Brunswick Corp.

National Labor Relations Board - Board Decisions

May 8, 1964

146 N.L.R.B. 1474 (N.L.R.B. 1964)

1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Discriminating against any employee because of membership in, or activity
on behalf of, any labor organization.
(c) Refusing to bargain with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the representative of Respondent's em-
ployees in the following unit:
All production and maintenance employees employed by the Respondent at its
place of business in Cincinnati, Ohio, including truckdrivers, but excluding the
weigher, the cashier, part-time employees, watchman, office clerical employees, and.
all guards, professional employees, and supervisors as defined in the Act.
2. Take the following affirmative action necessary to effectuate the policies of the-
Act:
(a) Upon request, bargain collectively with the above-named labor organization,
as the statutory bargaining representative of the employees in the above-described'
unit.
(b) Offer to reinstate John Greer to his former position as a truckdriver engaged'
primarily in over-the-road trucking, and make him whole in the manner described'
in the portion of the Trial Examiner's Decision entitled "The Remedy" for any loss-
of earnings suffered by reason of the discrimination against him.
(c) Notify John Greer if he is serving in the Armed Forces of the United States
of his right to full reinstatement upon application in accordance with the Selective-
Service Act and the Universal Military Training and Service Act of 1948,'as amended,.
after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the Board or its agents, for-
examination and copying, all payroll records, social security payment records, time--
cards, personnel records and reports, and all other records necessary to analyze the-,
amount of backpay due under the terms hereof.
(e) Post at its yard at Cincinnati, Ohio, copies of the notice attached hereto and
marked "Appendix." 9 Copies of such notice, to be furnished by the Regional Director-
for the Ninth Region, shall, after being duly signed by an authorized representative
of the Respondent, be posted immediately upon receipt thereof, and be maintained-
by it for a period of 60 consecutive days thereafter in conspicuous places, including-
all places where notices to employees are' customarily posted. Reasonable steps,
shall be taken by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(f): Notify the Regional Director for the Ninth Region, in writing, within 20 days
from the date of the receipt of this Decision, what steps the Respondent has taken to
comply herewith.to
9In the event that this Recommended Order is adopted by the Board ; the words "as-
ordered by" shall be substituted for "as recommended by a Trial Examiner of" in the
notice. In the further event that the Board's Order be enforced by a decree of a United
States Court of Appeals, the words " a Decree of the United States Court of Appeals;.
Enforcing an Order of" shall be inserted immediately following "as ordered by."
10 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director,. in writing, within 10 days from.
the date of this Order, what steps the Respondent has taken to comply herewith."
Brunswick Corporation and Local 824, United Brotherhood ' of"
Carpenters and Joiners of America , .AFL-CIO. Case No..
7-CA-4140. May 8, 1964
DECISION AND ORDER
On October 21, 1963, Trial Examiner Phil W . Saunders issued his-
Decision in.the above -entitled proceeding , finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and, take certain af
146 NLRB No. 170.
BRUNSWICK CORPORATION 1475
firmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Ex-
aminer's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
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 Ex-
aminer's Decision, the exceptions and brief, and the entire record in
this case, and finds merit in the exceptions of the Respondent. Ac-
cordingly, the Board adopts the findings of the Trial Examiner only
to the extent consistent herewith.
The complaint alleges that since February 1963 and on various dates
in-March and April the Respondent has "refused to meet with Volney
Swift for the purpose of discussing grievances and other terms and
conditions of employment," even though Swift was at all times "the
only duly designated agent of the Union for such purposes." i The
answer, denies this allegation.
The basic facts as disclosed by the record are as follows. On Febru-
ary 16, 1963, Volney Swift, after a 6-month suspension, was reinstated
by Local 824 as its chief steward. On February 18, the Union for-
mally notified the Respondent of his reappointment. On February 28,
the Respondent wrote to Meyer, the president of Local 824, that this
appointment "does not accord with the provisions of the Agreement be-
tween the parties." The Respondent also orally informed Meyer that
it refused to deal with Swift as chief shop steward because Swift was
no longer an employee of the Company, and suggested that someone
else be appointed in his place. Thereafter, the Respondent refused
to meet with Swift as chief shop steward when Swift attempted to
process employee grievances against the Respondent.
