Dunham-Bush, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1982

264 N.L.R.B. 1347 (N.L.R.B. 1982)

DUNHAM-BUSH, INC.
Dunham-Bush, Inc. and Capital City Lodge No. 354,
International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 1-CA-
15560
September 30, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND JENKINS
Upon a charge filed on February 2, 1979, by
Capital City Lodge No. 354, International Associ-
ation of Machinists and Aerospace Workers, AFL-
CIO (herein called the Union), and duly served on
Respondent Dunham-Bush, Inc., the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 1, issued a com-
plaint and notice of hearing on August 30, 1979; on
December 18, 1979, he issued an order partially
withdrawing complaint and notice of hearing and
partially withdrawing charge, and on April 1, 1980,
an amended complaint and further notice of hear-
ing. Copies of the charge, amended complaint, and
notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
The amended complaint alleges that Respondent
had engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5)
and (1), and Section 2(6) and (7) of the National
Labor Relations Act, as amended. Specifically, Re-
spondent is alleged to have unilaterally modified its
collective-bargaining agreement with the Union
when, on January 22, 1979, it instituted rules pro-
hibiting second-shift employees at its Elmwood,
Connecticut, plant from leaving the plant during
their lunchbreak. 1 Further the complaint alleges
that Respondent disciplined three employees for
disobeying the rule. On April 14, 1980, Respondent
filed its answer to the amended complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On October 15, 1980, Respondent filed directly
with the Board a Motion for Summary Judgment
requesting us to dismiss the amended complaint,
and a memorandum in support thereof. On October
22, the Board issued an order transferring the pro-
ceeding to the Board and Notice To Show Cause
why Respondent's Motion for Summary Judgment
should not be granted. On November 4, the Gener-
al Counsel filed a motion in opposition to Respond-
' The Employer also announced new rules concerning employee
access to vending machines, hours of work, washup time, and coffee-
breaks. The General Counsel, on December 18, 1979, dismissed charges
of 8(a)I) and (5) violations based on those changes; the arbitrator had on
June 21, 1979, found a contractual violation regarding access to vending
machines, but not as to hours of work, washup time, or coffeebreaks.
264 NLRB 175
ent's Motion for Summary Judgment, a Cross-
Motion for Summary Judgment, and a supporting
memorandum. On November 7, the Charging Party
filed a memorandum opposing both Motions for
Summary Judgment. Thereafter, both Respondent
and the General Counsel filed motions opposing
Charging Party's opposition, and memoranda in
support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motions for Summary Judgment
Respondent is a manufacturer of air-conditioning
and refrigeration equipment. On January 16, 1979,2
Respondent announced certain changes in work
rules at its Elmwood, Connecticut, plant, including
a new rule that would prohibit second-shift em-
ployees from leaving the plant during their lunch-
breaks. At the time, Respondent was party to a
collective-bargaining agreement with Capital City
Lodge No. 354, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, as
representative of its employees; that agreement was
effective until September 30. Before posting the
rule changes, Respondent notified the Union,
which opposed the changes and suggested that Re-
spondent put off any action until upcoming negoti-
ations for a new collective-bargaining agreement.
Respondent then posted the new rules in the plant
and implemented them as of January 22. In the
meantime, on January 17-the day after Respond-
ent announced the rule changes-the Union filed a
grievance alleging violations of the collective-bar-
gaining agreement.
After the new rules were posted, three second-
shift employees continued to leave the plant for
their lunchbreaks, as they had done in the past.
They were progressively disciplined: first warned
orally, then in writing, then suspended, and on
February 6, discharged. Their discharges were
later reduced to suspensions without pay, by agree-
ment of Respondent and the Union.
The union grievance filed January 17 was heard
by an arbitrator on April 26. The arbitrator consid-
ered the validity of the new work rules and of the
February 6 discharges. He decided that: (1) Re-
spondent did not violate its duty under Section
8(a)(5) of the National Labor Relations Act be-
cause the Union never requested bargaining over
the new rules; (2) the rule prohibiting leaving the
I All dates hereinafter refer to 1979, unless otherwise indicated.
1347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant on the second shift violated the contract and
had to be discontinued; and (3) the three employees
were properly discharged for disobeying the rule
because industrial stability requires that employees
obey rules while grievances are resolved unless
health, safety, or other fundamental employee in-
terests require that an employee disobey.
