Northeast Oklahoma City Mfg., Co.

National Labor Relations Board - Board Decisions

Jun 10, 1977

230 N.L.R.B. 135 (N.L.R.B. 1977)

NORTHEAST OKLAHOMA CITY MFG. CO.
Northeast Oklahoma City Manufacturing Company
and International Brotherhood of Electrical Work-
ers, Local 2021, AFL-CIO. Case 16-CA-5929
June 10, 1977
DECISION AND ORDER REMANDING
BY MEMBERS FANNING, PENELLO, AND
MURPHY
On November 28, 1975, Administrative Law Judge
Almira Abbot Stevenson issued the attached Deci-
sion in this case. Thereafter, the General Counsel
filed exceptions and a supporting brief, the Charging
Party filed conceptions, and the Respondent filed a
brief in opposition to the exceptions of the other
parties.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
but only to the extent consistent with the following:
The complaint alleges that the Respondent violated
Section 8(a)(5) and (1) and Section 8(a)3) and (1) of
the Act, respectively, by failing to pay timely
contractually established monthly production bonus-
es1 and by discharging 12 employees who struck
assertedly over the failure of the Respondent to make
such timely payments. The parties' collective-bar-
gaining agreement contains what can be denominat-
ed a typical grievance-arbitration provision and a no-
strike clause. 2 The Administrative Law Judge con-
cluded that the fundamental issue in the case was
whether or not the Respondent's conceded delin-
quencies in paying the monthly bonuses were
material breaches of article XII, section VI, of its
contract with the Union. In her view not only the
8(a)(5) violation turned upon the resolution of that
issue but also the 8(a)(3) violation as well. As she
conceived the situation, the legality of the employees'
strike in the face of the contract's no-strike clause
required a finding that the Respondent's bonus
delinquencies, which, as noted, the strike allegedly
protested, constituted a unilateral change in the
employees' wages and working conditions. There-
fore, she concluded that the whole case turned
ultimately upon an interpretation of the parties'
contract, and thus did not pass on the merits of the
issue, but held, rather, that the case was an
appropriate one for deferral to arbitration.
We disagree with the Administrative Law Judge's
proposed disposition of this case. Whether or not the
230 NLRB No. 26
Respondent's changes in the payment of bonuses
and its conceded delinquencies in such payments
violate Section 8(aX5) is an issue involving not only
the "private" contractual rights of the Respondent
and Union, but also the quite separate rights of
employees to engage in conduct ostensibly coming
within the protection of Section 7 of the Act. In such
circumstances, we perceive no just basis for deferring
this case to arbitration, 3 and, on the contrary, shall
remand it to the Administrative Law Judge for a full
decision on the merits and such recommended Order
as she deems appropriate.
ORDER
It is hereby ordered that this proceeding be, and it
hereby is, remanded to the Administrative Law
Judge for a full decision on the merits of the
allegations of violations of the Act set forth in the
complaint and for such recommended Order as she
finds necessary and proper.
MEMBER PENELLO, dissenting:
I would adopt the Administrative Law Judge's
Decision herein to defer to the parties' grievance and
arbitration procedure for the reasons stated in Roy
Robinson, Inc., d/b/a Roy Robinson Chevrolet, supra,
and Member Walther's and my dissenting opinion in
General American Transportation Corporation, supra.
'Art. Xll, sec. VI.
2 Art. 1, sec. 11 and art. V, respectively.
3 See General American Transportation Corporation, 228 NLRB 808
(1977). Chairman Fanning would not defer the 8(aX5) allegations to
arbitration irrespective of the presence of 8(aX3) and (I) allegations. See his
and Member Jenkins' dissenting opinion in Roy Robinson, Inc., d/b/a Roy
Robinson Chevrolet, 228 NLRB 828 (1977).
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON, Administrative Law Judge:
This case was heard at Oklahoma City, Oklahoma, on
September 16-18, 1975. The original charge and the first
amended charge were filed by the Union and served on the
Respondent February 10 and June 27, 1975, respectively.
The complaint was issued July 2, 1975, and amended at the
hearing.
The issues in this case are whether the Respondent, as
alleged in the complaint and denied in the answer, violated
Section 8(aX5) of the National Labor Relations Act, as
amended, by unilaterally changing wage rates and other
terms and conditions of employment by chronically failing
and refusing to make timely bonus payments required
under its collective-bargaining agreement with the Union,
and violated Section 8(a)(3) of the Act by discharging 12
strikers; and whether these issues should be deferred to
arbitration under the principles adopted in Collyer Insulat-
ed Wire, A Gulf and Western Systems Co., 192 NLRB 837
(1971), as requested by the Respondent and as opposed by
the General Counsel and the Charging Party. For the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasons set forth below, I find, without ruling on the merits,
that the issues should be deferred to arbitration.
