Telephone Wkrs Union of N. J., Local 827

National Labor Relations Board - Board Decisions

Apr 13, 1971

189 N.L.R.B. 726 (N.L.R.B. 1971)

726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Telephone Workers Union of New Jersey, Local 827,
International Brotherhood of Electrical Workers,
AFL-CIO and New Jersey Bell Telephone Compa-
ny. Case 22-CB- 1676
the Respondent, since at another point in his Decision he relates , without
discrediting it, Respondent's Executive Board Member Robertson's
testimony that he called the Company 's Essex Division Head Moye the
evening of May 20 and informed him of the impending union meeting the
next morning
April 13, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND
KENNEDY
On December 11, 1970, Trial Examiner A. Norman
Somers issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent,
Telephone Workers Union of New Jersey , Local 827,
International Brotherhood of Electrical Workers,
AFL-CIO, its officers , agents, and representatives,
shall take the action set forth in the Trial Examiner's
recommended Order.
i We hereby correct the following inadvertent errors in the Trial
Examiner's Decision which in no way affect his Decision nor our adoption
thereof In the third sentence of paragraph four of section III, B , I, c, the
Trial Examiner states that the Company had already hired new employees
at the new rates contained in its proposals when in fact the evidence shows
that the hirings were simply above the minimum rates of the agreement but
not at the Company's proposed rates , in the sixth sentence of the second
paragraph of section III, B , 3, b, the Trial Examiner states that in a
meeting between representatives of Respondent and the Company, one of
the former stated that the overtime moratorium was the result of the
employees ' dissatisfaction with the existing wage scale and the Company's
proposal in regard to it when the record shows that the Respondent's
representative merely stated that the moratorium stemmed from the
employees' dissatisfaction with the Company's proposal and said nothing
about the existing wage scale, and in the fourth paragraph of the aforesaid
section it would appear that the Company did not have any notice from
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A. NORMAN SOMERS, Trial Examiner: This case , with all
parties represented , was tried before me in Newark, New
Jersey, on September 9 and 10 , 1970, on complaint of the
General Counsel issued July 21, on a charge issued by the
Company on May 22, 1970.
The issue is whether Respondent Union, by engaging in
work stoppages to compel changes in existing contractual
wage schedules , without taking the steps prescribed by
Section 8(d), the condition to striking for such a purpose,
violated its bargaining obligation under Section 8(b) (3) of
the Act. Respondent 's defense is that the stoppages were
not in order to compel a contract modification , but for
other reasons , and thus the Section 8(d) requirements are
not applicable.
The parties have submitted briefs which have been duly
considered. On the entire record (as corrected by order on
notice to the parties ), and my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
New Jersey Bell Telephone Company is a New Jersey
corporation with its principal office in Newark, and
subsidiary locations in Newark and other areas throughout
the State . It is a public utility furnishing telephone
communications and related services throughout the State,
its gross revenue being at least $500 ,000 a year, and its
annual receipt of materials from out of the State being at
least $50,000. The Company is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union, the Respondent herein , is a labor organiza-
tion within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Issue
The 8(b)(3) violations imputed to Respondent Union
consisted of work stoppages allegedly to compel the
Company to increase the wage schedules under the
contracts currently in existence (for two separate units)
without the Union's having taken any of the steps
prescribed by Section 8(d) as the condition to striking to
compel such contract changes . See infra, footnote 13. The
defense is that these stoppages were not intended to compel
changes in the existing contracts and so the conditions
imposed by Section 8(d) to striking to modify an existing
contract do not apply.
189 NLRB No. 107
TELEPHONE WKRS . UNION OF N. J., LOCAL 827 727
B. The Facts
There is little dispute over the facts as distinguished from
their interpretation.
1. Meetings concerned with the wage changes
a. Background: the bargaining units, the contracts,
and the absence of any reopening clause
The work stoppages which are the subject of the alleged
8(d) and 8(b)(3) violations occurred after four meetings
between Union and Company concerned with changes in
the wage scales of two contracts covering two separate
units. Both units are statewide in scope. One is the Plant
and Engineering Department (hereafter the Plant unit), and
the other (omitting its formal, mouthfilling title) is known
as the accounting unit. The Plant unit is comprised of some
10,000 employees, who work on construction of outside
plants and installation and maintenance of central offices,
and the accounting unit is comprised of some 1,500, who do
the clerical work of preparing and sending out the bills for
telephone service. Respondent and the Company have had
contractual relations covering these units for about 20 and
18 years, respectively. The current contracts are for 3 years,
that for the plant unit being from May 28, 1968, through
May 27, 1971, and for the accounting unit from June 14,
1968, through June 13, 1971. The pertinent provisions are
similar and so such references as may appear in the
singular, to the "contract" or the "wage" or other "clause"
apply to both units and both contracts, unless otherwise
indicated.'
The wage clause is here quoted from the contract with the
plant unit but the one with accounting is substantially the
same . It provides:
Employees may be engaged, reengaged or transferred
into titles shown in the exhibit [i.e., the wage schedule
attached to the contract] at rates in excess of the
minimum hiring rates at the Company's discretion.
The contracts have no reopening provision for modifica-
tion of the wage or any other clause, and they run the entire
3 years (and indefinitely thereafter except on 60 days'
notice of termination).
b. Correspondence preceding the wage meetings
All correspondence and conversations between the
I The Company also has contractual relations with another union,
CWA (Communication Workers of America, AFL-CIO), covering some
8,500 employees in bargaining units other than the two here
involved-commercial marketing and traffic
2 The Union' s wire of March 10 reads
3
AT THE DIRECTION OF THE EXECUTIVE BOARD OF THIS UNION, I AM
REQUESTING AN IMMEDIATE MEETING WITH THE BARGAINING
REPRESENTATIVES OF NEW JERSEY BELL THE PURPOSE OF THE MEETING
WOULD BE TO MODIFY AND IMPROVE THE PRESENT CONTRACT TO
REFLECT THE CHANGES IN TODAYS GENERAL ECONOMY
The Company's letter of March 17 reads
In response to your telegraphic request for an immediate meeting
for the purpose of discussing possible modifications to the present
contract, the Company is willing to meet with the Union's Executive
Board to listen to your views so long as it is clearly understood that
such discussions are not to be considered as bargaining or a reopening
of the existing contract since the terms of our Agreement are fixed
until May 28, 1971. If, as a result of these exploratory discussions, we
Union and the Company were between Charles T.
Merrigan, the president of the Union, on the one hand, and
John R. Rufe, assistant vice president of the Company in
charge of labor relations, on the other.
