Paramount Potato Chip Co., Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 794 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paramount Potato Chip Company, Inc. and General
Drivers Union, Local 332, International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America. Case 7-CA-
16395
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 18, 1980, Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Paramount
Potato Chip Company, Inc., Flint, Michigan, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
HuFrroN S. BRANDON, Administrative Law Judge:
This case was heard in Burton, Michigan, on March 6,
1980. The charge was filed by General Drivers Union,
Local 332, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union or the Charging Party, on May
21, 1979.' The complaint was issued on October 1, and
alleged violations of Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act, herein called the Act, by
Paramount Potato Chip Company, Inc., herein called the
Respondent or the Company. The issue presented by the
case is whether the Respondent violated Section 8(a)(5)
and (I) of the Act by unilaterally modifying the terms of
the parties' collective bargaining agreement through its
refusal to comply with those provisions of the agreement
relative to the arbitration of unresolved grievances and
the in-plant posting of a unit employee seniority list.
Upon the entire record including my observation of
the demeanor of the witnesses, and after due considera-
All dates are in 1979 unless otherwise stated
tion of the brief filed by the General Counsel, I make the
following:
FINDINGS OF FACT
1. JURISI)ICTION
The Respondent is a Michigan corporation with its
principal office and place of business located in Flint,
Michigan, where it is engaged in the preparation, sale,
and distribution of potato chips, popcorn, and related
products. During the fiscal year ending September 30,
1978, the Respondent purchased raw materials valued in
excess of $50,000 directly from suppliers located outside
the State of Michigan and during the same period of
time sold and distributed its finished products valued in
excess of $50,000 directly to points located outside the
State. The complaint alleges, the Respondent admits, and
I find, that the Respondent is an employer engaged in
commerce within the meaning of Sections 2(2), (6), and
(7) of the Act.
II. IHE ABOR ORGANIZATION INVOLVEI)
The complaint alleges, the Respondent admits, and I
find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
Ilt. ITHE ALLEGED UNFAIR I.ABOR PRACTICES
A. Material Facts
Allegations of the complaint admitted by the Respcnd-
ent establish that in or about 1961 the Union was certi-
fied as the exclusive collective-bargaining representative
of the employees of the Respondent in the following
unit, which is admitted by the Respondent to be appro-
priate:
All maintenance employees, fryer B employees,
fryer A employees, machine technicians, vendor
drivers and warehousemen, production employees,
material handlers and maintenance helpers, fryer
helpers and relief men employed by Respondent at
its Flint, Michigan plant.
Subsequent to 1961 the Respondent and the Union
were parties to a continuous series of collective bargain-
ing agreements with the latest such agreement being ef-
fective from May 22, 1977, to May 22, 1981. Pertinent
provisions of that agreement include article VI, section
2, involving the posting of an employee seniority list and
article VII relating to the grievance procedure and arbi-
tration. More specifically, article VI, section 2, reads as
follows:
The Employer shall post a list of the employees ar-
ranged in order of their seniority in each classifica-
tion. This list shall be posted in a conspicuous place
at the place of employment.
With respect to grievances and arbitration the agree-
ment provides for a four-step grievance process includ-
ing the last step, submission to arbitration. Specifically,
under section 3(A) of article VII, step 4 provides:
252 NLRB No. 117
794
PARAMOUNT POTATO CHIP COMPANY. INC.
In the event the last step fails to settle the com-
plaint, it shall be referred to the Board of Arbitra-
tion upon the request of either party. The President
and/or Executive Board of the Local Union shall
have the right to determine whether or not a griev-
ance filed by a member of the Union is qualified to
be submitted to arbitration.
Subparagraph B of the same section sets out the proce-
dure for the selection of the three member "Board of Ar-
bitration" and provides that "a majority decision of the
Board of Arbitration shall be rendered without undue
delay and shall be final and binding upon both parties."
Cost of any arbitration was to be borne equally by the
Respondent and the Union.
Robert Johnson, the Respondent's president, testified
that the last time the parties had gone to arbitration on
an issue was in 1977 or 1978 but there had been several
arbitrations prior to that. No documentary evidence was
submitted to substantiate Johnson's claim in this regard.
