The Detroit Edison Co.

National Labor Relations Board - Board Decisions

Nov 2, 1973

206 N.L.R.B. 898 (N.L.R.B. 1973)

898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Detroit Edison Company and Robert C. Anderson.
Case 7-CA-9949
November 2, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY
AND PENELLO
On May 8, 1973, Administrative Law Judge Stanley
N. Ohlbaum issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief, Respondent filed a brief
in opposition to the exceptions, and Local 223, Utility
Workers Union of America, AFL-CIO, the certified
bargaining representative herein, filed a motion to
intervene and exceptions.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order only to the extent con-
sistent herewith.
This case involves the matter of vacation of
Respondent's employee Robert C. Anderson (the
Charging Party) for I day, June 16, 1972. The day's
vacation or leave, which Anderson had in fact earned,
was requested by and granted to Anderson on or
about June 12, for June 16. On the evening of June 14,
the Union of which Anderson is a member com-
menced an economic strike which lasted approxi-
mately 1 week. Since Anderson was on strike,
picketing and as a picket captain, on June 16, he did
not receive pay for that day. However, he has contin-
uously been given the opportunity to reschedule that
day's vacation or leave for any other date; but he has
not seen fit to do so, although the opportunity remains
open to him.
In the contract between Respondent and the
Union, there is provision for grievance-arbitration
procedure involving four formal steps, the fourth and
final one being arbitration. The Union on behalf of
Anderson proceeded unsucessfully through the first
three steps with respect to his claimed vacation pay
for June 16. However, the Union did not proceed to
the fourth step of arbitration, and the time limit to do
so has long since expired. Moreover, Respondent in
' The Union's motion to intervene is granted, and its exceptions are accept-
ed as a present party to the proceeding
its brief states that it may still properly rely upon
untimeliness if Anderson should now seek arbitration.
The Administrative Law Judge concluded that the
case should be deferred to the grievance-arbitration
procedure under Collyer Insulated Wire, 192 NLRB
837. He found immaterial the fact that the time limit
for proceeding to arbitration has now expired, and
indeed expressly provided that the deferral to arbitra-
tion is without prejudice to Respondent's right to raise
the defense of untimeliness with respect to arbitration.
We would not so defer to the grievance-arbitration
procedure in the instant case because the time for
proceeding to arbitration has now expired, and Re-
spondent still insists that it will rely on untimeliness
as a defense, as specifically reserved to it by the Ad-
ministrative Law Judge, so as to bar any arbitration;
and thus, as urged by the General Counsel, the defer-
ral to arbitration is the equivalent to handing Ander-
son an "empty shell," and Anderson will be left
without any recourse through no fault of his own
because his case was not processed to arbitration in
timely fashion by the Union, all contrary to the Col-
lyer policy.
We shall therefore turn to and decide the case on
its merits under the Act. With the case in this posture,
the General Counsel contends that it is controlled by
Cavalier Division of Seeburg Corporation and Cavalier
Corporation, 192 NLRB 290, and Respondent con-
tends that it is controlled by Texaco, Inc., 179 NLRB
989.
In Cavalier, the Board found that case to be distin-
guishable from the mere scheduling of vacations in
that the contract there specifically provided for mon-
ey to be paid in lieu of an actual vacation, and accord-
ingly striking employees were unlawfully entitled to
accrued vacation money withheld from them by their
Employer solely on the ground that they were en-
gaged in an economic strike. And since the Respon-
dent there advanced no reason of a business nature to
justify withholding vacation pay during the strike, the
Board inferred unlawful motive under Great Dane 2
and found the deprivation of the vacation pay a viola-
tion of Section 8(a)(3) and (1).
In Texaco, on the other hand, the Board found no
violation in the Respondent's actions in postponing
employees' vacations during a strike and compelling
the repayment of vacation pay previously advanced
as not being inherently destructive of employee rights
or discriminatorily motivated in fact.