On March 10, with the contracts still having over a year
to run, Merrigan wired Rufe requesting a meeting between
the parties "the purpose [being] to modify and improve the
changes in todays general economy."2 Rufe replied by
letter of March 17, to the effect that though the Company is
willing to meet with the Union to listen to its views, "such
discussions are not to be considered as bargaining or a
reopening of the existing contract," but that if "we reach
agreement on any of your proposals, these can be
incorporated in a Supplemental Agreement without
disturbing the basic agreement." 3
On March 19, these officials, over the telephone,
indicated their mutual understanding of the purport of their
prior communications, the Union's request for a meeting
being "to improve the present contract to reflect the
changes in today's economy," and the Company's consent
to one being with the understanding that "such discussions
are not to be considered as bargaining or a reopening of the
existing contract." 4
c. The four meetings
Thereupon meetings were held on March 24, April 15,
May 12, and May 13 between representatives on each side.
The respective spokesmen were Rufe for the Company and
Merrigan for the Union. Their versions are in substantial
accord, Merrigan qualifying it with the statement that the
differences were largely one of "emphasis."
At the March 24 meeting, Rufe opened with the reminder,
to which the Union agreed, that the meeting, as indicated in
their prior correspondence and talks (supra, fns. 2, 3, 4), was
not a "reopening" or a "bargaining" session. Merrigan then
advanced "economic arguments" supported by statistical
data, for raising the wages for all employees in both units,
"across the board," (i.e., up the line) from the minimum
rates to and including the rates at maximum (i.e., at the top
of the respective classifications). Merrigan argued for an
increased scale of wages comprehensive in scope, without
particularizing on amounts. Rufe said he would study the
Union's presentation, and they would meet again.
At the April 15 meeting, Rufe stated the contract as it
stood was a "good one," that the "maximum rates" were in
"good shape" and thus raises at maximum were not
reach agreement on any of your proposals, these can be incorporated
in a Supplemental Agreement without disturbing the basic contract
4 The transcript of the March 19 conversation was tape recorded by the
Union and a copy sent to the Company. It reads-
The New Jersey Bell Company had responded to the Union's
request to meet with the Executive Board to improve the present
contract to reflect the changes in today's economy They point out
that such discussions are not to be considered as bargaining or a
reopening of the existing contract which runs until May 28, 1971 The
Union, for its part , is in agreement with this fact , however, we point
out that there is no contractual bar to the parties modifying without
disturbing the basic contract . Every Telephone employee expects some
wage treatment to alleviate the cost of living dilemma and they rightly
expect their Union to move aggressively and to move now
Accordingly , the Executive Board will meet this coming Monday to
prepare for the joint meeting with the Company the following day,
Tuesday, March 24 We [the Union ] will keep you informed of any
developments.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"justified ," but that the contract had its difficulties in that
"hirmg rates" and the "early progression rates" were too
low, so that they failed to attract people at the existing rates
and caused a "high turnover" among those with short
length of service . Rufe added that the Company "was
studying the problem" and would at a later meeting present
a proposal which he "hoped would correct that problem."
Memgan countered with the argument he had advanced at
the first meeting, that all employees were feeling the
inflationary pinch , which called for raises at all grades,
including those at maximum . Rufe, in turn , repeated that in
his view of the economic situation , raises at maximum were
not "justified."
At the May 12 meeting, Rufe submitted to the Union a
written wage proposal for each contract . They provided for
"specific increases in the hiring rates and changes in the
progression rates of pay for employees in both of the
bargaining units with no increases for those at max."
Employees earning less than the proposed new hiring rates
would be brought up to the level of the new hirmg rates (at
which the Company had several months ago already hired
new employees into the two units , unilaterally so under the
clause , previously quoted , that "employees may be engaged
. .. in excess of the minimum hiring rates at the
Company's discretion"). The Union complained that the
Company's proposal did not accomplish the purpose of the
correspondence it initiated on March 10 , for while the
Company's proposal took care of management's
"administrative problem," it disregarded the general
economic situation that was affecting all employees,
including those at maximum . Memgan testified that in that
connection he had reminded Rufe that when the existing
contract was entered into in 1968 , the Union had rejected
the very kind of provision the Company was now seeking to
write into it. Rufe responded , in substance , that the
Company's proposal was designed to meet what it deemed
to be the "essence" of the problem . This, as previously
stated , was the high turnover caused by a minimum rate
under the contract that was lower than that prevailing in
the current labor market, whereas no such difficulty existed
in respect to those at maximum and so, as the Company
viewed it, raises to those at maximum were not "justified."
The parties recessed , and when they returned Merrigan
asked that the Company advance the effective date of the
automative increase for employees at maximum under the
contract as it existed , and Rufe replied he did not "feel that
was justified either ." The Union thereupon said it wanted
to consider the Company 's proposal further, and a meeting
was accordingly arranged for the following day.
At the May 13 meeting, the Union handed the Company
the following:
We object to the Company reopening parts of the
contract in order to implement a resolution to its
5 Rufe , when he testified the parties were not then "bargaining,"
answered "yes" to the Trial Examiner's question of whether they were
"negotiating"-a distinction which the Union stresses as reflecting the
Company's bad faith While these terms are usually regarded as
synonomous, Rufe, who is not a lawyer, and not privy to what company
counsel observed were "terms of art " was apparently distinguishing
between the full dress interchanges concerning "mandatory" subjects and
one under discussion here , where the subject, even though concerned with
wage increase , was not yet mandatory, since the contracts still had over a
year to run and the parties had agreed in advance that the meetings were
administrative problem, namely the hiring of new
employees and ignoring the economic needs of its long
term employees, which needs have been advanced by
the Union during these discussions.
Rufe disputed the Union's interpretation of the Company's
proposal as a "reopening" of the contract, and, as he had
done throughout these meetings, reminded the Umon of
their mutual understanding from the outset (supra, fns. 2, 3,
4), that they were not "reopening" or "collective bargain-
ing" meetings .5
Rufe asked how the Union would "handle" the
matter-whether it would accept or reject the Company's
proposal by a decision of the Union's policy committee or
by an employee referendum. Memgan replied this was an
"internal union matter" and would be handled by the
policymaking committee, which would meet for that
purpose on Friday, May 15.