The contested work rule has since been rescind-
ed and the discharged employees reinstated; the
relief the Union and the General Counsel now seek
is backpay for the period the employees were sus-
pended, and removal of disciplinary documents
from their files. Because this issue has been arbi-
trated, we must decide whether to defer to the ar-
bitrator's award under Spielberg Manufacturing
Company, 112 NLRB 1080 (1955). The parties
agree that the arbitration proceedings were fair and
regular, and that they had agreed to be bound
thereby; the question remains whether the arbitra-
tor's award is "clearly repugnant" to the purposes
and policies of the Act. Respondent urges that the
arbitrator considered and rejected a claim that Re-
spondent had violated Section 8(a)(l) and (5) of the
Act, and that, given this finding, his award is not
repugnant to the Act simply because it awards no
backpay. The General Counsel contends that Re-
spondent violated Section 8(a)(5) and (1) by insti-
tuting the new rule unilaterally, and that Respond-
ent must rescind not only the rule as it has done,
but also the discipline imposed pursuant to the rule.
Concerning Respondent's Motion for Summary
Judgment, the Charging Party (the Union) con-
tends that the case should go to hearing because
Respondent has misrepresented critical facts per-
taining to whether the award is repugnant to the
Act, and is thereby attempting to "relitigate" its as-
sertion that it committed no contractual violation
by its admitted unilateral rule change. Concerning
the General Counsel's Motion for Summary Judg-
ment, the Charging Party notes that the General
Counsel has asserted that the three employees left
the plant on their lunchbreak in order to challenge
Respondent's right to promulgate the rule, whereas
the employees testified before the arbitrator that
each left for personal reasons. The Charging Party
further contends, contrary to the General Counsel,
that a change in mere past practice would have
violated the Act as much as would a contractual
violation; hence it will not limit its position to reli-
ance on a contract right.3
The arbitrator found, inter alia, that Respondent
"violated the clear terms of the collective-bargain-
ing agreement"; no party now disputes that find-
' As our Decision here makes clear, none of these contentions presents
a substantial issue of material fact so as to require a hearing.
ing.4 The arbitrator concluded, nonetheless, that
Respondent did not violate Section 8(a)(5) of the
Act because the Union did not request bargaining
over the changed work rules; this conclusion is
clearly erroneous. It is settled law that a unilateral
modification of an existing agreement is in deroga-
tion of a contracting party's statutory obligation
under Section 8(d) of the Act, and that during a
contract's term, neither party is required under the
statute to bargain anew about matters covered by
the contract. Consequently, the Union was not re-
quired, in these circumstances, to request bargain-
ing, or to bargain, or to agree to the new rules. See
C & S Industries, Inc., 158 NLRB 454, 456-459
(1966); Oak Cliff-Golman Baking Company, 207
NLRB 1063, 1064 (1973), enfd. 505 F.2d 1302 (5th
Cir. 1974). 5 Thus, we conclude that the arbitrator's
finding that the modifications did not violate Sec-
tion 8(a)(5) is repugnant to the Act and deferral is
therefore inappropriate.
It is true, as our dissenting colleague points out,
that not every default in a contractual obligation is
a modification of the agreement within the mean-
ing of Section 8(d). We find, however, that in this
case Respondent's default, which effected a sub-
stantial change in a term or condition of employ-
ment, amounted to such a modification.6 The facts
of this case do not provide a basis to further cir-
cumscribe the statutory privilege of either party to
a collective-bargaining agreement to decline to re-
negotiate that agreement during its term.
Specifically, we do not adopt any of the suggest-
ed criteria relied on by our dissenting colleague in
his finding that Respondent's conduct here did not
modify the contract. The Board has not limited its
definition of a modification of a contract only to
4 The contract specifically provided that employees could not leave
the plant on coffeebreaks, but made no such provision for lunchbreaks.
The arbitrator found that this contrast in contractual language "gives rise
to a negative inference that-where the contract is silent as to remaining
on the premises during lunch breaks-employees are free to leave the
premises." The arbitrator also relied on the fact that Respondent contin-
ued to allow first-shift employees to leave the plant on their lunchbreak,
and he noted a prior grievance settlement continuing the practice on
second-shift lunchbreak, and the absence of any evidence that employees
had abused the right to leave for lunch. We conclude that the employees'
right to leave the premises during the second-shift lunchbreak was, by
implication, a term "contained in" the contract, within the meaning of
Sec. 8(d) of the Act. See C & S Industries, Inc., supra at 459.
5 Our dissenting colleague's contention that "there is no evidence that
Respondent acted in bad faith" therefore misses the point; under Sec.
8(d), a unilateral contract modification is in bad faith by definition. Cf.
