors and managers—powers and
responsibilities . that they had not previously en-
joyed when performing strictly bargaining unit
work.
In particular, 12 of the individuals named in the
complaint—Vivian Harster, Karen Schmidt, Pat
Schmidt, Cheryl Hood, Ron Bull, Dennis Cook, Jo
Ellen Voss, Pauline Hill, Claire Louis, Barbara
Stimac, Charlotte Jones, and Joyce Bell—are either
branch managers or assistant branch managers. The
ST LOUIS TELEPHONE EMPLOYEES CREDIT UNION 627
parties stipulated that the managers and their assist-
ants have the same powers. The evidence estab-
lishes that these powers include the authority to
discharge, to schedule working hours, and to re-
solve first-step grievances. On this evidence, we
find that the branch managers and assistant branch
managers are supervisors within the meaning of
'Section 2(11) of the Act.
The remaining alleged discriminatees are Pat
Voss, supervisor of loans and collections; Jackie
Hamra, assistant supervisor in charge of collec-
tions; Norman Gericke, assistant supervisor in
charge of mortgage loans; Sharon Wright, supervi-
sor of certificates, new accounts, and daily action
funds; Terry Cartwright, supervisor of share drafts
and VISA; Bill Rogers, assistant supervisor of IRA
accounts; Jo Ward, supervisor of accounting;
Karen Aronoff, assistant supervisor in charge of
tellers; and Dennis Manning, manager of supplies.
Union representative O'Toole testified that he
considered Jackie Hamra, Norman Gericke, Sharon
Wright, Terry Cartwright, Jo Ward, and Karen
Aronoff to be supervisors. He further testified that
he viewed Pat Voss .and Dennis Manning as man-
agers but did not consider Bill Rogers to be either
a supervisor or manager.
Jackie Hamra assists Pat .Voss in the loan and
collection department. In his absence, she is in
charge of the department but, otherwise, she is re-
sponsible for the work of the two or three clerks in
the division. Hamra also evaluates job perform-
ances of employees and has effectively recommend-
ed the discharge of an employee.
Norman Gericke also reports to Pat Voss and is
responsible for the work of several clerks dealing
with real estate loans and first and second mort-
gages. Gericke evaluates the job performances of
the clerks in his department and trains them in
their areas of deficiencies.
Karen Aronoff schedules working hours and as-
signs work to the tellers in the main facility. She
reports to Jo Ward who evaluates clerks and tell-
ers, assigns work, and has discharged an 'employee.
Both Ward and Voss report to Shirley Ukena,
- manager of operations, who reports directly to
General Manager Mann.'
Sharon Wright is responsible for the work of be-
tween 11-25 employees who handle neW accounts,
certificates, and the daily action fund. Terry Cart-
wright has the responsibility for the work of about
seven employees in the share draft and VISA de-
, Partment. Bill Rogers heads the newly formed IRA
accounts division, staffed with two or three Clerks.
He is also responsible for all the IRA accounts gen-
erated by the branches and he trains the IRA per-
sonnel at the Respondent's :various locations.
Rogers, Wright, and Cartwright report to Jan Stin-
nett, manager of new accounts/certificates and in-
vestments, who reports directly to General Manag-
er Mann.
Finally, Dennis Manning assists Donna Krems,
assistant supervisor of administration. Krems' re-
ports to Dale Hoepfinger, manager of administra-
tion, who reports directly to General Manager
Mann. The parties stipulated at trial that Hoep-
finger has the authority to process grievances for
the ReSporident, has access to employee personnel
files and records, and that Krems possesses Hoep-
finger's responsibilities and authorities in his ab-
sence. Manning is responsible for the physical man-
agement of the main facility and its branches in-
cluding handling tenant complaints, securing and
monitoring janitorial and security services, manag-
ing equipment and maintenance contracts, and
overseeing courier services.
It is clear that Hamra, Gericke, and' Aronoff are
statutory supervisors by virtue of their respective
authorities to recommend discharge, to evaluate
employees, and to schedule and assign work. Aron-
off reports to Ward who occupies a position in the
Respondent's hierarchy at the same level as Voss,
to whom Hamra and Gericke report. Ward has -ex-
ercised the authority to discharge an employee, and
she also has the authority to evaluate employee
performances. Thus, Ward too is a statutory super-
visor. It can safely be inferred that Voss, Rogers,
Wright, and Cartwright possess at least as much
authority as do Hamra, Aronoff, and Gericke, who
are on the hierarchical rung below- them, and that
they must share Ward's authority to discharge. Ac-
cordingly, we find that Voss, Rogers, Wright, and
Cartwright are supervisors within the meaning of
Section 2(11) of the Act.
Union representative O'Toole testified that in his
opinion Dennis Manning was a manager and
should be excluded from the bargaining units. Prior
to the reorganization, Manager Mann performed
the tasks for which Manning is now responsible.
Consequently these duties had never been consid-
ered to be bargaining unit work and Manning is ac-
cordingly excluded from the unit.
Having determined that the Respondent promot-
ed these individuals into true supervisory positions,
the crucial issue is whether the Respondent violat-
ed Section 8(a)(5) and (1) of the Act by promoting
them without bargaining with the Union. We em-
phasize first that neither the decision to create new
supervisory positions nor the selection of individ-
uals to fill these positions is a mandatory subject of
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining. 4 Under the Act, neither party may dic-
tate to the other its choice of representatives and,
therefore, an employer need not bargain with a
union over its selection of supervisors. However,
an employer ' may have an obligation to bargain
with a union if it reduces bargaining unit work.
For instance, if an individual promoted to a super-
visory position continues to perform former bar-
gaining unit work, that loss of work to the bargain-
ing unit may be a change in the terms and condi-
tions of- employment that could give rise to a , bar-
gaining,obligation under Section 8(d) of the Act.
Unlike , the situation in Kendall College, supra,
where the Board found that the respondent had
violated .Section 8(a)(5) and (1) by removing a sub-
stantial number of employees from the bargaining
unit unilaterally and thereby abolishing bargaining
unit jobs, the Respondent's , personnel action here
was not sufficient to give rise to any duty to bar-
gain with the Union. The Respondent immediately
began hiring replacements to fill the bargaining
unit vacancies temporarily created by its decision.
