Indiana And Michigan Electric Co.

National Labor Relations Board - Board Decisions

May 29, 1987

284 N.L.R.B. 53 (N.L.R.B. 1987)

INDIANA & MICHIGAN ELECTRIC CO. 53
Indiana and Michigan Electric Company and Local
Union No. 1392, International Brotherhood of
Electrical Workers, AFL-CIO. Case 25-CA-
10549
29 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, AND STEPHENS
On 30 July 1981 Administrative Law Judge
Nancy M. Sherman issued the attached decision.
The Respondent filed exceptions and a supporting
brief. The Charging Party filed cross-exceptions, a
brief in support thereof, and an answering brief to
the Respondent's exceptions. The General Counsel
filed a brief in support of the judge's decision. The
Respondent then filed an answering brief to the
Charging Party's cross-exceptions.
On 16 November 1983 the Board scheduled oral
argument for 6 December 1983 because this case
presents important issues in the administration of
the National Labor Relations Act. The Respond-
ent, the General Counsel, and the Charging Party
presented oral arguments on that date. The Ameri-
can Federation of Labor and Congress of Industrial
Organizations and the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Help-
ers of America also presented oral arguments as
amici curiae. Following the oral argument, the Re-
spondent, the General Counsel, and the Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America filed sup-
plemental briefs pursuant to leave granted by the
Board.
The Board has carefully reviewed the transcript
of the oral argument. It has considered the decision
and the record in light of the exceptions, briefs,
and oral arguments and has decided to affirm the
judge's rulings, findings, and conclusions only to
the extent consistent with this Decision and Order.
I. FACTS
The Union is the collective-bargaining represent-
ative of the Respondent's employees in four sepa-
rate bargaining units: South Bend, Marion-Muncie,
Fort Wayne, and General Office. The parties cus-
tomarily negotiate a separate collective-bargaining
agreement for each unit. The 1976-1978 agree-
ments provided for a grievance-arbitration proce-
dure consisting of four grievance steps followed by
"initial arbitration" and "sole arbitration." 1 The
1 Initial arbitration under the 1976-1978 agreements consisted of a
meeting between a representative of the Union and a representative of
the Respondent at which the representatives attempted to agree on a res-
olution of the grievance. The Union's business manager testified that the
South Bend contract expired in October 1978 and
the other three agreements expired in December
1978. The parties stipulated that they did not
extend the expired agreements. The Union and the
Respondent had not agreed on new contracts when
the 1976-1978 contracts expired. They eventually
negotiated new contracts, which went into effect in
early November 1979.
Immediately after the 1976-1978 agreements ex-
pired, the Respondent sent a letter for each unit to
the Union stating that the terms of the expired
agreements providing for initial and sole arbitration
"will not be applied for grievances filed during the
time we are without an agreement." During the
hiatus between the expiration dates of the 1976-
1978 agreements and the effective dates of the
1979-1981 agreements, the parties processed griev-
ances through the four grievance steps established
under the expired contracts. The Respondent re-
fused, however, to advance nine grievances to ini-
tial arbitration, stating by letter in each case that it
would not "arbitrate grievances based on alleged
violations of the contract which occurred during
the contractual hiatus." The parties stipulated that
all nine of the grievances were filed after the 1976-
1978 contracts expired and before the 1979-1981
contracts took effect, and "related to events that
occurred during the contractual hiatus." The Re-
spondent was apprised of the term or terms of the
pertinent expired contract upon which each griev-
ance was based either by the grievance itself or by
the Union's representative at one of the grievance
steps. All four of the expired agreements provided
that "grievances which do not involve interpreta-
tions or applications of a specific term or terms of
this agreement shall not be arbitrable."2
difference between initial arbitration and the four grievance steps is that
at initial arbitration the employee grievant and other individuals involved
in the events underlying the grievance are not present The 1976-1978
agreements provided that if the two "initial arbitrators" fail to agree on a
resolution of the grievance within a certain period of time, the parties
shall choose a sole arbitrator to decide the dispute. The agreements fur-
ther provided that the sole arbitrator shall hold a hearing and render a
decision in writing which shalt be final and binding on the parties The
parties omitted initial arbitration from the 1979-1981 agreements
2 The grievances concerned the following events. McCormick's sus-
pension for excessive absenteeism, McCormick's suspension for improper
job performance and sleeping on company time, the Respondent's failure
to assign Evans overtime, giving the work to a supervisor instead; the
Respondent's failure to provide Keating proper working conditions and
compensation when he was assigned to a job away from his normal work
location, the Respondent's request that Stone report to his new job 2
days before the date he was told he would be transferred, the Respond-
ent's failure to pay Davis Line Mechanic A wages for time he spent
working as a leadman, the manner in which the Respondent assigned
routes to Burkhardt and other meter readers; an oral warning given to
meter readers for failure to read enough meters in a day; a supervisor's
acquisition of an employee's telephone number and use of It to contact
her at home.
284 NLRB No. 7
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. CONTENTIONS OF THE PARTIES
The question before us is whether the Respond-
ent's refusal to arbitrate grievances under the ex-
pired contracts constitutes a violation of the Re-
spondent's duty to bargain under Section 8(a)(5) of
the Act. As we explain in our analysis below, that
refusal embraces two categories of conduct: (1) the
Respondent's statement in its letter to the Union
that it would not apply the arbitration clause of the
expired agreements to any grievance filed during
the time there was no contract and its failure to
give individualized reasons for its refusals to arbi-
trate the nine grievances filed by the Union; and
(2) the Respondent's refusals to arbitrate each of
those nine grievances.
The amended complaint alleges that the Re-
spondent modified the grievance-arbitration proce-
dure in violation of Section 8(a)(5) by refusing to
arbitrate grievances as required by the collective-
bargaining agreements. The General Counsel
argues that the Supreme Court's decision in Nolde
Bros. v. Bakery Workers Local 358, 430 U.S. 243
(1977), imposes on the Respondent a contractual
duty to apply the arbitration provisions of the
1976-1978 collective-bargaining agreements to the
nine grievances. The Charging Party contends that
the Respondent's refusal to arbitrate all grievances
arising during the contractual hiatus violated Sec-
tion 8(a)(5) because it constituted a general repudi-
ation of the Respondent's contractual duty to arbi-
trate and an unlawful unilateral change in a term or
condition of employment. The Respondent argues
that it is not bound to an agreement to arbitrate
under Nolde because Nolde compels arbitration of
postexpiration grievances only where the griev-
ances concern rights accrued or vested while the
contract was still in effect, and the nine grievances
at issue here do not concern such rights. It also
argues that the obligation to arbitrate is exclusively
a creature of contract and cannot be imposed
solely by operation of the Act. Finally, the General
Counsel and the Charging Party contend, and the
judge found, that initial arbitration is in fact a fifth
step in the grievance procedure and the Respond-
ent's failure to adhere to it therefore violated Sec-
tion 8(a)(5) even assuming the Respondent had no
contractual obligation to do so. See, e.g., Bethlehem
Steel Co., 136 NLRB 1500 (1962), enfd. in pertinent
part 320 F.2d 615 (3d Cir. 1963) (unilateral aban-
donment of contractual grievance procedure after
contract expired violated Sec. 8(a)(5)).
III. ANALYSIS AND CONCLUSIONS!
A.
We agree with the judge's finding that initial ar-
bitration is really the last step in grievance process-
ing. Unlike arbitration, which is characterized by
the parties' consensual surrender to an entity with
the authority to issue a final and binding decision,
both parties here may participate in initial arbitra-
tion and still remain "free to adhere to their initial
position if they remain unconvinced by the facts
and arguments brought out in the course of the
grievance procedure." Newspaper Printing Corp.,
221 NLRB 811, 820 (1975). Accordingly, we adopt
the judge's conclusion that the Respondent's aban-
donment of initial arbitration was a unilateral
change in the grievance procedure in violation of
Section 8(a)(5). See Bethlehem Steel Co., supra.
The Chairman dissents from our holding on this
issue on the ground that, although an employer has
a continuing duty to meet and confer with its em-
ployees' collective-bargaining representative, it
may—once a contract has expired—unilaterally
abandon the contractually established procedures
by which it had previously resolved grievances
(except as to grievances that remain arbitrable
under Nolde). In concluding that such procedures
may be unilaterally abandoned upon contract expi-
ration, he relies on dictum in Bay Area Sealers, 251
NLRB 89 (1980), enfd. as modified on other
grounds 665 F.2d 970 (9th Cir. 1982), into which
he evidently reads an intent sub silentio to overrule
well-settled precedent.
In Bay Area Sealers, the Board found that the re-
spondent employer violated Section 8(a)(5) by uni-
laterally changing pay and fringe benefit rates after
expiration of the contract by which they were
originally set. There is no indication that the Board
had before it any contention concerning changes in
a grievance procedure. Hence, the Board's distinc-
tion (251 NLRB at 90) between "terms and condi-
tions established by the contract and governing the
employer-employee . . . relationship," on the one
hand, and contractually established terms and con-
ditions governing the "employer-union" relation-
ship, on the other, is not essential to its holding in
that case. Moreover, the Board's mere reference to
that distinction does not make clear how the Board
would classify various terms and conditions of em-
3 This opinion represents the views of Members Babson and Stephens.
Member Johansen, in a concurring and dissenting opinion, jams them in
finding both 8(a)(5) violations, but he dissents as to the remedy. The
Chairman joins the majonty in finding the 8(a)(5) violation as to the blan-
ket refusal to arbitrate, and he joins Members Babson and Stephens as to
the appropriate remedy for that violation In a separate opinion he dis-
sents as to the scope of the violation based on the Respondent's unilateral
abandonment of the "initial arbitration" step of the grievance procedure.
INDIANA & MICHIGAN ELECTRIC CO. 55
ployment. To assume that the reference to matters
involving the "employer-union" relationship neces-
sarily encompassed procedures for resolving em-
ployee grievances is to assume that by the mere use
of that phrase the Board was silently signaling an
intent to overrule Bethlehem Steel Co., 136 NLRB
1500 (1962), a decision that had then been on the
books for nearly 20 years. We cannot agree that
such an intent would have been expressed in so in-
direct and casual a manner. Indeed, a court of ap-
peals has recently rejected an employer's attempt
to rely on this very same "ambiguous dictum" in
support of an argument that an employer may uni-
laterally change hiring hall procedures after con-
tract expiration. Southwestern Steel & Supply v.
NLRB, 806 F.2d 1111, 1113 (D.C. Cir. 1986). The
court also noted that the few recognized exceptions
to the general rule that an employer must bargain
over postexpiration changes in employment terms
and conditions were not "rooted" in the "rule-
swallowing logic" by which the employer con-
strued that dictum. 806 F.2d at 1114.
The few exceptions to the general rule that an
employer must bargain about changes in terms and
conditions of employment regardless of how those
terms came to be initially established have been
created for reasons that in no way support an ex-
ception for allowing unilateral changes in employee
grievance procedures. The exception, mentioned by
the Chairman, permitting unilateral abandonment
of union-security and checkoff arrangements after
contract expiration is based on the fact, noted in
Bethlehem Steel, that "[t]he acquisition and mainte-
nance of union membership cannot be made a con-
dition of employment except under a contract
which conforms to the proviso to Section 8(a)(3)."
This term and condition is thus inherently and
solely a contractual matter, and an employer's re-
fusal to enforce a union-security provision without
a proper contractual basis is "in accordance with
the mandate of the Act." 136 NLRB at 1502. As
explained elsewhere in our opinion in this case, the
other exception to which he refers—the limited ex-
ception governing postexpiration arbitration—is
supported by the established principle that because
arbitration involves submission to a final and bind-
ing decision by a third party, "a party cannot be
required to submit to arbitration any dispute which
he has not agreed so to submit." Steelworkers v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 582
(1960).
The policies supporting those two exceptions do
not apply to procedures by which employees
present their grievances to an employer. Further-
more, we cannot see how the interest of preserving
industrial peace is served by a rule allowing one
party unilaterally to alter or abandon the procedure
by which the parties have customarily resolved
day-to-day worksite disputes. If either party thinks
there is a good reason to alter such procedures
after contract expiration, then it is free to make its
suggestions to the other party and seek to resolve
any differences through "the framework estab-
lished by Congress as most conducive to industrial
peace." Fibreboard Paper Products Corp. v. NLRB,
379 U.S. 203, 211 (1964). Thus, in holding, as we
do, that neither party can unilaterally abandon their
grievance procedures, we do not, as the Chairman
asserts, "insist upon rigid adherence to an expired
and truncated contractual dispute resolution
system." We merely insist that changes in that dis-
pute resolution system be made only after the par-
ties concerned have agreed to them or otherwise
adequately bargained over the matter.
B.
In Hilton-Davis Chemical Co., 185 NLRB 241
(1970), the Board presumed that the employer had
no contractual obligation to follow the arbitration
procedure after the expiration of the contract. Ac-
cordingly, the Board concluded that the employer
had not violated Section 8(a)(5) of the Act by re-
fusing to arbitrate certain grievances arising during
the contractual hiatus. The Board rested its deci-
sion on "elemental considerations of the nature of
the duty to bargain." 185 NLRB at 242. First, it
pointed out that Section 8(d) of the Act explicitly
provides that the duty to bargain does not include
the obligation to agree to a proposal or to make a
concession. It emphasized that the Board is em-
powered to compel the parties to a bargaining rela-
tionship under the Act to meet and confer and to
seek agreement in good faith as to terms and condi-
tions of employment, but that by enacting Section
8(d) Congress left no doubt that each party "must
remain the final arbiter of its own best interest." Id.
The Board then observed that the agreement of
contracting parties to submit to arbitration consti-
tutes a voluntary abstention from the lawful use of
economic weapons to resolve disputes and a volun-
tary surrender of the right of final decision re-
served to the parties by Congress. The Board ac-
knowledged the national policy encouraging arbi-
tration embodied in Section 203(d), but concluded
(185 NLRB at 242):
[W]e must not be induced by that policy or its
benefits to overlook that arbitration is, at
bottom, a consensual surrender of the econom-
ic power which the parties are otherwise free
to utilize. Absent mutual consent, the parties
revert to the statutory scheme of "free" collec-
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tive bargaining wherein each party must at-
tempt in good faith to reach agreement, but is
under no statutory mandate to reach agree-
ment or to forfeit its right to utilize its eco-
nomic power if no agreement can be achieved.
The Board therefore concluded that during a con-
tractual hiatus employers and unions must continue
to meet and confer and seek agreement in good
faith as to grievances arising during that period as
well as to terms of the new contract, but that the
duty to bargain imposed by the Act does not
extend so far as to compel the parties to submit to
arbitration any grievance that they are unable to
resolve.
After Hilton-Davis, the Supreme Court issued its
decision in Nolde Bros v. Bakery Workers Local 358,
430 U.S. 243 (1977). Nolde was a suit to compel ar-
bitration brought under Section 301 of the Act.
The union contended that the employer was obli-
gated to arbitrate its refusal to give severance pay
under an expired collective-bargaining agreement
to employees displaced by a plant closure. The ex-
pired agreement provided that employees who had
worked for the employer for at least 3 years were
entitled to severance pay if permanently displaced
from their jobs. The union claimed severance pay
for employees who had worked for the employer
for at least 3 years while the agreement was still in
effect. The employer claimed that it had no obliga-
tion to arbitrate because the contract containing its
commitment to do so had terminated and the event
giving rise to the dispute—the displacement of em-
ployees on the plant's closing—occurred after the
contract expired.