In the instant case, there is a provision in the con-
tract for money to be paid in lieu of amactual vacation
if the Company requests an employee to forego his
vacation. But, as noted above, the Company here has
continuously given Anderson the opportunity to res-
t N L.R.B. v. Great Dane Trailers, 388 U S. 26.
206 NLRB No. 116
DETROIT EDISON CO. 899
;hedule his vacation day. Moreover, there has been an
Ictual practice followed for perhaps as long as 20
fears that Respondent is permitted to and has in fact
-escheduled employees' vacations as required by ne-
^essities i.e., to maintain an uninterrupted supply of
electricity as a public utility. Thus, here as in Texaco,
and unlike Cavalier, Respondent has not taken any-
thing away from Anderson, but has merely required
him to postpone a vacation day- We therefore find
that such postponement rather than actual depriva-
tion of the I day's vacation did not violate Section
8(a)(3) and (1), and we shall dismiss the complaint.
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.
DECISION
I PRELIMINARY STATEMENT
STANLEY OHLBAUM, Administrative Law Judge: This pro-
ceeding, I under the National, Labor Relations Act, as
amended„ 29 U.S.C. § 151, et seq. (Act),, was tried before me
in Detroit, Michigan, on April 10, 1973, with all parties
participating and represented throughout and given full op-
portunity to present proof and contentions. In accordance
with permission granted, a brief was received from General
Counsel on April 30, 1973.
At issue is whether Respondent violated Section 8(a)(3)
and (1) of the Act by promulgating and applying a discrimi-
natory vacation pay policy so as to discourage union mem-
bership and interfere with, restrain, and coerce employees
in rights secured by the Act.
Upon the entire record,' I make the following:
FINDINGS AND CONCLUSIONS
II PARTIES- JURISDICTION
At all material times Respondent, a Michigan and New
York public utility corporation, has engaged in generation,
sale, and distribution of electricity in Michigan. During
those business operations in the representative year 1972,
Respondent purchased outside and received shipment in
Michigan, directly in interstate commerce, supplies and
equipment valued at over $5 million. During the same peri-
od, Respondent sold to purchasers within its service district
including an 11-county service area in and around Detroit,
electricity valued at over $250 million.
1 Based upon complaint issued by the Board's (then Acting) Regional
Director for Region 7 dated February 26, 1973, arising out of charge filed
by the above Charging Party on November 21, 1972.
2 Stipulated without actual testimony, as reflected in the transcript. The
transcript is hereby corrected in respect to obvious and typographical errors.
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and Local Union No.
223, Utility Workers Union of America, AFL-CIO
(Union), a labor organization within the meaning of Section
2(5) of the Act.
III ALLEGED UNFAIR LABOR PRACTICES
This case involves the matter of vacation, pay of
Respondent's employee Robert C. Anderson (Charging
Party) for 1 day; namely, June 16, 1972. The day's vacation
or leave, which Anderson had in fact earned, was requested
by and granted to Anderson on or about June 12, for June
16. On the evening of June 14, the Union of which Anderson
is a member commenced an economic strike which lasted
approximately 1 week. Since Anderson was on strike, pick-
eting and as a picket captain, on June 16, he did not receive
pay for that day. However, he has continuously been given
the opportunity to reschedule that day's vacation or leave
for any other date; but he has not seen fit to do so, although
the opportunity remains open to him.
It is General Counsel's theory that by failing to pay An-
derson for the specific date in question-June 16-Respon-
dent violated Section 8(a)(3) and (1) since Anderson was
then engaged in an economic strike and the purpose and
effect of Respondent's action was to shorten that strike.
Respondent and the Union entered into a written collec-
tive agreement on July 7, 1969, by its terms effective as of
June 16, 1969, for a 3-year period ending at midnight on
June 12, 1972, and continuing thereafter from year to year
unless 60 days prior to that June 12, or that of any extended
term, either party gave written notification to terminate,
amend, or supplement the agreement (G.C. Exh. 2, p. 1 and
art. XIV, sec. 2). Such notices were given by both parties
here.
