Roy Robinson Chevrolet

National Labor Relations Board - Board Decisions

Mar 16, 1977

228 N.L.R.B. 828 (N.L.R.B. 1977)

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roy Robinson, Inc. d/b/a Roy Robinson Chevrolet
and International Association of Machinists and
Aerospace Workers, Focal Lodge 1224, AFL-CIO.
Case 19-CA-7164
March 16, 1977
DECISION AND ORDER
On June 3, 1975, Administrative Law Judge George
Christensen issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
The National Labor Relations Board has reviewed
the rulings of the Administrative Law Judge made at
the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed.
The Board has considered the Administrative Law
Judge's Decision, the exceptions, the brief, and the
entire record in the case and finds merit in Respon-
dent's exceptions. Accordingly, the Board adopts the
Administrative Law Judge's findings, but not his
conclusions or recommendations.
The complaint alleged that Respondent had violat-
ed Section 8(a)(5) and (1) of the Act by closing its
body shop and discharging certain named employees
without prior notice to and bargaining with Interna-
tional Association of Machinists and Aerospace
Workers, Local Lodge 1224, AFL-CIO, the Union
herein , the collective-bargaining representative of the
unit employees . In defense , Respondent asserted,
inter alia, that the issue in dispute should be referred
to arbitration pursuant to the Board 's decision in
Collyer Insulated Wire, A Gulf and Western Systems
Co., 192 NLRB 837 (1971). The Administrative Law
Judge rejected the request for referral and proceeded
to find that Respondent had violated Section 8(a)(5)
and (1) by its conduct. We find that the Administra-
tive Law Judge erred in refusing to refer the dispute
involved in this case to the grievance-arbitration
provisions of the parties' collective-bargaining agree-
ment . We shall therefore dismiss the complaint.
Respondent is a Chevrolet dealer. In connection
therewith it operated, prior to June 19, 1975, a service
department for mechanical repairs and a body shop.
The Union is the collective-bargaining representative
of the mechanics and body shop men. On June 17,
1975, following a strike, Respondent and the Union
signed a collective-bargaining agreement effective to
April 30, 1977. Article 3 of the agreement provides
that the "Employer shall have the exclusive right to
hire, suspend and discharge his employees." Article
' Norfolk, Portsmouth Wholesale Beer Distributors Association 196 NLRB
1150, 1151 (1972) (Member Fanning dissenting ). See also United Steelwork-
ers of America v . Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583
(1960):
19 is headed "Conflict of Employment-Off Hours
Work-Sub-Contracting." However, the subsection
under this heading professes to deal only with a
situation where an employee works "off hours in his
home or garage or elsewhere." Article 23 contains a
three-step grievance procedure culminating in arbi-
tration. It is applicable to "Any complaint arising
among the employees in the shop over the interpreta-
tion of this Agreement relative to hours, wages,
overtime, working conditions, discrimination, classi-
fications or other terms of this Agreement...."
The Administrative Law Judge refused to refer this
dispute to arbitration on the following grounds: (1)
The time limits prescribed in the contract for the
filing of grievances thereunder has expired; (2) it is
doubtful that the issues in this proceeding are capable
of full resolution under the terms of the agreement;
(3) it is difficult to perceive how the alleged discrimi-
natees could word a grievance for submission to
arbitrators; (4) the arbitration proceeding on the
merits would not encompass the issue present in this
case; and (5) an arbitration proceeding on the merits
of the dispute "might very well result in a dismissal of
the grievance, while a contrary result would result
under the Act."
We find no merit in any of these objections to the
deferral procedure under Collyer. As to (1), Respon-
dent in its briefs to the Administrative Law Judge and
to the Board has stated categorically that it is willing
to waive the time limitations contained in the
contract grievance-arbitration procedures in order to
process the present dispute through that procedure.
As to (2), the issue of arbitrability "should itself be
submitted to the arbitrator, as has become the near
universal practice under collective bargaining."' As
to (3), we fail to see any particular difficulty in
framing the issue to be decided by the arbitrators,
that is, whether under the terms of agreement the
Employer was given the right unilaterally to discon-
tinue its body shop and terminate the employees for
the reasons assigned by the Employer. As to (4), if the
arbitrators should decide that the contract terms did
give the Employer such right, then the Employer's
conduct would also perforce have been lawful under
the Act. If the arbitrators should decide that the
Employer had no such contract right, they will
presumably order the Employer to make the termi-
nated employees whole (the body shop operation has
since been reestablished and terminated body shop
employees reemployed). This remedy would be
substantially identical with that which the Board
An order to arbitrate the particular grievance should not be denied
unless it may be said with positive assurance that the arbitration clause
is not susceptible of an interpretation that covers the asserted dispute.
Doubts should be resolved in favor of coverage.
228 NLRB No. 103
ROY ROBINSON CHEVROLET 829
might order. In any event, the award of the arbitra-
tors would be subject to examination by the Board if
it fails to conform to the Spielberg standard5.2 As to
(5), if the Administrative Law Judge's reasoning were
accepted, deferral to arbitration would be an exercise
in futility.3
Inasmuch as the Chairman and Member Walther
have not previously expressed an opinion as to
Collyer, an examination of the present status of that
decision is in order.
"The validity of the Collyer doctrine is no longer
seriously in doubt." So recently said the U.S. Court of
Appeals for the Second Circuit.4 This is but the latest
court expression of approval of Collyer. 5 Not a single
court of appeals has disapproved that doctrine since
its enunciation in 1971, notwithstanding the repeated
dissents of Members Fanning and Jenkins. The
Supreme Court has also endorsed the doctrine. In
William E. Arnold Co. v. Carpenters District Council of
Jacksonville and Vicinity, 417 U.S. 12 (1974), a state
court had refused to enjoin a strike in violation of a
no-strike clause in a collective-bargaining contract
upon the ground that the union's conduct was also
arguably an unfair labor practice and therefore the
state court had no jurisdiction. The Supreme Court
reversed, relying heavily on the Board's decision in
Collyer. The Court said (417 U.S. at 16,18):
Indeed, Board policy is to refrain from exercis-
ing jurisdiction in respect of disputed conduct
arguably both an unfair labor practice and a
contract violation when, as in this case, the parties
have voluntarily established by contract a binding
settlement procedure. . . . The Board said in
Collyer, "an industrial relations dispute may
involve conduct which, at least arguably, may
contravene both the collective agreement and our
statute . When the parties have contractually
committed themselves as to mutually agreeable
procedures for resolving their disputes during the
period of the contract, we are of the view that
those procedures should be afforded full opportu-
nity to function. . . . We believe it to be consis-
tent with the fundamental objectives of Federal
law to require the parties . . . to honor their
contractual obligations rather than, by casting
[their] dispute in statutory terms, to ignore their
agreed-upon procedures." Id. at 843. The Board's
position harmonizes with Congress' articulated con-
2 Spielberg Manufacturing Company, 112 NLRB 1080 (1955).
3 In Spielberg Manufacturing Company, id at 1082, the Board said that an
arbitration award is not at odds with the statute because the Board would not
necessarily have decided the issue in dispute as did the arbitrators . See also
Howard Electric Co., 166 NLRB 338, 341 (1967); Lodges 700, 743, 1746,
International Association of Machinists and Aerospace Workers, AFL-CIO
[United Aircraft Corporation] v. N.L.R.B., 525 F.2d 237,246(C.A.2,1975).
4 Lodge 700 IAM [United Aircraft Corp.] v. N.L.R B, 525 F.2d at 239.
5 See The Columbus Printing Pressmen & Assistants ' Union No 252,
cern that, "[f]inal adjustment by a method agreed
upon by the parties is ... the desirable method for
settlement of grievance disputes arising over the
application or interpretation of an existing collective-
bargaining agreement.... "
The Board's practice and policy of declining to
exercise its concurrent jurisdiction over arguably
unfair labor practices which also violate provisions of
collective-bargaining agreements for voluntary ad-
justment of disputes, highlight the congressional
purpose that § 301 suits in state and federal courts
should be the primary means for `promoting collec-
tive bargaining that [ends] with agreements not to
strike." [Emphasis supplied.]
