Textron, Inc.

National Labor Relations Board - Board Decisions

Apr 27, 1993

310 N.L.R.B. 1209 (N.L.R.B. 1993)

1209
310 NLRB No. 205
TEXTRON, INC.
1 All dates are in 1992 unless otherwise indicated.
2 The complaint alleges, and the answer admits, that the Respond-
ent is an employer engaged in commerce within the meaning of Sec.
2(6) and (7) of the Act and that the Union is a labor organization
within the meaning of Sec. 2(5) of the Act.
3 The Respondent filed its motion with the Board’s Division of
Administrative Law Judges in Arlington, Virginia. On July 29 the
General Counsel filed a response, asserting that the Respondent’s
motion to defer was, in effect, a Motion for Summary Judgment and
requested that the motion be forwarded to the Board for processing.
By letter of the same date, Associate Chief Administrative Law
Judge Edwin H. Bennett found, in agreement with the General
Counsel, that the ‘‘true nature of the Respondent’s motion is one for
summary judgment’’ and, accordingly, forwarded the Respondent’s
motion to the Board.
Thereafter, on or about August 10 the Respondent filed with the
Board a ‘‘Reply to the General Counsel’s Response to the Respond-
ent’s Motion to Defer and Response to Decision by Associate Chief
Administrative Law Judge to Transfer Respondent’s Motion to Defer
to the Board.’’ The Respondent argued therein that its motion to
defer is not the equivalent of a Motion for Summary Judgment and
was appropriately filed with Judge Bennett. Alternatively, the Re-
spondent argued, inter alia, that ‘‘if semantics dictate that the Re-
spondent’s Motion to Defer be called a Motion for Summary Judg-
ment, it must only be considered a Motion for Summary Judgment
on the issue of deferral and not on the merits of the case.’’
As explained infra, we find merit in the Respondent’s motion to
defer and accordingly do not reach the merits of the instant dispute.
4 The five steps of the disciplinary procedure were:
1. written verbal warning.
2. written warning no. 1.
3. written warning no. 2, accompanied by disciplinary suspen-
sion of up to three days.
4. written warning No. 3, accompanied by disciplinary suspen-
sion of up to five days.
5. discharge.
5 The four steps provided were:
1. written verbal warning.
2. written warning #1—3 day suspension.
3. written warning #2—5 day suspension.
4. written warning #3—discharge.
Textron Lycoming, a wholly owned subsidiary of
Textron, Inc. and International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, AFL–CIO
and Local 376. Case 34–CA–5537
April 27, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issue in this case is whether to defer the dispute
to the contractual grievance-arbitration machinery.
Upon a charge filed by International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America, UAW, AFL–CIO and Local 376
(the Union), the General Counsel of the National
Labor Relations Board issued a complaint on May 21,
1992,1 alleging that the Respondent, Textron
Lycoming, a wholly owned subsidiary of Textron, Inc.,
violated Section 8(a)(5) and (1) of the National Labor
Relations Act.
The complaint alleges that on January 8 the Re-
spondent unilaterally modified the progressive discipli-
nary system contained in the parties’ collective-bar-
gaining agreement without the Union’s consent, with-
out prior notice to the Union, and without affording
the Union an opportunity to bargain with respect to the
modification. The Respondent filed an answer admit-
ting in part, and denying in part, the allegations of the
complaint and asserting an affirmative defense that the
complaint allegations should be deferred to the parties’
grievance-arbitration procedure pursuant to Collyer In-
sulated Wire, 192 NLRB 837 (1971), and Dubo Mfg.
Co., 142 NLRB 431 (1963).2
On August 3 the Board received the Respondent’s
motion to defer and supporting authorities with exhib-
its.3 On August 20 the General Counsel filed an oppo-
sition to the Respondent’s motion. On August 27 the
Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the Re-
spondent’s motion should not be granted. Thereafter,
the Respondent filed a supplemental brief, the General
Counsel filed a Cross-Motion for Summary Judgment,
and both parties filed oppositions to the motions of the
other.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record, the Board makes the following
Ruling on Motion for Summary Judgment
The uncontroverted facts show that the Respondent
and the Union are parties to a collective-bargaining
agreement effective from May 30, 1991, to May 24,
1994. The contract’s disciplinary procedure, set forth
in a May 30, 1991 letter agreement incorporated into
the contract, contained a progressive five-step system.4
The letter agreement further provided that the five-step
disciplinary schedule was to be ‘‘generally’’ applied
and that all warnings and suspensions were to be con-
sidered invalid after 12 consecutive months and re-
moved from the personnel files of employees. On Jan-
uary 8, 1992, the Respondent, without offering to bar-
gain with the Union, promulgated a memorandum uni-
laterally modifying the disciplinary system from five to
four steps5 and stating further that all ‘‘written verbal
warnings’’ were to be retained ‘‘indefinitely’’ in em-
ployee personnel files.