Although some of the promoted individuals contin-
ued to perform a degree of bargaining unit work
While new employees were being hired, the Re-
spondent could not have been expected to have ex-
actly 21 new employees waiting in the wings at the
same tinie it promoted another 21 employees. Ulti-
mately, no unit jobs were lost; in fact, more were
created. -The Respondent is accorded a reasonable
period of time during the transition within which
to fill its bargaining unit vacancies, thus eradicating
any temporary job' . losses and negating a duty to
bargain over the reduction of bargaining unit work.
Accordingly; we find Kendall College, supra, inap-
posite to the instant case and find, contrary to the
judge, that the Respondent did not have an obliga-
tion under these circumstances to bargain with the
Union over its reorganization.
Accordingly, we shall dismiss the complaint.
ORDER
The complaint is dismissed.
4 Consequently, the Respondent also did not violate the Act by ceasing
to make dues deductions from promoted employees' wages or by exempt-
ing them from coverage of the collective-bargaining agreement
DECISION
STATEMENT OF THE CASE
THOMAS E BRACKEN, Administrative Law Judge
This case wa's tried at St. Louis, Missouri, September 13,
14, and 15 and November 29, 1982 1 The charge was
' All dates are in 1982, unless otherwise indicated
filed by the Union- on June 11 (amended July 9 and Sep-
tember 1), and the complaint was issued July 13. The
original complaint alleges that the Respondent, St. Louis
Telephone Employees, Credit Union, violated. Section
8(a)(1) and (5) of the Act, as to employees Charolotte
Jones, Karen Aronoff, Jackie Hamra, Norman Gericke,
Karen Schmidt, Cheryl Hood, Dennis Cook, Claire
Louis, Joyce Bell, Jo Ward, Sharon Wright, and Bill
Rogers. On September 1, an amendment to the complaint
was issued which added the names of 13 additional em-
ployees, alleging that their rights had been violated, Just
as those set forth in the original complaint. These addi-
tional employees were Dale Hoepfinger, Donna Krems,
Shirley Ukena, Pat Voss, Jan Stinnett, Terry Cartwright,
Vivian Harster, Pat Schmidt, Ron Bull, Jo Ellen Voss,
Pauline Hill, Barbara Stimac, and Dennis Manny. 2 The
violations alleged were for unilaterally changing job clas-
sifications, wages, benefits, and other terms and condi-
tions .of employment of employees; by refusing to apply
the collective-bargaining agreement with the Union to
these employees; by requiring these employees to with-
draw from the' Union, canceling their dues-checkoff
agreements, and failing to withhold dues from the wages
of these employees, and not remitting to the Charging
Party dues consistent with valid employee authorization
checkoff provisions; by refusing to bargain v;/ith the
Charging Party, On request, as the exclusive collective-
bargaining representative of all employees of Respond-
ent; and failing to bargain in good faith with the Charg-
ing Party by reneging on- an agreement to waive all time
periods for the filing of grievances regarding the afore-
mentioned charges.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Employ-
er, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Missouri corporation, has been engaged
in the operation of a credit union for approximately 47
years, with its main office in St. Louis, Missouri During
the 12-month period ending July 30, 1982, Respondent
loaned money to and secured deposits from individuals,
valued . in .excess of $500,000, of which an amount in
excess of $50,000 represents deposits from and/or loans
to individuals located outside the State of Missouri. Re-
spondent admits, and I find that it is an êinployer en-
gaged in commerce and in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act
2 During the course of the hearing, the General Counsel's motion to
withdraw the complaint as to Hoepfinger, Krems, Ukena, and Stinnett
was granted The parties stipulated that from and after January 1, 1982,
these four employees have the power and have exercised such power to
evaluate Respondent's branch managers as to the personnel relations and
branch operations, that Hoepfinger has the authority to process griev-
ances for the Respondent, that these employees have had access to em-
ployee personnel files and records, and that Krems possesses Hoepfinger's
responsibilities and authbrity in his absence
ST LOUIS TELEPHONE EMPLOYEES CREDIT UNION 629
II THE LABOR ORGANIZATION INVOLVED -
,
The Union, sometimes referred to as Local 13, or the
Charging ,Party, is a labor organization within the mean-
ing of, Section 2(5) of the Act
ALLEGED UNFAIR LABOR PRACTICES
- A. Background3
Respondent, sometimes referred to as Company, Em-
ployer, or Credit Union, commenced its operation as a
credit union in 1935, operating from one office. The
members of , Respondent, each of whom must own one
share of stock, are generally employees of Southwestern
Bell Telephone Company, Western Electric Company,
Inc , and American Telephone and Telephone Company,
Long Lines Division.
Prior to 1980, Respondent employed 17 to 18 employ-
ees at its main office located at 4650 Hampton in St.
Louis, and at a field office located on premises of the
Western Electric Company. At this time it had approxi-
mately 13,000 members. From 1980 to September 1982,
the membership had increased to approximately 27,000 to
28,000 members. To help service these members in Sep-
tember 1982, the number of Respondent's employees had
grown to approximately 135, and it had opened up six
additional branch offices .
The controlling body of Respondent-is a board of di-
rectors consisting of 13 persons who are elected by the
membership. All are volunteers, and receive no salary.
Prior to 1980, these Board members were chiefly man-
agement employees of the , telephone companies.
After 1980, they were primally members of the Commu-
nication - Workers of America (CWA), as, well as employ-
ees of the same companies as listed above. There were
also two ,committees of three persons each, who were
elected by the Credit Union memberShip. One was called
the supervisory committee, and it was responsible for
audits and compliance with state statutes. The other
committee was the credit committee and it was responsi-
ble for following the Board's policies and practices re-
garding loans.
The .highest official of Respon'dent is Thomas Mitchell,
whose title was- general manager/treasurer Mitchell, a
member of the CWA, was also a member of the Board,
and reported directly to the Board. Respondent's manag-
er for all times material hereto, and the key working offi-
cial -in the day-to-day operation of the Credit .Union, was
Orville Mann. Mann, who was hired on September 4,
, 1979, reported directly to the general manager/treasurer
but. unlike him, was not a member of the board of direc-
tors, or a member of the CWA
Prior, to entering into the first and Current collective-
bargaining agreement in July 1980, the board of directors
had established personnel policies which related to the
wages and benefits received by the Credit Union em-
3 The testimony herein was substantially uncontradicted There was
one major issue of credibility, which concerns whether a company offi-
cial agreed to allow the Union to' waive time limits applicable to the
filing of a grievance A second Issue was whether there was a meeting of
company and union officials on January 15 , 1 have-resolved these credi-
bility Issues following the summation of the testimony related thereto
ployees. At that time there were no written personnel
policies as to discipline, misconduct, or discharge, and
the thanager himself assumed these responsibilities as part
of his duties.
