General Electric Co.

National Labor Relations Board - Board Decisions

Oct 18, 1967

167 N.L.R.B. 865 (N.L.R.B. 1967)

GENERAL ELECTRIC COMPANY
General Electric Company and Local 761, Interna-
tional Union of Electrical , Radio and Machine
Workers, AFL-CIO. Case 9-CA-3852
October 18, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On March 17 , 1967, Trial Examiner Herbert Sil-
berman issued his Decision in the above -entitled
proceeding , finding that, in the circumstances of
this case , no useful purpose in the effectuation of
the National Labor Relations Act, as amended,
would be served by holding a plenary trial in the
matter and recommending that the complaint be
dismissed in its entirety , as set forth in the attached
Trial Examiner ' s Decision . Thereafter, the General
Counsel , and also the Charging Party and the In-
ternational Union of Electrical , Radio and Machine
Workers, AFL-CIO,, jointly, filed exceptions to
the Decision with supporting briefs; and the
Respondent filed exceptions to the Trial Ex-
aminer 's failure to make certain findings of fact and
conclusions of law , together with a brief. The
Charging Party and its International , jointly, and
the Respondent filed answering briefs.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed . The Board has considered the
Trial Examiner ' s Decision and the entire record in
this case , including the exceptions and briefs, and
hereby adopts the findings , conclusions , and recom-
mendations of the Trial Examiner.
ORDER
It is hereby ordered that the complaint herein
be, and it hereby is, dismissed.
' The Charging Party's parent, International Union of Electrical, Radio
and Machine Workers, AFL-CIO, was allowed to intervene at the hear-
ing
TRIAL EXAMINER'S DECISION
HERBERT SILBERMAN , Trial Examiner: Upon a charge
filed on February 28, 1966, by Local 761, International
Union of Electrical,' Radio and Machine Workers,
AFL-CIO (herein called the Local), a complaint, dated
May 19, 1966, was issued alleging that the Respondent,
General Electric Company , has engaged in and is engag-
ing in unfair labor practices within the meaning of Section
865
8(a)(l) and (5) of the National Labor Relations Act, as
amended . Respondent filed an answer to the complaint
which generally denies that it has engaged in the alleged
unfair labor practices . Hearings in this proceeding were
held on November 9, 1966, and January 18, 1967, at
Louisville, Kentucky . A motion on behalf of Interna-
tional Union of Electrical , Radio and Machine Workers,
AFL-CIO (herein called the International), to intervene
in this proceeding was granted . On the second hearing
date General Counsel moved to amend the complaint in
various respects. Decision on said motion was reserved.
The allegations in the complaint that the Respondent is
an employer as defined in Section 2(2) of the Act and is
engaged in commerce within the meaning of Section 2(6)
and (7 ) and that the Local and the International are labor
organizations as defined in Section 2(5) of the Act are ad-
mitted by Respondent in its answer.
On November 2, 1966, the Respondent duly filed a
motion to dimiss the complaint together with a memoran-
dum in support thereof, which , among other things, urges
that no useful purposes would be served by litigating this
case because the underlying controversy is not of a con-
tinuing nature and is at an end. The Local , on November
9, 1966, filed a memorandum in opposition to Respond-
ent's motion . Pursuant to an order of Trial Examiner
Herbert Silberman dated December 21, 1966 , further
memoranda in opposition to the motion to dismiss
the complaint were filed on January 13, 1967, by the Lo-
cal, the International , and the General Counsel . No oral
testimony was taken at the hearings. However, on the
second hearing date various documents were received in
evidence and various stipulations were accepted as part
of the record herein . Oral argument was heard on behalf
of the parties (except the International whose counsel
was unavoidably absent) with respect to General Coun-
sel's motion to amend the complaint and so much of
Respondent's motion to dismiss the complaint as is based
on grounds of mootness . Pursuant to permission granted
on said hearing date each of the parties has filed an addi-
tional brief with respect to said matters.
Upon reading the pleadings, the transcript of record,
and the exhibits herein , and upon consideration of the ar-
guments of the parties hereto, I find in agreement with the
Respondent and for the reasons discussed below that it
will not effectuate the policies of the Act to conduct a ple-
nary hearing in this case and decide the issues alleged in
the complaint to constitute unfair labor practices.
The complaint , in relevent part , alleges in substance
that:
1. The production and maintenance employees at
Respondent ' s Appliance Park , Kentucky , plant (the only
facility operated by Respondent which is involved in this
case), as described by the Board in the case reported at
106 NLRB 364, constitute an appropriate collective-bar-
gaining unit.
2. Pursuant to the certification of representatives is-
sued by the Board in said case the Local since 1953 has
been the representative of the employees in above-
described unit.
