On 29 June 1984 Administrative Law Judge Russell M. King Jr. issued the attached decision. The General Counsel filed exceptions and a supporting brief; the Respondent filed an answering brief.

The Board has considered the decision and the record in light of the exceptions n1 and briefs and has decided to affirm the judge's rulings, findings, n2 and conclusions and to adopt the recommended Order.

n1 In the absence of exceptions thereto the Board adopts the judge's finding that employee Loyd's "buy-out" agreement was not the subject of a complaint allegation.

n2 The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderence of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

We adopt the judge's dismissal of the 8(a)(5) and (1) allegation pertaining to employee Johns but for reasons other than that set forth in the judge's decision. The record shows that art. XI, sec. C of the parties' collective-bargaining agreement, entitled "Exchange of Positions," states:

When two or more employees seek to exchange assignments, the employees involved shall make written request to the employer. The exchange will be contingent upon approval by the employer.

The record also shows that in early 1983 employee Johns approached the Respondent's executive director, Lloyd, regarding an exchange of positions with another employee. At that time Johns, a nonprobationary employee, was facing possible termination as a result of his work performance. Thereafter, following discussions with management representatives, Johns signed a memorandum of agreement setting forth the terms of the exchange including his acceptance of a reversion to probationary status as a condition of the exchange. The exchange was effective on 15 May 1983. In light of the nature and circumstances of this personnel action, which we note to be an exchange of positions rather than a transfer as characterized by the judge, we find this action, including the Respondent's conditioning John's exchange of positions on his acceptance of probationary status, was privileged by the language of the contract as the contract contains a specific provision addressing an employee's exchange of positions and as this provision states that such exchange is contingent upon the employer's approval. Accordingly, we find that the Respondent did not violate SEC. 8(a)(5) and (1) in directly negotiating the exchange agreement with Johns or conditioning the exchange upon his acceptance of probationary status.

The judge dismissed the complaint in its entirety. In doing so, he rejected the General Counsel's contention that certain "Memoranda of Understanding" between the Respondent and various employees were contrary to the terms of the collective-bargaining contract that the Respondent had with the Union. He noted that the contract did not set forth any "terms of transfer," such as procedures to be followed or rights to be accorded transferred employees. He also found that, in the absence of contractual language or of evidence regarding past practice with regard to transfers, there was no showing that the Memoranda of Understanding or transfer agreements violated the Act. The judge further found that the Respondent's direct negotiations with employees regarding these transfers, and the conditions imposed by the resulting agreements, were privileged by the language of the parties' management-rights clause. In light of this conclusion, he found that the Respondent was under no obligation to comply with the Union's request for copies of these transfer agreements or "other documents memorializing extra-contractual agreements." The General Counsel has excepted to these findings, contending that the transfer agreements are contrary to the terms of the parties' contract and constitute a unilateral change in conditions of employment. The General Counsel also argues that the Respondent violated Section 8(a)(5) and (1) by directly negotiating these agreements with employees and by failing to comply promptly with the Union's request for relevant information.

We find merit to the General Counsel's exceptions that the Respondent violated Section 8(a)(5) and (1) by dealing directly with employee Lopes and by failing to timely provide certain requested information. However, while we find merit to the General Counsel's argument that the Respondent implemented a unilateral change in conditions of employment, n3 with respect to Lopes' transfer agreement we also find that the Union waived its rights to bargain regarding this change.

n3 In its exceptions, as noted above, the General Counsel also contends that the agreements conditioning the transfer of nonprobationary employees on their acceptance of probationary status are contrary to the terms of the parties' collective-bargaining agreement. In this respect, the General Counsel argues that the contract provides that a new employee remain in probationary status for 1 year and then be accorded permanent status for the duration of his employment. In support of its argument, the General Counsel has cited art. XXIX, SEC. B and art. XXX, SEC. A and B of the parties' contract.

Art. XXIX, SEC. B states:

1. During the first year of employment, the employee shall be evaluated two times and once during each one year period thereafter.

2. During the first year following the effective date of transfer to another position . . . the employee may be evaluated twice.