In view of the massive judicial approval of Collyer
by the courts, including approval by the highest court
in the land, Collyer must be accepted as law binding
upon the Board under American legal tradition,
notwithstanding the fact that some individual Board
members may not agree with it. Board members may
disagree with its application, but at this point in time
they are not free, we believe, to treat the doctrine as a
nullity.
We note that the complaint does not allege that
Respondent discontinued its body shop operation for
discriminatory reasons . The only issue is as to
whether the discontinuance was violative of Section
8(a)(5) because Respondent failed to bargain with the
Union before closing the body shop and terminating
the employees. Respondent on the other hand con-
tends that the collective-bargaining contract in effect
between the parties justified its unilateral conduct.
There is here, therefore, an issue of contract interpre-
tation as well as violation of Section 8(a)(5) of the
Act. The parties have established a grievance proce-
dure culminating in arbitration for resolution of
issues of contract interpretation. Resolution of that
issue will also resolve the unfair labor practice issue.
We believe that, in accordance with Collyer, the
purposes of the Act will best be discharged by
deferring the issue in dispute to the grievance-arbitra-
tion procedure which the parties themselves have
created.6
The dissent is in large part a rehash of arguments
previously made to prove with respect to Collyer that
white is black or perhaps gray. We have answered
Subordinate to IP & GCU (The B. W. Page Corporation), 219 NLRB 268
(1975), for the list of other court opinions approving Collyer.
6 Bethlehem Steel Corporation (Shipbuilding Department), 197 NLRB 837
(1972) (Member Jenkins dissenting); J. Weingarten, Inc., 202 NLRB 446
(1973) (Members Fanning and Jenkins dissenting ); Columbus and Southern
Ohio Electric Company, 205 NLRB 187 (1973) (Members Fanning and
Jenkins dissenting); United States Postal Service, 207 NLRB 398 (1973)
(Member Jenkins dissenting); Coppus Engineering Corporation, 195 NLRB
595 (1972) (Member Jenkins dissenting).
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
most of those arguments relating to court acceptance
of the Collyer decision in other cases. See The
Columbus Printing Pressmen & Assistants' Union No.
252 (R. W. Page Corporation), 219 NLRB 268 (1975);
Electronic Reproduction Service Corporation , et al., 213
NLRB 758 (1974). However , the dissent contains a
number of other erroneous characterizations of court
and Board decisions which require correction. Thus,
the dissent asserts that in Local Union No. 715,
International Brotherhood of Electrical Workers, AFL-
CIO [Malrite of Wisconsin] v. N. L. R. B., 494 F.2d
1136 (C.A. D.C., 1974), the court did not fully support
the Collyer majority position . Malrite involved the
Spielberg doctrine and not Collyer. The court upheld
deferral to arbitration awards except with respect to
alleged unlawful conduct which occurred after is-
suance of the arbitration awards . It was of course
erroneous , as the Board subsequently acknowledged,
to apply Spielberg to events which occurred after the
arbitration hearing . Electronic Reproduction Service
Corporation, Service at, 762. There is nothing in the
court's decision to indicate any kind of disapproval of
Collyer. In T.I.M.E.-DC, Inc. v . N.L.R.B., 504 F.2d
294 (C .A. 5, 1974), the court upheld the Board's
decision not to defer to arbitration because the
employer and the union were hostile to the employ-
ees' interests . See Kansas Meat Packers, a Division of
Aristo Foods, Inc., 198 NLRB 543 (1972). Not only
did the court not indicate disapproval of Collyer, it
specifically endorsed the doctrine of that case. It said.
Spielberg and Collyer represent a part of the
NLRB 's continuing effort to facilitate the prompt
and expert settlement of labor disputes in a
peaceful manner by the parties involved, without
resort to the sometimes ponderous apparatus of
federal intervention . [504 F .2d at 302.]
In N.L . R.B. v. Cincinnati Local 271, Lithographers &
Photoengravers International Union, AFL-CIO [U.S.
Playing Card Company], 495 F .2d 763 (C.A. 6, 1974),
the court upheld the Board 's refusal to defer under
Collyer because there was no contractual provision
dealing with the subject of the dispute . In enforcing
the Board 's order , the court said "that while it might
have been better to defer the issues therein to
arbitration , the Board 's failure to do so does not
amount to an abuse of discretion . . . ." Thus the
court clearly indicated approval of the deferral
practice.
The attempt of the dissenters to construe Oak Cliff-
Golman Baking Company, 207 NLRB 1063 ( 1973), as
a retraction of Collyer is a distortion of the decision in
that case. In the first place, the decision was by a
panel of Chairman Miller and Members Fanning and
Jenkins, the latter two of course having been the
dissenters in Collyer. Member Penello did not partici-
pate in the case because his chief counsel, formerly an
Administrative Law Judge, was the one who decided
the case. Member Kennedy did not participate. All
the panel members voted not to defer. Members
Fanning and Jenkins so voted because of their dissent
in Collyer. Chairman Miller voted against deferral for
a different reason . He stated:
[D]eferral is inappropriate in this case because
there is no claim, and indeed no room for any
finding, that the contract's terms even arguably
authorized the action taken by Respondent here.
Obviously therefore, unlike Collyer, the question
of whether Respondent's action was in violation
of its statutory obligation does not turn on any
underlying dispute over the meaning of the
contract's terms. Chairman Miller would not,
therefore, find that determination of the violation
issue in this case on its merits conflicts with the
policy enunciated in Collyer.
Oak Cliff-Golman did not involve a factual situation
similar to that in this case and in no sense can it be
construed as a modification of the majority's position
in Collyer.
As to the dissenters' argument that there is no
contract provision which could even arguably give
color to Respondent's conduct, we disagree. The
Supreme Court said in United Steelworkers of America
v. Warrior & Gulf Navigation Co., 363 U.S. 582-583,
that an order to arbitrate a particular grievance
should not be denied "unless it may be said with
positive assurance that the arbitration clause is not
susceptible of an interpretation that covers the
asserted dispute. Doubts should be resolved in favor
of coverage." We believe that the dispute here falls
within that standard and is therefore properly refera-
ble to the parties' arbitration procedure.
Finally, the dissenters have frightened themselves
with alarmist phrases-"contractual chaos," "indus-
trial conflict," and "impede and slow our decisional
process"-which they say will result from the deferral
of this and similar cases to arbitration. We do not
share in their fear. We had thought that the national
policy favors the settlement of labor disputes through
arbitration. Can the national policy as expressed in
the Labor Management Relations Act? and Supreme
7 Sec 203(d) of the LMRA provides declared to be the desirable method for settlement of grievance disputes
ansme over the application or interpretation of an existing collective-
Final adjustment by a method agreed upon by the parties is hereby barganung agreement.
ROY ROBINSON CHEVROLET 831
Court decisions8 be wrong and the dissenters right?
We do not believe so. We shall therefore dismiss the
complaint subject to the qualification contained in
the order as indicated below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the complaint
herein be , and it hereby is , dismissed ; provided,
however, that:
The Board shall retain jurisdiction of this proceed-
ing for the purpose of entertaining an appropriate
and timely motion for further consideration upon a
proper showing that either (a) the dispute has not,
with reasonable promptness after the issuance of this
Decision , been either resolved by amicable settlement
in the grievance procedure or submitted promptly to
arbitration ; or (b) the grievance or arbitration proce-
dures have not been fair and regular or have reached
a result which is repugnant to the Act.