The same agreement includes a grievance-arbitration
procedure, spelled out in detail (G.C. Exh. 2, art. IV), in-
volving four formal steps or levels, the fourth and final one
being arbitration, The agreement stipulates that the deter-
mination at each step shall be final and that the grievance
shall "no longer exist" (id, art. IV, sec. 2d, e,' and f) if not
carried to the next higher step within the expressly limited
number of days. The agreement also provides (id., art. IV,
sec. 3, arbitration of grievances) that "The question of
whether a grievance is subject to arbitration may be arbi-
trated."
As has been indicated, the Union commenced an eco-
nomic strike against Respondent on the evening of June 14
for 1 week. A new collective agreement was entered into
between them on July 3, effective as of June 13, 1972.
When Anderson did not receive pay from Respondent for
the day of June 16 when he was on strike, he or the Union
on his behalf on July 6 filed a grievance, dated June 16, and
proceeded thereon through formal step 3 (formal step 1,
July 13, through formal step 3, November 1, 1972), unsuc-
cessfully. Thereafter, neither Anderson nor the Union exer-
cised the right to pursue the matter beyond Step 3 to
arbitration, notwithstanding the contract provision (G.C.
Exh. 2, art. IV, sec. 3, arbitration of grievances) that "Any
such grievance not so submitted to arbitration within thirty
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(30) days will be considered to no longer exist."
As appears from the grievance documents (G.C. Exhs.
3A, B, C, & D), the question of Anderson's entitlement to
pay for the particular day in question under the circum-
stances described involves, indeed may center around, mat-
ters concerning the "meaning or application of the terms of
this Agreement" (i.e., the parties' collective agreement, G.C.
Exh. 2, art. IV, sec. 3),3 as perhaps necessarily elucidated by
the parties' actual past practices thereunder,4 and thus-as
explicitly provided in that agreement (G.C. Exh. 2, art. IV,
sec. 3, arbitration of grievances)-be appropriate for, and
indeed perhaps upon timely demand compulsory for, arbi-
tration.
It is Respondent's contention that Anderson is conclud-
ed, and that therefore the instant proceeding is not main-
tainable, because Anderson did not seek to proceed to the
next and final Step (i.e., arbitration) under the contract.
While it is undisputed that Anderson did not seek to avail
himself of arbitration after meeting with no success in step
3 of his grievance under the contract, Anderson as well as
General Counsel contend here that there was no obligation
on his part to proceed with arbitration and that therefore,
there should be no deferral to the arbitration process here;
and further, perhaps, that the question or questions present-
ed are not subject to arbitration even under the contract.
With regard to the first of these contentions of Anderson
and General Counsel, the short answer would seem to be
that although arbitration is not mandatory as such under
the contract, that is true only in the sense that the employee
is not compelled to avail himself of it, if he is willing to have
his grievance "no longer exist"; if, however, he wishes to
continue his grievance and avail himself of arbitration, it is
his right to do so. From this it follows that once the employ-
ee asserts that right, the Employer is compelled to submit
3 Cf., e.g., G.C. Exh. 2, art. X, sec. 7c, last sentence , and sec. 7h(2), dealing
with vacation time and its scheduling and rescheduling . (The parties agreed
at the trial that the reference in sec. 7h(2) to Section 8c is a typographical
error and should be sec. 7c.) It was stipulated at the trial that Respondent
could produce testimony-with regard to which General Counsel would not
exercise any right of cross-examination-that under the terms of sec. 7h(2)
and the act ualpractices followed thereunder for perhaps as long as twenty years,
Respondent is permitted to and has in fact rescheduled employees ' vacations
as required by necessities-i.e., to maintain uninterrupted supply of electrici-
ty as a public utility.
