National Radio Co., Inc.

National Labor Relations Board - Board Decisions

Sep 11, 1973

205 N.L.R.B. 1179 (N.L.R.B. 1973)

AMERICAN FEDERATION OF UNIONS LOCAL 102 1179
National Radio Company, Inc. and Local No. 231, In-
ternational Union of Electrical, Radio & Machine
Workers, AFL-CIO. Case 1-CA-6991
September 11, 1973
ORDER DENYING MOTION FOR FURTHER
CONSIDERATION
On July 31, 1972, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding,' finding that the issues raised by
the complaint were resolvable under the dispute set-
tlement procedures agreed upon by the parties in their
collective-bargaining contract. The Board thus de-
clined to render any decision upon the merits at that
time and it ordered that the complaint be dismissed.
However, the Board retained jurisdiction for the pur-
pose, inter alia, of entertaining an appropriate and
timely motion for further consideration upon a proper
showing that the grievance or arbitration procedures
had not been fair and regular or had reached a result
which is repugnant to the Act.'
On February 15, 1973, the Charging Party filed a
motion for further consideration contending that the
award of Arbitrator Archibald Cox which issued on
January 15, 1973, failed to dispose of all the statutory
issues raised by the complaint and reached a result
repugnant to the Act. Thereafter, the Charging Party
filed a brief in support of its motion. The Respondent
then filed an answering brief asserting that the Board
should deny the motion because the award meets all
the standards of Spielberg Manufacturing Co., 112
NLRB 1080.
In relevant part the complaint alleged that Respon-
dent violated Section 8(a)(5) of the Act by unilaterally
imposing a condition that union representatives re-
cord and report their movements in the plant while
processing grievances on compensated time. The
complaint further alleged that Respondent violated
Section 8(a)(3) of the Act by its disciplinary suspen-
sion, and then discharge, of Union Representative
O'Connell for refusing to obey the reporting proce-
dure, and by its suspension of him for 3 days because
he destroyed information assertedly required by Re-
spondent in the course of its business. The Charging
Party submitted to arbitration the issues whether Re-
1 198 NLRB No I
2 Similarly, the Board retained jurisdiction pending a proper showing that
the dispute had not, with reasonable promptness after the issuance of its
decision, either been resolved by amicable settlement in the grievance proce-
dure or submitted to arbitration With the exception of the Charging Party's
contention that the arbitration did not resolve one of the 8 (a)(5) issues raised
by the complaint , neither party argues that any issues herein have not been
resolved by amicable settlement in the grievance procedure or submitted to
arbitration
spondent violated the "just cause" clause of the col-
lective-bargaining agreement by so disciplining and
discharging O'Connell.
In his opinion and award, the arbitrator found
there was no just cause for O'Connell's 3-day suspen-
sion and he ordered that Respondent reimburse the
grievant at his normal rate of pay. However, the arbi-
trator found just cause for the suspension and subse-
quent discharge of O'Connell in March 1970 and he
ordered dismissed the grievances complaining of the
suspension and discharge.
In his opinion, Arbitrator Cox at the outset noted
that the Charging Party "did not pose an independent
question concerning the reporting requirement" and
that "the present award should deal with the discipli-
nary matters and with the reporting requirement only
so far as necessary to deal with them fairly." After
considering essentially the same facts as presented to
the Board in the unfair labor practice proceeding, the
arbitrator concluded that "O'Connell deliberately
and repeatedly refused to comply with the directions
of his supervisors" instead of utilizing his "plain and
adequate remedy under the grievance procedure for
questioning the validity of the reporting require-
ment." The arbitrator thus found just cause for
O'Connell's suspension and further found that the
discharge was not so heavy a penalty inasmuch as
Respondent's action in promulgating the reporting
requirement was not "so wrong as to temper
O'Connell's infraction." The arbitrator found that
Respondent's actions were not motivated by union
animus.
With respect to the 3-day suspension for destroying
certain business records, the arbitrator sustained the
grievance because the evidence left "too many loose
ends and fuzzy edges to support a suspension result-
ing in loss of pay." There was no finding that Respon-
dent was unlawfully motivated in suspending
O'Connell.
In its brief the Charging Party, while taking no
exception to the arbitrator's finding that none of
Respondent's actions was motivated by antiunion
considerations, contends that the Board should not
defer to the award under Spielberg because the arbi-
trator did not pass on the contract issue raised by the
8(a)(5) allegation of the complaint relating to the pro-
priety of the initial promulgation of the reporting rule,
and thus the award is repugnant to the policies and
purposes of the Act.
The Board having duly considered the matter finds
no merit in the Charging Party's motion for further
consideration. The sole Spielberg issue before the
Board is whether the arbitration award has reached a
result repugnant to the policies and purposes of the
Act. It is clear, and the Charging Party does not con-
205 NLRB No. 112
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tend otherwise, that the arbitration procedure encom-
passed and resolved the basic underlying issue pre-
sented in the unfair labor practice proceeding.
