Southwestern Bell Telephone Co.

National Labor Relations Board - Board Decisions

Jun 28, 1974

212 N.L.R.B. 396 (N.L.R.B. 1974)

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southwestern Bell Telephone Company and Communi-
cations Workers of America, AFL-CIO, and its Lo-
cal Union No . 6222 . Case 23-CA-3902
June 28, 1974
SUPPLEMENTAL DECISION AND ORDER
On July 31, 1972, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding I dismissing the complaint but re-
taining jurisdiction to entertain an appropriate and
timely motion for further consideration upon a proper
showing that (a) the dispute has not, with reasonable
promptness after the issuance of the Decision, either
been resolved by amicable settlement in the grievance
procedures or submitted promptly to arbitration, or
(b) the dispute has been duly found by the arbitrator
not to be arbitrable, or (c) the grievance or arbitration
procedures have not been fair and regular or have
reached a result which is repugnant to the Act.'
The Charging Party filed a petition to review the
Order of the National Labor Relations Board in the
United States Court of Appeals for the District of
Columbia Circuit. While the Charging Party's petition
was pending in the Court of Appeals, an arbitrator's
award issued on July 3, 1973. The arbitrator found
that the dispute was arbitrable and he ruled on the
merits.
On November 23, 1973, the court of appeals grant-
ed the Charging Party leave to file the arbitrator's
award and further ordered remand of this matter to
the National Labor Relations Board for additional
proceedings, contemplated by the Board's order to
retain jurisdiction upon a proper showing that the
grievance or arbitration procedures have not been fair
and regular or have reached a result which is repug-
nant to the Act.
The Board, having accepted the court's remand,
issued a notice to the parties requesting statements of
position. The Charging Party and the Respondent
each filed a statement in response. The Charging Par-
ty also filed a motion for oral argument and Respond-
ent filed a response to that motion.3
The Board has considered the record in light of the
statements of position and has decided to dismiss the
i 198 NLRB No 6
2 In accordance with our decision in Collyer Insulated Wire, 192 NLRB
837
3 The request for oral argument by the Charging Party and the qualified
request for oral argument by the Respondent are hereby denied, as the
statements of position adequately present the issues and positions of the
parties The Respondent also contends that the Charging Party has not filed
a motion upon a ground specified in the Board 's original decision Since the
Board accepted remand of this case from the court of appeals , the filing of
such a motion was unnecessary in these circumstances
complaint in its entirety.
Under the terms of the court of appeal's remand,
the two issues before the Board are whether the arbi-
tration procedures have been fair and regular, or
whether they have reached a result which is repugnant
to the Act.
As to the first issue, we note that neither party has
made any contention that the arbitration procedures
were unfair or irregular. In view of the absence of such
a contention and after a careful examination of the
arbitrator's decision, we conclude that the arbitration
procedures were fair and regular.
With regard to the second issue, we note that the
arbitrator concluded that it would be a breach of the
collective-bargaining agreement for the Respondent
to institute a new practice of scheduling part-time
tours of duty for telephone operators in the traffic
department during the daytime hours by assigning
such tours of duty to part-time operators on the basis
of their separate seniority, while denying such tours of
duty to full-time operators with greater seniority. As
of the date of the arbitration proceedings and, indeed,
as of the date of this Supplemental Decision, it does
not appear that Respondent has taken any action to
implement its plan.
The arbitrator stated that his decision was in the
nature of a declaratory judgment and that "no relief
is requested and none is granted." Nevertheless, the
Charging Party contends to the Board that an unfair
labor practice has been committed and that it has
never been remedied. The Respondent asserts that the
arbitrator granted all the relief that was appropriate
which was an interpretation by him that the proposed
staffing plan would violate existing seniority rights.
It seems clear to us that the basic dispute between
the parties-i.e., whether Respondent was free to in-
stitute its proposed change-has been resolved ad-
versely to Respondent's position by the arbitrator.
There is no evidence, and indeed no assertion, that
Respondent will not comply with the arbitrator's
award. Under these circumstances, the dispute ap-
pears to us to have been totally resolved under the
parties' own machinery in a manner surely not repug-
nant to the policies of our Act. We, therefore, see no
need remaining for any exercise of this Board's juris-
diction.'