The Trial Examiner found that a waiver of the employees' right to
be represented in grievance proceedings by -'onemployees is in deroga-
tion of the employees' statutory right anci that such a waiver must be
expressed in clear and unmistakable language; that there is no evi-
dence that the Union has expressly waived this right; and that, to the
contrary, paragraph 7 of the agreement, which expressly reserved such
right to the employees, negated any such waiver. Accordingly, he
i As the record , contrary to the Trial Examiner , does not show that the Respondent re-
fused to meet and negotiate with Volney Swift as a union representative with respect to
matters other than grievances , the allegation of the complaint that the Respondent refused
to deal with Swift as such representative with respect to terms and conditions of employ-
ment other than grievances is dismissed as not supported by evidence.
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concluded that by failing to recognize and deal with Swift as chief
shop steward, the Respondent refused to bargain with the Union
within the meaning of Section 8 (a) (5) and (1) of the Act.
Grievance procedure under the applicable agreement: The. agree-
ment which was in force at the times material herein set out a griev-
ance procedure for the prompt settlement of complaints. The agree-
ment provided for participation at various steps of the grievance
procedure by various union representatives. At step 1 the grievance
was to be handled by the departmental steward and the employee's im-
mediate supervisor. If the departmental steward'was unsure whether
to process the grievance to the next step or accept the Company's
answer to the grievance, he was to be given an opportunity to consult
the chief shop steward. If the grievance was not settled at step 1, it
was to be discussed and investigated at step 2 by the division superin-
tendent of the Company and the chief shop steward. At step 3, ac-
cording to the agreement, the personnel manager of the Company was
to discuss the grievance with the "Union Bargaining Committee,
which shall consist of not more than four (4) members of the bargain-
ing unit," and "if the Union so requests, with their International
Representative." (Par. 32-a.) At step 4, which. followed a party's
written demand for arbitration, the Union again was to be repre-
sented by the union bargaining committee.
The grievance procedure did not specify the composition of the
Union's bargaining committee referred to at steps 3 and 4 other than
that it was to consist of members of the bargaining unit. From a
reading of the applicable provision it is not clear whether or not chief
shop steward was a member of that committee, or whether or not he
was required to be an employee of the Respondent.
It is well established that when a.collective-bargaining agreement
is not clear as to the meaning of the terms, a resort to,extrinsic evi-
dence to show the intent of the parties is permitted as an exception to
the parol evidence rule.2 We believe that the contractual language in
issue here contains such ambiguities as to permit resort to such ex-
trinsic evidence.
Testimony as to established practice: In the instant case, the un-
denied testimony of the officers of Local 824 is to the effect that under
the established practice the chief shop steward by virtue of his position
as such was a permanent member of the union bargaining committee
and the only union representative who participated at all steps of the
2 The Board has held that in order to find a "clear and unequivocal waiver" by the
union of a statutory right of employees, it is not necessary that the contract itself contain
such language. A finding of waiver may be made solely on the basis of oral evidence
concerning precontract negotiations. Gulf Atlantic Warehouse Co., 129 NLRB 42. See
also The Berkline Corporation, 123 NLRB 685 ; Shell Oil Company, 93 NLRB 161.
