B. N. Beard Co.

National Labor Relations Board - Board Decisions

Aug 8, 1977

231 N.L.R.B. 191 (N.L.R.B. 1977)

B. N. BEARD COMPANY
B. N. Beard Company and International Union of
Operating Engineers, Local No. 478, AFL-CIO.
Case I -CA- 11491
August 8, 1977
DECISION AND ORDER
On April 21, 1976, the Regional Director for
Region I of the National Labor Relations Board
issued a complaint and notice of hearing in the above
proceeding alleging that, by failing or refusing to
implement its February 17, 1976, agreement with the
Union to return discharged employee Lawrence
Poole to its employ as of February 23, 1976,
Respondent has engaged in, and is engaging in,
certain unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (5) and
Section 2(6) and (7) of the National Labor Relations
Act, as amended.
Thereafter, on July 19, 1976, counsel for the
General Counsel filed with the Board in Washington,
D.C., a Motion for Summary Judgment, with
exhibits attached, based on Respondent's failure to
file a timely answer to the complaint as required by
the Board's Rules and Regulations. On July 27, 1976,
the Board issued an order transferring proceeding to
the Board and Notice to Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted. On September 13, 1976,
Respondent filed a motion for permission to file
answer, attaching thereto its answer, and an Objec-
tion to Motion for Summary Judgment alleging that
it had been without counsel and that it had good
defenses to the complaint.
The Board, having duly considered the matter, is of
the opinion that the issues raised by the pleadings
and the submissions of the parties would be best
considered on a complete record made at the hearing
before an Administrative Law Judge.
If the allegations of the complaint be true, what we
have before us is an agreement between Respondent
and the Union to resolve an existing grievance by
reemploying a discharged employee. If the settlement
of this grievance were said to have been arrived at
through the process of collective bargaining and if, as
alleged, Respondent refused to implement this
agreement, this action might be viewed as a failure to
bargain under the Act to the same extent and in the
same manner as a refusal to process the grievance in
the first place or a failure to implement the terms of
Cf. B. C. Hat'k Chevrolet, Inc., 226 NL RB 527 (1976): Pan-Abode. Inc.,
222 NLRB 313 (1976).
2 N. R. B. v. C. & C. PlvwoodCorp.. 385 U.S. 421, 428 (1967).
:' Sec. IO(a) of the Act provides: 'The Board is empowered . .. to
prevent an' person from engaging in any unfair labor practice . affecting
231 NLRB No. 41
any collective-bargaining agreement reached during
negotiations.'
This does not appear to be an instance where the
Board would construe "a labor agreement to deter-
mine the extent of the contractual rights which were
given the union by the employer." 2 For it is possible
that the Board need not construe the terms of the
agreement in order to rule upon the complaint but,
instead, would be insuring that the terms of the
agreement are carried out.
Although our dissenting colleagues acknowledge
the well-established rule that conduct which is
proscribed under the Act cannot be ruled out as an
unfair labor practice merely because the same
conduct also constitutes a breach of contract, they
would dismiss the complaint on the ground that the
agreement at issue, if anything, was merely an
agreement in which the parties had only contractual
rights but no statutory interests. They argue that,
because the Board lacks general jurisdiction over
breaches of collective-bargaining agreements, this
agreement should be enforced by the courts and not
the Board. By their exercise in semantics, our
colleagues have evaded the Board's statutory obliga-
tion to rule upon alleged unfair labor practices and in
so doing they have ignored basic principles of
collective bargaining which the Act is designed to
protect.3
If the issues here are found to involve statutory
rights, it is the Board's statutory obligation to uphold
them. It is therefore irrelevant that there may be
remedies which are available through the "usual
process of law," such as damages. The task before us
would be a vindication of statutory bargaining rights
which the Board, as Congress envisioned, is far better
able to accomplish than the courts; bargaining
representatives aggrieved by an employer's refusal to
bargain will face "inordinate delays in obtaining
vindication of their statutory rights" if first they are
required to submit to time-consuming civil litiga-
tion.4
In view of the foregoing, we shall remand the case
to the Regional Director for further appropriate
proceedings so that the issues raised by the complaint
can be considered on a complete record made at a
hearing before an Administrative Law Judge. In this
regard, we shall also order that Respondent's belated
answer be received, since Respondent was previously
without counsel to advise it of its obligations in these
proceedings, and such acceptance of Respondent's
answer does not prejudice any party.
commerce. This power shall not be affected by any other means of
adjustment or prevention that has been or may he established by agreement.
law, or otherwise .... "
N. L.R.B. v. C & C Plyvwood, supra at 429.
191
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
It is hereby ordered that the General Counsel's
Motion for Summary Judgment be, and it hereby is,
denied.
IT IS FURTHER ORDERED that Respondent's motion
for permission to file its answer be, and it hereby is,
granted.
IT IS ALSO FURTHER ORDERED that the instant Case
I-CA-11491 be, and it hereby is, remanded to the
Regional Director for further appropriate proceed-
ings herein.
MEMBERS PENELLO AND WALTHER, dissenting:
The Board has long recognized that a breach of
contract is not ipso facto an unfair labor practice. 5
However, where the breach of a collective-bargaining
contract has been found to substantially infringe
upon the statutory rights of the bargaining represen-
tative or amounts to a substantial renunciation of
basic collective-bargaining principles, the Board has
found a violation of Section 8(a)(5). 6
In our judgment, the record herein does not
establish conduct sufficient to justify an 8(a)(5)
violation. The basis for the complaint herein lies in
Respondent's failure to honor a commitment to
5 C & S Industries, Inc., 158 NLRB 454, 458 (1966); National Dairy
Products Corporation. Detroit Creamerv Division, 126 NLRB 434 (1960);
United Telephone Company of the West and United Utilities, Incorporated, 112
NLRB 779 (1955).
6 Papercraft Corporation, 212 NLRB 240, 241, at fn. 3 (1974): Nedco
Construction Corp., 206 NLRB 150 (1973); C & C Plywood Corporation, 148
NLRB 414, enforcement denied 351 F.2d 224, revd. 385 U.S. 421 (1969).
reemploy an individual who has been discharged. At
no point has there been any claim that the employee
was discharged for engaging in conduct protected by
our Act. In the absence of such a claim, we fail to see
how Respondent's failure to honor its commitment
to reemploy rises to the level of a substantial
infringement upon the statutory rights of the bar-
gaining representative, or amounts to a substantial
renunciation of basic collective-bargaining princi-
ples.
In failing to assume the role of policing each and
every agreement made between an employer and a
bargaining representative, we are merely following
the admonition of Congress that "the Board should
not have general jurisdiction over all alleged viola-
tions of collective bargaining agreements and that
such matters should be placed within the jurisdiction
of the courts." 7 In our judgment, enforcement of the
"agreement" herein is best left to the usual process of
law and not to the Board. In these circumstances, we
would find that the complaint does not allege facts
sufficient to set forth a cause of action under Section
8(a)(5) and we would, accordingly, deny the Motion
for Summary Judgment and dismiss the complaint.8
7 N.L.R.B. v. Cdl C Plywoo4, supra at 427 (1967).
a Under our view, it would be unnecessary to pass on Respondent's
motion for permission to file answer or consider its Objection to Motion for
Summary Judgment.
192