While Johnson's testimony as to prior arbitrations was
not directly contradicted, Tommy Dan Ruff, who
became a business agent for the Union about December
1978, testified that union records reflected only one prior
written request to the Respondent for arbitration and
that was in 1975. Ultimate disposition of that request was
not shown. There is little else in the record to indicate
whether the relationship between the Respondent and
the Union prior to 1979 had been an amicable one. Un-
denied remarks attributed to Johnson by General Coun-
sel witnesses, infra, suggest it was not. It is clear, howev-
er, at least from Johnson's testimony, that beginning in
early 1979 and following a change in union officers and
business agents the relationship between the Respondent
and the Union deteriorated. As Johnson put it, the Re-
spondent's plant became "a real grievance factory." It
was the filing of these grievances and, more particularly,
Johnson's response to them that provides the basis for
the General Counsel's allegations herein.
The General Counsel submitted into evidence 22
grievances filed by employees from January 24 through
May 17. These grievances were taken up at various times
with Johnson at the last step prior to arbitration by the
Union representatives and stewards. On at least 20 of the
22 grievances arbitration was requested by the Union ac-
cording to uncontradicted testimony of General Counsel
witnesses. Invariably, according to the General Counsel's
witnesses, Johnson, beginning in January, refused to
honor his contractual commitment to submit disputes to
arbitration.
In regard to such refusals, Imogene Arthur, a union
steward, testified that in a mid-February grievance meet-
ing that she attended between Johnson, his wife Martha,
the secretary-treasurer of the Respondent, and Frank Pi-
linyi, president of the Union, Johnson denied a grievance
filed by employee Michael Kleckler. When, according to
Arthur, Pilinyi said the Union would take the matter to
arbitration, Johnson responded that he did not care
where Pilinyi took it, but there was no way he was
going to arbitration. While Pilinyi testified for the Gen-
eral Counsel, he did not testify regarding this particular
meeting.
Arthur also testified about a meeting with Johnson re-
garding a grievance of employee Glenn Yarborough
sometime within a week or two after the grievance was
filed on February 19. That meeting was attended by
Union Business Agent Ruff, Helen Whiteman, another
union steward, and by Mrs. Johnson. Johnson denied the
grievance and Ruff asked for arbitration. Johnson replied
there was "no way" he was going to arbitrate the matter.
Similarly, still according to Arthur. at around the same
time, Johnson rejected at the last level prior to arbitra-
tion a grievance filed by employee Jeff Reider. When
Ruff said the Union would take the matter to arbitration
Johnson replied, "I don't care where you take it. There
is no damn way of going to arbitration."
On another occasion around the same period of time,
late February to mid-March, Arthur and Ruff met with
Mr. and Mrs. Johnson regarding a grievance of employ-
ee James Harrington. Johnson refused to resolve the
grievance and Ruff requested arbitration. Johnson re-
sponded that there was "no damn way" he would take it
to arbitration.
Ruffs testimony generally corroborated Arthur's with
respect to the grievance sessions with Johnson, although
there was some confusion between Ruff and Arthur as to
the dates of the sessions. Ruff testified that when he
asked for arbitration Johnson would become irate and
complain about the trouble the Union caused him and
state that he would not go to arbitration. Specifically,
with respect to the Harrington grievance, when Ruff
asked for arbitration Johnson stated: "Hell, no. I am not
going to arbitration. You can ask until you are blue in
the face. You will never get me to go to an arbitrator.
And I will never pay one."
Subsequently, by memo dated March 14 Ruff submit-
ted in writing the names of five arbitrators to Johnson
for the selection of one to arbitrate the Harrington,
Reider, and Yarborough grievances. It is undisputed that
Johnson never responded to the memo. Johnson claimed
in his testimony that he referred the memo to his attor-
ney for reply, but the record shows no response by the
attorney. Ruff testified that about a week after the
March 14 memo Johnson told him in reference to the
memo that he could send him letters all day long but
that he would still "refuse to go to arbitration." None-
theless, Ruff submitted another written request for arbi-
tration on all outstanding grievances toward the last of
March, but again received no response.2
Ruff also testified about an even earlier grievance ses-
sion with Johnson the last week of January concerning
the grievance of Ernestine LeFlore. Johnson stated it
would be over his dead body that LeFlore would get the
position sought by her in the grievance. Ruff asked John-
son to go to arbitration on the matter but Johnson
slammed his hand on the desk and stated he would not
go to arbitration, had never gone to arbitration, and
would not pay to go to arbitration. Johnson said Ruff
2 Ruff retained no copy of this request and Johnson, after first equivo-
cating. denied having received it. Because Ruff impressed me as a credi-
ble Aitness. and since Johnson had already shown his disinclination to re-
spond to written requests for selection of arbitrators. I credit Ruffs testi-
mony that the second written request was in fact sent to Johnson.