CHAIRMAN MURPHY , concurring:
I agree with my colleagues , Members Penello and
Walther, that the Board clearly has the discretionary
authority under the Act to defer disputes arising
under the parties' collective -bargaining agreement to
the grievance and arbitration machinery established
by such agreement and should do so in this case. My
reasons for so finding are essentially those set forth
by the Board majority in Collyer Insulated Wire, 192
NLRB 837 (1971). Thus, I believe that issues involv-
ing purely the interpretation of the rights and
obligations of the parties under a collective-bargain-
ing agreement are particularly suited to the arbitral
process although these issues may also give rise to a
charge under Section 8(a)(5) or 8 (b)(3) of the Act.
On the other hand , I would not exercise our
discretion to defer to arbitration issues alleging
violations of Section 8(a)(1) and (3) or Section
8(b)(1)(A) and (2) of the Act. My reasons for treating
these sections of the Act differently from Section
8(a)(5) and 8 (b)(3) are more fully set forth in my
s United Steelworkers ofAmerica v American Manufacturing Co, 363 U.S.
564 (1960), United Steelworkers ofAmerica v. Warrior & Gulf Navigation Co,
363 U.S. 574 (1960), United Steelworkers of America v Enterprise Wheel &
Car Corp., 363 U.S 593 (1960)
In Gateway Coal Co v. United Mine Workers of America, eta!, 414 U.S.
368, 377 (1974), the Supreme Court said
The federal policy favoring arbitration of labor disputes is firmly
grounded in congressional command . Section 203(d) of the Labor
Management Relations Act, 29 U.S.C. § 173(d), states in part,
Final adjustment by a method agreed upon by the parties is
declared to be the desirable method for settlement of grievance
disputes arising over the application or interpretation of an
existing collective-bargaining agreement.
9 228 NLRB No. 102
concurring opinion in General American Transporta-
tion Corporation, 9 issued this date.'°
The instant case, in my view, falls squarely into the
area of contract interpretation and should be de-
ferred under the Collyer principles. The complaint
alleged a violation of Section 8(a)(5) of the Act by
Respondent's unilateral decision to eliminate its body
shop operation without first notifying and/or bar-
gaining with the Union which represents certain of
Respondent's employees, including the body shop
employees." Although three body shop employees
were discharged as a result of Respondent's unilateral
decision and action, no independent violation of
Section 8(a)(3) or (1) of the Act was alleged in the
complaint or found by the Administrative Law
Judge. It would appear, therefore, that the decision to
eliminate the body shop operation, as contended by
Respondent, was based solely upon economic consid-
erations and not upon hostility or animus toward the
Union or the employees' protected concerted activi-
ties.
In this posture, it seems to me, -the issue of whether
Respondent had a right under the contract to take the
action it undertook is clearly one of contract interpre-
tation which an arbitrator is peculiarly competent to
resolve.
The Administrative Law Judge erred, in my judg-
ment, in declining to defer the matter to the parties'
contractual grievance machinery. He reasoned that
the primary issue posed by the complaint-i.e.,
whether Respondent by closing its body shop and
discharging its three body shop employees without
prior notice to, and bargaining with, the Union
violated Section 8(a)(5) of the Act-was not suscepti-
ble to the contract's grievance provision because (1) it
would be difficult for the alleged discriminatees to
phrase the issue under the agreement, and (2)
Respondent might defend on the grounds that the
grievance was not filed within the time limitations
provided in the contract; I disagree with the Adminis-
trative Law Judge's assessment in this regard. It is
true, of course, that an arbitrator is not competent to
decide whether an employer's conduct violates Sec-
10 I note that my dissenting colleagues herein spend a great portion of
their dissent attacking my rationale in General American Transportation
Corporation, supra. Although my concurrence therein speaks for itself, I
would like to point out that the dissenters in the instant case joined my
concurrence in General American to form a majority.
i r Both the majority and the dissent cite The Columbus Printing Pressmen
& Assistants ' Union No 252, Subordinate to IP & GCU (The R W Page
Corporation), 219 NLRB 268 (1975), enfd. 93 LRRM 3055, 79 LC $ 11,782
(1976), but for different reasons With all due respect to the Fifth Circuit, I
reaffirm my belief in interest arbitration as the collective-bargaining tool of
the future, noting that the Sixth Circuit, in Chattanooga Mailers Union, Local
No 92 v. The Chattanooga News-Free Press Company, 524 F.2d 1305, 1315
(1975), held, in another context, that "The enforcement of an interest
arbitration clause is within the scope and purpose of our national labor
policy..
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 8(a)(5) of the Act. The issue to be deferred in this
case, however, is not whether a violation of Section
8(a)(5) occurred, but whether Respondent had a right
under the contract to eliminate the body shop and,
consequently, to discharge the body shop employees.
With respect to the Company's possible defense that
a grievance at this time would be untimely under the
contract, I note that Respondent's brief assures the
Board as well as the parties that Respondent does not
intend to raise such a defense and, in fact, has waived
it. If, however, Respondent raises timeliness as a
defense to a grievance, the Board should then
entertain the substantive allegations of the complaint
under the principles stated in Spielberg Manufacturing
Company, 112 NLRB 1080 (1955). For I firmly
believe, as was stated in Collyer, supra, that when we
defer the parties' contract disputes to their grievance
and arbitration procedures we must retain limited
jurisdiction over the matter for the purpose of
considering, upon an appropriate and timely motion,
whether (a) the dispute has been amicably settled or
submitted promptly to arbitration, or (b) the griev-
ance or arbitration procedure has been fair and
regular and has reached a result which is not
repugnant to the Act.
For all of the foregoing reasons, I would defer this
dispute to the parties' contractual grievance and
arbitration machinery, retaining jurisdiction over the
matter only for the limited purpose stated above.
MEMBERS FANNING and JENKINS, dissenting:
Contrary to the majority views, we would decide
the allegations of 8(a)(5) and (1) violations on their
merits. For the reasons fully set forth in our separate
dissents in Collyer Insulated Wire, supra, and our
dissents in related cases,12 we have legal and policy
misgivings in requiring the parties involved to have
such matters determined by an arbitrator instead of
this Board, despite the availability of arbitration
provisions in the contract.
However, even if we were inclined to accept the
majority positions, we regard the instant case as an
inappropriate vehicle for the application of such
views. Neither the facts, nor the legal precedents, nor
administrative efficiency supports the majority's
approach.
The issues here are straightforward and the facts
uncomplicated. The record shows that Respondent,
shortly after the commencement of operations, en-
tered into a collective-bargaining agreement with the
Union covering its mechanics and body shop and
related employees. Originally the agreement was
12 See , e.g., Joseph T Ryerson & Sons, Inc., 199 NLRB 461, 464 (1972);
Great Coastal Express, Inc, 196 NLRB 871, 872 (1972); Brotherhood of
Teamsters & Auto Truck Drivers Local No. 70, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers ofAmerica [National Biscuit
Company], 198 NLRB 552, 554 (1972), Peerless Pressed Metal Corporation,
between the Union and an association of automobile
dealers of which Respondent was a member. Respon-
dent and the association members operate businesses
which in most respects are similar.
In the spring of 1971, Respondent and the Union
agreed to enter into an individual contract rather
than as associationwide contract and negotiated a
contract for a term extending from May 1, 1971,
through April 30, 1974. The contract provided for
recognition of the Union as the exclusive collective-
bargaining representative for its shop employees,
including the body shop.
When negotiations for a new contract were unsuc-
cessful after the 1971-74 agreement expired, all nine
of the employees in the appropriate unit went on
strike, and Respondent's premises were picketed on
June 14 and 15, 1974.
Credited testimony further shows that on June 15
one of the picketing employees, Lyle Prather, a body
shop employee and a member of the Union's negoti-
ating committee, was approached by Respondent's
president, Roy Robinson, at the picket line. Robinson
complained to Prather regarding certain conduct in
which Prather engaged while picketing. When Prath-
er indicated that he would continue to use the tactics
complained of, Robinson told him that he was going
to close down the body shop and lease out the
operation to a nonunion operator. Respondent did
not deny that the above incident occurred.
