Malrite of Wisconsin, Inc.

National Labor Relations Board - Board Decisions

Oct 4, 1974

213 N.L.R.B. 830 (N.L.R.B. 1974)

830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Malrite of Wisconsin , Inc. and Wisconsin Broadcast
Engineers, Local #715, International Brotherhood
of Electrical Workers. Case 30-CA-1182
October 4, 1974
SUPPLEMENTAL DECISION
On July 18, 1972, the National Labor Relations
Board issued its Decision and Order in this case'
dismissing the complaint in its entirety, and deferring
to the award of the arbitration panel notwithstanding
the Respondent's failure to comply with the award.
Thereafter on March 29, 1974, the Court of Appeals
for the District of Columbia affirmed in part and
denied in part the petition for review and remanded
the case to the Board. The court held that the Board
could defer to the grievance and arbitration proce-
dure in such circumstances except with respect to a
part of the case which had not been considered by the
arbitration panel. Having accepted the remand of this
case, the Board issued a notice to the parties request-
ing statements of positions. Thereafter the General
Counsel and the Respondent each filed a statement.
Upon the entire record in this case, including the
statements of positions and Respondent's earlier ex-
ceptions and brief, the Board finds:
The Respondent purchased the radio station in-
volved herein on May 1, 1968, assuming the collec-
tive-bargaining agreement executed by its
predecessor. The agreement authorized employment
of one engineer-announcer on the late night shift.
However, the Respondent began in December 1968 to
operate its day and evening programs using the com-
bo operators. The Respondent sought and received
from two of its engineers written consent to perform
combo duties, but did not apprise the Union of what
it was doing. The Union protested, and the matter
went to arbitration. After the arbitration hearing but
prior to the issuance of the arbitration award, the
Respondent assigned Morgan Hill, Edward Couzens,
and Robert Schwartz as combo operators. The three
had been employed by the Respondent as announc-
ers. Respondent secured a written consent from each
individual but again did not seek concurrence from
the Union. In January 1970 the arbitration panel is-
sued its decision and award sustaining the Union's
position that the Respondent violated the collective-
bargaining agreement by assigning combo operators
to the day and evening shifts. The Respondent took
no action to comply with the award and on February
3, 1970, the Union filed the unfair labor practice
charge herein. The Union never sought to enforce the
' 198 NLRB 3 (1972).
arbitration award in the courts.
The Board dismissed the complaint in its entirety
on the basis of the Spielberg 2 doctrine, indicating that
the Board was deferring to the entire arbitral process
including the enforcement of arbitration awards. The
Union petitioned the court of appeals to set aside the
Board's Order. The court held that the Board acted
within its discretion by deferring to the arbitration
award and insisting that the Union pursue judicial
enforcement of the award. The court stated, "As long
as the remedy of judicial enforcement is available, the
force of the Spielberg doctrine is not diminished by
one party's disregard for the arbitral award." The
court pointed out, however, that the unlawful bar-
gaining charge with relation to Hill, Couzens, and
Schwartz was based on events which took place after
the arbitration hearing. The court found that the arbi-
tration panel, therefore, could not have considered
the individual agreements and concluded that defer-
ral with respect thereto was improper.
The Trial Examiner (as Administrative Law Judges
were then called) found that Respondent's action in
discussing the combo operations with the three indi-
viduals and in obtaining their written consents oc-
curred in disregard of the Union's status as bargaining
agent. He concluded that this constituted individual
bargaining which violated Section 8(a)(5) and (1) of
the Act.
The General Counsel submitted a brief in response
to the Board's request for statements of position urg-
ing the Board to find a violation and issue a special
remedy. The General Counsel contends that the indi-
vidual bargaining is a serious violation in complete
disregard of the Union's status and must therefore be
remedied. The General Counsel states that the Union
no longer represents the unit involved herein or any
other unit of Respondent's employees. He therefore
requests that in addition to the normal cease-and-
desist and notice-posting order the Union be author-
ized to use the Respondent's bulletin boards and to
hold several meetings on Respondent's premises and
that notices be sent to the individual unit employees
then working for the Respondent. The General Coun-
sel states, "It would appear, however, absent the
above remedies, the posting of a typical Board notice
would be an exercise in futility."
