# Appendix — Puerto Rico Telephone Co. v. Figueroa de Arroyo > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0204%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1970 - **Citation:** 400 U.S. 877 ## Text 4 % 7 - a f. 7 _ ont u 7 : os sit : _ r ; “ : IN: | a | : : | | 0 Spree ‘Court of the United States : Nicinece Term, 1970.. Larne PUERTO RICO TELEPHONE COMP ANY, ‘ , a gh hitioucr, ROSA ME FIGUEROA DE ARROYO, IRIS TORRES DE CHBRNANDEZ, ANDREA’ COLON TEBENS, IRIS - TRABAL. QHNINTANA,. JOSE a\l-FRANQUEL, LUZ ARMEINDA TORO TIRADO, BENJAMIN TORRES RIVERA, CARMEN -E. DE LA ROSA) DE ORTIZ, LOS. ALFREDO MOREE RT . - .s ELSTE ‘TORRES as ¥ arene LARRY, ELSIE LUGO BERNTER, ° - ae my ARD. ° SINDICATO DE TRAB AJIADORE SS PACKING Tra SE; AFL-C1O, DISTRITO DE PUERTO RICO asp UNION DE EMPL BADOS DE LA SINDUSTRIA DET TELE. ft »_BONO DE PUERTO RICO, LOCAL 963, . ; a a is , i [hereinafter colléctively “Union|. ‘They were discharged by the Company —one inf September 1963 andthe’ other SIX itt April PW — allegedly in contravetition of the seniority”. — provisions of the collective bargaining: agreemen| between _ the -Conmpany and the Vion: They immediately ¢ommuni-’ cated the fact of their discharge to the. Union but! after the Union failed to take their claims through the grievance ° ates ‘the plaintiffs filed. suit, on sabe dice 1965, “agdinst both tlie Union and the ({ fompany.' ie Actipst jury returned speci: al verdets that the Comp: my ‘s distnissal of plaintiffs dad v iolated the seniority. previsions, and. that ph: tintiffs had: pyope rly. Submitted thei ar claims to. the Uniom . A sepond ‘jury found that the Union Had breached its duty-af fair representation—with regard to” six of the seven plainitiffs- and awarded plaintitts varying amounts for lost earnings, “allocated: in varying portions between the Company, and the Union. | ‘ 8-8 The Union appeals fren’ the finding: of a’ breac h of its: dutyof fair representation and the assessme nt of damages : the Company appeals , from thie finding of. improper dis- : ch; irge. the. finding that the U nion had breached. its duty, cand the assessment of damages; and the pliintiffs seppeal - on the ground that additional elements oft dam: ages —in- cluding reinstatement—should have ‘been -awardtd. We, vortsider the appeals in that order, : as . The Union's. Duty: of. Fair Representation. rage a . : : Fair representation’, conceived in a racial diserimina- tion context in Steele v, Louisville & Nashville R. (o., 323 U.S. 192 (19494), has matured into-a broader Ghitgation for 1. Subdett thatter jurisdiction against the rr sid is” foiinded on S$ 0a "i sle) of. the Taft- Hartley Act. 26 8. $ 185/a) 14 and against the Union ons US. CL 8S 1g: i : ST (1964), Nee Bradyy, Trans Warld Airlines, Ines 401 F. | 87. ME (heb Cir. 196s °, cert. denied, 33 U.S. 1048 (1969). - : Vi (1967). Republic Steel \. Maddox, ay ‘gif Su. Boul, t ° — - eo ; : fis . ; : a unions, most recently ardieulated an Vired wo Sipes. S86 Los. ’ ® .-.). o-~« Gos. (1965), had established that an diladlaia under a colle tive. ba rgaiming agreement, whith provides bxelusive ‘nem dies for Hreae ‘hes of that agreement must atte mipt tale SX hgrust those contractual: remedies hefore resorting to thie COUrL>, . cra Coty la Mach then made clear that the eifiploy ee could the employer's ‘defense of failure to cexhaust contract at s- ws . e.. * ° a Ne remedies, by proving flat’ the entploer chad? re ponediaat ead ys those remedies, or that the Union had- by a breach of it duty of Pair representation preverited the emp Hoyer from « xhausting those Femedies, oy threat there was Some other valid reason why the contractual reme «lies could bey disrg : earded. Vy acaen, Sipes, supra at Ist 1s: see Viliver \. M4 . * Louis-S. FR. Ca. 392-0, Si 324, 20-391, (1969). Phaintitt. here sought to overcome ilics e’euhaaeliah of contract”? barrier by attempting fo prove thet the Unions” ‘wnftal ro repiresetitation .ptevented. the. requisity exhaustion. Vaca held that mn employee does not have. an absoln right to have ‘his grievance taken. throush the wrievienes procedyre 2 nnless ‘the contract) otherwise provides. thy union has a rause of diseretion within whic h. te detern ine, thaf an employee’ s erievguee® ix without’ merit, Ved s Stipes, supra at IS1-193. | Thistead, the employer Inst prove. earbitrary or bad. faith conduct — various Ivo referred’ to cas, the absence of honest yuerpose and: judgment and or tie, presence of hostility or dise ‘rimini ition. -on the part of the union in: otder fo prove that it has breace its chity, Veer ~exelinsiye control over a erie, vance, the unfon must have thatceds ‘ ? "s Stpes, supra, at 190, 195 : HH yaipnre WN. Moore aad U. = Ww hile Ven dealt with a union Sere ‘fusal? de take ae processed er ievane c te arbitration. We: see Wo reason to litte Yt" retastes bets Y the Step of arbitration ane earlier steps.in ghe grievance prow “The same principle sapplies: when the efuttiet wives the ‘trol in order for. the whole process M fungtion stioothiy and et? tively, which lotic surply applies to alti stages’ of the grielaned precedure. Nee Comment, iv Butfale LL. Rev. 169, 176-177 fee) » j H \ | | eet eer marate Doo, OF9-; 50 (1964) ¢ Ford Motor Co. Gt Higrman j40 U.:S 330, 337- 238 (1953). However . while due care has not basi n made a part of the. muons duty, the Court has ‘“a@cept [ed] the proposition that a unto ‘may not arbitrarily ignore a /ueritorious griévance er process it in perfunctory fash- : ion.’ | Vaca W. Sipes, Se dias at 191, 194: se c alse Re Steel iw. Waddow, supra at 632 : . . ub lie Applying ‘this multifaceted standard of fox represy enta- tion/to our ease, we, can rule out any possibility at stibjee- ‘tive; bad. faith,- hostility # «lise rimini ation, oF dishotesty on the part of the, Union coffidials i in failing’ to-press plamtiffs’ LEVIOV: ances, | Mr, Sanchez— thet nion offic ial who was. re- sponsible for the Union*s action” In.this case—-appes Fs from the record as. a ‘deilicated Union Joader and legislator, of. : manifold responsibilities. However, we are. still left With the Court's re cognition that arbitrary and. perfunetory handling by a union of an appére ntly meritorious grievance +. is net accept able under the Standard of fair yepresentation. This ease reveals sueh handling. -'There Was no ev idence . as to any. plaintiHf except Klsie Lugo® that the Union ever. Jnvestigated or made any; jlement coricerning- the merits of -her grievanee. - See Lov al Union 12, Unite d- Rubber Workers v. NoL. R. ef}. 308 FB’, 2d 12,°17-18 (S5th-Cir. 1966). Its entire attention daring. 1964 centered on, an NLRB pro- “Cee ding aimed at preventing the Company from contrae ting out work involving the, installation of ndbw erie Just lifore the six plaintiffs were disinissed i 1 April 19d, the trial examiner made his re port which walle ‘ithy confined its relief to those dismissed because of subcontre acting, | to. ‘ on 3 his The second jury's finding.that\the Unien fulfilled its duty of fair representation, with regarél to. Miss Lugo is supported by evi- donee that the Union pressed her erievance,to impasse immediately y after Her dismissal In September T963. This failure to Drove that’ they Vnion’s unfair representation prevented her from exhausting + contractnal remedies bars her recovery jagainust the Company in this case.” Sce disc ‘ussion in text supra. 8 >. ; * b F ; r ie 2 A 5 ) z e . Which the Vniow filed: no exceptions. | lithe face.of that re- port and clear evidence that plaintiffs * Were dismissed, be- cause of autom: ion rather, than subcontr’ acting, the U nion president i inexplicably cone ‘nde d that the NL RB preceeding woulde adequately: protect plaiaitefs? rights. “Clearly the jury was Warranted in finding that the U wiani’s failure to press plaintiffs: wrievaces Was: tn result’ of | its arbitri ary atid perfunetory: handling of them.’ . ° The C nidti'sésuggestion that its. pressing of these griey ances during’ the pendenéy of the NL&B Proceeding would sgmchow have jeopardizéd that avenue of relief is: cogn- pletely: without merit, There is nothing inconsistent in trving to protect the jobs of the Hiore. senlog, elnplovees | Vis-a-Vis) the less ‘Stnior employees in one forum, while “trying to protect the jobs of a larger miuiaber of employees “Vis-a-Vis outside employees in another forum. Moreover, it is obvi lous that the Chion does riot breach its duty wher: ‘it presses legitimate seniority elaims,even though the effect of suecess is to jvopantize the Jobs of those defined, by the contract as léss senior. FP nally, the Union toned by the omipaiy —insists that the’ six plaintiffs discharged in Vpril 1964 failed to specify the: seniority. basis for their grievances when they com- plained to thy U nlow. At ix true that these plaintiffs did not. textif'y ‘that they told cither Miss Avevedo, the local -Union de Jegate, gor Mr. Sanchez that less senior employees had been retained when théy had been dise ‘harged., Tlow- every. Miss Acégedo, who undoubtedly knew yl 30 telephone operators: i In the Mayaguez ‘unit. forWarded to Mr. Sanchez -not-only plaintiffs’ nanies bit their dates of rice Which oH licated that live shad worked over three years and two e The de ‘fe relat” surgument that the charge erre d in foe ‘using “solely on. the Uinion’s aétion in failing: to* process the erlievances nicht have been.well taken had there been anv rational basis for . relying, solely on the NLRB proe eeding. ie, XG .° had worked over ten years. Almost identical communica. . tion hia heen sufligient to initiate the SeMOriLy grievance _ tor, Miss Luge, the: least senior of the seven plaintitYs who Was discharged an Se pte tmber T96s and whose erievance Wits pressed by the Union. Moreover, the Union had been informed just be fore these istiissals that they would oce ur “Deeause’ of -the mew automatic dialing system, so thet seniority Aras the only possitle basis fora grievance. Tad the Uiiion given anything but the most perfunctory atten- lion to these EPLEVANCES, it would have Deen obvious: that they raised a seiviority claim. We are satistied, therefore, that the jury, ‘could have Found that these, seniority eriey- ces Were’ subiitted to the J niowt in compliance with the Upprdépriite provision in the collective bargaining agree ment? Aecordingly; we conchide: that the jury wees enfitled_ td Jind that the Union’s failure to press the six plaintiffs’ grievanees Was the result of its poeple and perfunctory handling of them, and thus a breach ofits duty of fair representation preventing an exhaustion of contractual remedies and enabling these six plaintiffs (seen. 3) to main- tain their suit against the: Company. ; ae ‘i a ae oe The Statute of Limitations. The Union contends, however, that even if. it breached its duty of fair representation, plaintiffs’ suit against it: is barred bythe one-year Pie ito Rico statute of limitations for tort clai Is, Ol L. PB. R.A. $5298, sincethe Union’s breach occurred over 19 eee i fore plaintiffs filed suit 0” The Company's argument that the: plaistitf’s failure te speak with a S’ompany representative within 48 hours of dismissal “bars this suit weuld require a strained interpretation of the collee- tive bargaining agreement resulting -in a substantial pyramiding of étforis whose only apparent. adtantage ina dismissal ease would be the insulation of the Company from litigation because of tech- ileal, oversights by the employee. ; : © - . _ * on November 22 1965. However , While Anto W orkers: v. Hoosier Corp., 085 ieee 696, 101-705 (1966), established that $901 suits should be governed by the state statute of: limitations rather than SOME Huplied federal limitation period, the question: left ‘undecided for purposes -of our case is Which Pue rto Rico statute of limitations apples to an employee's suit against his union for breach ‘of its duty of fair representation, When such siut is a part of the em- ployee’s suit against kis employer for breach of ‘the col- lective bargaining agreement. _- ; \ o At the outset. it seems . clear that the union ’s duty ot fair represe ntation to those it jre prese nts eannot be considered a contractual” duty because of the contractual relation between the Union fim the employer. This approach was persuasively rejected in .Nedd ve United Mine Workers, 400 F.2d. 105, 105-106 (3d_Cir, 1968), which view is surely | correct, Lor, as in-ourcase, the Union's breach was not its HeTY. failure to submit plaintiffs’ grievancés in compli- ‘ance, With the contract but rather its arbitrary; perfunctory failtire to do sO. 7 . e * . . Another argument for treating plaintiffs’ suit as a con- tractual claim is that it is their obligations of membeg ‘ship in the Union which generate the reciprocal gbligation by the Union to pe rform its. statutory duty of fair Fepresenta- tion. This duty, howevey, Imposed: and defined by federal labor policy, is not « capable of being bargained away by workers even though a written contract or uhion by-laws might so provide. Moreover, the Union, once certified, is the bargaining agent for all employe es-in the h: argain unit, including ‘the non-union employees. It would be bizarre indeed if the non-union employees were considered to have a’ tort claim for unfair representation, with generally a “AS shorter limitations period, while union metibers’ claims sounded in contract and were thus subjeét to a longer ; limitation pe riod. v - ee ee It nighit also be argued that the e Stone a elivim against: his union should be characte ized asa ‘teontract’* action: Whenever the employee’s suit also states a claim: agaist his employer for breach of, contract, because the principal velie! sought is uortalty ‘reinstatement and. baek.’ wages | from the employer and the union may-oonly be a party in order for the employee for overcome the employer's’ ex- oa haustion of contract! defense, However, this View which considers the two claims as essentially’ insepare ible is also @ Unsatisfactory, . Mist, it Would mean that ina given state, the employee’s: Siig aeniust hiss union for. unfair r aprese nitation”” aeattdt be subject Lowa +htferent stat tite of lintitations depeyding on whe the othe employee eat his emplover in thee. | > Sane. lawsuit. “More ftmportantly, the ‘tinseparability’’ rationale does net hear inspection. Obviously quite different - evidence aid legal argument will be addressed to the tywo- claims. Moreover, the employee may well have a substantial claim for damages against the wiion which far exceeds the - potential recevery against the employer, thereby destroying the premise that the claim against the union is only inei- Jf de tal to the more important breac li of contract ¢haim | wainst fhe: ciployer. i BBs we detect uothing in the federal laber policy Which necessitates this rather strained view of the em- ployee’s, claim cascietnst