The Court ,concluded that the dispute was arbi-
trable. First, it pointed out that the resolution of
the union's claim hinged on the interpretation ulti-
mately given the severance pay provision of the ex-
pired agreement: the parties may have intended, as
the union argued, that the right to severance pay
could accrue during the term of the contract and
be realized after the contract expired or, as the em-
ployer argued, that the event severing the employ-
ment relationship must also occur during the life of
the agreement for a claim of severance pay to be
valid. "The dispute therefore," the Court stated,
"although arising after the expiration of the collec-
tive-bargaining contract, clearly arises under that
contract." 430 U.S. at 249. Second, the Court ob-
served that the parties had agreed in the arbitration
clause of the expired contract to resolve "any
grievances" and that the severance pay claim un-
doubtedly would have been subject to resolution
under the clause had it arisen during the contract's
term.
The Court then noted that in John Wiley & Sons
v. Livingston, 376 U.S. 543 (1964), it had interpreted
similar language in an arbitration clause to compel
arbitration of a union's claim that the expired con-
tract required the employer to discharge certain
severance pay obligations notwithstanding the expi-
ration of the agreement. "We thus determined," the
Court stated, "that the parties' obligations under
their arbitration clause survived contract termina-
tion when the dispute was over an obligation argu-
ably created by the expired agreement." 430 U.S.
at 252. The Court declined to depart from this
course on the record before it merely because,
unlike in John Wiley, the union asserted the sever-
ance pay claim after the contract expired.
Finally, the Court observed that the arbitration
clause was silent as to postexpiration grievances
but that, absent a contrary indication, the prompt-
ness and presumed expertise of the arbitrator and
the well-established Federal labor policy favoring
arbitration were strong reasons to conclude that
the parties did not intend their arbitration duties to
terminate automatically with the contract. Accord-
ingly, the Court concluded that "where the dispute
is over a provision of the expired agreement, the
presumptions favoring arbitrability must be negated
expressly or by clear implication." 430 U.S. at 255.
The Court then held that on the record before it
the union's claim to severance pay was subject to
resolution under the arbitration clause of the ex-
pired agreement.
The Board has considered the application of
Nolde in several cases. See Southwest Security
Equipment Corp., 262 NLRB 665 (1982), enfd. 736
F.2d 1332 (9th Cir. 1984), cert. denied 105 S.Ct.
1854 (1985); Digmor Equipment Co., 261 NLRB
1175 (1982); American Sink Top Co., 242 NLRB
408 (1979); Steiner Trucraft, Inc., 237 NLRB 1079
(1978); S & W Motor Lines, 236 NLRB 938 (1978).
In S & W Motor Lines, the union argued that the
Board's position in Hilton-Davis was put into ques-
tion by the Supreme Court's ruling in Nolde. The
Board adopted the judge's conclusion that, even as-
suming Hilton-Davis was no longer viable law, the
arbitration provision did not survive contract expi-
ration because the Nolde presumption favoring ar-
bitrability of postexpiration disputes had been ne-
gated by express language in the contract limiting
the employer's obligation to participate in the
grievance-arbitration process to the term of the
agreement. In Steiner Trucraft, the Board cited
Nolde for the proposition that "a contractual duty
to arbitrate is not autpmatically extinguished by the
termination of the contract, and the parties to such
a contract continue to have the duty to process
grievances and arbitrate disputes that involve rights
INDIANA & MICHIGAN ELECTRIC CO. 57
or benefits which accrue or vest during the con-
tract's term." 237 NLRB at 1081.
In American Sink Top, by contrast, the Board ap-
plied Nolde to order the employer to arbitrate, if
appropriate, the discharge of an employee occur-
ring 2 months after the collective-bargaining agree-
ment expired. The employee had been injured and
had not been on the active payroll for several
months prior to his discharge. The union contend-
ed that the discharge violated the expired agree-
ment. The judge, although finding a violation in
the employer's unilateral refusal to apply the pre-
vailing grievance procedure to the postexpiration
grievance, concluded under Hilton Davis that the
remedy was limited to compliance with that proce-
dure and did not include the obligation to arbitrate
the grievance should it not be resolved. The Board,
however, reasoned that under Nolde the employer
was obligated to arbitrate the discharge notwith-
standing the expiration of the contract because the
basis of the grievance was "arguably'—at least—
the contract, and there is no reason to conclude
that the parties had intended the arbitration provi-
sions to end with the contract's term." 242 NLRB
at 408.
The Board concluded in Digmor Equipment that
American Sink Top was controlling when the
postexpiration discharge the union sought to arbi-
trate was based on conduct of the aggrieved em-
ployee that occurred at least in part while the con-
tract was still in effect. The Board accordingly
held that the employer had violated Section 8(a)(5)
by refusing the union's request to arbitrate the dis-
charge. The judge in Digmor opined that the Board
had overruled Hilton-Davis in light of NoIde in
American Sink Top. In Cardinal Operating Co., 246
NLRB 279 (1979), however, a case that was decid-
ed after American Sink Top, but did not apply
Nolde, the Board adopted the judge's conclusion
based on Hilton-Davis that the employer's unilateral
refusal to arbitrate grievances arising after contract
expiration did not violate Section 8(a)(5) absent an
agreed-upon extension of the contract. Finally, in
Southwest Security Equipment, two Board members,
disclaiming reliance on American Sink Top, adopted
pro forma the judge's conclusion that the arbitra-
tion clause survived the expiration of the collec-
tive-bargaining agreement. The judge there had
cited American Sink Top for the proposition, inter
alia, that the arbitration procedure survives the ex-
piration of the contract creating it and cannot be
modified unilaterally absent impasse.
C.
The above cases illustrate the need for clarifica-
tion of Board law concerning the postexpiration
duty to arbitrate in light of NoIde. Upon careful
consideration, we begin by reaffirming the princi-
ples expressed in Hilton-Davis that the arbitration
commitment arises solely from mutual consent and
that Congress did not intend the National Labor
Relations Act to operate to create a statutory obli-
gation to arbitrate.
The national labor policy favoring arbitration
originated in Section 203 of the Labor Manage-
ment Relations Act (LMRA). Section 203(d) states
that "final adjustment by a method agreed upon by
the parties is hereby declared to be a desirable
method for settlement of grievance disputes arising
over the application or interpretation of an existing
collective bargaining agreement." Nowhere in the
legislative history of this section, however, did
Congress express an intent that congressional ap-
proval of arbitration should be construed to en-
dorse the imposition of a statutory duty to arbitrate.
All indications point to the contrary.
The Senate voted down a substitute for Section
203 that would have provided for compulsory arbi-
tration of disputes over the meaning of existing col-
lective-bargaining agreements that did not contain
an arbitration clause. 93 Cong. Rec. S5036, 5098-
5099, 5103 (daily ed. May 9, 1947). The LMRA
amended the Wagner Act to include a definition of
"to bargain collectively" in the form of Section
8(d). Section 8(d) as passed by the Senate provided
that "to bargain collectively is the performance of
the mutual obligation to meet at reasonable times
and confer in good faith with respect to wages,
hours, and other terms and conditions of employ-
ment, or the negotiation of an agreement, or the
settlement of any question arising thereunder
. . . ." H.R. 3020, 80th Cong., 93 Cong. Rec.
S5297 (daily ed. May 13, 1947). (Emphasis added.)
The conference committee adopted the Senate's
definition of collective bargaining in the form of
Section 8(d), but deleted the underscored language.
The House conference report states that "the Con-
ference agreement omits from the Senate amend-
ment words that were contained therein which
might have been construed to require compulsory
arbitration of grievance disputes and other disputes
over the interpretation or application of the con-
tract." H.R. Conf. Rep. No. 510, 80th Cong. 35
(June 3, 1947).
The Supreme Court in Steelworkers v. Warrior &
Gulf Navigation Co., 363 U.S. 574 (1960), gave
effect to the congressional policy in favor of the
voluntary settlement of disputes through arbitration
by creating a presumption of arbitrability. This pre-
sumption provides that an order to compel arbitra-
tion under Section 301 of the LMRA "should not
be denied unless it may be said with positive assur-
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ance that the arbitration clause is not susceptible of
an interpretation that covers the asserted dispute.
Doubts should be resolved in favor of coverage."
363 U.S. at 582-583. At the same time, however,
the Court recognized that the congressional prefer-
ence for arbitration could be given effect only in
the context of an agreement to arbitrate. After dis-
cussing at length the important role of arbitration
in ensuring industrial peace, the Court stated (363
U.S. at 582):
The Congress, however, has by § 301 of the
Labor Management Relations Act, assigned
the courts the duty of determining whether the
reluctant party has breached his promise to ar-
bitrate. For arbitration is a matter of contract
and a party cannot be required to submit to ar-
bitration any dispute which he has not agreed
so to submit.
The Court reaffirmed this principle in Gateway
Coal Co. v. Mine Workers, 414 U.S. 368, 374 (1974),
stating unequivocally that "[nit) obligation to arbi-
trate a labor dispute arises solely by operation of
law. The law compels a party to submit his griev-
ance to arbitration only if he has contracted to do
so."
The conclusion in Hilton-Davis that the Act does
not impose a duty to adhere to the arbitration pro-
cedure independent of any contractual commitment
to do so is entirely in accord with the legislative
history and Supreme Court decisions. We are
unable to conclude that Nolde overruled Hilton-
Davis in this respect. Nolde was a suit to compel ar-
bitration and thus focused on the construction of
the contract rather than the interpretation of the
National Labor Relations Act. The Board in
Hilton-Davis held that arbitration could not be
compelled when the parties had not originally
agreed to arbitrate. The Court in Nolde held that
when the parties have agreed to arbitrate griev-
ances arising under the contract, that obligation is
presumed to continue. The underlying principles of
both decisions are fully compatible. The Court ex-
pressly rejected the employer's argument in Nolde
that the imposition of a duty to arbitrate postexpir-
ation grievances during a contractual hiatus would
be contrary to prior decisions of the Court holding
that arbitration is a creature of the collective-bar-
gaining a'greement and cannot be imposed absent a
contractual obligation. The Court simply observed
that adherence to this basic principle did not re-
quire it to hold that the termination of a collective-
bargaining agreement automatically extinguishes
the contractual obligation to arbitrate grievances
arising under that agreement. 430 U.S. at 252.
D.
We do not, by our reaffirmation of the principles
underlying Hilton-Davis, abandon our prior holding
that arbitration is a mandatory subject of bargain-
ing; i.e., a term or condition of employment con-
cerning which the parties are required by the Act
to meet and confer in good faith. See, e.g., U.S.
Gypsum Co., 94 NLRB 112 (1951); see generally
NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958).
The Charging Party argues that because arbitration
is a mandatory subject of bargaining, we are com-
pelled by the Supreme Court's decision in NLRB v.
Katz, 369 U.S. 736 (1962), to conclude that the Re-
spondent's unilateral abandonment of that proce-
dure during the contractual hiatus violated Section
8(a)(5).
The Supreme Court concluded in Katz that an
employer engaged in bona fide contract negotia-
tions with the union nevertheless violated its duty
to bargain under Section 8(a)(5) by simultaneously
instituting changes in mandatory subjects of bar-
gaining without consulting the union first. The
Court reasoned that a showing of the employer's
bad faith was unnecessary because the unilateral
imposition of a new sick leave plan and a wage and
merit increase system amounted to a flat refusal to
bargain over the affected subjects.
The Court in Katz construed the duty to bargain
under the Act to require the employer to maintain
the status quo in mandatory subjects of bargaining
prior to negotiations or reaching agreement with
the union and to offer the union an opportunity to
bargain over proposed changes in mandatory sub-
jects before changes are implemented. We do not
believe that the Court's general formulation in Katz
of the requirements imposed by Section 8(a)(5) is
applicable to the postexpiration withdrawal from
arbitration. To conclude otherwise flies in the face
of the specific admonition of the Court and the
clear intent of Congress that submission to arbitra-
tion is purely a matter of consent and cannot be
mandated by operation of the Act. Rather, we find,
because an agreement to arbitrate is a product of
the parties' mutual consent to relinquish economic
weapons, such as strikes or lockouts, otherwise
available under the Act to resolve disputes, that the
duty to arbitrate is sui generis. It cannot be com-
pared to the terms and conditions of employment
routinely perpetuated by the constraints of Katz.
We believe, therefore, that if a duty to arbitrate
arising from such mutual and voluntary congent
survives the expiration of the written agreerrient
embodying it, it cannot be solely on the basis of
general rules of bargaining developed under the
National Labor Relations Act. Our view in this
INDIANA & MICHIGAN ELECTRIC CO. 59
regard is not unprecedented. We have also de-
clined to apply Katz to unilateral abandonment of
union-security and dues-checkoff provisions follow-
ing contract expiration because they, like arbitra-
tion, are purely creatures of contract. See Bethle-
hem Steel Co., 136 NLRB 1500, 1502 (1962), affd.
in pertinent part sub nom. Shipbuilders v. NLRB,
320 F.2d 615 (3d Cir. 1963).4
E.
We have held above that the obligation to arbi-
trate cannot be created or maintained solely by op-
eration of the Act. Accordingly, if the Respondent
has an enforceable obligation to arbitrate the dis-
putes originating during the 1978-1979 contractual
hiatus, it arises from the 1976-1978 collective-bar-
gaining agreements. We now turn to the conten-
tions of the General Counsel and the Charging
Party that the Respondent violated Section 8(a)(5)
by _repudiating the commitment to arbitrate con-
tained in those agreements and by breaching its
contractual obligation under NoIde to arbitrate
each of the nine hiatus grievances.
It is well settled that a breach of contract is not
per se an unfair labor practice. See, e.g., NCR
Corp., 271 NLRB 1212, 1213 fn. 6 (1984); Para-
mount Potato Chip Co., 252 NLRB 794 (1980);
United Telephone Co. of the West, 112 NLRB 779,
782 fn. 4 (1955). On the other hand, where a
breach of contract, under all the circumstances,
amounts to a wholesale repudiation of the collec-
tive-bargaining agreement, the Board will find an
8(0(5) violation. See, e.g., Sea Bay Manor Home for
Adults, 253 NLRB 739, 741 (1980); Paramount
Potato Chip Co., 252 NLRB 794, 796-797 (1980);
Airport Limousine Service, 231 NLRB 932, 934-935
(1977); Bell Co., 225 NLRB 474, 481 0976); Curtis
Mfg. Co., 189 NLRB 192, 196 (1971). Accordingly,
the issue presented by the parties' contentions is
whether the Respondent's conduct in refusing to
arbitrate rose to the level of a repudiation of its
contractual obligation. For the following reasons,
we conclude that it did.
At the outset, we note that the holding in Hilton-
Davis that an employer is free to abandon the arbi-
tration procedure during a contractual hiatus must
be modified in light of Nolde. That holding was
based on the assumption that when "the contract
expires, the arbitration commitment expires." S &
W Motor Lines, 236 NLRB at 948. Nolde teaches,
however, that in certain circumstances the arbitra-
4 For the same reason we have concluded that Katz is inapposite to
refusals to arbitrate, we also reject the General Counsel's supplemental
argument, apparently found meritorious by the judge, that the Board
should apply Nolde to impose a duty to arbitrate disputes over the mean-
ing of employment terms that were established by a collective-bargaining
agreement but remain in effect by operation of Katz
tion commitment survives the expiration of the col-
lective-bargaining agreement embodying it. Here,
as in Nolde, the expired contracts contained a
broad arbitration clause and did not contain lan-
guage sufficient to negate the presumption that the
contractual obligation to arbitrate grievances aris-
ing under the contract extends to postexpiration
disputes. 5 Accordingly, the Respondent remained
subject to a potentially viable contractual commit-
ment to arbitrate even after the contracts expired.
The Respondent was not free to abandon the griev-
ance-arbitration procedure unilaterally and without
qualification upon the expiration of the 1976-1978
agreements. The Respondent's refusal to arbitrate
constituted an unlawful unqualified abandonment
because it encompassed not only grievances for
which there may have been no postexpiration obli-
gation to arbitrate under Nolde, but also grievances
arbitrable under Nolde.