B.' The Pre-1980 Events
On September 19, 1979, an election was conducted by
the National Labor Relations Board , for certain employ-
ees of Respondent. On September 26, 1979, the Board
certified the Charging Party as the exclusive collective-
bargaining representative in the following unit:
All office employees employed by the Employer at
its facilities located at 4650 Hampton Avenue, St
Louis, Missouri, and 1111 Woods Mills Road, St.
Louis County, Missouri, EXCLUDING managerial
employees, confidential employees, professional em-
ployees, guards and supervisors as defined in the
Act.
At the time of the election there were 16 employees on
the agreed-upon voter eligibility list. (R. Exh. 16.) In ad-
dition to these employees, the Respondent also em-
ployed, at that time, seven other employees, General
Manager Mitchell, Manager Orville Mann, Maureen
Reese, Joydean Bachelier, John Beal, Vivian Harster,
and Dale Hoepfinger Managers Mitchell, Mann, and As-
sistant Manager Reese did not vote. Also, the last four
named employees did not vote, although the _reasons for
this are not clear in the record. O'Toole testified that he
"believed" that at election time Reese was the supervisor
of bookeeping, Hoepfinger was supervisor of accounts,
and that Harster was the supervisor of the loan depart-
ment. He , did not remember Beal's title. According to
Mann, Reese was the assistant manager, the only assist-
ant manager he ever had, 4 Hoepfinger was the senior
collector, Harster the senior loan counselor, Bachelier
his secretary, and Beal a general all-iround handyman.
Following the' certification, contract negotiation' s were
not pursued by Local 13 as a "matter of strategy. Mem-
bership on Respondent's board of directors was coming
up for an election, and Local 13 was looking forward to
a new board, whose members would be more union ori-
ented than management oriented. On December 6, 1979,
the Union did forward to the Company a proposal con-
sisting of various contract clauses However, these pro-
posals did not contain a recognition clause.
C. The 1980 Negotiations
About March or April 1980, 6 or 7 months after the
certification, negotiations commenced. Local 13's negoti-
ating team cOnsisted of Business Representative Patrick
O'Toole, employees Margaret Stoff and Shirley Ukena.5
Respondent's four-person negotiating team was led by
Treasurer Mitchell and his chief assistant manager,
Mann.
4 Reese was at no time a member of the bargaining unit
5 Ukena was promoted from' an accounting department employee to
administrator in that office sometime between the election, and the adop-
tion of the collective-bargaining agreement
630 DECISIONS OF NATIONAL LABOR , RELATIONS ,BOARD
At the first meeting one of the matters discussed was
the status of Hoepfinger, Ukena, Harster, and Beal, none
of whom had voted in the election. As testified to by
Mann, these four employees had previously notified
Mitchell that they wanted to be covered by the collec-
tive-bargaining agreement. O'Toole testified without con-
tradiction that during the negotiations concerning a rec-
ognition clause, Mitchell stated "I'm going to give you
something that you'll really like. We're going to include
the supervisors in the bargaining unit. 6 O'Toole did not
ask Mitchell why he was offering to do so, nor did he
specifically name the employees he considered to be su-
pervisors. O'Toole did testify that the Union considered
Hoepfinger, Ukena, Harster, and Beal to be supervisors,
because they had been excluded from voting in the' elec-
tion.
At the following Meeting Local 13 submitted a pro-
posed agreement to the Credit Union, in which the rec-
ognition Clause specifically provided that supervisors
were to be in the bargaining unit. Article I, captioned
"Union Recognition," read as follows.
The Company agrees to recognize the Union as
sole collective bargaining agent for all office and
office clerical employees including supervisors, ex-
cluding the manager and assistant manager
This recbgmtion clause was not accepted by Respond-
ent, and at the following session Respondent submitted
its own clause, ,which contained both a recognition
clause and -managemelit rights clause as follows:
Recognition
The Employer agrees to recognize the Union as the
sole and exclusive Collective Bargaining Represent-
ative for and on behalf of all employees working as
office employees and excluding Managers.
It is agreed that nothing in this agreement shall
limit the employer in the exercise of its ftinctions of
management to serve the needs of all members, and
not limited to the direction of its working forces,
the determination of the number of employees it
will -employ or retain, the right to employ, disci-
pline, discharge, promote, classify, demote, transfer
or release employees, determination of the hours of
employment and working shifts, scheduling of the
production of work to be performed and deterniina-
tion of the operations, methods, and processes-being
vested in and reserved by the Employer.
While the record does not disclose when the Employ-
er's recognition clause was submitted, or specifically ac-
cepted by the Union, it was accepted, and appears in the
collective-bargaining agreement that was entered into by
On the first day of the hearing Respondent had objected to the ad-
mission of this conversation based on the parole evidence rule Respond-
ent's objections were sustained, and the General Counsel moved for a re-
consideration of this ruling When the hearing resumed, the General
Counsel's motion to reconsider was granted, and the conversation
ted into evidence See Joe Carroll Orchestras, 254 NLRB 1158, 1162
(1981), Federated American Insurance Co, 219 NLRB 200, 203 (1975),
Printing Industries of Northern California, 204 NLRB 329 (1973)
the parties for the period of July 16, 1980, to July 15,
1983, inclusive. (G.C. Exh. 3.) O'Toole testified without
contiadiction that during the negotiations- he discussed
the matter of supervisors with Treasurer Mitchell, and
Mitchell agreed that the persons referred' to in the
Union's original recognition clause as , supervisors, would
be classified in the agreement as administrators."' The ex-
ecuted agreement in article XII set forth wages for em-
ployees under four headings: (1) temporary and part
time; clerks, tellers, receptionist; (3) counselors, book-
keeper, secretary; and (4) administrators. This administra-
tor classification covered Hoepfinger, Ukena, Beal; and
Harster, and subsequently Jan Stennett, when Harster
ceased being an administrator. The administrators' pay
was substantially higher than that of the employees in
the other classifications.