BRUNSWICK CORPORATION: 1477
grievance procedure? The same testimony further establishes that it
has been an invariable practice for at least 6 years to elect the chief
shop steward for Brunswick from the Company's employees.4
Preconntract negotiations: That it was the intention-of the parties
to limit the participation in the grievance procedure to union repre-
sentatives who were employed by..the Company appears also from the
precontract negotiations which culminated in the agreement. At that
time, the record discloses, the negotiators both for the Union and for
the Company expressed their concern over the possibility that under
the then existing grievance procedure a president of Local 824 if he
was not employed by the Company could nevertheless participate in
the grievance proceedings involving the employees of the Company s
The union negotiators did not want an "outsider" unfamiliar with the
agreement and their problems coming into the plant and handling
their grievances with the Company. Accordingly, the parties agreed
to redraft the grievance procedure with that in mind. At the Union's
request, the Company prepared three drafts of the proposed revision,
the last of which was unanimously adopted by the union negotiators
and, with a minor change, incorporated into. the agreements The new
Vice president of the Union , Howard Smith , testified that the chief shop steward is
the only union official who participates in all four steps of the grievance procedure. The
president of Local 824, Herbert Meyer, testified that the president of the Local and its
chief steward have "traditionally" been members of'the union bargaining committee as
defined at step 3 of the grievance procedure , and that . during the precontract negotiations
of the last agreement it was their intent and understanding that the chief shop steward
shall be a 'member of that committee . Finally, Swift himself testified that before his
suspension as chief shop steward , he participated in step 3 grievance meeting as one' of
the members of the union bargaining committee by virtue of his position as chief shop
steward. In his prehearing affidavit dated.March 26, 1963, Swift stated also: "President
and Chief Shop Steward [ are] automatically on the bargaining committee . . . . As Chief
Shop Steward I was Chairman of the bargaining committee. This Committee negotiates
contracts and also settles grievance at the Third Step."
4 President Meyer testified that various stewards , including the chief shop steward, have
been traditionally employees of Brunswick, available to participate in investigating and
processing of grievances at all times during working hours and , In all departments of the
Company , including the departments ,. engageid in-.work. for ., defense.• .. Recording Secretary
Johnson , an officer of Local 824 since 1957 , testifled '-that ' he-nevere knew of --a: chtWShop
steward who was not an employee of the Respondent. In his prehearing affidavit Swift
likewise stated that he did not know of any chief shop steward who was not an employee
of the Company.
5 At the time of the precontract negotiations Local 824 functioned as an amalgamated
local , representing the employees of Brunswick Corporation as well as the employees of
two other companies under separate contracts with each of the three companies. Under
the bylaws then in force the combined membership of Local 824 elected a single slate of
officers including the president , with authority , extending over the employees of all three
companies . No such provision was made for a chief shop steward . Brunswick , as well as
the other two companies represented by Local 824, always had its own chief steward.
9 This finding is based upon the undenled testimony of the Respondent 's labor relations
manager , Baer , who participated in the precontract negotiations . It was corroborated by
President Meyer , who was one of the union negotiators . Meyer testified that the provi-
sion in the old grievance procedure providing for the president 's participation was re-
moved because of the Union 's concern for outside interference , that is, interference from
someone outside of the Company 's employees.
Swift , who as the chief shop steward was one of the negotiators for the Union , shared
this concern . He did not want an outsider unfamiliar with their problems and their
agreement coming into the plant to handle grievances and other matters In which he had
no direct interest . At that time Swift was still an employee of the Respondent.
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provision, paragraph 32-a, required that the members of the union bar-
gaining committee at step 3 be members of the bargaining unit. This
was designed to eliminate the possibility that a nonemployee president
or other nonemployee participant in grievance procedures involving
the. Company 's employees ' might serve as a member of the union bar-
gaining committee . President Meyer, who was one of the - negotiators
for the Union , also testified that it was the understanding of the nego,
tiators that the chief shop steward would be one of the four members
of the union bargaining committee referred - to in paragraph 32-a.
This testimony stands undenied.
Paragraph 7 of the agreement : Nor is paragraph 7 of the agree-
ment, upon which the Trial Examiner places much reliance , irrecon-
.cilable.with the foregoing interpretation of the parties' intent .: Para-
graph 7 1 provides for admittance , upon a prior request, of a union
representative not employed by the Company "for the purpose of
`handling grievances and participating in. meetings scheduled in accord-
ance with the grievance procedure of this Agreement ." The Trial
'Examiner finds this provision to be . "an express reservation of the
right" to have a nonemployee to represent the Union in the grievance
.procedure.. We disagree . Paragraph 7 must be read not as if it stood
alone, but-in conjunction with paragraph 32-a, discussed above, and
also article IV, the specific article dealing with "Grievance Proce-
dure." That article contains no general provision , express or implied,
that the Union has the rightto be represented by' a nonemployee except
ill one respect : it allows an International . representative, " if the Union
so requests ,": to participate in. the . discussion of a grievance between
the Company and the union bargaining committee at step 3 ' of the
grievance procedure . When . paragraph 7 is read together with para-
:'graph 32-a and article IV especially in the light of the negotiating
-histoly . set out above , we are- satisfied that the provision for admission
of union ' representatives . to the plant was intended to, do no . more, in
the case of a nonemployee representative ,- than to assure the right of
access of an International representative . should the ;Union elect, as
:provided for in the agreement, to request , his participation-atstep 3
of the grievance procedure..