The Respondent's conduct in refusing to arbi-
trate cannot be characterized as a mere breach of
the arbitration clauses of the expired contracts.
Rather, the Respondent took the position that upon
contract expiration it was no longer bound by the
arbitration provisions. The Respondent followed
through on its initial declaration that it would not
apply the arbitration provisions during the contrac-
tual hiatus by routinely refusing to arbitrate any
hiatus grievance. It expressly grounded its refusal
to arbitrate in each case on its general intention not
to arbitrate any grievances arising while the parties
were without a contract. The Respondent did not
limit its refusal to arbitrate to a particular griev-
ance or class of grievances. Accordingly, we find
that the Respondent's entire course of conduct
amounted to a wholesale repudiation of its contrac-
tual obligation to arbitrate. See Paramount Potato
Chip Co., 252 NLRB at 797; Taft Broadcasting Co.,
5 The Respondent has excepted to the judge's conclusion that neither
the presence of termination clauses in the 1976-1978 agreements nor the
language in the arbitration clauses of those agreements limiting arbitra-
Why to disputes over contract interpretation rebuts the Nolde presump-
tion that the arbitration clauses were not intended to expire for all pur-
poses with the agreements. We adopt the judge's conclusion. The arbitra-
tion clauses in all four agreements are indistinguishable from arbitration
provisions held to survive contract expiration. Local Joint Executive
Board of Las Vegas v Royal Center, Inc , 119 LRRM 2958, 2960-2961 (9th
Cir 1985) The presence of specified termination dates upon notice by
either party in the termination clauses of the contracts also fails to rebut
the Nolde presumption The contract at issue in Nolde itself contained
such a clause We note that the termination clause us_ the General Office
contract also states that "ON the event of termination of this agreement
as herein provided, it shall cease to have binding effect, and the terms
and conditions herein may be altered, modified, or terminated without
further notice." We conclude that this language m the General Office ter-
mination clause does not amount to the clearly implied or express nega-
tion necessary to rebut the Nolde presumption that the broad arbitration
clause here encompasses disputes arising after contract expiration See
Nolde, 430 U S at 254, 255 Cf. Steelworkers v. Fort Pot Steel Casting, 105
LRRM 3232, 3235 (1980)
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
185 NLRB 202, 204 (1970). 6 We conclude, there-
fore, that the Respondent violated Section 8(a)(5)
and (1) of the Act by announcing to the Union
upon the expiration of the 1976-1978 contracts that
it would not arbitrate any grievances filed during
the contractual hiatus and routinely refusing to ar-
bitrate hiatus grievances as they arose.7
IV. REMEDY
Having found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist and post the appropriate notice.
Also, we shall remedy the Respondent's unilateral
abandonment of the last step of the grievance pro-
cedure by ordering it to process the nine hiatus
grievances through "initial arbitration." In accord
with the analysis set forth in section III,C, above,
however, it would be inappropriate to remedy the
Respondent's repudiation of its contractual commit-
ment to arbitrate by ordering arbitration of the nine
hiatus grievances unless that commitment extends
under Nolde to those particular grievances.8
Nolde provides a rule of construction for deter-
mining whether an agreement to arbitrate con-
tained in a collective-bargaining contract extends to
disputes arising after the contract expires. Under
Nolde, the parties are bound to arbitrate such dis-
putes if they are over rights "arising under" the ex-
pired contract, and the contract does not negate
expressly or by clear implication the presumption
favoring postexpiration arbitration of such disputes.
We have held that the presumption favoring sur-
vival of the arbitration commitment had not been
negated here. Accordingly, whether the nine hiatus
grievances are arbitrable under Nolde turns on
whether they "arise under" the expired agreements.
We acicnowlege that NoIde contains language
with a broader sweep than its narrow holding that
a claim to severance pay arguably accruable under
the contract is arbitrable even though the plant
closed after the contract expired. We conclude,
however, in agreement with the circuit courts that
have addressed the issue, that a dispute based on
6 That the Respondent also stated that the subject matter was not arbi-
trable in refusing to arbitrate one of the nine hiatus grievances is not suf-
ficient to undermine our finding as to the Respondent's overall conduct
7 we emphasize that, in so concluding, we do not depart from the long
line of Board cases holding that the mere refusal to arbitrate a particular
grievance or class of grievances is not a violation of the Act See, e g.,
GAF Corp., 265 NLRB 1361, 1364-1365 (1982), Whiting Roll Up Door
Mfg. Corp, 257 NLRB 734, 734 fn. 2 (1981), Central Rufina, 161 NLRB
696, 700 (1966), Central Illinois Public Service Co., 139 NLRB 1407, 1418
(1962); United Telephone Co of the West, 112 NLRB 779, 781 (1955); Tex-
tron Puerto Rico, 107 NLRB 583 (1953) We will continue to consider the
facts of each case and find no violation where the contract may have
been breached but the conduct complained of does not amount to a
wholesale repudiation of a contractual commitment to arbitrate
8 The Board is empowered under its authority to remedy unfair labor
practices to construe and give effect to contractual obligations NLRB v
Strong Roofing Co, 393 U S. 357 (1969)
postexpiration events "arises under" the contract
within the meaning of Nolde only if it concerns
contract rights capable of accruing or vesting to
some degree during the life of the contract and rip-
ening or remaining enforceable after the contract
expires. See Teamsters v. C.R.S.T, 795 F.2d 1400,
1403-1404 (8th Cir. 1986) (right to be discharged
for cause does not "arise under" expired agree-
ment); Garment Workers Local 589 v. Kellwood Co.,
592 F.2d 1008 (8th Cir. 1979) (scope of employer's
obligation under expired contract to "maintain"
pension benefits "in effect" arbitrable under Nolde).
See also Joint Executive Board of Las Vegas v. Royal
Center, Inc., 119 LRRM 2958, 2961 (9th Cir. 1985)
(clause requiring sale of business to be conditioned
on predecessor's assumption of contract "arises
under" contract to preserve intent of parties that
the clause be of some value to the union); Nibbs v.
Felix, 726 F.2d 102, 104 (3d Cir. 1984) (dispute
over failure to promote "arises under" expired con-
tract only if eligibility list structured or prepared
under that contract); Federated Metals Corp. v.
Steelworkers, 648 F.2d 856 (3d Cir. 1981) (whether
expired pension plan allowed years of service after
contract expiration to be counted in determining
eligibility upon plant closing arbitrable under
Nolde); Teamsters Local 807 v. Brinks, Inc., 744
F.2d 283, 286 (2d Cir. 1984) (dispute over postex-
piration withdrawal of recognition did not "arise
under" expired contracts; nothing in contracts
could be construed to cover status of representa-
tive after expiration). See generally AT&T Technol-
ogies v. Communications Workers, 121 LRRM 3329
(Apr. 7, 1986) (anaylsis extended beyond arbitra-
tion clause to interpretation of contract right in-
voked in determining arbitrability).9
The nine hiatus grievances in this case have been
described above at footnote 2. The asserted con-
tract rights relied on in those grievances are as fol-
lows: the right to safe working conditions; the re-
quirement that overtime be evenly distributed; the
right to be disciplined only for proper and legiti-
mate reasons; the prohibition on invidious discrimi-
nation; the entitlement to extra pay for shift
changes on short notice; the entitlement to higher
9 As noted above, American Sink Top, 242 NLRB 408, concerned a
grievance arguably relating to events that occurred in part before the
contract expired Nolde states that "it could not be seriously contended"
that contract expiration would terminate the contractual obligation to ar-
bitrate disputes based on preexpiration events 430 US. at 251. To the
extent, however, that American Sink Top can be read to hold that the
mere invocation of any term of the expired contract triggers the posies-
piration duty to arbitrate under Nolde, we do not adhere to it.
This is the point on which we differ with our dissenting colleague,
Member Johansen In our view, the position of his dissent rests on an
overly broad reading of Nolde, and we note that that position la inconsist-
ent with the way Nolde has generally been read by the lower ,courts, as
the cases cited above demonstrate
INDIANA & MICHIGAN ELECTRIC CO. 61
pay if temporarily assigned above classification;
and the entitlement to living expenses while away
from headquarters overnight.10
We have examined the pertinent contract provi-
sions and conclude that the rights invoked in each
grievance do not "arise under" the expired con-
tracts within the meaning of Noide. All of the nine
grievances were triggered by events or conduct
that occurred after the expiration of the contracts.
None of the rights invoked were worked for or ac-
cumulated over time, and there is no other indica-
tion that the parties contemplated that such rights
could ripen or remain enforceable even after the
contracts expired. Teamsters v. C.R.S.T., supra. We
therefore conclude that, in the circumstances here,
the Respondent had no contractual obligation to
arbitrate any of the nine hiatus grievances." Ac-
cordingly, we shall not order the processing of
those particular grievances to arbitration here.
ORDER
The National Labor Relations Board orders that
the Respondent, Indiana and Michigan Electric
Company, Fort Wayne, Indiana, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively, within the
meaning of the Act, with Local Union No. 1392,
International Brotherhood of Electrical Workers,
AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the appropriate units, by
unilaterally repudiating the arbitration provisions of
the 1976-1978 South Bend, Marion-Muncie, Fort
Wayne, and General Office collective-bargaining
agreements.
(b) Refusing to bargain collectively with Local
Union No. 1392, International Brotherhood of
Electrical Workers, AFL-CIO, by unilaterally
abandoning the "initial arbitration" procedure in
the 1976-1978 South Bend, Marion-Muncie, Fort
Wayne, and General Office collective-bargaining
agreements , after those agreements expired.
(0 In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
'° See Fort Wayne agreement, arts II, VI, and VII, Marion-Muncie
agreement, arts. II, VI, XIX, and XXII; South Bend agreement art. VI,
sec. 5. The Respondent does not contend to the Board that any of the
grievances concern nonarbitrable subject matter None of the grievances
at issue were filed under the General Office contract.
II Whether the conduct complained of in the nine hiatus grievances
constituted unlawful unilateral changes in terms or conditions of employ-
ment is not before us because no such violation was alleged
(a) On the Union's request, process the nine
grievances at issue in this proceeding through "ini-
tial arbitration" as defined in the 1976-1978 collec-
tive-bargaining agreements.
(b) Post at its facilities in Fort Wayne, Marion,
Muncie, South Bend, Elkhart, Berne, Bluffton,
Kendallville, Butler, and Ligonier, Indiana, and its
facilities in Benton Harbor and Buchanan, Michi-
gan, copies of the attached notice marked "Appen-
dix." 12 Copies of the notice, on forms provided by
the Regional Director for Region 25, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the remainder of
the complaint is dismissed.
CHAIRMAN DOTSON, dissenting in part.
I join my colleagues in the majority with respect
to the analysis of all arbitration issues presented. I
dissent, however, from their failure to apply the
same analysis to contractual grievance procedures.
Although I would adhere to the rule that an em-
ployer has an obligation at all times under Section
8(d) of the Act to meet and to confer with a bar-
gaining representative about employee grievances,'
I would hold that the postexpiration duty to follow
contractual grievance procedures generally sur-
vives only as an adjunct of the limited postexpira-
tion duty to arbitrate grievances which involve
rights "arising under" the expired contract and
which are subject to postexpiration arbitration by
the terms of the contract. Consequently, I would
find that the Respondent violated Section 8(a)(5)
with respect to the parties' contractual "initial arbi-
tration" grievance only insofar as its blanket repu-
diation of postexpiration action comprehended
issues which it would have to take to arbitration.
Section 8(d) explicitly requires the parties in a
collective-bargaining relationship to "meet at rea-
sonable times and confer in good faith with respect
to wages, hours, and other terms and conditions of
12 If 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
See, e g., Pennsylvania Telephone Guild (Bell Telephone), 277 NLRB
105 (1985), Storall Mfg Co., 275 NLRB 220 (1985).
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employment." Beyond this general mandate, the
Act affords broad discretion to the parties. It does
not specify how, when, or where they must meet
and confer concerning contracts or individual
grievances, nor does it require agreement to specif-
ic proposals.
As a general rule, the Act also obligates an em-
ployer to bargain with its employees' exclusive rep-
resentative following contract expiration before the
employer may depart from established terms and
conditions of employment which are mandatory
bargaining subjects. Individual grievances and the
grievance process are mandatory subjects of bar-
gaining. Bethlehem Steel Co., 136 NLRB 1500
(1962), enfd. in relevant part 320 Fld 615 (3d Cir.
1963). The arbitration process is also a mandatory
subject of bargaining. U.S. Gypsum Co., 94 NLRB
112 (1951), enfd. in relevant part 206 F.2d 410 (5th
Cir. 1953). In spite of the general rule of postexpir-
ation survival, the Board has recognized exceptions
for contract terms governing the relationship be-
tween an employer and the labor organization rep-
resenting its employees. In Bay Area Sealers, 251
NLRB 89 (1980), enfd. as modified on other
grounds 665 F.2d 970 (9th Cir. 1982), the Board
stated (251 NLRB at 90):
Although an employer's contractual obliga-
tions cease with the expiration of the contract,
those terms and conditions established by the
contract and governing the employer-employ-
ee, as opposed to the employer-union, relation-
ship survive the contract and present the em-
ployer with a continuing obligation to apply
those terms and conditions unless the employer
gives timely notice of its intention to modify a
condition of employment and the union fails to
timely request bargaining, or impasse is
reached during bargaining over the proposed
change.
Consistent with the distinction drawn in Bay
Area Sealers, 2 the Board has held that there is no
general statutory postexpiration duty to follow
contract procedures ordering the employer-union
relationship with respect to such mandatory bar-
gaining subjects as union-security, dues checkoff,3
2 Although the majority questions the validity of my reliance on the
distinction drawn in Bay Area Sealers, I note that neither the D C Circuit
opinion cited, Southwestern Steel & Supply v NLRB, 806 F 2d 1111
(1986), nor an earlier Ninth Circuit opinion, NLRB v Southwest Security
Equipment Corp., 736 F.2d 1332 (1984), expressly rejected this test for de-
fining exceptions to the general rule of postexpiratton survival of manda-
tory terms and conditions of employment Each court merely rejected an
employer's attempt to justify an exception for hiring hall procedures by
defining them as essentially governing employer-union relations
3 Bethlehem Steel Co., supra
and arbitration. 4 I would hold the same for the
contractual grievance process.
There are a wide variety of grievance proce-
dures established by collective-bargaining agree-
ments to allow the parties to resolve disputes over
contract interpretation. As with arbitration, these
procedures involve the surrender by each party of
a part of the full range of bargaining flexibility per-
mitted under Section 8(d). Although substantive
employee rights are determined through the griev-
ance procedure, the procedure itself essentially
governs the union-employer relationship. The par-
ties must adhere to that procedure during the con-
tract but, in accord with Bay Area Sealers, not after
contract expiration. Furthermore, if the balancing
of statutory bargaining rights against the national
policy encouraging voluntary dispute resolution
systems has led the Board here to conclude that
only a limited postcontractual duty to arbitrate
exists, then the same conclusion would seem to
follow with respect to a contractual grievance pro-
cedure.
Postexpiration change in the , grievance proce-
dure does not per se undermine a union's represent-
ative status. In this case, for instance, there has
been no showing whatsoever that elimination of
"initial arbitration" from multistep grievance dis-
cussions had any adverse impact on the ability of
the Union to represent its grievants. Indeed, the
possibility exists that in some instances elimination
of a postexpiration duty to follow the contractual
grievance procedure will permit a union represent-
ative to pursue grievances that would have been
time-barred or to discuss matters expressly ex-
cluded from grievance consideration under the
contract.