From the time of the signing of the bargaining agree-
ment until December 31, 1981,. the contract. covered all
wages, hours, terms, and conditions of all employees 'of
the Company, including Hoepfinger, Ukena, Harster, and
Beal, excepting only Managers Mitchell, Mann, 'and As-
sistant Manager Reese Also, on several occasions. fol-
lowing the signing of the agreement, the parties amended
its terms through sound, basic collective bargaining. One
matter involved an amendment that concerned holidays
that fell on Mondays. The other involved the establish-
ment of a "branch coordinator," and culminated in a
letter agreement dated April 6, 1981, by which the
Union agreed to the Company's proposal that such a
person would receive - an extra $3 a day for each' work-
day (G.C. _Exh:'7.) this person was commonly referred
to 'as "in-charge" but, had no additional responsibilities
and was a classification employee.8
D. The Growth of the Credit Union and Changes in'
' 'the Organizational Structure
Chiefly because of the aggressive policies of Mann, the
Credit Union grew tremendously in all aspects from the
summer - -of 1980 through December 31, 1981. When
Mann started as manager, the only services offered were
loans and savings and checking acdounts. He rapidly in-
troduced real estate loans, second mortgages,- cashiers
checks, travelers checks, trust accounts, custodial ac-
counts, daily -action fund accounts, thrift accounts, and
IRAs. '
• To handle this growth the work force grew from the
23 em- iiloyees at the time of the election, to '60 by the
'end of December 1981' So also the nuinber of members
increased from 13,636 as of June ' 30, '1980, td 21,628 by
December 31, 1981, and for the same period of time,
the total assets increased from -$26,545,278 83 to
7 I credit O'Toole's testimony and note that Mitchell, Mann's superior
officer, was not called to testify by the Respondent
8 Mann, in testifying, regularly referred to the clerks, tellers, and re-
ceptionists as,classification 1 employees, and the counselors, bookkeepers,
and secretaries as classification 2 employees, although they were not so
designated in the _contract The term "in-charge" was apparently an old
expression that had been used at one time by Western Electric employ-
ees, and had been absorbed into the language of the credit union employ-
ees
ST LOUIS TELEPHONE EMPLOYEES CREDIT UNION 631
$97,925,305.55. To service these members, the Respond-
ent opened up four branch offices in the same period.9
Respondent's tremendous growth was nationally rec-
ognized in the credit union industry. A news release of
the Credit Union National Association, Inc. located in
Madison, Wisconsin, reported that "The CUNA report
found the fastest growth among the large credit unions
was experienced by St Louis Telephone Employees
Credit Union, St. Louis, Missouri which vaulted from
328th largest in 1980 to 58th in 1981." (R. Exh 9.)
During this period of unprecedented growth Mann
was making virtually all management and supervisory
decisions, as well as performing many ministerial func-
tions. He determined which employees should receive
upgrades, assigned tellers, scheduled vacations, oversaw
the filing of Federal reports and, along with Maureen
Reese and John Beal, responded to branch office burglar
alarms in the middle of the night Throughout this period
Mitchell, Mann, and Reese were the only employees not
covered by the collective-bargaining agreement.
In October and November, Mann spoke with Mitchell
and the administration committee about the necessity of
reorganizing the operation of Respondent because of its
growth and state financial regulations. Finally, in No-
vember 1981 the board of directors was convinced that a
reorganization was necessary.
In the last week of November, Mann conducted a reg-
ularly scheduled staff meeting at the main office, which
was attended by 40 to 50 employers. At this meeting
Mann announced that the Credit Union was to open up
"managerial" positions, that these positions would be
posted on the bulletin board, that the employees should
be thinking about it, and if any one was interested to
contact him. This was the first notice that the employees
received which informed them that there was to be a
company reorganization Prior to this meeting, Mann had
not notified any representative of Local 13 of these
planned changes.
Mann's statement that the new positions would be
posted on the bulletin board was never carried out. Arti-
cle IX of the parties' collective-bargaining agreement
provided for posting as follows:
Section 1—Promotions and transfer shall be on the
basis of seniority, qualifications, ability and fitness
to do the job. Job vacancies within the bargaining
unit shall be posted by the company for a three (3)
day period. The company may fill the position tem-
porarily until bidding is complete
In the first week of December 1981, Mann began to
personally conduct interviews with the employees he
had selected to fill the new positions. Margaret Stoff,
who had been a bookkeeper for 3 years,' was called in by
Mann and informed she was to be promoted to the posi-
9 One in Hazelwood, Missouri, in October 1980, in Baldwin, Missouri
in March 1981, in St Louis in July 1981, and Fairview Heights, Illinois in
August 1981 This increase in branches continued in 1982 as two more
branches were opened up in April As of the date of this hearing, the
branch office in Hazelwood handled more volume and business transac-
tions than the entire organization when Mann commenced employment in
September 1979, and had in this branch almost as many employees as had
been employed by all of the offices at the time Mann was hired
tion of supervisor of accounting. Her duties would be the
paying of bills, balancing the Journal, preparing financial
statements, and evaluating the employees in her depart-
ment. She was further told that Mary Lowery was to be
in charge of the tellers in the accounting department and
that she would evaluate Lowery. The manager showed
her a diagram setting forth the people to be promoted
and the new positions they would occupy, telling her
that she would be under Ukena. The manager also told
her she would no longer be in the Union, and that she
would be on probation for 9 months Also, if she wished
to return to her old job she could do so. Stoff asked if
the jobs were to be posted on the bulletin board, and the
manager advised that this would not be done as they
were not union jobs, and therefore the Company had no
need to post them.
Mann forthrightly, testified that when he interviewed
employees for promotions, "I explained to them that if
they took the position of [Management] they would no
longer be represented by the Union, that they would no
longer be part of the Union." He did not recall telling
anyone not to pay union dues, and there was no testimo-
ny that he did so." Margaret Stoff, when asked if she
knew of anyone who was required to cancel their dues-
checkoff agreement, replied, "No. Mr. Mann just said
that you would no longer pay your union dues. You
didn't have to."
On Tuesday, December 15, 1981, the administrative
committee recommended to the board of directors the
salary structure for "the new management group." On
the following night, all employees considered by Mann
for promotions attended a meeting at a restaurant in St.