3. Since 1963, the Local acting with the International
has negotiated national agreements with the Respondent
covering the employees at the Appliance Park plant as
well as employees at other facilities of the Respondent.
The agreement entered into as of September 30, 1963,
and which expired on October 2, 1966, was in effect at
the time the events material hereto occurred . Pursuant to
article XI of said contract the Local and the Respondent
167 NLRB No. 119
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about October 7, 1963, entered into a "Local Supplemen-
tal Agreement" which also expired on October 2, 1966.'
4. On March 2, 1966, the employees at Respon-
dent's Appliance Park plant went on strike and said strike
was not in violation of the limited no-strike provisions of
the National Agreement.
5. Since March 2, 1966, the Respondent has refused
to bargain collectively with the Local as the exclusive
representative of the Appliance Park employees,
although demands to bargain had been made by the Local
and the International in that Respondent has: (a) refused
to meet and bargain with the Local on any contract ad-
ministration matters as long as the employees remained
on strike, and (b) conditioned the resumption of bargain-
ing with Local 761 on contract administration matters
upon the employees abandoning the strike and returning
to work.
The principal effect of the proposed amendments to the
complaint would be to allege that the International (rather
than the Local- see subparagraph numbered 2 above) is
and has been the representative of the Appliance Park
plant employees and to allege that since March 2, 1966,
the Respondent has refused to bargain collectively with
both the Local and the International in the two respects
described in subparagraph numbered 5 above. While I do
not here rule on the General Counsel's motion to amend
the complaint, nevertheless, for the purposes of the in-
stant decision I shall assume that the complaint has been
changed in accordance with the proposed amendments.
The only substantial matter in dispute in this case is
whether on December 1, 1964, the Respondent and the
Local entered into a valid and binding agreement
(hereinafter referred to as the "10-day agreement") limit-
ing the circumstances under which the Appliance Park
plant employees might strike. On November 16, 1964,
the Local sent to the Respondent a written proposal to
the effect that it will give the Respondent not less than 10
days' advance notice before it will call any strike (other-
wise permitted under the terms of the 1963 National
Agreement) with respect to any unresolved grievance
provided that certain pending grievances are disposed of
by the Respondent in the manner set forth in the
proposal. On December 1, 1964, the Respondent wrote
a letter to the Local accepting said proposal and
thereafter the Respondent complied with all the condi-
tions on its part to be performed under the terms of said
proposal.
It is the position of the General Counsel, the Interna-
tional, and the Local that the 10-day agreement at no time
constituted a binding contract because the International
had not approved the same and such approval was a
necessary prerequisite before any such agreement
between the Local and the Respondent could become ef-
fective. In support of this position article XXI of the 1963
National Agreement is cited which, in relevant part,
reads:
After the effective date of this Agreement, new local
understandings will be recognized and made effec-
tive only where set forth in writing and signed by
local management and the Local, and approved by
the Company and the Union (International).2
On February 27, 1966, the Local sent a telegram to the
Respondent repudiating the 10-day agreement.3 On
March 2, 1966, the employees at Respondent's Ap-
plicance Park plant went on strike over unresolved
grievances During the time the strike was in progress,
the Respondent refused to discuss the grievances pending
with respect to the Appliance Park plant employees or
any settlement of the strike It is Respondent's position
that the 10-day agreement was then effective, that the
strike was called without giving Respondent the requisite
10 days' advance notice, that the strike therefore consti-
tuted a breach of the 10-day agreement, and accordingly
the Respondent was relieved of its obligations to bargain
about any matters relating to the Appliance Park plant
employees."
On March 22, 1966, the strike ended and with the ter-
mination of the strike the Respondent discontinued the
refusal to bargain complained of herein. General Counsel
agrees that the alleged unfair labor practices described in
the complaint herein ceased on March 22, 1966.
The Respondent asserts that the 10-day agreement ter-
minated on October 2, 1966, when the 1963 GE IUE
National Agreement expired.5 Thus, all parties are in
agreement that the 10-day agreement has not been in ef-
fect since October 2, 1966.
The unfair labor practices which Respondent in this
proceeding is alleged to have engaged in were limited in
compass and scope as well as duration. Respondent did
not renounce its collective-bargaining obligations nor did
it engage in any conduct which reflects a rejection of the
collective-bargaining duties imposed upon it by the Act.