Concllusion$ :Under the Act a ' union as the duly designated repre-
sentative of employees in the bargaining unit has a right to select
persons, whether they. be employees or nonemployees, to negotiate with
the employer as to grievances. An employer therefore may not, with-
7 Paragraph 7 of the agreement reads in full as follows:
Article I, Recognition , Paragraph 7.- A Union representative not employed by the
Company, ' or who is scheduled on''a different work shift shall, upon a prior request,
be admitted to the Company premises during working hours for the , purpose of
handling grievances and participating in meetings scheduled in accordance with 'the
Grievance Procedure of this Agreement . During such visits, the Union representative
may be accompanied by a representative ' of the Company.
BRUNSWICK CORPORATION 1479
out violating the Act, insist that the union surrender this right as a
condition of entering into a collective-bargaining agreement. While
a union may not be compelled to agree to give up the right to be repre-
sented by any class of persons it desires, it may waive this right volun-
tarily pursuant to genuine collective bargaining.8 In the instant
case the matter of the Union's representation in the grievance pro-
cedure was discussed in the precontract negotiations which culminated
in the agreement. The parties then agreed to revise, and did revise,
the grievance procedure in such a manner as to bar participation in the
adjustment of grievances by any union representative who was not
employed by the Company. The new revised provision, now paragraph
32-a, requires that the union bargaining committee, which participates
in the discussion of grievances at steps 3 and 4, be composed of "Mem-
bers in the bargaining unit." While the grievance procedure of the
agreement does not specifically define the composition of this com-
mittee, the undenied testimony of the union officers, as well as the in-
variable practice, reveals that the chief shop steward by virtue of his
position is an ex officio member of the union bargaining committee
referred to in paragraph 32-a, and that he is the only official who par-
ticipates at all steps of the grievance procedure. It follows, therefore,
that the requirement imposed in paragraph 32-a that members of the
union bargaining committee be employees of the Company applies also
to the chief shop steward. As the Union has voluntarily waived its
right to be represented in the adjustment of grievances by a representa-
tive, who is not a member of the bargaining unit, we find that the Re-
spondent's refusal to discuss grievances with Volney Swift, who was
not a member of the bargaining unit, was not violative of the Act e'
[The Board dismissed the complaint.]
s Shell Oil Company, 93 NLRB 161 , where the Board found that a union can waive a
statutory right "through genuine collective bargaining , if it so chooses ." There, the con-
tract required that the grievance was to be handled by "the workmen 's committee of
member employees of which not more than five will meet with management for the dis-
cussion of the complaints ." Relying on this provision the respondent objected to the
presence at grievance meetings of certain union members on the ground that they were
not employees . The Board found that the union was bound by this clause and dismissed
the complaint.