his union-and his-employer, While the viability of the: erie ance procedures erected by. the collective ( argaining ag ereement mi iV require: the’ employee. ‘to show, asa prerequisite to- his suit against his % employer, that,he was prevented from exhausting those: contre actual re a ee by the union’s ‘unfair re presentation”, Republic. . AN eo. . ° “Steel ve Maddow, _ Supra at Ho2- 6a3: Vaca v Sipes, supra at I'S4- IS), nothing therein requires that the union actually he liable for such breach." Indeed, an employee could sue _ his employer under $301 and overcome the ‘exhaustion’ defense by showing wrongful prevention ly the union with-. - out ever formally joifing the union in that suit. Vaca ve Stipes, supra at U6: Serra ve Pepsi ‘ila General Battlers, Fne., 248 FL Supp. O84, GSS (CN. D. TIL *1965).: Rivera ., NU Pension & Welfare & Vacation Plan, 288°F. Supp: R74, 876 (KE. D. La. 1968) sf. Coosek v. PMG S, sinice Di | } | | sc opens ORO plaintiffs’ suit against the U nion asa contract? detion is both unsound-and unnecessary ‘insorder‘to. effectuate Te ca J ae . , Ay Res 7 * existing federal labor policy. Moreover, the Union’s duty seems more akin to, though less rigorous than, the duty of due care nermally associated with tort-actions.. Finally, we detect in Hoosier Corp, a distinet preference for the* shorter statute of limitations Where the question of charae- terization isa, close” one and no manifest injustice restlts ‘ from such choice, which preference sugges the-tort linn- tations period im most jurisdictions. : STR BE, Ed ar Le ea 6. "Phe Company insists that unless the Virion is governed by the same statute of Limitations as it is. a union may deliberately refuse to press grievances in order to provide the employee who is ee of the Union's shorter statute of, limitations with- an oppottanity. to take his claim to a jury ina S301 snit-—tith the Union's ‘iuifair representation’. conceded “but Immunized— rather than toan arbitrator at the end of the grievance procedure. which possibility. allegedly cireumyents our federal labor pref- erence for arbitration. “We canrot deny ‘such possibility exists, althongh ‘such union conduet might constitute either san unfair labor eh ‘tice, seen Tora breach of the labor contract actionable by a $301 suit by the employers Moreover, it is ditfienIt to see the ‘real quid: pro quo ‘for the emplovee in sueh cifteumstances, for thre damages flowing from any contractual breach bee ome more. attrib- utable to the union's conduct than to the emplover’s initial breach, In short. we discount the likeljhood while acknowledging the pos-. sibility, leaving it to Congress to enact some statute of limitations applicable to both employer and union. See text, infra. We are therefgre satisfied that ane e diet to char opieaice . One other possibility must-be explored. Since the em- ‘ ployee’s suit Against the union is nof founded on the } labor contract, the suit may not-be a § 301 suit and ‘thus Hoosier. * Corp. may nof be applicable, Even, assuming the plaintiffs” , elaim. against the: Untom is not a $301 suit, we ‘think the losic of t Hoasrer Poe dictates the adoption of express _ atta Statutes of lintitation inthe absence. of an express. -~. federal limitation period. The question becomes whether there is any express, federal limifation period governing an action against gd union for breach of its duty of fair” representation, Sinee the Union's breach-may be an unfair labor priictice, the statutory six-month limitation period (. ¢ 160(b)—could be deemed xpplicable to an employee's suit against the anion. © How- for such practices—29 U.S ever, singe Maca y. Stipes established that Federal labor poliey does not require that individual suits. be préempted simply -because the NLRB might also he able to prosecute unions for such conduct, we see no reason why such private: litigatton must be limited by the same period as the NLRB ix. By giving ‘individual employees a period longer than the NL RB’ s SIX months, we encourage initial recourse to the Boardthout precluding a subseque nt_civil suit if the. Board. refuses to pursue “the. matter for ‘the, individual employee. Moreover, the individual suit ‘is still analogous to an ordinary tort action regardless of the Board’s con. current jurisdiction. . at Mina . We therefore conclude that plaintiffs’ action. against the Union in our case is properly characterized as a tort ac tion and ix ‘therefore barred by the one-year limitation period 7. Alirangla Fucl ('o., 140 NL Ris 1s] (1963). cnferee ment de. nied, NLRB vy. Miranda Ful Co. 320 F.2d 2 (2d Cir. 1963) ie an unfair labor practice) : Local 12, United R re Workers NLRB, 36" F.2d 12 (Sth Cir, 1966); cert. denigd, 389 US. 837 (1967 » (unfair labor practice); Truck Drivers and fIlelpers, Local Union 565 ve NLRB, 379 F. 2d 137 (DD. . Cir. 1967) (unfair labér practice). : . for tort ‘claims arising in Puerto Rico.- However, as we made clear above, we do not believe that the U nion’s immnnity from suit for the breach ‘of its “duty, jof fair. *represe tation has any beari mg Ww Thatever on plaints suit against the Company for improper discharge, the “oxhaus- tion’? defense haying heen overcome as: to six of these. -* plaintiffs by proof of the Union’s breach. | While we are satisfied that the proper legal analysis of the union: s and emplover’s duties in-eases sueh as. this “req yis'es the imposition of different state statutes of. limi- tations, we are equally convineed that Colgress would be well fdvised to enact a federal statute pol limitations to: dei il with both kinds of claims asserted/here.. . The Propriety gf fhe Discharges. The issue of the adequacy of the evidence to support the special verdicts that the Gompany discharged plaintiffs * “in violation of the seniority clause is a clase one. Plaintiffs’ counsel failed to resort to pre-trial dixcoyery while Com “pany counsel appears to us to have. takeh refiige im-an cambiguous court order to refuse to make available records of four of the plaintiffs. Plaintiffs’ counsel briefed this issue superficially ; Company counsel briefed it exhaustivel®, but, understandably, not with complete objectivity. Our standard of review. are the seniority clause iiself® and the adequacy of the evidence to support. the jliry’s findings that-plaintiffs had carried their burden to show by a preponderance of the evidence that they were as OS. St Seniority shall prevail if the qualifiedtions of aH the en plavees to be considered are equal, but shall not be used againsf - any employee that because of his ability. competence, efficiency and better serviee record proves to be more useful than some other that has merely been employed ‘for a longer period of time.”" ° . e a q A m= te t cy useful as a less senior employee... We require more than ‘a seintilla, See Miagqnat Corpov. BEB Electroplating Co., Bas eh. 2d 794, 797 (Ist Cir. 1966). Lhe case for the. six plaintiffs who ov®reame the defeh se ane / : of failure to exhaust -contractiial remedies consisted of three components. The first was, tlie tes@mony of each that she deemed herself. useful and had we problems with her supervisors, and thatta number of retained dperators were junior to her, ‘The second was the sadmission: by". Mrs. Ramonita Padovani, the Chief ( perator for the Com- pany Who had made the sclectionsof operators to he dis- charged, that. each plaintiif was a good employee whose return Was desir: able. The third——and sole souree. of com? parisons between plaintitfs and those who were retained: Was the testimony of Mrs. Tris Torres ede Hernandez, the former assistant tothe chiet Mayaguez operator for the _ than the rem viuing two plaingitfs.' plaintiffs, The Company. which had the exact length.of service of | _ all employees, failed to controvert this testimorty of —— Company, Who had been laid off seven months prior to the disc harecs: She‘offered her individual assessment of each - plaintiff and ofsome eleven other operators, all of whom $- were less senior than four of the plaintiffs and-at Teast. , four of whom appeared from the evidence to be less senior’. Ww Such testimony tended » prove thi atenll diy plamtiffs were as useful as four or eee at the less senior employees. In addition, Mrs.- Her- nandez testified that, in her opinion, these plaintitts were more useful than the a senor retamed oper rators, The. Compariy contends that this testimofiv falls short m6 oe facie ease for plaintiffs because, im its View, ePliintitfs continue to argue in brie f that defendants h: id the er to show that the operators retained were more etticiewt than: plaintits. Bat the charge of the court ‘te the contrary was not excepted to. i : P i is re "+10. The Jury could have found that Sonia de la Cruz, Elsie Camagho. Perfectas Vazquez and. Ruth Soto were all Tess senior. than plaintiff Tris Trabal Quintana, the Teast senior of these six . 6 “* °° ae tr ee tee « - ' . : “ k 7 : =; Mrs. Hernandez was comipletely aliscredited as a witness. Two reasons of i t general nature were asserted : that she Rad left the ompany ‘Ss Service seven months before plain- “tiffs were dismissed, and that she had originally been (a Inte fend on their “lost earings ”* recovery, “Sue hointerest Has been awarded: by the NLRB in back pay cases —+2y., Isis PluinGing & Meating Co. 8 NLRB 716° (1962): and - egforced by decisions. fromm at least seven cireuits. Se% NULRBOY. Leal 13s. Operating Engineers, 885 Fo 2d S74, STS (2d Cir. 1967). and cases cited therein, n. 22. -Conrt- have also awarded sneh prejndgme nt. interest in cases “Where the Ni ational Railroad Adjustme nt Board ordered reinstatement, and bae ‘k pay without mention of any inter est recoverys Raabe : Florida Kiist (loast Reiluay Co... 259-F. Supp. 351, 356 (M.D. Flas 1966S; Die wenger Chicago. Milwaukee, St. Poul? and Ez acific R. Co. 2f8 EF. Supp. 211, 213.06. D. Wis. 1968). compare tom ve Ohi. cago. Milwaukee, St.Paul Pac ifte R.- Cows 299 KF. ‘Supp. 58h, DST ion D.° Wis. 1969). > - 3 ALG, ‘ 7 Such decisions ure sound where, in an effort to ‘make’ whole’? thie’ ‘improperly Eecleceed employee an administra- tive agency ascertains actual wages lost and the agency: or the court, supplements.them by interest from the di ate uch Wi Aves should have been paids But w here.2 jury: has made an award for Jost earnings, we think it inappropriate for L judge lo attempt to assess interest. In many cases: the. -jiry’s verdict would not supply -the basie data of dates and unouuts On Which interest could fairly be computed. W ere we to “brook ain exception where, as here, the precise com- “put: ition of the, plaintiffs was accepted by the jury, we would in etfeet be conditioning the right to interest on the. Happenustance of a pre cise. stipulation precisely followed by i jury. We therefore agree with the action of the alistrict court. in refusing to award prejudgment interest. “As compensation for damages meurred® afler the date of the district court’s judgment, plaiitiffs seek either rein- statement or money damages for future loxt earnings, both of which were de nied by the district court. Reinstafeme ‘nt chas been ordered by various fede ral courts im stit hrisingg under the Railway Labor Neto E.g., Brady v. Traus World Airlines, Inc, 244 F.Supp. 820, 822° (Q,-Del. 1965), ag", 401 EF. 20-87, .102-103° (3d Cir. 1868) cert, dented, 393 U.S: 1048 (1969), reheg denied, 304 U.S. 5 (1969) ; Raabe‘ v. lorida East Coust R. Co., supra at 3d4. _ The Company INSISTS, however, that: fanalcee Cyr eee ‘*anti-injune- tign’’ provisions, 29 U. C. $$ 101-115—inapplicable to suits under thé coe sued eres Act, Tratmmen v. Chicago Re LR. Co., 808 TLS. 380, 41-42. (1957)—bar reinstate- nent in §$ s0F suits under the } National Labor sae ations. Act. We disagree. ms a ¢ ? The C oinpany *s sa interpretation of section 4(2) of - a a \ a eeeneneeee te oe es a the Norris-LaGuardia Act. ' completely disregards the pri- -mary purpose behind the anti-injunction provisions, ‘to protect working men in the exercise ef organized, economic power... to correct existing abuses of the injunctive rem- edyv in lahdr disputes« .. to prevent the injiinetions of the federal courts from upsetting the natural past sg of the as: economic forces of Jabor and apa Tramimen: Chicago Rok TOR. Co. Supra at 40-41: see Sinclair ; us Co. ve Athinson, 370 U.S. 195, ee (1962), Our understanding of the legislative history heltfhd section 4(a) leads us to conclude that that section Wad not intended as a protection fer employers, Brotherhood of Locomotive Engineers ¥, Baltimore d& Ohio BR. Co... 310 F.2d 513, a17- DIS (7th Cir. 1962), aff'd ou other reas. aia ul. S. 284 (1968): Retail Cle rhs Union Lacul 1222 X. ae M. Lewis, - Ine., 327 FB. 2d 442, 446. (9th Cir, 1964).; see Local Union No. 328 v. Armour and Co.2 294 F. Supp., 168 (W.D. Mic h, 1968) : but see Cline v. Publishers, Asstn of New York City, 214 F. “Supp. 920,. 528. (S. DN.Y. 1963), af? on lower * court opmmion, 314 BF. 2d 848 (2d Cir. 1963). The remain in any relation of -employment*’ Linguage in seetion 4(a), which forms the basis of the Company’s literal interpreta- tions was-used, we. think, simply to make clear'that employer? strikes could not be’ enjoined either if the employees claimed “to have-ceased or refused toe work tempor arily or if they | _claimed to have completely ended their employment rela- tion with their comployer, Wotecues, the drafters did spe- cifically include emplovers when siaoease ‘was intended - for them. See section 4(b), 29 FF, £104(b).-Fin: lly, 12. “Na ‘cout of the U nited States shall ne Jurisdiction to issue ayy’. . injunetion ... to prohibit any pérson ... from... (a) Semaine or refusing .. . fo remain: in aoe relation of employment,”” 29 UL S.C. § 104(a).- ‘Tt is possible to read this provision as prohibiting a federal court from enjoining an employer from réfusing to reemploy a former employee, even an improperly discharged one, ‘ ; —~AI8 “the reemploymeetit of improperly discharged employees ean hardly be said to be one-of the abuses sought ‘to be elim inated by the Norris LaGuardia Nets Sees section 2, 29 UoS. C$ 102; Teatile Workers vo Lincoln Mills. 