2. The work stoppages
a. Those admittedly related to the subject of wage
increases
The work stoppages, all occurring during the week
beginning May 18, consisted of (a) a "moratorium" on all
overtime for the entire week from May 18 through 23; 6 (b)
a stoppage of work for the entire day on May 18; and (c) a
1-day general strike on May 22. Stoppages (a) and (b) were
decided upon by the General Committee (i.e., the policy-
making body, comprised of the 22 union representatives for
the geographic areas of the Company throughout the State)
on May 15. Since these stoppages were concededly related
to the subject of wage increases (as distinguished from
stoppage (c), the May 22 general strike, which the Union
claims was "in no way [so] related," see infra, fn. 14), we
shall treat stoppages (a) and (b) first. The week-long
overtime moratorium was stated to be in protest against the
Company's "take-it-or-leave" proposal submitted on May
12. Though this indicated the General Committee's own
opposition to the proposal, the Committee decided, because
of the importance of the subject, to put it to a vote of the
membership. The General Committee, along with President
Merrigan, set the vote for May 18 (tentatively so at its
session on May 15, and definitely so 2 days later on
Sunday, after making sure it could arrange for the vote for
May 18). They set the time for voting for the daytime. This
is the regular working day for at least 85 percent of the
employees.? The employees were told by the Union officials
not to work that day but they were to attend meetings
throughout the State to hear explanations of the company
proposals and to vote on them. This was the first instance in
which the Union had set a vote, which by its nature had the
maximum adverse impact on company production, instead
not for reopening the contract
6 It is agreed that the contract by its terms and as applied requires
employees to work a reasonable amount of overtime as requested by the
Company The average weekly overtime is about 7 hours by the plant unit
employees and about 2 by those in accounting.
r The daytime period , which begins for some employees at 8 and others
at 9 a.m., ends at 5 p m After 5 p in , the evening workforce consists of 12
percent of the plant unit and about 15 percent of the accounting unit
employees On Sundays, the only employees who work are 5 percent of the
plant unit.
TELEPHONE WKRS. UNION OF N. J., LOCAL 827 729
of after 5 p.m. or during holidays (supra, fn. 7), where the
impact on production had been minimal. Merrigan
explained at the hearing that its purpose in this instance
was to insure a maximum voting output on May 18.
The Company's first notification from the Union of its
decision was in a call Merrigan made to Rufe at 9 a.m on
May 18. Merrigan told Rufe of the vote the Union had set
for that day and of the fact that the employees would not
work that day. The total who voted on May 18 exceeded
8,000. (Merrigan, at the hearing, contrasted this with the
4,000, that had been the highest turnout in the past, where
the voting had been at other than regular working hours.) 8
At 9 o'clock that evening, Merrigan informed Rufe by
telephone that the vote had been overwhelmingly against
the Company's proposal, the ratio being about 80 to 1.
Merrigan told Rufe that while the employees would return
to work at regular time the next day, the moratorium on
overtime would continue throughout the remainder of the
week as a protest against the Company's wage proposal. He
warned Rufe that if any employees should be disciplined
for refusing to work overtime, he would direct a general
strike.
b. The use of supervisors during the overtime
moratorium and ensuing events culminating in the
general strike on May 22
On the morning of May 19, the employees in both units
went back on regular time. At about 10:30 that morning,
Merrigan called Rufe and repeated what he had said the
evening before that the overtime moratorium would
continue through the week and he would (on a "one out-all
out" basis) call a general strike if the Company disciplined
any employee for honoring the overtime moratorium.
On that day, the Company, as a result of the previous
day's work stoppage, was heavily "backed up" with
unattended to jobs. (As Rufe told Merrigan during later
described discussions with the Company over the use of
supervisors for unit work, the backlog consisted of some
8,000 jobs-6,000 repairs and 2,000 installations.) Pursuant
to the contract (supra, fn. 6), the Company requested
employees in both units to work overtime that day. They
refused to do so. The Company then assigned supervisors to
do the overtime work.9 At about 6 p.m. that day, Merngan
(accompanied by Vice President Casey) told Rufe that the
assignment of supervisors to work overtime on unit
employees' work would "lead to difficulties," because the
overtime moratorium was the result of the employees'
dissatisfaction with the existing wage scale and the
Company's proposal in regard to it. Rufe stated that while
he would seek to avoid "confrontation" of supervisors
working alongside of unit employees, the job had to be
done . He asked why the moratorium was continuing at all.
Merrigan repeated that this was in "dissatisfaction" over
the Company's "highhanded" and "unilateral" wage
proposal. Rufe then specifically requested that the overtime
moratorium be withdrawn. Merrigan replied it would
stand, for both units.
The Company used supervisors on overtime work
throughout the State. However, in the Newark area, a
problem arose concerning supervisors working alongside
rank-and-file employees. At about 8:30 p.m. on May 19,
some 20 Plant unit employees on the evening shift (see
supra, fn. 7), walked off a "testing" job (on repairs) in a
Newark location, because they would not work in the same
general job location with supervisors. (The contract, in
providing for the use of supervisors for unit work, states
nothing about the proximity or remoteness of supervisors to
unit employees in the performance of unit work.) At about
1:30 p.m. the next day, May 20, the general subject was
discussed between Rufe and Merngan. With Rufe were two
field supervisors, including Moye, who was in charge of the
Essex (County) Division, which embraces Newark. Mern-
gan was accompanied by Robertson, the executive board
member representing the Essex division (the Union having
singled out that division as the offender on the matter under
discussion). Merrigan warned that if working by supervi-
sors alongside unit employees continued, the employees
would walk off the job, though he was not ordering them to
do so. At the suggestion of Moye, the parties arranged that
the supervisors assigned to the "test bureau" would work in
"isolated areas" instead of working "ostentatiously along-
side the employees." Yet that same evening, May 20, about
35 plant unit employees in that same Newark location and
in two other locations in (presumably) Essex County
walked off the job because supervisors there were working
in the samejob location with rank-and-file.
The next morning, May 21, at the 8 o'clock starting time,
some 785 Plant unit employees in the Newark area failed to
report without prior notice. Rufe testified they had given no
indication of whether they would work at all that day.
When they did report, at about 10:30 a.m., the Company
suspended them for the rest of the day, and thereupon the
Union ordered the 1-day general strike on May 22.