In reply to our dissenting colleagues , we believe it is inappropriate and
injudicious to comment on any case which is pending before this Board for
decision on remand, and therefore refrain , as we think only proper, from
expressing our views in this opinion, about either the facts or the holdings
of either this Board or the court of appeals in Malrite of Wisconsin, Inc, 198
NLRB No 3
To respond to the balance of the dissent, however, our dissenting col-
leagues seem to us to fail to understand that the dispute here arose out of
a bona fide dispute between the parties as to whether the Respondent did or
did not have a right , under the contract , to institute the change in question
Even though that dispute is now resolved, our colleagues seem so wed to
Continued
212 NLRB No. 53
SOUTHWESTERN BELL TELEPHONE CO.
In view of the foregoing, we shall dismiss the com-
plaint in its entirety.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
MEMBERS FANNING and JENKINS , dissenting:
This is another case in which the majority clarifies
the meaning of its Collyer doctrine, particularly as it
relates to the exercise of its retained jurisdiction after
an arbitrator has ruled on the merits of an alleged
unfair labor practice. Here it was alleged that the
Employer had breached its collective-bargaining
agreement with the Union by unilaterally changing a
condition of employment without notification to or
bargaining, with the representative of its employees.
The dispute between the parties proceeded concur-
rently before the Board and the courts. Under court
order, the Union was enjoined from striking to protest
the Employer's conduct and the Employer was en-
joined from instituting its proposed plan, pending ar-
bitration of the dispute. Before the Board, The
Employer argued, and a majority of the Board agreed,
that the Board should not decide the merits of the
controversy, but defer to the arbitrator 's decision, re-
taining jurisdiction, however, for the purpose of re-
viewing the arbitrator's decision for fairness,
regularity, and nonrepugnancy to the Act. The arbi-
trator has now ruled that the Employer has, indeed,
breached its collective-bargaining agreement by un-
dertaking unilaterally to institute part-time daylight
tours of duty at its Alabama Street facility with sepa-
rate seniority for part-timers to the exclusion of sen-
traditional Board procedures that they apparently cannot conceive that such
a dispute can be effectively resolved unless this Board's printing presses grind
out the familiar order. The simple answer to the dissent is that three decades
and more of experience under a Federal policy favoring collective bargaining
have shown that disputes of this kind are susceptible of lasting and effective
resolution through the arbitration process, as this Board long ago recognized
m Spielberg.
We are convinced that the dispute here has been so resolved , and see no
need to add our own form of order to an already enforceable arbitration
award.
Giving full effect to these voluntary , contractual , dispute-settling proce-
dures seems to us, as it does to the Supreme Court, to be fully consistent with
statutory policy, and not, as the dissenters have repeatedly asserted, to an
abdication of statutory responsibility. We note in particular the recent deci-
sion in William E. Arnold Co. v. Carpenters, 417 U.S . 12 (1974), wherein the
Supreme Court , in commenting on our Collyer decision, said, inter aba:
The Board's position harmonizes with Congress ' articulated concern
that "final adjustment by a method agreed upon by the parties is .. .
the desirable method for settlement of grievance disputes arising over
the application of interpretation of an existing collective -bargaining
agreement .
5 Spielberg Manufacturing Company, 112 NLRB 1080.
397
iority rights of full-timers. The arbitrator carefully
restricted his decision to an interpretation of the par-
ties' rights and obligations under their collective-bar-
gaining agreement. His decision was in the nature of
a "declaratory judgment." He did not order the Em-
ployer to refrain from breaching its contract in the
future in the same or in a like or related manner. No
remedy for the contractual breach was asked, and he
gave none.
Acting on a remand from the Court of Appeals for
the District of Columbia, the majority now concludes
that the dispute has been "totally resolved" in a man-
ner not repugnant to the policies of our Act, dismiss-
ing the complaint in its entirety. To the Union's
argument that it is left without an adequate remedy
for the unfair labor practice the majority replies that
there is no evidence that the Employer will not com-'
ply with the arbitrator's award.