NL.R.B. v. Benne Katz, d/b/a Williamsburg Steel Products Co., 369 U.S.
735, 743 (1962).
6 See Exxon Company, USA., 253 NLRB 213, fn. 2 (1980); Independ-
ent Stave Company., Diversified Industries Division, 233 NLRB 1202, 1204
(1977); Garland Distributing Company, 234 NLRB 1275, 1280 (1978);
United Parcel Service. Inc., 223 NLRB 1381, 1383 (1976); Boston Edison
Company, 176 NLRB 942 (1969); W P. Ihrie & Sons. Division of Sunshine
Biscuits. Inc., 165 NLRB 167 (1967); Allied Chemical & Alkali Workers of
America, Local Union No. I v. Pittsburgh Plate Glass Co., 404 U.S. 157,
185 (1971).
1348
DUNHAM-BUSH, INC.
changes of "basic" terms or conditions of employ-
ment as is urged by our dissenting colleague.7 The
dissent suggests no statutory or policy basis for
such a limitation, and we see none; indeed, the in-
stant case demonstrates that subjects which may
strike our colleague as less than basic may be mat-
ters of deep concern to employees or employers,
thus containing the potential for industrial strife.8
Contrary to the dissent, we consider it immateri-
al whether or not "Respondent had reason to be-
lieve that the new rule was not prohibited by the
contract." As already noted, Respondent's subjec-
tive good faith is immaterial. Secondly, while the
contract may have been ambiguous, the Board has
authority to construe it, as it has done in determin-
ing charges of unilateral contract modification.9 In
any event, we would think that our dissenting col-
league, who urges us to defer to the arbitrator's de-
cision, would accept the arbitrator's conclusion
that Respondent "violated the clear terms of [its]
. . . agreement."
Perhaps, though, the dissent means to suggest
that unilateral action does not violate the Act if
reasonable minds could differ on the contract's ap-
plication to such action; we cannot accept that
view. Generally, the Board requires that employer
and employee representatives bargain over terms
and conditions of employment until they reach
agreement or good-faith impasse.' 0 Thus to find
"agreement" only when it is express and unambi-
guous would give maximum scope to unilateral
7 See, e.g., E. . DuPont de Nemours & Co., 259 NLRB 1210 (1982)
(day on which holiday is observed): Keystone Steel & Wire, Division of
Keystone Consolidated Industries. Inc, 237 NLRB 763, 767 (1978) (identity
of insurance carrier); Bayer Bros. Inc., 217 NLRB 342, 344 (1975) (union
access to employer's property); Curtis Manufactunng Company, Inc., 189
NLRB 192, 196 (1971) (circumstances in which employer will pay wait-
ing time); The Standard Oil Company (Ohio), 174 NLRB 177 (1969)
(number of union representatives on joint committees); W P Ihrie &
Sons. supra (dues-checkoff).
8 Cf. Ford Motor Co. (Chicago Stamping Plant) v. N.L.R.B., 441 U.S.
488, 501 (1979) (food prices in plant cafeteria not "too trivial" to be man-
datory subjects of bargaining).
9 See N.LR.B. v. Strong, d/b/a Strong Roofing & Insulating Ca, 393
U.S. 357 (1969); N.L.R.B. v. C d C Plywood Corp., 385 U.S. 421 (1967);
E. 1. DuPont de Nemours & Co., 259 NLRB 1210 (1982); Capital Parcel
Delivery Company, 256 NLRB 302 (1981); Fourco Glass Co., Rolland Divi-
sion, 250 NLRB 953 (1980); Milgram Food Stores, Inc., 235 NLRB 1, 4-5
(1978); Independent Stave Company, supra at 1204; The Boeing Company,
230 NLRB 696, 700 (1977); Rego Park Nursing Home, 230 NLRB 725
(1977); United Parcel Service, 223 NLRB 1381, 1383 (1976), Shen-Mar
Food Products; Inc., 221 NLRB 1329, 1333 (1976); Papercraft Corporation,
212 NLRB 240, 241, fn. 3 (1974); The University of Chicago, 210 NLRB
190, 196-197 (1974); Boston Edison Co., 176 NLRB 942 (1969); The Stand-
ard Oil Ca (Ohio), supra; PPG Industries; Inc., 172 NLRB 450, 455 (1968);
W. P. hrie 4 Sons, supra
iO Thus, if the parties reach an agreement which is silent as to certain
terms or conditions of employment, and one party proposes to change
such terms, the Act requires renewed bargaining to impasse over those
particular terms, absent a "clear and unmistakable" waiver of bargaining.
