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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 24, 2004 Decided March 16, 2004

No. 03–1155

VERIZON NEW YORK INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with

No. 03–1180

–————

On Petition for Review and Cross–Application

for Enforcement of an Order of the

National Labor Relations Board

–————

Willis J. Goldsmith argued the cause for petitioner. On

the briefs was Marshall B. Babson.

Meredith L. Jason, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the

brief were Arthur F. Rosenfeld, General Counsel, John H.

Ferguson, Associate General Counsel, Aileen A. Armstrong,

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
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Deputy Associate General Counsel, and Fred B. Jacob, Attorney.

Ellen Dichner was on the brief for amicus curiae Communications Workers of America, Local 1103, AFL-CIO in support of respondent.

Before: RANDOLPH, ROGERS, and TATEL, Circuit Judges.

Opnion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge: Section 8(d) of the National

Labor Relations Act defines collective bargaining as ‘‘the

performance of the mutual obligation of the employer and the

representative of the employees to meet at reasonable times

and confer in good faith with respect to wages, hours, and

other terms and conditions of employmentTTTT’’ 29 U.S.C.

§ 158(d). An employer’s refusal to fulfill its bargaining obligation violates § 8(a)(5) and (1) of the Act. 29 U.S.C.

§ 158(a)(5) & (1). The principal question in this case is

whether the National Labor Relations Board properly ruled

that Verizon New York Inc. violated § 8(a)(5) and (1) when it

refused to bargain with the union over elimination of the

company’s long-standing practice of allowing employees to

participate in blood drives during working hours with no loss

of pay.

Verizon provides telecommunications services throughout

the State of New York. The company and the Communications Workers of America, District One, are parties to statewide collective bargaining agreements covering installers,

repairmen, splicers, linemen, clerks, plant department, and

other installation and maintenance employees. Local unions

under the Communications Workers act autonomously within

their geographic territories. The union involved in this

case – Local 1103 – represented some 4,000 employees in

downstate New York where the blood drives had been conducted.

Verizon at one time supported blood drives throughout its

New York operations. During the 1980s and 1990s it discontinued this practice, except with respect to the area in which

Local 1103 operated. There the practice continued in much

the same way as it had for more than thirty years. The
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company, the union and Hudson Valley Blood Services, a

charitable organization, jointly established dates for the

drives. Union stewards then conducted half-hour meetings,

signing up volunteers and proposing specific times for their

blood donations. The union forwarded these appointments to

the company so that it could adjust work schedules and cover

employees who would be donating blood during working

hours.

Verizon and the union conducted eight blood drives annually, two each in the northern and southern regions, and four in

the central region, all during working hours. In the typical

blood drive, eight or nine union representatives helped check

in donors, served refreshments, and took care of other administrative responsibilities. Donors spent up to four hours

traveling to the site, giving blood, recovering and returning to

their jobs. Approximately 1,000 unit employees – 25 percent – participated; managerial employees also took part.

Employees received full pay and credit for their hours spent

in donating blood and in attending the pre-drive meetings.

In February 2001 Verizon decided – according to one

management official – that it would no longer permit employees to participate in the blood drives ‘‘on Company time.’’ In

the past, when technicians and other workers left their jobs

to participate in blood drives, the company experienced significant problems meeting customer requests for service, especially during outages. On March 6, 2001, the company told

the union of its decision. Three days later, a union steward

filed a grievance complaining that the company had ‘‘bargained in bad faith by changing [its] blood donation policy

without negotiating with the union.’’ The company denied

the grievance. On March 28, company and union representatives met to discuss this grievance and other grievances the

union had appealed to the second step. Management orally

denied the grievance, stating that the blood drive was not a

term or condition of employment. The next day, March 29,

Verizon sent a letter to the union’s president notifying him of

its change in policy. The letter stated that in the future

blood drives must ‘‘take place on our employees’ own time,’’

but that the company would make its ‘‘facilities available to
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you so you can hold the Blood Drives on our premises after

work or on weekends when our employees are off.’’ On April

8, the company formally denied the second step grievance in

writing.

The Board found that Verizon had violated § 8(a)(5) and

(1) of the Act by failing to give the union an opportunity to

bargain over its decision to eliminate the blood drives during paid worktime. The blood drive program was, the

Board ruled, a mandatory subject of bargaining under

§ 8(d) because it concerned ‘‘wages, hours, and other terms

and conditions of employment.’’ The Board also rejected

the company’s defense that the union had not timely requested bargaining over the change in policy and had thereby waived its bargaining rights. 339 N.L.R.B. No. 6 at 2

(May 16, 2003).

As to the latter, Verizon’s claim of waiver lacks any evidentiary basis. Three days after the company announced an end

to blood drives, the union filed a grievance charging the

company with refusing to bargain about this matter. At the

second step of the grievance process, the union again made a

demand for bargaining, this time orally. 339 N.L.R.B. No. 6

at 1; see Prime Service, Inc. v. NLRB, 266 F.3d 1233, 1238

(D.C. Cir. 2001) (‘‘The demand [for bargaining] may be in

writing or it may be oral.’’). Three weeks had intervened, but

that hardly constituted an undue delay on the union’s part.

No blood drives had been cancelled during this period; none

that had been scheduled before the company’s announcement

were imminent; and, as Verizon’s counsel admitted during

oral argument, the company suffered no prejudice in the

interim. Waiver of a right protected by the National Labor

Relations Act must be ‘‘clear and unmistakable.’’ Metro.

Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). With no

imminent consequences looming, the union had no reason to

act swifter than it did and, in the face of the pending

grievance requesting bargaining, the company had no reason

to suppose that the union had acquiesced in its change of

policy. This distinguishes the several Board and ALJ decisions Verizon cites for the proposition that delays shorter

than three weeks have resulted in findings that unions waived
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their right to bargain. In all but one of those cases, the

employer informed the union of a change in terms or conditions of employment that had to be implemented quickly. See

Diamond Walnut Growers, 312 N.L.R.B. 61, 71 (1993) (hiring

at the beginning of walnut harvest); Vandalia Air Freight,

Inc., 297 N.L.R.B. 1012, 1014 (1990) (takeover of company on

brink of bankruptcy); Cherokee Culvert Co., 266 N.L.R.B.

290, 294 (1983) (layoffs); Salem College, 261 N.L.R.B. 327,

337 (1982) (subcontracting); Hartman Luggage Co., 173

N.L.R.B. 1254, 1255–56 (1968) (layoffs). In the remaining

case, WPIX, Inc., 299 N.L.R.B. 525 (1990), dealing with the

employer’s increasing the mileage reimbursement for employees, the union never requested bargaining.

Verizon has only one other contention regarding waiver

that is worth discussing. It says that when it discontinued

blood drives in other areas of New York ‘‘the Union’’ did not

object and did not request bargaining. Brief for Petitioner at

38. There are three responses, each conclusive. First, the

‘‘union’’ here did not represent employees in other geographic

regions. Second, the record contains no evidence about what

responses the other local unions had to Verizon’s change of

policy in their regions. Third, a ‘‘union’s acquiescence in

previous unilateral changes does not operate as a waiver of its

right to bargain over such changes for all time,’’ OwensCorning Fiberglas Corp., 282 N.L.R.B. 609 (1987). See CibaGeigy Pharmaceuticals Div. v. NLRB, 722 F. 2d 1120, 1127

(3d Cir. 1983).

This brings us to Verizon’s argument that the change in its

blood drive policy was not a mandatory subject of bargaining

under § 8(d) – that discontinuing blood drives did not alter, in

the words of § 8(d), ‘‘wages, hours, and other terms and

conditions of employment.’’ There is no doubt that the policy

change affected Verizon’s employees, but this is not necessarily determinative. A company’s shutting down part of its

business to cut economic losses obviously affects its employees, yet the Supreme Court held that this was not a mandatory subject of bargaining. First Nat’l Maintenance Corp. v.

NLRB, 452 U.S. 666, 686 (1981). To fall within that category

the matter must be ‘‘plainly germane to the ‘working environ-
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ment’ ’’ and ‘‘not among those ‘managerial decisions, which lie

at the core of entrepreneurial control.’ ’’ Ford Motor Co. v.

NLRB, 441 U.S. 488, 498 (1979) (quoting Justice Stewart,

concurring, in Fibreboard Paper Products Corp. v. NLRB,

379 U.S. 203, 222, 223 (1964)).

Verizon’s argument is that its decision to support, or not to

support, a charity is a core entrepreneurial concern; that the

blood drives benefitted Hudson Valley not Verizon’s employees; and that ending the blood drives did not ‘‘vitally affect[ ]’’ the employees’ wages, hours or terms and conditions

of employment (quoting Allied Chemical & Alkali Workers v.

Pittsburgh Plate Glass Co., 404 U.S. 157, 179 (1971)). The

Board did not disagree with Verizon’s first point. Management certainly has the prerogative to chose whether to support charities, and which ones. But how management goes

about this may be another matter. A company could not,

without bargaining with the union, order employees to work

for a charity during the workday without pay. Here, Verizon

did not require members of Local 1103 to give blood, but the

voluntary aspect of the program does not have the significance the company attributes to it. To stress, as Verizon

does, that an employee’s decision to participate or not to

participate had no impact on his wages is to miss the point of

the Board’s decision. The employee’s decision had no such

impact because Verizon permitted employees to receive

wages for time not worked – up to four hours per blood drive

twice a year – and to have these non-working hours counted

as worktime. On the days of the blood drives, donoremployees thus received eight hours of pay for four hours of

work. The amount of pay received for the number of hours

worked is surely ‘‘germane’’ to an individual’s employment.

Suppose a company had, for thirty years, allowed employees

to take four hours off with pay twice a year. No one can

doubt that time off with pay is a mandatory subject of

bargaining. It is no less so because some employees might

decide to continue working rather than leave their jobs.

Employees may be entitled to paid vacations, but they are not

always required to take them.
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The Board has long designated the question whether ‘‘employees will be paid while they engage in nonwork activities

TTT a mandatory subject of bargaining.’’ 339 N.L.R.B. No. 6

at 2. Thus, ‘‘wages, hours and other terms and conditions of

employment’’ include, so the Board has held, discontinuance

of an extra 15 minutes paid time during Thanksgiving lunch

break, Rangaire Acquisition Corp., 309 N.L.R.B. 1043 (1992),

enforced, 9 F.3d 104 (5th Cir. 1993); the ending of paid time

off for jury duty, NLRB v. Merrill & Ring, Inc., 731 F.2d 605

(9th Cir. 1984); adjustments in the amount of paid lunch time,

Van Dorn Plastic Mach. Co. v. NLRB, 881 F. 2d 302 (6th Cir.

1989); the elimination of paid time on payday to cash checks,

AT&T Corp., 325 N.L.R.B. 150, 153 (1997); and the cancellation of a 5–minute paid washup period for maintenance workers, Appalachian Power Co., 250 N.L.R.B. 228 (1980), enforced, 660 F.2d 488 (4th Cir. 1981). The Board’s judgment

that ending the blood drive program is a mandatory subject

of bargaining because it concerns wages and hours fits comfortably in this line of cases.

The petition for judicial review is denied and the Board’s

cross-petition for enforcement is granted.

So ordered.