Art. XXX, SEC. A states:

New employees are considered to be in a probationary period during the first twelve (12) months of employment .

SEC. B states:

Employees who have successfully completed the probationary period shall be considered as non-probationary .

Upon review of these provisions and of the contract overall, we agree with the judge's finding that there is no showing that the agreements are contrary to the terms of the parties' contract.

The facts, which are fully set forth in the judge's decision, are summarized as follows: On 14 September 1983, employee Lopes approached the Respondent's executive director, Lloyd, regarding a transfer to another position. On 21 September, the Respondent informed Lopes that it would consider his transfer subject to his acceptance of probationary status. On 22 September Lopes informed a union officer, Kirkbride, of the proposed transfer and its condition. Although Kirkbride subsequently informed Lopes that the Union did not approve of the condition that he accept probationary status, Kirkbride did not otherwise protest the transfer. At this time, Kirkbride first learned of the May 1983 Johns agreement. n4 On 21 October Lopes signed a memorandum, agreeing to accept probationary status as a condition of his transfer. The transfer was effective 26 October. By letter dated 21 November, the Union protested the Respondent's direct dealing with Lopes and other employees and requested copies of the "Memoranda of Understanding" and all such "extra-contractual agreements" with employees since 1980. On 13 December 1983, the Respondent acknowledged receipt of this letter, but did not comply with the request until shortly before the March 1984 hearing.

n4 See fn. 2.

As noted by the judge, the parties' existing collective-bargaining contract contains a clause which reserved to management "the right to carry out the ordinary and customary functions of management and to adopt policies and practices in furtherance thereof n5 The judge thus found that the transfer agreements involved in this case were well within management's prerogative as the Respondent was simply establishing a practice for carrying out its management function while serving its best interests and those of its employees.

n5 Art. VII states in full:

The employer retains and reserves to itself all rights, powers, privileges, duties, responsibilities and authority conferred upon and vested in it by law, whether exercised or not, and in all respects shall retain the right to carry out the ordinary and customary functions of management and to adopt policies, rules, regulations and practices in furtherance thereof except as limited by the terms of this agreement.

Initially we note that mandatory subjects of bargaining are those which set a term or condition of employment or regulate the relation between the employer and the employee. n6 We thus find that the terms of an employee's transfer clearly affect employment conditions and are a mandatory subject of bargaining. It is well settled that a union has a statutory right to be consulted about a change affecting the terms and conditions of employment. The union may waive this right; such a waiver may not be lightly inferred but must be "clear and unmistakable." Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983).

n6 Latex Industries, 252 NLRB 855, 857 (1980).

Applying these principles here, we do not find that the management-rights provision of the parties' contract standing alone constitutes a clear and unmistakable waiver of the Union's right to be consulted about employee transfer arrangements. The provision speaks only generally of retaining a right to carry out the "ordinary and customary functions" of management and to adopt policies in furtherance thereof. We do not find transfer rights to be necessarily contemplated by a broad reference to "ordinary and customary functions of management" nor do we find the implementation of a personnel action, as is the case here, to be encompassed in the right to adopt unspecified policies in furtherance of these management functions. The provision is at best vague and as such insufficient to meet the standard of a "clear and unmistakable waiver." Thus, we do not find that the management-rights clause contained in the parties' contract privileged the Respondent to negotiate directly or to enter into the transfer agreements.

However, while we find that the management-rights clause did not serve as an effective waiver of the Union's right to be consulted regarding the transfer agreement, we find that the Union, by its actions, is estopped from asserting its right to bargain over the issue of Lopes' transfer.

Once an employer notifies a union of a proposed change in conditions of employment, it is incumbent upon the union to act with due diligence in requesting bargaining. n7 Further, the failure of a union, upon receipt of this notice, n8 to request bargaining may result in a waiver of its rights. n9

n7 Meharry Medical College, 236 NLRB 1396 (1978).

n8 The union's obligation to request bargaining arises upon actual notice even if such notice is received from a source other than directly from the employer. Hartmann Luggage Co., 173 NLRB 1254 (1968).

n9 City Hospital of East Liverpool, 234 NLRB 58 (1978).