See Beacon Piece Dyeing & Finishing Co., 121 NLRB 952, 956 (1958);
Allied Mills; Inc, 82 NLRB 854, 861-862 (1949). Presumably our dissent-
ing colleague would not relieve Respondent in this case of its duty to
bargain, had the Union requested bargaining.
action. We think the better rule-which the Board
has applied in the past and which we apply here-
is to discern from the contract the parties' intent
when that is possible. This rule best serves the stat-
utory policy of preventing industrial strife through
the practice and procedure of collective bargain-
ing, for the greater confidence the parties have that
their agreements will be observed, the greater the
incentive they will have to submit their disputes to
the bargaining process. The instant case is ample il-
lustration: employees Gett, Stergiotis, and Lonsdale
"had reason to believe" that Respondent's new
work rule was prohibited by the contract and they
acted in reliance on that belief. Even though their
interpretation, not Respondent's, was ultimately
found to be correct, our dissenting colleague char-
acterizes the employees' insistence on their contrac-
tual rights as insubordinate, and would permit Re-
spondent to discipline them for it. Such a result
would certainly not encourage employees to rely
on collective bargaining for the resolution of dis-
putes, and would thus undermine the basic purpose
of the Act.
Because Respondent's unilateral promulgation of
the new work rule violated Section 8(a)(1) and (5)
of the Act, any disciplinary action imposed on em-
ployees pursuant to the rule in question is similarly
violative of that section of the Act. Inasmuch as
the discharges are also unlawful, we cannot defer
to the arbitrator's award concerning these disciplin-
ary actions. We will therefore order Respondent to
restore the status quo ante, requiring that it rescind
not only the work rule, as it has done, but any dis-
cipline imposed pursuant to the rule. Gaska Tape,
Inc., 241 NLRB 686, fn. 3 (1979); General Electric
Company, 192 NLRB 68, 75 (1971), enfd. 466 F.2d
1177 (6th Cir. 1972). We further find that the arbi-
trator's award of reinstatement with no backpay
for employees Gett, Stergiotis, and Lonsdale is, in
light of the unlawfulness of the discharge, repug-
nant to the Act, and we shall therefore not defer to
it but provide the customary remedy. ' See Cessna
Aircraft Co., 220 NLRB 873, 875 (1975).
Accordingly, we deny Respondent's Motion for
Summary Judgment, and grant the General Coun-
sel's Cross-Motion for Summary Judgment. On the
basis of the entire record, the Board makes the fol-
lowing:
I" Respondent's reliance on Bechtel. Incorporated, 248 NLRB 1222,
1223 (1980), is misplaced; in that case. "neither the employees nor the
Union evidenced any interest in peaceful . . . resolution" of the dispute
over work rules. Cf. Gaska Tape. Inc.. supra. Here, the Union promptly
grieved Respondent's action and pursued its grievance to arbitration
1349
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is now, and has been at all times ma-
terial herein, a Delaware corporation with its prin-
cipal office and place of business in West Hartford,
Connecticut, where it is presently, and has been at
all times material herein, engaged in the manufac-
ture, sale, and distribution of air-conditioning and
refrigeration equipment and related products. In
the course and conduct of its business, Respondent
annually receives goods valued in excess of $50,000
directly from points located outside the State of
Connecticut, and ships finished goods valued in
excess of $50,000 directly to points located outside
the State of Connecticut.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Capital City Lodge No. 354, International Asso-
ciation of Machinists and Aerospace Workers,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representative Status of the Union
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees
employed by Respondent at its plants in Elm-
wood, Connecticut, and Newington, Connecti-
cut, including shipping and receiving employ-
ees, but excluding office and clerical employ-
ees, executive employees, foremen and all
other supervisors and guards as defined in the
Act.
2. The Union
At all times material herein, Capital City Lodge
No. 354, International Association of Machinists
and Aerospace Workers, AFL-CIO, has been the
representative for purposes of collective bargaining
of a majority of employees in the unit described
above, and by virtue of Section 9(a) of the Act, has
been and is now the exclusive representative of all
employees in the unit for purposes of collective
bargaining with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment.
B. The Unilateral Modification of the Collective-
Bargaining Agreement
Respondent was a party to a collective-bargain-
ing agreement with the Union, effective from No-
vember 22, 1976, to September 30, 1979. On Janu-
ary 22, 1979, Respondent, without the consent of
the Union, instituted a plant rule that modified a
term contained in the collective-bargaining agree-
ment then in force. Accordingly, we find that Re-
spondent has engaged in and is engaging in an
unfair labor practice within the meaning of Section
8(a)(5) and (1) of the Act.