Respondent originally excepted to the Trial
Examiner's finding that it had engaged in unlawful
individual bargaining. Although it did not specifically
discuss the issue in its original brief, Respondent con-
tended therein that its change to the combo arrange-
ment was not a modification of the agreement and
that, in any event, it had attempted to bargain with the
Union about the change. In its statement of position
2 Spielberg Manufacturing Company, 112 NLRB 1080 (1955).
213 NLRB No. 114
MALRITE OF WISCONSIN, INC. 831
the Respondent contends that it did not engage in
prohibited individual bargaining because the individ-
uals involved herein were announcers outside the unit
when the bargaining occurred.
Although the record supports Respondent's con-
tention that Hill, Couzens, and Schwartz were all an-
nouncers outside the unit when Respondent discussed
the combo operation with them, that fact is not con-
trolling. Respondent received written consent from
the individuals to take positions which were within the
unit. It is well established that individual bargaining
with unit employees or potential unit employees in
derogation of a collective-bargaining agreement is
proscribed by the Act. In J. I. Case Co. v. N.L.R.B.,
321 U.S. 332 (1944), the Supreme Court states:
After the collective trade agreement is made,
the individuals who shall benefit by it are identi-
fied by individual hirings. The employer, except
as restricted by the collective agreement itself
and except that he must engage in no unfair labor
practice or discrimination, is free to select those
he will employ or discharge. But the terms of the
employment already have been traded out. There
is little left to individual agreement except the act
of hiring. [at 335.]
Individual contracts, no matter what the cir-
cumstances that justify their execution or what
their terms, may not be availed of to defeat or
delay the procedures prescribed by the National
Labor Relations Act looking to collective bar-
gaining, nor to exclude the contracting employee
from a duly ascertained bargaining unit; nor may
they be used to forestall bargaining or to limit or
condition the terms of the collective agreement.
[at 337.]
Having found that the Respondent has violated the
Act, we turn to consideration of what is the appropri-
ate remedy. In our opinion the special remedy re-
quested by the General Counsel is not warranted in
this case.' Even had the Board found all the charged
violations, this case was not one which originally war-
ranted a special remedy. In fact, the Trial Examiner
recommended no such remedy. The General Counsel
cites the fact that the Union no longer represents any
unit of Respondent's employees as reason for now
granting the remedy. However, the passage of time
and the changed situation are not sufficient in the
circumstances of this case for the Board to grant the
requested remedy. Indeed, to do so would put the
Board in the position of appearing to lend support to
the unionization of Respondent's engineers by one
particular union regardless of whatever interest an-
other union might have. In such matters the Board
must be and appear to be scrupulously neutral. The
General Counsel also argues that unless the special
remedy is given, the usual remedy would be an exer-
cise in futility because of the changed situation. We
agree, and for that reason we shall not remedy the
violation which we have found. We reach this conclu-
sion despite the fact that individual bargaining is gen-
erally considered to be a serious violation of the Act.
We, however, emphasize that the only violation we
have found relates to Respondent's individual bar-
gaining. We have not and do not find that the Re-
spondent violated the Act by changing to combo
operations, for we have deferred that aspect of the
case to the arbitral award and the process of court
enforcement of the award. Thus, we have found a
narrow violation based upon the Respondent's ob-
taining written consent from the three individuals and
not upon the fact that they were employed as combo
operators.