In addition, there are statutory limits on the kind
of postcontractual change which may occur. An
employer may refuse to follow a contractual griev-
ance procedure but it must bargain with a union
about any alternative to be used. There may also
be certain aspects of a contractual grievance proce-
dure which are so intertwined with substantive em-
ployee rights that they must be honored even after
contract expiration. 3 This case does not involve
such a situation. The Respondent here fulfilled its
statutory grievance bargaining obligation by adher-
ing to all contractual procedures but the final
prearbitral step of "initial arbitration." I see no stat-
utory basis for requiring the Respondent to adhere
to this specific manner of discussing all postexpira-
4 Hilton-Davis Chemical Ca, 185 NLRB 241 (1970)
5 See, e g, Axelson, Inc , 234NLRB 414 (1978), enfd 599 F 26 91 (5th
Cir. 1979)
INDIANA & MICHIGAN ELECTRIC CO. 63
tion grievances in order to meet its bargaining obli-
gation.
Finally, it does not seem to make a great deal of
common sense to me for the Board to exercise its
authority in an effort to preserve a "headless horse-
man." We have here reaffirmed that only a limited
postexpiration duty to arbitrate exists. Why then
require preservation of the precise form of a griev-
ance procedure which the parties in all likelihood
negotiated in express contemplation of the ultimate
availability of arbitration? Wherever the possibility
of arbitration has ceased to exist, the better way for
the Board to fulfill its statutory duty to encourage
meaningful collective bargaining during a contract
hiatus would be to permit greater spontaneity and
flexibility in grievance negotiations rather than to
insist upon rigid adherence to an expired and trun-
cated contractual dispute resolution system.
For the foregoing reasons, I would overrule
Board precedent6 and hold that the postexpiration
duty to follow the contractual grievance procedure
generally exists only to the extent of a parallel
postexpiration duty to arbitrate grievances "arising
under" the contract. According to this view, the
Respondent's blanket repudiation of "initial arbitra-
tion" was unlawfully overbroad but it had no obli-
gation to follow the "initial arbitration" process for
any of the nine postcontractual grievances specifi-
cally at issue.
MEMBER JOHANSEN, concurring and dissenting in
part.
I agree that the Respondent violated Section
8(a)(5) of the Act by unilaterally abandoning part
of the grievance procedure after the contracts ex-
pired. I also concur in my colleagues' conclusion
that the Respondent violated Section 8(a)(5) of the
Act by repudiating arbitration after the contracts
expired.
I dissent, however, from my colleagues' conclu-
sion in the Remedy section that the Respondent
should not be ordered to arbitrate the nine hiatus
grievances. The Court in NoIde Bros. V. Bakery
Workers Local 358, 410 U.S. 243 (1977), did not
rely on the accruability of the right asserted in con-
cluding that the severance pay dispute was arbitra-
6 E g., Bethlehem Steel, supra Contrary to the majonty's contention, I
do not infer from Bay Area Sealers "an intent sub silentio to overrule"
this precedent The majority correctly observes that the Board was not
considering the issue of postexpiration changes in a grievance procedure
in Bay Area Sealers, Consequently, I would infer neither an intent to
overrule 'nor to reaffirm Bethlehem Steel in Bay Area Sealers The employ-
er-employee/employer-union distinction articulated in Bay Area Sealers,
notwithstanding its arguable classification as dictum, stands as precedent
which neither the Board nor the courts have repudiated Applying this
precedent in the context of statutory considerations I have reviewed in
this opinion, I would overrule Bethlehem Steel as indicated
ble. Rather, it found that the dispute arose under
the expired contract because it "hinge[d] on the in-
terpretation ultimately given the contract clause
. . • ." 430 U.S. at 249: The Court summarized its
holding as follows (430 U.S. at 255):
In short, where the dispute is over a provision
of the expired agreement, the presumptions fa-
voring arbitrability must be negated expressly
or by clear implication.
Specific contract rights were invoked by each of
the nine grievances. In my view, therefore, the
grievance disputes were over provisions of the ex-
pired contracts and thus "arose under" the con-
tracts within the meaning of Nolde. Further evalua-
tion of the extent of the contract rights invoked en-
croaches on the merits of the dispute, an area re-
served for the arbitrator.
I agree that the presumption favoring arbitrabi-
lity of postexpiration disputes has not been rebutted
here. Accordingly, I would order the Respondent
to arbitrate, on request, each of the nine hiatus
grievances.
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
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Local
Union No. 1392, International Brotherhood of
Electrical Workers, AFL-CIO as the exclusive
representative of the employees in the appropriate
bargaining units by generally repudiating any obli-
gation to arbitrate grievances arising after contract
expiration and by refusing to fully comply with the
grievance procedure, including "initial arbitration,"
established in the 1976-1978 collective-bargaining
agreements, after those agreements expired and
until the 1979-1981 agreements took effect.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on the Union's request, process
through "initial arbitration" any grievances arising
after the 1976-1978 contracts expired and before
the 1979-1981 contracts were entered into.
INDIANA AND MICHIGAN ELECTRIC
COMPANY
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
J. Frederick Gatzke, Esq., for the General Counsel.
Gary L. Lieber, Esq., of Washington, D.C., for Respond-
ent.
Robert D. Kurnick, Esq., of Washington, D.C., for the
Charging Party.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. This
proceeding was heard before me on December 18, 1980,
pursuant to a charge filed on January 22, 1979, and a
complaint issued on March 13, 1980, and amended on
April 29, 1980. The issue presented is whether Respond-
ent Indiana and Michigan Electric Company violated
Section 8(a)(5) and (1) of the National Labor Relations
Act, as amended (the Act), by unilaterally modifying
through abandonment and refusing to follow certain por-
tions of the grievance-arbitration procedures set forth in
certain collective-bargaining agreements between Re-
spondent and Local Union No. 1392, International
Brotherhood of Electrical Workers, AFL-CIO (the
Union). The conduct attacked in the complaint was di-
rected toward grievances filed, and relating to events
that occurred after the termination dates set forth in the
duration clauses of such bargaining agreements, and
before the effective dates set forth in the duration clauses
of the parties' subsequent bargaining agreements.
On the basis of the entire record, including the de-
meanor of the one witness who testified before me, and
after due consideration of the briefs filed by Respondent,
the Union, and the General Counsel, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent is an Indiana corporation that maintains its
principal office and place of business in Fort Wayne, In-
diana. Respondent also maintains other facilities in Indi-
ana and Michigan. Respondent is engaged at such facili-
ties in the production, sale, and transmission of electrical
energy as a public utility. During the 12 months preced-
ing the issuance of the complaint, a representative
period, Respondent's gross revenues exceeded $250,000;
and Respondent purchased and received, at its Indiana
facilities, products, goods, and materials valued in excess
of $50,000 directly from points outside Indiana. I find
that as Respondent admits Respondent is engaged in
commerce within the meaning of the Act, and that asser-
tion of jurisdiction over its operations will effectuate the
policies of the Act.
The Union is a labor organization within the meaning
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On various dates between 1952 and 1971, the Union or
its predecessors were certified by the Board as the exclu-
sive representatives of three admittedly appropriate sepa-
rate units of Respondent's employees. Regarding a fourth
admittedly appropriate unit, the Union has been the rec-
ognized representative since 1934. These units are specif-
ically described infra in Conclusion of Law 3. For con-
venience, they will be referred to as the Marion-Muncie
unit, the South Bend unit, the Fort Wayne unit, and the
General Office unit. The Union negotiates a separate bar-
gaining agreement for each unit.
The 1976-1978 collective-bargaining agreement with
respect to the South Bend unit stated:
Period of Contract
Except as herein otherwise expressly provided,
all of the provisions of the Agreement shall be in
full force and effect beginning March 4, 1976, and
shall continue in full force and effect until Mid-
night, October 31, 1978, and thereafter for successive
one year periods unless one of the parties hereto on
or before the sixtieth (60) day preceding November
1, 1978, or November 1st of any successive year
shall notify the other party hereto in writing of its
desire to modify or terminate the same. [Emphasis
added.]
The 1976-1978 contract with respect to the Marion-
Muncie unit contained the following provision:
Term
The Agreement shall be in full force and effect
beginning March I, 1976, and shall continue in full
force and effect until midnight, November 30, 1978,
and thereafter for successive one-year periods unless
either party hereto shall notify the other party in
writing at least sixty (60) days prior to November
30, 1978, or sixty (60) days prior to the anniversary
date in any subsequent year this Agreement is in
effect, of its desire to modify or terminate the
agreement. [Emphasis added.]
The 1976-1978 contract with respect to the Fort
Wayne unit contained the following provision:
Period of Contract
This agreement shall take effect March 3, 1976,
for a fixed period ending midnight, December 1.5,
1978, and shall continue in full force and effect
from year to year thereafter unless written notice is
given by either party hereto to the other on or
before sixty (60) days prior to the termination of the
fixed period or any subsequent annual expiration
date requesting that this Agreement be amended or
canceled. . . . [Emphasis added.]
The 1976-1978 contract with respect to the General
Office unit contained the following provision:
Period of Contract
Except as herein otherwise expressly provided,
this Agreement shall be in full force and effect be-
ginning March 4, 1976, and shall continue in full
force and effect until midnight, December 31, 1978,
and thereafter for successive one (1) year periods
INDIANA & MICHIGAN ELECTRIC CO. 65
unless either party hereto shall notify the other
party in writing at least sixty (60) days prior to the
anniversary date in subsequent years this Agreement
is in effect of its desire to modify or terminate the
Agreement, in either of which events this Agree-
ment shall terminate on the anniversary date follow-
ing such notice. In the event of termination of this
Agreement as herein provided, it shall cease to have
binding effect, and the terms and conditions set
forth herein may be altered, modified, or terminated
without further notice. [Emphasis added.]
Regarding each of these four units, the 1971-1973,
1974-1975, and 1979-1981 contracts contained the same
duration language (except for the italicized dates) as the
quoted 1976-1978 language applicable to that unit.
With respect to each of these contracts except the
1979-1981 contracts (which at the time of the hearing
had not yet reached their earliest possible termination
date), one of the parties gave a 60-day notice on the ear-
liest date permitted by the relevant duration clause. The
1973-1975 contracts became effective with the termina-
tion of the 1971-1973 contracts, but there were gaps,
varying in length from 2 months (General Office) to 4
months (South Bend), between the termination of the
1973-1975 contracts and the effective dates of the 1976-
1978 contracts. During this hiatus, the Union engaged in
a strike primarily because of Respondent's refusal to re-
lease the employee members of the Union's bargaining
committee from work, while at the same time refusing to
meet with the committee outside of working hours.' The
Union's economic demands were a contributing factor.
In January 1976, after all the 1973-1975 contracts had
expired and before new 1976-1978 contracts had been
agreed to, Personnel Director W. Hugh Willmore stated
during negotiations at South Bend that Respondent
would not agree to arbitrate grievances that arose after
the contractual expiration date. Union Representative E.
J. Bailey stated that it was the Union's position that all
the terms and conditions in previous agreement would
continue as they were.2
By letter dated August 18, 1978, Union Business Man-
ager Alan Goddard advised Labor Relations Supervisor
Norman C Hitzeman that "According to the terms of
the present Working Agreements," the Union was re-
questing meetings to modify all four contracts. By letter
dated August 29, 1978, Hitzeman replied:
We hereby acknowledge receipt of your letter of
August 18, 1978, notifying us of your desire to
modify the present collective bargaining agreement
The Board found in May 1977 and April 1978 that similar conduct
by Respondent in the fall of 1975 violated Sec 8(a)(5) and (1) of the Act
Indiana & Michigan Electric Co, 229 NLRB 576 (1977), 235 NLRB 1128
(1978), enfd 599 F.2d 185 (7th Cir. 1979), cert. denied 444 U.S 1014
(1980) Union Business Agent Alan Goddard testified about Respondent's
1976 conduct, and said an administrative law Judge found that the case
was moot because the Board's decision in the case had already been en-
forced by the Court of Appeals for the Seventh Circuit and was on its
way to the Supreme Court. I have made no effort to track down the case
involving Respondent's 1976 conduct
2 The Union's brief states that this statement was made during negotia-
tions regarding the South Bend unit. Concerning this, the transcript
standing alone is unclear
dated March 5, 1976 [covering the] South Bend
[unit]. Further, we acknowledge that the present
collective bargaining agreement will terminate eff-
fective October 31, 1978, in the event of failure to
reach agreement by that date.
The Indiana & Michigan Electric Company also
desired to terminate the collective bargaining agree-
ment, Retirement Plan agreement, Group Life In-
surance agreement, Medical agreement, Long Term
Disability agreement and any side agreements or
understandings and agreements between the Compa-
ny and the Union. You are hereby notified of this
desire in accordance with Title 1, Section 8(d) of
the National Labor Relations Act as amended and
further in accordance with [the "Period of Con-
tract" clause] of the present collective bargaining
agreement.
I would suggest an initial meeting on Thursday,
September 28, 1978 at 1:30 p.m. to commence such
negotiations. If the date is acceptable, please let me
know and arrangements will be made for a meeting
place.
Thereafter, Hitzeman sent a September 25, 1978 letter
to Goddard with respect to the Marion-Muncie unit, and
October 5, 1978 letters to Goddard with respect to the
Fort Wayne and General Office units respectively. These
letters were substantially the same as the South Bend
letter, except that they proposed different dates for an
initial negotiating meeting and recited as the 1978 date
on which the existing agreement would terminate in the
event of failure to reach agreement by that date, Novem-
ber 30, December 15 and 31, respectively.
On October 18, 1978, during the negotiations in South
Bend, Willmore gave a 45-minute speech about the status
of negotiations. About two-thirds of the way through his
speech, he stated that should the contract expire, Re-
spondent would not agree to arbitrate grievances that
arose after the contractual expiration date and would not
collect dues from the union members. After Willmore
had finished his speech, the 'Union caucused. Then, the
Union told Respondent that the parties were there for
the purpose of negotiating a new agreement; that because
of the Union's desire to reach a new agreement, the
Union did not feel that Respondent's "paranoia" was
necessary; that the Union did not feel it was appropriate
to waste time making, hearing, or responding to threats;
and that the parties should spend their time dealing with
the business at hand, which was to negotiate a new
agreement.
All four of the contracts expired and Respondent and
the Union did not agree to extend the expired agree-
ments. Although new contracts effective until late 1981
were eventually executed with respect to all four units,
they were not effective until early November 1979.
B. No-Strike and Grievance-Arbitration Provisions in
the 1976-1978 Agreements
All four of the 1976-1978 agreements contained no-
strike clauses. The Marion-Muncie contract provided, in
part, "It is the mutual desire of both parties hereto to
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
provide for uninterrupted and continuous service; there-
fore . . . . The Union agrees that while this Contract is
in effect none of its members will . . . participate in any
strike."3 Further, the preamble to this contract recited,
inter alia, "The parties hereto have reached an agree-
ment through collective-bargaining for the purpose of fa-
cilitating the peaceful adjustment of differences that may
arise from time to time, and for the purpose of promot-
ing harmony and efficiency to the end that the employ-
ees, the Company and the general public may mutually
benefit. The parties hereto contract and agree with each
as follows." The South Bend and General Office con-
tracts read, in part, "Inasmuch as a grievance and arbi-
tration procedure has been agreed upon, there shall be
no strikes . . . during the life of this agreement or exten-
sion thereof. Violation of this provision by any employee
will be immediate and complete cause for discharge."