Moreover, as the arbitrator noted, the Charging Party
initially did not ask him to resolve the issue of the
propriety of the manner in which the rule had been
promulgated in the arbitration and subsequently did
not avail itself of the unopposed opportunity to ex-
pand the scope of the arbitration procedure to include
that issue. Finally, at no time prior to the issuance of
the award did the Board receive a timely motion from
the Charging Party that any issue as to the propriety
of the rule or the nature of its promulgation had not
been resolved by amicable settlement in the grievance
procedure or had not been submitted to arbitration.'
For the above reasons, it is hereby ordered that the
Charging Party's motion for further consideration be,
and it hereby is, denied.
MEMBER FANNING , dissenting:
At the outset, I should like to make it clear that for
purpose of considering the Charging Party's motion
for further consideration I accept my colleagues' ini-
tial decision to defer the issues involved 4 to arbitra-
tion as controlling. I believe, however, that proper
application of the deferral policy as spelled out in
Collyer Insulated Wire, 192 NLRB 837, and the origi-
nal decision herein requires the Board to "pull" the
so-called jurisdictional string attached to that deci-
sion and to now decide those issues which, though
properly before Arbitrator Cox, were not resolved by
him.
3 In our opinion , the arbitration award should heal whatever festering sores
our dissenting colleagues perceive to have been infecting the parties' labor
relations since this dispute arose nearly 4 years ago We have given the
grievance arbitration procedure a chance to work and, in our opinion, it has
fully resolved the central issues of this case in a manner not repugnant to the
pohcies and purposes of the Act It would not further the Federal policy of
"encouraging practices fundamental to the friendly adjustment of industrial
disputes" to step in and reassert jurisdiction at this late date because the
Charging Party failed to have the arbitrator resolve an issue which it now
claims is determinative Nabisco, Inc v N L R B , 479 F.2d 770 (C A 2,
1973)
4 "In this case , as in Collyer, the controversy is, at bottom , a substantial
dispute over the meaning of contract provisions . In this respect I disagree
with the Trial Examiner 's conclusion that `the relevant contract terms here
are not in dispute' and his consequent assumption that Respondent 's adop-
tion of the reporting requirement was unilateral action In my view the
contract provisions and the parties dealings under the contract raise these
substantial issues, among others: (1) whether Respondent's actions fell within
its contractually secured 'right to establish rules pertaining to the operation
of the plant ' (art V, sec. 2); (2) whether the application of such a rule to
O'Connell infringed the contractual guarantee to the Union that its agents
would be 'permitted free movement within the plant area for which they are
responsible ' (art XIV, sec 3), (3) whether Respondent 's decision to disci-
pline and discharge O'Connell for refusing to follow the reporting procedure
pending disposition of his grievance was for just cause within the meaning
of article XIII; and (4) the extent , if any, to which these contractual provi-
sions might have been affected by the parties' course of dealing under the
contract . Thus the considerations which impelled me to withhold our pro-
cesses in Collyer are likewise operative here." 198 NLRB No I, slip op. pp
10 and 11.
My colleagues deny the Charging Party's motion
because "[i]t is clear, and the Charging Party does not
contend otherwise, that the arbitration procedure en-
compassed and resolved the basic underlying issue
presented in the unfair labor practice proceeding."
This is patently not so. Though the Charging Party
did state that it would not argue that the arbitrator
erred in not finding that Respondent acted as it did
with respect to O'Connell because of union animus, it
specifically contended that:
. . . the determination that the discharge of
O'Connell did not violate the contract thus fails
to dispose of all the issues arising under the Act,
for it failed to resolve the violations of Section
8(a)(5) and 8(a)(3) here involved. The award
therefore fails to afford a legally acceptable sub-
stitute for a decision of the Board.
In this I believe the Charging Party is correct. The
arbitrator found that O'Connell had a duty to obey
the newly promulgated reporting rule, and then grieve
if he or the Union believed the promulgation of the
rule itself, or the substance of the rule, violated a
provision of the contract. He found that O'Connell's
failure to "obey and grieve" constituted "just cause"
within the meaning of art. XIII of the contract unless
the promulgation of the rule was an "obvious viola-
tion" of the contract:
In my opinion, however, the imposition of the
reporting requirement was not an obvious viola-
tion of the contract Rules concerning movement
within a plant would seem to be covered by Arti-
cle V. They are certainly within many common-
ly-accepted notions of the phrases "management
of the plant and the direction of the working
forces" and "rules pertaining to the operation of
the plant." There is no obvious respect in which
the application of the reporting requirement to
the union president is using the power "wrongful-
ly or unjustly." Local 231 replies that the require-
ment violates the contractual guaranty of "free
movement within the plant" (Article XIV, Sec-
tion 3). The force of the claim is not self-evident
I do not say that Local 23 l's arguments
would not carry the day if the correct interpreta-
tion had to be decided, but they do not persuade
me that National's action was so wrong as to
temper O'Connell's infraction. Accordingly, I
find that there was just cause for discharge.