The record shows that Lopes consulted with union official Kirkbride on the matter of the proposed transfer approximately a month prior to his signing the transfer agreement and the effective date of the transfer. Although Kirkbride informed Lopes that the Union did not approve of the probationary condition attached to the transfer, he did not indicate that the Union otherwise protested the transfer. n10 Although the transfer was effective 24 October 1983, it was not until approximately a month later that the Union formally protested to the Respondent, inter alia, the terms of the transfer. We find therefore, in light of its receipt of notice of the proposed transfer, that by its actions in promoting the transfer and in failing to request bargaining over this issue until after it was implemented, the Union effectively acquiesced in the action. In these circumstances, we find that the Respondent did not violate Section 8(a)(5) and (1) by implementing this transfer.

n10 In fact, as noted by the judge, the record shows that at least one union representative, President Thomas Flannigan, sought to promote the transfer with the administrative board of the region to which Lopes requested transfer.

We do not find, however, that the failure to timely request bargaining in any way excused the Respondent's direct dealings with Lopes. n11 An element of direct dealing with employees is the lack of consent by the designated bargaining representative to these employee contacts. n12 As the record shows that the Respondent negotiated with Lopes and that the Union had no knowledge of the Respondent's contacts with Lopes until after they were made, we find that the Respondent violated 8(a)(5) and (1) by these direct negotiations. n13

n11 An employer is obligated to bargain solely with the designated bargaining representative. This is true even if the employees themselves initiate the contacts. Spector Freight System, 260 NLRB 86, 94 (1982).

n12 Spector Freight System, supra at 87.

n13 Unlike our dissenting colleague, we do not find that the facts of this case support a finding that the Union acquiesced in the Respondent's direct dealings with Lopes in negotiating a transfer. The record clearly shows that the Union was informed of the proposed transfer only after discussions between Lopes and the Respondent's officials had taken place. As noted above, an element of direct dealings is the lack of consent to the employee contacts. Here there is no evidence that the Union knew of or consented to the Respondent's contacts with Lopes at the time they were made. In these circumstances while we find that the Union acquiesced in Lopes' transfer in failing to request bargaining once it had learned that such a transfer was proposed, we do not find that the receipt of information following the Respondent's direct dealings with Lopes serves as a basis for finding that the Union acquiesced to those initial, unlawful contacts.

Finally, contrary to the judge, we find that the Respondent violated Section 8(a)(5) and (1) of the Act by its failure to comply promptly with the Union's request for information. The record shows that, by letter dated 26 November 1983 and addressed to Lloyd, the Union requested a copy of "each and every 'Memorandum of Understanding' or any other document memorializing extra-contractual agreements with bargaining unit personnel" since 1980. By letter dated 13 December 1983 the Respondent acknowledged receipt of the Union's request but failed to provide the requested information until shortly before the 8 March 1984 hearing. In its response to the General Counsel's exceptions, the Respondent contends that the agreements were executed in the course of its "day-to-day management," thereby implying that it is under no obligation to release management-related information to the Union based on the Union's belief that the information is significant. It further points out that the matter is moot as the information has since been provided and that its failure to produce the information did not prejudice or impede the Union in bringing this action.

We find that its information, which concerns terms of transfer of bargaining unit members, is presumptively relevant to and necessary for the Union's performance of its representative duties. We find that reasons proffered by the Respondent do not justify or excuse its failure to provide the information at the time it was requested. Accordingly, we find that the Respondent by failing to timely comply with the Union's request violated Section 8(a)(5) and (1). n14

n14 Salem News Publishing Co., 230 NLRB 927, 929 (1977).

Amended Conclusions of Law

Substitute the following paragraphs for Conclusions of Law 4, 5, and 6.

"4. That the Association, by engaging in direct negotiation with Steve Lopes regarding the terms of his transfer to another position, unlawfully bypassed the Union in derogation of its position as exclusive collective-bargaining representative of the Association's employees in violation of Section 8(a)(1) and (5) of the Act.

"5. That the Association by failing to comply with the Union's 21 November 1983 request for copies of agreements directly negotiated with bargaining unit employees since 1980 violated Section 8(a)(1) and (5) of the Act.