The record establishes that the Union did not waive
its bargaining rights with respect to the three individu-
als. The collective-bargaining agreement does provide
that the Employer may determine the duties to be
performed by engineers, but it also includes the quali-
fying phrase that such duties must be "within the
jurisdiction of this agreement." Since the contract
makes it clear that engineers in the unit are to do only
unit work, except for one on the late night shift, the
contract does not support Respondent's position that
combo operators should be permitted on the day and
evening shifts if individual permission is obtained. It
is also clear from the record that at no time did the
Union approve the change to combo operations. For
these reasons, we find that Respondent, by bargaining
individually with Hill, Couzens, and Schwartz, violat-
ed Section 8(a)(5) and (1) of the Act.
CHAIRMAN MILLER, concurring in the refusal to issue
a remedial order, but upon separate grounds:
As the court of appeals has pointed out, this Board
failed to deal with the issue of whether the
Respondent's assignment of engineering duties to
nonunit employees Hill, Couzens, and Schwartz vio-
lated the Act. In my opinion it did not and for that
reason I concur in my colleagues' refusal to issue any
remedial order.
Normally, an employer is, of course, free to deal
individually with unrepresented employees-which
3 Members Fanning and Jenkins concur in finding a violation of the Act.
However, they would grant the remedy sought by the General Counsel,
relying in part on the Board 's decision in H. W. Elson Bottling Company, 155
NLRB 714 (1965), enfd. as modified 379 F.2d 223 (C.A. 6, 1967). Neither
Member Fanning nor Member Jenkins concurs in our discussion of the
remedy.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hill, Couzens, and Schwartz clearly were. He may
assign to such employees any duties he desires with-
out violating any provision of this Act. If, however,
the result of such assignment of duties is to bring
those formerly nonunit employees within the descrip-
tion of the category of employees which the union, by
virtue of a certification or a voluntary recognition
agreement, is entitled to represent, then they are nor-
mally deemed to have been accreted to the bargaining
unit and the union therefore becomes their exclusive
bargaining agent. If, however, at the time of the as-
signment or at a timely point subsequent thereto a
genuine question concerning representation arises,
this Board will, upon the filing of a proper and timely
petition, resolve that question, and the issue of wheth-
er the employer has a duty to bargain with the union
for the expanded unit will be dependent upon the
outcome of the representation proceeding. Further-
more, if there is a question as to whether the assign-
ment of duties has, in fact, resulted in the employees'
having been brought within the bargaining unit, that
question, too, can be resolved in a prompt and orderly
way in the course of a unit clarification proceeding.
Subsequent to the Employer's assignment of some
engineering duties to the work performed by the non-
unit announcers here, no one raised the only real is-
sue; i.e., whether that assignment resulted in an
accretion. Instead, the Union took the position that
the assignment of unit duties to nonunit personnel
was an unfair labor practice-an issue which seems to
me to have missed the mark.
The complaint here, I would find, was improvident-
ly issued. The dispute between the parties as to work
assignments to unit employees Bernauer and Over-
gaard had, as we and the court have held, been re-
solved in the arbitral forum. The assignment of
additional duties to nonunit employees Hill, Couzens,
and Schwartz did not violate any provision of the Act
but may-or, if the duties were sufficiently insignifi-
cant, may not-have resulted in their being accreted
to the bargaining unit. That question could-and
should-have been determined in a representation
proceeding.
Instead, when negotiations were sought by the
Union on April 6, 1970, the issue of whether Hill,
Couzens, and Schwartz were to be deemed to be in the
unit was raised, disputed, but left unresolved.
No party sought to have this Board resolve that
issue by means of a unit clarification petition. This
very unresolved issue resulted in a stagnation of the
bargaining process.
We failed to perceive, when this case was previously
before us for determination, that this accretion issue
was the heart of the dispute as to Hill, Couzens, and
Schwartz and instead, as the court has had to remind
us, we focused solely on the Spielberg issue , which has
no real relevance to the facts regarding Hill, Couzens,
and Schwartz. I must accept a full share of the blame
for a very tardy perception indeed of what I now
believe to have been the real issue.4
Having now perceived it, however, I would dismiss
the complaint herein, wishing vainly that it had been
dismissed 4 years ago so that the only real issue could
promptly have been decided in an appropriate unit
clarification proceeding and, if a resulting substantial
expansion of the unit had also given rise to a genuine
question concerning representation, by an election
proceeding as well.