In short, the arbitrator has found that even if Re-
spondent violated the contractual guaranty of "free
movement within the plant" by imposing the report-
ing requirement upon O'Connell, and even though the
NATIONAL RADIO CO. 1181
right to impose such a requirement upon him is not
within the rights reserved to management by article V
(the management rights clause), the enforcement of
that requirement by means of discharge was not
"wrong or unjust" and the discharge was therefore not
prohibited by the contract. This may or may not be
in accord with accepted principles of grievance arbi-
tration. We do not sit in review of such matters; it is
for the courts which may be called upon to review the
arbitrator's award to determine whether "just cause"
existed for O'Connell's discharge even though the re-
porting requirement he ignored was not within powers
reserved to management in the management rights
clause (art. V) and violated the "contractual guaranty
of `free movement within the plant' (Article XIV, Sec-
tion 3)."
Whatever the decision on that issue, the arbitrator's
failure to resolve those contract issues does preclude
the Board from "accepting" it as a resolution of the
unfair labor practice issues raised by the complaint. If
the Charging Party's arguments that the imposition of
the reporting requirement on O'Connell violated the
contractual guaranty of "free movement within the
plant" "carry the day," then quite plainly
Respondent's unilateral promulgation and implemen-
tation of that rule modified the contract and changed
an established working condition, and did so in viola-
tion of its bargaining obligation under Section 8(a)(5)
of the Act.' It is apparent, therefore, that the award
did not resolve the underlying issues in the complaint
case.
My colleagues seek to surmount this objection to
their action by their reference to the fact that the
Charging Party did not seek initially to have the arbi-
5 See Tudee Products, Inc, 176 NLRB 969, 976 The discharge of O'Connell
would, in such circumstances , constitute a derivative violation of Sec 8 (a)(1),
as he was insisting on the application of the contract as agreed to between
the parties , it would also be an independent violation of that section See
Bunney Bros Construction Company , 139 NLRB ' 1516 In these circumstances,
it is immaterial whether O'Connell's discharge also violated Sec 8 (a)(3) of
the Act Moreover , even if the promulgation and implementation of the
reporting rule did not violate the contract , it may nevertheless have modified
an existing condition of employment-a matter only peripherally discussed
by the arbitrator-in violation of Sec 8 (a)(5) and ( 1) of the Act.
trator resolve the issue of the propriety of the manner
in which the rule had been promulgated, and did not
subsequently avail itself of the opportunity to expand
the scope of the arbitration proceeding to have that
issue resolved. Their argument will not wash. The
arbitrator himself noted that the limited nature of the
Charging Party's submission of issues did not pre-
clude him from resolving this very issue. Moreover, he
did address himself to the issue albeit to a limited
extent,6 thereby acknowledging that the issue was be-
fore him. He failed to resolve the issue in the sense
required to dispose of the unfair labor practice issues
(which were not before him) only because of his view
that "just cause" existed for the discharge even though
Respondent's promulgation and implementation of
the rule violated article XIV of the contract. Plainly,
the matter was "encompassed" in the arbitration pro-
ceeding. It was not, however, "resolved." My col-
leagues' refusal to now decide the issues is in violation
of their own "promise" to consider these issues "upon
a proper showing that . . . the dispute has not, with
reasonable promptness after the issuance of this deci-
sion, either been resolved by amicable settlement in
the grievance procedure or submitted promptly to ar-
bitration. . . . "' I dissent from their decision to
leave the festering sore of unresolved allegations of
serious unfair labor practices to infect the parties'
labor relations.
6 His decision not to finally decide the meaning of the management rights
clause and the "right of free movement in the plant" clause was no doubt
influenced by his view that , even if they be construed in favor of the Charging
Party and against Respondent, Respondent 's action in contravention of
those clauses should be considered only a technical violation of the law and
one not important to the basic policy of the Act . In this he seems quite plainly
to be in error . Employers may not act unilaterally on mandatory subjects of
bargaining unless the- employees' collective-bargaining representative has
clearly and unmistakably waived its right to be consulted See N L R B. v
C & C Plywood Corporation, 385 U S 421, N L R B v Katz, 369 U S 736;
N L R B v. Crompton-Highland Mills, Inc, 337 U S 217 1 do not say that
the arbitrator failed to discharge his arbitration functions Those functions
are more limited , however, than those of the Board with respect to unfair
labor practice issues generally and with respect to the issues involved in this
case. The Board cannot properly refuse to apply the law as set forth in the
statute as interpreted in these Supreme Court decisions
7 Contrary to my colleagues' assertion, the only Spielberg issue before us
is that involving the arbitrator 's finding that Respondent did not act with
respect to O'Connell as it did because of union animus . My colleagues do
not "Spielberg " the issues here , they are continuing to defer to arbitration
issues which could have been decided and put to rest more than 2 years ago.