"6. That the association has not otherwise violated the Act."

Remedy

Having found that the Respondent has engaged in certain unfair labor practices within the meaning of the Act, we shall order it to cease and desist therefrom and to take affirmative action designed to effectuate the policies of the Act.

ORDER

The National Labor Relations Board orders that the Respondent, Kansas National Education Association, Topeka, Kansas, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Unlawfully bypassing the Kansas Staff Organization as the exclusive collective-bargaining representative of its unit employees by engaging in direct negotiations with individual unit employees regarding terms of transfer to another position.

(b) Unlawfully refusing to supply the Union with information requested in its letter of 21 November 1983 regarding any agreements directly negotiated with bargaining unit employees since 1980. Such information is relevant it, and necessary for, the Union's performance as bargaining representative of the unit.

(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action which is necessary to effectuate the policies of the Act.

(a) Promptly comply with the Union's requests for relevant information necessary for its performance as bargaining representative of unit employees.

(b) Post at its Kansas offices copies of the attached notice marked "Appendix." n15 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.

(c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply.

n15 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD."

CONCURBY: DENNIS (In Part)

DISSENTBY: DENNIS (In Part); DOTSON (In Part)

DISSENT:

MEMBER DENNIS, concurring in part and dissenting in part.

I agree that the Respondent did not violate the Act by transferring employee Lopes, because the Union acquiesced in the transfer. I also find, in agreement with Member Hunter, that the Respondent violated the Act by dealing directly with Lopes about the transfer. As the Union did not know about the Respondent's discussions with Lopes while they were in progress, the Union's later acquiescence in the implementation of the transfer cannot excuse the direct dealing violation. Finally, I agree that the Respondent violated the Act by not promptly supplying information the Union requested.

I would find, however, that the Respondent also violated the Act by conditioning employee Johns' transfer on his reverting to probationary status. The contract makes no provision for an employee's reverting to probationary status. Consequently, even though the contract allowed Johns and the Respondent to arrange an exchange of positions, it did not authorize the probationary status condition, and the Union did not acquiesce in such a condition.

Dated, Washington, D.C. 31 May 1985

CHAIRMAN DOTSON, dissenting in part.

Although I agree in other respects, I cannot agree with my colleagues' finding of an 8(a)(5) violation regarding the Respondent's "direct dealing" with employee Lopes. The facts are not in dispute. Lopes, believing he was about to be terminated, asked the Respondent's executive director, Lloyd, about the possibility of a transfer. On 21 September the Respondent told Lopes that it would consider a transfer if he would agree to revert to probationary status. The next day Lopes informed Kirkbride, the principal union official responsible for administering the collective-bargaining agreement, of the proposal. Kirkbride presented the proposal to the Union's Staff Rights Committee. On 26 September Kirkbride told Lopes that the committee did not agree with the reversion to probationary status. Kirkbride also told Lopes to "do what you have to do." Indeed, Union President Flannigan even encouraged the transfer. The transfer was effected on 24 October. The Union protested on 21 November, almost 2 months after it had knowledge of the situation.

Based on the foregoing, the majority correctly found that the Union acquiesced in the action and that the Respondent did not violate Section 8(a)(5) by implementing the transfer. I agree. I depart from the majority's finding that the Respondent violated Section 8(a)(5) by dealing directly with Lopes without obtaining the Union's prior consent. I find that the Union also acquiesced to the Respondent's direct dealing. The Union contends that it believed that Lopes would convey its objection to transfer to the Respondent. This, along with Kirkbride's statement to Lopes to "do, what you have to do" is sufficient to find that the Union waived its rights as the bargaining representative in this matter.

