American Smelting and Refining Co.

National Labor Relations Board - Board Decisions

Aug 27, 1971

192 N.L.R.B. 1217 (N.L.R.B. 1971)

AMERICAN SMELTING AND REFINING
American Smelting and Refining Company and Inter-
national Union of District 50, Allied and Technical
Workers of - United States - Canada. Cases
28-CA-2085 and 28-CA-2245
August 27, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On May 17, 1971, Trial Examiner Martin S.
Bennett issued , his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices , alleged in the
complaint and recommending dismissal of the
complaint in its entirety, as set forth in the attached
Trial Examiner 's Decision . Thereafter , the General
Counsel filed exceptions to the Trial Examiner's
Decision together with a supporting brief. Respon-
dent then filed-an answering brief in support of the
Trial Examiner 's Decision.
Pursuant 'to the provisions of Section 3(b) of. the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its-
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the, hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The- Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this proceeding, and hereby
adopts,r the findings , conclusions, and recommenda-
tions of the Trial.Examiner.z
'ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts, as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the complaint herein be, and it hereby is,
dismissed in its entirety.
I Member Brown concurs in result.
2 In adopting the findings, conclusions , and recommendations of the
Trial Examiner, we are in full accord with his legal conclusion that a union
may, without - violating the Act, agree that the contractual grievance
machinery may be invoked by an individual only if he affixes his signature
to a grievance.we also adopt his factual finding that the Union did so agree
here.' It' should be noted, however , that the Trial Examiner did not pass
upon the issue as to whether the Union had waived its right to grieve, in its
own right, regarding matters intimately related to its role as bargaining
agent., We do - not understand that there is any claim that the instant
grievances were of such a nature.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
1217
MARTIN S. BENNETT , Trial Examiner : This matter was
heard at Phoenix, Arizona, on March 4, 1971. The
amended complaint, issued February - 8, 1971 , andbased
upon charges filed April 20 and December 30, 1970, by
International Union of District 50, Allied, and Technical
Workers of United States . - Canada alleges that . Respon--
dent American Smelting and Refining Company had
engaged in , unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act. Briefs have been
submitted by the General Counsel . and Respondent The
General Counsel having moved that certain errors in the
transcript be corrected, the motion is hereby granted.
Upon the entire record in the case , and ,from my
observation of the witnesses, I 'make the following:,
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
American Smelting and Refining Company is a New
Jersey corporation which operates a copper mine crusher
and concentrator at Silver Bell, Arizona . It annually mines,
sells, and' ships products valued in excess of $50,000
directly to points outside the State of Arizona and also,
purchases and receives equipment, supplies, and materials
valued in excess of that sum directly from points outside
the State of Arizona . 1 find that the operations of
Respondent affect commerce within the meaning of
Section 2(6) and (7) of the Act.
IL THE LABOR ORGANIZATIONS INVOLVED
International Union of District 50, Allied and Technical
Workers of United States Canada and, its Local No.
13886, herein the Union, are labor organizations within the
meaning of Section 2(5) of the Act.'
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction, The Issue -
The Union and Respondent have enjoyed a;collective-
bargaining relationship since 1954 covering a production
and maintenance unit. The most recent of these contracts
was agreed to in May and executed in July of 1968. All of
these six or seven contracts have contained a grievance
procedure-which dictates that in the firststep an employee
or, group of employees shall present a grievance, to the
foreman within 48 hours. Failing satisfactory adjustment
within 24 hours, section 9(C) of the , contract further states
1 Although the charges were filed by the parent organization , the thrust
of the complaint is a refusal to bargain with Local No. 13886 . They are
treated as one and the same herein.
1218 DECISIONS OF NATIONAL LABOR' RELATIONS- BOARD
that the grievance "shall be reduced to writing and signed
by the employee or group involved ...."
The instant case stems ' from two-, grievances which the
employees involved did not sign at the second step and
which were signed`,,by union officials. There'.is no
contention .that the failure or refusal- to sign stemmed from
any improper or-unlawful pressure from Respondent. The
position of^the.Gerieraf Counsels in essence,' that as,-a
matter^ of rght-'the Union is entitled to sign these'
grievances'iii-'lieu,,of the affected individuals, despite the
express language of the'-contract, and that'Respondent's
refusal to-'entertain"their. was violative of Section 8(a)(5)'
and (1) of the Act 2
It is''ia "ord'er to''note,' as'pointed out by the General
Counsel; that this contract lan'guage'was'pr'eviously,before'
me °in '- Case 2"A-1704,"a a decision 'released April ' 22,
19 69. i` `'that case Respondent entertained"a grievance" at
the 4econd stage ^ in'° august of 1968 and -treated it' on'rthe'
merits, although it was not signed by the employee. I found
that Respondent had "thereby waived' the contract lan-
guage. That decision was complied with by Respondent
and the grievance'proces'sed.*"
There is dictum in-the prior decision to the effect that the
language ofection "9( C) suppor`ts the position taken by
Respondent Herein; namely, "that rt is living up' to the
contract. 'Be Lthat`as" it' may, the .issue is not 'deemed res`
judicalq it' has been considered de riovoan d it is so Heated
here?.:. ILI,
B. Sequence of Events
Prior to May 15, 1968, , Respondent gaccepted and
processed grievances not signed by the affected employee
or employees-Since, that ,date,] but for the one grievance in
the earlier case where I determined that Respondent had
waived this" clause,^_Respondent has without -exception
declined to honor and tprocess a;.grievance not' signed by