8 On February 11, 1964 , the Respondent moved to dismiss the complaint on the ground
that the Charging Party and the Respondent executed a new collective-bargaining agree-
ment in which they agreed that all local representatives of the Charging Party "shall be
on the active or laid off roster of the Company as a condition to their participating in the
Grievance and/or Arbitration procedures of this Agreement ." In view of our disposition
of the case on the merits, we are not passing on the motion.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The unfair labor practice charges were filed on March 15 and April 23, 1963, and
the complaint was issued on April 25 , 1963.1
1 All dates are 1963 unless specifically stated otherwise.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. This case was heard by Trial Examiner Phil W. Saunders at Muskegon, Michigan,
on June 6 and 7. The General Counsel and Brunswick Corporation, herein called
the Respondent or the Company, were represented by counsel, and all parties par-
ticipated fully in the hearing. Both the General Counsel and the Respondent sub-
mitted briefs, and they have been duly considered by me in arriving at my findings and
recommendations herein. The complaint alleges that since February 18, and at
various dates in March and April, the Respondent has refused to meet with Volney
Swift for the purpose of discussing grievances and other terms and conditions of em-
ployment, even though Swift was at all such times, and is, the designated agent of the
Union for such purposes. It is alleged, therefore, that the Respondent refused to bar-
gain collectively and is violative of unfair labor practices within Section 8(a):(5) and
(1) of the Act.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
At all times material herein, Respondent has maintained its principal office and
place of business at 623 S. Wabash Avenue, Chicago, Illinois, and maintains plants at
1700 Messier Street and 525 Laketon Avenue, Muskegon, Michigan, and other plants
throughout the United States and is,'and has been at all times material herein, en-
gaged in the manufacture, sale, and distribution of bowling and billiard equipment
and other recreational products. Respondent's plants located in Muskegon, Michi-
gan, are the only facilities involved in this proceeding.
During the year ending December, 31, 1962, which period is representative of its
operations during all times material herein, Respondent, in the course and conduct of
its business operations, manufactured, sold, and distributed at its Muskegon, Michi-
gan, plants, products valued in excess of $1,000,000, which were shipped from said
plants directly to points located outside of the State of Michigan. I find, therefore,
that the Respondent is engaged in "commerce" and in operations "affecting com-
merce" as those terms are defined in Section 2(6) and (7) respectively of the Na-
tional Labor Relations Act, as amended, herein called .the Act, and that it will effectu-
ate the policies of the Act to assert jurisdiction over the Respondent.
H. THE LABOR ORGANIZATION INVOLVED
Local 824, United Brotherhood of Carpenters and Joiners of America , AFL-CIO,
herein called the Union , is a labor organization within the meaning of Section 2(5)
of the.-
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background, events, and contentions
In 1948, a majority of the production and maintenance employees designated and
selected the Union as their representative for the purposes of collective bargaining
with the Respondent; and at all times since the Union has been the exclusive repre-
sentative of all the employees in this unit. The present contract or agreement be-
tween the Company and the Union became effective in April 1962, and is in effect
until January 9, 1964.2 '
It appears from this record that Swift was elected chief shop steward in June 1960
or 1961, but then did not serve in this capacity. due to problems within the Union
that were not settled at that time?
On February 16, 1963, the Union then reinstated Swift as its chief shop steward.
The documents in this record show that on February 16 a letter was sent by Swift to
the Company advising that Swift had been reassigned the duties as chief shop steward,
that he would immediately act in the capacity of the union representative, and ask
for a meeting to discuss some of the problems at hand. A letter, dated February 18,
was also sent by the Union to the Company advising that Swift was the duly elected
chief shop steward and that he would immediately assume those duties. On Febru-
ary 28, the Respondent's Labor Relations Manager Baer, informed the Union that the
recent appointment of Swift to the position of chief steward does not accord with the
2 Prior to and at the time of the negotiation of the current r.greement, the Union as an
amalgamated local represented employees of three different employers tinder separate con-
tracts. The other employers were Sheldon and American Store Equipment.
3 In June 1962; the Union notified the Company that Howard Smith had been appointed
chief steward on a temporary basis. Respondent's Exhibit No. 1. This exhibit also shows
that Volney Swift was chief steward on the first shift.
BRUNSWICK CORPORATION 1481
.provisions of the agreement between the parties? On March 16, Swift informed Baer
by letter that his silence and refusal to state the Respondent's position in writing
prompted him to file a grievance in behalf of the Union. In this letter Swift also
demanded that the normal steps of the grievance procedure be bypassed, and that the
parties immediately request the American Arbitration Association to make the se-
lection of an arbitrator. This record further reveals that on March 22, Swift filed
a letter with Respondent's Employment Manager Ditter, requesting that the Com-
pany consider the same as a formal grievance concerning employee Leo Koistinen.