Dated, Washington, D.C. 31 May 1985

ALJ: RUSSELL M. KING

ALJ-DECISION:

DECISION

Statement of the Case

RUSSELL M. KING, JR., Administrative Law Judge: This case was heard by me in Topeka, Kansas on March 8, 1984. The charge was filed by the Kansas Staff Organization (the "union") on December 22, 1983. n1 The complaint was issued on February 1, 1984 by the Regional Director for Region 17 of the National Labor Relations Board (the "Board") on behalf of the Board's General Counsel. n2 The complaint alleges that the Kansas National Education Association (the "association") bypassed the union and dealt directly with individual employees by negotiating terms of transfer with employees which were contrary to the transfer provisions contained in the collective-bargaining agreement then in effect, and failed and refused to furnish the union information necessary and relevant for the performance of its function as the exclusive representative of bargaining unit employees, all in violation of Section 8(a)(5) and (1) of the National Labor Relations Act (the "Act"). n3 The association denies that it had a duty to notify or bargain with the union over the transfers under the collective-bargaining agreement. The association also argues that the request for information by the union has since been complied with and thus the issue is moot.

n1 All dates hereinafter are in 1983 unless otherwise stated.

n2 The term "General Counsel", when used herein, will normally refer to the attorney in the case acting on behalf of the General Counsel of the Board, through the Regional Director.

n3 The pertinent parts of the Act (29 U.S.C. SEC.151, et seq.) provide as follows:

SEC. 8. (a) It shall be an unfair labor practice for an employer -- (1) to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7 (5) to refuse to bargain collectively with the representative of his employees.

SEC. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed herein by the General Counsel and the association, I make the following:

Findings of Fact n4

n4 The facts found herein are based on the record as a whole and upon my observation of the witnesses. The credibility resolution herein have been derived from a review of the entire testimonial record and exhibits with due regard for the logic of probability, the demeanor of the witnesses, and the teaching of N.L.R.B. v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). As to those testifying in contradiction of the findings herein, their testimony has been discredited either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. All testimony and evidence, regardless of whether or not mentioned or alluded to herein, has been reviewed and weighed in light of the entire record.

I. Jurisdiction

The pleadings, admissions and evidence herein establish the following jurisdictional facts. The association is now, and has been at all times material herein, a non-profit corporation duly organized under, and existing by virtue of, the laws of the State of Kansas. The association is engaged in the business of providing services such as lobbying and negotiating collective-bargaining agreements with school districts on behalf of local associations of educators. The association is supported by dues-paying members, and is headquartered in Topeka, Kansas, where it employs a staff of program specialists. From this facility, the association directs field representatives in the delivery of services to its members. n5 During the 12 months preceding the issuance of the complaint in this case, a period which is representative of all times material herein, the association, in the course and conduct of its operations within the State of Kansas, purchased goods and services valued in excess of $50,000 directly from sources located outside the State of Kansas. Thus, as alleged and admitted, I find that the association is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.

n5 These field representatives are assigned to deliver services within geographical districts throughout the State of Kansas. Each such district is referred to as a Uniserv district, and each Uniserv district appears to act as a joint employer with the association of the field representatives assigned to it. No Uniserv district has been charged individually with violating the Act.

Also, as alleged and admitted, I find that the union is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act.

II. The Alleged Unfair Labor Practices

A. Background

The union represents all of the associations full-time and regular part-time professional employees. The union and the association have been parties to a number of successive collective-bargaining agreements, and the current contract took effect on July 1, 1983. Under the contract, "new" employees are in a probationary status during their first twelve months of employment with the association. Probationary employees enjoy all the rights and privileges conferred by the contract on all other unit employees, including use of the grievance procedure, but excepting "the right to appeal discipline and discharge to arbitration." Voluntary transfers are mentioned in Article 11 of the contract, which reads as follows:

VACANCIES AND VOLUNTARY TRANSFERS

A. Notice

Notification of all vacancies in K-KEA Professional Staff and Uniserv positions shall be made at least thirty (30) calendar days prior to the time that such vacanies are to be filled. Notification to employees shall precede notification to other persons or agencies by fourteen (14) calendar days. All notifications to employees shall be by first class mail (or personal delivery where appropriate) and shall contain a description of the position to be filled together with the qualifications required and the expected date of filling. Current employees applying for management positions to be filled shall be granted an interview.

B. Special Considerations

The following special considerations in the order listed shall apply to employees making application for a transfer whenever staff openings within the bargaining unit occur whether they are new positions or vacancies.