Nevertheless, on June 17, President Robinson met
with employee Prather and another union representa-
tive and negotiated a new collective-bargaining
agreement which extended the expiration date of the
preceding contract to April 30, 1977, retaining most
of the terms and conditions of the recently expired
contract, except for some increases in wages and
fringe benefits. Upon the execution of the new
contract, the picketing ended and the striking em-
ployees returned to work. Under the new contract,
the body shop remained intact.
Of significance is that at no time during the June 17
negotiations was the subject of subcontracting or the
cessation of any of Respondent's body shop work
discussed or mentioned. Nor is there any showing
that the Union at the June 17 bargaining session or at
any other time waived its right to bargain on the
subject of subcontracting body shop work.
In the late afternoon of June 19, less than 2 days
after the contract was negotiated, Respondent called
the three employees employed in the body shop into a
meeting, and for the first time announced, without
198 NLRB 561, 562 (1972); Southwestern Bell Telephone Company, 198
NLRB 569, 570 (1972); Columbus and Southern Ohio Electric Company, 205
NLRB 187, 188 (1973); Granite City Steel Company, Subsidiary of National
Steel Corporation, 211 NLRB 880 (1974).
ROY ROBINSON CHEVROLET
prior notification to the Union, that it was closing the
body shop that day and terminating their employ-
ment . Thereafter, Respondent leased out to a non-
union body repair company the area of its premises
where the body shop was located, and contracted
with the company to complete the body work in the
shop, and continued thereafter to contract with that
company to perform the major portion of body work
on its automobiles. The subcontracting operation
continued for a period of about 4 months.
On November 1, after negotiations with the Union,
Respondent discontinued its subcontracting and
resumed operations of the body shop in the same
manner as previously and recalled the three terminat-
ed employees to work at the wages set forth under the
existing contract.
The above uncontroverted facts in our view indicat-
ed a blatant and irresponsible disregard by Respon-
dent for the collective-bargaining process. The major-
ity, nevertheless, finds that the "purposes of the Act
will best be discharged by deferring to the grievance-
arbitration procedures which the parties themselves
have created." From this pronouncement the majori-
ty concludes that the doctrine enunciated in Collyer
should be applied, since the contract and its meaning
were at the center of the dispute and "resolution of
that issue will also resolve the unfair labor practice
issue."
Not only do the facts militate against the above
approach, but the general principles applicable to the
issues involved here have been unquestionably ac-
cepted and firmly established by this Board and the
courts.
It is undisputed, of course, that the Board has the
authority to interpret contractual provisions, where
necessary, to resolve unfair labor practice allega-
tions .13 Here, however, contrary to the majority, the
contract does not require any Solomon-like interpre-
tation since there is no contract provision which
could even arguably be interpreted to license Respon-
dent's unilateral conduct. Their reliance on Warrior &
Gulf Navigation Co., supra, confirms our conclusion
that they are not relying on any specific provision of
the contract, but, as pointed out below, merely on the
fact that the collective-bargaining contract contains a
standard grievance-arbitration provision.
Article 3, on which the majority relies, covers
"HIRING, SUSPENSION AND DISCHARGE."
While section 3.01 under this article (not art. 3 as
stated by the majority) does provide that the "Em-
ployer shall have the exclusive right to hire, suspend,
13 N.L.R.B. v. C& C Plywood Corporation, 385 U S. 421(1967). See also
International Union of Operating Engineers, Local 701, AFL-CIO (Oregon -
Columbra Chapter, The Associated General Contractors ofAmerica, Inc.), 216
NLRB 233, 234 (1975); Cincinnati Local271, Lithographers and Photoengrav-
ers International Union , AFL-CIO (The United States Playing Card Compa-
833
and discharge his employees," section 3.02 limits this
right by specifically setting forth the five areas which
constitute "just cause" for suspension or discharge:
drunkenness, theft or deliberate destruction of prop-
erty, insubordination, failure to report for work, and
gross negligence . Section 3.02 further requires that
"any discharge or suspension" shall be by written
notice, signed by the Employer or service manager,
and delivered or mailed to the employee and the
Union. Sections 3.04 and 3.05 describe the employ-
ees' rights to a grievance procedure. Article 23 (not
art. 22 as stated in art. 3) describes the three-step
grievance and arbitration procedure.
The right of Respondent to subcontract or any
waiver by the Union respecting Respondent's right to
do so is nowhere mentioned, nor is there any
language from which such management rights could
be inferred. Article 19 of the contract is entitled
"CONFLICT OF EMPLOYMENT-OFF HOURS
WORK--SUBCONTRACTING," but, as the majori-
ty points out, this deals only with a situation where an
employee works "off hours in his home or garage or
elsewhere," not with the Employer's right to engage
in subcontracting.
Thus it is plain that there is no contract provision
relating to Respondent's closure of the body shop
portion of this established unit, and that Respondent
violated the Act in closing the body shop and
subcontracting the work without bargaining with the
Union. To leave this issue to arbitration means that
the arbitrator, in applying the usual standards, will
conclude (correctly) that nothing in the contract
prevents Respondent from doing what it did, and
thus there has been no breach of the contract. The
case will then either sink from sight with a violation
of the Act ignored by this Board, or it will return here
many months and dollars later for a decision on the
merits which might as well be rendered now. It is the
statute and not the contract which creates Respon-
dent's obligation to bargain here,14 and this objection
to deferral is hardly answered by the assertion of
Members Penello and Walther that the only issue is
whether "the arbitration clause is not susceptible of
an interpretation that covered the asserted dispute."
Arbitration clauses have no independent life or
substance of their own, but are only authority to
interpret other clauses in the contract-and there are
no other clauses in this contract touching the matter,
as they apparently concede by their inability to
identify one.
ny), 204 NLRB 418 (1973), enfd 495 F.2d 763 (C.A. 6, 1974); Osage
Manufacturing Company, 173 NLRB 458,461 -462 (1968).
14 Of course, the Union may in bargaining accept subcontracting in
whole, in part, or not at all , with or without concessions in return-but
bargaining with the Union is required.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor are we persuaded by the Chairman's distinc-
tion between "individual" rights under Section
8(a)(1) and (3) and "collective" or "group" or
"union" rights under Section 8(a)(5), leading her not
to defer in the former cases and to defer in the latter.
It is possible that an 8(aX5) violation involving
"course of conduct," "surface bargaining," or refusal
to recognize or meet with the union may be consid-
ered a "collective" or "union" right more than an
"individual" one, but this type of case is never a
candidate for deferral, since a contract (almost by
definition) does not exist for an arbitrator to inter-
pret. The 8(a)(5) cases which are considered for
deferral are those in which the employer unilaterally
takes some action contrary to, or not authorized by,
the collective-bargaining agreement which affects
some of its employees adversely in their terms and
conditions of employment. The rights of the employ-
ees to protection against such action is individual as
well as collective, and it is not necessary that a
violation extend to more than one employee for it to
be cognizable under the statute . The discharge of the
three body shop employees here was as "individual"
in its impact on them and its breach of their rights as
if they had been discharged for union activity in
violation of Section 8(aX3).
The "individual vs. collective" distinction is not
strengthened by arguing that 8(aX5) violations which
are deferred arise out of the contract made by the
"group" (union) with the employer. Discharges under
Section 8(a)(3) have at least equal "collective"
character, for violations occur only when the purpose
is to encourage or discourage "union" (i.e., "group")
support or activity. Indeed, the fact that the entire
statute is directed toward protecting the right to
engage in, or refrain from, "concerted" activities
eliminates any substance in the attempted distinction.