The Fort Wayne contract provided, in part, "It is ex-
pressly understood and agreed that the services to be
performed by the employees covered by this Agreement
pertain to and are essential to the operation of a public
utility and to the welfare of the public dependent there-
on, and in consideration thereof and of the covenants
and conditions herein by the Company to be kept and
performed (a) [the Union agrees] that the employees cov-
ered by this agreement, or any of them WILL NOT be
called upon or permitted to cease or abstain from the
continuous performance of the duties pertaining to the
positions held by them with the Company IN ACCORD
WITH THE TERMS OF THIS AGREEMENT. . . and (c) the
parties hereto agree that any differences which may arise
between them regarding the interpretation or application
of any provision of this Agreement shall be settled in the
manner hereafter provided." Further, the preamble to
this contract read, in part, "For the purpose of facilitat-
ing the peaceful adjustment of differences that may arise
from time to time, to promote harmony and efficiency to
the end that the Company, and the Local Union and the
general public may mutually benefit, the parties hereto
contract and agree with each other as follows. . . ."
Prior contracts covering the foregoing respective units
contained the same respective language.
During the negotiations that let up to the 1979-4981
cOntracts, the Union never considered striking, never
told Respondent that the Union had the right to strike,
and at one time informed Respondent that the Union had
no intention of going on strike.
All four of the 1976-1978 contracts contained a griev-
ance procedure that consisted of four steps prior to "ini-
tial arbitration" (see infra) and afforded the Union and
the right to require Respondent to submit certain gnev-
ances to arbitration. The Marion-Munice contract con-
tained the following language:
Section 1.
a. Should differences arise between the Company
and the Union involving the interpretation and ap-
plication of the terms of this agreement an earnest
effort shall be made immediately to settle such dif-
ferences in the following manner:
3 The contract contained no union-security clause
Section 2.
a. In the event of failure to satisfactorily settle or
adjust any grievance involving the interpretation
and applicaton of the terms of this Agreement ac-
cording to the foregoing procedure . . . such arbi-
trable grievance may be submitted to arbitration in
the following manner:
The South Bend contract contained the following lan-
guage (emphasis added):
Section 1(a): Should any dispute or disagreement
arise between an employee and the Company,
except as provided in [the no-strike clause], such dis-
pute or disagreement shall constitute a grievance
and be disposed of in the following manner:
Section 3(a): In the event of failure to satisfactori-
ly settle or adjust any grievance involving an alle-
gation of a violation of a term or terms of this
Agreement according to the foregoing procedure,
. . . such arbitrable grievance may be submitted to
arbitration in the following manner:
Section 1(a) of the Fort Wayne grievance-arbitration
article was the same as section 1(a) of the South Bend
grievance-arbitration article, except that the italicized
language was omitted. Section 1(a) the General Office
grievance-arbitration article was the same as Section 1(a)
of the South Bend grievance-arbitration article, except
that before the italicized language appeared the words
"involving aji allegation of a violation of a term or terms
of this Agreement." Section 3(a) of the Fort Wayne and
General Office grievance-arbitration articles was the
same as section 3(a) of the South Bend grievance-arbitra-
tion article, except that the Fort Wayne contract con-
tained the words "by either the Union or the Company"
after the word "arbitration."
All but the Marion-Muncie contract contained the fol-
lowing language:
The initial arbitrators [see infra] or the sole arbi-
trator shall have no authority to (1) add to, detract
from, or in any way modify the terms of this agree-
ment; or (2) pass upon any question involving regu-
lar wage rate schedules with the exception of new
or changed jobs. . . .4
The Marion-Muncie contract withheld from the arbitra-
tors the authority "to add to, detract from or in any way
modify (1) the terms of this agreement or (2) any wage
rate schedule. . . with the exception of new or changed
jobs" (see supra fn. 4).
All four contracts contained the following language:
4 At this point, each contract defines "new or changed jobs" by refer-
ring to a provision much the same as the Fort Wayne provision quoted
infra fn 9
INDIANA & MICHIGAN ELECTRIC CO. 67
Notwithstanding the provisions of [sec. 2(a) of
the Marion-Munci grievance-arbitration clause, or
sec. 3(a) of such clauses in the other contracts]:
Grievances which do not involve interpretations or
applications of a specific term or terms of this
Agreement. . . shall not be arbitrable.
This last-quoted clause does not appear in the 1971-
1973 or 1973-1975 Marion-Muncie contracts. Otherwise,
the prior contracts had contained virtually the same
grievance-arbitration provisions quoted above.
The contracts effective between 1971 and 1978 all con-
tained under the heading "arbitration Procedure and
Rights of Arbitration," a provision that within 10 days
after Respondent had received written notice from the
Union of a desire to arbitrate, each party was to select an
"arbitrator" to be paid by it. If these "initial arbitrators"
could not agree in writing on the grievance so referred
to them, "then they shall choose a wholly disinterested
person to act as a sole arbitrator who shall have the au-
thority to make the final decision and the two initial arbi-
trators shall be discharged as arbitrators." The "sole arbi-
trator's" compensation and expenses were to be borne
equally by Respondent and the Union.
C. Respondent's Abandonment of "Initial Arbitration"
and Arbitration
A letter from Willmore to Goddard dated November
3, 1978, regarding the South Bend unit, stated in part:
On October 31, 1978, the current agreement be-
tween the Company and [the Union] expired. Nego-
tiations for a new agreement have not been success-
ful and thus there is presently no agreement in
effect for this Bargaining Unit.
Additionally, since the termination of the con-
tract on October 31, 1978 no longer affords the
Company the protection provided by [the no-strike
clause] of that Agreement, you are hereby advised
that [the clause providing for initial arbitration and
arbitration] will not be applied during the time
period we are without an agreement.
Similat letters dated December 4 and 18, 1978, and
January 2, 1979, were sent by Willmore with respect to
the Marion-Muncie, Fort Wayne, and General Office
units respectively. The Union did not write Respondent
any letters in reply to the foregoing. On January 22,
1979, the Union filed its charge herein, alleging that Re-
spondent had violated the Act by, inter alia, "refusing to
arbitrate grievances." There is no evidence that before
that date, Respondent had refused to arbitrate any par-
ticular grievances. Goddard credibly testified that this
charge was the Union's reply to the foregoing letters.
D. Grievances Respondent Refused to Process
Through Later Stages of Grievance-Arbitration
Procedure
On various dates between January 1979 and March
1979, employees in the Marion-Muncie, South Bend, and
Fort Wayne units filed grievances based in whole or in
part on conduct that was allegedly inconsistent with
specified clauses in the 1976-1978 agreement covering
the unit in question. In each case, the conduct in ques-
tion took place after the expiration date set forth in the
1976-1978 agreement with respect to the relevant unit.
No contention is made, and I perceive no basis for such
a contention, that the merits of any of these grievances
would have been affected by whether the conduct com-
plained of had been engaged in before the 1976-1978
contracts had expired or after the effective dates of the
November 1979 contracts. With the possible exception of
a grievance filed by Fort Wayne meter readers on March
26, 1979 ( see infra, part II,C,3,b and fn. 24), there is no
contention or evidence that any proposal ever made by
either party during negotiations, if accepted by the other,
would have affected the merits of any of these griev-
ances, regardless of when the complained-of conduct oc-
curred. No contention is made that the procedure fol-
lowed by the Union as to such grievances was in any
way inconsistent with the 1976-1978 contracts. All these
grievances were processed through the fourth step of the
grievance procedure, and at that stage were wholly or
partly rejected by management. Regarding each of these
grievances, Respondent asked the Union, during the
third or fourth step of the grievance procedure, which
contract provisions the Union was relying on, and the
Union specified such provisions.5
Concerning each of these grievances, after the issuance
of management's fourth-step response, Union Business
Manager Goddard sent Labor Relations Supervisor Hit-
zeman a letter that specified the docket number or num-
bers of the grievance and read as follows:
We received an unsatisfactory answer in the
fourth step, to the grievance of [grievant's name,
department, and facility location].
Therefore, according to the terms of the Work-
ing Agreement between the Company and the
Union, we are requesting initial arbitration to settle
this dispute.
I will act as initial arbitrator for the Union.
Please have the Company arbitrator contact me
in regard to this grievance.
In response to each of these letters, Personnel Director
Willmore sent a letter that read as follows:
Your letter . . . requests advancing the above-
referenced grievance to initial arbitration.
It continues to be the Company's position that it
will not arbitrate grievances relating to alleged vio-
5 Regarding most of the grievances, the record specifically shows that
the Union told management which contract clauses were being relied on.
From Goddard's credible testimony that as to each grievance Respondent
asked for such information, I infer that it was given as to each grievance
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lations of the contract which occurred during a
contractual hiatus.
As set forth in greater detail infra part II,C,3,b, one of
these grievances, filed by a group of meter readers in the
Fort Wayne unit, contended that for safety reasons, each
meter reader should be assigned a particular route, rather
than being rotated among routes as Respondent was then
requiring them to do. Willmore's July 1979 letter in con-
nection with this grievance went on to state, "Signifi-
cantly, even if the expired contract were still in effect, or
alternatively even if a new contract consistent with the
Company's offer, dated December 14, 1978, were in
effect, this grievance would not be arbitrable due to its
subject matter."
Before Goddard requested "initial arbitration" of any
of these grievances, Respondent proposed the elimination
of the provisions for "initial arbitration" in all four con-
tracts. These provisions, which had appeared in the
1971-1973 contracts and in the two succeeding sets of
contracts (1973-1975 and 1976-1978), had initially been
proposed by Respondent. They did not appear in the
1979-1981 contracts, whose grievance-arbitration clauses
are otherwise much the same as those in the respective
contracts that preceded them. 6 The foregoing evidence
aside, there is no evidence what position the Union took
with respect to the elimination of "initial arbitration," or
when such elimination was agreed to.
The grievances about which the Union requested "ini-
tial arbitration" and Respondent refused are summarized
below.
1. Marion-Muncie grievances
a. McCormick's grievance about his suspension for
absenteeism (Grievance MU 78-13)
On January 12, 1979, Mike McCormick, an employee
in the Marion-Muncie unit, filed a grievance regarding
his 15-hour suspension on December 6 and 7, 1978, for
"continued unauthorized and excessive absenteeism."
The hand-printed entry on his step 2 grievance form
states, after "Nature of Grievance," "Artical [sic] XXII
non discrimination." Article XXII forbids discrimination
"because of race, creed, color, sex, national origin, age,
or handicap." This position was adhered to through at
least step 3 of the grievance procedure.
Respondent's responses at steps 2, 3, and 4 indicate
that McCormick and/or the Union contended that he
had failed to come to work because his car broke down;
that he had been unable to reach Respondent by tele-
phone; and that other personnel in the department had
been absent at least as often as McCormick without
being disciplined. Respondent rejected these contentions
on the ground that McCormick could have given a tele-
phone message to Respondent if he had made the effort,
and that regarding the other employees' absences, Re-
spondent had been given advance notice or they had
been excusable. Respondent's step 2 response stated that
6 The most significant additional changes added in 1979 rendered unar-
bitrable certain claims for benefits under the "Savings Plan" and "Sick
Leave and Layoff Allowance Plan" No such claims are Involved here
concerning McCormick's discipline, "there was no viola-
tion of the Working Agreement, therefore, your griev-
ance is denied."
During the fourth step of the grievance procedure,
Union Representative Goddard informed Respondent
that the Union was contending that Respondent was vio-
lating article II, the management-rights clause of the
1976-1978 agreement; the Union did not rely on any
other portion of the agreement. More specifically, God-
dard referred to the provision in that clause that Re-
spondent had the right to discipline employees for
"proper or legitimate reasons."
b. McCormick's grievance about his suspension
(Grievance MU 79-02)
On March 1, 1979, McCormick filed a grievance re-
garding his 5-day suspension on January 29, 1979, for im-
proper job performance and sleeping on company time.
His written grievance relied on articles II and XXII, the
management-rights and nondiscrimination clauses of the
1976-1978 agreement. Dunng the fourth-step grievance
meeting, the Union contended that such discipline violat-
ed article II (which gives Respondent the right to "sus-
pend [and] discipline. . . employees. . . for. . . proper
and legitimate reasons") on the ground that Respondent
did not have proper, legitimate reasons for the discipline.
c. Evans' grievance for failure to receive overtime work
(Grievance MU 79-03)
On March 5, 1979, Marion-Muncie unit employee Billy
R. Evans filed a grievance regarding Respondent's fail-
ure to call him for overtime work on February 25, 1979.
His grievance alleged that Respondent's action was a
"Violation of Written Aggrement [sic] and past prac-
tices." Respondent's second-step rejection of the griev-
ance states, inter alia, "I. . . cannot find any violation of
the working agreement." During subsequent discussions,
Evans and/or the Union further alleged that the working
foreman on the job performed work belonging to a bar-
gaining-unit employee.
At the third step of the grievance procedure, Respond-
ent rejected the grievance on the ground that the fore-
man had "performed well within the scope of the letter
of agreement to which you referred as well as past prac-
tices [cf. infra fn. 8]. The work he performed was pre-
dominantly regarding safety factors and to supervise ex-
pedient restoration of customer's electric service. On site
supervision as well as consultation with the Engineering
Department supervisor was justified because the cause of
the outage was not easily identifiable" At the fourth-step
grievance meeting, the Union alleged that Respondent's
conduct violated article V, section 9, of the 1976-1978
agreement, which provides, in part, "Overtime shall, so
far as is practicable, be equitably distributed within the
department." Labor Relations Supervisor Hitzeman re-
jected this grievance at the fourth step on the ground,
inter alia, that the line supervisor who called out the
foreman to the job thought that the problems on the job
required the foreman's "expertise," and that "calling out
a supervisor under such conditions is not a departure
from past practice."
INDIANA & MICHIGAN ELECTRIC CO. 69
d. Keating's grievances in connection with his Tanner's
Creek assignment (Grievance MU 79-04)
On January 30, 1979, Marion-Muncie employee Brad-
ford Keating filed 13 grievances complaining of Re-
spondent's alleged conduct on January 11, 1979, in con-
nection with his assignment to work in Tanner's Creek,
some distance from the location of his ordinary work as-
signment, for at least a week. None of Keating's January
grievance forms stated that Respondent's conduct
breached or was inconsistent with the 1976-1978 con-
tract. Respondent's step 2 response stated that "some" of
these points "must be considered not grievable," and
specified the grievance that Respondent "refused to at-
tempt to settle grievances in a fair and equitable
manner," but did not specify any others.7
The record as a whole indicates that Keating (who
lived with his wife and five children) was complaining,
inter alia, that Respondent had refused to permit him to
drive to Tanner's Creek in his personal car; had refused
to provide him with an individual vehicle for this pur-
pose and for his personal use while he was there; had
given him the Tanner's Creek assignment notwithstand-
ing his protest with a reasonable excuse; had threatened
him with discipline if he refused the assignment, but re-
fused to outline what discipline he faced; had refused to
agree to compensate him for "labor expenses acquired at
[his] home due to [his] not being at [his] home because of
company business"; had refused to agree to pay for more
than three meals a day eaten by him while out of town,
although he habitually ate four meals while at home; had
"refused to make arrangements to complete the job in
the shortest possible time to shorten length of time crew
required to stay away from home"; had refused to supply
him with "entertainment money while out of town on
company business"; and had "refused to allow reasonable
phone calls home" (a grievance that Respondent rejected
on the basis of an alleged side agreement with the Union
that allegedly was not part of the contract). 8 Keating's
January grievance also alleged that Respondent "has
changed my place to repprt to work. Which in reality is
a headquarters change and they failed to negotiate this
change," and that Respondent had refused to permit him
to drive back and forth eVery day between headquarters
and Tanner's Creek on company time. At step 2, Re-
spondent responded to these grievances partly as follows:
[Alt any time you are sent away from headquarters
to work . . . your normal reporting place is
changed for that particular job. This has always
been recognized and is provided for under Article
XIX of the Working Agreement. This article was
negotiated to cover this situation. the company
7 The step 2 answer further stated, "You filed a grievance in the First
Step, if you were not satisfied you can follow the procedure as outlined
in the working Agreement and continue it to its final conclusion."