355 UL. FAS. AOS (LIT) We therefore hold that the remedy of reinstatemmnt. in a YROb suit is not barted by section 4(a) of the Norris-LaGuardia Act. . Absent Norris Lainardia’ Net restraints, the rationale of Brailu vy. Trats World Airlines. Inc. supra, applies with equal fore’ under the NERA. We ail to discern any reason Why reinstatement is not a perfeetly acceptable form. of relief for S.A01 Suits against the cnployer. See Serna ve Pepst Cola General Bottlers, Ine. sapra at GSS: Rirera vy. NA Pension WV fare. ( Vacatiow Plan. supra at S77. In many such-casex, reinstatement would have. been the likely remedy had the erievanee been taken through: the errevanee procedure its it should have bean. | Om Be Machin- ake. Distrr f vi a Campbell Soup ('o., 406 FL Pd (7th Cir. W609). Tis unrealistie to assume that the injury te the Improperly discharged einplovee continites wuly Jip to the date of the distriet court's judgment. In the nornial case, reinstatement constitutes one ‘ae ‘of prospective relief! whieh has seme assurance of making the employer Whole while aveiding the diflieult problem oF quantifving future lost earnings. : : | - By coteluding: th: iF “peinstatement js san “appropriate remedy ina $301 suit, we qo net mean to suggest that it. aust Be orde red in every such case.:First of all, there may be some cases in which no prospective relief is warranted.” Ih. Rig. where the empiover can demonstrate that the em- ployee would have been properly discharged at some point prior to the datecof yndament. or where it appears that the employee - had by the date of judgment obtained equivalent) employment Which mitigated: all prospective injury, from the improper dis- charge, neither of whieh has been suggested by the Company as haying ocenrred mm onr case: The Company's sole contention’ in ‘this regard. that no prospective: relief should be granted beeause | ee AIM Yot in our ease the Jury's: tof ibaward tor fost’ earnings fo the date of-trial has not been conteste ‘dy and sine © there was Ho evidence (fat the ‘loss ofe Inplow tient’? inpary suffered lyr plaintiffs’ ds aoresult of their wroneful discharge sud- denly- ceased on the date Of judge nt, it” SCOTS: likely that panties” MEN COntinied even afters the date o f jude. ment and that, seme form of prospective relief is ap- propriate, | “ : tt eee . Reinstatement still may ot be the appropriate form of prospective relief in this case, however, for it may be that the sin Vear delay sinee diseharee das made reimstatemens impractical both fer thee OMIP any wud for the plaimtilfs, particularly Gf the present seniority Clause is a weak one /Which is likely to generate future eontrove ‘sy Concerning these emplovees. Ef such Inhipr: acdieality eEXIsts, We can see ho reason why an award for. future lost earings would not be in order, Thompson a Broth rhood uf Sle epimg Car Porters, 367 F.2d ASO, 494 (4th Cir. * 1966), cert. denjed.! Sh U.S. 960 (TMi). eee are apportioned between the t Mion and the omplover alone the etidelines of Facd there Was no evidence that plaintitts were still as use Ful us some less senior employees who were retained: | 1 1964, nist be rejected, Even assuming that plamtuts were re ae as useful, the Com- pany camnot dake advantage of its own wrongdoing, for if ereated the sit@ation where some present emplovees continued to work in place of these plaintiffs who were wrongfully disvharged, — In- similar CIPCLIMST NEES, the Third) Cireuit phede 4a lower court arder requiring the employers dinder mmeh nore extreme eond)- tions af obsolescing skills. te train the Improperly: discharged employee if necessary to return him te the position he would have attained had he not heen disc ‘harged.. Brady v. Trans World Air- fines, Ine. supra at 103. oe 14.. “See also Nichols %. National Tuhe 0, 732°. Supp. 726, 482 (N. D. Ohio 1954) rev'd Ou other “raunde, 229 FY 2d 396 (6th Cir. 195653 Nothing in either W alher Vv. Southern Railway Co., 237 F. Supp. 278 (W. DN. ¢ (. 1964). or Gass. v. National’ Contains orp.. V7 EF, Supp. 441 (ELD. TL 2959), persuades us that the Fourth Cirenit’s Thompson. decision should Hot. be fel]- lowed. While Vaca may indicate a different apportionment of damages than that made in Thompson, nothing ine Vaca suggests that properly apportioned future cpeage ‘sare an improper remedy. : ry : “ee Aan r v. Sipes, supra and Crosehk ve O'Mara gsupra. Moreover, we think it makes wood: spnse to give the district court an alternative to reinstatement: in) those cases” where some prospective relief is warranted.’ Tertile: Workers + v, Lincoln Mills. sipra at. 456-4477 The adimittedky diffientt -problems of quaintifving: future.lost earnings should not be allowed to preelude any prospective remedy or to force the parties to accept the more drastié remedy of reinstate- smeut. OF course the employee will only che eititled to recover. from the Compiiny fon those damages whieh are reason bly ‘attributable to the discharge and which could not have been mitigated by oneagingin substantially equiv— alent employment. 2a . In this case it is unclear why the district court denied ‘any form of prospective relief. We therefore. remind this . aspect of the damages question for the district court either to order reinstatement or to submit to a jury, atter the taking of evidence, the question of the aniowit of future lost earnings, pS. e Plaintitts iso seek. wy award of reasonable attorney's, feos, While federal courts have ipa: attorney! s fees asa part of the successful plaintiff's recovery in the: labor relations: context in the absence of OX Press statutory: au- ‘thorization™ and while we are inelmed to think that such 15. We recognize that the record below contains litthe evidence from which future damages could have been ealeglated. However, there was sufficient evidence fo justify a reinstatement order. Since the case must be remanded for new considerationcof the propriety of reinstateme nt, we think it would be uufertunate both’ for.the Company and the plaintiffs if the: distriet- court were forced to choose between reinstatement and no prospective relief: in-a ease where some such relief see ms warranted, J 16. Eq j.. Rolar v, Atlantic Cadist Line Ro Co. 6 FL Pad 473, 481 (4th Cir, 1951) cattorner’s fees awarded to employee | for union’s breach of duty of fair representation) ; Gartner v. Noloner, Oe By 2d S48 (5d Car, 1967). cert. dented, 390- U. S. 1040) (1968) (attorney's fees to union member ‘under § 102, LMRDA) : Sheet Metal Workers, Local 225... Atlas Sheet Metal Co., 384 F.2d 101, 109-110 (5th Cir, 1967) ~(attorney’s fees awarded to employer be | AQY | ee a relief could be appropriate ma S301 sit suchas this.one,”? we think the citeunistances prese nte ‘din this case prec ba! such relief, Normally sich reliet should be charged against the union, for itsstailure to utilize the. erievance procedure on the employee’s behalf is what necessitated his resort to the Courts. However, in?our cdse the Union is ‘immune ° from liability. because of the statute of limitations, and.” we can find no substantial evidence that the Company could he said to have frustrated the grievance. procedure ‘with regard to the plaintiffs still before us. For these’ reasons, the court’s denial of such award is affirmed. Finally, we are satisfied that the plaintiffs request for “mental damages** was properly denied. We think this is ‘amatter of federal dabor law and while we gan conceive af extreme. tonduet byl either thes employer or the union Which might iff some cases Warrant such an aware, it seems clear. that ours is not that exceptional case. Cf. Brady v. Traus. World Airlines, Lue. 244 FP. Supp. at 822. The “CASE ane rentoikded tir the District Court to enter Judgment against the Company for past lost earnings in accordance with tas opinion aud to determeme the propriety of reinstate meal or future lost CUPHINGS. — — 4 ee ence tide "° s 303, NI RA A); Gulf ‘Coast Bldg. : 4 onst- “Trad s Council FE. OR. Hoar & Son, Inc., 37) BF. 2d 746. T4s (Sth Cir, 1967) tees 7 17. Mr. Justice Blac ‘k, dissenting in Vaéa-y. Nipes. supra at 210, eloquently described the difficult route left open to the em-.’ ployee in this predicament. Moreover, the alleged wrong inflicted on the employee, loss of employment vin viol ition of contractiial rights; the anticipated recovery, perhaps too insubstantial to sus- tain competent ‘counsel's best efforts to obtain redress; and = the ultimate purpose behind: any recovery in such a case, making the employee whole, all suggest that the empkoyee may need some financial assistance to press his claim and, if sttecessful, should retain a substantial portion of the jury's “lost earnings” award for himself. Finally, the cost of attérney’s fees is an injury to the employee directly attributable to and necessitated by the failure of the union “and or the employer to utilize the contractual vriev- ance procedures designed to remedy breach of contract g¢elaims without resort to the courts. * oy ; : made post-trial motions. " nerd > ae | APPENDIX B. Rosa Mo Figueroa. De Arroyo, Lris: Torres De Hernandez, Andre: Colon TPubens. Tris Prabal Quin, tana, Jose As Franqui, Luz Ar ominda. Toro) ‘Pirade, Benjamin Torres Rivera, Carmen be. be La Rosa De Ortiz, Elsie Torres Ra thos, Alfredo Mor Irizarry and 53,3 Klsie Luge Bernier 7 . Pinaiits, v. | sindicato: De Trabajadores Pack- inghouse, AFLICIO, Distrito De Puerta Rico, Puerto Rieo Pele: phone: Company and Union De Miipleados De lai tudarstfia Del Telefono De Puerto Rieo, Local GOs), . Defendants. ’). Uxirep Srares-Districr Cour, . rae Aves | Puerto Rico. Me, ie . Aug. S, 1969, v RULING ON -POST-TRIAL MOTIONS AND MEMORANDU M. . S(‘iv. No. OTL-6o, "2, *Hexry N. Gaaven, Senior District Judge (By Assignment). lit this’ action, following Jury trials, nll of the parties The hae ‘kewround for those motions will be next set forth. The pl: untiffs in this action were > A23 ' : poet ; all formerly in the employ of the defendant, Puerto. Rico Telephone Conipany at Mayaguez. The phiintiffs’ in this action assert cliims awaist all of the defendants growing out of the alleged wronglul termination of their Seas ment by the defendant) P Puerto Rico Telephone Company. That defendant was party te ai collective uae agreement with the dy tendant Unious. The two Unions. were and are treated as one under that agre ement. The de- fendant Union first named was the over-all Union oreanizir- \ de- fendant Union. wats the Jocal Uiten for the defendant tion for the Commonwealth-of Puerto Rico, The othey Puerto is eee Company. Those defendants will be referred to’ Mas the defe nei int ae nion or the defe ndant: U nlons, | | The action was designated bye the phaintifs as a jury case. Phe aetion. was distuissed? withorit prejudice as to the ° plaintills bris ‘Torres ‘de Hernandez and Benjamin Forres Rivera for lack Of jurisdictions, At the close of the evidence averdict Wiis-directed in favor of the defendants as to the claime OF the plainititt Pose A. Prangui and Al- fredo Moreu Trizarty. Jury: 0+ were had as to the claims a oe retuaining Stven plaimtitis, Those plaintits were sWl chhoarad telephone Operators iT the Prattic Department of thy defendant Telephone Company. Tn accord with jury verdicts, Judgments for substantial amounts were rendered . in faver of each of tlfose plaintiffs. In the case of six of those plaintiffs, aa were rendered against’ all, of the defendints, In the case of the seventh, of those plain- tis, ie. [E Inie L. ugo Be rier, judgement was rendered in her favor only as against the defendant Telephone (‘om- pany. Phe claims. of those seven plaintiffs: are the subject matter of this Memorandum. Hereafter when reference is — the pl: vintitts reference Will be to those spl: aintitfs. The Was a separation as to the trial of the i Issues. One jury rendered special verdicts as to certain or the issues N Maine: Issues. The seven plaintiffs and:the dates of the oa v4 are next set forth; ae” Jae used agains AD ~~ * @ a : Aas Sie te ee at ae : i and another jury rendered special verdicts as to the re. commencement of their employment and? thy termination of their euiployment by the defendant Peléphone Company | “Started .. .* Was Name — Working. Separated, Rosi M. Figueroa de May 26, 1960 April a, 1964 ~ Arrovo | ca Midrea Colon Tibeus May 20,1953 April 3, 1964 ris Trabal Quintana = May.do, i961. Aprile, i964. ‘Luz Arminda Toro) 0 April 21, 1950 April 8, 1964 Carmen EH. dela Rosa August 16.1956 Aykil 3 3; EIG4 de Ortiz. — ora elsie Torres Ratios | March 27, 1961 oe oe 1964. Mlsie Luge Be rnier June T2196) September 19, 1962 x ‘ ye i : it appears. that the number of eorployees in thet Prathe , | Departirent - wats reduced: because of the introduction of “¢ automatic switching. M the tires S here mate rial there was un. effect botween _ the de fondant Telephone Company and the twodete ae o nions accollective barguintee agreement, Article NX-« the collective bargainingsagreements was astfollows: +. ‘ ; ‘SENIORITY. « “Seniority shall be the fuld terin of service credited to,an employee working for the © OMpany as. reflected. | hy the Company's records, ; ‘The Company shall take info consideration all the . employee’ s qualifications | in the case ofpromotions and lewy-offs in Jobs covered by pres cca ment. Seniority steal prey vail i the. qualifiéations of all, the employees tobe conside 3 arecequal, but shall not vas employee: that because of his ability, competence, efficiency and. better service recerd proves to. be more useful than ‘some other that has merely been employed forta longer per ‘iod of time.”’ 3 A od ‘ " . ‘ An Section 5 of WWrticle: XV of. the. collective bargaining agreement was as follows: . “Section 5—Suspeniled or Laid-off Employees “a) If an emplovee regards his-suspension or laving- off as unjust, he Shall submit his grievance to the . Union. : “h) In case the Union also regards the émployed' df " sls- pension or laying. off as unjust, the Unign shall snbinit a grievance in writing, within the three (3) days tollowing the employee's suspension or notice bor cof laying off, to. the Company” x Director of. In- - dustrial Re lations. oy) T he (" ompany shall have te. right te stimmoni the , ~Gritvance Comittee to a Spee ial] meeting to settle the erievance. ae Ee “d) Onee the pe ‘riod of three (3) dass from the em- ploye’s ae RENE or, notice ‘of laying-off shall _ have clapsed,thé Union shall have no right to file’ a grievance on/said’ suspension or notice of laying- off and the ease “hall he regarded, as closed. ‘o) Any. employee that has been suspended or laid-off shall if his:suspension or laving-off is found to be — unjustified iii the Grievance Committee’s judg- « ment, be reste d to his old job without detriment to his seniowity rights, andthe Company shall be required to pay him any money he may have fated to earn during his suspe nsion or laying-off."”: ie It is the claim of the planititfs that i aibreentats terminated by the defendant Telephone, Company in viola. tion of the seniority provision of the‘eollectiv® bargaining ‘agreement. It is the claim-of the plaintiffs that the defend- ant Unions wrongfully t: led to subnut their erievances for - accord with the provision of the collective bargaining . : 2 hues 2 ag rreement, During the times he ve mate vist: Armando Sane hee Mar-. ; me : e . ‘such’ violation to the defengant Telephone Company in \ ‘“ ate ae A26 ey / ry i" : 4 / : tinez was president of the deferidant Sindicato.dé Prabaja- dores) Packinghouse, AFL-CTO. Distrito de. Puerto Rico, which, as heretofore noted, Was the ever-all CU Hien onan. zation tenn the ( ‘commonwealth of Puerto Rico, . On September 13. 