Finally, we would note that the speedy and
economical resolution of 8(a)(5) cases on which the
Collyer majority principally grounded their decision
has not occurred. The AFL-CIO "American Federa-
tionist" for November 1976 estimated the union's
share of arbitration costs at $2,290 per case, and the
total time consumed at 7-1/2 months. An employer's
costs would be about the same. The AFL-CIO
conclusion was that arbitration "is taking on the
appearance of a courtroom procedure" and "begin-
ning to discourage industrial justice for two very
basic reasons : cost and delay." The Board and
General Counsel have spent dozens of pages, barrels
of ink, and thousands of dollars logging the route to
determine when Collyer would be applied and when
not. It would be cheaper, fairer to the parties, faster,
and more consistent, as well as assuring the statutory
remedy for breaches of the statute, if we simply
abandoned Collyer and decided the alleged violations
presented to us, as this Board was charged by
Congress to do.
As for the legal foundations of the majority
position, the pronouncement that "the validity of the
Collyer doctrine is no longer seriously in doubt" and
"not a single court of appeals has disapproved that
doctrine since its enunciation" similarly appears to be
an overstatement.
As we have previously pointed out,15 the District of
Columbia Circuit Court which the majority relies on
for major support has recently had second thoughts
on the Board's pro forma deferring to arbitration
without regard to statutory considerations. The court
in Banyard v. N.LRB., 505 F.2d 342 (1974), remand-
ed the case to the Board for the determination as to
whether the employees in question had been discrimi-
natorily discharged.
In Banyar4 the court cautioned that deferral is
appropriately applied only where the resolution of the
contractual issue is congruous with the resolution of
the statutory unfair labor practice issue. In agreement
with our dissent in that case, the court admonished
the Board that its abstention went beyond deferral
and approached abdication. In Local Union No. 2188,
International Brotherhood of Electrical Workers, AFL-
CIO [Western Electric Company] v. N.L.R.B., 494
F.2d 1087 (C.A.D.C., 1974), cert. denied 419 U.S. 835
(1974), that court had previously expressed this same
view. Similarly, in Local Union 715, International
Brotherhood of lectrical Workers, AFL-CIO [Malrite
of Wisconsin] v. N.LR.B., 494 F.2d 1136 (C.A.D.C.,
1974), also relied on by the majority for judicial
support, the court did not fully support the Collyer
majority position and held that the Board's deferral
with respect to charges involving certain individual
bargaining with employees by the employer was
"erroneous" in that by such action "full remedial
relief' would not be provided since the issue had
never been presented to the arbitrator. The issue was
accordingly remanded to the Board for a determina-
tion on the merits.
As to other circuit courts of appeals, in both
T.I. M. E.-DC, Inc. v. N. L R B., 504 F.2d 294 (C.A. 5,
1974), and in N.L.R.B. v. Cincinnati Local 271,
Lithographers & Photoengravers International Union,
AFL-CIO [United States Playing Card Company],
495 F.2d 763 (C.A. 6, 1974), contrary to the assertion
in the majority's opinion, the courts upheld the
Board's refusal not to defer. In Cincinnati Local 271,
the Sixth Circuit agreed with the Board that there was
no contractual provision for the arbitrator to inter-
pret.
iS See Member Jenkins ' concumng opinion in The Columbus Printing
Pressmen & Assistants' Union No. 252, Subordinate to JP& GCU(The R W.
Page Corporation), 219 NLRB 269 (1975).
ROY ROBINSON CHEVROLET 835
In Nabisco, Inc. v. N.L.R.B., 479 F.2d 770 (C.A. 2,
1973); Enterprise Publishing Company v. N.L.R.B.,
493 F.2d 1024 (C.A. 1, 1974); and in Provision House
Workers Union Local 274, AFL-CIO [Urban Patman,
Inc.,] v. N.L.R.B., 493 F.2d 1249 (C.A. 9, 1974), cert.
denied 419 U.S. 828,16 the courts all emphasized that
the meaning and the interpretation of relevant
contract clauses were the gravemen of the dispute, a
factual situation not present here.
In Oak Cliff-Golman Banking Company, 207 NLRB
1063 (1973), where the factual situation and the
course of the employer's conduct were similar to
those in this case, with the employer there unilaterally
repudiating the contractual wage scale instead of, as
here, wiping out the jobs in a part of the enterprise,
Chairman Miller joined us in agreeing with the
Administrative Law Judge that deferral would abdi-
cate the Board's statutory function and that the issues
should be decided on the merits. There our other two
colleagues, who with Chairman Miller formed the
original Collyer majority, apparently agreed with that
result and remained silent . The Fifth Circuit Court of
Appeals enforced the Board's decision without dis-
cussion.17
Nor do we find any substance to the majority's
contention that "the Supreme Court has endorsed the
[Collyer] doctrine," citing the Supreme Court deci-
sion in Arnold Co., supra. We have several times
discussed in detail why we consider Arnold inappo-
site .18 In doing so, we have pointed out that Arnold
was a Section 301 suit involving a jurisdictional
dispute rather than an unfair labor practice proceed-
ing, and in such cases we have never opposed
arbitration and have so stated in our decisions in this
area. The reason, we have emphasized, is that in a
jurisdictional dispute deferral is mandatory under the
statute we administer when there is an agreed-upon
method of settlement of such dispute. Indeed, the
inclusion of this provision requiring deferral of
jurisdictional disputes is strong evidence that Con-
gress did not contemplate deferral of other types of
violations.
The majority's long quotations from Arnold are
taken out of context. The first paragraph (417 U.S. at
16) is dicta and was not necessary for the determina-
tion of the issues involved. The Court was merely
summarizing Board policy, policy, which we might
add, we have consistently opposed. The concluding
paragraph (417 U.S. at 18), italicized for emphasis, is
part of the Court's discussion under the heading
"Jurisdictional Disputes," referring to Section
8(b)(4)(i)(D) and Section 10(k) of the Act and is the
core of the Supreme Court's decision. Clearly, Section
301 and jurisdictional disputes, not Collyer, were the
focus of the Court's discussion.
As we have previously stated in the foregoing
dissents in this area, we regard the reasoning of the
Supreme Court in Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974), refusing to defer in a Title VII
equal employment action, and in Amalgamated
Association of Street, Electric Railway & Motor Coach
Employees of America v. Lockridge, 403 U.S. 274
(1971 ), refusing to defer to a state court an alleged
breach of contract which involved an arguable
violation of Section 8 of the Act, as more analogous
and persuasive than Arnold for supporting the conclu-
sion that the Supreme Court does not approve
deferral to arbitration such as is involved here.
In our view, we have in this case the facts to fit the
classic type of 8(a)(5) violation expressly proscribed
by the Supreme Court. Contrary to the majority,
there need be no showing that the discontinuance of
Respondent's body shop was for discriminatory
purposes. The general principles of law applicable to
the issues involved here are well established. Unilat-
eral changes in conditions of employment violate
Section 8(a)(5), as defined in Section 8(d), even in the
absence of an independent showing of overall subjec-
tive bad faith.19
Respondent not only was obligated to bargain with
the Union concerning the terms and the conditions of
employment of the employees in the appropriate unit,
but also was obligated not to change established
working conditions without consultation with the
Union, particularly here where there is no showing
that Respondent's right to subcontract body shop
work was ever discussed with, much less waived by,
the Union. Board cases, in which our colleagues on
the majority have joined us, have consistently fol-
lowed this precedent with the approval of circuit
courts of appeals in cases too numerous to require
citations.
18 The Ninth Circuit Court of Appeals, in Provision House Workers, supra,
in line with the caution of the District of Columbia Circuit Court, stated that
"the Board cannot abdicate its statutory responsibilities by inappropriate
deferrals to arbitration." (493 F.2d at 1249.) Nor do we think that the
majority should take comfort in the fact that the Supreme Court denied
certiorari in Provision House Workers and Local Union 2188, supra See
Columbus Printing Pressmen & Assistants' Union No. 252 (R W. Page Corp.),
219 NLRB 268, cited in fn. 5 of the majority's decision. It is hornbook law
that the grant or denial of certiorari does not signify approval or disapproval
by the Supreme Court.