On the morning of May 21, in absenting themselves from
the job, the Newark group had been holding a meeting in
nearby Irvington, and were discussing what they thought
had been the Company's persistence in having the
supervisors work alongside unit employees. They held the
meeting without prior authorization of any officer or
member of the executive board. 10
Robertson, the Essex executive board member, testified
8 Merrigan , in the conversation that morning , had also told Rufe there
would be no attempts to prevent employees in other units (supra, In I)
from working and that there would be no picketing However, for about
an hour and a half beginning noon that day, picketing occurred at the
Company's main headquarters at 540 Broad Street and four subsidiary
locations, two in Newark and two in other cities (out of a total of 45 large
and 250 small locations) The picketing at main headquarters, rather
massive, as appears from the photographs, included signs reading "N J
Go to Hell," "Ma Bell Had a Miscarriage," "Ma Bell is a Cheap Mother"
and "More $ "
9 The applicable provision (in the plant unit contract, under "Work by
Supervisors" but to which there is an admittedly comparable declaration
by the parties in the accounting unit contract) provides (Article XIII)
Section I Plant Department supervisors of the grade of foremen or
higher, in the vocation forces and in the Building and Supplies field
forces , will not do work of the type ordinarily done by employees
under their supervision, except in emergencies as defined in Section 2
hereof, and in cases of service restoration where no qualified workmen
can be reached
Section 2 As used in Section I above, "emergencies" shall be
situations involving actual or immediately potential interruptions of
telephone service , safety of or injury to human beings, and public
safety
10 The Union's Information Bulletin No 4 of May 20, 1970, under the
(Continued)
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that on the previous evening, there had been a preliminary
meeting, or caucus, at the same hall held by "delegates,
alternates and some of the membership," to which they had
summoned him. They then informed him of a meeting to be
held the next morning by "700 and some odd people."
Robertson testified he "objected to it," and urged that they
"leave it to the union [to ] straighten this problem out," but
that the group replied "they would not stop the meeting."
Robertson testified that when he left the caucus, he called
Essex Division Head Moye at home and told him of the
impending meeting the next morning and of his having
objected to it, for which Moye thanked him, and that he
then called Merrigan and informed him of it.
About 9 the morning of May 21, Merrigan, accompanied
by Robertson, came to the meeting. Merrigan testified he
regarded it as a "wildcat type meeting" (see his May 20
bulletin, supra, fn. 10), and so he told the gathering to "get
the hell back to work." Merrigan then called Rufe at about
10, and told him these employees had met on their own
because they thought that the Company had breached the
previous day's arrangement to "isolate" the supervisors
from the rank-and-filers. (There is no evidence that the
Company had breached that arrangement, and no claim is
made that it had. Merrigan testified that though the
assemblage "had taken things in their own hands," they
had done so for "what certainly seemed to them to be good
and sufficient reasons, and in my considered judgment
were.") Merrigan requested that the employees not be
disciplined for this morning's activities, but Rufe replied he
could not promise that. As previously stated, when they
reported at 10:30, they were not allowed in and were
suspended the remainder of the day ii
Later on May 21, the General Committee called a general
strike for May 22. This was for one day, in accordance with
Merrigan's pronouncements to Rufe in his earlier strike
warnings that they would be "on a one for one basis, one
day lockout, one day refusal to work." Virtually all 11,500
employees in the two units throughout the State stayed off
the job (the total work abstention being considerably above
that because the approximately 8,500 employees in the
units represented by CWA were kept from their job because
of the picketing). 12
The state mediation authorities entered the picture
sometime that day. The pickets were withdrawn at
midnight the day of the stoppage under the previous
instruction that it was to be of 1 day's duration. Through
signature of President Merrigan , after describing the overwhelming vote of
May 18 , stated
We urge all of our members now to keep their cool-and not to
embark on individual programs which could affect our united front
PLEASE DO NOT take any action withou t clearance from your
Executive Board Member If we maintain our internal discipline we
will be better able to achieve the results we are seeking.
The Company had by the time of Merrigan 's call at 10 00 apparently
already decided on the suspension Robertson testified that on Merrigan's
instructions , he had called Moye at the same time that Merrigan was
calling Rule, that he told Moye that the people were going back to work, to
which Moye replied "he was sorry, that they would not be allowed in," but
gave no reason
12 The picket signs , in addition to "On Strike ," had legends, in the
manner of those on May 18 , such as "Ma Bell Equals Peanuts," "Ma Bell
is as Tight as a Crab 's Ass, Local 817 1 BEW , AFL-CIO " (Underscoring in
the "text ")
13 Sec 8 ( d), after defining "collective bargaining" in general terms,
state mediation auspices, a complete cease-fire was
declared for midnight on Saturday, May 23. Under the
compromise worked out by the mediators, it was agreed
that the employees would from May 25 on, work full time,
including overtime as requested (which in any event was
after expiration of the weeklong moratorium to which the
Union had limited it), and the Company would no longer
assign supervisors to unit work, whatever the contract's
provision about assigning them in the event of
"emergencies," supra, fn. 9.
The parties have adhered to that arrangment, and
nothing eventful has happened since. The parties' respec-
tive positions, as expressed at the four meetings preceding
the stoppages, have remained at stalemate. The Union still
wants the proposed wage increases to include those at
maximum, and the Company, on the other hand, refuses to
stretch its proposal that notch upward. Also, since the
parties had not "reach[ed] agreement," as stated in the
Company's March 17 letter (supra, fn. 3), the Company has
at no time put any part of its May 12 proposal into effect.
C. Concluding Findings
1. The stoppages concededly related
to the wage proposals
The stoppages the Respondent in its answer concedes
were related to the wage proposals, i.e., the weeklong May
18-23 overtime moratorium and the May 18 all-day
stoppage (deferring at this time the May 22 strike, which
Respondent claims was "in no way" so related) rather
clearly indicate they were intended to compel the Company
to modify the contractual wage scale to accord with what
Respondent had been urging at the four meetings
concerned with the subject. Since, as admitted, the Union
had not performed any of the steps prescribed by Section
8(d) as a condition to striking to compel modification of an
existing contract, the Union, by reason of the stoppages,
violated its collective-bargaining obligations under Section
8(b)(3) as defined by Section 8(d).13
These stoppages, coming hard upon the four meetings
concerned with the subject to which they were admittedly
related, were so indicative of a purpose to compel the
Company to capitulate to the Union's demand regarding
the scope of the wage proposals as urged at the meetings,
that the impression derived from Respondent's defenses
includes the proviso
That where there is in effect a collective-bargaining contract
the duty to bargain shall also mean that no party to such contract
shall terminate or modify such contract unless the party desiring such
termination or modification-
(I) serves a written notice upon the other party to the
contract of the proposed termination or modification sixty days
poor to the expiration date thereof .