8 As previously noted, Labor Relations Supervisor Hitzeman's Septem-
ber 25, 1978, response to the Union's request for meetings to modify the
Marian-Muncie contract not only stated that the collective-bargaining
agreement would terminate effective November 30, 1978, but also ex-
pressed a desire to "terminate," inter alia "any side agreements or under-
standings and agreements in accordance with" the "Period of Con-
tract" clause in the bargaining ageement
cannot negotiate a separate contract or a specific ar-
ticle with you to cover a job that has been assigned
to you. The Working Agreement is negotiated with
the Bargaining unit and applies to all persons repre-
sented by it. This article has been in the Working
Agreement since the IBEW started representing the
company employees in 1953.
. . . .
[I]t is quite inconceivable that anyone would sug-
gest that a normal work day would consist of driv-
ing to Tanners Creek, work eight hours, and then
drive back to Muncie each day for the entire week.
This not only would be uneconomical, but would
raise the question of how proficient you would be
on the job. Again, Article XIX of the Working
Agreement was negotiated to provide for your wel-
fare under the conditions of this type of assignment.
Article XIX of the 1976-1978 agreement provided as
follows:
TRAVELING AND LIVING EXPENSES
Section 1. When in the performance of Company
work, an employee is sent away from headquarters
and is obliged to be away over night, the lodging
and meals for such employee will be furnished by
the Company.
Section 2. If an employee, upon request of the
Company is transferred and it is necessary for him
to move from his place of residence to the new
place of employment, the Company will defray the
moving expenses of his household effects to the
new place of employment.
In seeking to rebut at step 3 Respondent's step 2 rejec-
tion of Keating's grievances regarding driving to and
from Tanner's Creek daily, the alleged change in head-
quarters, and "entertainment money," Keating asserted
that article XIX was designed for "one night or moving.
Not days and nights or weeks." Further, Keating alleged
that concerning the Tanner's Creek assignment, "the
Company was demanding my time for 24 hours a day for
five days and was only willing to pay me for eight hours
a day for five days. . the Company by taking this pro-
cedure violated Art. V Section 1 and la, Section 2b-2d
and Section 5a and 5b" of the 1976-1978 agreement.
These provisions call for employee work schedules of
not more than 8 hours in any 24-hour period, require
overtime premium pay for all hours worked beyond such
limitation, and require rest periods for employees who
work more than 16 hours during any 24-hour period.
Keating's own step 4 contentions were essentially the
same as his step 3 contentions. However, during the
fourth-step discussion, the Union relied only on article
XIX, section 1. Goddard credibly testified that the Union
felt that if Respondent were to provide redress for those
issues that were obviously covered by that article, the
parties would be well on their way to addressing the
others, "so we concentrate our discussion in that meeting
on that particular article."
By memorandum dated June 18, 1979, Labor Relations
Supervisor Hitzeman issued a step 4 rejection of all of
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Keating's grievances. Hitzeman stated that "Article II of
the Working Agreement, which expired on November
30, 1978, provided that in the exercise of its functions of
management, the Company shall have the right to assign
work. . . . This would include the assignment of work
on out-of-town assignments." Hitzeman further stated
that Keating's request for permission to use his personal
car on such work, for overtime pay, for negotiation of
"headquarters change," for permission to drive between
headquarters and Tanner's Creek on company time, for
labor expenses acquired at his home due to not being
there because of company business, for transportation
(use of car) while on company business out of town, and
"entertainment money" are "over and above what is re-
quired" by article XIX, section 1, of the "Working
Agreement," which Hitzeman described as "expired."
2. South Bend grievance; Stone's grievance
following his transfer (Grievance TB-79-02)
The divisions covered by the South Bend agreement
include the South Bend division and the Twin Branch
generating division. On January 24, 1979, employee
Ralph 0. Stone, who at all material times was in the
South Bend unit, filed a grievance contending that be-
cause of the circumstances regarding his transfer from
the South Bend division to the Twin Branch division, he
was entitled to be paid at the overtime rate for the first 8
hours of work for which he had been scheduled in the
latter divsiion. Stone's grievance form alleged that he
had been initially advised that he would be transferred
effective 4 p.m. on Wednesday, January 10; had not been
advised until 8:50 a.m. on Monday, January 8, that his
transfer was effective at 8 a.m. on January 8; and, ac-
cordingly, had been an hour and a half late for work at
the Twin Branch division on January 8. Stone's griev-
ance form relied on "Article VI Section 5 pages 30-31,"
which provides, inter alia:
If any employee has his shift . . . changed with
less than twenty-four (24) hours' notice before the
beginning of the changed shift . . . he shall be paid
one and one-half (1-1/2) times his regular straight
time rate. . . for the hours worked on the first day
of such changed shift. . . .
If twenty-four (24) hours or more notice is given
before the changed shift. . . is to begin, an employ-
ee whose shift . . is so changed shall be paid his
regular straight time rate . . . during the time he
works on such changed shift. . . .
Respondent rejected this grievance at step 2 on the
ground that Respondent did not "violate" the "Working
Agreement."
By the time Stone's grievance reached the fourth step,
the dispute had boiled down to the factual question of
whether Stone had initially been advised to report to
Twin Branch on Monday, June 8, at 8 a.m., or on
Wednesday, June 10, at 4 p.m.; and the requested relief
consisted of an hour and a half's pay at straight time. By
memorandum dated October 4, 1979, Labor Relations
Supervisor Hitzeman found that Stone had been told to
report on Monday morning, and denied the grievance at
the fourth step on the ground that "There was no provi-
sion in the working agreement, which expired on Octo-
ber 31, 1978, to pay employees for time not worked
under such circumstances."
3. Fort Wayne grievances
a. Davis' grievance regarding leadman pay (Grievance
FW 79-05)
On March 8, 1979, Fort Wayne unit employee Jeffrey
Davis, a line mechanic A, filed a grievance complaining
of Respondent's refusal to pay him top line mechanic A
pay for the hours he worked as leadman on February 20,
1979. His grievance alleged, "Past practice men have
been top linemen in position to run truck." Management
rejected this grievance at the second step on the ground
that on this occasion, it was not "practical" to assign the
leadman's job to a senior line mechanic A.
At the third step, management rejected the grievance
on the ground that although a top-rate line mechanic A
would be assigned to such work "Under normal condi-
tions," performance of leadman's duties "was one of the
contributing factors in determining the current labor
grade assigned to the A classification. In addition, the
rate of pay within a classification is divided into time
steps as outlined in the wage agreement. This wage
agreement does not provide for paymg higher steps in a
rate range until the employee has completed six months."
At the third and fourth steps, the Union relied on the
contractual wage agreement and on other contract provi-
sions whose identity is not shown by the record. 9 Labor
Relations Supervisor Hitzeman rejected the grievance at
the fourth step on the following grounds:
[Y]ou base your contention on past practice and
discussions which were held in negotiations.
. . . .
While it's true that, in the past, Line Mechanic
A's who had reached the maximum were utilized as
"lead-men" there was nothing in the expired work-
ing agreement, nor is there in any other agreement,
that precludes the Company from assigning a Line
Mechanic A being paid below the maximum the re-
sponsibility of "lead-man" on a two-man crew. The
Company explained in negotiations that the respon-
sibility of being a "lead-man" had been considered
in establishing the job rate for Line Mechanic A.
This means all of the steps of grade 12, the grade in
which the "A" job has been assigned and includes
all "A" mechanics. At no time in negotiations did
the Company say that it applied only to the maxi-
mum rate or that only Line Mechanic A's who are
being paid the maximum would be assigned as
"lead-men."
9 Art VII, sec 17, of the bargaining agreement called for Respondent
to establish, for job classifications that were substantially changed during
the period of the agreement, wage rates in "proper relationship to other
existing job rates" in the unit
INDIANA & MICHIGAN .ELECTRIC CO. 71
b. Meter readers' grievance regarding assignment of
routes (Grievance FW 79-08)
On March 26, 1979, 10 meter readers in the Fort
Wayne unit filed a grievance alleging that Respondent
was violating the "safety policy" and "various safety
rules" by failing to supply each meter reader with his
own "set of books." Respondent's responses to this
grievance show that the meter readers were in substance
asking that each be assigned to his own meter-reading
route, with the employees to choose their own routes in
the order of seniority, instead of being rotated between
routes as was the existing practice. These responses fur-
ther show that the meter readers sought this change on
the ground that it would cause them to travel less and to
be more aware of potential hazards in particular loca-
tions.
At the third and fourth steps of the grievance proce-
dure, the Union alleged that Respondent was violating
contract article II, which is captioned "Responsibilities
of Management" and states, inter alia, "except as other-
wise provided in this agreement, the Company in the ex-
ercise of its functions of management, has rights which
include, but are not limited to, the right to decide the
• . . methods, safety rules, direction of employees, as-
signment of work, equipment to be used." The Union al-
leged primarily that Respondent was not properly ad-
ministering safety rules. The grievance was rejected at
the first and second step on the ground that the "Cus-
tomer Accounting Manual [which is not in the record]
specifies the alternation of the meter reading route as-
signments."
During both the third and the fourth steps of this
grievance, the Union stated that the meter readers
wanted this change primarily for safety reasons. Manage-
ment's third-step answer, which rejected the grievance,
stated that there "could be" some safety advantages in
permanent assignment of routes, ftirther stated that it was
"important that a rotation of some fashion continue," and
suggested an arrangement under which each employee
would rotate between three or four routes.
The Union requested a fourth-step meeting "as soon as
possible" because "the well being of all the meter readers
in the Fort Wayne Division would continue to be jeop-
ardized until this grievance was resolved." Labor Rela-
tions Supervisor Hitzeinan's fourth-step response stated
that the Union was relying on certain provisions in the
"Safety Manual," which is not in the record. Hitzeman
rejected the grievance at the fourth step, on the ground
that there was a real question whether the proposed
change would make the job safer.
c. Meter readers' grievance regarding oral warning
(Grievance FW 79-11)
On April 23, 1979, four meter readers in the Fort
Wayne unit filed a grievance alleging that they had re-
ceived "improper discipline" on April 17, 1979, when
they received an oral warning for failing to read enough
meters on a particular day. The employees contended
that their work had been interfered with by inclement
weather. The grievance was rejected in the first and
second steps on the ground, inter alia, that oral warnings
are not normally considered discipline.
At the third- and fourth-step grievance meetings, the
Union contended that these warnings violated article II
of the agreement (which states that Respondent has the
right to discipline employees for "proper or legitimate
reasons") and other contract provisions whose identity is
not shown by the record." The grievance was rejected
at the third step on the ground that "oral warnings are
normally used to inform employees of substandard per-
formance and are intended to draw their attention to the
need for corrective action. In this instance, your Supervi-
sor judged your performance to be below reasonable ex-
pectation." At the fourth step, Labor Relations Supervi-
sor Hitzeman rejected the grievance on the ground that
the oral warnings were justified by the employees' work
performance. Hitzeman's letter further stated, "Oral
warnings are defined on page 26 of the Employee Hand-
book [which is not in the record] as follows: 'Oral warn-
ings may be given by a supervisor as a matter of infor-
mation and training, but such warning will not normally
be considered as disciplinary action.' With this in mind I
believe the purpose of the oral warning was accom-
plished."
d. Grievance regarding supervisor's acquisition of
employees' telephone number (Grievance FW 79-12)
On April 23, 1979, a Fort Wayne unit employee, with
an androgynous name but inferentially female, filed a
grievance alleging that her supervisor (who is male) had
surreptitiously acquired her telephone number and used
it without permission to harass her. Among other things,
she asked for reimbursement for the cost of changing her
telephone number. At the first step, management stated
by memorandum dated May 1 that it considered the
matter resolved because on April 2, her supervisor had
returned her phone number and given her a "verbal
apology." By memorandum to her dated May 9, her su-
pervisor memorialized this action.
At the third- and fourth-step meetings, the Union con-
tended that Respondent had violated article VI, section 7
of the 1976-1978 agreement (in which Respondent un-
dertook not to discriminate against any employee be-
cause of sex) and other contract clauses whose identity is
not disclosed by the record. Management rejected the
grievance at the third step on the ground that her super-
visor had apologized and returned the number; that there
was no evidence he had circulated it; and that the only
call from her supervisor to her had consisted of an in-
quiry, on a day when she had overslept, about whether
she was coming in. At the fourth step, Hitzeman rejected
the grievance on substantially the same grounds, and
stated that there was no evidence that her receipt of
"harassment-type" calls was due to her supervisor's
having her telephone number.
'° Art. VI, sec 2 of the bargaining agreement limited Respondent's
nght to require employees to do outdoor work in inclement weather.
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
E. Analysis and Conclusions
1. Union's request for application of Kingsport
Publishing
In Kingsport Publishing Co., 165 NLRB 694 (1967), enf.
denied 399 F.2d 660 (6th Cir. 1968), the Board found
that an employer violated Section 8(a)(5) and (1) of the
Act by refusing to honor, concerning grievances com-
plaining of employer conduct after the expiration of a
collective-bargaining contract and before the effective
date of a new one, the grievance and arbitration proce-
dure set forth in the expired agreement. In so holding,
the Board found applicable to such procedures the statu-
tory restrictions (e.g., NLRB v. Katz, 369 U.S. 736
(1962)) on an employer's right unilaterally to alter any
other employment conditions which are mandatory sub-
jects of collective bargaining. Shipbuilders (Bethlehem
Steel) v. NLRB., 320 F.2d 615 (3d Cir. 1963), cert. denied
375 U.S. 984 (1964).
The Union's brief requests me to sustain the complaint
on the basis of the theory enunciated in Kingsport. How-
ever, as the Union concedes, the Board later receded in
part from Kingsport. In Hilton-Davis Chemical Co., 185
NLRB 241 (1970), the Board held that although an em-
ployer is ordinarily obligated during a contractual hiatus
to honor the grievance procedure generated by the ex-
pired contract, he is not obligated to honor the arbitra-
tion procedure so generated. 11 In requesting me to over-
rule Hilton-Davis and revert to the Board's position in
Kingsport, the Union asks me to act beyond my proper
sphere as an administrative law judge. Insurance Workers
(Prudential Insurance), 119 NLRB 768, 772-773 (1957),
enf. denied 260 F.2d 736 (D.C. Cir. 1958), affd. 361 U.S.
477 (1960).12
2. Respondent's abandonment of "initial arbitration"
Accordingly, the first question to be considered by me
is whether "initial arbitration" constituted an arbitration
procedure within the meaning of Hilton-Davis, or merely
constituted a step in the grievance procedure. I disagree
with Respondent's contention that this issue is disposed
of by the fact that the "initial arbitration" provisions im-
mediately follow the language, "such arbitrable griev-
ance may be submitted to arbitration in the following
manner." Surely, Respondent would not be privileged to
" See also Newspaper Printing Corp, 221 NLRB 811, 821 fn. 1(1975),
Fawcett Printing Corp, 201 NLRB 964, 973 fn 41 (1973)
12 The trial examiner's Kingsport decision, adopted by the Board, stated
(165 NLRB at 696), "It would, of course, seem totally inconsistent to
hold that a grievance procedure would survive at contract but the arbi-
tration clause, the final and binding part of that procedure, would not"
Although I express no views as to the relative merits of Kingsport and
Hilton-Davis, I do suggest that the Union's attack on Hilton-Davis does it
somewhat less than Justice Although it is true that every term of em-
ployment established by a collective-bargaining agreement is ' based on
mutual consent, regarding some such terms (e g., wages) the employer
has the power and under some circumstances the right to set them unilat-
erally during a contractual hiatus However, an employer would prob-
ably have some practical difficulty in unilaterally establishing either a
grievance or an arbitration procedure with respect to a union-represented
unit, and Hilton-Davis questions his right unilaterally to establish a griev-
ance procedure at any time (185 NLRB 242-243) Cf American Vitrified
Products Ca, 127 NLRB 701, 716-719 (1960), Turbodyne Corp, 226
NLRB 522, 524 (1976)
disregard during a contractual hiatus a contractually gen-
erated procedure that stated that the first step of the "ar-
bitration procedure" is the presentation of a grievance,
within an hour after the complained-of conduct, by the
grievant and his steward to the grievant's immediate su-
pervisor, who is to dispose of the grievance in the first
instance. I agree with the General Counsel and the
Union that for Hilton-Davis purposes, "initial arbitration"
constituted a part of the grievance procedure. Hilton-
Davis stated that the arbitration procedure is character-
ized by "third party determination of unresolved issues"
(185 at 242). Concerning the parties' relationship in the
instant case, "initial arbitration" bears no resemblance to
such third-party determination; rather, the two "initial
arbitrators" are merely representatives of the respective
parties (in practice, they were always a union officer and
Respondent's personnel director), and the grievance
cannot be resolved during "initial arbitration" if they are
unable to agree on how to dispose of it. Cf. S & W Motor
Lines, 236 NLRB 938, 946, 949 (1978); 13 American Sink
Top Co., 242 NLRB 408 (1979).