Louis County which was conducted by Mitchell and
Mann. Mann congratulated all present on their promo-
tions and Mitchell introduced each person, stating his or
her new title and duties. When he asked for questions,
employee Vivian Harster asked if these people would be
in the Union any longer, and Mitchell said no, because it
was too hard for supervisors to evaluate fairly another
union member, and therefore Respondent felt it would be
better if supervisors were no longer in the Union.
On December 28, 1981, the board of directors formally
adopted the reorganizational plan and approved the new
salary schedule to be used "for the newly appointed
management people." According to Mann, ,these new
rates were approximately 50 cents an hour more than
their union rates.
On December 30, 1981, a two-page written notice was
placed on each employee's desk by Respondent. This
letter began as follows "I am very pleased to announce
a new organizational structure and the promotions of
various staff people into the management positions." The
letter then went on to list the names of 22 employees,
and to state briefly their new duties. The letter also
stated that all of the people named in the letter were
now part of the new management structure, and would
henceforth "be working for the credit union outside of
the Union Contract." (G.C. Exh 8.)
IS Art VI of the parties' contract provided that Respondent would
check off union dues from the wages of all union members, and remit this
money to the Union on a monthly basis
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At no time prior to the December 30, 1981 notice to
the staff of the new organizational structure had Mann
or Mitchell discussed their plans with Local 13, or any
of its officers or stewards. However, when Chief Stew-
ard Jo Ann Waffler received her copy of the December
30 memorandum, she called Business Representative
O'Toole, informed him of the contents of the letter, and
asked him if the Company could make those changes,
and if the Union could do anything about it. Wattler was
not an experienced steward, as she had only held that
office since the previous October, and had not filed or
processed any grievances. O'Toole advised her that he
would set up a meeting with the Employer.
E. The Events of 1982
1. The January 5 letter
By a letter dated January 5, Dale_ Hoepfinger, the
newly appointed assistant manager in charge of person-
nel, wrote to , O'Toole, notifying him that "the credit
union has established a new managerial team." (G.0
Exh. 9.) In the letter Hoepfinger advised that all the
people who were to staff the team had been taken from
the ranks of the Credit Union employees, and he then set
forth 21 names He also wrote that these people would
no longer be covered by the union contract "and will
therefore need withdrawal cards if possible."
O'Toole received Hoepfinger's letter on January 6,
and this was the first time that he had been advised by
Respondent that Respondent was making these organiza-
tional changes.. He then started an investigation as to
why these employees were being taken out of the bar-
gaining unit, telephoning Respondent. According to
O'Toole, he talked to either Mann or Hoepfinger, and
scheduled a meeting for ,January 8. This meeting was
subsequently canceled because of O'Toole's sickness, and
another meeting was scheduled.
O'Toole testified that he and Steward Wattler met
with Mann at the main office of the Credit Union on the
afternoon of January 15. Wattler testified that she
thought the meeting was around January 15. At the
meeting they discussed the contents of the Company's
January 5 letter, and O'Toole asserted that some of the
.employees named therein were still doing the same work
that they had done prior to January 1. Mann advised him
that these people would be doing strictly managerial
work, • and that other people would be hired to do the
work that the new managers had formerly performed,
but that he needed more time to hire additional employ-
ees When O'Toole then asked Mann if he would waive
the time period for filing grievances, if any such griev-
ances should -arise out of this situation, Mann replied yes
to his request.
Wattler corroborated O'Toole's testimony that he
asked Mann if he was willing to waive time limits for
filing a-grievance. Wattler was a hesitant, unsure witness,
and impressed me as an advocate who was testifying for
a cause, and not stating the facts as she remembered
them, and I do not credit her testimony.
• Mann admitted that a meeting had been scheduled for
January 15, but denied that such a meeting was held.
Mann fixed the date of his first meeting in 1982 with
O'Toole as February 10.
O'Toole was a very busy union official who participat-
ed in many meetings with many employers, and he had
difficulty in remembering dates throughout his testimony
and never produced any written notes or records of
meetings. Both Steward Wattler and Stoff testified that
at a meeting of the parties on June 8 O'Toole advised
Respondent that he had written records that would show
that a meeting was held on January 15 and would furnish
them to the company officials. The record does not
show that he ever did so, nor did he produce any' such
records at the hearing. I credit Mann's testimony that
there was no meeting on January 15, as he was an im-
pressive, candid witness. He had previously checked his
files, and found no record of such a meeting. It was
Mann's policy to make notes of every meeting he attend-
ed.
2 The February 10 meeting
All parties agree that there was a'meeting on February
10. O'Toole, Wattler, and Local 13's president Pat
Douglas met at the main office with Mann and Hoep-
finger. At this meeting the parties discussed essentially
the same matters that O'Toole had testified were dis-
cussed on January 15. O'Toole testified that he brought
up that managers were still doing bargaining unit work.
Mann replied that he needed more time to hire more
people. O'Toole also questioned the amount of time that
employees would have to decide to return to their
former job. The business representative also testified that
he proposed that if a grievance needed to be filed in the
future, Respondent waive "all time limits," and that
Mann agreed to this Finally, O'Toole - asked Mann if the
Company would consider opening and renegotiating the
whole contract, so as to settle this problem of managers
and assistant managers. Mann replied that he did not
have authority to d6 that. O'Toole's desire to reopen the
whole contract was based on a request of the union
membership expressed at a union meeting in late January.
Mann testified that the meeting did concern the
Union's claim that the Company, had taken people from
the bargaining unit, and that it was also O'Toole's posi-
tion that the contract was too ambiguous He also admit-
ted that the Union wanted to open the contract and re-
negotiate it in its entirety. Mann acknowledged that he
told O'Toole that he did not have the authority to
reopen the contract, as only the board of directors has
such power. Mann also denied that he agreed to any
waiver of time periods for the filing of a grievance, and
further maintained that it was not discussed.- ,
I credit Mann's testimony that he did not agree to
waive time periods for the filing of a grievance concern-
ing the promotion of the employees. It is to be noted
that O'Toole did not argue with Mann that he had:previ-
ously agreed at a prior meeting that he would waive
time periods his inherently probable that had Mann so
agreed on January 15, and if several weeks later Mann
reversed himself, O'Toole would have vigorously re-
minded him of his prior agreement, and would have de-
manded to know why Mann had changed his position.