Upon the entire record, and after due consideration of
the briefs filed by the General Counsel, the Charging Party,
and the Respondent, I make the following:
FINDINGS OF FACT
AND
CONCLUSIONS OF LAW
1. JURISDICTION
The amended complaint alleges, the answer admits, and
I find that the Respondent is an Oklahoma corporation
engaged in the manufacture of electrical hardware; its
principal office and place of business is located in
Oklahoma City, Oklahoma; during the past calendar year
the Respondent sold and shipped goods and materials
valued in excess of $50,000 to points located outside
Oklahoma. The Respondent concedes, and I conclude, that
it is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The Respondent admits, and I conclude, that the
Charging Party Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
The Respondent and the Union are parties to a
collective-bargaining agreement effective from November
13, 1972, until November 12, 1975. That agreement
contains the following relevant provisions.
Article I, Section II.
The purpose of the Agreement is to provide orderly
collective bargaining arrangements between the Com-
pany and the Union and to secure a prompt and fair
disposition of all disagreements. The Union agrees that
there will be no strikes, slowdowns or walkouts and that
there will be no interruption of work or interference
with the efficient operation of Company business or
instigation of a boycott or lockout on the part of the
Company during the term of this Agreement.
In the event of the violation of this Section, the
Union shall endeavor to obtain the cessation of the
violation. Any employee who violates this paragraph
shall be subject to discharge.
In the event that the Union authorizes a violation of
this Article, the Company has the option of canceling
this agreement at any time thereafter upon written
notice to the Union, such cancellation to become
effective immediately.
Article V contains a three-step "oral or informal"
grievance procedure and provides that:
A grievance which has not been satisfactorily settled
through the foregoing procedure shall, within thirty
(30) days, upon written request from either party, be
submitted to an impartial arbitrator whose decision
shall be final and binding upon both parties and his
fees and/or expenses shall be shared jointly by the
Company and the Union.
Section V of this article states, among other things, that the
arbitrator is not empowered to modify, add to, subtract
from, or otherwise alter the provisions of the agreement,
and "that the authority of the arbitrator shall be limited to
the interpretation and application of the express provisions
of this Agreement."
In article XII, the collective-bargaining agreement
provides for the classification of employees and prescribes
wage rates to be paid. It also contains the following
provision:
Section VI
In addition to the above described wages, the
Company will pay monthly, a bonus to all qualified
employees based upon the following formula: Five per
cent (5%) of production attributable to labor minus the
cost of labor. Labor costs shall include the wages of all
hourly employees in the production unit. Computation
and payment shall be made in accordance with the
following product groups:
I. All Western Electric Products
2. All Honeywell Products
3. Government and IBM Products
In order to qualify an employee must have a minimum
of two (2) months service; must work a minimum of
Eighty Percent (80%) of the hours available for work;
must be present as of the end of the month for which
the bonus is paid; and must meet minimum expected
output and quality requirements set by supervisors. In
addition an employee may be absent for a maximum of
five (5) days without jeopardizing participation in
payment for the month during which the absences
occur. The sixth (6th) day of absence eliminates
employee participation completely.
Production and materials control employees covered
by this agreement shall receive said bonus based upon
the following formula: .35% of total production
attributable to labor minus the total cost of labor.
Article XVII provides for paid sick leave, the number of
days increasing as seniority is acquired.
As indicated above, the complaint alleges and the answer
denies that the Respondent unilaterally changed existing
wages and working conditions in violation of Section
8(a)(5) by chronically failing and refusing to make timely
bonus payments required by article XII, section VI, set
forth above. That provision of the contract represents the
codification, so to speak, of a practice in effect at the plant
prior to the advent of the Union. It is substantially
undisputed that it was company practice to pay the bonus
to employees during the second week of the month
following that in which it was earned. The parties
stipulated that, during a 10-month period, the bonus was
paid on the following dates:
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NORTHEAST OKLAHOMA CITY MFG. CO.
