T.L.B. Plastics Corp.

National Labor Relations Board - Board Decisions

Feb 6, 1985

273 N.L.R.B. 1835 (N.L.R.B. 1985)

T.L.B. PLASTICS CORP. 1835
T.L.B. Plastics Corporation and United Electrical,
Radio and Machine Workers of America (UE).
Cases 13-CA-22322 and 13-CA-22353
6 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 31 July 1984 Administrative Law Judge
Richard L. Denison issued the attached decision.
The General Counsel and the Charging Party filed
exceptions and supporting briefs. The Respondent
filed a brief in support of the judge's decision.
The National Labor Relations Board has consid-
ered the decision and the record in light of the ex-
ceptions and brief and has decided to affirm the
judge's rulings, findings, and conclusions and to
adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed, subject to the limitations provided for in
the Order.
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge.
This consolidated proceeding was heard in Chicago, Illi-
nois, on January 19, 20, and 21, and April 12, 13, 14, 15,
1983, at which time a full record was completed.' The
consolidated complaint, as amended, alleges that the Re-
spondent violated Section 8(a)(1) and (3) of the Act by
issuing two disciplinary warning notices to Charlie
Jones, refusing to pay Jones holiday pay for Memorial
Day 1982 and suspending him for 3 days, and discharg-
ing Jones on June 29, 1982. Also alleged as violations of
Section 8(a)(1) and (3) are the discharges of seven other
employees, who the General Counsel contends were ter-
minated because of their union sympathies and activities,
and who Respondent maintains were released for engag-
ing in a work stoppage, or "wild cat" strike, in violation
of plant rule 12 and the no-strike clause of its collective-
bargaining agreement with Plastic Workers' Union Local
No. 18, AFL-CIO. The Respondent's answer, as amend-
ed, denies the allegations of unfair labor practices alleged
in the amended consolidated complaint. The answer also
specifically asserts that these cases should be deferred to
arbitration under the provisions of the collective-bargain-
ing agreement then in effect.
Based on the entire record in the case, 2 including my
consideration of the briefs filed June 20, 1983, I make the
following
' Dunng the course of the hearing Cases 13-CA-22571 and 13-CA-
22632 were severed, settled, and withdrawn.
2 (a) Certain errors in the transcript have been noted and corrected.
FINDINGS OF FACT
I. JURISDICTION
Based on the allegations of paragraphs II(a), II(b), and
II(c) of the complaint, as amended, admitted in para-
graph II of the Respondent's answer, as amended, I find
that the Respondent is now, and has been at all times
material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION
Based on the allegations of paragraph III of the com-
plaint, as amended, admitted in paragraph III of Re-
spondent's answer, as amended, and other undisputed
evidence in the record, I fmd that United Electrical,
Radio and Machine Workers of America (UE), the
Charging Party, and Plastic Workers Union Local 18,
AFL-CIO are each labor organizations within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent operates a custom injection plastic
molding plant at Franklin Park, Illinois. As of early 1981,
Respondent's production and janitorial employees had
been represented for 17 years by Plastic Workers' Union
Local 18, AFL-CIO with whom the Respondent had
had a series of 3-year contracts. The most recent agree-
ment, in evidence, expired in July 1982, pursuant to a
memorandum of agreement between the Company and
Local 18 extending the duration of the contract until the
question concerning the Charging Party's representation
status was resolved. The General Counsel does not
attack the validity of that extension. Moreover, it is con-
ceded that the contract with Local 18 was in full force
and effect at the time of the incidents on which the alle-
gations of the complaint, as amended, were based.
Approximately June 1981, through certain of Respond-
ent's employees, the Charging Party began securing
signed authorization cards from Respondent's workers as
part of a drive to replace Local 18 as bargaining agent.
An election petition was filed with the Board by the
Charging Party on August 4, 1981, and, pursuant to a
Stipulation for Certification Upon Consent Election, an
election was held on October 2, 1981. The Charging
Party won and, following the resolution of objections to
the election, the UE was certified by the Board and the
Respondent's contractual relationship with Local 18
ended. Initially, the Respondent sought to test the validi-
(b) Respondent's motion to strike portions of the General Counsel's
bnef to the judge, "Attachment B" [omitted from publication] to this de-
cision, is granted. As requested in par. 3 of that motion, official notice is
taken of the Board's decision in T.L.B. Plastics Corp., 266 NLRB 331
(1983). Official notice is not taken of the record in the underlying repre-
sentation proceeding. The General Counsel's response to Respondent's
motion to strike is included as "Attachment C" for purposes of clanty.