795
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could pick arbitrators all day, but Johnson would not go
to arbitration.'
In another meeting with Johnson the first week of
February, on LeFlore's grievance, with Arthur present
Johnson continued his opposition to the grievance and
began to complain about LeFlore, Arthur, and the
Union. Johnson, Ruff testified, said LeFlore and Arthur
were troublemakers and if he got rid of them he would
have no problems there. He also stated, however, that
the Union was the root of all his problems, both busin-
esswise and domestic. The meeting ended with Johnson
asking for more time to think about LeFlores' grievance
but, shortly thereafter, he abolished the basis of Le-
Flore's grievance by abolishing the position sought by
her.
There were additional grievances filed in late March,
April, and May and Johnson consistently refused, ac-
cording to General Counsel witnesses Arthur, Pilinyi,
and Union Business Representative Daniel Hawk to take
any of these grievances to arbitration. It is unnecessary
to detail these grievances. The Respondent did not
defend this case on any contention that the grievances
were not arbitrable. These three witnesses unanimously
described Johnson as repeatedly and steadfastly stating at
the grievance sessions through May that he would not
arbitrate the grievances, that he had never paid for arbi-
tration, and that he intended never to go to arbitration.
Moreover, Arthur, Ruff, and Hawk testified that at some
of the grievance meetings Johnson engaged in discourte-
ous if not contemptuous conduct by "making faces,"
humming to himself, or turning his back on them. Finally
at the last meeting between Johnson and the union repre-
sentatives and stewards in mid-May Johnson stated he
was going to hire legal counsel and would not even talk
to the union representatives anymore. Subsequent to that
time Johnson did employ an attorney and the Union's
contacts thereafter on grievances were with the Re-
spondent's attorney. The record does not establish that
the 20 grievances on which the Union sought arbitration
were ultimately resolved or arbitrated.
There was considerable confusion among the General
Counsel's witnesses, Arthur, Ruff, Pilinyi, and Hawk, re-
garding the dates of their respective sessions with Mr.
and Mrs. Johnson. Their respective recollections as to
dates, sequences of events, and the parties present at the
grievance sessions were not impressive. They were new
to their respective positions and apparently due to inex-
perience took no notes of the grievance sessions. Never-
theless, their testimony was for the most part mutually
corroborative and I am convinced as to the general accu-
racy, reliability, and credibility of such testimony regard-
ing statements they attributed to Johnson. Moreover,
Johnson did not specifically contradict the specific re-
marks or conduct attributed to him. Additionally, I
found Johnson to be evasive and, at times, argumentative
3 Arthur attended a meeting with Johnson on the LeFlore grievance
and reported similar comments by Johnson about not arbitating LeFlore's
grievance However, she identified Dan Hawk as the union representa-
tive present rather than Ruff. I conclude she was ill error for Hawk did
not begin fully servicing the contract until mid-April when Ruff left to
attend a school for business agents, Moreover, Hawk in his testimony did
not testify about attending the session on LeFlore's grievance.
in his testimony and generally unconvincing. According-
ly, I do not credit his testimony whenever it is specifical-
ly contradicted by Arthur, Ruff, Pilinyi, or Hawk.
There is little dispute concerning the facts relating to
the Respondent's failure to post the employee seniority
list. The Respondent's answer admits that as of the date
the charge herein was filed no seniority list was posted
as required by the contract. From the evidence it ap-
pears that such failure to post had persisted in spite of
repeated requests by the Union for such postings. Thus,
Arthur testified she had heard several requests by the
business agents for a posting of the seniority list but
Johnson on one occasion said "we can't be sitting down
all the time making out seniority lists. We have more im-
portant things to do." Arthur's testimony in this regard
was supported by that of Ruff.