(2) offers to meet and confer with the other party for the
purpose of negotiating a new contract or a contract containing
the proposed modification;
(3) notifies the [Federal and State mediation authorities]
within thirty days after such notice of the existence of a dispute
, and (4) continues in full force and effect, without resorting
to strike or lockout, all the terms and conditions of the existing
contract for a penod of sixty days after such notice is given or
until the expiration date of such contract, whichever occurs
later
TELEPHONE WKRS . UNION OF N. J., LOCAL 827 731
and from its presentation was less that Respondent was
disputing that the stoppage had such purpose than that the
Company's failure to bargain in good faith concerning the
wage proposals dispensed with the need for Respondent's
complying with Section 8(d) as a condition to engaging in
these stoppages to compel such modification.14 According-
ly, at the hearing and now in the briefs, the General
Counsel and the Company, while disputing Respondent's
imputation of bad faith to the Company, have also devoted
much of their presentations in refuting Respondent's then
seeming position that the Company's alleged bad faith
would in any event have provided a defense to Respon-
dent's engaging in the stoppages to compel the modifica-
tion, in the light of its admitted failure to perform the
conditions of Section 8(d) to striking for such purpose. That
such imputed bad faith by an employer does not excuse a
union's striking for modification of contract terms without
prior compliance with Section 8(d) is implicit in Mastro
Plastics, 15 where the holding that a union in striking
without complying with Section 8(d) had not thereby
offended that section (or breached the no-strike clause of
the contract) was based on the fact that the strike was in
protest against massive unfair labor practices by the
employer and not an effort to change the contract terms.16
On the other hand, strikes to compel a change in contract
terms call for prior compliance with Section 8(d) even if the
employer had not bargained in good faith concerning them.
The Board had so held in the Du Quoin case.17 On the
authority of Du Quoin, I had, on motion of General
Counsel and the Company, first struck all the defenses in
the answer except the one concerning the May 22 strike,
which Respondent alleged was "in no way related" to the
wage proposals. On further consideration, to obviate a
possible need for remand should the bad faith imputed to
the Company turn out to be relevant, on the basis of (let's
face it) my uncertainty concerning whether in the years
intervening since 1957, the Du Quoin holding may have
waned in authority, I reinstated the defenses and permitted
Respondent fully to develop its evidence concerning the
alleged bad faith of the Company.
Now, however, in its brief, Respondent disclaims any
reliance on the legal proposition that the employer's bad
faith excuses a union's failure to comply with Section 8(d)
as a condition to striking or engaging in a stoppage to
compel a change in contract terms. On that score,
Respondent accepts the Du Quoin holding as binding (but
in its view as not controlling here. See infra, fn. 20).
Respondent's sole defense now is a denial that any of the
stoppages had been intended to compel a change in the
contract terms , even those, presently under discussion,
which Respondent concedes were admittedly related to the
wage proposals.
As to them, Respondent devotes the bulk of its brief in
developing as its major premise the proposition that Section
8(d) is not a condition to any strike occurring in midterm of
a contract but only to those aimed at changing contract
terms. Since that is the very premise on which the violations
of Section 8(b)(3) is here imputed to Respondent,
Respondent's massively treated major premise is not a
subject of debate. On the other hand, Respondent's minor
premise, that the stoppages were not aimed at compelling a
change in the wage scale, has rather mealy content.
Referring to the stoppages admittedly related to the wage
proposals, Respondent asserts that the weeklong overtime
moratorium of May 18 through 23 had as its purpose only
to protest the "take-it-or-leave it" basis on which the
Company presented its wage proposal, and the all-day
stoppage of May 18 had as its purpose only to give the
members the opportunity to vote on the company proposal.
Respondent advances its own assertions when it engaged in
the stoppages as conclusive of their purpose.
One would hardly have thought it necessary to invoke the
tenet fundamental to our jurisprudence, that "motive is a
persuasive interpreter of equivocal conduct." Texas &
N.O.R.R. Co. v. Brotherhood of Railway Clerks, 284 U.S.
548, 559 (1930). Respondent's assertions of their purpose
must be weighed against the motive inhering in the four
meetings on the heels of which the stoppages were invoked.
The finding above, at the outset of the conclusionary
discussion, indicates that the stoppages were inherent
pressures in effectuation of the motive exhibited through-
out the four meetings . The purpose Respondent ascribed to
both stoppages, far from overcoming the inference flowing
from the purpose manifested at the meetings, not only does
not contradict it; it complements it. The impact on
company production caused by the unprecedented resort to
a total work stoppage for the vote on the Company's
proposal, combined with the prior direction of the
weeklong overtime moratorium, was necessarily aimed at
compelling the Employer to yield on what the Union had
14 Respondent 's three affirmative defenses are:
FIRST AFFIRMATIVE DEFENSE
14. The refusal to work overtime from on or about May 18, 1970
until on or about May 25, 1970, was a collective response to the
Company's refusal to bargain with the Respondent in good faith on
the proposals made by the Respondent. Specifically, the Respondent
charges that the Company violated § 8 (a), subsections I and 5 of that
National Labor Relations Act by presenting a single demand to the
Union on or about May 12, 1970 regarding raising starting and
progression rates of pay on a take-it -or-leave-it basis and refused to
bargain on the Respondent's request for changes in maximum rates.
15. The concerted one-day work stoppage [of May 181 was called
for the purpose of giving the Respondent's members an opportunity to
consider the Company's take-it-or-leave-it proposal. The Respondent's
members voted it down overwhelmingly.
16. The work stoppage [of May 221 was in no way related to the
Company's bargaining proposal. It was a Union response to the
wholesale suspension of 700 employees who were trying to get back to
work.
SECOND AFFIRMATIVE DEFENSE
17. In violation of [§I 8(ax5) and ( 1)] the employer toward the
end of 1969 and the early part of 1970, unilaterally put into effect the
program of hiring employees into the bargaining unit on a wholesale
basis at rates of pay above the negotiated hiring rate and above the
rate of pay of employees already on the payroll , thus transforming
unilaterally the starting rates which were incoporated as a result of
collective bargaining in the agreement between the parties.
THIRD AFFIRMATIVE DEFENSE
18. The Company never served a notice of modification or
proposed modification of its agreement with Respondent on either the
Federal (or State mediation authorities].
15 NLR B. v. Mastro Plastics Corp., 350 U .S. 270.
16 Commenting on Mastro Plastics, Mr. Justice Frankfurter, in his
concurrences in N.LR. B. v. Lion Oil Company, 352 U. S. 282, 302,
observed that Sec. 8 (d) "has no effect on whether unions may validly
strike over non-bargaining matters."
17 Local 156, Packinghouse Workers (Du Quoin Packing Co.), 117 NLRB
670 (1957).