We are gratified that the majority in their answer to our dissent have now
qualified their statement in Columbus Printing Pressmen ti Assistants' Union
No. 252, supra, that "six different courts of appeals have thus approved the
majority view expressed in Collyer." It is clear that the courts in question
have, as they point out, set forth limitations , reservations, and even
disapproval of their application of the Collyer doctrine.
17 505 F.2d 1302 (C.A. 5, 1974), cert. denied 423 U .S. 826 (1975).
Is See, e.g., Southwestern Bell Telephone Company, 212 NLRB 396, 397
(1974); Electronic Reproduction Service Corporation , 213 NLRB 758, 768-69
(1974); United Aircraft Corporation (Pratt & Whitney Division; Hamilton
Standard Division), 213 NLRB 150, 153 ( 1974); Columbus Printing Pressmen,
supra; Morrison-Knudsen Company, Inc., 213 NLRB 280,287-288 (1974).
19 See N.LRB. v. Benne Katz d/b/a Williamsburg Steel Products Co., 369
U.S. 736, 747 (1962); N.LRB. v. C & C Plywood Corporation, 385 U.S. 421
(1967), reversing 351 F.2d 224 (C.A. 9, 1965); NLR.B. v. Acme Industrial
Products, Inc., 385 U.S. 432 (1967).
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, Respondent 's unilateral actions specifi-
cally are prohibited by even a literal reading of the
Supreme Court's decision in Fibreboard Paper Pro-
ducts Corp v. N. L. R. B., 379 U. S. 203 (1964). The
conduct here involved was not an elemental manage-
ment decision but, as in Fibreboard, a unilateral
decision, without prior notice to the Union, which did
not alter Respondent 's basic operation . The body
work was still performed in the same location with
different people . No capital investment was contem-
plated or sale involved and the effect was to replace
existing employees with those of an independent
nonunion contractor. To have required Respondent
to bargain about the subcontracting of the work of
the body shop, or its effects, at the bargaining session
on June 17, 1974, when it apparently had already
made the decision to subcontract, would not have
significantly abridged Respondent's freedom to man-
age its automobile dealership . Nor would such
bargaining have affected the entrepreneurial control
of the business .20 So well settled are these principles,
and so farfetched would be any interpretation by an
arbitrator that this contract permitted the subcon-
tracting of the body shop operation, that an award
supporting the subcontracting would be repulsive to
the Act and contrary to Spielberg Manufacturing Co.,
112 NLRB 1080 (1955).
20
Cf. General Motors Corporation, GMC Truck A Coach Division, 191
NLRB 951 ( 1971) (Chairman Miller, Members Jenkins and Kennedy;
Members Fanning and Brown dissenting), enfd . sib nom. International
Union, United Automobile; Aerospace B Agricultural Implement Workers of
America, Local 864 v . N.LR.B., 470 F.2d 422 (C.A.D.C., 1972). See also
Walter Pape, Inc., 205 NLRB 719 (1973).
21 As to whether the Collyer deferral doctrine provides a quicker and
fairer resolution of disputes than can be provided by this Board or tends to
better promote industrial peace and stability is, alter more than 5 years of its
application , questionable . So far as we know, no objective studies of the
effect of the majority's deferral policy have been made and any conclusions
as to its efficacy are purely speculative . We do know that in certain cases it
has had a detrimental result.
A glaring example is Columbia Typographical Union No 101 , International
Typographical Union of North America, AFL-CIO (Byron S. Adams Printing.
Inc.), 207 NLRB 850 (1973). In that case, the Board majority (Chairman
Miller and Member Kennedy) deferred to the contractual grievance-arbitra-
tion machinery an alleged 8(bXI)(B) violation involving the fining and
expulsion of a foreman -member for performing his supervisory functions.
The charge was filed on January 10, 197Z and amended on March 21, 1972.
In dissenting, Member Jenkins noted that not only were the facts undisputed
and the applicable law clear, as in the instant case , but that respondent had
been involved in the same conduct twice before. (Columbia Typographical
Union No. 101 (The Washington Post Company), 207 NLRB 831, and 207
NLRB 841 , in which Members Fanning and Jenkins emphasized in their
dissents that such deferral was not likely to be effective on the basis of the
collective-bargaining history.)
In 1974, the charging party moved for reconsideration by the Board to
vacate the decision to defer and to decide the case on its merits because the
union had not chosen to invoke the grievance or arbitration procedures. The
majority denied the motion , with Member Jenkins again dissenting, charac-
terizing the majority's actions as "an ill-advised policy and a nonfeasance of
[the Board's I duties as the Agency charged with administering and enforcing
this statute." (214 NLRB 27.)
Finally, in 1975 the Board agreed that since the union had not taken the
case to the "arbitral forum" that the complaint should be reinstated and the
issues involved decided on their merits . In effect the decision was merely to
adopt the Administrative Law Judge's rulings, findings, and conclusions that
Thus, we find that neither the factual issues nor the
applicable law supports the majority's decision to
apply Collyer. We are convinced that the automatic
application of the deferral doctrine which our col-
leagues are here applying, even though there is no
genuine issue of contract interpretation, will lead to
contractual chaos, will tend to encourage unneces-
sary industrial conflict, and will impede and slow our
decisional process.21
This case is ripe for decision. Arbitration will serve
no purpose except to cause further proceedings
before this Board if the award sustains Respondent's
misconduct, and the arbitrator will in any event be
unable to enter a "cease-and-desist" award. The
reasons for expeditious handling by this Board rather
than deferring the matter to an outside tribunal are
compelling. The effect of the majority decision would
appear to extend Collyer so broadly as to preclude
any remedy under the Act we administer where the
parties with established collective-bargaining rela-
tionships act unilaterally, regardless of the contents of
the contract or the conduct involved, merely because
the collective-bargaining contract provides for arbi-
tration.22
For the above reasons, we would decide the
allegations in the complaint and proceed to the merits
of the case.
the union had violated the Act, a decision Members Fanning and Jenkins
would have made 2 years earlier. (219 NLRB 88.)
In 1977, the case is now before the United States Court of Appeals for the
District of Columbia (No. 75-1970) on a petition for review and cross-
application for enforcement on the issue as to whether the Board abused its
discretion by reasserting jurisdiction after the union failed to proceed with
"reasonable promptness" to arbitration. Thus, more than 4 years after the
charge was filed, litigation is far from over and the use of the Board's (and
the courts) manpower and resources have been enormous.
22 We note that Sec. 203(d) of the LMRA, which the majority relies on to
support its approach, appears in Title II of the Act dealing with the Federal
Mediation and Conciliation Service ; the majority has omitted the qualifying
sentence which follows the sentence quoted: "she [Federal Mediation and
Conciliation I Service is directed to make its conciliation services available in
the settlement of such grievance disputes only as a last resort in exceptional
cases . " Nor do we find any language in the Supreme Court cases cited in fn.
8, supra (the Steelworkers trilogy) that the Board should abdicate its statutory
functions.
More relevant, we believe, is Sec. 10(a) which appears in Title I containing
the sections of the Act we administer:
The Board is empowered, as hereinafter provided, to prevent any person
from engaging in any unfair labor practice (listed in section 8) affecting
commerce . This power shall not be affected by any other means of
adjustment or prevention that has been or may be established by
agreement, law, or otherwise....
Members Penello and Walther rely on Gateway Coal Co. v. United Mine
Workers, supra, to support their deferral of statutory violations to the arbitral
process. We consider this reliance misplaced . Gateway did not involve any
asserted violation of the sections of the Act which we administer , but was an
action brought under Sec . 301 of Title III of the Act. Moreover, Gateway
involved the special subject matter of"safety disputes." The passage cited by
our colleagues was merely the Court's reaffirmation of the view expressed in
the Steelworkers trilogy, as is clear from the sentence and paragraphs which
follow . The issue here is not whether arbitration is a desirable method for
settling labor disputes, but whether, as noted above , the Board should
abdicate its statutory functions to the arbitral process . Gateway does not
address that issue.