Its alleged objectionable conduct wa; confined to a
refusal to bargain about matters relating to its Appliance
I Article XI of the 1963 GE-IUE National Agreement provides that
"each Local shall negotiate with local Management a written Agreement
covering the layoff and rehiring procedure for the employees represented
by the Local " The 1963 National Agreement contemplated the possibili-
ty of further local agreements covering additional subjects
t In an action before the United States District Court for the Western
District of Kentucky at Louisville, Civil Action No 5349, begun by tthe
Company, as plaintiff, against the Local and the International , as defen-
dants , under Section 301 of the Labor Management Relations Act and the
Declaratory Judgment Act of 1948, as amended, the court found that the
10-day agreement "is a valid and enforceable settlement of grievances at
the second step of Article XIII of the National Agreement The agree-
ment is supported by adequate consideration binding plaintiff and Local
761 (but not the International) until at least October 2, 1966, or until it is
mutually rescinded by plaintiff and Local 761 The Acts of Local 761
[in calling a strike on March 2, 1966, without giving the Respondent 10
days advance notice] constituted a breach of this agreement " An ap-
peal is pending from the judgment in this action The parties are in dis-
agreement as to the meaning of the district court's judgment and what, if
any, influence it should have upon the disposition of this unfair labor prac-
tice proceeding However, it is unnecessary now to consider these
questions because the issues raised thereby are not relevant to the pending
motion
S Counsel for the International in his brief, filed on January 17, 1966,
asserts, "Although Judge Gordon found that Local 761 was `authorized'
to enter into the ten day agreement he does not indicate the source of such
authority It was certainly not from the International Union which ex-
pressly repudiated said agreement pursuant to Article XXI (2) as soon as
it was apprised thereof on August 18, 1965 "
"Marathon Electric Mfg Corp, 106 NLRB 1171, affd sub nom
United Electrical, Radio and Machine Workers ofAmerica, Local 1113
v N L R B, 223 F 2d 338, 341 (C A D C ), cert denied 350 U S 981
See also United Elastic Corp, 84 NLRB 768, 773, Publicity Engravers,
Incorporated, 161 NLRB 221
s At the hearing, counsel for Respondent asserted that the 10-day
agreement terminated on October 2, 1966, and further that he was
authorized to make such assertion on behalf of the Respondent
GENERAL ELECTRIC COMPANY
Park plant employees while such employees were on
strike in violation of the terms of the 10-day agreement.
Under established Board decisions this was Respond-
ent's privilege if the 10-day agreement constituted a
valid and binding contract. Thus, Respondent purported
to act under color of right and law and not in defiance of
the provisions of the Act. There has been no repetition of
the alleged unfair labor practices since March 22, 1966.
Furthermore, it is unlikely and improbable that any
similar unfair labor practice can occur in the future. The
10-day agreement, according to Respondent, expired on
October 2, 1966. But for the existence of the 10-day
agreement the alleged unfair labor practices could not
have occurred in the first place Certainly no similar
situation can arise in the future unless the Charging Party
6 In its brief, the International argues
Because of the likelihood that Respondent may again negate and im-
pair the results of national bargaining by attempting to enforce similar
local understandings in violation of the provisions of Article XXI of
the National Agreement, the IUE will urge the Trial Examiner to
require Respondent to post notices in each of its plants covered by
the National Agreement wherein it will (a) affirm the efficacy of the
national bargaining unit and inviolability of the provisions of the Na-
tional Agreement, and
It is not the function of the Board to enforce the terms of collective-bar-
gaining agreements (except only to the extent necessary to remedy unfair
labor practices) The complaint in this proceeding raises no question con-
cerning "the efficacy of the national bargaining unit and inviolability of the
provisions of the National Agreement." If the conduct complained of here
was that the Respondent had bypassed the International, as the certified
867
should once again without the International's concur-
rence enter into a partial no-strike understanding with the
Respondent. Thus, the possibility of any recurrence of
similar unfair labor practices depends not only upon the
conduct of the Respondent but also upon the Charging
Party exceeding the alleged limitations vis-a-vis the Inter-
national upon its contractual authority.6 In the circum-
stances, no useful purpose in the effectuation of the Act
would be served by holding a plenary trial in this matter.7
RECOMMENDED ORDER
It is therefore recommended that the complaint in this
proceeding be dismissed in its entirety.
representative of Respondent's employees, and had bargained with the
Local in defiance of Respondent's statutory duty to deal exclusively with
the employees' duly designated representative then such alleged violation
might reasonably be related to the remedy suggested by the International
However, the conduct complained of here is exactly opposite The
Respondent is not accused of dealing with the Local in derogation of the
International's bargaining rights, but to the contrary, the Respondent is
charged with a refusal to bargain with the Local (and also the International
as per the amendment to the complaint) Thus, the International's argu-
ment quoted above is misplaced in this proceeding and is outside the
scope of the issues framed by the pleadings
' Sohio Chemical Company, Acrylomtnle Plant, 141 NLRB 810, in I
and 818-819, Puerto Rican American Sugar Refinery, Inc, 136 NLRB
428, 431, Tip Top Roofers, Inc. v N L R B , 324 F.2d 773, 774 (C A 5)
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