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
urged at the meeting-the inclusion of all employees in the
raises.
While this result flows from the very sequence of events,
it is confirmed, if further confirmation were needed, by the
economic appeals in the picket signs, and indeed by the
Union's own bulletin which it introduced to show the
"wildcat" character of the meeting of May 21, that ushered
in the events culminating in the May 22 strike, to be later
considered. As appears from the extract previously quoted
from that bulletin (supra, fn. 10), Respondent, in exhorting
the members not to act on their own lest they jeopardize
"our united front," stressed that "if we maintain our
internal discipline, we will be better able to achieve the
results we are seeking." The sought-for results are expressed
elsewhere in the bulletin. The bulletin opens with the
announcement of the "overwhelming vote . . . to reject the
inadequate offer by the Company which discriminated
against long service employees," and states that "the
members have served notice on the Company that they are
not about to be divided in their quest for a fair settlement of
the cost of living problem of today." This cost of living
problem of today was the basis on which Respondent at its
meetings with the Company was arguing for a change in the
wage scales that would include employees at maximum.
The bulletin rather confirms what inheres in the stoppages
resorted to in the wake of the meetings themselves, that
they were part of the quest to obtain the "settlement"
Respondent had unsuccessfully sought to achieve at the
meetings. However sympathetic or appealing the character
of the "settlement" sought, the fact is that Respondent was
glued to a contract that had a little over a year to run. In an
effort to soften its effect by a wage scale more consonant
with rising living costs, it first met with the Company, and
that failing, it was now seeking to force that result by the
stoppages. As Respondent now itself admits, it could not,
consistently with Section 8(b)(3), engage in them with such
purpose without performing the conditions prescribed by
Section 8(d), even if the Company's own bargaining
concerning the subject had been in bad faith.
Under these circumstances, we do not reach other points
dealt with by the proponents of the complaint painstakingly
and, until Respondent's present concession, pertinently so.
Mooted by Respondent's present concession are such
matters as (1) whether in meeting at the Union's request to
discuss a change in a term of the contract, the Company
waived its right not to consider the contract reopened, and
thereby obligated itself to bargain concerning it to
impasse; 18 (2) whether the fact that the Employer made a
counterproposal, as in Milk Ice (supra, In. 18), put the
Company under the same obligations as the employer in
Equitable Life Insurance Company, 133 NLRB 1675 (heavily
relied on by Respondent), that has itself originated the
subject of contract change; (3) whether the Company
placed itself under such an obligations in the face of its
express reservation concurred in by the Union, that the
18 See contra Milk Ice Cream Drivers Local 783 (Cream Top Creamery),
147 NLRB 204, Union Carbide Co, 165 NLRB 254
19 Compare with General Electric Co, 173 NLRB No 46, enfd in part
and set aside in part 412 F 2d 512 (C.A 2). There a divided Board (with
the Court reversing as to this) held that the company, in participating in
preliminary meetings prior to the time where the negotiations under
meetings were not to be deemed as reopening the contract
(supra, fns. 3, 4); 19 and (4) whether on the evidence which
Respondent had been permitted to develop (over the
objections of the General Counsel and the Company), the
Union had in fact sustained its claim that the Company had
not bargained in good faith concerning its wage proposals.
Giving the Respondent the benefit of all these issues,
there is the question of how it helps it in the face of its
admitted failure to comply with Section 8(d) as a condition
to engaging in these stoppages and its present acknowledge-
ment that the Company's bad faith would not excuse its
engaging in these stoppages to compel the Company to
yield to Respondent's position concerning the scope of the
wage changes.
Respondent somehow weaves the bad-faith imputations
into its denial that its stoppages were intended to force the
Company to modify the wage scale. Respondent argues
that at the second meeting, held April 15, the Company put
"the coup-de-grace" on the Union's generalized demand
for a comprehensive wage scale by introducing "its own
problem" (caused by hiring rates that were "too low")
which after study, would be specifically explained at a later
meeting. Respondent interprets this last as one in which the
Company denied Respondent "the opportunity to make
any specific or particularized dollars and cents proposals"
and rang the curtain on Respondent's proposal. From then
on, beginning with May 12, it was exclusively the
Company's show, so Respondent contends. Respondent
claims the Company was then as obligated as was the
Employer in the previously mentioned Equitable Life case,
133 NLRB at 1689, 1690, where it was held that where the
employer, on its own, initiated a proposal to modify the
contract it had thereby reopened the contract, and by that
token, obligated itself to bargain concerning its proposal in
ggod faith. Respondent, in its brief, is singularly silent
about the corollary thereto on which it relied in its defenses
( supra, fn. 14)--to wit, that in making what Respondent
termed a "take-it-or-leave-it" proposal, the Company
violated Section 8(a)(5) and (1) on the principle of General
Electric Co., 150 NLRB 192, where the "take-it-or-leave-it"
expression was used in connection with an 8(a)(5) and (1)
finding. In the brief, Respondent does not cite General
Electric, as it had done at the hearing, nor so far as appears,
does it repeat the accusation contained in its answer that
the Company thereby violated Section 8(a)(5) and (1).
Presumably, this derives from Respondent's present
acknowledgement that the Company's bad faith would not
have dispensed with compliance with Section 8(d) as the
condition to striking or engaging in a stoppage to compel
modification of the contract.
The best one can make of Respondent's use of the take-it-
or-leave-it characterization is that the Company's proposal
of May 12, so the argument would seem to run, insulated
Respondent's stoppages from the purpose it manifested in
the first two meetings , and created only the purpose to
which it attributed its stoppages. Respondent states:
contract became mandatory had thereby advanced the period in which it
was required to engage in full scale good -faith bargaining. The preliminary
meetings there had become an established practice under which the later
negotiations during the mandatory period were facilitated . In that case
there had been no prior reservation , concurred in by the parties, that the
meetings were not to be deemed reopeners.
TELEPHONE WKRS . UNION OF N. J., LOCAL 827 733
We submit that the record establishes that the May
18 stoppage to vote and the moratorium on overtime for
a week certainly were not "strikes" to compel the
Company to modify the agreements in mid-term. They
were, as the Union told the Company, responses to the
Company's proposal and the manner of putting it
forward. The proposal could only serve as a severely
divisive maneuver pitting long service members against
short service members. The Union responded with a
show of unity to counteract the Company's divisive
proposal.