The majority's dismissal of this complaint without
a remedy, even after an arbitrator has ruled on the
factual issues in the Union's favor, is in accord with
its published policy in reviewing arbitrators' awards
under the Collyer doctrine. Thus, in Malrite of Wiscon-
sin, Inc., 198 NLRB No. 3, the majority dismissed the
complaint where, as here, the arbitrator had ruled in
the union's favor and against the employer's assign-
ment of engineer-announcer duties to combination
operators at its radio stations. In that case the employ-
er refused to abide by the arbitrator's award. Despite
the employer's refusal to accept the award, the majori-
ty held that the Board under the Collyer doctrine had
no obligation to provide a remedy; it was the respon-
sibility of the union to seek court enforcement of the
award, regardless of the expense or the employer's
clear violation of this statute. We dissented on the
ground, in part, that the most serious damage to the
union was the loss of its prestige and bargaining pow-
er, and that only the Board could order the employer
to bargain in good faith under Section 8(a)(5) and 8(d)
of the Act. Now that case is again before the Board,
remanded because the majority had not passed on
conduct by the employer never even presented to the
arbitrator. The issue, so far as that union is concerned,
has become moot. It no longer represents any employ-
ees of the employer, who is now free to set terms and
conditions of employment unilaterally. Clearly, with-
out an effective remedy, promulgated and enforced
through this Board, the union's victory before the
arbitrator on the factual issue presented was a hollow
one. We do not know whether or not collective bar-
gaining would still be alive at those radio stations if
the Board had issued its customary remedial order for
conduct in violation of Section 8(a)(5) of the Act. We
do know that following the majority's refusal to pro-
vide such a remedy collective bargaining failed for
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that unit of employees.
In the instant case the arbitrator's findings of fact
clearly establish that this Employer in violation of
Section 8(a)(5) of the Act unilaterally attempted to
change a material condition of employment. The
majority's refusal to provide a remedy for this unfair
labor practice is another flagrant example of the abdi-
cation of its statutory obligation in pursuance of a
doctrine which substitutes the award of a private arbi-
trator for the mandate of Section 10(c) of the Act.
Whatever may be said with respect to this doctrine
where the arbitrator has found , as a matter of fact,
that there is no factual evidence upon which to predi-
cate a violation of this Act, no such considerations are
warranted where, as here, he has found to the con-
trary. Then it is incumbent upon the Board, as direct-
ed by Congress in Section 10(c) of the Act, to order
the person found to have committed such a violation
to cease and desist from engaging in such unfair labor
practice and to take such other affirmative action as
will effectuate the policies of this Act. Despite the fact
that a charge has been filed by the Union alleging the
commission of an unfair labor practice under Section
8(a)(5), despite the fact that the General Counsel has
issued a complaint to that effect, despite the factual
conclusions of an arbitrator that the charge and the
complaint have merit, a majority of this Board now
refuses even to issue an order adopting the arbitrator's
findings of fact and directing the Employer to cease
and desist from engaging in such conduct or related
conduct or otherwise interfering with the statutory
rights of its employees.
With every new Collyer case it becomes clearer that
that policy is not merely a means of utilizing the griev-
ance arbitration machinery of the parties' contract to
resolve disputes over contract interpretation, with the
Board as the overseer of the entire process, but a
complete abdication of the Board's responsibility in
proven unfair labor practices to see to it that a
respondent's conduct, here a refusal to bargain in
good faith under Section 8(a)(5), ceases and does not
recur in the same or similar manner. We cannot agree
that this and other Collyer cases are authorized by the
precedent of Spielberg, where the Board accepted an
arbitrator's findings of fact and therefore concluded
that the Respondent had not violated Section 8(a)(3)
of the Act, dismissing the complaint for that reason.
William D. Arnold Co. v. Carpenters, 417 U.S. 12
(1974), on which our colleagues rely to support their
Collyer view, hardly seems pertinent. That was a Sec-
tion 301 Suit rather than an unfair labor practice pro-
ceeding, and in such cases we likewise think there is
no objection to arbitration, and have said so in our
dissents in this area. Furthermore, Arnold was ajuris-
dictional dispute case, as to which deferral to an
agreed-upon method of settlement is made mandato-
ry by the statute. Indeed, it is this mandatory deferral
procedure in such cases that helps persuade us that
deferral of other types of unfair labor practice cases
was not contemplated under the Act. We regard the
reasoning of the Supreme Court in Alexander v. Gard-
ner Denver Co., 415 U.S. 36 (1974), refusing to defer
in a Title VII equal employment action, as more ana-
logous and persuasive than Arnold.