1. Current employees shall be given priority whenever their qualifications are equal or superior to other applicants.

2. Ethnic minorities shall be affirmatively sought so as to assure that such minorities are employed in approximate proportion to their ratio of the population of Kansas.

3. Women shall be given priority whenever their qualifications are equal or superior to other applicants.

C. Exchange of Assignments

When two or more employees seek to exchange assignments, the employees involved shall make written request to the employer. The exchange will be contingent upon approval by the employer.

The contract also contains a management rights clause which reads as follows:

The employer retains and reserves to itself all rights, powers, privileges, duties, responsibilities and authority conferred upon and vested in it by law, whether exercised or not, and in all respects shall retain the right to carry out the ordinary and customary functions of management and to adopt policies, rules, regulations and practices in furtherance thereof except as limited by the terms of this agreement.

On or about September 22, David Kirkbride, the union's Staff Rights Committee Chairperson, who is the principal union official responsible for administering the collective-bargaining agreement, was contracted by employee Steve Lopes. They had a long conversation during which Lopes informed Kirkbride that he had been discussing the possibility of a transfer with the association's attorney, David Schauner. Lopes told Kirkbride that the association would be willing to transfer him if he would accept probationary status. Thereafter, on September 26, Kirkbride became aware that employee Charles Johns had executed a transfer agreement with the association. n6 By letter dated November 21, Kirkbride, on behalf of the union, objected to these direct negotiations with employees and requested a copy of each and every such extra-contractual agreement which the association had made with bargaining unit employees since 1980.John Lloyd, the association's executive director, responded to that letter, but no documents were provided to the union. On March 2, 1984, just prior to the commencement of the hearing in this case, the association furnished copies of all such agreements. At this time, it was discovered that the association had also entered into a termination of service agreement with employee Clayton Lloyd around June 1983, whereby Clayton Lloyd agreed to resign on or about June 30 in return for a monetary buy-out. n7 The Johns transfer agreement took effect on May 15 when he assumed his new position. The Lopes agreement was executed on or about October 22, and Lopes assumed his new position on October 24. Both transfers were conditioned upon reversion to probationary status. John's probationary status was subsequently lifted as a result of his job performance some 7 or 8 months after his transfer.

n6 Kirkbride indicated that he did not actually become aware that these transfer agreements were conditioned upon reversion to probationary status, resulting in the loss of access to the arbitration procedure, until he actually received a copy of the Lopes agreement in early November. However, other evidence and testimony reflects the contrary.

n7 This buy-out agreement is not the subject of any allegation in the complaint.

The General Counsel contends that these transfer agreements are direct dealings intended to circumvent the collective-bargaining agreement and the union. The General Counsel also contends that the terms of the transfer agreements are contrary to the transfer terms in the collective-bargaining agreement, and are thus unilateral mid-term changes in violation of Section 8(a)(5) of the Act. The company essentially denies these allegations and raises a number of arguments such as mootness and waiver in the event it is found there was a duty to bargain and furnish the information requested. n8 The General Counsel also argues that the Clayton Lloyd buy-out agreement was accomplished without consultation with, or notice to the union, evidencing a pattern of direct dealing and a desire to avoid the grievance and arbitration provisions of the collective-bargaining agreement. Finally, the General Counsel submits that the information requested by the union was relevant and necessary for the performance of its duties as the employees' representative.

n8 Curiously, the association never tackled head-on the issue as to whether it had a definate duty to bargain over the transfers under the terms of the agreement.

B. The Transfer Agreements

John Lloyd, the associations' executive director, was initially approached by employees Lopes and Johns about the possibility of transfer within the association. Lopes learned of an opening on or about September 1, and wrote to Lloyd on September 14 to inquire about the position. Johns talked with Lloyd about the possibility of an exchange of positions with another incumbent employee sometime early in 1983. There is no question that their interest in trasferring was prompted by job difficulties they each were experiencing in their current positions. The Johns' transfer agreement is prefaced by the statement that the transfer was "in lieu of termination from employment with [the association]."

Johns testified that he was concerned about staying employed and apparently wanted the matter kept confidential. Lopes admitted that his working relationship in his previous position was not "all that satisfactory", and it was Lloyd's opinion that if Lopes remained in that job, he would have been terminated.