The Union's request for the posting of the seniority list
was conceded by Johnson who related that seniority lists
in earlier years had been posted. Mrs. Johnson testified
she was responsible for posting of the seniority list and
admitted having een requested to post the list. Howev-
er, she admitted it was not posted "because of my own
inability to get everything done." She added, "I did not
consider it a high priority item and I operate on priority
items on that basis." She explained that she felt that the
list was not a high priority matter because it was such a
small group of people (about 30 employees in the unit)
who knew what their seniority positions were.
B. Discussion and Conclusion
From the credited testimony of the General Counsel's
witnesses it is clear that the Respondent refused to arbi-
trate a number of grievances over a period of several
months and, through Johnson, adamantly insisted it
would not arbitrate any grievances at all. It is equally
clear that the Respondent for several months, and despite
repeated requests by the Union, failed and refused to
post at its facility an employee seniority list. In these ac-
tions the Respondent unquestionably breached its con-
tractual obligations with the Union.
Ordinarily, a breach of a collective-bargaining agree-
ment, including a refusal to arbitrate, does not constitute
a per se violation of Section 8(a)(5) of the Act. See Taft
Broadcasting Company, WDAF AM-FM-TV, 185
NLRB 202 (1970). The Board in such cases leaves the
parties to enforce their contractual rights through civil
litigation under Section 301 of the Act or perhaps
through other means provided under the collective-bar-
gaining agreement itself. However, as the Administrative
Law Judge stated with Board approval in Garland Dis-
tributing Company, 234 NLRB 1275, 1280-81 (1978);
The fact that Respondent's conduct also consti-
tutes a breach of contract does not, of course, oust
the Board from jurisdiction over the subject matter
of this proceeding. The law is well settled that
where conduct is of a kind condemned by the Act,
it is not ruled out as an unfair labor practice be-
cause it happens also to be a breach of contract.
. . .The Supreme Court has made it clear that the
availability of a contract remedy does not divest the
796
PARAMOUNT POTATO CHIP COMPANY, INC.
Board of its jurisdiction to remedy unfair labor
practices. N.L.R.B. v. Strong d/b/a Roofing & Insu-
lating Co., 393 U.S. 357 (1969).
And where an employer's breach of contract is so
clear and flagrant as to amount to either a repudiation of
the contract or a unilateral modification of it, the Board
will find a violation of Section 8(a)(5). See Independent
Stave Company, Diversified Industries Division, 233 NLRB
1202 (1977), enfd. as modified 591 F.2d 443 (8th Cir.
1979); Pacific Grinding Wheel Co., Inc., 220 NLRB 1389
(1975), Papercraft Corporation, 212 NLRB 240 (1974);
Nedco Construction Corp., 206 NLRB 150 (1973).
Viewing the instant case in the light of the foregoing
principles, I am convinced that the General Counsel has
established the violations alleged. The Respondent's ac-
tions here constituted more than a simple breach of con-
tract. Johnson made it abundantly clear through his
statements to Union representatives that he was not
going to arbitrate any grievance. Thus, his actions and
statements may not be regarded as merely posturing, nor
can they be viewed as a tactical maneuver with respect
to a particular grievance. The Respondent's refusal to ar-
bitrate were not limited to one grievance or even a class
of grievances. Under these circumstances, the Respond-
ent's actions can only be regarded, and I so regard them,
as an outright repudiation of that provision of the con-
tract requiring the submission of unresolved disputes to
arbitration at the request of one or the other parties to
the agreement. 4 By its action the Respondent unilaterally
changed and modified the collective- bargaining agree-
ment by, in effect, eliminating the arbitration provision.
Accordingly, I find and conclude that the Respondent's
actions in this regard constituted a violation of Section
8(a)(5) and (1) of the Act. See Independent Stave Compa-
ny, supra; The Bell Company, 225 NLRB 474 (1976);
Curtis Manufacturing Co., Inc., 189 NLRB 192 (1971).
The Respondent's failure and refusal to post the se-
niority list stands on a similar footing and is further re-
vealing as to its approach to its collective- bargaining
commitments. Here again the contractual requirement for
the posting of such a notice was clear and unambiguous.