C. The Discipline of Employees Gett, Stergiotis,
and Lonsdale
On or about February 6, Respondent discharged
employees Lawrence Gett, Chris Stergiotis, and
Gordon Lonsdale for their failure to comply with
the plant rule described above, the promulgation of
which was an unfair labor practice. These dis-
charges were later reduced to suspensions without
pay. Accordingly, we find that Respondent, by dis-
ciplining employees for failure to comply with a
rule unlawfully promulgated, has engaged in and is
engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent violated Section
8(a)(5) and (1) when it unilaterally modified its col-
lective-bargaining agreement with the Union, and
subsequently disciplined employees Gett, Stergiotis,
and Lonsdale, we will order Respondent to cease
and desist from engaging in the unfair labor prac-
tice found above and from engaging in like or re-
lated conduct. Respondent will also be ordered to
make whole employees Gett, Stergiotis, and Lons-
dale, for any loss of earnings or other benefits they
may have suffered as a result of the discrimination
against them, by purging their personnel records of
1350
DUNHAM-BUSH, INC.
any record of their discharge or suspension, by re-
storing all seniority and other rights and privileges
accrued during the period of their suspension, and
by paying each of them a sum equal to what he
would have earned, absent the unfair labor prac-
tice, during the period of his suspension, less any
net earnings during that period, plus interest. Back-
pay and interest thereon shall be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977).12
CONCLUSIONS OF LAW
1. Dunham-Bush, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Capital City Lodge No. 354, International As-
sociation of Machinists and Aerospace Workers,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees,
including shipping and receiving employees, em-
ployed by Respondent at its Elmwood, Connecti-
cut, and Newington, Connecticut, plants-exclud-
ing all office and clerical employees, executive em-
ployees, foremen and all other supervisors, and
guards as defined in the Act-constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein, the labor organi-
zation named in paragraph 2, above, has been and
now is the exclusive representative of all employ-
ees in the appropriate unit, described above in
paragraph 3, for the purposes of collective bargain-
ing within the meaning of Section 9 (a) of the Act.
5. By modifying a term contained in a collective-
bargaining agreement, without the consent of the
above-named labor organization as the exclusive
bargaining representative of all Respondent's em-
ployees in the appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
b. By its unilateral modification of the collective-
bargaining agreement, and its consequent discipline
of employees Lawrence Gett, Chris Stergiotis, and
Gordon Lonsdale, Respondent has interfered with,
restrained, and coerced, and is interfering with, re-
straining, and coercing, its employees in the exer-
cise of the rights guaranteed them under Section 7
of the Act, and thereby has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
7. The above-named unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
12 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Dunham-Bush, Inc., West Hartford, Connecticut,
its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Modifying, without the consent of Capital
City Lodge No. 354, International Association of
Machinists and Aerospace Workers, AFL-CIO,
any term or condition contained in a collective-bar-
gaining agreement with that labor organization as
the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All production and maintenance employees
employed by Respondent at its plants in Elm-
wood, Connecticut, and Newington, Connecti-
cut, including shipping and receiving employ-
ees, but excluding office and clerical employ-
ees, executive employees, foremen and all
other supervisors and guards as defined in the
Act.
(b) Discharging, suspending, or otherwise disci-
plining any employee for failure to comply with
such unilateral modification of a collective-bargain-
ing agreement.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Make whole employees Lawrence Gett, Chris
Stergiotis, and Gordon Lonsdale for any loss of
earnings or other benefits they may have suffered
as the result of their suspension, by purging their
personnel records of any record of their discharge
or suspension and notifying them in writing that it
has done so, by restoring all seniority and other
rights or privileges each may have accrued during
the period of his suspension, and by paying each of
them a sum equal to what he would have earned
absent the unfair labor practice, less any net interim
earnings, plus interest, as further described in the
section above entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its Elmwood, Connecticut, plant
copies of the attached notice marked "Appen-
1351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dix."'13 Copies of said notice, on forms provided by
the Regional Director for Region 1, after being
duly signed by an authorized representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
CHAIRMAN VAN DE WATER, dissenting:
The majority's decision not to defer to the arbi-
tration award herein is contrary to the principles of
Spielberg Manufacturing Company, 112 NLRB 1080
(1955), and, thus, contrary to sound deferral policy.
