Unpublished Disposition, 852 F.2d 572 (9th Cir. 1982)

MEMORANDUM^* 

Southern California Edison (SCE) petitions for review of an unfair labor practice order issued by the National Labor Relations Board (the Board) against SCE. The Board cross-petitions for enforcement of its order. SCE negotiated a collective bargaining agreement (CBA) and an employee disability plan (the Disability Plan) with Utility Workers of America, Local No. 246 (the Union), which represents approximately 1,900 of SCE's employees. The dispute concerns conflicting interpretations by SCE and the Union of their respective rights under the agreements. The Board found that two memoranda issued by SCE articulating its temporary work assignment policy for disabled workers constituted a unilateral change in a significant term and condition of employment, in violation of Sections 8(a) (1) and 8(a) (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (1) and (a) (5). We affirm.

Decisions of the NLRB will be upheld if the Board correctly applied the law and if its factual findings are supported by substantial evidence in the record as a whole. NLRB v. Island Film Processing Co., 784 F.2d 1446, 1450 (9th Cir. 1986). If the Board's interpretation of contract terms is reasonable and not inconsistent with the Act's policies, it is entitled to deference. NLRB v. Southern California Edison, 646 F.2d 1352, 1362 (9th Cir. 1981).

It is an unfair labor practice for an employer, without providing notice and a reasonable opportunity to bargain, to initiate a material change in established terms and conditions of employment in an area that is a mandatory subject of bargaining. NLRB v. Katz, 369 U.S. 736 (1962); 29 U.S.C. § 158(a) (5). " [W]ages, hours, and other terms and conditions of employment" are mandatory subjects of bargaining. 29 U.S.C. § 158(d). An employer also commits an unfair labor practice if it interferes with, restrains, or coerces its employees in the exercise of their rights under the Act. 29 U.S.C. § 158(a) (1).

SCE first argues that the policy articulated in the Hauck and Currie Memos did not constitute a change in benefits, because the policy merely formalized existing practices. Section 8(a) (5) is not violated where a purported unilateral change is in fact merely a formalization of preexisting practices, but the burden is on the employer to show that the change falls within the past policy exception. Aaron Bros. Co. v. NLRB, 661 F.2d 750, 753 (9th Cir. 1981). SCE failed to carry its burden.

Substantial evidence supports the Board's findings that SCE's past practice in all or most cases was to return a disabled employee to his or her former job classification with light duty restrictions as necessary, and that the disabled employee was given input into the decision when to return. The findings are consistent with the language of the Disability Plan, which provides for benefits if an employee is "prevented from performing his or her regular or customary work," and the testimony of Union officials Carter and Hein.

The Currie Memo stated that " [i]n determining available work, local supervision should analyze the need for temporary help without regard to the injured worker's classification." Moreover, an employee is subject to discipline, including forfeiture of sick leave, disability benefits and regular pay, if he or she refuses an assignment outside the regular job classification. We agree with the Board's conclusion that the policy articulated in the Hauck and Currie Memos represented a clear departure from past practice and the Disability Plan.

That finding is supported, not refuted, by the testimony of Union officials Carter and Hein. Carter testified that "at times" SCE's practice had been to assign injured employees either within their classification or to a higher classification. Hein testified similarly, and further qualified his statement by asserting that such assignments only occurred with the agreement of the individual employee.

Nor do the grievances filed by employees Sterk and Prodhomme support SCE's assertion that no change occurred. In the grievances the Union claimed that SCE failed to provide injured employees with temporary work assignments either within or outside their job classifications. Both employees wished to return to work after a period of disability; Sterk desired a temporary upgrade, Prodhomme sought to return to her normal job with light duty restrictions. That evidence does not establish that an employee could be unilaterally assigned to a lower job classification or be subjected to discipline for refusing to accept an assignment.

SCE failed to meet its burden of establishing that the policy fell within the longstanding practice exception. Aaron Bros., 661 F.2d at 753. The practice established by the Hauck and Currie Memos represented a departure from past policy.

SCE contends, however, that even if a change was made it was not material and substantial. An employer's obligation to bargain over a change does not arise unless the change is material and substantial. See NLRB v. Merrill & Ring, Inc., 731 F.2d 605, 608-09 (9th Cir. 1984). A change in a mandatory subject of bargaining is material and significant. Id. at 608. The concept of "wages, hours and other terms and conditions of employment," 29 U.S.C. § 158(d), has been broadly construed. Id. The new policy, which required employees to accept temporary assignments outside their job classifications and subjected them to discipline if they failed to do so, represented a material, substantial change in terms and conditions of employment.

SCE next asserts that it had the right to make changes in the temporary work assignments policy by virtue of Articles IV(A) (the Management Prerogatives Clause) and IX(B) (wage rates applicable for temporary assignments outside job classification) of the CBA. The Board held that those two clauses are not sufficiently specific to override the terms of the Disability Plan, finding that neither clause addresses disabled workers.

SCE is in effect arguing that by virtue of those two clauses the Union waived its right to bargain over benefits and work requirements for disabled workers. A union can waive a right that is protected by the Act; however, any such waiver may not be implied but instead must be clear and unmistakable. Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708, n. 12 (1983); American Distributing Co. v. NLRB, 715 F.2d 446, 450 (9th Cir. 1983), cert. denied, 466 U.S. 958 (1984). In American Distributing we noted that such a waiver can occur "by express contract provisions, by bargaining history, or by a combination of the two." 715 F.2d at 450.

Although the Disability Plan was in effect prior to the CBA, neither clause of the CBA refers to the Disability Plan, or to disabled employees. Both refer to management's right to direct and transfer "employees." Such general language cannot override the clear language of the Disability Plan. Nor does SCE assert that the Union "consciously yielded" its right to bargain over benefits for disabled workers during past negotiations. We hold that SCE did not have the authority unilaterally to change the terms of the Disability Plan. The Union did not waive its right to bargain over those matters.¹ 

Finally, SCE asserts that the Union's charge was untimely under Section 10(b). Section 10(b) provides in pertinent part that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board." 29 U.S.C. § 160(b). The Union's charge was filed on October 4, 1982. SCE claims that the charge was untimely because the Hauck and Currie Memos were issued in February, 1982, and the Currie Memo was read to a group of employees, including Union steward Glass, that same month--more than seven months before the complaint was filed.

Section 10(b)'s limitations period "does not begin to run until the party filing the charge knows or has reason to know that an unfair labor practice has occurred." Stone Boat Yard v. NLRB, 715 F.2d 441, 445 (9th Cir. 1983), cert. denied, 466 U.S. 937 (1984). SCE failed to prove that the reading or summary of the Currie Memo conveyed or should have conveyed to the Union the changes that were being made in the work assignment policy for disabled employees. When foreman Kuhn read the Currie Memo he did not state that he was announcing a change in policy. The meeting was a routine gathering that lasted only 15 to 30 minutes. Neither the Hauck nor Currie Memo was distributed to employees or posted.

We hold that the Section 10(b) period did not begin to run until the Union received copies of the Hauck and Currie Memos. See NLRB v. R.O. Pyle Roofing Co., 560 F.2d 1370, 1371-72 (9th Cir. 1977) (statement by employer's president to union's business agent that may have been a partial repudiation of collective bargaining agreement insufficient to begin the Section 10(b) period). Accordingly, the charges were timely filed.

The Petition for Review is DENIED; and the decision of the Board is ENFORCED.