The record indeed establishes the Union's resentment of
the Company's proposal. Though the proposal too was
divisive, the divisive result would hinge on the Company's
putting the proposal into effect. The Company never did so
or threatened to do so, and in its letter of March 17 in
answer to the Union's request for a meeting (supra, fn. 3),
the Company made it clear that only those proposals would
be incorporated into the contract "if . . . we reach
agreement on [them]."
Respondent's "collective response" may well have been
to protest the Company's proposal, but by its very character
it was a protest also against the frustration of its own
purpose in initiating the meetings and which it advanced in
the course of them. The purpose hardly ended with the
second meeting, as the Union claims, for on the versions of
both the respective spokesmen, the Union continued to
press for including employees at maximum in the wage
raises in opposition to the Company's proposal, which did
not include them. Hence, even if we were to regard the
Company's proposal of May 12 as an original one (in the
manner of the employer in Equitable Life, supra ) the
Union's stoppage, albeit in protest against the Company's
proposal, was also in protest against the Company's not
enlarging its scope in the manner the Union had been
urging at the later meetings as it had done in the earlier
ones.
As already stated, the work stoppage on May 18 to
conduct the vote at the unprecedented daytime period, with
its maximum adverse impact on production, taken in
combination with an already predeclared overtime morato-
20 Respondent claims the Du Quoin case (supra, fn . 17) is not controlling
here because the Union there "admittedly struck also" to compel a
contract modification in midterm without filing the 8 (d) notices The
"also" there refers to the "employees resentment over the Company's
attitude," which the union had urged as the cause. As to "admittedly,"
Respondent quotes the portion of the Board 's decision stating that the
union there "concede [d ] that at least one of the objects of its strike was to
secure a modification of wage rates in the contract " Respondent , it is to
hoped , does not mean to imply that motive hinges exclusively on a
respondent 's confession and cannot be inferred from other evidence of
purpose
Respondent also uses for its own purposes the Union Carbide case
(which the Company at the heanng and now in its briefs cited as among
the cases showing that a proposal made in midterm of a contract is one
concerning which the other party need not bargain to impasse , supra, In
18) The use Respondent makes of Union Carbide is that there it was the
employer who during midterm of a retirement contract had offered certain
benefits under it and who was ultimately exonerated of violation of 8(a)(5).
There the parties had been negotiating terms of the basic (i e., wage-hour)
contract to succeed one that was expiring The parties were apart on the
wage clause , and in an effort to break the impasse , the company , as its last
offer in regard to wages , offered also to inbrease the benefits under the
separate retirement contract , which had another year to run The union
rejected the whole package , and when the basic contract expired, the
rum for the entire week, had the natural and forseeable
consequence of undermining the Company's ability to cope
with the backlog created by the first day's total stoppage. It
was pressure to achieve what Respondent was demonstrat-
ing for-to force the Company to carry its proposal the step
forward for which the Union had been urging. This
objective, as earlier stated, inheres in the very plea for the
united front to better "achieve the results we are seeking."
The above rather inexorably calls for the previously
stated conclusion that the overtime moratorium beginning
May 18 and the all-day work stoppage of May 18 through
23, whatever their other purposes, also had as a purpose
forcing the Company to modify the contract by having an
all-embracing scale of increases instead of the more limited
one, and we may assume, the "divisive" one proposed by
the Company. The condition prescribed by Section 8(d) for
such a purpose not having been performed, Respondent is
thereby concluded to have acted in violation of its
bargaining obligation under Section 8(bX3) of the Act.20
2. The 1-day strike of May 22
The May 22 strike concerns the question of whether
Respondent thereby acted in still further violation of
Section 8(b)(3). I find that it did.
In arguing the contrary, Respondent treats the Compa-
ny's action on May 21, in suspending the wayward 785 for
the remainder of the day and the Union's strike of May 22
in reprisal as isolated occurrences divorced from their
background. Though Respondent still terms the suspension
a "lockout," the pejorative term is disclaimed as connoting
any interference by the Company with the protected rights
of the employees. Respondent acknowledges that in
absenting themselves from the job the early part of the
morning of May 21, the employees were not protected by
the Act and were vulnerable to the Company's discipline in
suspending them for the remainder of the day. However,
Respondent argues that just as the Company was privileged
to resort to the discipline, so was the Union privileged to
resort to the "collective response" of striking in resentment
company locked the employees out. The Tnal Examiner thought the
company had thereby sought to force the union to bargain to impasse
concerning the as yet nonmandatory subject of retirement and found the
company had thereby violated Sec 8(aX5) and ( 1). Disagreeing, the Board
found the Company by its lockout had not sought to force the union to
bargain concerning the retirement clause to impasse but had merely offered
additional benefits under the retirement contract as an inducement to
break the impasse over the basic contract Accordingly, the Board
exonerated the employee of violation of Sec 8(a) (5) and (1). Whatever
one's views , as between the Trial Examiner and the Board , concerning
whether the employer had, on those facts, been forcing the union to
bargain concerning the as yet nonmandatory subject of retirement benefits,
it is obvious that the question there concerned how the introduction of a
nonmandatory subject as leverage in negotiations over a mandatory one is
to be interpreted . Nothing like this is here involved.
More in point here is Milk Ice case, the other case cited on the same
basic point (supra, fn 18). There , during negotiations for modification
(pursuant to a reopening clause) of the basic contract, the union asked for
changes in midterm of the separate retirement contract , which was not
subject to reopening Though the employer had indeed made
counterproposals concerning the retirement contract , the union's sinking to
force changes in the retirement contract was held to be in violation of Sec
8(b)(3)
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of it without thereby having run afoul of its bargaining
obligation under Section 8(b)(3) of the Act.21
This may be true only if one isolates the occurrence from
its background. The abstention from work of the 785 and
the meeting they were stemmed from the Union's unlawful
continuance of the overtime moratorium. The overtime
moratorium deprived the Company of the services of the
employees needed to cope with the logjam created by the
Respondent's all-day stoppage of May 18. This forced the
Company to use supervisors for that purpose and brought
on the fracas over supervisors working alongside rank-and-
file, culminating in the meeting of the wayward 785, as
described in the factual recital. Though Union President
Merrigan described the meeting as "wildcat," it is not
altogether clear whether Respondent disclaims responsibili-
ty for it. If it does, Respondent's responsibility is clear, first
from the fact that its continuing the overtime moratorium
brought in the very situation culminating in the meeting of
the 785, and secondly, in its later ratification of the conduct
by the general strike in reprisal for the discipline the
Company unlawfully invoked for the conduct of the 785.