See my dissent in Professional Porter & Window
Cleaning Co., Division of Propoco, Inc., 263 NLRB
136 (1982).
During the term of its bargaining agreement with
the Union, Respondent notified the Union of a
number of new work rules, including one provid-
ing that employees on the second shift could not
leave the plant during their paid 20-minute lunch-
break. After a brief discussion, the Union's repre-
sentatives rejected the proposal in whole. Respond-
ent then posted the rules on employee bulletin
boards, and the Union filed a grievance the next
day. Three employees on the second shift contin-
ued to leave the plant on their lunchbreak. They
were progressively warned, suspended, and dis-
charged, although the discharges were later
changed to suspensions. The suspensions of the
three employees were included in the grievance
which was taken to arbitration.
The arbitrator fully set out the facts and conten-
tions of the parties and fully explained his decision.
The arbitrator held that two of the new rules, in-
cluding the one in question herein, violated the col-
lective-bargaining contract and required Respond-
ent to rescind those rules. The award also held that
the discipline given to the three employees did not
violate the contract and that Respondent did not
violate Section 8(a)(1) and (5) of the Act by the
notice it posted or by its discipline of the employ-
ees.
The majority does not defer because "the arbi-
trator's finding that the modifications did not vio-
II In the event that 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 Labqr Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
late Section 8(a)(5) is repugnant to the Act" and
because "the arbitrator's award of reinstatement
with no backpay for employees Gett, Stergiotis,
and Lonsdale is, in light of the unlawfulness of the
discharge, repugnant to the Act." In my opinion,
however, the majority misread the arbitrator's
award and misconstrues the meaning of clearly re-
pugnant.
It is well settled that an employer violates its
duty to bargain when it institutes changes in em-
ployment conditions without first consulting with
the union. N.L.R.B. v. Benne Katz, etc., d/b/a Wil-
liamsburg Steel Products Co., 369 U.S. 736 (1962). It
is also settled that a different standard applies to
midterm changes in matters covered by the bar-
gaining agreement; an employer cannot modify the
agreement over the objections of the union. C & S
Industries, Inc., 158 NLRB 454 (1966). The arbitra-
tor recognized these different standards, stating,
"On the facts of this case, the Employer's duty to
bargain over work rules is complex because some
of the new rules are consistent with the express
language of the contract and others deal with mat-
ters that, arguably at least, are either inconsistent
with the contract or with respect to which the
contract is silent."
The arbitrator first considered the Union's gener-
al contention that Respondent unilaterally imposed
the new rules without bargaining with the Union.
The arbitrator found that the Union "made no at-
tempt to bargain" over the rules but "rejected
them in whole" and stated, "Having failed to re-
quest bargaining, it may not now complain that
management violated its duty to bargain." The ar-
bitrator concluded, "For these reasons, I find that
management has not violated its duty under the
National Labor Relations Act."
Contrsry to the implication in the majority's de-
cision, the arbitrator's finding in his decision that
Respondent did not violate the Act is limited to an-
swering the Union's general contention that Re-
spondent failed to bargain and is not related to the
Union's separate contention that the rules modified
the contract. Thus, in context, the arbitrator's find-
ing that Respondent did not violate the Act is not
clearly repugnant to the Act, and the implication in
the majority's decision to the contrary is, I believe,
erroneous.
The arbitrator next considered whether Re-
spondent's promulgation of the new rules violated
the bargaining agreement. He found that certain of
the rules were consistent with the language of the
contract and therefore not contrary to the contract.
In considering the rule in issue herein, the arbitra-
tor found, "In my opinion, management violated
the clear terms of the collective bargaining agree-
1352
DUNHAM-BUSH, INC.
ment by its rule prohibiting employees on the
second shift from leaving the premises." The arbi-
trator stated, "I agree with the Union that the ex-
press requirement [in the contract] that employees
'must remain on the premises' during their 15-
minute coffee break gives rise to a negative infer-
ence that-where the contract is silent as to re-
maining on the premises during lunch breaks-em-
ployees are free to leave the premises." According-
ly, the arbitrator concluded that the "rule must be
discontinued."
As the arbitrator found that the rule violated the
contract and ordered the rule to be rescinded, the
arbitrator resolved the unfair labor practice issue
regarding the promulgation of the rule. The arbi-
trator's failure to find that promulgation of the rule
was an unfair labor practice is not grounds under
Spielberg for finding the award repugnant to the
Act with respect to this issue.