ST LOUIS TELEPHONE EMPLOYEES CREDIT UNION 633
O'Toole testified that prior to the meeting the relation-
ship between the Credit Union and the Charging Party
was congenial and informal. Whenever there had been a
problem, he and Mann would sit down and "hash out"
the problem. There had been very few formal grievances
and no arbitration cases in the history of their relation-
ship. The business representative also testified that he
thought that Mann had the authority to waive time peri-
ods for filing grievances, but admitted that he had never
been told by the Board of Directors that Mann had such
power. O'Toole at no time requested Mann to put in
writing an agreement to waive the time period
3. The events of March
Sometime in March, the Union formulated its position
as to the exclusion from the Union of the employees who
had been promoted. On March 19, pursuant to instruc-
tions from O'Toole, Steward Wattler filed a written
grievance with Assistant Manager Reese. The grievance,
as drafted by O'Toole, read as follows:
Nature of grievance Management positions taken out
of the, union indiscriminately. Donna Krems, Karen
Aronoff, Pat Voss, Jackie Hamra, Norm Gericke,
Sharon Wright, Terry Cartright, Bill Rogers, Pam
Reed, Jo Ward, Dennis Manning, Cheryl Hood,
Karen Schmidt, Dennis Cook, Claire Louis.
The remedy requested was that these employees be
"Placed back in the Union." As to the caption "Clause
of Contract Violated," no clause was stated, but typed
thereafter was "Protection of the Contract." Reese
denied the grievance stating that it was untimely, but ad-
vised Wattler that she. would be willing to discuss it in-
formally.
A meeting was then arranged by Wattler with Mann
to discuss the grievance, and the two met on March 23.
Wattler testified that she asked Mann why Reese had put
on the grievance, that it was untimely,. when at two dif-
ferent meetings she had attended with O'Toole and
Mann it was agreed that the time limits would be
waived. According to Waffler, Mann replied that Reese
had not been at those meetings and was not aware that
the time limits had been waived. During the balance of
the meeting, Mann questioned Wattler .as to Local 13's
position regarding the jobs of the employees listed in the
grievance.
According to Mann, he had Wattler state the reasons
for the Union's objections for each employee promoted
to management positions, which he wrote down. Mann
did not recall if at any time Wattler said anything with
respect to any prior waiver of time limits for filing a
grievance. Mann prepared minutes of this meeting,
which were signed by both Mann and Wattler. (G.C.
Exh..11.) The minutes did not contain any mention that
Wattler had asked Mann why Reese had answered that
the grievance was untimely, or any mention that it had
been agreed at two previous meetings that time limits for
filing grievances on the January changes would be
waived. The minutes did state in the first paragraph
"Disposition of this grievance from Maureen was that
the grievance was filed outside of the time limit but she
would be willing to discuss the grievance informally
with the shop steward" Although Wattler was given a
copy of these minutes, she did not ask Mann to make any
changes
4. The April 15 meeting
On April 15, O'Toole and Wattler met with Mitchell
and Mann at the main office of Respondent, and dis-
cussed the employees who had been promoted on Janu-
ary 1 O'Toole testified that he asked Mitchell if he
would open up the contract and renegotiate all matters
contained in it, and Mitchell refused to do so. O'Toole
then brought up the grievance filed on the promotions,
and Mitchell stated that it was untimely. O'Toole then
asked Mitchell if he knew that Mann had waived the
time limits contained in the grievance procedure. Ac-
cording to O'Toole, Mitchell said he was not aware that
Mann had waived the time limits, and that he had asked
Mann if he had done so, and Mann replied that he did
not remember. O'Toole then submitted a list of 12 people
that he thought should be back in the Union, because
they were ,doing bargaining unit work, and Mitchell
promised to send him a list of. the job description for
those 12 employees.
Mann testified, after refreshing his recollection by
means of notes he dictated immediately following this
meeting (R. Exh. 18), that he told O'Toole that he had
not and did not have the authority to waive any time
limits and would not do so. As previously stated, Mitch-
ell did not testify at any time during the hearing..
5. The June 8 meeting
On June 8 the parties had their last meeting to discuss
the promotions made on January 1. By this time 20 to 30
new employees had been hired. Local 13 was represent-
ed by O'Toole, Wattler, and Margaret Stoff, a newly
elected steward." The Credit Union was represented by
Mitchell and Hoepfinger O'Toole again told Mitchell
that the Union wanted to bargain over the positions that
had been "pulled" out of the Union. When Mitchell re-
plied that there was no reason to bargain because it in-
volved management positions, O'Toole advised him that
he would go the Labor Board. O'Toole also requested
that the dispute be submitted to arbitration, but Mitchell
refused, saying the request was untimely
Steward Stoff also testified that O'Toole told Mitchell
that the Union should have been notified before these
promotions took place, and Mitchell replied that they
were not union positions and therefore the Company did
not have to contact the Union."
F. Contentions of the Parties
The General Counsel's basic contention is that the par-
ties in July 1980 agreed to the' inclusion of all employees,
except managers, in the bargaining unit regardless of
their supervisory status, and that at midterm - of the col-
lective-bargaining agreement, in January 1982, when Re-
" Wattler and Stoff were sisters
12 The testimony of the three union witnesses as to this meeting was
uncontradicted and is credited
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent removed approximately 21 employees from the
unit without prior notice to or bargaining with the Union
Respondent thereby violated Section 8(a)(5) of the Act.
The General Counsel relies chiefly on the authority of
Arizona Electric Power Cooperative, 250 NLRB 1132
(1980).
Respondent, on the other hand, contends that Arizona
Electric Power is not applicable to the facts of this case,
and relies heavily on Chemical Workers Local I v. Pitts-
burgh Glass Co., 404 U.S. 157 (1971)
G. Analysis and Conclusions
I do find 'that this case falls within the four corners of
Arizona Electric Power and that when Respondent unilat-
erally removed the 21 employees from the bargaining
unit in January 1982, it violated Section 8(a)(5) of the
Act In' Carolina Telephone Co, 258 NLRB 1387, 1388
(1981), the Board affirmed and summarized its holding in
Arizona Electric Power as follows
In Arizona Electric Power Cooperative, Inc., 250
NLRB '1132, 1133 (1980), we held that unilateral
attack on the integrity of an agreed-upon bargaining
unit would be disruptive of an established bargain-
ing relationship, and that therefore the scope of a
unit may be changed only by mutual agreement of
the parties or by Board action. Consequently, we
found that a respondent's unilateral action in with-
drawing recognition from a union as representative
of certain employees during midterm of a cohtract,
the bargaining unit of which the parties had know-
ingly and voluntarily negotiated, violated the Act.