On April 10, the Union again sent a letter to Baer reiterating that the Union had as-
signed Swift the duties of chief shop steward and that no one else had these respon-
sibilities . On April 11, the Company informed the Union that the appointment of
Swift was not in accord with the provisions of the contract, and that in the meantime
the Company would continue to meet with the bargaining committee. On April 15,
Don Cummins filed a grievance protesting the failure to recognize Swift as chief shop
steward, and the refusal by the Company to admit him to the company premises for
the purposes of handling grievances. On April 22, a, grievance was filed for em-
ployee George Stanley on which document both Swift and Meyer, president of Local
824, signed their names as chief steward. On May 1, the Company replied to the
grievance filed on April 15, as aforestated, and stated in denying the same that this
grievance was the subject of a step 3 meeting, that the ,appointment of Swift did not
accord with the contract, and that the grievance has not been in accordance with
the mandatory time limits of the grievance procedure .5 On May 9, the Company
again replied to the Union relative to the April 15 grievance and stated that this
grievance does not accord with the mandatory procedural time limit requirements as
dictated by the contract, and that the grievance is not arbitrable. On May 19, the
Union then informed the Company that Howard Smith was the chief shop steward,
and that his duties as such would be effective May 20. On. May 24, the Union ad-
vised the Company that the members had voted Smith as chief steward to. represent
them until such time as Swift's case was cleared up and a final decision was reached,
and that there would be no interference from the outside in grievances.
The Company admits that the Union can appoint anyone it so desires as an agent
of the Union, but that with respect to the specifically defined grievance procedure the
Union, in the contract, limited who should function in these particular capacities.
The Respondent argues that this record shows that the parties expressly excluded
nonemployee union officials from the grievance procedure, and as the Union has
voluntarily expressed its desires and agreed to the formal procedure of grievances
for settling differences, this route is controlling and attempts to renege should not
be perinitted.6 The Respondent's further defense appears to be that the recognition
of Swift as a chief steward is a matter of contractual interpretation outside the
province of the Board to decide. In support of the Respondent's contentions, testi-
mony was produced bearing on past history and what supposedly took place in
negotiating sessions prior to the effective date of the current contract.? On the basis
and for the reasons hereinafter stated, I reject, the Respondent's contentions.
4 On March 1, Swift was successful in reaching Baer and in their telephone conversa-
tion Swift asked for a meeting, and Baer then informed him that the Company would not
recognize Swift as a union representative. Swift was then also informed that he was no
longer an employee of the Respondent and that the Company would completely disregard
the whole thing. The record established that October 1, 1962, was the last day Swift
worked for the Company.
50n May 6, a grievance was filed for Robert Harmon. Both Swift and Meyer signed
as chief stewards.
O The grievance procedure in the current contract is set forth in General Counsel's
Exhibit No. 2, article IV, pages 11 through 16.
4 On this basis the Company argues that contrary to past practices which permitted non-
employee union constitutional officers to represent the employees in the grievance pro-
cedure, the parties were mutually concerned that it was "possible," though not "probable,"
for a nonemployee (president) to participate in the grievance procedure. This fear of
Brunswick and the Union was first expressed on or about December If, 1961, when the
Company submitted a proposal regarding the composition of the union grievance com-
mittee at the third step of the grievance procedure. The Respondent goes.on to argue that
the final proposal before adopting the present agreement repeated 'that the four members
of the union bargaining committee must be employees of the bargaining unit and eliminated
the specific reference to the president of the Union and, apparently satisfied, the Union
had voluntarily agreed to eliminate any possibility that a nonemployee would participate
in the grievance procedure.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Final conclusions
The basic facts in this case are clear. On February 16, Volney Swift was rein-
stated by the union members as their chief steward and the union representative.
