The opinion
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 24, 2004 Decided March 16, 2004
No. 03–1155
VERIZON NEW YORK INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with
No. 03–1180
–————
On Petition for Review and Cross–Application
for Enforcement of an Order of the
National Labor Relations Board
–————
Willis J. Goldsmith argued the cause for petitioner. On
the briefs was Marshall B. Babson.
Meredith L. Jason, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the
brief were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
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Deputy Associate General Counsel, and Fred B. Jacob, Attor-
ney.
Ellen Dichner was on the brief for amicus curiae Commu-
nications Workers of America, Local 1103, AFL-CIO in sup-
port of respondent.
Before: RANDOLPH, ROGERS, and TATEL, Circuit Judges.
Opnion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: Section 8(d) of the National
Labor Relations Act defines collective bargaining as ‘‘the
performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times
and confer in good faith with respect to wages, hours, and
other terms and conditions of employmentTTTT’’ 29 U.S.C.
§ 158(d). An employer’s refusal to fulfill its bargaining obli-
gation violates § 8(a)(5) and (1) of the Act. 29 U.S.C.
§ 158(a)(5) & (1). The principal question in this case is
whether the National Labor Relations Board properly ruled
that Verizon New York Inc. violated § 8(a)(5) and (1) when it
refused to bargain with the union over elimination of the
company’s long-standing practice of allowing employees to
participate in blood drives during working hours with no loss
of pay.
Verizon provides telecommunications services throughout
the State of New York. The company and the Communica-
tions Workers of America, District One, are parties to state-
wide collective bargaining agreements covering installers,
repairmen, splicers, linemen, clerks, plant department, and
other installation and maintenance employees. Local unions
under the Communications Workers act autonomously within
their geographic territories. The union involved in this
case – Local 1103 – represented some 4,000 employees in
downstate New York where the blood drives had been con-
ducted.
Verizon at one time supported blood drives throughout its
New York operations. During the 1980s and 1990s it discon-
tinued this practice, except with respect to the area in which
Local 1103 operated. There the practice continued in much
the same way as it had for more than thirty years. The
3
company, the union and Hudson Valley Blood Services, a
charitable organization, jointly established dates for the
drives. Union stewards then conducted half-hour meetings,
signing up volunteers and proposing specific times for their
blood donations. The union forwarded these appointments to
the company so that it could adjust work schedules and cover
employees who would be donating blood during working
hours.
Verizon and the union conducted eight blood drives annual-
ly, two each in the northern and southern regions, and four in
the central region, all during working hours. In the typical
blood drive, eight or nine union representatives helped check
in donors, served refreshments, and took care of other admin-
istrative responsibilities. Donors spent up to four hours
traveling to the site, giving blood, recovering and returning to
their jobs. Approximately 1,000 unit employees – 25 per-
cent – participated; managerial employees also took part.
Employees received full pay and credit for their hours spent
in donating blood and in attending the pre-drive meetings.
In February 2001 Verizon decided – according to one
management official – that it would no longer permit employ-
ees to participate in the blood drives ‘‘on Company time.’’ In
the past, when technicians and other workers left their jobs
to participate in blood drives, the company experienced signif-
icant problems meeting customer requests for service, espe-
cially during outages. On March 6, 2001, the company told
the union of its decision. Three days later, a union steward
filed a grievance complaining that the company had ‘‘bar-
gained in bad faith by changing [its] blood donation policy
without negotiating with the union.’’ The company denied
the grievance. On March 28, company and union representa-
tives met to discuss this grievance and other grievances the
union had appealed to the second step. Management orally
denied the grievance, stating that the blood drive was not a
term or condition of employment. The next day, March 29,
Verizon sent a letter to the union’s president notifying him of
its change in policy. The letter stated that in the future
blood drives must ‘‘take place on our employees’ own time,’’
but that the company would make its ‘‘facilities available to
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you so you can hold the Blood Drives on our premises after
work or on weekends when our employees are off.’’ On April
8, the company formally denied the second step grievance in
writing.
The Board found that Verizon had violated § 8(a)(5) and
(1) of the Act by failing to give the union an opportunity to
bargain over its decision to eliminate the blood drives dur-
ing paid worktime. The blood drive program was, the
Board ruled, a mandatory subject of bargaining under
§ 8(d) because it concerned ‘‘wages, hours, and other terms
and conditions of employment.’’ The Board also rejected
the company’s defense that the union had not timely re-
quested bargaining over the change in policy and had there-
by waived its bargaining rights. 339 N.L.R.B. No. 6 at 2
(May 16, 2003).
As to the latter, Verizon’s claim of waiver lacks any eviden-
tiary basis. Three days after the company announced an end
to blood drives, the union filed a grievance charging the
company with refusing to bargain about this matter. At the
second step of the grievance process, the union again made a
demand for bargaining, this time orally. 339 N.L.R.B. No. 6
at 1; see Prime Service, Inc. v. NLRB, 266 F.3d 1233, 1238
(D.C. Cir. 2001) (‘‘The demand [for bargaining] may be in
writing or it may be oral.’’). Three weeks had intervened, but
that hardly constituted an undue delay on the union’s part.
No blood drives had been cancelled during this period; none
that had been scheduled before the company’s announcement
were imminent; and, as Verizon’s counsel admitted during
oral argument, the company suffered no prejudice in the
interim. Waiver of a right protected by the National Labor
Relations Act must be ‘‘clear and unmistakable.’’ Metro.
Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). With no
imminent consequences looming, the union had no reason to
act swifter than it did and, in the face of the pending
grievance requesting bargaining, the company had no reason
to suppose that the union had acquiesced in its change of
policy. This distinguishes the several Board and ALJ deci-
sions Verizon cites for the proposition that delays shorter
than three weeks have resulted in findings that unions waived
5
their right to bargain. In all but one of those cases, the
employer informed the union of a change in terms or condi-
tions of employment that had to be implemented quickly. See
Diamond Walnut Growers, 312 N.L.R.B. 61, 71 (1993) (hiring
at the beginning of walnut harvest); Vandalia Air Freight,
Inc., 297 N.L.R.B. 1012, 1014 (1990) (takeover of company on
brink of bankruptcy); Cherokee Culvert Co., 266 N.L.R.B.
290, 294 (1983) (layoffs); Salem College, 261 N.L.R.B. 327,
337 (1982) (subcontracting); Hartman Luggage Co., 173
N.L.R.B. 1254, 1255–56 (1968) (layoffs). In the remaining
case, WPIX, Inc., 299 N.L.R.B. 525 (1990), dealing with the
employer’s increasing the mileage reimbursement for employ-
ees, the union never requested bargaining.
Verizon has only one other contention regarding waiver
that is worth discussing. It says that when it discontinued
blood drives in other areas of New York ‘‘the Union’’ did not
object and did not request bargaining. Brief for Petitioner at
38. There are three responses, each conclusive. First, the
‘‘union’’ here did not represent employees in other geographic
regions. Second, the record contains no evidence about what
responses the other local unions had to Verizon’s change of
policy in their regions. Third, a ‘‘union’s acquiescence in
previous unilateral changes does not operate as a waiver of its
right to bargain over such changes for all time,’’ Owens-
Corning Fiberglas Corp., 282 N.L.R.B. 609 (1987). See Ciba-
Geigy Pharmaceuticals Div. v. NLRB, 722 F. 2d 1120, 1127
(3d Cir. 1983).
This brings us to Verizon’s argument that the change in its
blood drive policy was not a mandatory subject of bargaining
under § 8(d) – that discontinuing blood drives did not alter, in
the words of § 8(d), ‘‘wages, hours, and other terms and
conditions of employment.’’ There is no doubt that the policy
change affected Verizon’s employees, but this is not necessari-
ly determinative. A company’s shutting down part of its
business to cut economic losses obviously affects its employ-
ees, yet the Supreme Court held that this was not a mandato-
ry subject of bargaining. First Nat’l Maintenance Corp. v.
NLRB, 452 U.S. 666, 686 (1981). To fall within that category
the matter must be ‘‘plainly germane to the ‘working environ-
6
ment’ ’’ and ‘‘not among those ‘managerial decisions, which lie
at the core of entrepreneurial control.’ ’’ Ford Motor Co. v.
NLRB, 441 U.S. 488, 498 (1979) (quoting Justice Stewart,
concurring, in Fibreboard Paper Products Corp. v. NLRB,
379 U.S. 203, 222, 223 (1964)).
Verizon’s argument is that its decision to support, or not to
support, a charity is a core entrepreneurial concern; that the
blood drives benefitted Hudson Valley not Verizon’s employ-
ees; and that ending the blood drives did not ‘‘vitally af-
fect[ ]’’ the employees’ wages, hours or terms and conditions
of employment (quoting Allied Chemical & Alkali Workers v.
Pittsburgh Plate Glass Co., 404 U.S. 157, 179 (1971)). The
Board did not disagree with Verizon’s first point. Manage-
ment certainly has the prerogative to chose whether to sup-
port charities, and which ones. But how management goes
about this may be another matter. A company could not,
without bargaining with the union, order employees to work
for a charity during the workday without pay. Here, Verizon
did not require members of Local 1103 to give blood, but the
voluntary aspect of the program does not have the signifi-
cance the company attributes to it. To stress, as Verizon
does, that an employee’s decision to participate or not to
participate had no impact on his wages is to miss the point of
the Board’s decision. The employee’s decision had no such
impact because Verizon permitted employees to receive
wages for time not worked – up to four hours per blood drive
twice a year – and to have these non-working hours counted
as worktime. On the days of the blood drives, donor-
employees thus received eight hours of pay for four hours of
work. The amount of pay received for the number of hours
worked is surely ‘‘germane’’ to an individual’s employment.
Suppose a company had, for thirty years, allowed employees
to take four hours off with pay twice a year. No one can
doubt that time off with pay is a mandatory subject of
bargaining. It is no less so because some employees might
decide to continue working rather than leave their jobs.
Employees may be entitled to paid vacations, but they are not
always required to take them.
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The Board has long designated the question whether ‘‘em-
ployees will be paid while they engage in nonwork activities
TTT a mandatory subject of bargaining.’’ 339 N.L.R.B. No. 6
at 2. Thus, ‘‘wages, hours and other terms and conditions of
employment’’ include, so the Board has held, discontinuance
of an extra 15 minutes paid time during Thanksgiving lunch
break, Rangaire Acquisition Corp., 309 N.L.R.B. 1043 (1992),
enforced, 9 F.3d 104 (5th Cir. 1993); the ending of paid time
off for jury duty, NLRB v. Merrill & Ring, Inc., 731 F.2d 605
(9th Cir. 1984); adjustments in the amount of paid lunch time,
Van Dorn Plastic Mach. Co. v. NLRB, 881 F. 2d 302 (6th Cir.
1989); the elimination of paid time on payday to cash checks,
AT&T Corp., 325 N.L.R.B. 150, 153 (1997); and the cancella-
tion of a 5–minute paid washup period for maintenance work-
ers, Appalachian Power Co., 250 N.L.R.B. 228 (1980), en-
forced, 660 F.2d 488 (4th Cir. 1981). The Board’s judgment
that ending the blood drive program is a mandatory subject
of bargaining because it concerns wages and hours fits com-
fortably in this line of cases.
The petition for judicial review is denied and the Board’s
cross-petition for enforcement is granted.
So ordered.