4963. the defendant . Telephone Com- pany Was notified in writing hy the defend afi Uryion as 10 its representatives under the collective: bargainitig: agree- ment. Included among these so designated was Carmen Acevedo, Followittg her name appre ‘ared the word‘ Traffie Miss Acevedo was employed in the Pratlie Departmen} along ‘with the plaintiffs. There were aroind 30 employees in the Tragiey Department, r romptly Upon recemnving notice of the termmMation of their employment, the plaintiffs notified Carmen Acevedo that they deemed themselves agerieved by the termination of their employment. Mr. Sanchez early learned that the plaintiffs were claiming that they had been agerieved by the termination of their employment. ‘The first of the dssties: betweem-the parties was as to whether the defendant Telephone: Company violated the seniority provision of the collective bargaining agreement, In that connection the jury, was Instructed-as follaws ; . = J bssrrverion No. 4. . . fh i provisions of A rticle NN of the collective haar- gaining agreement have been heretofore set forth. “That Article does not in any way Jimit the right of the Company to day off an emplovee no longer needed. It had the absolute right to so do. Thus, the right of the Companyt.to reduce the number of em- ~ ployees in its Traflie Department is not involved. What ix involved is the seleétion of employees to be laid off. Under Artiele NN seniority isjonky one of the factors to be considered by the Company in selecting the em- ployees fo be separated and those to be retained.- Se- niority is determinative only where: the factors of: e ; ; | AZ) oy » ability, competerice) to the Company are efficie NEY; xe vic e, aid use fli ows ‘qual. Pail.” st plainteff assArts that at the time she was laid ‘ompany bi eg te in its Traffie Department off the ‘employees with lesser, Seniority than she had. Eich plaintiff further-asserts\.that shev had qualifications equal to those of the employees retained as to alality, competence, pfficioney, ‘service, and usefulness te the ‘ . > ra Company. .*- 4 —“Phecburden. is npon each plaintiff to eMabligh In a preponde: ance of the evidence that her qualities x, isis in the matters refaffed to were equal to those whe were, retained. At she hasoso-established, voir answes to. Question X6. 1 in the spegial verdiet relating to her should be ves. Tf she has hot so established. then your answer to QueNjon No, a asx to her “igual bie a ‘n ‘ The jury returned special verdicts finding that ini the ease — plainti#® the defendant? Telephone Company had violated the seniority. provision of the collective bargain: ing agreement, That jury, In. addition: to finding that-the defendant - Telephone (' ompany had violattd the seniority. -proviston of the collective ‘hb: arguining agreement as to cach of the plaintiffs, also - found that the plaintitfs. had. be made within - Six months after their OCCUrrence, It would seem that the clear interpretation of the holding in the case of Auto Workers v. TLoosier Cardinal Corpora- tion, svpra, is-that it is the local statute of litnitations rather than the provision of Section 160(b), Title 29 ULS. CLA. which governs the time for the bringing of court “actions for breach of a collective bargaining agreement. It seems clear that if the present-actioy is to be characterized as an action for breach of conthact, it would not fall within Ree The scape of Article TS68-of the ¢ ‘wil Code of Puerto Rico. relied oir hy the dete nilants, It iS the view of the Court that the basic character ol The claim of each of the plaintitts ix that of an action based upon the breach of contract, that Dreach being a breach of the seniority provision of fhe collective: bargaining agrec- mente: Each playititt seeks fo recover her loss of* Wages: based tpon that breach. ach seeks to. recovel: from the: defendant Unions, the evhancement of her dass hy | ‘Ahem, The defendant Uiiens, im substanee, claim that tho ates ofeach plaintiff consists of two cayises of actions one fwainst the defendant “Pelephone Company and canother vueathist the defendant Citons, The opinion in the case of Vaea v.'Sipes, svpra, refers: to the action of the emplovee agaitist his eniplover ane hits UMgOn gis being anaetion for a ttsinele injury © (A86 ELS. aa val ae, a ia Mist), In that. sre cise: the Court points out MSG ESS, |). 187, “i S.t. 909) that.it iS the e niploye 7 Xho- hae ap hed the conte: act. itnd tliat the unien*s responsibility 3 hrs ta do with the on Fs micement of the damawes sust: Wned ~~ . I, \ the-emiplove eo In the case Bisc her vi Brotherhoed sot Railroad Praiy | men (D.C. Mo. 1968), 284 FS Supp. fo. a raitroad employee brought an actieay in state court against his emplover and. hh union. because of his discharge, The action was tomoved to federal court. Tf the claitis against the emplover and the MELON were Siparate and inMependent claims or canses of-aetion, the case Wiis property| removed. The Court held: that the case was not removable The Count, after referring ton number of f authori ities. sti ited (p. $03) : | 4 “Tn light f these authorities, we do not hetieve it ean fairly - aid that plaintitt s action against the two parties can he said ‘to present Separate and independ: eZ ent clans or causes of action but that plaintiff seeks to recover for a single wrong in whieh damage. must be apportioned between the defendants a Itix the view of the Court “that in the. present case each of the pei Untiffs made one |; ‘Asie Clainvanel that was that the. de Forint Pe lephone Comp: Thy had breached its contract of. employment by a violation of the seniority. clause, the damages for whieh breach were enhanced by the conduct of the dete icant Uniotts. : 2 . ‘Tis the holding of the Court that the claims of the plain- (iff are not barred by the statute of limitations. Five of the plaintiffs during the period they were Uh- employed : received unemployment compensation under the provisions of the Puerto “Rico E mplovipeént Security “Act, Title 2O, LP. R. AA See ‘tious fOL-“1%. Those plaimtitf Me - - and the atmounts received by them: abe as follows :: > Name cat — . . Amount Rosa M, Mieueroa de A rroye ES ; S90S.00 Andrea Color Tubens \ . ; 208.00 ris Trabal Quintana ven 476.00 Luz Arminda ‘Toro Tirade noe lie: 208.00 - shilsie “Torres Ramos >. = \e = 416.00 In the judénie nt entered | in this action the Court directo dd that the amounts of those payments be deducted from: the amounts ‘fixed by the jury as damages. In thetr post-trial motions those plaintiffs move th: at thy judgement be amended ‘to eliminate such deductions. It appears from the authert- ties that those plaintiff's are entitléd to sueh elimination. ~Magelssen ve Local Union No.0518, Ope rative P laste Ters, ete. (D.C. 1965), 240 F. Supp 259, 263; Pennington v, Ww hit- ing Tubular Produce ts, Ine. (1965 ), 870 Mich. 590, 122 No W. 2d 69: 2. ce ly ois HEREBY ORDERED that the judement heretofore en- tered herein be amended to eliminate the provision ‘con- tained the ‘rein dedue ting the amount of the nne niployment compensation payments from the amount of damages re- ‘coverable: by ‘those plain ‘itts: bras eoneriben ouprenin thi it the pe ree nt in-favor ot those plainiits against the de fe ‘nants be ie reased accordingly, The partios made wa, number of conte nlions other thin those referred to. Phe Court has consideredsthem, It in of “the View that uot any.of them are well founded. Tras Ferrier onpeten that, si ive as to the amending of thes judgment in regard. to the matter of une mployme nt sine Hsation payine pis, all of the post-trial motions of tlie parties be and the ‘yare hereby inadl respects overruled and - “de Tie “ld. ‘ mee 5 Ng cS APPENDIX C. aoe Ms a a ile STATUTES INVOLVED. Seetion BU: (al), 2) U.S. CSS Veal), of the National Labor Belations Net. as amended ; “Binal adjustment by a me vei agreed ipon fry the parties }x Iie rely gi ke Ree te bee the de ira le Ma ‘thioet. : for settlement of erievance dispute ~ arkineg Oven the - application or Interpretation of ain EXisticeg collect bargaining agrecment. The Sery eG |S directed toon: its cone ‘Wiation and mediation services available in ie settlorient of sueh erlevanee disptites only as a lat resort and in -éxee anaes i icin Shia 2S £ Tsafa), of the Ni ital Labor Relations Ae I, ws nls . “Suits Pon “violating fa Contracts Betwoer an kart ployer ands ao labor -orraiseation | repiesenting en plovees im iain prot affecting COMMEPCE as defined . nh this Act. « 6 heteein anycsuch labor organ ization ti may le aia te any. district court of the-lnited. States having jurisdiction of the ie Wit bevy re spect to the amount in controversy ‘or without” regan ” te the. citizenship of the parties. Seciibn 10(b), 29 oP S (' “gf jis discharge, AMO. ; : tenet woe : ; - _’eason of serviee in the armed forces, in which event, “the six-inonth period shall. be computed from the day » iy so Atso tvelved are three Puerto Rican statutes, Ol LPRA. OT4D: ; ? ee j “A person who by an act or ontission causes damige . to anotler through fault or neghgence-shall he obliged | to rep Lh, the damage so done.’ ML Pia R DROS: si The following prescribe ini one year: eee) 2. Netions\ to demand civil liability for ‘grave “trsults or cflunmmy, and for obligations werising from the fault or negligence mentioned in section S141 of this tithe, from the time the ager lieved person *hi ul Knowledge the ‘reot. g BE LPRRA VS 020d i ba \ mortgage action prescribes after twenty ‘vears, inet those which are personahand for which no special ‘teum of prescription is fixed, after fifteen years.’ ’ 5 ae ~s M41 .e | ' APPENDIX D. Puerto Rico Telephone Company aud Sindicato de Trahas adores Packinghouse; United Packinghouse Food & . Allied Workers, District 9 of Puerto. Rico, AFL-CIO, and its affiliate Union de Empleados de la‘Industria del ‘Tolefono de Putrto Rico.”“Local 963, Case Vo. 24-C A- 729, Noveniber. 20, 1964, ¢ on ie —_--- oor hee iyi IN AND ORDER, On February 3, 1964, Trial: Examiner Samuel M. Singer issued. his, Decision in the abowve-entitled case findine that \ the Respondent had engaged in and was engaging LM car- tain ‘unfair labor: practices and recommending that it eease and desist therefrom and take certain affirmative detion, as eet forth in the attached Trial Examiner's Decision. Thereafter, the Respondent fled exceptions to the Trial Examiner's Decision and a brief in suppert therof. Pursnant tothe provisions of Section: 3(b) of the Na: tional Labor Relations Act, the. Board has delegated. its powers im connection with this case to a threeanember panel | Chairman. MeCulloeh ‘and Members Fanning and Brown. ; ee oa The: Board has reviewed the rulings of the Trial exam. - iner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Fhe Board has considered the Trial Examiner's Decision, the A42 . . . . . ” J exceptions and brief) and the entire record in this case, and hereby adopts the findings, coneiusions and recom. mendations of the Trial lixaminer ORDER. Pursuant to Seetion LOE) of the National Labor Re- lations Aet, as amended, the Bows) hereby: vilopts us its Order, the Order recommended ly the Prial Examiner, and others that Respondent, Puerto Rico: Telephone Company, its officers, awemts, SHEEESSOPS, und assigns, shall take the action set forth inthe: Trial Examiner *s Recommended Order. with the folowing addition: Add the following as paragraph 26d) in the Trial Exam: Iner’s Recommended, Order, and reletter-the subsequent paragraphs thereof accordingly : 7 | “Notify: the ¢ ‘niplovees entitled to relist itenient Wf pies entiy serviag ime the Armed Porees « et the United States of their heht to Tull reiistitement upon “applieation in accordance rey ee Selective Ne Vice Act amd the U Hiver- sal Milit: AVY Training and Service Net of, 4s, as amended, after disvh; irge frome the Arid a orees, 1 AS the reeord and br lef ane lequately present the issties and the Positions of the parties. Respondent's reqitest: Tor oral argnu- tient is hereby ade sist. ; TRIAL EXAMINERIS DEGISION. ’ STATEMENT OF crite, Case, pon a charge led on Mareh os. 1963. and amended charges filed Mareh 200 ated Ateust 13. ° 1963, by the above-named labor orvanizations.: herein collectively called the Union. the Cieneral Conusel “issugd a complaint on August 15. IGS. aeainsd Puerto Rive TélepKone Company, diereii called the Respondent wr the Company. ‘The complaint. alleged that Re spondent violated See- tion Sead and (1) of the Aet by unilaterally contracting out vertain work performed by employees in the shargaining nit rep- 5 a By . A48 ‘ . 24 . resented by the Union, as a result of which Respondent had laid. off employees in the unit, without giving the Union prior notice. and opportunity to negotiate concerning the same. The complaint further alleged that) Resporident, in violation of ‘the same section.” refused to furnish to the Union: Upon Its request, certain informa- tion. to enable it to process a grievance arising out-of the lavott of employees in the nit. ‘ te Pursuant to notice, a-hearing was held before Trial. Examiner Samuel M. Singer im Santuree? Puerto Rico. on various. dates between Qetober 7 and November 6, 1963. AH parties appeared and were afforded full opportunity to be heard and. to examine and crosstexamine witnesses... Briet's haye been received | from (General Counsel and Respondent. ‘ Upon the entire record) and) from Inv Observation of the wit- nesses, Pomake the following: > ~ FINDINGS AND -CONCLUSIONS. e ‘ i - Pik BUSINESS Qt RESPONDENT, . Respondent, a Delawire corporation, is authorized to do business in fhe Commenwealth of Puerto Meo, and has beer. and is. en- gaged in’ furnishing ‘telephonic communication throuekent the: Commonwealth of Puerto Rico ‘and between Puerto Rico and points outside’ thereof, In the course -of its’ opeyations. Respondent an- nually Duports materials and equipment which are shipped directly fo it from points outside of Puerto Rico and which are valued in: excess Of 890,000, and its annual gross volume of business exceeds ~900.000, Respondent admits, and | find. that at all times material herein Respondent has been. and. is. engaged in commerce within the meaning ef Section 266) and (7)-of the Act, MH. - THE LABOR ORGANIZATIONS INVOLVED. The Charging Parties are. and have been at all times material herein, labor organizations within the meaning of Seetion 2(3) of ' the Act, ‘ . j ee om Hh. THE UNFAIR LAROR PRACTICES: at AL. Contractual: re lations between Re spondent and the Unian. * Respondent and the-Cnion have had contracttal relations since “May 7. 