The uncontradicted evidence establishes that on vari-
ous dates between November 3, 1978, and January 2,
1979, Respondent advised the Union that it would no
longer follow the procedure for "initial arbitration" set
forth in the 1976-1978 contracts. Moreover, on various
dates between July and October 1979, Respondent re-
fused to process the grievances through the "initial arbi-
tration" procedure. I find that by thus unilaterally alter-
ing the existing grievance procedure, Respondent violat-
ed Section 8(a)(5) and (1) of the Act. Pease Co., 251
NLRB 540 (1980); see also Chicago Magnexium Castings
Co., 240 NLRB 400, 406-407 (1979), enfd. 612 F.2d 1028
(7th Cir. 1980); Bethlehem, supra, 320 F.2d at 620. For
the reasons stated infra, part II,D,3, I disagree with Re-
spondent's contention that the subject matter of some of
these grievances excludes them from "initial arbitration,"
whose scope is coterminous with the scope of arbitrable
matters. Because there is no claim or evidence that the
parties ever reached an agreement eliminating "initial ar-
bitration" about these particular grievances, ,Respond-
ent's prior presentation of a proposal for elimination of
"initial arbitration" from the new contract (which pro-
posal the Union accepted on a ,date not shown by the
record) did not affect any statutory duty imposed on Re-
spondent to proceed with "initial arbitration" about the
kinds of grievances encompassed by the old contractual
provisions therefor (see supra fn. 12). For this reason,
and because (under Hilton-Davis) Respondent's duty vel
non to participate in the grievance procedure is con-
trolled by different considerations than is Respondent's
duty vel non to participate in the arbitration procedure, I
do not agree with Respondent's mootness claim with re-
spect to the appropriate classification to be accorded
"initial arbitration."
13 In the court of appeals the employer challenged portions of the S
W order that were adverse to it, and the court approved part of the chal-
lenged 'portions of the order (621 F 2d 598 (4th Cir 1980)) The court
was not asked to and did not rule on the parts of the Board's Decision
and Order that are discussed herein
INDIANA & MICHIGAN ELECTRIC CO. 73
3. Respondent's abandonment of arbitration
The remaining provisions of the arbitration clauses are
unquestionably arbitration provisions within the meaning
of Hilton-Davis. On the same day that Hilton-Davis
issued, the Board found in another case that an employer
violated Section 8(a)(5) and (1) by failing to honor the
arbitration provisions of an interim agreement reached
by the parties after the expiration of an earlier collective-
bargaining contract. Taft Broadcasting Co,, 185 NLRB
202 (1970,) enfd. 441 F.2d 1382 (8th Cir. 1971). Thereaf-
ter, as to the appropriate standards for determining
whether the parties had agreed to extend a bargaining
agreement (including its arbitration provisions) beyond
the expiration date set forth in the document, the Board
held that the record must contain "affirmative evidence
. . . that the agreement had been . . . extended beyond
its stated termination date." Long Transportation Co., 191
NLRB 202 (1971).
In 1977, the Supreme C,om t issued its decision in
Nolde Bros. v. Bakery Workers Local 358, 430 U.S. 243
(1977). Nolde held that an employer was obligated to ar-
bitrate, in the manner set forth in an expired collective-
bargaining agreement, a union claim for severance pay
that was called for by that agreement but to which the
employees became entitled, if at all, only when the plant
shut down several days after the cancellation of the con-
tract. Respondent's brief contends that Nolde "was meant
to apply solely to rights earned and accrued during the
term of the contract but whose actual enjoyment is de-
ferred until after contract termination" citing Steiner Tru-
craft, 237 NLRB 1079, 1081 (1978), enfd. 605 F.2d 1197
(3d Cir. 1979); 14 and Rochdale Village v. Teamsters Local
80, 605 F.2d 1290 (2d Cir. 1979) (holding that Nolde did
not alter the importance of the termination question in
the case before the court of appeals, because the union
attack on employer subcontracting after the bargaining
agreement allegedly expired was not analogous to the
Nolde claim that the contract gave employees a "vested
right to severance pay"). 1 a However, in Goya Foods, 238
NLRB 1465, 1466-1467 (1978), the Board stated:
In Nolde the Supreme Court adopted the rule
that the contractual duty to arbitrate disputes aris-
ing out of or during the term of a collective-bar-
gaining agreement extends beyond the date of expi-
ration of that agreement, unless negated expressly
or by clear implication. The Court reasoned that
the dispute therein was "over an obligation argu-
ably created by the expired agreement" and found
that "the fact that the Union asserted its claim to
severance pay shortly after, rather than before con-
tract termination did not control the arbitrability of
that claim." The Court recognized that the arbitra-
tion duty is a creature of the collective-bargaining
14 However, the actual result in Steiner Trucraft would be unaffected
by whether Nolde's scope was so limited Steiner Trucraft was signed by
Members Jenkins, Murphy, and Truesdale.
16 Respondent also cites Milwaukee Typographical Union No. 23 v.
Madison Newspapers, 444 F Supp. 1223 (W D Wise, 1978), affd. 622 F 2d
590 (7th Cir. 1980). However, no contention was made in that case that
any of the grievances with respect to which the Court ruled "arose"
under the expired contract.
agreement and that a party cannot be compelled to
arbitrate any matter in the absence of a contractual
obligation to do so, but it nevertheless found that
the duty extends postcontract. It reasoned that such
conclusion was derived from the parties' intent in
agreeing to arbitrate differences arising under the
contract and from the reasons for the national labor
policy favoring arbitration over judicial resolutions
of disputes, including the parties' confidence in the
arbitration process, the arbitrator's presumed special
competence in matters concerning bargaining agree-
ments, and the parties' interest in obtaining a
prompt and inexpensive resolution of their disputes.
The Court stated:
The parties must be deemed to have been con-
scious of this policy when they agree to resolve
their contractual differences through arbitration.
Consequently, the parties' failure to exclude from
arbitrability contract disputes arising after termi-
nation, far from manifesting an intent to have ar-
bitration obligations cease with the agreement, af-
fords a basis for concluding that they intended to
arbitrate all grievances arising out of the contrac-
tual relationship. In short, where the dispute is
over a provision of the expired agreement, the
presumptions favoring arbitrability must be negat-
ed expressly or by clear implication.
. . . .
In sum, the Court in Nolde found that the duty to
arbitrate extended beyond the contract term if over
a matter covered by or created by the contract
16. . . .
The actual question presented in Goya Foods was
whether employees engaged in protected concerted ac-
tivity when they struck, after the expiration of a collec-
tive-bargaining agreement with a no-strike clause, to pro-
test preexpiration discharges, when the only permissible
means of settling the dispute over such discharges was
arbitration over the resulting grievances that had been
filed. A majority of the Board found that the strike was
unprotected because (supra at 1467):
[The no-strike clause in the contract herein has co-
terminous application with that duty to arbitrate. In
our view, the words "during the life of this agree-
ment" contained in the no-strike clause do not con-
stitute express negation that the duty not to strike
should continue with the duty to arbitrate. The
agreement "lives" on in the duty to arbitrate; so
should the duty not to strike live on to the extent of
the duty to arbitrate over issues created by or aris-
ing out of the expired agreement.
We believe that our conclusion is consistent with
the strong national policy favoring arbitration of
labor disputes. Furthermore, it would indeed be
16 Members Jenkins, Murphy, Penello, and Truesdale joined in the ma-
jority opinion Chairman Fanning's concurrence does not appear to ques-
tion the majority opinion's interpretation of Nolde regarding the duty to
arbitrate Cf. infra at fn 17
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
anomalous if an employer who would be contrac-
tually bound to arbitrate a certain dispute after con-
tract expiration could still be subjected to economic
pressure that would be protected.17
At least arguably, Goya Foods may be consistent with
Respondent's somewhat narrow reading of Nolde. How-
ever, in American Sink Top, supra, 242 NLRB 408 (1979),
the Board" required an employer to arbitrate in accord-
ance with the provisions of an expired contract a griev-
ance regarding an employee's postcontract discharge that
was claimed to "violate" the provisions of that contract.
The Board said that in NoIde, supra at 408:
[T]he Supreme Court held that, where the parties to
a collective-bargaining agreement have agreed to
subject certain matters to a grievance and arbitra-
tion process, "the parties' obligations under their ar-
bitration clause survive[s] contract termination
when the dispute [is] over an obligation arguably
created by the expired agreement." Id. at 252. That
obligation is not terminated merely by the parties'
failure to expressly cover this situation. As the
Court stated generally in Nolde, in the "absence of
some contrary indication, there are strong reasons
to conclude that the parties did not intend their ar-
bitration duties to terminate automatically with the
contract." Id. at 253.
. . . .
The grievance's basis is "arguably"—at least—the
contract, and there is no reason to conclude that the
parties had intended the arbitration provisions to
end with the contract's term. In light of Nolde, we
shall order the arbitration of the discharge . . . if
appropriate.
Respondent contends that the Board committed an
"egregious error" in American Sink by applying NoIde to
a grievance involving a postcontract discharge. Of
course, I have no power to overrule American Sink. Pru-
dential, supra, 119 NLRB at 772-773. Moreover, Ameri-
can Sink's interpretation of Nolde's scope is rather similar
to the approach of several Federal courts. Thus, in Fed-
erated Metals Corp. v. Steelworkers, 648 F.2d 856 (3d Cir.
1981); and Steelworkers v. American Smelting Co., 648
F.2d 863 (3d Cir. 1981), a divided Court, relying on
Nolde, (1) upheld an arbitration award requiring weekly
"security payments," which the bargaining agreement af-
forded to employees after their layoff, for a period after
the agreement had expired and the plant had shut down;
and (2) required an employer to arbitrate (pursuant to a
pension-agreement clause that subjected to arbitration a
dispute over a pension claimant's number Of years of
continuous service) such a dispute with respect to em-
17 Chairman Fanning took the position that NoIde is inapplicable to de-
termining whether statutory rights have been waived, and that to con-
clude that the no-stoke clause extended beyond the life of the contract
would be inconsistent with the requirement that an effective waiver of
statutory rights must be clear and unmistakable. He found the strike to be
unprotected because it later acquired the additional purpose of seeking to
compel unlawful recognition 238 NLRB at 1468-1469
18 Chairman Fanning and Members Jenkins and Murphy
ployees who had accrued sufficient continuous-service
credits for pension eligibility if, but only if, their service
between the pension agreement's expiration and the plant
shutdown were to be included. The Court stated (Feder-
ated Metals, supra, 648 F.2d at 860), "We do not believe
that the somewhat esoteric determination that the disput-
ed right to a particular benefit has vested or accrued
should control the decision whether the duty to arbitrate
the dispute survives contract termination. . . . It is not
necessary that the disputed right have vested because
there is nothing to prohibit the parties from agreeing that
certain benefits might accrue after the contract has ex-
pired." See also Piano Workers Local 2549 v. W. W. Kim-
ball Co., 379 U.S. 357 (1964), revd. 333 F.2d 761 (7th
Cir. 1964), which Nolde described (430 U.S. at 252) as
holding arbitrable a dispute that arose after the life of the
agreement over seniority rights under the agreement;
Garment Workers Local 589 v. Kellwood Co., 592 F.2d
1008 (8th Cir. 1979) (involving a claim br pension bene-
fits to which employees became entitled, if at all, before
the employer entered into an agreement; "Under Nolde,
whether a dispute arises or rights accrued during the ef-
fective period of a labor contract does- not necessarily
determine arbitrability"); Textile Workers v. Columbia
Mills, 471 F.Supp 527 (N.D.N.Y. 1978); Bohack Corp. v.
Truck Drivers Local 807, 431 F.Supp. 646, 652-653
(E.D.N.Y. 1977), affd. on opinion of court below 567
F.2d 237 (2d Cir. 1977), cert. denied 439 U.S. 825 (1978);
Hayes v. National Football League, 469 F.Supp. 252 (C.C.
Calif. 1979); Service Employees Local 6 v. University
Manor Convalescent Center, 105 LRRM 3499 (D.C.
Wash. 1980). Further, General Warehousemen & Employ-
ees Local 636 v. C Penney Co., 484 F.Supp. 130 (W.D.
Penn.), expressly noted and did not question the Board's
application of Nolde to a postcontract discharge (the
basis of the grievance before the district court) and went
on to find that the Nolde presumption had been over-
come in the case before the Court itself.
Respondent does not appear seriously to question that
American Sink, if still viable, calls for using Nolde stand-
ards to determine whether the arbitration provisions of
the 1976-1978 contracts were applicable to the griev-
ances here. However, Respondent contends that Ameri-
can Sink has been overruled by Cardinal Operating Co.,
246 NLRB 279 (1979). 19 Because neither the decision of
Administrative Law Judge Robert M. Schwarzbart nor
the decision of the Board in Cardinal Operating cites
American Sink, any such overruling would have to be
sub silentio. Mcireover, I perceive no inconsistency be-
tween the reasoniing of Judge Schwarzbart (whose deci-
sion was adopted by the Board, at least so far as material
here) and American Sink. Since Hilton-Davis, whether an
employer has a duty to arbitrate grievances which arise
during a contractual hiatus has depended on whether he
had agreed to an arbitration obligation. This approach
was in no respect changed by either Nolde or American
Sink, both of which merely held that regarding disputes
arising over provisions of the expired contract, there is a
presumption that when agreeing to include an arbitration
15 Decided by Members Jenkins, Murphy, and Ttuesdale
INDIANA & MICHIGAN ELECTRIC CO. 75
clause in a contract, the contracting parties did not
intend their arbitration duties to terminate automatically
with the contract, and that such a presumption must be
negated expressly or by clear implication. In Cardinal
Operating, Judge Schwarzbart addressed himself solely to
the question of whether the parties had agreed, shortly
before the expiration date on the face of the contract, to
extend the entire contract, including but not limited to
the arbitation clause. In finding that they had not so
agreed, Judge Schwarzbart relied on, inter alia, a provi-
sion therein (not contained in any of the instant bargain-
ing agreements) that the contract incorporated the full
understanding of the parties and no written or oral un-
derstandings or practices would be recognized in the
future unless committed to writing and signed by the
parties. Furthermore, Judge Schwarzbart cited S. W.