The Union filed both an unfair labor practice charge
and a grievance with respect to the revision in the dis-
ciplinary system and its enforcement against a unit em-
ployee. The grievance was filed pursuant to article IV
of the contract, which states in pertinent part:
A grievance is a difference of opinion between
the company and the Union or an employee in-
volving the interpretation or application of the
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The text of the management-rights clause states in full:
ARTICLE II
MANAGEMENT
The management of the plant, the direction of the working
force, designation and change of the work hours, the assignment
of jobs, promulgation of the rules and the products to be manu-
factured are solely the responsibility and function of the com-
pany. The right to hire, to discipline or suspend or discharge for
just cause, to transfer, maintain efficiency of employees, pro-
mote, demote and to lay off for lack of work or for other legiti-
mate reason in accordance with the terms of this agreement is
vested exclusively with the company. It is not intended by the
foregoing enumeration to limit any of the inherent functions of
management or to define all such functions.
7 Contrary to the contention of the General Counsel, we believe
that the Respondent’s reliance on the management-rights clause and
on the word ‘‘generally’’ in the letter agreement created a difference
of opinion as to the interpretation or application of the contract.
terms of this Agreement. Nothing herein shall be
interpreted as denying an Employee the right to
present his grievance directly to Management as
provided in the Labor-Management Relations Act
of 1947, as amended.
Section 2 of the article sets out a multiple-step griev-
ance procedure culminating in final and binding arbi-
tration of any ‘‘questions involving the interpretation
or application of the terms of this agreement.’’
The Respondent contends that the unfair labor prac-
tice alleged in the complaint concerns the identical dis-
pute which is the subject of the grievance and that a
resolution of the dispute requires the interpretation of
at least two clauses in the contract, the management-
rights clause and the May 30 letter agreement. Citing
the language of the management-rights clause reserv-
ing to it the sole right to promulgate rules and main-
tain efficiency,6 and the May 30 letter agreement stat-
ing that the five-step discipline procedure was to be
‘‘generally’’ applied, the Respondent contends that its
unilateral modification of the discipline system was
contractually authorized. Asserting that the issue raised
by its interpretation is comprehended by the broad
grievance-arbitration procedure, the Respondent argues
that its unilateral modification of the disciplinary sys-
tem should be deferred for resolution under that proce-
dure.
The General Counsel argues that the issue does not
involve a matter of contract interpretation and that
therefore deferral is inappropriate. Specifically, he con-
tends that the five-step disciplinary schedule was a
clear and unambiguous term and condition of employ-
ment within the meaning of Section 8(d) of the Act
and that the Respondent was not lawfully entitled to
unilaterally modify the schedule during the life of the
1991–1994 bargaining agreement without the consent
of the Union. Thus, when the Respondent, without the
Union’s consent, promulgated the January 8, 1992
memorandum revising the disciplinary schedule from a
five- to a four-step schedule and rescinding the provi-
sion requiring removal of warnings from employee
personnel files after 12 months, the General Counsel
argues that the Respondent violated Section 8(a)(5),
and ‘‘it is frivolous to suggest that any difference of
opinion exists requiring the interpretation or applica-
tion of the terms of the parties’ labor agreement.’’ Ac-
cordingly, the General Counsel requests that the Board
reach the merits and enter judgment against the Re-
spondent finding that it violated the Act as alleged.