We noted that our conclusion would not be altered
by a finding that the employees affected by the re-
spondent's action were supervisors or managerial
employees. Id. at 1133-34.
There is no question but that Respondent had, know-
ingly and voluntarily negotiated with Local 13 for a .unit
of "all employees working as office employees" and had
solely excluded "Managers" It is true that this bar-
gained-for unit was different from the certified bargain-
ing unit. However, it is well settled that an employer and
a union, by agreement, may alter .the certified unit so
long as one party does not insist on a change in the com-
position of the unit to the. point of impasse. Newport
News Shipbuilding, 236 NLRB 1637 (1978). There is of
course, no claim by Respondent that the altered unit was
in any way related to an impasse
Thus, at the midterm of the collective-bargaining
agreement, when on January 1 the Company, without
prior notice or bargaining with the Union, removed ap-
proximately 21 employees from the agreed-upon bargain-
ing unit and admittedly placed them in its "new manage-
rial team," 3 it unilaterally changed the job classification,
wages, ', 4 benefits, and other terms and conditions of the
employment of these same 21 employees.
13 The definition used by Hoepfinger in his January 5 letter to Local
13 G C Exh 9
14 Mann testified their wages were increased by approximately 50
cents per hour
Respondent states in its brief that none of the persons
promoted into the "supervisory/managerial positions as a
result of the December 30, 1981 reorganization were
until that time supervisors." The Employer then goes on
to argue that unless the General Counsel proves that
these employees elevated into supervisory/managerial
positions, they remained, in fact, only employees, as de-
fined in the Act, and the law requires a dismissal. I do
not find this to be the applicable law Both Arizona Elec-
tric and Carolina Telephone hold that it does not matter if
the employees removed from the unit were statutory em-
ployees, supervisors, or managerial.' 5
Both the General Counsel and Respondent cited Dura-
Vent Corp, 257 NLRB 430 (1981), in support of their
cases. However, I find that it clearly supports the Gener-
al Counsel's position In Dura-Vent 12 working foremen
were unilaterally transferred by the company out of the
bargaining unit to the position of supervisors. Adminis-
trative Law Judge Clifford H Anderson, who was af-
firmed by the Board, found that these transfers involved
a significant amount of unit work While Judge Ander-
son expressly did not find that the newly transferred em-
ployees became supervisors within the meaning of Sec-
tion 2(11) of the Act, he did find that it made' no differ-
ence:
Were the employees in the supervisory position[s]
not statutory supervisors, however, a violation
would still occur and the remedy would be no less.
This is so because when employees are unilaterally
removed from the bargaining unit—whether they
remain employees or are transmuted into statutory
supervisors—the Union is denied its opportunity to
bargain over changes having a significant impact on
the unit it represents.
There can be no doubt but that there was a significant
impact on the unit represented by Local 13, when the
Company removed some 21 employees therefrom. At
that time the Company had 60 employees, which meant
that one-third of the employees that the Union had rep-
resented were suddenly and without notice removed
from its protective mantle. While Manager Mann did
assure O'Toole that the Company intended to hire more
employees in the future to take the place of the displaced
unit employees, this does not cure the sudden severance
of 33-1/3 percent of the employees' from the unit repre-
sented by the Union See Kendall College, 228 NLRB
1083 (1977), wherein the Board found that the employ-
er's reduction of the bargaining unit by 25 percent had a
substantial effect on that unit.
For the above reasons, I find that Respondent's unilat-
eral action in withdrawing recognition from the Charg-
ing' Party as the exclusive collective-bargaining repre-
sentative of the approximately 21 employees violated
Section 8(a)(5) and (1) of the Act
Mann's letter of December 30, 1981, to the staff (G C
Exh. 8) clearly advised all employees that the employees
being promoted into management positions, effective
15 I find Pittsburgh Glass, supra, inapposite as its thrust was on retired
employees, and not currently employed employees
ST LOUIS TELEPHONE EMPLOYEES CREDIT UNION 635
January '1; would "be working for the credit union out-
side of- the Union dontract." The record is undisputed
that 'commencing with that date, these employees did
work outside of their contract, as Respondent no longer
applied the terms of ' the parties' collective-bargaining
agreement to these employees promoted to • the manage-
ment team.
Paragraph 6,C of the complaint alleges that since Janu-
ary 1 Respondent has required these same 21 employees
to withdraw from the Union, has canceled the contract's
dues-checkoff provision, and has refused to withhold
from the employees' wages and remit this dues money to
the Union. Respondent contends that there was no viola-
tion because there were no threats or coercion to cause
an employee to cease paying dues. While this is true as
to threats, it is wide of the mark. The fact is that- Re-
spondent did unilaterally cease carrying out its contrac-
tual duty to deduct the dues from the employees' wages
and to remit these monthly dues to the Union. This was
clearly an interference with the employees' rights guar-
anteed in Section 7 of the -Act, and thereby yiolated Sec-
tion 8(a)(1). Wilson & Sons, 193 NLRB 350 (1921);
valet: Spring Co., 193 NLRB,829 (1971). Since this failure
to check off and remit dues was done unilaterally, in
midterm of the contract, it also violated Section 8(a)(5)
of the Act. Kraft Plumbing & Heating, 252 NLRB 891
(1980); Independent Stave Co., 248 NLRB 219 (1980) -
Paragraph 6,0 of the complaint alleges that since on
or about January 1, 1982, and continuing to date, Re-
spondent refused to bargain with the Union, upon its re-
quest. Respondent contends in its brief that the Union
never asked to bargain about the "make-up rates, bene-
fits, etc." of these supervisory managerial positions, and
that the Union presented no legitimate demands to bar-
gain until August when the Union filed a grievance on
the issue of management employees _doing bargaining
unit Woric.16
It is true that the Union did not seek to bargain over
the specific questions of makeup rates, benefits, and such
for the promoted employees However, it was not neces-
sary for the General Counsel to prove such specific mat-
ters in order to support a refusal to bargain charge. Man-
ager Mann admitted that the meeting of February 10
concerned Local 13's claim that the Company had taken
employees from the bargaining unit and that the Union
wanted to reopen the contract and renegotiate it in its
entirety because it was too ambiguous. While the record
does not show what parts of the contract O'Toole con-
sidered to be too ambiguous, it is a reasonable inference
that he was talking about the wording of the parties
unique union recognition clause, that excluded only
"managers" from the bargaining unit.