As recalled, the Union had warned the Company that if it
disciplined any employee for honoring the overtime
moratorium, it would declare a general strike. Had the
Company disciplined an employee for refusing to work
overtime, a strike in reprisal for that discipline would have
been an enforcement by the Union of its unlawfully
continued overtime moratorium and in effectuation of its
purpose as found. In this instance, the general strike was in
reprisal for disciplining employees for conduct calculated
to undermine the Company's only available recourse-the
assignment of supervisors in replacement of the employees
of whose services the Union was unlawfully depriving the
Company by its maintenance of the overtime moratorium.
The General Counsel and the Company see the May 22
strike as part of the Respondent's overall strategy. I would
doubt that the Union had actually planned it that way.
Nevertheless, in ordering the May 22 strike in reprisal for
the Company's lawful discipline of employees for conduct
which was intended to thwart the Company in its efforts to
cope with the production problem created by the overtime
moratorium, the Union was acting in effectuation of its
moratorium and in aid of the purpose which illegalized it.
The May 22 strike being thus in aid of the continued
overtime moratorium, it shares its illegal character as a
violation of Section 8(b)(3) of the Act.22
21 Citing Textile Workers Union of America (Personal Products, Inc), 277
F.2d 409 (C A D C ), cert denied 352 U S 864, N L R B v Insurance
Agents ' International Union (Prudential Ins Co), 361 U S 477
22 The Union's "second" defense (supra, In 14) is that the Company's
unilateral action in having , prior to the Union's initiation of the meetings
here involved , hired employees into the bargaining unit at rates above the
negotiated hiring rate in excess of that of employees already on the payroll,
violated Sec 8 (a)(5) and (1) of the Act Its "third" defense (ibid ) is that
the Company failed to give notice to the Federal and State mediation
authorities as prescribed by Sec 8(d)(3) Since there is no indication of how
they are "defenses" against the violation by Respondent of Sec 8(b)(3),
they seem to be suspended in midair While it would seem enough simply
to dismiss them for that reason , I shall pass upon them for whatever
residual claim Respondent may have concerning their pertinency I
conclude that the defenses are without merit I reach this result quite apart
from the fact, of which I have been asked to take judicial notice, that the
alleged 8(a)(5) and (I) charges filed by Respondent against the Company,
which, prior to the hearing in this case, were dismissed by the Regional
IV. THE REMEDY
Respondent having, as found, engaged in work stoppages
in midterm of a contract to compel a modification of it,
without compliance with the conditions prescribed by
Section 8(d) of the Act, it will be recommended that it cease
and desist from the conduct.
On the foregoing findings and the entire record, I state
the following:
CONCLUSIONS OF LAW
1. By engaging in an all-day work stoppage on May 18
and concerted refusal to work overtime from May 18
through 23, with a purpose of forcing the Company to
modify the wage scale of the existing contract, without prior
compliance by Respondent with Section 8(d) of the Act,
Respondent refused to bargain collectively within the
meaning of Section 8(b)(3) of the Act.
2. By engaging in a general strike in reprisal for the
Company's lawfully disciplining employees for conduct
calculated to thwart the Company in its efforts to mitigate
the effects of Respondent's unlawful conduct above,
Respondent acted in enforcement of its unlawfully declared
overtime moratorium, thereby further violating Section
8(b)(3) of the Act.
3. Said unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
On the basis of the foregoing findings and conclusions
and the entire record, and pursuant to Section 10(c) of the
Act, I recommend the following:
ORDER 23
Telephone Workers Union of New Jersey, Local 827,
International Brotherhood of Electrical Workers,
AFL-CIO, its officers, agents and representatives shall:
1. Cease and desist from:
(a) Engaging in a strike or stoppage, for a purpose of
compelling a modification of the wage scale or any other
clause of an existing contract, without first complying with
the conditions prescribed by Section 8(d) of the Act.
(b) Engaging in a strike or stoppage in enforcement or
effectuation of a strike or stoppage having as a purpose to
compel a modification of the contract.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
Director The unilateral hiring of employees above rates in the contract
was permitted under the previously quoted clause that "employees may be
engaged at rates in excess of the minimum hiring rates at the
Company's discretion " Respondent 's claim that the expression meant
something other than what it seemed to say finds no support in the
evidence or in the plain meaning of the clause
The defense that the Company did not send the notification under Sec
8(d)(3) of the Act is not sustained because the Company went no farther
than to propose a contract change , without either making the change,
threatening to do so , or engaging in a lockout to force the employees or the
Union to submit to it
23 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations, and recommended Order herein
shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted
by the Board and become its findings, conclusions , and order , and all
objections thereto shall be deemed waived for all purposes
TELEPHONE WKRS . UNION OF N. J., LOCAL 827 735
(a) Post at Respondent's offices and meeting halls copies
of the notice marked "Appendix."24 Copies of said notice,
on forms provided by the Regional Director for Region 22,
after being duly signed by an authorized representative of
the Respondent, shall be posted immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable
steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Furnish the Regional Director for Region 22,
personally or by mail, copies of said notice for posting by
New Jersey Bell Telephone Company, if willing, at its main
headquarters and its other locations, where notices to its
employees are customarily posted.
(c) Notify the Regional Director for Region 22, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.25
other party to the contract of the proposed
termination of the contract (or of a proposed
modification of the contract, it it has a reopening
clause, or if despite the absence of a reopening
clause, the parties should mutually consent to a
reopening).
Within 30 days after such notice, inform the
Federal and state mediation authorities of the
existence of the dispute.
Continue the existing terms of the contract in full
force, without resorting to strike, stoppage, or
lockout for 60 days after service of the previously
mentioned 60-day notice or until the expiration
date of the contract, whichever occurs later.
WE WILL NOT engage in strikes or stoppages for a
purpose of strengthening the effectiveness of strikes or
stoppages engaged in contrary to the requirements of
the preceding paragraph.
24 In the event that the Board's 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 be changed to read
"Posted Pursuant to a judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
25 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, notify said Regional Director, in writing,
within 20 days from the date of this Order, what steps Respondent has
taken to comply herewith
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS ORDER
An Agency of the United States Government
WE WILL NOT engage in a strike or stoppage having as
a purpose to compel modification of the wage scale or
any other clause of an existing contract without first
complying with the provisions of Section 8(d) of the
Act The section prescribes, in substance, that any part
desiring the termination or modification of any existing
contract shall-
Serve at least 60 days' written notice upon the
TELEPHONE WORKERS
UNION OF NEW JERSEY,
LOCAL 827, INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Federal Building, 16th Floor, 970 Broad Street, Newark,
New Jersey 07102, Telephone 201-645-2100.