theemployeeor groupiinvolved.,~ > - ` ,>%
As for the instant case, Shop Steward, Fred Hubert, in his
official role, timely presented a second step grievance on
April 6,-1970 to Master 'Mechanic-. A. , T. Knight, the
appropriate management representative, concerning work-
ing conditions 4ti the"truck', shop. Knight refused to
entertain it because it was not signed by the grievant but
rathe'by Hubert:' The Union next contacted Superintend—
ent-of'Operatioris' D. R. Jamieson, who' comes into play at'
the third, step; he "refused-to' entertain it for the-same
reason.
On November "18; 1970,--another- 'grievance concerning
the oper`a'tion 'of'shovels' and signed "by Shop 'Stewaid''G. ;
W. Hare 'in --his ; official, capacity was - 'submitted" to
Jamieson;"it too was+°rejected,for the same mason. Except1 1
fofttne''abor'tive filing'of'these-to' `grievances;'the Union
has not requested Respondent to bargain with it on the
subjects involved therein.
As"noted, Respondent has not refused.to process any
grievances' which aresigned-as'prescribed-by they contract.
It is undisputed that Respondent, prior to ' May 1`5, `1y968,
did not enforce this language of the contract and honored
many ggrievances , signed , by . union..representatives at -the
second stage. ,Upon agreement on the terms on the current
contract on May 15,J968 , Respondent .-has uniformly
followed a policy of livingup,to, the contract, with the one
exception in the earlier case discussed above . It may be
noted that the earlier grievance , filed ,on August 22, was the
first filed since Respondent adopted its new policy,
following agreement on contract -terms on ,May 15, 1968.3
C. Analysis and Conclusions
The General Counsel has argued that there are many
possible- breaches of a,contract by an employer that may
concern the Union -and not the specific employee directly.
But'this poses an issue other than the present'one. So far as
this record indicates, these' two, grievances did,concernan'
employee or group of employees
The General Counsel;alsorargues that absent evidence of
a`clear and unmistakable ,waiver by, the Union of its right,
to initiate grievances,; Respondent, may, not insist, upon
signatures- only, by aggrieved employees. But -the, Union
flatly and unequivocally, ;contracted that 'the, aggrieved
employees must sign and 'this, in my view, constitutes a
waiver of another procedure. `And (.he Union is not
precluded from representing the 'aggrieved' employee"`,or
employees in the grievance ' proc%dure. 'Hence, I ' do not
deem Bethlehem Steel Co., 1'36 -NI:RB 1500, cited by- the'
General-'"counsel, to be apposite: Stated otherwise, "no
inferences- of waiver,are being" drawn' from silence-but
rather from the explicit contract language of ,many years'
duration.
The General Counsel, stresses that Respondent for-many
years has treated grievances, signed by the Union at the
second stage. While. this is true,.,thefactis that since the
last agreement, in'May of 1968, Respondent^has uniformly,
with" the one' exception' noted,` honored only grievances
sigii4by the affected personnel: And it is noteworthy that'
the = instant case "stems "n"ot from `charges ' fled by the
personnel involved, but rather -from, two 'by the Union
which expressly contracted away the right for grievances at
this second stage to be processed absent signatures of the
affected employees.
Insofar as a grievance=affects designated personnel, I,see
nothing detractive of public ,policy m requiring aieved
employees to so state, under their names, where there is' no'
evidence that , they' are coerced' into ' not signing the
grievance. Likewise, there is nothing' to prevent the
charging patty, ' buttressed' by Section 7rights, to attempt-to
obtain contractual language elimiriating'his coma- itment
of some 17 years. There is no perpetual matrimony
enbracing..the,language of the`„ current, contract. Nor does
it follow-that,'having waived the .contract language, under
then` earlier" contracts, ` Respondent pis precluded i from
uniformly adhering to the language of the current contract.
In essence, 'I do ;not ,deem the past- practice prior to.May'
1968 to be controlling herein and I find, on a preponder
ance of the evidence, that the memorandum ofsettlementt
of May 15, 1968, expres'sly' waived'any-right'ofthe Union-
to file grievances in its own name' rather than 'by' the
s There is no issue as to the Union's representation of the unit, grievances not signed by the individual or the individuals involved, charges
In February of 1970, Respondent refused to process two other were filed, and these were later withdrawn by the Union.
AMERICAN SMELTING AND REFINING
aggrieved personnel at the second stage of grievance
procedure.4
In reality, since the signing of the last contract,
Respondent has applied the contract language uniformly
with one narrow exception . I fail to discern how this
constitutes a waiver by it of the requirement on a general
basis, particularly where the prior waivers related to other
contracts. And I do not believe that compliance by
Respondent with the adverse decision in the previous case
constitutes a waiver of its position . Here, the last contract
in 1968 was changed in a number of respects other than
this portion of the grievance procedure , this all indicating
that the new contract was the result of the give and take of
collective bargaining . And the language of Section 9(C) is
most unambiguous . I find, in view of all the foregoing
considerations, that the evidence preponderates that
Respondent has not engaged in conduct violative of
Section 8(a)(5) and (1) of the Act.
4 I do not pass upon grievances which are by their very nature-
indigenous to the Union in its role as bargaining representative, as
contrasted with those affecting an employee or group of employees directly.
For example, as urged by the General Counsel , one may distinguish a case
CONCLUSIONS OF LAW
1219
1. American Smelting and Refining Company is an
employer whose operations affect commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. International Union of District 50, Allied and
Technical Workers of United States - Canada and its Local
No. 13886 are labor organizations within the meaning of
Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.
where Respondent breaches the contract by refusing to furnish a bulletin
board. And, as indicated , I would view the matter differently were a
timorous employee coerced into not proceeding with the grievance.