At the meeting of the parties on April 15 they again
discussed the employees who had been promoted on Jan-
uary 1, and O'Toole's repeated request that the Company
agree to open the contract and renegotiate it in its entire-
ty was once again rejected. Finally, at the June 8 meet-
ing, O'Toole did tell Respondent in so many words that
16 On August 19, Local 13 filed a formal grievance, which stated as
the nature of the grievance "Supervisors doing bargaining unit work" R
Exh 5
the Union ' wanted to bargain about the employees who
had been taken from the bargaining unit and placed- in
the supervisory staff.'
When O'Toole on February 10, April 15, and June 8
asked the Respondent- to bargain over the entire collec-
tive-bargaining agreement, he was' following the long-
standing and the well-recognized bargaining technique of
asking for a lot more than a union really expects to- get.
He wanted to. bargain over the Union Recognition
clause, and thereby force the Company to bargain over
the employees it had unilaterally promoted out of thé
bargaining unit on January 1. Thus, I find that Respond-
ent from 'February 10 on did refuse to bargain with the
Union in violation of Section 8(a)(5) of the Act, as it re-
fused to bargain about anything.
Paragraph 6,E of the complaint alleges that on or
about March 23, and continuing to date, Respondent has
refused to bargain with the Union, by reneging on its
agreement with the Charging Party to waive all time pe-
riods for • filing grievances regarding the changes it had
made in the job clasiifications, wages, benefits, and other
terms and conditions of employment of the employees
promoted on January 1 to the management staff.
As testified to by O'Toole, the grievance was due to
be filed by January 9• 17 To meet this deadline he had
scheduled a meeting with Mann for January 8, which
meeting had to be postponed because of his illness. Thus
the deadline recognized by O'Toole had passed. Howev-
er, this apparently did not seem a problem to the busi-
ness manager, because of the past informal and congenial
relationship of the parties Undoubtedly, O'Toole expect-
ed that he would be able to sit down with Mann and in-
formally work out the grievance just as he had done in
the past. However, Respondent did not follow this pat-
tern.
Since I have previously credited Mann's testimony
that he did not agree to waive the time periods for filing
grievances regarding the change in the status of the em-
ployees, listed in Hoepfinger's letter of January 5, it fol-
lows that Respondent did not unlawfully refuse to bar-
gain on March 23, April 15, and June 8, when it refused
to process the grievance filed by steward Wattler . on
March 19. I shall therefore recommend dismissal of this
allegation of the complaint.
CONCLUSIONS OF LAW
1 St. Louis Telephone Employees Credit Union is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Office and Professional Employees International
Union, Local 13, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees working as office employees and ex-
cluding managers is the unit for which the aforesaid
Union is the exclusive bargaining representative.
" Art XXVIII of the parties collective-bargaining agreement provid-
ed that a written gnevance must be filed within 3 working days from the
date that the employee has knowledge of the grievance The Union re-
ceived notice of the grievance on January 6, when O'Toole received
Hoepftnger's letter of January 5
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By removing approximately 21 employees from the
bargaining unit about January 1, 1982, without prior
notice to the Union and without affording the Union an
opportunity to bargain, Respondent refused to bargain
with the aforesaid Union as the represenlatiave of em-
ployees in the bargaining unit for which the Union is the
exclusive bargaining representative, and thereby , has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
5. By refusing to honor and apply the terms of this
collective-bargaining agreement' with the Union since
January 1, 1982, Respondent has engaged in unfair labor
Practices within the meaning of Section 8(a)(5) and (1) of
the Act.
6. By tendering the dues-checkoff provision contained
in the collective-bargaining 'agreement ineffective, and
failing and refusing to withhold from said employees'
wages, and failing to remit to the Union the dues money
required thereunder, Respondent has violated Section
8(a)(5) and (1) of the Act.
7. By failing and refusing-to bargain with the Union;
on request, since about February 10, 1982, Respondent
has violated Section 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. .
9' Respondent has committed no other unfair labor
practices.
REMEDY
Having found that the Respondent has engaged in -cer-
tam unfair labor practices, I find it necessary to order it
to cease and desist therefrom and to take certain affirma-
tive action designed -to effectuate the policies of the Act.
-Having found that Respondent, in violation of its 'duty
under Section 8(a)(5) and (1) of the Act, withdrew rec-
ognition from and refused to bargain with the Union as
the representative of employees, including those who
were, promoted about January 1, 1982, in the unit for
which the Union is the exclusive bargaining representa-
tive, I shall order it to bargain collectively with the
Union and to restore these employees to the unit, condi-
tioned on the affirmative desire of these employees as ex-
pressed through their bargaining' agent. •
The record indicates that these employees received a
pay raise when promoted out of the unit, and the Gener-
al Council in her brief does not ask for any backpay.
Also, it is not Board policy to request employees to re-
linquish increases in wages and benefits. Dura- Vent Corp.,
supra. Since it is not now possible to determine if the
unilateral changes have been detrimental or beneficial, I
shall issue a restoration order conditional upon the af-
firmative desires of the affected employees as expressed
through their bargaining agent. Kendall College, 228
NLRB 1083 (1977), Herman Sausage Co., 122 NLRB 168
(1958). '
• If the Union elects such a restoration of benefits, a
general 'order is issued below •requiring Respondent to
make the promoted employees whole for any loss of
wages, benefits, or other rights and privileges they may
have suffered as a result of Respondent's unfair .labor
practices' Backpay, if any, shall be computed with inter-
est, as prescribed in Florida Steel Corp, 231 NLRB 651
(1977).18
The General Counsel in her brief, did request that the
Union be made whole for dues not remitted to it by 'Re-
spondent. Since I have found that 'such dues were not re-
mitted, and that such failure to comply with the contract
violated the Act, I will order Respondent to reimburse
the'Union for its losses due to Respondent's faildre to so
check off, and remit dues of the said employees, as re-
quired by the collective-bargaining agreement. El-Centro
Health Center, 266 NLRB 1 (1983); J. F. Swick Insulation
Co., 247 NLRB 626 (1980).
[Recommended Order omitted'from publication.]
18 See generally, Isis Plumbing Co, 138 NLRB 716 (1962)