(c) The joint stipulation and motion to strike filed by all parties on
May 16, 1983, "Attachment D," [omitted from publication], is received
into evidence, and the motion contained therein is granted.
273 NLRB No. 223
1836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ty of the certification by refusing to bargain with the
Charging Party. A charge in Case 13-CA-22375 was
filed as the result of this adopted course of action and
processed through the Board's summary judgment proce-
dure, wherein the General Counsel obtained a bargaining
order which the Board issued in T.L.B. Plastics Corp.,
266 NLRB 331, on March 7, 1983, in the midst of a
recess in this proceeding. Upon resumption of this hear-
ing on April 12, 1983, the Respondent, through its coun-
sel, gave notice on the record that it intended to comply
with the Board's Order and, accordingly, would recog-
nize and bargain with the Charging Party 3 Thereafter
negotiations took place, and the Respondent and the UE
executed a collective-bargaining agreement on January
29, 1984, effective from January 30, 1984, until Decem-
ber 31, 1986.
Notwithstanding the sequence of events recited above,
at the time of the closing of this record the Respondent
adhered to its affirmative defense that the issues which
comprise the instant proceeding should be deferred to ar-
bitration Thereafter, on January 19, 1984, the Board
issued decisions in United Technologies Corp., 268 NLRB
557 (1984), and Olin Corp., 268 NLRB 573 (1984), rees-
tablishing deferral to arbitration as official Board policy
in appropriate cases, including those involving alleged
violations of Section 8(a)(1) and (3) of the Act. In this
respect United Technologies, wherein the Board overruled
General American Transportation Corp., 228 NLRB 808
(1977), and renewed the application of principles enunci-
ated in Collyer Insulated Wire, 192 NLRB 837 (1971), to
8(a)(3) and (1) cases, is particularly relevant. According-
ly, the judge issued an order for the parties to show
cause whether or not the instant proceeding should be
deferred to arbitration. Responses, which were received
from all parties, have been carefully considered
In its response the Respondent adheres to its position
in its answer, which it has consistently maintained
throughout this proceeding, that this matter is appropri-
ate for deferral. The Respondent shows that at the time
of the events in question the affected employees were
covered by a collective-bargaining agreement with the
P.W.U., which contains, as article VIII, a grievance pro-
cedure culminating in final and binding arbitration
Timely grievances were filed by each of the alleged dis-
criminatees in the instant proceeding with respect to the
same issues which are the subject of this proceeding 4
There is no issue of a defense of the timeliness limitations
of the agreement, since both the Respondent and the
P.W.U. have agreed to arbitrate the merits of this dispute
based on the full record in the instant Board proceeding.
Consideration of the unfair labor practices alleged in the
complaint is thus assured. The arbitrator has been desig-
nated in accordance with the governing contractual pro-
vision. The P.W.U. has again reaffirmed its willingness
to honor its residual commitment under its former con-
tract with Respondent.5
a At which time the charge in Case 13-CA-22632, another 8(a)(5)
charge, was withdrawn
4 Attachment E [omitted from publication]
5 Attachment F [omitted from publication]
The General Counsel concedes that the issues raised in
the unfair labor practice proceeding fall within the scope
of the expired collective-bargaining agreement Howev-
er, the General Counsel argues that arbitration of this
matter under the terms of that agreement under these
circumstances would operate in derogation of the Charg-
ing Party's representative status, undermining that status
and operating in derogation of the current agreement be-
tween the Charging Party and the Respondent The
General Counsel also argues that the Charging Party is
not bound by the terms of the P.W.0 contract, and has
replaced the P W U as majority representative and, in
addition, that the competition between the Charging
Party and the P.W.U. during the election campaign cre-
ated opposing interests which render this dispute unsuit-
ed to resolution by the arbitral process. Finally, it is con-
tended that submission to arbitration would result in
delay. The Charging Party's position, vigorously ex-
pressed in its brief, closely parallels that of the General
Counsel.
In disagreement with the General Counsel and the
Charging Party, in my view, the concerns they express
do not preclude deferral to arbitration in the somewhat
unusual circumstances of this particular case. As noted
by the Respondent the issues raised by the consolidated
complaint in a statutory context are also contractual
issues under the no-strike, management rights, and holi-
day pay provisions of the P W U contract then in effect
The facts which must be considered are also the same.