ROY ROBINSON CHEVROLET 837
DECISION
STATEMENT OF THE CASE
and the Union was a labor organization as those terms are
defined in Section 2(2), (5), (6), and (7) of the Act.
GEORGE CHRISTENSEN , Administrative Law Judge: On
February 26, 1975, I conducted a hearing at Seattle,
Washington , to try issues raised by a complaint issued on
December 31 , 1974, 1 on the basis of a charge and an
amended charge filed by the International Association of
Machinists and Aerospace Workers, Local Lodge 1224,
AFL_CIO,2 on June 26 and July 26, respectively.
The complaint alleged that Roy Robinson , Inc. d/b/a
Roy Robinson Chevrolet3 violated Section 8(axl) and (5)
of the National Labor Relations Act, as amended (hereafter
called the Act), by contracting out its body shop work and
discharging its bodymen without prior notice to or bargain-
ing with the Union.
The Company denied the appropriateness of the unit
represented by the Union , denied the commission of the
acts alleged in the complaint , and denied any violation of
the Act. As affirmative defenses, the Company stated that:
(1) the issues are and should be deferred to the grievance-
arbitration provisions of the currently effective collective-
bargaining agreement between the Company and the
Union ; (2) the Company had no duty to bargain with the
Union regarding the closing of its body shop and the
discharge of its body shop employees; (3) if the Company
had such a duty, it fulfilled that duty; and (4) backpay is an
inappropriate remedy in this case.
The issues created by the pleadings are:
1. Whether the Board should defer to the grievance-
arbitration provisions of the company-union contract;
2. The appropriateness of the unit and the Union's
representative status therein at times appropriate;
3. Whether the Company contracted out its body shop
work and discharged its body shop employees;
4. Whether the Company contracted out its body shop
work and discharged its body shop employees without prior
notice to or bargaining with the Union;
5. Whether, in the event the above acts are found to
have occurred, the Company thereby violated the Act;
6. If the Company did violate the Act, whether backpay
should be directed.
The parties appeared by counsel at the hearing and were
afforded full opportunity to produce evidence, examine and
cross-examine witnesses, argue, and file briefs. Briefs have
been received from the General Counsel and the Company.
Based upon my review of the entire record , observation
of the witnesses , perusal of the briefs and research , I enter
the following:
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the Company admitted, and I find
that the Company at times pertinent was an employer
engaged in commerce, in a business affecting commerce,
' Read 1974 after all subsequent date references omitting the year.
2 Hereafter called the Union.
' Hereafter called the Company.
4 An admitted supervisor and agent of the Company acting on its behalf
at all times pertinent.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Company was formed in 1968 by Roy Robinson, its
president,4 to operate a Chevrolet dealership in Marysville,
Washington, a small town near Seattle . Shortly after
commencement of operations, the Company entered into a
collective-bargaining agreement with the Union covering
its mechanics and body shop , and related employees.
Originally those employees were covered by a collective-
bargaining agreement between the Union and an associa-
tion of automobile dealers of which the Company was a
member; in 1971, however, the Company and the Union
entered into an individual contract for a term extending
from May 1, 1971, through April 30,1974. In that contract,
the Company continued to recognize the Union as the sole
and exclusive collective-bargaining representative of its
employees classified as journeyman mechanic , journeyman
bodyman and painter , journeyman parts man, specialist
(polishers , lubrication men, new- and used -car cleanup and
get-ready men, etc .) and apprentice , excluding automobile
salesmen, janitors, office employees, guards, and supervi-
sors, as defined in the Act.
Pursuant to the revision and termination provision of that
contract, the Union served timely notice on the Company
of its desire to amend the 1971-74 agreement. Negotiations
commencing after the service of the aforesaid notice
occurred through the expiration date of the contract to
Friday, June 14, when the Union called a strike.
At the time the strike commenced, the Company em-
ployed four mechanics, three bodymen, one partsman, and
one specialist (lubrication man) under coverage of the
company-union contract. All nine of the aforesaid employ-
ees joined in the strike and picketed the Company's
premises on Friday, June 14, and Saturday, June 15.
On the latter date, one of the picketing employees-Lyle
Prather, a bodyman5-was approached by Robinson at the
picket line. Robinson complained to Prather over reports he
had received (from his salesmen) that Prather was advising
prospective customers who stopped to inquire concerning
the strike to take their business to a competitor. Prather
replied that he gave Robinson his best efforts as an
employee, but when Robinson refused to sign a contracts
he had declared war on the employees and he (Prather)
would use any means he had to divert work away from the
Company. Robinson replied in that case he was going to
close down his body shop operation and lease out the body
shop to a nonunion operator. Prather told him if he did that
he had better bring in some tough ones, to which Robinson
responded that he would bring in some who were tough
enough to handle anything Prather could give them.?
On the following Monday, June 17, Robinson met with
Prather and another union representative and he and the
5 Prather was also a member of the Union's negotiating committee.
6 The other dealers whose employees were represented by the Union in
the area signed contracts ; the only dealer the Union struck to secure a
contract was Robinson Chevrolet.
4 The above findings are based upon Prather 's uncontradicted testimony.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union representatives executed a document wherein it was
agreed that all the terms of the preceding contract would be
continued in effect unchanged for a period extending from
the expiration date of the preceding contract to April 30,
1977, except for upward adjustments (spelled out in the
document) in wage rates , dental plan payments , health and
welfare payments, and pension plan payments. Upon
execution of that document all the striking employees
returned to work.
On the following day, Tuesday, June 18, Robinson called
a special meeting of the Company's board of directors to
discuss his proposal to shut down the body shop operations
and contract out all body work.
On the next day (Wednesday, June 19) at approximately
4 p.m., Robinson called the bodymen together (Prather,
Russell Divers, and Eugene Berg), informed them he was
closing the body shop that day and terminating their
employment, and instructed them to pick up their final
paychecks 2 days later-on Friday, June 21 . He rejected
their offer to complete the work then in the body shop.
As he had threatened , Robinson then leased out that
portion of the Company's premises where the body shop
was located to a nonunion body repair organization and
contracted with that organization to complete the body
work in the shop. With some exceptions , he continued
contracting thereafter with that organization to perform
body work on autos brought to the Company for that type
of repair until November 1, when, after negotiations with
the Union, the Company resumed operations of the body
shop and recalled Prather, Divers, and Berg to work therein
at the rates of pay, wages, hours, and conditions set out in
the 1974-77 agreement.
While Robinson testified he contemplated closing the
body shop for a considerable time prior to doing so and
discussed this with the Union, the only evidence supporting
the former is his unsupported testimony and a document
prepared subsequent to June 19 purporting to show his body
shop was not profitable between January 1-June 19, and
the only evidence supporting the latter consisted of Robin-
son's testimony-corroborated by union negotiators-that
he complained of the high cost of the Union 's wage and
related money proposals vis-a-vis his nonunion competitors
in the course of the negotiations preceding execution of the
1974-77 agreement.
B. Analysis and Conclusions
1. The arbitration issue
The Company contends the issues involved in this
proceeding are susceptible of determination under the
grievance-arbitration provisions of the 1974-77 agreement
between the Company and the Union and the Board should
defer to those provisions for resolution of this dispute.
Article 3 of the agreement provides that "the employer
shall have the exclusive right to hire, suspend and discharge
his employees," sets forth five grounds for immediate
suspension or discharge (drunkenness, theft or deliberate
destruction of property, insubordination, failure to report
for work, and gross negligence), and provides that any
discharged employee who believes his discharge is unjust
may file a grievance, provided the grievance is filed within 5
working days from the date of the discharge (or shall be
waived).