1959, when the partjes entered inté their first. collective- sees wee : ney 1. ~The findings in this and succeeding sections are: for the most part Based on undisputed “testimony and documentary evidence, When witnesses gave differing versions. of events. ‘Ll resolved the - conffiets on the basis of the comparative demeanor of the WITNESSES | and on the.basis of what appeared to me, considering the whole record, to be more consistent. with the inherent probabilities -of the situation, = * . a ; oe ei: ™ . ae | ci, AAA | e a n “bargaining agreement: effective from thatsdate through May 6. W62. Article TP of that veree mie sey included ir the bargaining unit 2 all employees of the Company -iné Puerto Rico with the exception of part-time and temporary ac. and certain other employees such as execiitives, supervisors, secretaries. ete. Thelgoutract Talso contained at management-prere ovative clause. and other) clauses frequenthy found in labor contracts. such as a no-strike and. no- lockout clause and provisions: dealing with seniority. grievance procedure, ete. There was ne clause specitically covering Subcon- tracting. - : . | ; ~ OAs related in greater detail below, im October 1961 the parties commenced “to negotiate a new contract to replace thei 1959 agreement. As also appears below, Respondent had by then heen invelved di an extensive eXpansion program to enkarge and ime prove its felephone tservices, employing various contractors to perform: this work. AnNtous to protect itself from: possible adverse effects of Subcoirtiacting by the Company, the Union's bargaining demands inclided limitation of Respondent(s right te subcontract. Negotiations were suspended ino early 1962 owhile. the Regional. Director processed an eleetion petition oof a rival nian. Following an election, the Regional-Director: on July 5. 1862. certified the Vnian?-as bargaining representative of an appropriate unit: con- sisting of substantially the same employees as were covered in the Woo contract, specitieally exeluding from the unit) Respondent's Temporary aie part-time emplovees” Thereafter on bit: 24. 1962. 2. -The vertification ran to the Sindieato or Phternafional “On AMtigust 21. 1962.) the certification was ainended= to inelude the Sinidicato ’s attilyte., Local 965. as joint bargaining representative, As already noted. the Sindteato and the Leeal are herein collee- tiyely referred to ads the Union. aa 3. Phecuit deseription reads: ATP honsupervisory eniployees wtothe Binployer aneluding all regular eniployvees. probationary employees. messengers and qiail clerks but excluding all exeeu- tives. company otticers, department heads, division heads, zone’ . og - ; . . . een ye supervisors, section heads, district aid) geographical sub-division Cheads: forempn: secretaries to cconmmpany officers, exeeutives and’ _ department heads: all empl wees of Tndustrial Relations Depart- nent except messengers and puail clerks; directory salesmen: @om: niission salesmen: all profesttenal and technical employees all cuards :and:supervisors as definedtin the Net.” eae Temporary cand ‘part-time employees were exelnded from the intt by footnote Sof the Decision and Direction of Election dated April 19. 1962. wherein the: Regional Director noted that) the Employer has been engaged inva 5-vear construction program for the expansion of: its telephone system oo. . sinée about January. 160. and temporary and part-time employees are hired ondy for special projects.in connection with this programe’: and that these employees‘ have ‘no substantial expeetaney of continued employ. ment, ee e pattes \ the. .parties resumed conttact “negotidtions, and after some 30 “SOSSIONS, a New agreement Was signed oi November 8S, 1962, effec- live October 2s, 1962, to October 27, 1964. This contract contained &@ management clause like that it the 1959 contract and also similar no-strike and no-lockout,, seniority, and grievance provi- sions. The -new contract, like the $959 contract, Was silent on subeoutraet ing, Attached to the contract was a-schedule of job Classifications inthe bargaining unit, ineludinve telephone: ine Stallers, repairmen,- linemen, switehmen, framenren, splicers, test- men, telephone operators, Glerks, ete. ® . B. Respondent's crpansion program and subcontracting arrangcomonts, . 0. Respondent tidertook its expansion program at the end of 1958 under the direction of the Public Service Commission of Puerto Rico. Originally uvisaging expeuditure of 52" million, over a o-vear period, the: programe was enlarged. in 1961 to-S130 million. with completion in-3 years, Aetual construction thereunder began in 1960. reaching peak in mid-1962.-\wuen it began. tapering. off, Generally, the program ineluded CONVersions of stations fron Manual to automate installations, expansion. of existing central offices, ehlargement and modernization of long-distance elircuits, and installation and addition of cables. ys ; Gerard Lavergne, view president: and chief engineer of Respond- ent, testified that as a result of the const ruction progragn there was an inerease -from about 70,000) stations at» the end of 1959 to. Slightly over 150,000°in August 1963. (Te defined a ‘station’? as a telephone instrument, including “an extension of a telephone in a home, and a telephone connected to a private PBX or PABX switchboard in a hotel.)> Thomas B. Neff, Respondent's executive Vice presidefit, estimated that the Company increased the mumber of its telephones in service in 1962 by an “unparalleled 3567 °° havitig installed some 14,000 telephones in the first half and 20.000 telephones in the last half of that year. Neff stated. ‘We have used subcontracting for very basic reasous: we have had’ to double the size.of the Puerto Rico Telephone ‘Company in less than. tive years. We couldn't possibly have done it without a snbstantial amount of subcontracting. We have grown far faster than any other telephone company has ever attempted in the United States or in any other part of the world for that matter.” : Neff further explained that«because of the ‘tremendous Humber! of new [telephone] installations’’ facing the Company in the last half of 1962 and the .t‘trenfendous bavklog of travisfers and re- movals,”’ the Company could not perform all of the work with’ its own work force, and ‘tso we subcontyacted part of the work.’" 4. The Company had let contracts: in 1960 and 1961. as well as 1962. Neff testified that the Company awarded contracts each . GQ Fe AAG . * / It is undisputed that the subcontractors had employed workers With job classifications falling within the appropriate unit, inelud- ing telephone stastallérs, repairmen, linemen, framemen, splicers, aud testers. (Some work, such as digeing trenches, obviously entatled work not performed by employees in the unit.4 Respond- ents own work force, including ifstallers, handled removals and _tTranete rs of existing telephones? in areas operated by subcoutrac- Crors. while the subcontractors’ men &teoncentrated’? on ‘new? installations ‘in’ these same areas. Respondent’ s plant director selected work areas for the contractor’s workmen ana. its _dispatcher lispatehed them in the same way they had for the Company’s own employees, et The record cortains a list of 44 subeontys atts on which work was pre rfor tel by various contractors dur ing the per lod covered by the complaint November 9. 1962 to March 31. 1963).5. Six of. thiese contraeis received in evidence dealt with installation and eable ~~ both Involving tasks performed by unit) peysonnel.* Respeident gee blines at the hearing that ‘the Company ‘did not vive notice te the Union] prior tocany speetiie one of the miumerous cOmtratets Bere nature that the Conrpany had éntered into.’ , « onth from January 1962 to September 1965.0 One of Respondent's nitjor contractors wwas TT. P. Puerto Rico. Ine., Wholly owned by oY. T. Caribbean Manufacturing, Ine. which’ in turn is wholly owoed by International Telephone. and ‘elewraph Corporation’ Whose headquarters are,in New York Citywor he latter also owns dbout $0 percent ofsthe stock of Respondent. Lo Ts. be uerto Rico, lhe. commenced business: in Puerto Rico at the end of 1961 or bevinning of 1962: ee Se Net? deseribid these as the miscellaneous and more difficult jobs* Neff further stated that the Company's foree also handled Small’ 81.000 to 85,000) construction jobs not desirable to sub- contract, provided the Company had on hand an adequate supply of skilled and technical help. 62° The contracts in question were produced by the ¢ ompany in the course of the hearing only after, it was directed sto do so by order of the Ut S. Distriet Court Tox the District off Puerto Rico in proc ‘oolings to enforce the Board's subpocna duces tee um. After the Issuance of the court’s orders Respondent? s counsel -fully: cooperated. in the production of reley ‘ant material, , 7. A seventh contract produced by General Counsel covered-a “spec ‘jal test job’? by the subcontractor’S employees, whieh, as View President Neti testified, did wot involve work performed by Respondent's regular employees. LN » AFT C, * he negotiations concerning subcortrac ling preceding the crecution of the November s, 1962, contrac, As already sisted in section A, supra, Respondent's subcontract- Ing Was a stibjeet of concern’ to the Union during the negotiation of the T962 contract. Amando Sanchez the [nternational’s presi- dent, testified at/the hearing’ that: although the Company had subcontracted work sono the term of the 1959 contract Owhich * -expired on May 6, 1962), the:subecontracting at that time ‘did net cause discharges, bart it set the Union to put itself on its guard because of ‘the continuation of same could adversely affect. the interests of the employees.’’S Accordingly, at the very start of the negotiations in October 1961, the Union proposed a clause restrict- | ing the Company’s right to subcontract and the Unian continued to’ press therefor until suspension of negotiations early in 1962 due fo pende hey of representation proceedings initiated by a rival anion (section A, sepra). In response to the Cnion’s request as to * ‘what security was going to be given the employees,’. the Company as- sured the Union, that the contracts would not affect the employees in the unit," and, indeed, that there would be an increase ‘rather than a decrease, in unit personnel. On June &, 1962, during pen- dency of the representation proceedings, the Union wrote Respon- dent : fs The Company has been violatihg the gurrent contract by the manner. in which the Company has been giving its: contracts to companies other than the telephone company, which = is directly, harming the employees ‘Of the Telephone Company, which is stipulated in said current contract between the Union and the Company saying that in the event that the Company should need to carry out ‘special jobs’’ the same shall be 8. As noted under. section B, supra, the peak of Respondent’ S- expansion, program Geceurred in 1962. - This finding is based, upon the testimony of Sanchez which is, ean by other General Counsel's witnesses. His testi- mony also jibes with the ( ompany's position in this proceeding that - the subcontre ucts did not adversely affect the unit employees. °.San- chez and’ other General _( ‘ounsel. witnesses further. testified. that - during this and later periods ii the’ negotiations the Company's representatives alse assured the Union that there would be no further siibeontre iting . after expiré ation of the exisfing contracts “and. conversion, of the “installation in Arecibo, which took place on November 30, "1962—a state nent. vigorously denied by the Com- pany’s representatives. .L ¢redit. this denial by the Company's representatives, It seems uQlikely that suchea statement would have been ‘made by the Company's representatives at a time when the Company's expansion program was in full momentum. AAS performed ly temporary employees or otherwise an agree- ment would be rede ‘hed in advance be ‘tween the. Union and the Company: 7 ; In its reply of Judy 19, 1962, the Company stated : We are not in agreement that the € ompany has been violating’ “any contract (the last-collective-bargaining agreement e xpired on May 6, 1962) by contracting work with other. companies. The Company expressly: reserves at all thmus the right.to sub- _eontract Whenever it may deem it pe riinent, eg normal times, the ‘Company would be the | last to wo out. contract work ‘outside because of the high cost of same. AG the presént= time ' and due te-the oe nhormous eXPansion progr am we have been _foregd fo resort to private contractors Whe negotiations resumed on Jult oi, 1962, the Union resitb- mitted its original subeontraeting proposal.) This proposal was the stibject of major discussion at a meeting between the parties -on September 15, 1962, when Respondent rejected it on the ground that it established a closed plop. “Phe Union then praposed the ‘following substitute are ‘tingelauses * The Company is cartying out, an expansion program pursuant to an order of the Publie Service Commission. for which pro-, eram some Work is being performed by, subcontracts, a large part of which is in its final stage. The Company guarantees the: Union that it is not its intent to subcontract regular produc- tion and maintenance jobs that are performed by members of the Union. Likewise the Gompany gives assurance that should some work have to be performed in addition to that ordinarily performed by production and maintenance workers pursuant. to the expansion program, and the Company for that reason would have to subcontract rie sen such will not affect the condition of employment. of thse regular workers who, were j it not for the exigencies of ae expansion program, might | pe rform the sube ‘contracted work, Lt the next meeting, Se :ptembe r-18,- 1962, the parties distussed this substitute proposal, It was at this meeting or the pree coding 10. The refere nee uppears to be to article EL, section 2 of. the 1959 contract. 11... The clause in question - read ; ‘When the COMPANY, should tieed to perform-eany work by contract, it commits itself to make efforts with the contractor so that preference be given. for employment to the regular employees of the employer who are members of the UNION, who may be ayailable for work. Before ‘work is commenced by the contractor the employer sha# notify the UNION and make arrangements so that before the work of the contractor conimences a nieet ing he held between the UNDTON, the > COMPANY and the contractor to see how much personnel | the UNION can supply.’ ) */ Ado” | YP sigs sate : 3 ee oe ae as one on Sepfember 15 that two employee members of the Union. Committee protested that ginit employees at certain locations were being adversely affected by subcontracts pertaining to installation “of new telephones, and. the “Company's representatives promised © to look into the matter. In support of the Union’s posigon, Luis G. Estades, counsel for the International, callesl attention at the Sep- tember TS ameeting, to the Board's Tow wel Country and. Fibrehoard decisions and the Stipreme Court's United Stealworkers: eases2. Rafael Orellana, a company representative, replied sthat he was. familiar with, the principles enunciated in these cases and would ww consult with the € ompany's attorneyvs.!’) Orellana then requested that the subject of subcontracting be deferred and discussed at later time alone with. the noneconomic clauses penditig at that ‘time.!! i « Sometime Hancatic the Insular (Puerto Rico) Conciliation Ser. ice was ealled im-tovassist the parties in the negotiations, particu- larly in xesolving the economié issues separating the parties. After reaching agreement on the economie Tssues, there still re ‘mained unresolved at the final barsaining session on-October 24 and 25, ‘ 1962. eight noneconomic ore administrative’ Jissues.- These. in- volved no-strike and no-lockout, union shop, checkoff, union -recog- NitiON, Cntiresercement, subcontracting, union responsibjlity. and omamivement-rights provisions. The parties ultimately reached “agreement on all tatters except the union- responsibility: clause s - yp. As noted infra, in Town & Country Meaufactaving Cam: pany, Lue. 136 NLRE? 10220 (subsequently .en fd. 316 Lx Md S46 (CL ALS) cand Pibreboard Papor Products € ‘or poration, 138 NL RB AaQ (subsequently c ror sub nom, East Bay Mac hinists, Local 1304, tal.’ $22. F.2d 411 A.D. G.)), the Board held that an em-- ployer’s. decision to Arete work performed by members of ‘an existing bargaining unit. even though based on economic con- ‘siderations, iS a subject. of mandatory ore: In United Stecltworkers ¥. Gulf Navigation Co., 363 US. S574. the Supreme ‘Court Jetd “an arbitrator was empowered to. ewe whether a : subcontracting controversy was) arbitrable: even though the bar- gaining contract contained no expres: provision on subcontracting and the contract withheld from the srivance procedure ‘*matters which are strictly a function of manage ment, 3. Ore Hana, at that time-the Company's director of labor rela- tions, and Luis Gonzalez Monclova, the Company's director of industrial relations, were: Respondent’s chief negotiatoys. — (Orel- \ lana became director of industrial relations on March 25, 1963, and Gonzalez Mone lova sometime after that date became administrative assistant to thesC ‘ompany's president.) The Union was represented at the negotiations by Armando Sanchez, its chief spokesman; and * a committee composed of local’ officers and Company employees. ‘14. The foregoing fiardline as to. the September 18 meeting is based on.the incontradic ted? ere ee 3 testimony of Estades. : ' i VA Pen Re, es - 4 ‘ ; Which the Union sejected’ and thessubcottractifig clause (hereto- fore refefred to) which the Compatiy dejected. Thereafter the Com- “pany withdrew the union sccurity clausé and a draft was agre “ih upon exe ‘Inding this clause and also the surbwontrae ‘ting clause. Th Union's membership ratified the agreement*at a. meeting held dn October -28-and the parties then executed the aew contract on November 8, 1962. ; . e = : &» ‘ | ow D. The Lanafts. 1.° Nature and scope of the | layoffs. The record establishes, and I find. that Responde nt pe omens laid off 227 anit emptovees during the consplaint period, Nove yiber “4 THe, to Mareh 31.1963." These layotts toak place on November 8 1 23. 300 cor Deconbber 1), 1962, and Mareh Sand 29, 1963, ‘Ineluded. amon the laidja eniployees were *statian’ installers, repairmen, framemen, linemen, splicoP® switehmen, testmen, ete. According to) Industrial Relations (formerly Labar Reliftions ) Director Orellana, the particular employees atfected. first learned of their layotf on arrival at the. plant. without advahee - notice cof any kind, being handed a letter stating that their layoff was due to Company * reorganization, - Company Vice P reside nt Neti vigorously denied in his teStimony that the’ Company's subcobtracting: ope rations had contributed to: the layott of so nine h as “2 single person” an the unit.’? | Indeed, 15. Under that clause the ' Hien Was* to unde ‘rtake to see that afl members comply ith the provisions of the contract. to oppose - absences and other = Nees that may atfect cotpany .operations, and to support the Company's effort to eliminate waste and inéft- cleney and improve the quality-of the work. 16. This finding is based on General ¢ ‘ounsel, s Exhibit No. 12, a document furnished to General Counsel by Respondent, (The documemt inadvertently lists the initial date as November 9, 1963, instead of November 9 1962.) 0 Although General Counsel's brief tic 205 (instead of 227) employees, this aloes not include the” V2 probationary Y enrployees, listed in General Counsel's Exhibit No. 12. who are glso included in the,appropriate unit. At one | point, Respondenf#stipulated that it hadelaid off 170° unit employees between November and March S. the last date mentioned in the original complaint. The complaint Wis thereafter amended. to extend the complaint period to March 31, 196%. General Counsel's Exhibit No, 12 lists additional employees laid off during the period in question, but these include nonunit employees such as super. - Visors, temporary ant part-timers, ete xg ; 17. Fér the reasons ‘hereafter stated, do. not credit Neff's og clasionary statements regarding*the impact of the subcontracting upon the bargaining unit. ». ADL Neff contended that the Company's force of. telephone aistallers was ‘Taugmented”? during the period ‘in question to. take care of | peak loads. Neff testified that the layotis resulted not from sub-. contracting. but froma ‘*manpewer stady.* whitch hie tae. ste ing Respondent to have been operating inefficiently -as ye she read to other telephone companies; and that the © ompany punter L reduce its: costs -by eliminating the ‘least efficient’ eruployers X. if concluded that. the _preltlnse should embark upon a program of reducing the Company's work force on a gradual basis. depaytancnt ‘hy department atid month by month. until a desirable lev was reached by the-end of. 1965. ae 6 ompany P oe 5 nt Benekert teste fied that hy knew of no utility that- “wiaslits * ‘horribly overstated” ‘as Respondent and stated that both “the layotts agid the size of the work force was unprecedented,” senekert conceded that the diet! off employees included men w th considerable experience, and Nes explained that they inclided splicers who are highy trained and valuable employees: but who in this cases were “less eftieient "than those retdined. * ; » tie It is clear rom the record, and T find, that avhereas prior to the oe Jetting of the contraets Respondent's employees warked orf ne installations ( “Le. installing telephones for new subseribers in all areas of the Company's operations. as well as ‘miscellaneous’ in stallations, (transfers, removals. changing’ Hine cords apd cGlurs of telephones). Such -new instaflations avere thereafter made also ex@usively by emplovees of subcontractors in the polels ther arias in which the Vv operafed. Neff so testified.™ Baoan cat ih. Malio A ‘Ramos, emp loved hy ‘Respondent: as a service order- Supervisor daring the period here invelved, er dibly testified that pum itperpor had instructed him to route orders for new installations te a spb. contractor's office, Severo Figueroa, ati installer ‘for’ Respondetit, credibly testified that just béfore a particular suteontractor con menced operations in his area, the Company ’s> installers wer informed by a supervisor that all new? installations awoultd ther after be handled by the sibcontractor ‘while the Companys on stallers would be restricted te“ miseellanmeous > work.*" * ‘78.0 Hlustrating -the effeet of the eqst reduction .program. Np? stated that at the end of Mareh 142 Respondent had 2497 peopl: per thousand stations as compared to Rell-System s 8.5 and Conetal Telephone’s 7.9.. He indicated) the Company 'S present ratio to: by 14 people per thousand stations. - Ne? Jadiuitted that ineread stations inst: illed by employees of Responde nt 's subcontractors had contributed to the present improved pieture, 19. Neff also testified that: sinee the datter part of Pyee Company has returned ‘Instruments to thie Pactory far repares, rather, than performing sdch repairs trough its telephone She pp mechanics, but.that he did notckmow. that this was done byasiub- contract. One of the installation contrac tS ivevidence provides for repairs by the contractor. 20. Ramos’ .and) Figueroa’s testimony on these matt rs was uncontradicted. Le, y , a . 7 2. The-Nove mber 1962 ¢rievance disc “ussionis. “As already iad. Respondent's Jayoffs. comme ‘need on November 1962. the day. after execution of the new collective-bargaining . prt ment. It is clear from the record, and T tind, that Nespond- “ent: did not vive the Union ‘any advance ‘notice regarding the ; November 9 layoff! , : _ *&d- The Union promptly tiled strenuous protests’ ‘agasnst) Respond- “ semaae’ s action. On November 13, 1962, the Union: fornially com- plained to the Company that during the negotiations it had ‘*eon- sistently demanded the elimination: of the work contracts entered into by the Company in its expansion program ‘: that the Union i had expressed itself both prior and during? the negotiations about. the possible “threats to employment ’* resulting: from these con- tracts: that there were Labor ‘Board decisions requiring these matters to be negotiated; that as a, result of the Company's reor- ganization program employee jobs: had already beer! climinated ; ‘that the contmauation of these contracts “fcreates a grave situation’ _ and union members should be permitted: to work on these contracts -for the contractors: and that the subcontracting as prac ti¢ed. by the ‘Company bé chminated in compliance with legal requiremeiits. Ip another letter. written the same date (November 13) ‘the Union “pointed out. that the’ first layvotfs came only 1 day after the new contract was sigued-and involved employees, with 25 years” service; that. ‘it appears that these discharges have: Deen effected in full violation Of the terms of the collective-bargaining vagreemient that since the Union had not been viven the names and there was a -diiv limitation for filing vrievances under the contract, the Fron was now filing a broad general complaint ¢gainst all future lavotfs: and that if Was requesting ,t Mee ting of the Gri levanee Com- nfittee to consider each and éverv one of the eases” involved, “The parties theroafter held a ‘formal’? grievance session on Nog: vember 15 and two ‘tinfoérmal’*” Sessions oy November 19 and 27. at which they discussed the layoffs?2 Mere iS a ‘conflict of testi- “rienmy us to what transpired at these meghings : in. particular, as to Whether Orellana Cas fe and other Company witnesses testified ) V1 deecioual the? Company's then labor re ations dire-tors ad mitted he did not have *tany recollection of having adviskd tien thee i eteone! of the first layotts * Pressed further, he ¢ titted havi: testitiod before the’ Puerto ‘Rico Senate Labor Committee 4 On at i” ier occasion that he he dno knowledge-at the time of signing . the eoniragt that this layoff Was seheduled for the next days dee ey Pn ank Dalmaat, an official of the Company and one of its - rejgresentatives along with Orellana and Gongales, Monclova on the erievatice committee, charact@riz. d as ‘“‘formal’’ a meeting’ in Whigh official minutes-were taken’ If no-agreement was reached at the first formal meeting, dise AUssions continued at ensuing *‘infor- mal’: SSUSSIONS. , : ~~ - a ee ee ied f. vee es Ad3 | 4 > had ‘at those meetings given the U nion advange, notice of layoffs that ‘followed on November 16, 23, and 30 (or December 1). 1962.2 The minutes of the November 15 meeting, (fhe only one for whie h minutes were taken’) ‘make no reference to such notice. These minutes do Show that the Union had clatmed, and the Company denied, that the Nyeffs were in violation of the seniority clause ‘of the contract; that Nonzalez Monclova, speaking for the Cempany, explained that the separations were due to the. ‘construction pro- gram’? which, after reaching “its peak.”” was now entering mto ‘*sort-of a plateau’’ or descending line, leaving an excess of per-, sonnel. When the Union noted that the Company during the>, negotiations “had ‘indicated that it would have a work force of*: 2.000, Orellana explained, that many of the emplovees were not, in ‘the unit and that the ‘separations *‘could .not. affect the figure mentioned,’ . + There is evidence in the FeO B and I find: that as a result of the ‘diseussions in November. the Company rainstated seve sis Rierore eS who ‘avere originally laid off. 24 : . a: The Pebruary 1963, discussion The parties met again-on oebrn ary 6 and 12, 1963, to discuss sibeontracting with Attoriey Estades and Attorney, Ruiz-Suria as | chief spokemen for the Uivlen and Re Spondent respectively, After discussion of Board decisions the parties Telt that, they had arrived at an agreement and it was agreed that Ore Hana’ should reduce thre agreement to writing. » Orellana, thereafter did draft and sign a document incorperating the positions of the parties on sube ‘ontract- ing and the alleged agreement, On advict from Estades, the & nioen declined to sign the ‘tagreement’* on the ground. that it allegedly 2 failed to cover all agreed points, sa a ate gas 23. Qrellana testified that at the Nove niet Tr 15 meeting he orally advised the Union of the layoff the next day and that later he simi- larly appr ised the Union of the November 2 and 30) lavetfs in advance—all ‘out of courtesy ”” rather than out of a sense. of obli- gation. - Respondent called Dalmau. and Renier Mendez tanother company official) to corroborate, Orecllana’s testimens—respecting - the notices given on two of the three layoffs (November 16 and 30). (reneral ¢ ‘ourtsel” S Witnesses, ine Jading ‘Sanchez, denied. receiving ‘the nofices and clajmed that they” had learned about the layoffs directly from the affected employegs. For reasons hereafter noted, 1 do not find it necessary to resolve ‘this testimonial conflict. 24.0 Sanchez indicated that six or seven employees were rein- ‘stated but that these were later laid-off onte more. Orellana, placing the figure at- nine, did not deny Sanchez” ieaeniony re- . garding their subsequent segond Jayott. r 25, Ace ording to the. document (received in evidenee.), Soviens: in reciting the Company's position on subcontracting, stated that ~ ASE. t.. The Mareh 1963 grievance discussions; the ¢ ‘ompany’s refusal to comply w ‘ith the Mnion’s. request for economic data-to support its posétion and to submit the dispute to conciliation and arbi- tration. soe ar The sisejcote of subcontracting and layoff again ovcupied the parties’ attention in Marth. On March 5 and“, 1963, Industrial Relations Director Orellana informed the Union that there. would be another layoff on Mareh 8.2%" Orellana did’ not identify the employees’ involved or their job claXifications, mentioning only a “round figure’ “and indicating that the ‘*decision’” to lay off had teen made -by management.