Likewise, the issue of discrimination because of union ac-
tivity, based on these same facts, will be passed upon by
the arbitrator by virtue of the prohibition against union
discrimination specified in article VII of that agreement.
Thus, the requirement that the contractual issues and the
unfair labor practice issues be factually parallel, is met.
Secondly, the General Counsel's and Charging Party's
objections that the Charging Party's interests would not
be protected, and that due process and a fair hearing
would be denied ignores the realities of the existing cir-
cumstances. It would appear that the employees involved
continued to have a substantial amount of faith in the
fairness of the grievance-arbitration machinery of the ex-
isting contract between Respondent and P.W.U., despite
their support of the Charging Party in the representation
case, otherwise they would not have pursued that avenue
of relief, a course of action which they have never aban-
doned. Furthermore, there is undisputed evidence in the
record showing that P.W.U. Union Steward Flora
Rambo, on whose testimony the General Counsel relies,
made considerable efforts to perform her contractual
duties with respect to representing the alleged discrimin-
atees, including extensive efforts seeking to persuade the
employees who left their work stations to return to work
for fear that they might lose their jobs for violating the
no-strike clause of the P W U contract Such evidence,
coupled with P W.U.'s reaffirmation of its commitment
to arbitrate these cases, tends to refute any contention
that the alleged discriminatees would not receive fair
representation before the arbitrator. Likewise, the Charg-
ing Party's interests have been protected since the basis
for the arbitration of these issues will be the full record
T.L.B. PLASTICS CORP. 1837
in the instant proceeding in which the Charging Party
freely participated and filed a brief. The fact that the
Charging Party chose to represent itself at the hearing
through the services of the field organizer responsible for
the Charging Party's organizational drive rather than an
attorney (the only appearance entered for the Charging
Party in this case) is no impediment, since representation
by a lay person is a common occurrence in Board pro-
ceedings. Finally, contrary to the expressed concern of
the General Counsel and the Charging Party, arbitration
of this matter is more likely to avoid rather then increase
any further delay in resolving the issues specified in the
consolidated complaint.
In sum, the true situation presented here is simply this.
There remains one final item of unfinished business re-
maining under Respondent's contract with P.W.U.—the
disposition of the final grievances filed under that con-
tract by the affected employees who decided to use that
avenue in seeking relief. Because of this case, these
grievances have been held in abeyance at the arbitration
stage. In my view, excluding tradition, emotion, and tac-
tical considerations, invalid reasons for not processing
these matters in an arbitral forum, there is really no logi-
cal reason why these issues cannot be determined by an
arbitrator. The interests of the Charging Party have been
sufficiently safeguarded, as described above. Further-
more, as the Board stated in United Technologies, supra at
560:
Contrary to the notion of the majority in General
American Transportation, deferral is not akin to abdi-
cation. It is merely the prudent exercise of restraint,
a postponement of the use of the Board's processes
to give the parties' own dispute resolution machin-
ery a chance to succeed. The Board's processes
may always be invoked if the arbitral result is in-
consistent with the standards of Spielberg. [Spielberg
Mfg. Co., 112 NLRB 1080 (1955).]
Accordingly, I find and conclude that the issues raised
by the consolidated complaint in Cases 13-CA-22322
and 13-CA-22353 should be deferred to the grievance-
arbitration provisions of the collective-bargaining agree-
ment between Respondent and Plastic Workers Union
Local No. 18, AFL-CIO, under the principles of Dubo
Mfg. Corp., 142 NLRB 431 (1963); and of Collyer, supra;
and National Radio, supra.
CONCLUSIONS OF LAW
1. T.L.B. Plastics Corporation is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. United Electrical, Radio and Machine Workers of
America (UE) and Plastic Workers Union Local No. 18,
AFL-CIO are each labor organizations within the mean-
ing of Section 2(5) of the Act.
3. Good cause has been shown that the issues raised by
the consolidated complaint should be deferred to the
grievance-arbitration provisions of the applicable collec-
tive-bargaining agreement under the principles of Dubo
Mfg. Corp., supra, Collyer, supra, and National Radio,
supra.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 6
ORDER
The complaint is dismissed, provided that:
Jurisdiction of this proceeding is retained for the limit-
ed 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 and Order,
either been resolved by amicable settlement in the griev-
ance procedure or submitted promptly to arbitration, or
(b) the grievance or arbitration procedures have not been
fair and regular or have reached a result which is repug-
nant to the Act.
6 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.