Date Earned Date Paid
May 1974 June 14, 1974
June 1974 July 12, 1974
July 1974 Aug. 23, 1974
Aug. 1974 Oct. 4, 1974
Sept. 1974 Nov. 1, 1974
Oct. 1974 Dec. 13, 1974
Nov. 1974 Dec. 13, 1974
Dec. 1974 Feb. 14, 1975
Jan. 1975 Feb. 28, 1975
Feb. 1975 Mar. 14, 1975
It is thus clear that the employees never failed to receive
a monthly bonus, and that the bonuses for May, June, and
November 1974, were paid before the middle of the
following month. On the other hand, as of February 5,
1975 (when the walkout occurred), the Respondent had
been a week later than mid-month paying the July bonus;
2-1/2 weeks later in paying the August bonus; 2 weeks
later in paying the September bonus; and a month later in
paying the October bonus. Moreover, as of February 5,
1975, almost 3 weeks had passed since the middle of
January and the December bonus had not been paid.
President Dean James testified that it was his responsibil-
ity to determine when bonuses were paid. He testified that
paying bonuses later than the second week of the month
was occasioned by cash flow problems or by Plant
Manager Ralph Stevenson's being late in turning in the list
of employees who were qualified to receive a bonus to the
accountant for computing the amount each was to receive.
The complaint also alleges that 121 of the 18 or 19
employees covered by the contract engaged in an unfair
labor practice strike on February 5, 1975, in protest against
the Respondent's violation of Section 8(aX5) as alleged
above, and that the Respondent discharged them the same
day for striking and thereby violated Section 8(aX3) and (I)
of the Act. The Respondent contends that the strike was a
breach of the no-strike clause and therefore unprotected
and illegal, and that the discharges were permitted by the
contract and were unlawful.
The General Counsel presented testimony, which was
contradicted by the Respondent's witnesses, of efforts
made by the chief steward, shop stewards, and employees
to protest and grieve the Respondent's failures to pay the
bonuses by the middle of the month following the month
they were earned, and of management's brushoffs, cryptic
answers, and unavailability. Chief Steward Hill testified
that he asked Plant Manager Stevenson in January why the
December bonus had not been paid, and Stevenson replied
he "was tired of fooling with it," and Hill should talk to
President James. Hill testified that he then asked James the
same question and that James told him, "they didn't have
'Dollie Gaddis, Wilma Wright, Rita Rich, Velma Wright, Jackie
Shinault, Dorothy Jackson, Wardree Stevenson, Shirley Wilson, Lena
Johnson, Bernice Washington, Billy Lewis, Charles Wyatt.
2 San Juan Lumber Company, 154 NLRB 1153 (1965), enfd. 367 F.2d 297
(C.A. 9, 1966). Cumberland Shoe Corporation, 156 NLRB 1130 (1966), The
Hearst Corporation, News American Divisions 161 NLRB 1405 (1966),
Hoffman Beverage Company, et al., 163 NLRB 981 (1967), and Kellogg
Company, 189 NLRB 948 (1971), cited by the General Counsel and the
Charging Party, were decided before Collyer, and no deferral issue was
raised in Duqal, Lid., 196 NLRB 511 (1972). Cf. Capitol Roof & Supply
Company, Inc., 217 NLRB 1004 (1975), a post-Collyer decision in which the
Board refused to defer to arbitration on the ground that the respondent had
any money," but when Hill asked why they did not have
any money, James replied, "it wasn't any of my business."
This testimony was also denied.
The General Counsel's witnesses testified that the
Wednesday, February 5, walkout was triggered by infor-
mation received by employees that morning indicating that
the December bonuses would not be paid the coming
Friday as Plant Manager Stevenson had promised. The
Respondent presented testimony indicating that the strike
was triggered partly or entirely by employee complaints
regarding sick leave.
The parties stipulated that the Respondent discharged all
the strikers the day they walked out, February 5, by letters
addressed to them by President James which were identical
in the following respect.
You are advised that effective February 5, 1975, your
employment with NEOC Manufacturing Company,
Inc. was terminated. NEOC discharged you from its
employ because of your participation in the walkout
and strike on February 5, 1975. This walkout and strike
was in violation of Section II, General Agreement by
and between NEOC Manufacturing Company, Inc.
and Local 2021, International Brotherhood of Electri-
cal Workers, AFL-CIO.
That section provides that any employee violating the,
"No Strike," provisions of the General Agreement is
subject to discharge ...