Yet no such list was posted during the relevant times
herein despite the Union's request for the posting. The
failure to post or to otherwise supply the Union with the
seniority information undoubtedly made it more difficult
to administer the contract and to consider the merit of
grievances relating to seniority. In view of the Union's
requests for posting the failure to post the list cannot be
excused as simple oversight. Indeed, the explanation
given for the failure to post was the low "priority" ac-
corded it by Mrs. Johnson. In view of the ready avail-
ability of the seniority information to the Respondent
and the relatively small number of employees in the unit,
the priority accorded the posting can only be regarded
as another example of the Respondent's intentional fail-
4 While the Respondent at the hearing through testimony suggested
that the Union never perfected any request for arbitration. the record
does not establish what steps were required either contractually or by
past practice to perfect such a request In any eent, since Johnson made
it clear he would never go to arbitration on any grievance "perfection"
of any request for arbitration ould clearly have been futile
ure to abide by its contractual commitments to the
Union. Accordingly, I conclude that the failure to post
the seniority list, when considered in context with its re-
fusal to arbitrate grievances, was but another instance of
a repudiation of a contractual requirement and, to that
extent, a unilateral modification of the collective- bar-
gaining agreement in violation of Section 8(a)(5) of the
Act.
Considering the Respondent's total conduct in its deal-
ing with the Union and its refusal to arbitrate and to post
the seniority list I am persuaded that the Respondent's
actions went beyond a mere breach of the collective-bar-
gaining agreement and reached that level of conduct
condemned and found unlawful by the Board in Nedco
Construction Corp., supra, at 151, as constituting "a re-
nunciation of the most basic of collective bargaining
principles, the acceptance and implementation of the bar-
gain reached during negotiations." I therefore conclude,
notwithstanding the possible availability of some contrac-
tual remedy before some other forum, that it is appropri-
ate under the circumstances of this case for the Board to
assert its jurisdiction in the matter and issue an order re-
medying the Respondent's unfair labor practice.5
CONCI.USIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act 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, and has been at all materi-
al times herein the exclusive representative of the Re-
spondent's employees in the appropriate unit described
below for the purposes of collective-bargaining within
the meaning of Section 9(a) and (b) of the Act.
3. All maintenance employees, fryer B employees,
fryer A employees, machine technicians, vendor drivers
and warehousemen, production employees, material han-
dlers and maintenance helpers, fryer helpers, and relief
men employed by Respondent at its Flint, Michigan,
plant constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act.
4. By unilaterally repudiating and modifying its collec-
tive-bargaining agreement with the Union by adamantly
refusing to arbitrate grievances and failing and refusing
to post an employee seniority list the Respondent has re-
fused to bargain with the Union and has thereby engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that the
Respondent be ordered to cease and desist therefrom,
s The testimony of Arthur suggests that subsequent to the retention of
Respondent's attorney an employee seniority list sas posted An order
here nevertheless appears appropriate in order to insure that Respondent
in the future accords appropriate "priority" to the posting ofl such lists
797
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that it take appropriate affirmative action set forth in
the recommended Order which I find necessary to effec-
tuate the purposes of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 6
The Respondent, Paramount Potato Chip Company,
Inc., Flint, Michigan, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with General Drivers Union,
Local 332, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the exclusive representative of the employees in the ap-
propriate bargaining unit by unilaterally repudiating and/
or modifying the terms and conditions in the collective-
bargaining agreement with the above named Union with
respect to the arbitration of disputes and the posting of a
seniority list of employees in the appropriate unit cov-
ered by the agreement.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act:
2. Take the following action which is designed to ef-
fectuate the policies of the Act.
(a) Post at its Flint, Michigan, facility copies of the at-
tached notice marked "Appendix." 7 Copies of said
notice, on forms provided by the Regional Director for
6 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 find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
7 In the event that 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 National L.abor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.
Region 7, after being duly signed by the Respondent's
representative shall be posted by it immediately upon re-
ceipt thereof and maintained by it for 60 consecutive
days thereafter, in conspicuous places, where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
NoriCE To EMPLOYEES
PosTED BY ORDER OF TIHE
NATIONAL LABOR REI.ATIONs BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE WILL. NOT refuse to bargain with General
Drivers Union, Local 332, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative
of the employees in the appropriate bargaining unit
by unilaterally repudiating and/or modifying the
terms and conditions of the collective-bagaining
agreement with the Union with respect to the arbi-
tration of disputes and the posting of a seniority list
of employees in the appropriate unit covered by the
agreement.
WEI wl.l. NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
PARAMOUNT POTATO CHIP COMPANY, INC.
798