“* By telegram dated March 7 the” “Union de manded thai Respondent stop the lavotis and. urged it to negotiate thie “‘eonditiots for retirement”” if layoffs became neces- osarv.=* The parties thereafter held severa] meetings. commencing Mareh 9, 1963, in whieh the ry dise ussed the layoffs and whether they” were the: result of the Company's subcontracting (as claimed by. while the € ‘ompany “maintainedsthat it had the right to subcontract, it “rpeoenizes that it Should notify the Union in advance of. its decision to subcontract’? so that the Union **may raise the issues that it may deem necessary and -negotiate’’ regarding. the ‘etiect of the subcontracting on the- employets. The’ Company undertook the ‘obligation to notify the Union before subcontracting of. its>” decision to’do so.” in order to afford the Union an opportunity to discuss “*the effect?’ of the decision upon unit employees and to subinit, proposed. countermeasures, The Company reserved, how- - ever, the power of ultimate decisign. The Union refused to sign the doctiment House it claimed that the Company had also agreed. fo distiss the impact of the existing subcontracts, on the unit employees and the reniedies to- be taken to compensate the sy’ data employees. "I 26. The. foregoing ainding is based upon the testimony 4 of Orel- ‘Jana which in this instanee ‘TL credit. The testimony of union representatives that they did not receive notice of the forthcoming elayotf on this prartienfar oceasion. is equivocal and- unconvinedag, ° 27. Orellana testified that although, he was the director ‘of the labor: relations department quring “the lavoffs in) November and March, he did not know the Tdentity of the employees selected for lavotPand that the industrial relations departinent: which informed him of the approximate mumber involved, did not know their iden-. tity either. Ile further testified that he never informed or dis-. cussed with the Union any antic ipated company deci ‘ision to lay off employees, prior to definitive company decision tBereon, 28. Meanwhile by Tetter dated March 6, 1963, the Union: re- qhested (and on March 20 the Comigany furnished) alist contain- ing the names, classifications, dates Wf employment, - and status of the employees in the bargaifffne unit. The Union stated that it. / needed ¢he information to assist it in-“‘finding a solution’’ to the ayoff problem. \ - * . . . . ? —_———$—— ——— . a, - ° . ” a ~ o_ ° ~ the Union): or of ‘‘economic reorganization’? (as claimed by Respondent). At tlleir Mare h 12. meetin@, the parties agreed to - . submit the layoff digpute.to-the grievance committee established by — their existing collective agreement. The committee thereafter met on three occasions with Orellana (or Gonzalez .Monclova) as the Company's chief spokesman and Ramon Robena Garay, an official of the Interrrational, as the Union’s spokesman.?" At the March 14 grievance committee méeting Rohena asked the Company to submit data ‘relating to the subcontracts ‘and to ‘prove’’ to the committee that the lavoffs were due to ‘‘econemic reorganization, ’? Orellana, replied that ‘tthe. compayv has the . # right to sube ontract at any tinie andvalso . . . to lay off according to the contract.’ Ile rejected: the Union’ s demand to submit, . - evidence ‘to prove the economic reasons’* for the layoffs. The parties took the same position at the ensuing grievance committee meetings held on March 15 and 1s.° The specifié information which the UC nion requested tn the course of the discussions included : 1. Volume of business during. - the - months ‘of January, February and March 1963 ¢ ompare “t with Nove mber 1962 Ww hen the contract was signed. ‘ 2. Earnings derived by: the company from its volume of business, - “ 2 3. Amounts saved by the Company on account of wages ot those laid off... e - 4. Is someone performing the labor that the laid off person- nel Lay renga Sacer F oo. + How much will the vo q oga a4 be ; s L-Sayo-- > > 29, Article’ XV of ‘the labor contract spells out the, procedure —- for adjustment of a grievance: defined ‘tas the allegation made by — ° one or more eniplovees of a violation or Viokitions of the contractual provisions established in this Agreément. Successive steps are ‘provided ‘for processing the grievance through cénrpany. officials, but these are dispensed: with, where the? grievance involves suspen- sion or Jayoll. In the latter ‘case, the Union initiates grievance discussions: with the Company's director of industrial -relations, The contract provides that thereafter the ‘ *Canm pany’ shall have the right to summon the Grievance,Committee. which eonsists-of — * ——t4vo representatives of the Company wyd the Union; ‘‘to settle the grievance.” Section 4(¢) provides.that-!" If this committge should» fail to. agree, it Shall appeal to the conciliation service to help the , parties inecoming toe an agreement, save in cases where the parties ° decide not to use said service, Should the parties fail to come to an agreement even thus, it ‘Shall by ma jority Vote appoint a fifth ; niember, foreign to the parties, and any decision: Adopted by major- ity vote by this’ Cominittee,. aS thus Constituted, shall be binding upon the parties. 3 . ra . 30. The Union had: also asked far a list of probationary ‘and temporary employees hired after the execution of the contract. .. ° p — thet ompany agreed to supply. ~- - ceo ce ‘ Gounsel for Respondent stipulated af the hearing that Respond- _ent did not submit, to the Union any of the requested information enume “ated above. * Having: been denivd the information, the Union explained to the Company at the last meeting on March 18 that there wa no point to continued discussions, and sought to invoke the ext step in the grievanee procedure, namely, intetvention by a-conciliator of the Puerto Rico Labor Department. However, when asked if he would agree to call in a conciliator, Gonzalez Mone lova, the’ Company’s spokesman, re plied that this **was not necessary.”" Thereafter, on, March 26, the Union wrote to Respondent. re minding it that the Company had refused to submit the data to support ‘*fhe allegation of economy which according to you was the grounds {sic] for the ‘discharges."’ The letter then. continued : , ° . as you refused to erant inte rvention to the Conciliator Bureau to resolve the economic issues, We must take a deGision in order to break the impasse. W, ic propose the followings That anar pit ator decided whether the intervention of a conéiliator as provided in the~ collective-bargaining’ eatin may ‘be requested by either of the parties or whether it must be requested by the Committee in full, (2) That regardless of What thie. arbitrator may decide regarding the above mentioned, we submit a second issue . to him... bethis second, issue the arbitrator shall determine “whether, the Company is obliged. to present eyidence to prove the alleged economy which according té vou was the wr ounds for the dise charges. - T he Union's attempts-to seek fattods ‘under labor laws of Puerto Rico. : Having cstied no reply to its ‘information reaient, the Union songht redress, under labor laws of the Commonwealth of Puerto Rico. Article 8(f) of the Puerto Rico Labor Relations - Act, 29 LPRA: See. 6971) (1), provides;that a breach of a colleetive-bar- caining-contract shall be an unfair labor practice under that Act. _ Prion to the events here involved, on Npvember 5.1962; the Supreme Court of Puerto Rico had entered a decree affirming an. order of the Puerto Rico Labor Relations Board dated June 17, 1960, en- joining ‘Respondent from “violating in any nianner the terms of the ¢ ‘ollective- Batgaining” Agreement exee “rted with Or. that may , be executed > with the Union, including the grievance and ‘seniority provisions in sucl*¢ontract. The order and decree were based on an unfair labor?practice- proceeding which, .as already noted, in- volved mytters not here in question, yOn April 1, 1963, the Union ~~ requested the Insular Labor Board to move. the court te cite Respondent for contempt for violating its decree, of the ground - that Respondent had eae | its November 8, 1962, contract— . ‘ “ : © *e ed ‘more particularly its grievance’ clause, becauge Respondent, inter: alia, refused to take the necessaty steps to “process the layoff griev- “:anee (whic is the subject of the instant proceeding) through. a conciliator. and an arbitrator. In reply to the Inswar Labor . Board’s request ‘for Respondent’s- position respecting the two matters the Union, had requested to*submit to arbitration (i.e., | whether a concijiator’ s intervention may be requested unilaterally E é by one party and whether, Respondent was under a‘duty to present — - and on reconsider ‘ation the Court adher ed to this ‘ruling.’ a1 hae ee ’ the predec essor (1959) contract did. i’ evidence. to prove’ the .econonty resulting from the, layotfs), Re- spondent asserted that .insofar as the first matter was concerned, « ‘ ne the Union *‘has not presented any. grievance alleging the violation of the contract,’” and that for the second, the Company “is not obliged to present evidence to prove alleged economy ’’* because the ‘ mabagement-rights and seniority ‘clauses of the: contract ‘* grant this Company the right to terminate personnel.”" . + rad Gn April 19, 1963, the, Insular Board filed with h_ the Putrto Rico Supreme Court a motion to cite Respondent for contempt ‘of the scourt’s decree of Noveniber 5, 1962; “as requested by the Union. On May 10, 1963, the court denied: the motion ‘without prejudice,” - . Conclusions. oe , ~ AL The unilateral subcontracting... ~~ - . Rey , : Teo eee 1. Introduction ; the issues and contentions, °., s : ” tual relations -ssincé-1959. «In 1960’ Respondent embarked upon. a. ; huge expansion program, conceived and planned in 195s and 159" ip and continued in full swing through 1963. ‘In cartying out ‘its : al program, Responaent contracted out the work without first eon- sulting with, the Union. “The subject ‘of subgontratting became a -° / +4 matter of grave concern to the U nion and at.the very autset of 8 negotiations on thé 1962 contract the Union offered a proposal to” /£ limit the Conpany’s coritractual right to subcontract. The Union /.. continued to press for a subcontracting clause uittil the end of the ,/ * negotiations but Responde nf rejected it; assuring the Union at th same time that the subcontracts would not affect the unit employ, adversely. The contract ultimately signed by the parties-is sifent tf on subcontracting but contains a management- pre egative élause, “As already found, Respondent and the Union have had eontrae-. ea — ee Scenes 31. Counsel for Respondent explained at the instant -hearing that .the court in effect upheld Respondent's contention, ammig others, that the court’s decree was predicated on an entirely differ- ent case and that the appropriate procedure fo¥ the Insular De CS would have been-to bring a new unfair labor practice proceeding est charging a breach of the } new na ah —— by the U nion. aa tae i “% . - Rs — ‘ 4 ; ie rm | . : ‘ : e : . a a ‘ e : : a o we, B'S a = . : ADS... aa i ems re aoe i, On November, 9, 1962;°} day after the signing of the contract, Respondent unilaterilly put into effect the first of a series. of lay- offs. Altogether 227 unit employees were laid off between Novem- . ber 9- 1962, and March 31, 1963, including employees holding jobs re —Tequire dand utilized in the performance of the subcontracts. As each employee Was laid off: he was told that his layoff was due to . ‘freerganization’’ of the C ompany: There is no dispute, and I find, that, Respondent's ‘decisioty togsubcontract was _ motivated: solely by eConomié or business cousiderations. , The basic issue here is whether, as Gener il Counsel contends, _ Respondent violated its bargaining obligation ander Seetion sta) (5) and 8(d) of the Act by entering into subcontracts covering work, performed by employees in the bargaining unit without first bargaining about that decision with ‘the Union, the statutory rep- resentative of the employees in-the unit.” Respondent contends that it had the right” unilaterally to contract out the work as a matter of management prerogative ; that the existing bargaining agree- ment recognized this prerogative and the Union had thus waived its right to bargain over this matter; that the layoffs effected by Respondent were not attributable to.the subcontracts; that ‘none of the subcontracts involved work-nornially done by the bargaining unit; and that, in any event, Respondent had notified the Union of ethe surbeontracts’ end layotis*and had given the Union an oppor- tunity.to bargain abaut th m. . a On the basis of the entire record, and particularly ime the liehit of the considerations outlined below, | reject Respondent’s contentions and find that Respondent's unilateral actians with respect to the subcontrae ‘ts Violated, Section S(a)(5) and (1) of the Act., . ’ ; The applicable principles. andl AS Was rece ntly observ ed in East Bayt rion of Machinists, Local 1304, le. (Fibreboard 9s Prottucts Corp.) v. N. L. R.B., 322-F. 9d 411, 414 (C. A.D, &. Congress ‘‘of nec essity framed in the broadest terms possible”’ the seope of the statutory duty to bar- gain beeanse of its awareness that ‘collective bargaining must ° be kept flexible without precise delineation of what subjects were covered so that the Act could. be administered a meet changing eonditions. Be also Inland Steel Company ve N. L..R.-B:, 170 KY. 2d 247, 254 (C. A. 7), cert. denied 336 U.S. 960. For the area of labor ae relations is dynamic-and constantly evolving. The management prerogatives. of yesteryear are mandatory’ bar- gaining subjects of today. 32 Noting that sube ontracting | or con- -- 9 - _ a — 32. Examples of Jormer *¢ manageme nt prerogatives” may be found in Inland Steel Company, supra (compulsory retirement program ) ; NOL. R. By. Lehigh Portland Cement Company, 205: F.2d s21 (C. A. 4) (company housing) ; N. L. R. B. vy. Niles- Sement Pond Company, 199 BF. 2d 713 (C. AL 2) (@hristmas eee pa : \ ‘ - . . . ce Py zi : 5 tracting out_is a subject ‘extensively dealt with in today’s collec- tive bargaining, the Board, in Fibreboard Papcr Produets Cor- _ poration, 138. NLRB 550, enfd, 322 F. 2d 411 (€. A.D. €.), held that a management decision to subcontract work performed in an existing bargaining unit is a mandatory: subject of bargaining, notwithstanding. an employer’s valid econédmic reason for.dding so and the absence of discriminatory motive. To .the ‘same: effect, see Town & Country Mfg: Co., Inc., et al., 136 NLRB 1022. enfd. 316 K. 2d 846 (C2 A. 5). Subcontracting, may: have a more direct impact upon employees than, ‘for example, even Wages, vgcations, and ordinary. working conditions, for the very @xistence of employee Jobs may, and often does, turn thereon, a? It. edes without ‘saying that in subcontraeting, as in other manda- tory hargaining subjects, ‘‘the obligation to bargain is not ‘an obli- | gation to agree.”’ Fibreboard, supra at 415.. All that the statute - demand is:that the-employer give advance ‘notice and bargain’ in -good faith before making commitments. merece: S 5”: . Nt > In abort, the therapy of collective bargaining, prese sribed by: Con- e ereSs as a means for ‘promoting industrial comperation and peace, _is as importgnt.in the area of subcontracting fs in others fraught i - with potentialstrife. Ee ics AS : I find. and conclude that. Respondent ’s decision tasubcontract was not a management prerogative outside | the scope of mandatory ~ - . bargaining.** _ * 3. Te impact of the ae ‘ts on the bargaining unit. "Respondent urges that the stibeontracting in. this ease ‘f falls out: side’ the Fibreboard and Town & Country doctrine for a number. of reasons, one of which is that the subcontracts had ‘‘no effect at. ~ -* all on the union, the unit inembe Ts, or the bargaining unif.’*%% a spondent claims that the layoffs in this case resulted from ‘ta man- power study .{ whieh | * ‘revealed a substantia! excess dn its normal. , ruarys to. obligate itself ' ‘to “notify the v nipn before ‘dubvontract- ing, of its decision to. do so,”* so that the Union might discuss and, pre ‘sumably, bargain. As already noted, a settlement incorporating* such provision fell through because the Union. sought compensa- -tion for employees adversely affected by Respondent’s past -sub- ~ » -& contracts, which Respondent refused, . Responde nt thereafter | -- reaffirmed, and in this proceeding still opus, its -right to sub- contract unilaterally. aya, ° . 34. ‘bani fully cognizant of the fact that N. ra R- ‘B. v..Adams Dairy, Ihe. 322 FP. 2d-553°(C.A; 8), upon whie h -Respondent relies, "Vie is in direct conflict with Fibribvard. 35. In both Fibre board ‘and ‘Town & Country the employers’ subcontr acting resulted in’ the elimination of certain phases of the BN . employ ers ee and i in curtailment of unit work. © * Oe a operations i a ie ae Mn Se °°? ** per sé a violation of. the. Act.’” General -Counsel, on the other liand, contends that the record establishes | that ‘the layotfs were .-— attributable’ to the subcontracting. and, ‘in any event, that uni-. lateral subcontracting, without more, constitute a violation. There may be merit to the contention , that unilateral subcon- trating is in itself a.violation because such action ¢ ould inherently affect the size of the unit. the employees! opportunities for over- time work, and, indeed, the bargaining representative-s effective- hess in securing fudure contrac ts favorable to the employees.*°) On fhe other hand, situationg may “no doitbt arise where, beeeause o the pressing or emergency charac ‘ter. of work’ dr for other’ reasons, it might be impracticable to require: the employe¥ to give the union | “notice to bargain, 1 do not find it necessary to pass ow such -an issue in this case, since 1 any satisfied ‘that the record here amply supports ‘the finding that Respondent’s subcontracts were not of - such calibers-biit at the.same time. had a profound —— onthe unit work dnd. the unit employees. : a | 7 and: from the. “reorganization” that. followed. It’ 2 argues that to hold Respondent's ‘conduct vidlative of -the “Act * would be to held that ‘‘the unilateral subi: ontracting of werk’’ is ° The record | shows that —Respondemt’s expansion program had - + theen under. « insideration for a considerable period and th: it con- } struction therpunder had been’ in- progress for at least 3 years. Certainly. the praject was not of an emergency character preclud- ing adequate notice to, wand reasonable consultation. with, the Union. “The record shows that Respondent. had laid) off Some -227 unit. employees over a d-month period. These empleyeés could, and did, perform tasks pree ively: the same yas the employees Jaf the sub-’ contractors, ineludiag telephone instatlation, splicing. testing, ete, Emplovees whe had: formerly installed “new” telephones in’ areas of subcontractors® operations Ceased installing such té ‘Jephones and ; were ‘relegated. exalusively to ““tiniscellaneous’” tasks such as reé= moval and transfer of existing tele ‘phones and changing line cords. The eompelling inference is that but for the. subcontracting, Re- spondent. eould and would. have ‘utilized “Some of the laid-off ‘em- “ployees to perform the work of the subcontractors’ employes es. Respondent had employed someeof the laid-off employees, for con _ siderable “periods. The gronp ineluded* splivers whe, according fo View President. Neff: constitnted a highly trained group of: work- nen, [tis quite true that the record fails to identify the specifi« employees affected. by’ the subcontracts, and it may be’ that some - were separated for reasons unconnected - torthe subdontracts, dIn- 6. Thus ‘it lias been abserved that the availability of sube mm ‘tracting Tends ‘‘to give management the w hip liand in bargaining: and to permit it to say ““If you don,t behave . . . well go-/to the” '- subcontractor |.°° . “Tnside ¥. Outside,” 65 Fortune 215, (May 1962). Seoan coy *” . s ° x a ft . ie * : F cluding “toverstatting, 7 But. this! is a. hatter detetntinable in Compliance proceedings: and is neshar ‘to. a finding that at least some emplovees were laid: off cithey bewanise they were deprived of work - formerly pervornied. by the vunit. or “work to whieh “they would have “bee, assigned, but for Hesponute nt’s sStibeéntrac ting I so:find. ©“. oe Aegordingly. TP eouclide that. eons ary to Respondent’ s Ce tion, the subcontracts had a measureable” Impact on the unitwork...- » and tint enfplovees. 7° ee : : : - F . , : o : © t. The ne ture of the unit work and th re subcontr et j nse work, ‘Réspondem further contends that thei Instant-ease is gistinguish- able. from’ Bibechboard' and Town & Country, in. that the subeon- - tracts here did not involve work tormally performed by employers ’ inthe bargatning-unit. | In support of this, contention Re sspondent claims that: (2) the contracted wk entailed work under **an- extraordinary and unprecedeuted’? expansion program, normally subcontracted in the telephone industry: and) (b) this ““bact*’? was recoenized by the Regional Direetor himself awheit.? in certifying, the Union, he expressly exeligled from: the bargaining unit part- time and. remporary eau ployees avho had wor! hed Ol spec inl projec ts In, conmeetton with the eSpaision program,” ae ae The chat answer to the Tatter contention. is thcit, the exclusion In the Decision and Direction of Election té wiiieh Respondent refers covers te miporaiy and part-time ciiployecs af the Company and not tose of subcontractors or thin parties.” Hurthermore, ‘the exclusion of these Company Cmployvees front the iarnit fests on the expectancy -ef their contintiod employment rather than. on the nature of the tusks: per Formed, E ‘ As to Respondent’ s first contention, -it is clear bib the Hovord that the Company ‘s expansion program although’ huge and Une * precedentide Wi as frome its very start envisaged’ as a long-term Joperation, requiring awards of numerdus contracts aver a B- ‘to o-vear period. In addition. as Respondent concedes. the operation reqaured the employment of woykmen of the same job classifiea- - tions as Respondent enrploys. In my View, Subcorrtracting work for such substantial periods of time, involving the same skills as ‘those ‘Of unit employees, does net remove such work irom the redln ‘of normalexe. In any event. under tlie entire record [do net regard: the time duration of such. contracted Work aS deternrinative. of whether the work was of the type ordinarily “performed: by eom- 37. ‘Responde nt did not adduce “evidenee Supporting Neff's _ conv lusionary testimony concerning the Pie Secceaian eae. 5 = e IS no “evidence that “the particular laid-off employees worked -in = an, ‘Soverstafteal department or unit—-evidence peculiarly ow ithin Résponde nt "S possession. eeu, a 6 x : 4 is . : - e S °. - 6 oa ‘ ployees in the unity Finally, it seers to me that even, if: Respond- —ent’s work was contracted out tnider-an “extraordinary "* situation. that would explain. only the occasion for its action, not ghe justi- “fication for bypassing:the Union. As the Suprenie Court has stated, “effective collective bargaining has been generdlly conceded to mehide the right-of the representatives of the unit te be. consulted to bargain about the exceptional as well as the routine . . . Working conditions.’* The Order of Railroad Lelegraphers vy. Railway, Ewpress Company, fne., 321: U.S. 342, S47, oo. The alleged waiver of the Union’s right to * -\ bargain abort stibeontracting, Respondent stresses the claim-that the November 8, 1962. com tract gave to it the unilateral Neht “to contract out work without prior cousultation with the Union.” In support ‘of which jt relies on various Clauses in the contract tineluding ca. rights clause ) and the negotiations leading up to the contract. The burdea of Respondent's argument appears to be that the Union Waived its right to consultation aid bargaining over subcontract- ing by reason of its conduet: in the negotiations prior to. the con- tract as well as Dy the terms of the contract itself, o _ It is quite true that a union may relinquish or waive ai statutory right, such as the right here involved to he-constilted ona bargain- able subject... However, the law is settled that the waiver must: be clearcand unmistakable aid will hot readily be implied, Armstrong Cork Campanyex, No LER. Boo 211-F. 2d SAI S48 (CLA 3): The Timken Roller Be aring Co, Rb. i, 395 8. 2d: 746 (C. A. 6). Niven past failure by a inion to assert a statutory right: does not estop subsequent assertion, NL. 'R. By: Nouthtastorn Rubber Mfg. Co.y Ine., 213 Fs 2d 11. 15 (C. AL 4): Pacific Coast Associa- tion of Pulp ad .Papei Manufacturers v NLR. B. 304 F- 2d 760, 763-765, (CAL9) ‘ 3 TMted by these criteria, 1 find ‘that the Union did not waive its “right to be consulted before Respondent let its subcontracts. Sub- ‘contracting was a matter of erave concern to the Union which, as it-had informed. Respondtnt. it deemed to be a threat to the job security of the eniployees in the unit. The matter continued to be a burning issue even after the. signing of the contract. As we have seen, during the negotiations the Union presented two separate proposals designed to limit Respondent ‘s right to subvontract, In _its letter of June 8, 1962. the Union expressly complained to Respondent. that ‘the subcontracting | ‘*is directlyp harming the employees.””) During the September 15 Meeting, two members of the Union's neégotiating ommittee again protested to Respondent What they regarded ‘to be thé adverse effects of the subcontracts on employment. At the next meeting, September 18. the Union's’ attorney further made it clear that the Union Waserelying on the o F P . - , . Re i | Board's. Pibreboard ane Town & Country devisions insofar as the Union's tight to’ consultation was eonverned, Respondent consis- “ tently rejected the Union ‘Ss attempts to resfrict its right to sub- contract, assuring the Union at the same tite that*the sitbeontracts Would net alfpet tae jobs of the emploveey.” At Respondent’ Ss re- quest, further diseussion of the matter, way deferred until the last. bargaining ,session on October 2! and 25.) At the end of that session, two disputed clauses remained of the agenda the Com- pany Ss proposed tnion-security clause fnd the Union's subeon- tracting clause, Respondent ultimately Withdrew the nnion-seeur ity elatse and a contract was agreed upon xe ‘Luding both clauses. > + t finding that the Union's ” Sass thegtivecal waiver of Thus. the recerd? does let Support conduet in the negotiations amounted its sti itutory ee to bargainson subg itracting, TP cannot acctpt Responde Nt ’s contention that the Unhiow in’ the. final bareaining sessiaih wave lp its subcontracting glause in ‘excliange’? for the C ompany ‘Sowithdrawal of the union responsibility clause or any other ehruses? Certs tinky: the Union did not ‘knowingly © waive . its Pleht to bargain ow subcoutracting. Vv. > h. By. Gull Alantic Warehouse Company, 24 R. 2d STD. ATT. OC. AL O00 Considering all of the vireumstanees, inchirding the C sas ‘Ss assurances dur- inige the aewe tfations that subcontracting would not affect the nit and the further fact tliat no Javotfs actually took place until after the siening of the contract, the reasonable reference is, wid) liter: “hatte! Representatives Sanchez so “testitied, that, the Enidn had \ decided to go along with a eontraet without a subcont rat tag clause, relying “onthe adviee cof its counsel that) the “doeeisions by. the Nationa! Labor Relosions Paved... worl offer, protection te the workers ast far ag subcontracting goes." Ch oN. LL. ie Bove The tom Co.. Dey I. hT 956, 958-949 (CA, i). ; e Nor can! aecept Responde Nts contention that the various as.. Although ¢ (Gonzalez Monefova, the ‘company representative, testified om lireet exati iat lon. that both clauses were withdiawn.* On eross-exaninat ion he could not recall anything that was said about the Union withdrawing its subcontracting clause. He also conceded that while the minutes of the last meeting (which he pre- pared for the Congpany and inspected at the hearing) expressly ree cite dothat the ¢ ‘oun pany had withdrawn the union-security clause, ying contateied Nierein indieated that. the Union withglrew its sibcqutracting clases 300 Pn this connestion Respotident points out that the ¢ omipany had‘agreed. 16 the modification of its eviginal’ management preroga- _ five proposal The miodifieation (10 the effeet that the. Company would vise such elauseé for ceonomic and not diseriminatery pur. roses! is merely a restatement of Respondent's obligation under low and it is hard to believe that the ‘Union would have accepted this movlific ‘ation as a qidd pro quo for the alleged waiver. A65 clauses in the contract, considered eithe separately or collectively: accorded it the right. to subcontract ‘unilaterally. Under the Imanagement-prerogative. clatise; upon which Responde nt relies, the Company reserved control over certain matters, except as expressly ‘limited by the terms of the agreement. 4 Under the ‘‘labor rehka-. tions” clause (article EV), on which Respoydent also relies, the parties acknowledged that they had ‘*untimited’’ opportanity to. negotiate, that all their ‘‘decisions and covenants”” appear in the contract, and that the working conditions set ‘for [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0204%3A1. Public record. Not legal advice.