In my opinion, there is no merit in the General Counsel's
and the Charging Party's contention that the issues in this
case should not be deferred to arbitration because the
Respondent's conduct constituted such a material breach
by its late bonus payments and by President James' and
Plant Manager Stevenson's alleged statements quoted
above as to amount to a repudiation of the collective-
bargaining agreement. Indeed, the Respondent does not
deny its contractual obligation to pay the bonuses involved
herein; it contends only that it did not materially breach
that obligation.2
Contrary to the General Counsel, I see this case as
suitable for the application of Collyer. The threshold issue
is whether the Respondent unilaterally changed its employ-
ees' wages and working conditions on those occasions
when it paid out bonuses on dates later than the middle of
the month. This depends on the meaning of article Xll,
section VI, which ambiguously requires that a bonus be
paid "monthly" under the described conditions, in light of
the intent or practice of the parties.3 Moreover, whether the
discharge of the strikers was a violation of Section 8(aX3)
of the Act turns on the reason or reasons for the strike and
repudiated its collective-bargaining agreement by notifying the union that
the agreement was "cancelled and rescinded."
3 Cases in which the Board has deferred to arbitration issues involving
comparable alleged unilateral changes in wages and working conditions
include Collyer, supra, J. Weingarten, Inc., 202 NLRB 446 (1973): Western
Electric, Inc., 199 NLRB 344 (1972), enfd. sub nom Local Union No. 2188,
International Brotherhood of Electrical Workers, AFL-CIO 494 F.2d 1087
(C.A.D.C., 1974); Urban N. Patman, Inc., 197 NLRB 1222 (1972), enfd. sub
noma Provision House Workers Union Local 274, AFL-CIO 493 F.2d 1249
(C.A. 9); Great Coastal Express, Inc., 196 NLRB 871 (1972): Coppus
Engineering Corporation, 195 NLRB 595 (1972). The absence of language in
the agreement involved in this case specifying the time, method, and manner
(Continued)
137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees' obligations and the Respondent's privileges
under article I, section II, of the collective-bargaining
agreement. 4
The following statement of the Board, in Gary-Hobart
Water Corporation, 200 NLRB 647, 648, is applicable:
It is our judgment that when, as here, the alleged unfair
labor practices are so intimately intertwined with the
interpretation of the parties' contract, it would best
effectuate the policies of the Act to remit the parties to
the procedures they have devised for determining the
meaning of their agreement.
In the above circumstances, and in view of the contract
provisions for the filing and processing of grievances
culminating in final and binding arbitration, and in view of
the Respondent's willingness expressed at the opening of
the hearing and reasserted in its brief that these issues be
resolved by those procedures, 5 I conclude that this is an
appropriate case for deferral to the machinery agreed upon
by the parties for resolution of disputes arising under their
contract. If those procedures fail to resolve the issues, my
recommended Order permits any party to move for further
consideration. Accordingly, I shall recommend that the
complaint be dismissed, but that jurisdiction be retained in
this proceeding for purposes of entertaining an appropriate
postdecree motion.
of payment of the bonuses contribute to the ambiguity of the bonus
provision. The Charging Party's contention that the absence of such
language removes this entire dispute from the cognizance of an arbitrator
raises an issue which in the circumstances of this case is properly
determinable by the arbitrator. Urban N. Patman, supra, Collyer Insulated
Wire, supra.
4 Jemco, Inc., 203 NLRB 305 (1973); Gary-Hobart Water Corporation,
200 NLRB 647 (1972); Wrought Washer Manufacturing Co.. 197 NLRB 75
(1972).
5 Although the record contains no information on the subject other than
IV. REMEDY
Without prejudice to any party and without resolving
credibility issues or deciding the merits of the controversy,
I shall recommend that the complaint herein be dismissed,
but that jurisdiction be retained for the following limited
purpose to eliminate the risk of prejudice to any party.
Specifically, jurisdiction of this proceeding will be retained
for entertaining an appropriate and timely motion for
further consideration upon a proper showing that (a) the
dispute has not, with reasonable promptness after the
issuance of this Decision, either been resolved by amicable
settlement in the grievance procedure or submitted to
arbitration, or (b) the grievance or arbitration procedures
have reached a result which is repugnant to the Act.
Upon the entire record in this proceeding, and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended: 6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the complaint herein is
dismissed provided, however, that:
Jurisdiction of this proceeding is retained for the limited
purpose indicated in that portion of my Decision herein
entitled "Remedy."
an assertion by counsel to the Charging Party, it would not be determinative
if the Respondent had not proposed, or had resisted, arbitration before the
opening of the hearing herein. Western Electric, supra, Great Coastal
Express, supra.
8 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the
recommended Order herein shall, as provided by in Sec. 102.48 of the Rules
and Regulations, be adopted by the Board and become its Order, and all
objections thereto shall be deemed waived for all purposes.
138