° See Respondent 's answer, para . 8(a) through (e) and affidavit of Emil
Ruch thereto annexed , which General Counsel stipulated at the trial would
be testified to by Ruch if called as a witness . General Counsel further stipu-
lated he would not exercise any right of cross-examination thereon. It was
also stipulated at the trial that the vacation policy enunciated by Respondent
to apply during a strike period , as reflected in para . 8 of the complaint (based
upon step I grievance document of July 13, 1972, G.C. Exh. 3C) was made
known to the Union on June 10, 1972, when written copies thereof were given
to the Union bargaining committee . It seems evident that these matters,
relating as they do to the parties' practices concerning vacations and leaves,
might well be directly useful in contractual interpretation and could readily
be explored in the usual loose climate of an arbitration.
5 While the contract (G.C. Exh. 2) by its terms expired at midnight of June
12, 1972, the complaint here (par. 10(b)) alleges and the answer admits that
the parties thereafter maintained it in effect on a day-to-day basis. Further-
more, it is apparent that the parties treated it as alive after June 12 for the
purpose of the grievance in question -which, indeed , they properly could do
and were perhaps even required to do since central facts spawning or opera-
tive with respect to the grievance occurred when the contract had not by its
terms expired . Cf., in this connection , on the subject of arbitration under a
technically expired contract, Taft Broadcasting Co., 185 NLRB 202 , enfd. 441
F.2d 1382 (C.A.8), with Hilton-Davis Chemical Company, 185 NLRB 241.
or respond thereto; thus, arbitration is a mandatory griev-
ance settlement procedure under the contract. For this rea-
son, Tulsa-Whisenhunt Funeral Homes, Inc., 195 NLRB 106
is inapplicable here.
Insofar as the second of the contentions of Anderson and
General Counsel is concerned, namely that the question or
questions presented are not arbitrable under the contract, it
would seem that the contention cannot withstand scrutiny,
since it is inescapable from the facts as shown that it is at
least highly plausible that questions of contract interpreta-
tion are presented, and that the result of that interpretation
(particularly in terms of the parties' own past practices, as
here claimed) would control the outcome of Anderson's
claim. Furthermore, the parties themselves have stipulated
in their agreement, as shown above, that "The question of
whether a grievance is subject to arbitration may be arbi-
trated," thereby indicating their intention to resolve ques-
tions of the dimensions or borders of the arbitration on such
issues within the arbitration itself. Under these circumstan-
ces, it appears to me that the parties should, under the
Board's Collyer rationale, be relegated to their own contrac-
tually elected forum of arbitration for determination of this
question. Collyer Insulated Wire, 192 NLRB 837.
I also cannot agree with the Charging Party's or General
Counsel's contention that the Collyer requirement is inap-
plicable here because the Charging Party did not seek arbi-
tration, which is no longer available since the contractual
time limit therefor has-through the Charging Party's own
failure to avail himself thereof-expired, and that conse-
quently the Board is powerless to defer to arbitration herein.
If that argument were sound, it could not only in effect
provide an escape mechanism from a party's contractual
obligation to arbitrate (where, as here, the contract requires
arbitration to overturn a prior unsuccessful grievance out-
come), but an escape hatch as well from what I apprehend
to be the underlying philosophy of the Board's Collyer doc-
trine. I do not read Collyer to require deferral to arbitration
until a Respondent who has complied with all contractual
grievance procedures short of arbitration and is under no
necessity or contractual obligation to proceed further, pro-
ceeds with arbitration; on the other hand, I do read Collyer
as-at least under certain circumstances-requiring defer-
ral in the case of a charging party who has stopped short of
contractually required arbitration. A corollary, or applica-
tion, of this is that where the parties' contract provides that
the grievance determination shall be final and binding upon
the parties if they do not proceed to arbitration, and the
parties after exhausting the grievance procedures do not
elect to proceed to arbitration, the Board will not for that
reason-on the theory, for example, that arbitration is no
longer "available" or that the Respondent in the complaint
case before the Board, who has complied with all contractu-
al requirements, has not proceeded to arbitration 6 -de-
termine on the merits the complaint case before it, just as
if the parties never had a contractual arbitration obligation.