Motor Lines, supra, 236 NLRB 938 (1978), in which Ad-
ministrative Law Judge Hutton S. Brandon, whose deci-
sion in this respect was affirmed by the Board, cited and
applied Nolde in finding that the presumption of arbitra-
bility was negated by "clear implication"—more specifi-
cally, by a contract provision that specifically limited to
the duration of the contract the obligation to participate
in proceedings which were a necessary step in the arbi-
tral process. 236 NLRB at 946, 949-950. It is true that
this analysis was an alternative ground for Judge Bran-
don's conclusion that the employer was not bound to ar-
bitrate grievances that arose after the contract had ex-
pired, and that Judge Schwarzbart relied on that portion
of Judge Brandon's analysis that was solely based on
Hilton-Davis and Taft Broadcasting. However, this cir-
cumstance is far from establishing that Judge Schwarz-
hart and the Board held Nolde irrelevant to a claim that
a contract as originally agreed to called for arbitration of
postcontract grievances, and held accordingly that Amer-
ican Sink's reliance thereon was erroneous.
The next question to be considered is whether the in-
stant 1976-1978 contracts are to be read as calling for
application of the arbitration procedure after the respec-
tive expiration dates set forth in those agreements. Nolde
and American Sink call for the presumption that such
procedures are to be so read. I conclude that Respondent
has failed to rebut this presumption.
Respondent largely relies on the fact that all the con-
tracts in question contain termination clauses (without
specifically including or excepting arbitration) and also
restrict the arbitration procedure to grievances that in-
volve "interpretations or applications of a specific term
or terms of this Agreement." However, the problems ad-
dressed by Nolde and its progeny do not even arise
unless the contract has a termination clause, whose date
has passed, and contains no language affirmatively stat-
ing that the arbitration provision remains in effect. Ac-
cordingly, the clauses cited by Respondent cannot be
read as rebutting, either expressly or by clear implica-
tion, the presumption of arbitrability. 2 ° Moreover,
20 For the same reasons, the presumption is unaffected by the Union's
letter to Respondent, dated November 27, 1978, that "there was a bind-
ing contract in existence [with respect to the South Bend unit] between
January 1, 1978 and November 1, 1978"; and the Union's letter to Re-
spondent, dated May 4, 1979, that "there were binding contracts in exist-
ence . between January 1, 1978 and December 1, 1978; December 16,
"when the parties have agreed to a narrow arbitration
clause, the duty to arbitrate survives if the dispute is
over one of the specified arbitrable subjects and arises
under the expired agreement." Federated Metals, supra,
107 LRRM at 2275. I note that the parties expressly pro-
vided that certain clauses other than the arbitration
clause would not be coterminous with the rest of the
contract. 21 Respondent further asserts that "the no-strike
clause, the quid pro quo for the arbitration clause, was
not continued." However, Goya, supra, 238 NLRB at
1466-1467 (not cited in Respondent's brief) holds in
effect that the no-strike obligation does continue regard-
ing hiatus grievances rendered arbitrable by Nolde.22
Moreover, during the negotiations that led up to the
1979-1981 contracts, the Union never told Respondent
that the Union had the right to strike, and at one time
informed Respondent that the Union had no intention of
going on strike. Further, Respondent relies on its own
action in giving the Union notice, during the negotiations
that immediately preceded the hiatus and again immedi-
ately after the 1976-1978 contracts expired, that arbitra-
tion would not continue. However, such statements by
Respondent in late 1978 and early 1979 fail to show that
such was the intent of both parties in 1976, when they
signed the agreements. Moreover, the Union replied to
management's written notices to this effect by filing an
unfair labor practice charge attacking Respondent's an-
ticipatory refusal to arbitrate, and replied to such a state-
ment from Personnel Manager Willmore (two-thirds of
the way through a 45-minute speech about the status of
negotiations) by stating, in substance, that responding to
threats was a waste of time and the parties should con-
centrate on reaching a new agreement. Such union re-
sponses can hardly be interpreted as acquiescence.
As previously found, Personnel Manager Willmore ad-
vised the Union before the 1976-1978 agreements were
entered into that Respondent would not agree to arbi-
trate grievances that arose after the expiration of the
1973-1975 agreements (on which the Union stated that if
the old agreement expired before a new agreement was
reached, all the terms and conditions of the previous
agreement would continue as they were)." Respondent's
brief does not even refer to this incident, much less argue
that Willmore's remarks evinced an intention to limit the
effective period of the 1976 arbitration agmements in the
1978, and January 1, 1979 for the Marion-Muncie, Fort Wayne, and Gen-
eral Office Units respectively"
25 Thus, the checkoff clauses in all but the South Bend contract pro-
vide that the employee's checkoff authorization "shall continue in effect
for the duration of this contract, or until receipt by the Company of [the
employee's] revocation . or when the employee ceases to be repre-
sented by the Union in the Bargaining Unit, whichever occurs earlier."
The South Bend contract fails to include the language after the word
"revocation."
22 Indeed, at least arguably, this result was specifically called for by
the South Bend and General Office no-strike clauses, which provide, "In-
asmuch as a grievance and arbitration procedure has been agreed upon,
there shall be no strikes . . during the life of this Agreement or exten-
sion thereof" Moreover, the preambles to the other contracts recite that
their purpose is to facilitate "the peaceful adjustment of differences that
arise from time to time" for the benefit of, inter alia, the members of the
public to whom Respondent provides electricity as a public utility
23 There is no evidence that the Union ever asked for arbitration of
any such 1976 grievances
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
way he was attempting in 1976 to limit the effective
period of the arbitration agreements reached in 1973.
Moreover, the arbitration clauses in the 1976 contracts
are substantially the same as those in the 1973 contracts.
Under these circumstances, I conclude that such remarks
did not rebut the presumption that the arbitration clauses
continued in effect.
Regarding most of the hiatus grievances, Respondent
has never questioned that their subject matter was within
the scope of the arbitration clauses. Respondent's brief
raises some question regarding Fort Wayne employee
Davis' claim for top pay for the hours he worked as a
leadman (supra, part II,C,3,a), but the uncontradicted
evidence shows that at the third and fourth steps, the
Union relied on the contractual wage agreement and
other contract provisions. Respondent's step 2 response
to the grievances of Marion-Muncie employee Keating
characterized as "non-grievable" his allegation that Re-
spondent had "refused to attempt to settle grievances in
a fair and equitable manner"; but the contract imposes on
the parties the duty to make "an earnest effort . . . im-
mediately to settle . . . differences" regarding the inter-
pretation and application of the terms of the agreement.
Regarding the meter readers' grievance alleging that
the existing route assignment system caused safety prob-
lems, Respondent's refusal letter asserted that the griev-
ance was not arbitrable "due to its subject matter." Re-
spondent may have been relying on the fact that the con-
tractual "Responsibilities of Management" clause afford-
ed Respondent the right to "decide the . . . methods,
safety rules, direction of employees, [and] equipment to
be used" "except as otherwise provided in this agree-
ment." However, the Union did allege that Respondent
was violating contract clauses that the Union specified,
and Respondent's brief does not question the arbitrability
of this grievance. 24 I conclude that it too falls within the
contractual arbitration clause. Koppers Co., 73 LA 837,
839 (1979); see generally Steelworkers v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 582-583 (1960) ("An order
to arbitrate the particular grievance should not be denied
unless it may be said with positive assurance that the ar-
bitration clause is not susceptible of an interpretation that
covers the asserted dispute. Doubts should be resolved in
favor of coverage").
I perceive no basis for Respondent's contention that
because other contract provisions had expired, in consid-
ering the instant grievances "The arbitrator would . . .
be left in a no-man's land without map or chart to guide
his decision." Both parties attempted during the griev-
ance proceedings to resolve the grievances on the basis
of such contract provisions, and NoIde and its progeny
call for the arbitrator to do the same.
I note, moreover, that all the grievances here were
based on clauses in the 1976-1978 contracts that were
54 Labor Relations Supervisor Hitzeman's July 1979 fourth-step re-
sponse to this grievance stated that the Union was relying on certain pro-
visions in the "Safety Manual" The January 1979 charge herein alleged,
inter aim, that Respondent had violated the Act by "claiming safety as
[its] exclusive responsibility and refusing to allow the Union to be a party
to negotiating of safety rules" (item 6) The Instant complaint contains no
such allegation
also included in the 1979-1981 contract. 26 Indeed, as is
not unusual in cases of longstanding bargaining relation-
ships, the old (1976-1978) contracts were so similar to
the new (1979-1981) contracts that the same would
likely have been true regarding a significant proportion
of all hiatus grievances. Respondent was unquestionably
under a statutory duty to maintain, during the contrac-
tual hiatus, such employment conditions generated by the
1976-1978 contracts and called for by the 1979-1981
contracts. By complying with this statutory obligation,
Respondent not only would respect employees' statutory
right to be consulted, through their bargaining represent-
ative, about changes in their employment conditions,26
but also would further the consummation of new and
complete contracts by enabling the negotiating parties to
concentrate on matters really at issue. However, whether
contractually generated employment conditions are in
fact maintained during a contractual hiatus—indeed,
whether the employer is able to maintain them—may
well depend on whether there has been a change in the
means by which the contract clauses are interpreted
during this period. During the effective period of a con-
tract with an arbitration clause, the final interpreter of
the parties' obligations thereunder is the arbitrator. If the
arbitration clause is ineffective on the expiration of the
rest of the contract, whether contractually generated em-
ployment conditions have been maintained must be de-
termined by the Board and the courts, , whose approach
to interpreting the contract may well significantly differ
from the approach which the arbitrator took, and which
the parties (when agreeing to both substantive contract
clauses and an arbitration clause) expected him to take.
See Nolde, supra, 430 U.S. at 252-254. 27 Furthermore,
on occasion the most honest employer will likely treat
employees somewhat differently, and the most honest
employer and union grievance representatives will likely
make somewhat different judgments, when they know
that arbitration is unavailable. (The same is true, of
course, where the union would be the object of a possi-
ble grievance)" In short, no matter how conscientious
25 In fact, with one possible exception (supra fn 24), there is no evi-
dence that anyone ever proposed changing any of such clauses.
26 Katz, supra, 369 U S at 742-747, Bethlehem, supra, 320 F 2d at 617,
621-622; Central Illinois Public Service Co., 139 NLRB 1407, 1415-1417
(1962), enfd 324 F 2d 916 (7th Cir 1963).
27 The Fort Wayne contract indicates on its face that the arbitrator's
decisions constitute precedent regarding how the contract is to be read
More specifically, the disposition made of an unappealed grievance "shall
be considered dropped without prejudice or precedent" (Art IV, sec.
1(d).)
28 For example, the Keating grievances regarding payments during his
January 1979 Tanner's Creek assignment, which lasted at least a week,
largely involved a 1976-1978 contract provision that (according to Re-
spondent) had been in all Marion-Muncie union contracts since 1953,
which was included in the 1979-1981 contract, and which (so far as the
record shows) was not discussed during the negotiations leading up to
the 1979-1981 contract Although I do not suggest that Respondent's in-
terpretation of these provisions was advanced in bad faith or even errone-
ous, neither is this interpretation self-evident Accordingly, withholding
Keating's grievances from the arbitral process might well cause him to
receive payments based on a contract interpretation significantly different
from what would have been reached if he had been assigned to Tanner's
Creek before or after the contractual hiatus
INDIANA & MICHIGAN ELECTRIC CO. 77
the parties, maintenance of contractually generated em-
ployment conditions may be impossible without the con-
tinued availability of the contractually described arbitra-
tion procedures.
For the foregoing reasons, I find that Respondent vio-
lated Section 8(a)(5) and (1) of the Act by advising the
Union, on various dates between November 3, 1978, and
January 2, 1979, that Respondent was abandoning the ar-
bitration procedures set forth in the 1976 contracts. Fur-
ther, I find that Respondent violated these statutory pro-
visions by stating that it would not arbitrate the griev-
ances described supra, part II,D.
CONCLUSIONS OF LAW
1. 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 mean-
ing of Section 2(5) of the Act.
3. The following employees of Respondent constitute
respective units appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
(a) All probationary and regular production and main-
tenance employees of the Respondent under the supervi-
sion of the South Bend and Benton Harbor Divisions
having their headquarters within its Elkhart, South Bend,
Buchanan, or Benton Harbor Areas and all probationary
and regular production and maintenance employees of
the Respondent under the supervision of the Twin
Branch Generating Division having their headquarters at
the Twin Branch Plant, but excluding all administrative
employees, part-time employees, temporary employees,
office clerical employees, plant clerical employees, tech-
nical employees, confidential employees, guards, profes-
sional employees, and supervisors as defined in the Act,
and all other employees.
(b) All regular production, maintenance and distribu-
tion employees, including meter readers but excluding all
guards, clerical, technical, professional, supervisory em-
ployees, part-time, temporary, and probationary employ-
ees of the Marion and Muncie Division of the Respond-
ent.
(c) All employees employed by the Respondent at its
Fort Wayne, Indiana Division; but excluding all office
clerical employees, all professional employees, and all
guards and supervisors as defined in the Act.
(d) All production and maintenance employees in the
General Office Transmission Construction and Mainte-
nance Group of the Respondent including construction
employees, Lineman A, B, and C, Lineman Helpers,
Driver-Groundmen, and Heavy Equipment Operators.
Excluding all office clerical, professional employees,
guards, temporary and part-time and supervisory em-
ployees as defined in the Act, and all other employees.
4. At all relevant times, the Union has been the exclu-
sive representative of each of these units within the
meaning of Section 9(a) of the Act.
5. Respondent has violated Section 8(a)(5) and (1) of
the Act by engaging in the following conduct.
a. With respect to the unit described in Conclusion of
Law 3(a):
(1) On November 3, 1978, unilaterally abandoning ob-
servance of the initial-arbitration procedures set forth in
Respondent's 1976 collective-bargaining agreement with
the Union.
(2) Refusing on October 19, 1979, to process grievance
TB 79-02 through initial arbitration.
(3) On November 3, 1978, unilaterally abandoning the
provisions in Respondent's 1976 collective-bargaining
agreement with the Union regarding arbitration by a
third-party arbitrator.
b. With respect to the unit described in Conclusion of
Law 3(b):
(1) On December 4, 1978, unilaterally abandoning the
observance of the initial-arbitration procedures set forth
in Respondent's 1976 collective-bargaining agreement
with the Union.
(2) Refusing on July 10, 1979, to process grievance
MU 79-04 through initial arbitration; and refusing on
August 28, 1979, to process grievances MU 78-13, 79-02,
and 79-03 through initial arbitration.
(3) On December 4, 1978, unilaterally abandoning the
provisions in Respondent's 1976 collective-bargaining
contract with the Union regarding arbitration by a third-
party arbitrator.
c. With respect to the unit described in Conclusion of
Law 3(c):
(1) On December 18, 1978, unilaterally abandoning the
observance of the initial-arbitration procedures set forth
in Respondent's 1976 collective-bargaining contract with
the Union.
(2) Refusing on July 31, 1979, to process grievance
FW 79-08 through initial arbitration; and refusing on
August 28, 1979, to process grievances FW 79-05, 79-11,
and 79-12 through initial arbitration.
(3) On December 18, 1978, unilaterally abandoning the
provisions in Respondent's 1976 collective-bargaining
contract with the Urnon regarding arbitration by a third-
party arbitrator.
d. With respect to the unit described in Conclusion of
Law 3(d), on January 2, 1979:
(1) Unilaterally abandoning the observance of the ini-
tial-arbitration procedures set forth in Respondent's 1976
contract with the Union.
(2) Unilaterally abandoning the provisions in that con-
tract regarding arbitration by a third-party arbitrator.
6. The foregoing unfair labor practices affect com-
merce within the meaning of the Act.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist therefrom, and from like or
related conduct. Affirmatively, Respondent will be re-
quired to process the grievances in question in the
manner specified in the "initial arbitration" procedures
contained in the appropriate 1976 contract, and on re-
quest, process such grievances under the provisions of
the appropriate 1976 contract regarding arbitration by a
third-party arbitrator. In addition, Respondent will be re-
quired to post appropriate notices.
[Recommended Order omitted from publication.]