MEMBERS FANNING AND JENKINS, dissenting:
This case has been remanded to the Board by the
court of appeals because the Board majority in its zeal
to substitute an arbitration panel's award for a Board
decision dismissed unfair labor practices that oc-
curred after the panel issued its opinion. Now, in com-
pliance with the court's remand, the majority has
reconsidered its dismissal of the complaint. The main
opinion finds a violation of Section 8(a)(5) with re-
spect to the Respondent's individual bargaining with
employees Hill, Couzens, and Schwartz, who were
persuaded to assume the duties of engineers as well as
announcers, contrary to the Respondent's contractual
obligations.
The concurring opinion concludes that the com-
plaint as to these employees was "improvidently is-
sued" on the ground that the issue involves no more
than a question of accretion to be decided in a unit
clarification proceeding.
The main opinion reaches the conclusion that no
remedy should be provided for the violation of Sec-
tion 8(a)(5) because: (a) to provide a special remedy,
as requested by the General Counsel, would put the
Board in the position of assisting the Union at the
possible expense of another union; and (b) to provide
the usual remedy would, as the General Counsel sug-
gests, be an exercise in futility. It must be noted that
the court specifically directed the Board to consider
the above charges of individual bargaining and point-
ed out to the Board that such unfair labor practices
could not be remedied by the judicial enforcement of
the arbitration decision. The majority is now telling
the court, so be it. The charges with respect to Hill,
Couzens, and Schwartz, although found valid, will go
unremedied.
My dissenting colleagues do not yet perceive it. They speak of an 8(a)(5)
violation arising out of a situation in which an employer "unilaterally bar-
gains" with a nonunit employee for employment "within the unit ." But no
one has yet decided whether the assignment of the additional duties to Hill,
Couzens, and Schwartz brought them "within the unit," or whether , if it did,
the resultant expansion of the unit gave rise to a question concerning repre-
sentation.
MALRITE OF WISCONSIN, INC.
We do not believe the majority 's decision complies
with the court 's remand . Surely , the court did not
direct the Board to give further consideration to this
case to the end that a violation of the Act would, in
any event , be unremedied . The fact that the Union
would undoubtedly be assisted by the Board 's Order
is hardly a reason to refuse to act. Such assistance is
normal and appropriate in every case where a viola-
tion of Section 8 (a)(5) is found . And, of course, this
is so whether or not the Union in such a case has
maintained its majority status.
The General Counsel has asked for a modest reme-
dy in this case , pointing out that under present cir-
cumstances there is probably little that can be done
to prevent the Respondent from enjoying the fruits of
its unfair labor practices. The Union has been com-
pletely defeated . It has exhausted its patience and
funds , its unit has been decimated by the Employer's
conversion to combo operators , and it no longer rep-
resents this unit or any other unit of the Employer's
employees . The General Counsel asks that the Board
833
provide its usual order with the normal notice lan-
guage , together with a requirement that the Union be
authorized , if it so desires , to utilize the bulletin
boards for the purpose of seeking to communicate
with the combo operators or any remaining engineers.
The General Counsel also suggests that the Union be
allowed to hold a few meetings on the Employer's
premises to attempt to recoup its lost majority. In our
opinion , a remedy of this nature is entirely proper and
warranted.
In response to the concurring opinion , the law is too
clear to require citation that where, as here, an em-
ployer unilaterally bargains with an applicant or a
nonunit employee for employment within the unit on
a basis forbidden by his contract with the Union a
violation of Section 8(a)(5) has been established, as
found by the Administrative Law Judge and majority
in this case . A petition for unit clarification would not
in these circumstances save the Respondent from a
judgment that it had thereby violated this section of
the Act.