While there is an article in the contract with the heading,
inter alia, "Sub-contracting" (article 19), that article is
limited to language barring employees from working during
their own time at the same type of work they perform for
the Company.
Article 23 of the ageement provides that any employee
complaint over the Company's interpretation or application
of the agreement shall be referable to the shop committee
within 3 days after cause for the complaint arises and, in the
event the parties to the agreement are unable to resolve it
within several specified grievance steps, that the grievance
may then be referred to an arbitration committee whose
decision thereon "shall be within the scope of the agree-
ment and not change or depart from any of its terms or
conditions."
The time limits prescribed in the contract for the filing of
grievances thereunder have expired . Even if this were not
so, it appears doubtful that the issues in this proceeding are
capable of full resolution under the terms of the agreement.
The primary issue here is whether the Company violated
the Act by laying off its body shop employees and
contracting out its work without giving prior notice to the
Union of its intention to do so and giving the Union an
opportunity to discuss alternatives to avoid that action or
failing to convince the Company to abandon its plant, [to
obtain) severance pay, continued employee coverage under
the hospital, medical, dental, and pension plans to which
the Company contributed, or other measures to alleviate
the economic impact upon the affected employees.
It is difficult to visualize how the alleged discriminatees in
this case could word a grievance which would present to an
arbitration committee appointed under the agreement the
issue just framed ; they might allege that their discharge was
unjust within the meaning of article 3 or that contracting
out their work and laying them off violated the spirit and
intent of the recognition and seniority provisions of the
agreement, to be met with the defenses that their grievances
were untimely , that the first paragraph of article 3 gives the
Company the unilateral right to discharge its employees at
will, and that in the absence of specific , limiting language
the Company has the right to contract out its work as and
when it chooses.
An arbitration proceeding on the issues raised by the
foregoing (were it even to reach the merits of the dispute, in
view of the timeliness issue) would not encompass the
primary issue before me (as heretofore stated); it is also
clear that an arbitration proceeding on the merits of the
dispute might very well result in a dismissal of the
grievance, while a contrary result would result under the
Act.
It would ill-suit the public interest imbedded in the Act to
defer to proceedings before a private tribunal which would
result in a denial of rights the Act was designed to protect.
Since the public law-the National Labor Relations Act,
as amended-overrules and supersedes any private con-
8 Under the terms of the Company's franchise agreement with General
Motors , it was obligated to maintain a service department for mechanical
repairs but it was not required to do body work.
ROY ROBINSON CHEVROLET 839
tract and a grievance-arbitration proceeding under the
company-union agreement over these discharges would not
encompass all the issues arising under the pertinent
provisions of that Act, I find and conclude that it would not
effectuate the purposes of the Act to defer to the grievance-
arbitration provisions of the company-union contract in
this matter.
2. The unit and the Union's representative status
Under both the 1971-74 and the 1974-77 company-union
agreements, the Company recognized the Union as the
exclusive collective-bargaining representative of a unit of its
employees consisting of journeymen-mechanics , journey-
men body and paint men, journeymen partsmen, and
journeymen specialists (the lubrication man), excluding
salesmen, guards, and supervisors as defined in the Act. All
nine of the Company's employees in those classifications
and covered by those agreements participated in the June
14-17 strike.
On the basis of the foregoing, I find and conclude that a
unit of the Company's employees consisting of journeymen
mechanics, journeymen body and paint men, journeymen
partsmen, and journeymen specialists (the lubrication
man), excluding automobile salesmen , guards, and supervi-
sors as defined in the Act, constitutes an appropriate unit
for collective-bargaining purposes under the Act. I further
find and conclude that at all times pertinent the Union
represented a majority of the Company's employees within
that unit.
3. The contracting-out and discharge issues
I have entered findings heretofore that on June 19 the
Company discharged its three body shop employees and
subsequently contracted with a nonunion operator to lease
its body shop and to perform its body shop work at the
Company's premises. I have also entered findings hereto-
fore that the discharge notice was served by the Company
on the employees without advance warning or notice to the
Union or the employees. I have also entered findings that
Robinson, in the course of the negotiations which preceded
execution of the 1974-77 contract, complained that the cost
of the Union's money demands placed him in a bad
competitive position.
I find and conclude that such complaints do not rise to
the status of notice to the Union of the Company's
intention to contract out the Company's body shop work
and discharge its body shop employees.
I therefore further find and conclude that the Company
discharged its body shop employees contracted with a
nonunion operator to lease the Company's body shop and
perform the work they had formerly performed without
prior notice to the Union or bargaining with the Union
concerning its decision to so act or the economic conse-
quences on its body shop employees of that action.
4. The violation
The Board has consistently held that when an employer,
as here , carries out its threat to fire some of its employees,
discontinue that part of its operations those employees
performed, and, instead, have those operations performed
on its premises by another employer, without advance
notice to the Union or bargaining with the Union concern-
ing that decision and its economic effects upon the
employees, it constitutes a violation of Section 8(a)(5) and
(1) of the Act . Fibreboard Paper Products Corp. v. N.LRB.,
379 U.S. 203 (1964).
That is just what the Company did here.
I therefore find and conclude that, by discharging
Prather , Divers, and Berg on June 19 and contracting with
another employer to assume operation of its body shop and
perform the work formerly performed by those three
employees at the Company's premises , without prior notice
to the Union or bargaining with the Union concerning such
decision and/or the economic effects of that decision upon
those employees , the Company violated Section 8(a)(5) and
(1) of the Act.
CONCLUSIONS OF LAW
1. At all times pertinent the Company was an employer
engaged in commerce in a business affecting commerce and
the Union was a labor organization, as those terms are
defined in Section 2(2), (5), (6), and (7) of the Act.
2. At all times pertinent Robinson was a supervisor and
agent of the Company acting on its behalf.
3. A unit consisting of the Company's employees
classified as journeymen mechanics, journeymen body and
paint men, journeymen partsmen , and journeymen special-
ists (including the lubrication man), excluding automobile
salesmen, guards, and supervisors as defined in the Act,
constitutes a unit appropriate for collective-bargaining
purposes under the Act.
4. At all times pertinent the Union represented a
majority of the Company's employees within the aforesaid
unit.
5. It would not effectuate the purposes of the Act to
defer to the grievance-arbitration provisions of the compa-
ny-union contract for resolution of the issues involved in
this case.
6. The Company violated Section 8(aX5) and (1) of the
Act by discharging its body shop employees and contract-
ing with another employer to assume the operation of its
body shop with that employer's employees without prior
notice to the Union or bargaining with the Union concern-
ing that decision and/or the economic consequences of that
decision on the affected employees.
7. The aforesaid unfair labor practice affects commerce.
THE REMEDY
Having found that the Company engaged in unfair labor
practices in violation of Section 8(a)(1) and (5) of the Act, I
shall recommend that the Company be directed to cease
and desist therefrom and to take affirmative action de-
signed to effectuate the purposes of the Act. It shall be
recommended that the Company be ordered to cease and
desist from discharging unit employees and contracting out
the work they normally perform without prior notice to the
Union and bargaining with the Union concerning both
such decision and its economic effect upon affected
employees.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It shall also be recommended that the Company make
Prather, Divers , and Berg whole for any wage losses they
suffered by payment to them of the money they would have
earned from the date of their discharges to the date they
were reinstated , less any net earnings they may have
received in the period, plus payment of any benefits under
the contract they lost during such period. Their lost wages
9 I reject the Company 's contention that backpay should not be ordered
under the circumstances of this case ; it is clear the discharges were at least in
part retaliation against the employees for engaging in a strike ; it effectuates
shall be computed in accordance with the formula pre-
scribed in F. W. Woolworth Company, 90 NLRB 289 (1950),
with interest at 6 percent per annum computed in accor-
dance with the formula prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).9
[Recommended Order omitted from publication.]
the purposes of the Act to require a wrongdoer to make wronged persons
whole for the economic losses they suffered by virtue of such unlawful
action.
1