Mid-American Milling Co.

National Labor Relations Board - Board Decisions

Feb 3, 1987

282 N.L.R.B. 926 (N.L.R.B. 1987)

926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mid-American Milling Company of Omaha, Nebras-
ka and American Federation of Grain Millers,
Local Union No. 50 . Case 17-CA-11361
3 February 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
Upon a charge filed by the Union 13 December
1982, the General Counsel of the National Labor
Relations Board issued a complaint 27 January
1983 against the Respondent alleging that it has
violated Section 8(a)(5) and (1) of the National
Labor Relations Act.
On 8 June 1983 the parties jointly moved the
Board to transfer the proceeding to the Board,
without benefit of a hearing before an administra-
tive law judge, and submitted a proposed record
consisting of the formal papers and the parties' stip-
ulation of facts with attached exhibits. On 3 No-
vember 1983 the Associate Executive Secretary, by
direction of the Board, issued an order granting the
motion, approving the stipulation, and transferring
the proceeding to the Board. Thereafter, the Gen-
eral Counsel and the Respondent filed briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record in this case, the Board
makes the following
FINDINGS OF FACT
A. Facts
The Respondent and the Union were parties to a
contract that expired 8 March 1981. The contract
contained a grievance and arbitration procedure.
The Respondent continued to abide by the wage,
fringe benefit, and other provisions of the expired
contract. Although by 20 July 1982 the parties had
agreed to numerous provisions (including a griev-
ance and arbitration procedure), they had not
agreed to a new contract because they had been
unable to reach mutually acceptable terms for
wages and economic benefits.
On 21 October 1982 an employee filed a griev-
ance concerning his transfer from the day shift to
the night shift. In November 1982 the Respondent
and the Union met to discuss the grievance. On 17
November 1982 the Respondent denied the griev-
ance. On 29 November 1982 the Union requested
arbitration under the terms of the expired collec-
tive-bargaining agreement. The Respondent refused
to submit the grievance to arbitration.
B. Contentions of the Parties
The General Counsel urges that the expired con-
tract's grievance and arbitration procedure sur-
vived as terms and conditions of employment after
the contract expired and, therefore, the Respondent
must honor the arbitration provision . The Respond-
ent urges the Board to decline to follow the prece-
dent the General Counsel cites or, alternatively, to
fmd the grievance does not involve an obligation
arising under the expired contract.
1. JURISDICTION
The Respondent, a corporation, is engaged in
processing grain and soybeans at its Omaha, Ne-
braska facility, where it annually sells goods and
services valued in excess of $50,000 directly to cus-
tomers located outside the State of Nebraska and
annually sells goods and services valued in excess
of $50,000 to customers located within the State of
Nebraska who, in turn, satisfy the Board's direct
jurisdictional standards. We fmd that the Respond-
ent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICE
The issue presented is whether the Respondent
violated Section 8(a)(5) by refusing in December
1982 to arbitrate a grievance pursuant to an arbitra-
tion provision contained in a collective-bargaining
agreement that expired 8 March 1981.
C. Discussion
Even assuming that the arbitration provision sur-
vived the expiration of the parties' contract, it is
well established that the refusal to arbitrate a single
grievance, even if the refusal is a contract breach,
is not in itself an unfair labor practice. See GAF
Corp., 265 NLRB 1361, 1364-1365 (1982), and
cases cited therein. The stipulation of facts estab-
lishes nothing more than a single refusal to arbi-
trate a particular grievance. There is no evidence
that the Respondent sought to repudiate its bar-
gaining obligation ; on the contrary, the Respondent
continued to apply wage, fringe benefit, and other
provisions of the expired contract.
In sum , we conclude that, at most, the record
shows that the Respondent' s single refusal to arbi-
trate a particular grievance may constitute a con-
tract breach. The General Counsel failed to present
a prima facie case that an unfair labor practice has
282 NLRB No. 135
MID-AMERICAN MILLING CO. 927
occurred . Thus, we shall order the complaint dis- ORDER
missed.' The complaint is dismissed.
Given our disposition of this case , we find it unnecessary to decide
whether the grievance concerned an obligation arguably created by the provision survived the contract 's expiration under Nolde Bros v Bakery
expired contract or whether the parties ' obligations under the arbitration Workers Local 358, 430 U S 243 (1977)