Lloyd appeared to have been concerned about the personal welfare of both Johns and Lopes, and he obviously was interested in seeing them remain employed with the association. Johns was being transferred instead of fired, and Lloyd had attempted to secure alternative employment for Lopes on two recent occasions. Indeed, in promoting Lopes for this transfer, Lloyd enlisted the support of several other influential employees and encouraged them to try to persuade the appropriate decision makers to hire Lopes. n9

n9 Lopes was applying for the job of field representative for one of the Uniserv districts, and in order to be hired he needed the approval of the administrative board for that Uniserv district.

While the union did not become aware of John's transfer until long after it had been effected, it was highly concerned that Lopes' continue his employment with the association. Union director Kirkbride testified that he favored the transfer, and union president Thomas Flanningan was one of the individuals requested by Lloyd to lobby for the transfer. In fact, there is even the suggestion that the union initially chose to refrain from confronting the association about the possible unlawfulness of the transfer agreements in order to not jeopardize Lopes' transfer. As already noted, the union was aware that Lopes was discussing the possibility of transferring with association officials, and that the association was willing to agree if the transfer was conditioned upon Lopes' acceptance of probationary status. The issue of such a provision was taken up with the union's Staff Rights Committee, and on September 26 Kirkbride informed Lopes that the committee did not agree with the reversion to probationary status. Lopes testified that union director Kirkbride told him the committee did not necessarily agree with the condition (probationary status), but that Kirkbride added "do what you have to do." Kirkbride testified that he advised Lopes not to sign such an agreement. Union president Flannigan added that he heard Kirkbride tell Lopes that a transfer conditioned upon reversion to probationary status was so repugnant to the Union that it would be unacceptable. Yet neither Flannigan nor Kirkbride raised any objection with the association until November 21, nearly a month after Lopes' transfer was completed, and almost two months after the union became aware of the objectionable condition. n10 Flannigan went so far as to testify that even though he had ample opportunity to raise the matter with Lloyd during the week of September 26, he made a conscious decision not to confront him. n11

n10 Kirkbride admitted that on October 21 Lopes called and informed him that the transfer agreement had been signed.

n11 Kirkbride and Flannigan concede that they did not confront the association with these objections. However, they contended that they believed Lopes would convey the union's objections to Lloyd and refuse to sign the agreement in accordance with their advice, and that the association would then drop the condition.

Paragraph 6 of the complaint alleges that the terms of these transfer agreements are contrary to the "terms of transfer" contained in the collective-bargaining agreement. However, the agreement does not include "terms of transfer." The provision on voluntary transfers merely discusses employee notification of vacancies, preferential hiring treatment for current workers, women and minorities, and applications for assignment exchanges. The contract does not speak of the rights accorded transferring employees, or set out a specific procedure for obtaining a transfer. Furthermore, the General Counsel has not presented any evidence as to what the usual procedure was. There is therefore nothing in the record to establish that the negotiation or consumation of a transfer agreement between an individual employee and the association in and of itself violates the Act.

The union and the General Counsel contend that the condition of reversion to probationary status contained in the transfer agreements is repugnant to the collective-bargaining agreement and violative of the Act. However, the only discussion of a probationary status in the collective-bargaining agreement is the definition of a probationary employee as one employed for less than one year and who has all the rights and privileges afforded other employees, except the right to appeal discipline and discharge to arbitration. Admittedly, the collective-bargaining agreement is silent as to whether a permanent employee might be placed on probationary status. The specific rights of transferred employees and the proper procedure for obtaining transfers are not delineated in the agreement, and there is no evidence that such subjects have ever been discussed in negotiations between the union and the association. n12 The contract does include a management rights clause which reserves to the company "the right to carry out the ordinary and customary functions of management and to adopt policies and practices in furtherance thereof, except as limited by the terms of [the collective bargaining] agreement."

n12 The union, of course, had the right and opportunity to raise the subject during contract negotiations.