The Union and Swift then so notified the Company. Also, Swift, himself, delivered
to Respondent a letter outlining his authority and requesting a meeting with Labor
Relations Manager Walter Baer for the purpose of discussing "some of the problems
at hand." 8 Additionally, Swift contacted Baer by telephone on February 18 and
March 1, 1963, and sought recognition in his designated capacity, but Baer refused
such recognition, and the company agents so continued their refusals throughout
March and April, as alleged in the complaint. In making my findings here it has
been noted that the Union was having considerable internal difficulties prior to the
dates in question here and that the office of chief shop steward was somewhat
fluctuating. However, the record is clear that beginning on February 16 and through-
out March and April, Swift had been reinstated and the Union consistently main-
tained this position during these critical periods in question here. It further appears
that Meyer merely cosigned • with Swift the grievances of Stanley Cummins and
Harmon, as aforestated, because the Company would not recognize Swift.
As I see it the basic issue in this case is whether or not Respondent, by refusing
to recognize nonemployee Volney Swift as chief steward and designated agent of
the Union, refused to bargain with the Union in violation of Section 8(a)(5) and
(1) of the Act.
In the first instance it has been well established that the Board's power to prevent
unfair labor practices cannot be affected by other means of adjustment or prevention
that have or maybe established by agreement, law, or otherwise. Likewise, it has
been repeatedly established that Section 7 of the Act guarantees to employees a right
to bargain collectively through representatives of their own choosing. Who is to
represent the employees for the purpose of collective bargaining and the manner of
selection are matters within the exclusive province of the employees. It is the duty
of the employer to "keep hands off" and maintain a strictly neutral attitude. Further,
the representative selected by the employees need not be an employee of the employer
involved.
Secondly, there is no evidence that the employees in this unit expressly waived the
right to be represented in collective bargaining by a nonemployee.. Since such a
waiver is in derogation of their statutory rights, it must be expressed in clear and
unmistakable language. Furthermore, the examination of the current contract be-
tween the parties shows that there is no waiver by the employees, but on the contrary
there is an expressed reservation of the right to have a nonemployee represent them.9
Since it is not the burden of the employees to expressly reserve their statutory rights,
the aforementioned contractual clause is not only proof of the reservation, but more
importantly, indicates the unreasonableness of any finding of language expressly
waiving the statutory right herein involved.lo Moreover, it is also well settled that
during contract negotiations, an employer cannot insist upon a provision in the con-
tract permitting itself a voice as to who would be the union steward.
The Respondent also contended, as aforestated, that the recognition of Swift was
a matter of contractual interpretation outside the province of the Board to decide.
An examination of the cases in point show that while the Board will not ordinarily
examine a contract solely to determine if there has been a breach of a particular.
contractual provision, the Board has and will exercise its authority to examine a'
contract and determine whether or not there has been a waiver of statutory rights,
and in so doing will find a violation unless an express and clear. waiver of such a
right is found.
In the instant case the agreement between the parties specifically provides that a
representative of the Union "not employed by the Company" [emphasis supplied]
shall be admitted by the Company for the purpose of handling grievances and
participating in meetings scheduled. Moreover, this record is clear that the Union
was not seeking merely to have Swift represent them under the terms of the agree-
ment, nor was the Respondent's refusal based upon conditions-it amounted to a
total nonrecognition of Swift for all collective-bargaining purposes. When Swift
and the Union first notified the Company on February 16 and 18, as aforementioned,
no contractual grievance procedure had been invoked as of this time. It appears to
8 The evidence shows that on or by February 18, Swift had been notified of jurisdictional
complaints, improper layoff complaints, and improper rehire and recall complaints.
9 General-Counsel's Exhibit No. 2. See article 1, section 2, paragraph 7.
10 Even in consideration of the evidence relative to the precontract negotiations, this,
record still not established any express waiver.
BRUNSWICK CORPORATION 1483
me, from this record, that actually it was the selection of Swift by the employees
to represent them to which the Company objected. It has been fully considered,
and is noted here, that the grievance procedure in the agreement does refer to the
chief shop steward in certain steps in the appeal of a grievance, but certainly the
Respondent, under these particular circumstances, cannot obtain the results asked
for by selecting well-placed language in the bargaining contract, and then subsequently
relying upon those words as a waiver of a statutory right, and also, thereby refusing
recognition for all bargaining purposes.