Contrary to the General Counsel, we find that defer-
ral of the instant dispute is warranted. In United Tech-
nologies Corp., 268 NLRB 557 (1984), the Board re-
vised the ‘‘deferral to arbitration’’ policy expressed in
Collyer Insulated Wire, supra, and held that where, as
here, ‘‘an employer and union have voluntarily elected
to create dispute resolution machinery culminating in
final and binding arbitration, it is contrary to the basic
principles of the Act for the Board to jump into the
fray prior to an honest attempt by the parties to resolve
their disputes through that machinery.’’ The Board in
United Technologies stated that deferral is appropriate
when the following criteria are present: the dispute
arose within the confines of a long and productive col-
lective-bargaining relationship; there is no claim of
employer animosity to the employees’ exercise of pro-
tected rights; the parties’ contract provided for arbitra-
tion in a very broad range of disputes; the arbitration
clause clearly encompasses the dispute at issue; the
employer has asserted its willingness to utilize arbitra-
tion to resolve the dispute; and the dispute is eminently
well suited to such resolution. United Technologies,
268 NLRB at 558. See also August A. Busch & Co.,
309 NLRB 714 (1992).
We find that these deferral criteria are met in this
case. Thus, the record shows that the Respondent and
the Union have had a collective-bargaining relationship
dating back to 1960, and there is no evidence that the
Respondent is hostile to the exercise of protected statu-
tory rights by its employees. As shown above, the par-
ties’ grievance-arbitration clause broadly defines a
grievance as ‘‘a difference of opinion between the
Company and the Union or an employee involving the
interpretation or application of the terms of this Agree-
ment,’’ and further provides that all such difference of
opinion in contractual interpretation may be submitted
to arbitration.7 Thus, there appears to be no restrictions
on the subject matter of grievances that may be filed
and pursued to arbitration. Further, in agreement with
the Respondent’s contention, we find that the Respond-
ent has raised an issue of contract interpretation which
can best be resolved by an arbitrator with special skill
and experience in deciding matters arising under estab-
lished bargaining relationships. Transport Service Co.,
1211TEXTRON, INC.
8 The General Counsel relies on the Board’s decision in Oak Cliff-
Golman Baking Co., cited at 202 NLRB 614 (1973), in support of
his argument that deferral is inappropriate. However, in a later deci-
sion in Oak Cliff-Golman (see 207 NLRB 1063 (1973), enfd. mem
505 F.2d 1302 (5th Cir. 1974), cert. denied 423 U.S. 826 (1975)),
the Board decided that the case should be considered de novo and
hence the operative decision in Oak Cliff-Golman is the latter not
the former decision. Notwithstanding that the second decision super-
seded the first in Oak Cliff-Golman, the Board, albeit for different
reasons, again found deferral inappropriate. In any event, in a situa-
tion somewhat similar to that here (see Inland Container Corp., 298
NLRB 715 (1990)), the Board found the General Counsel’s reliance
on the latter Oak Cliff-Golman decision misplaced. The Board in In-
land at 298 NLRB 716 fn. 3 indicated that Oak Cliff-Golman
held that deferral was inappropriate . . . because the unilateral
change involved a wholesale repudiation of wage rates amount-
ing to ‘‘a basic repudiation of the bargaining relationship.’’ In
contrast, in the case now before us there is no contention or evi-
dence that the [r]espondent has refused to follow major portions
of its bargaining agreement, repudiated its relationship with the
[u]nion, or engaged in other actions amounting to total repudi-
ation of the principles of collective bargaining.
That same reasoning is applicable here and we thus find Oak Cliff-
Golman distinguishable.
9 We agree with the General Counsel that the complaint allegation
that the Respondent unlawfully ‘‘modif[ied] the progressive discipli-
nary system’’ reasonably encompasses the unilateral change regard-
ing the 12-month retention of disciplinary warnings in employee per-
sonnel files, as well as the change reducing the disciplinary steps
from five to four. For the reasons set forth above, we defer as to
both.
282 NLRB 111 fn. 4 (1986). Thus, we find that the
arbitration clause encompasses the complaint allega-
tions. Finally, the Respondent has exhibited, by the fil-
ing of the instant motion, that it is willing to submit
to arbitration. Under these circumstances, we conclude
that the dispute is eminently well suited to resolution
through that process. See August A. Busch Co., supra.
In determining that deferral is warranted, we note
further that the Union filed a grievance over the same
change in the disciplinary procedure alleged in the
complaint. By such action, the Union has indicated
that it considers the dispute to be cognizable under the
grievance-arbitration clause, further supporting our
conclusion that deferral is appropriate. See E. I. du
Pont & Co., 293 NLRB 896, 897 (1989).8
Since deferral is appropriate, we grant the Respond-
ent’s motion to defer and deny the General Counsel’s
Motion for Summary Judgment. Accordingly, we shall
dismiss the complaint subject to the qualifications con-
tained in the Order below.9
ORDER
The Respondent’s motion to defer is granted, the
General Counsel’s Cross-Motion for Summary Judg-
ment is denied, and the complaint is dismissed, pro-
vided that jurisdiction of this proceeding is retained for
the limited purpose of entertaining an appropriate and
timely motion for further consideration on the proper
showing that either (a) the dispute has not, with rea-
sonable promptness after the issuance of this Decision
and Order, 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 that is repugnant to the Act.