Finally, although the Board has declared in general terms
that there is to be no Collyer deferral where the arbitrability
contention is not timely raised in the Board proceeding
6 It would be equally anomalous to in effect require a successful litigant
to appeal.
DETROIT EDISON CO.
(MacDonald Engineering Co., 202 NLRB 748 with which,
however, cf. Tulsa-Whisenhunt Funeral Homes, Inc., supra),
obviously this applies only when there is an arbitration
obligation on the party seeking to invoke the Collyer deferral
principle; not, as here, where there is none.
In pursuance of Respondent's contentions, I have given
consideration in the particular situation here presented to
outright and final dismissal of the proceeding at this stage,
in extension of the Collyer principle, in view of the conceded
expiration, through voluntarism on the Charging Party's
part, of the time limit for pursuing arbitration.
Respondent's contention is not without attraction. Never-
theless, because issues have been suggested concerning the
arbitrability of the basic issue or issues involved in the griev-
ance, and in view of the contract provision that "The ques-
tion of whether a grievance is subject to arbitration may be
arbitrated," and the further possibility-which I cannot rule
out otherwise that by impermissible assumption-that the
Employer might not insist on assertion of a time bar to
arbitration (or that there may be a valid response to such
a time bar plea if asserted), it would seem that the policies
of the Act-as perhaps enhanced or constricted by Col-
lyer-would best be promoted by permitting the parties to
seek to proceed'to arbitration of that threshold issue (i.e.,
the issue of arbitrability itself) as well, should they desire to
do so. However, since it is apparent that Respondent, hav-
ing prevailed through step 3 of the grievance procedure,
might not now seek arbitration (as, indeed, it has not done
and had no reason to do), I shall include a provision that
unless the Charging Party proceeds to invoke arbitration
within 60 days of final determination of this proceeding
(which is deemed a reasonable time for that purpose), this
proceeding will be regarded as automatically dismissed. It
should additionally be understood that the determination to
defer to arbitration herein is without prejudice to the
Employer's right to raise any defense in or to such arbitra-
tion or to any proceeding to compel or stay the same, in-
cluding the defense, plea, bar, or contention of
untimeliness; and is likewise without prejudice to the
Employee's right to raise any countervailing positions or
contentions.
Upon the foregoing findings and the entire record, I state
the following:
CONCLUSIONS of LAW
901
A. Assertion of jurisdiction herein is proper.
B. This proceeding should be deferred pending arbitra-
tion between the parties of the issue of the entitlement of
Robert C. Anderson to vacation pay for June 16, 1972;
provided, however, that if such arbitration is not invoked by
or on behalf of Robert C. Anderson within 60 days after
final determination of this proceeding, this proceeding
should be dismissed.
C. If such arbitration is so invoked or held, jurisdiction
herein should be retained by the Board for the sole purpose
of determining, upon appropriate and timely application,
whether the arbitration procedures have been fair and regu-
lar, and the result therein not inconsistent with the policies
of the Act.
ORDER7
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, it is hereby:
Ordered, that the complaint herein be and it is hereby
dismissed in the event Robert C. Anderson, Charging Party
herein, fails within 60 days from the date of this Decision
to invoke arbitration of his dispute with The Detroit Edison
Company concerning his vacation pay for June 16, 1972.
IT IS FURTHER ORDERED, that in the event said Robert C.
Anderson invokes such arbitration within 60 days, or in the
event the parties proceed with such arbitration, jurisdiction
is retained herein for the sole purpose of entertaining an
appropriate and timely motion for further consideration
upon a proper showing that said arbitration procedures
have not been fair or regular or that they have reached a
result which is repugnant to the Act 8
7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order which follows herein shall, as provided
in Sec. 102.48 of the Rules and-Regulations, be adopted by the Board and
become its findings, conclusions, and order, and all objections thereto shall
be deemed waived for all purposes
8 Collyer Insulated Wire, supra, Spielberg Manugactunng Company, 112
NLRB 1080