In this case Swift first sought recognition by the Company, and he did not initially
seek to process any grievances under the contract. The Respondent's refusal to
.recognize Swift amounted to a pronouncement by the Company that it could' lawfully
deny the Union an opportunity to be present in the adjustment of grievances.ii In
the final analysis, it is the statutory right of the Union to be represented through a
nonemployee, which is the issue, and not whether a nonemployee can utilize with
practicality certain aspects of the grievance procedure or enjoy other benefits granted
by the contract. Certainly the matters or complaints which Swift had been given
notification of on or before February 18, as aforestated, were more than mere per-
sonal dissatisfactions or complaints of employees, and their proper adjustment in-
volved the interpretation and application of the terms of the contract, or otherwise
affected the terms and conditions of employment possibly not covered by the agree-
ment. For this reason, these matters are unquestionably the concern of the bargain-
ing representative and consequently Swift had every legitimate right to be recognized.
In refusing to recognize Volney Swift under the controlling circumstances of this
case, I find that the Respondent is in violation of Section 8(a)(5) and (1) of the
Act.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section 1, above, have a
close , intimate , and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in viola-
tion of Section 8 (a)(5) and (1) of the Act, it will be recommended that the Re-
spondent cease and desist therefrom and-take certainaffirmative action designed to
effectuate the policies of the Act.
Respondent having engaged in unfair labor practices by insisting, as a condition
of bargaining on grievances, that the Union forgo its statutory right to be present, it
will. be recommended that the Company cease and desist from engaging in the pro-
scribed conduct, and that the Respondent cease giving effect to the clauses in their
contract, or in any successor contract, which permits the Respondent to adjust em-
ployee grievances and other matters pertaining to tenure and conditions of employ-
ment , without affording the .Union an opportunity to attend such adjustments or
meetings . It will be recommended also that the Respondent cease and desist from
engaging in like or related conduct.ia
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of the Act and admits to
membership employees of Respondent.
3. All production and maintenance employees of the Respondent employed at its
plants at 1700 Messier Street and 525 Laketon Avenue, Muskegon, Michigan, ex-
clusive of employees certified by the Board as being represented by other labor or-
ganizations, office and clerical employees, salaried employees, engineers, professional
uSohio Chemical Company, 141 NLRB 810. (See Board's footnote 1.) In Sohio the
Board ' s decision was•based upon the effect of rights given by the contract, and not the
rights of parties as granted by the Act. d
12 In essence here, the conduct by the Respondent is a complete and total nonrecognition
of the Union for bargaining purposes , and hence'cannot properly be deemed a trivial viola-
tion, nor can it be viewed as too isolated in character to warrant a remedial order.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, technical employees, experimental and development employees, confiden-
tial employees, and supervisors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9(b) of the Act.
4. Local 824, United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, was on February 11, 1948, and at all times since has been the exclusive repre-
sentative of all the employees in the above-described unit for the purpose of col-
lective bargaining.
5. By refusing on certain dates in February, March, and April, 1963, and at all
times thereafter to bargain collectively with the Union as the exclusive representative
of all the employees in the aforesaid unit, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act.
6. By said acts the Respondent has interfered with, restrained, and coerced their
employees in the exetcise of the rights guaranteed in Section 7 of the Act, and has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)( I) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Sigo Corporation and Amalgamated Clothing Workers of Amer-
ica, AFL-CIO. Cases Nos. 34-CA-1734, 924-CA-1794, and' 941-RC-
22-16. May 8, 1964
DECISION, ORDER, AND CERTIFICATION OF RESULTS
OF ELECTION
On December 4, 1963, Trial Examiner Lloyd Buchanan issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. He also found that the Respondent had interfered with an
election held on July 3, 1963,- and recommended that it be set aside.
Thereafter, the Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
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 Respondent's exceptions and brief, and the
entire record in this proceeding, and, finding merit in the exceptions
of the Respondent, hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only insofar as consistent with our
Decision and Order.
146 NLRB No. 171.