The Board's inquiry does not end here because
the arbitrator also decided that the suspensions of
three employees for violating the rule were for
cause, and in this context, the arbitrator's not find-
ing an unfair labor practice may be of consequence.
The Board, however, holds that not every unilater-
al change in breach of a bargaining agreement
gives rise to an unfair labor practice. In C & S In-
dustries, supra, a case relied on by the majority in
finding the award repugnant, the Board stated (158
NLRB at 458):
[T]he breadth of Section 8(d) is not such as to
make any default in a contract obligation an
unfair labor practice, for that section, to the
extent relevant here, is in terms confined to
the "modification" or "termination" of a con-
tract. But there can be little doubt that where
an employer unilaterally effects a change
which has a continuing impact on a basic term
or condition of employment, wages for exam-
ple, more is involved than just a simple default
in a contractual obligation. Such a change
manifestly constitutes a "modification" within
the meaning of Section 8(d).
In the instant proceeding there are substantial rea-
sons to find that the promulgation of the new rules
was not a "modification" of the contract within the
meaning of Section 8(d). First, the new rule in
issue herein does not clearly concern a basic term
or condition of employment as contemplated in C
& S Industries. Certainly the rule was not of the
same nature as a change in wages. Second, the new
rule did not change any specific contractual provi-
sion but was found to conflict with the contract
through a negative inference, and the rule was the
only one found to conflict with the contract. (The
arbitrator rescinded another rule because, although
the contract was silent, the rule conflicted with
past practice.) Clearly, Respondent had reason to
believe that the new rule was not prohibited by the
contract, and, thus, was not attempting to under-
mine the bargaining agreement. Third, there is no
evidence that Respondent acted in bad faith. Its at-
tempt to bargain indicates it was not attempting to
undermine the Union. For these reasons, there is a
reasonable basis to find that the promulgation of
the new rule did not violate the Act. Accordingly,
as the award is susceptible to a permissible inter-
pretation, it is not clearly repugnant to the pur-
poses and policies of the Act.
As discussed above, it does not automatically
follow that a breach of contract is an unfair labor
practice. Similarly, it does not automatically follow
that employees are free to violate a rule even if the
rule is a breach of contract in violation of the Act.
Here there is a close factual question of whether
the rule violated the contract (the arbitrator found
that it did) and a close legal question of whether
the breach violated the Act (the arbitrator did not
specifically discuss the issue). In these circum-
stances it is not unreasonable to require employees
to grieve the validity of the rule rather than to
challenge the rule directly by refusing to obey. The
breach of contract and the possible unfair labor
practice are not of sufficient severity to permit em-
ployees to ignore the contractual dispute settlement
method agreed to by the employees' bargaining
agent and to which the employees are bound. The
rule does not show a clear disregard of the bar-
gaining agreement and its implementation does not
show an attempt to undermine the bargaining
agent. As Respondent acted in good faith, the bar-
gaining process remained viable, and the employees
should have followed that process rather than
ignore the grievance and arbitration provisions of
the bargaining agreement. Thus, even if the Board
were to find that Respondent's breach of contract
violated the Act, the arbitration award still meets
the Spielberg standards for deferral.
With respect to the discipline given the three
employees for breaking the rule in issue, the arbi-
trator found:
Notwithstanding my conclusion that the
prohibition against leaving the plant during the
second shift lunch period violates the contract,
employees Stergiotis, Getts [sic] and Lonsdale
were not entitled to disregard management's
posted rule. It is an almost universally-accept-
ed principle of American industrial relations
that employees must obey an order first, and
thereafter test it through the grievance proce-
1353
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dure. Any other practice would create havoc
in the work-place. Especially when an order
does not threaten an employee's health or
safety, it is essential to a peaceful and orderly
working environment that employees avoid
"taking the law into their hands" by disobey-
ing managerial directives.
The arbitrator recognized there are limits to this
principle:
And I believe that there is merit in the view
that employees should not be required in every
instance to observe a new rule and await arbi-
tration to test its validity. The passage of time
may, as a practical matter, destroy the very
right that employees seek to vindicate. When
considerations of health or safety are involved,
surely employees are not required to observe a
rule or an order that may cause them serious
harm. Similarly, when the rule or order from
management is one that might jeopardize some
other fundamental interest of employees, I
agree that the "obey now-grieve later" prin-
ciple may not be appropriate.