In my opinion the association's actions in this case fall within "the customary functions of management." I find that the transfer agreements involved in this case were well within management's prerogative to negotiate and execute. The association was simply establishing a practice for carrying out its management function while serving both its best interests and the best interests of Lopes and Johns. As Kirkbride stated, "it was in [Lopes'] best interest to be transferred and [the union] was very much desirous of assisting him in accomplishing this. . . ." The association was merely trying to accommodate two individual employees in retaining employment, while protecting the interests of the association at the same time. Each of these employees had a record of questionable performance. Lloyd was obviously interested in securing these transfers for Lopes and Johns, but he was unwilling to ignore their recent work history. The association could easily have left the matter alone, and perhaps ultimately terminated the 2 employees. Instead, it chose to fashion a compromise in the interest of everyone. It did not act contrary to any term of the collective-bargaining agreement, but rather it sought to carry out the day-to-day operations of its business. The association did not discriminate against these employees in any manner, and it does not appear that its efforts in consummating the transfers were motivated by anything other than its desire to resolve each of these individual situations amicably and to the benefit of all concerned.

I find and conclude that under the circumstances of this case, the General Counsel has failed to establish that the association violated Section 8(a)(5) and (1), and 8(d) of the Act, and I shall therefore recommend that the complaint the dismissed. n13

n13 Given my resolution the of transfer issue, I find it unnecessary to reach the issues raised by the association that the Union waived or is estopped from asserting its claimed right to bargain over the Lopes transfer, or that the issue of a violation of the Act with respect to Johns is now moot inasmuch as he is no longer a probationary employee. Paragraph 7 of th complaint alleges that the association failed and refused to furnish the union with information necessary for and relevant to the performance of its function as the exclusive bargaining representative of unit employees. The union requested that the association furnish it with a copy of each and every "memorandum of understanding" or any other document memorializing extra-contractual agreements with bargaining unit personnel entered into since 1980. In view of my foregoing findings and conclusions, and more particularly my finding that the individual transfer arrangements were not extra-contractual agreements, I find that the failure of the association to furnish this information was not violative of the Act. As indicated earlier, the information has since been furnished.

Upon the foregoing findings of fact and initial conclusions, and upon the entire record, I herby make the following:

Conclusions of Law

1. That the association is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.

2. That the charging union is a labor organization within the meaning of Section 2(5) of the Act.

3. That the charging union is, and was at all times material herein, the exclusive collective-bargaining representative of the company's employees in the following appropriate unit:

All full-time and regular part-time professional employees employed by Respondent at its facility located at 715 West 10th Street, Topeka, Kansas, including the Director of Finance and Accounting and all full-time and regular part-time Uniserv Directors employed by Respondent and the Uniserv Districts as joint employers at their facilities located throughout the State of Kansas, excluding the Executive Director, Associate Executive Director, Assistant Executive Director, General Counsel, Staff Attorney, clerical employees, guards and supervisors as defined in the Act.

4. That the association, by directly negotiating terms of transfer with employees Charles Johns and Steve Lopes, and incorporating those terms in written memoranda of understanding, did not improperly circumvent the union, did not act contrary to the terms of the existing collective-bargaining agreement, and did not effectuate a mid-term modification of said agreement, and that thus the association did not violate Section 8(a)(5) and (1) of the Act.

5. That the association in this case has not otherwise violated the Act.

Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:

ORDER n14

n14 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.

IT IS ORDERED that the complaint herein be, and the same is hereby dismissed.

Dated, Washington, D.C. June 29, 1984

APPENDIX NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board An Agency of the United States Government

The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice.

WE WILL NOT unlawfully bypass the Kansas Staff Organization as the exclusive collective-bargaining representative of our unit employees by engaging in direct negotiations with individual unit employees regarding terms of transfer to other positions.

WE WILL NOT refuse to comply with the Union's request for relevant information necessary for its performance as bargaining representative of our unit employees.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL promptly comply with the Union's requests for relevant information necessary for its performance as bargaining representative of our unit employees.

KANSAS NATIONAL EDUCATION ASSOCIATION

(Employer)

Dated

(Representative) (Title)

This is an official notice and must not be defaced by anyone.

This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Suite 616, Two Gateway Center, Fourth at State, Kansas City, Kansas 66101, Telephone 913--236--3866.