In applying the principle to the immediate issue
before him the arbitrator found:
[T]he three employees-Stergiotis, Getts [sic]
and Lonsdale-were merely ordered to remain
in the plant during a paid lunch break of
twenty minutes . . . [and] the rule that re-
quired them to remain in the plant was not one
that challenged their health or safety or an ex-
tremely fundamental interest. It was a rule that
could be challenged and which, as I have now
found, is invalid. But this is not a circumstance
in which employees were entitled to break the
rule.
Accordingly, the arbitrator concluded that the sus-
pensions were for "proper cause" within the mean-
ing of the contract.
The majority finds that the arbitrator's upholding
of the suspensions is repugnant to the Act. I do not
agree. The obey-and-grieve principle as applied by
the arbitrator is consonant with the principles of
Spielberg deferral. The bargaining agreement be-
tween Respondent and the Union contains a broad
grievance procedure providing for tl.e submission
of "any and all differences arising between the
Company and the Union as to the interpretation or
application of this Agreement, or in connection
with the provisions of this Agreement or in any
dispute of any kind." The arbitration agreement is
equally broad providing, "Any grievance involving
the interpretation or application of or compliance
with the provisions of this Agreement, not settled
by the grievance procedure hereinbefore provided,
may be referred to arbitration." Clearly the issues
in dispute are cognizable within the grievance and
arbitration procedures. Here the Union chose to
challenge the rules through the grievance arbitra-
tion procedure and employees should be required
to do likewise. Grievance arbitration is a two-way
street; it protects both employees and the employer
from arbitrary actions. However, the three employ-
ees, rather than following the contract and filing a
grievance, chose to disobey the rule. To find that
this activity is protected would be to find that em-
ployees need not follow the contractual grievance
arbitration procedure and would seriously erode
the value of that procedure. This, however, would
be contrary to the national policy favoring settle-
ment of labor disputes through grievance arbitra-
tion and contrary to the principles of Spielberg
here the Board recognized that national policy.
In addition, the arbitrator had a reasonable basis
for applying the obey-and-grieve principle to the
issue before him. As he found, the rule was not one
that challenged the employees' health, safety, or
fundamental interest, and as discussed above, Re-
spondent's promulgation of the rule, at least argu-
ably, was not an unfair labor practice. Further-
more, as the invalidity of the rule was a close ques-
tion determined by a negative inference, resolution
of the basic issue herein turns upon the interpreta-
tion of contractual provisions of ambiguous mean-
ing within the special competence of the arbitrator.
For the foregoing reasons, I would find that the
arbitrator had a reasonable basis for finding, in
effect, that the three employees were insubordinate,
and therefore that there is an arguable basis, insub-
ordination, for finding that the employees' refusal
to obey the rule was unprotected. As the arbitra-
tion award is susceptible to a permissible interpre-
tation, it cannot, in my opinion, fairly be character-
ized as clearly repugnant to the purposes and poli-
cies of the Act. Accordingly, I would defer to the
award, grant Respondent's Motion for Summary
Judgment, and dismiss the complaint in its entirety.
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,
after a hearing, that we violated the National
Labor Relations Act when we unilaterally institut-
ed a new rule prohibiting second-shift employees
from leaving the plan: on lunchbreaks, and when
1354
DUNHAM-BUSH, INC.
we discharged and later suspended Lawrence Gett,
Chris Stergiotis, and Gordon Lonsdale for leaving
the plant on lunchbreaks.
We hereby notify our employees that:
WE WILL NOT modify any term of our col-
lective-bargaining agreement with Capital City
Lodge No. 354, International Association of
Machinists and Aerospace Workers, AFL-
CIO, while that agreement is in effect, unless
the Union consents. The collective-bargaining
agreement applies to the following bargaining
unit:
All production and maintenance employees
employed by the Employer at its plants in
Elmwood, Connecticut, and Newington,
Connecticut, including shipping and receiv-
ing employees, but excluding office and
clerical employees, executive employees,
foremen and all other supervisors and
guards as defined in the Act.
WE WILL NOT discharge, suspend, or other-
wise discipline any employee for failure to
comply with unilateral modification of a col-
lective-bargaining agreement in that bargaining
unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL make whole employees Lawrence
Gett, Chris Stergiotis, and Gordon Lonsdale
for any loss of earnings or other benefits they
may have suffered as a result of their suspen-
sion, by:
1. Purging their personnel records of any
record of their discharge or suspension and
notifying them in writing that we have done
so.
2. Restoring all seniority and other rights or
privileges each may have accrued during the
period of his suspension.
3. Paying to each of them a sum equal to
what he would have earned during the
period of his suspension, minus any net earn-
ings during that period, plus interest.
DUNHAM-BUSH, INC.
1355